Now it may very well be, as a matter of policy, that we should take a look at that. But I don't see that that's "double dipping" because that license was for that particular university and their choir.

Often, as I understand it, and correct me if I'm wrong, when a license is granted to the University of Oklahoma or any other choral group, that's for particular uses, generally at the university.

And I would think that if the university wanted to also license performances, let's say for visiting other universities or other events off the campus, that would be something to negotiate. Am I wrong on that?

Dr. BROOKS. Possibly so.

Mr. HUGHES. Possibly, I'm wrong?

Dr. BROOKS. I'm not sure at this point. But also, I don't think it's right for a high school in Little Rock, AR, that wants to go perform in a mall to have to buy a license to sing in that mall, or sing for a nursing home, to have to purchase a license to go sing in that nursing home.

Mr. HUGHES. Well that may very well be as a matter of policy. Of course, the mall presents another problem because now you are talking about public performances for, let's say, humanitarian, or charitable, or community purposes.

What you are arguing, I presume, is that perhaps the choir should have an exemption. I'm not saying that as a matter of policy we should not consider it, but it's not covered, it seems to me now, unless when that particular university negotiates their license, they include that within the license.

Dr. BROOKS. It's complex.

Mr. HUGHES. Well, I think we've decided it's not only complex, but we have waded into a real thicket.

The gentleman from North Carolina.

Mr. COBLE. Thank you Mr. Chairman. You and the gentleman from California pretty well touched the bases I had planned to touch.

Dr. Brooks, it is good to have you with us. Unlike you, sir, I am not musically talented, but I am an appreciator of music.

Having said that, I am concerned about protecting copyright owners, authors, and composers. They have put blood, sweat, and tears into their work, and they should be compensated.

By the same token, I can appreciate the frustration that people such as you and operators of restaurants and taverns across the countryside encounter as this business continues to develop.

I think, perhaps, the word might be "incidental." For example, I am driving in my district, and I have been deprived of my breakfast and my noon meal, and I'm ravenous. I see an advertising sign that says "fried chicken and barbecue 5 miles ahead," and I pull into the establishment there and consume my meal, and incidentally, music is piped in. I can see a good argument there, Mr. Chairman, that the proprietor might say, "Well this guy came in to eat my good barbecued chicken, not to listen to music."

Unfortunately, it is not going to be that easy, I think, to cut into societies. You and I were talking on the elevator, Mr. Chairman, coming up here.

I'm uneasy about the fact that we have received countless complaints during the past several years from operators of these establishments. I don't mean to be indicting ASCAP, because ASCAP consists of good people as well.

But they'll come in and say, “OK, pal, you owe us $750." Well, oftentimes the operator of this establishment doesn't know the law, and probably doesn't have the wherewithal to retain counsel to defend himself, if in fact litigation is forthcoming.

It is very provocative and very interesting, and I think much of what you said is on the money. But by the same token, when you answered the chairman's question, you very candidly said you didn't know, and I think many times we don't know. If you could wave a wand and resolve it, I guess you wouldn't have to have these hearings, Mr. Chairman.

Let me put two questions to you, Dr. Brooks. I'm just rambling, but these are problems that plague me as we get into this thing more deeply.

Do you have any indication, Dr. Brooks, whether or not ASCAP or other people attempting to collect these moneys have begun seeking licensing fees for music performed in public schools? I'm not suggesting they do, but do you know about this?

Dr. BROOKS. I don't know. This question was asked of ASCAP at our leadership conference this summer, and they said they didn't have the forces to police every school, in the United States.

Mr. COBLE. The reason I ask this, Mr. Chairman, this could be a mounting problem, because public schools are plagued severely enough now. And if this were to come into play, this would just be another problem. So you don't know one way or the other about that?

Dr. BROOKS. I don't know for sure. I do know this, that in the conversation this summer, that they said by law the schools should have a license.

Mr. COBLE. OK. If you learn any more about that, Doctor, I'd like to know, if you come across additional information. That would be, I think, interesting to the subcommittee.

Permit me, Mr. Chairman, to ask one final question. Dr. Brooks, in your statement, page 7 I believe it was, you indicate that both ASCAP and BMI have demonstrated an inability to track down the exact number of performances of music taking place in this country. And if this can not be accomplished, then it is unlikely that the composers are receiving fair compensation for their music. Elaborate for me on this point, if you will.

Dr. BROOKS. Again, at the leadership conference this summer in Oklahoma, an ASCAP representative said it was impossible to track all the performances of choral music in the United States by all the choirs.

And they come up with a formula in which they assess these and a formula in which they say that they return revenue to the composers.

Mr. COBLE. Well, I thank you. Mr. Chairman, I guess the haunting memory I'll have of this hearing is the fact that you had to pay, or allegedly had to pay, to sing "Happy Birthday." Now that is cutting it pretty finely. What resulted from that exchange?

Dr. BROOKS. We sang "Happy Birthday" to two of our member State presidents. And we were reminded that "Happy Birthday" was an ASCAP song and that it would indeed need to be licensed. But we didn't have a license.

Mr. COBLE. But you submitted no moneys to that effect.

Dr. BROOKS. No, we didn't.

Mr. COBLE. And that is the last you heard from it?

Dr. BROOKS. Yes.

Mr. COBLE. OK. Thank you, Dr. Brooks. Thank you, Mr. Chairman.

Dr. BROOKS. Mr. Chairman, I would like to say one closing comment. We appreciate ASCAP and BMI. We appreciate what they do for the choral composers of this country.

Many of our members are members of ASCAP and BMI. And we appreciate what they do to uphold the laws and to try to compensate our composers. Our concern is that we be treated justly and fairly.

Mr. HUGHES. Yes, I think you probably echoed the sentiments of the members of the committee, too. And it's no criticism of the great work that these collecting societies do. They perform a very, very useful function.

Unfortunately, the law is not very clear in many respects. And that's created much of the problem, as I indicated in my statement yesterday.

But, Dr. Brooks, you have been very, very helpful to us today, and we appreciate it. You've helped me also draw out from my colleague from North Carolina where he draws the line. It's at the "Happy Birthday" song. That's where he draws the line.

Mr. COBLE. Yes. Well that's where I draw one of the lines, Mr. Chairman.

Mr. HUGHES. I see. All right.

Thank you very much, Dr. Brooks, we appreciate your help. Our first panel this morning consists of representatives of the convention, auditorium, and trade exhibition industry.

The first witness, Bob C. Mayer, has been the general manager of the Tulsa Convention Center since June 1984. Prior to that, he was the assistant managing director of the Tulsa Performing Arts Center, and assistant manager of the Myriad Convention Center, Oklahoma. He's a graduate of Oklahoma City University.

Mr. Mayer has also been a member of the International Association of Auditorium Managers since 1982. He served on the organization's board of directors and was its president during fiscal year 1992 to 1993.

Our next witness, John S. Swinburn, is executive director of the International Association of Auditorium Managers. The IAAM has 2,000 members throughout the world, comprising managers and senior executives from auditoriums, arenas, convention centers, stadiums, and performing arts theaters.

Mr. Swinburn has been working in association management for 15 years, and holds a bachelor of arts degree from the University of Texas at Austin.

The third witness is Jerald A. Jacobs. Mr. Jacobs, if you'll come forward. Mr. Jacobs is a partner in the law firm of Jenner & Block here in Washington, DC.

He is the head of the firm's association practice group and serves as legal counsel for the National Trade Association, professional societies, and nonprofit organizations.

Mr. Jacobs appears as special counsel for the American Society of Association Executives, some 20,000 professionals, who manage associations at National, State, and local levels. As special counsel, he advises the society in many areas including music licensing.

We have your statements, which are rather comprehensive. They will be made a part of the record, without objection, and we hope that you can summarize for us so we can get right to questions. We thank you for being with us today.

Why don't we begin with you, Mr. Mayer. Welcome.

STATEMENT OF BOB C. MAYER, GENERAL MANAGER, TULSA CONVENTION CENTER, TULSA OK

Mr. MAYER. Thank you very much, Mr. Chairman and members of the subcommittee. Good morning. I am the general manger of the Tulsa Convention Center in Tulsa, OK, which is a municipally owned and operated public assembly facility, owned and operated by the city of Tulsa.

Our facility includes a 9,000 seat arena, in addition to other space that you would typically find in a convention center, such as an exhibition hall, conference space and so forth.

Our facility hosts a wide variety of events from sporting activities and entertainment events, to circuses and international conventions, to small receptions to major banquet functions.

I've been associated with the public assembly facility management industry for the past 20 years in Oklahoma City and Tulsa. In addition, I am the immediate past president of the International Association of Auditorium Managers, which represents 1,250 public assembly facility managers throughout the United States.

My testimony today is really on behalf of the city of Tulsa, but also represents the feelings of a number of my colleagues in the industry.

Mr. Chairman, before I begin and on behalf of our mayor, Mayor Susan Savage, and the city of Tulsa, I would like to thank you and the other subcommittee members for examining the impact of the Federal Copyright Act of 1976.

Because we play an important and unique role within our respective communities, it is important that Congress understands how current copyright legislation impacts our industry and the people that we serve back home.

To be concise, we feel that existing copyright legislation makes public assembly facility managers and their State or local governmental employers potential defendants in copyright infringement cases, due to the legal concept of vicarious liability.

The Federal Copyright Act provides authors and composers with fundamental protection against copyright infringement, and we, as an organization, and as an industry, are not opposed to such protection. In fact, it is vital for authors and composers to be fairly compensated for their works, if our society is to benefit from the diversity of entertainment that we all enjoy.

It is our belief, however, that those who promote, perform, or cause recorded music to be played during an event should bear the sole responsibility for payment of copyright license fees, unless the public assembly facility is indeed the promoter or copromoter or sponsor of the event.

In the United States, virtually every city has at least one public assembly facility which, for the purpose of this discussion, is defined as an arena, a stadium, a convention center, performing arts theater, an exhibition hall, or a similar place where the public might gather.

Seating capacity's for such venues can range from less than 100 to over 100,000. They house a wide variety of events, as you can imagine, which appeal to almost every age group and social stratum.

Management of public assembly facilities is complex and challenging, and because of varying rules, regulations, policies, and local ordinances, some such facilities in certain States are able to fully promote or copromote events in their communities. Managers of public assembly facilities who can promote or copromote such events should not be exempt from compliance with copyright legislation, since by the very nature of promotion, they share in the profits of the production.

Other facility managers, however, are restricted to simply renting the facilities to outside promoters and event organizers. Public assembly facility rental arrangements in this instance will range from a flat rental fee to a minimum rental guarantee, plus a small percentage of ticket sales.

In either case, the facility and the State, county, or local owners and operators of the facility do not participate in the risk of presenting the event, and they don't participate in actually controlling the music that's being played.

It is in this type of rental arrangement and facility operation, which we feel should be exempt from the doctrine of vicarious liability, as it relates to existing copyright legislation. Mr. Chairman, we feel that a provision should be considered by the Intellectual Property and Judicial Administration Subcommittee, which would overturn the doctrine of vicarious liability under current copyright legislation, specifically for publicly owned public assembly facilities. And, further, it would be appropriate to include a provison which would only exempt such facilities if they informed their tenants that they, indeed, have certain responsibilities in accordance with Federal copyright legislation.

We are pleased that the subcommittee is examining the effects of the Federal Copyright Act of 1976 on States, counties and municipalities, and hope that the insight presented by this testimony will be helpful to your deliberations.

Thank you very much.

Mr. HUGHES. Thank you, Mr. Mayer.

[The prepared statement of Mr. Mayer follows:]