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On the administrative burden, Cathy Meloy mentioned the fact that they submit reams of paper. What it really amounts to is that you have to log extensive information on every musical selection you play, every hour, every day, 7 days a week, 24 hours a day, 30 days a month, and send it to them, and they analyze it, and then decide what the fee is going to be. It's an enormous burden. A sampling system would be easier.
Mr. HUGHES. I take it from your testimony, and also that of Ms. Meloy, that you have reason to believe that they have an automated data base today. What is your basis for making that suggestion?
Mr. ATSINGER. We are in litigation with the rate court now, and there are certain sensitive issues that I'd like to confer with our counsel who is here, who represents the committee, if you don't mind.
Mr. JOSEPH. Mr. Chairman, that information has been provided in discussions with the committee, with ASCAP and BMI, and it has also, to my knowledge, been provided to us by people who have formerly worked for ASCAP and BMI. I don't believe that ASCAP or BMI deny that they have a computerized data base.
Their testimony yesterday, as I understood it, claimed that the formats are different and, in fact, the purpose of those data bases is different. They've been used for distribution purposes, their internal surveys. But the existence of the data bases, I don't believe, has been denied.
Mr. HUGHES. What's your response to their suggestion that formats are different, and they wouldn't be of any use?
Mr. JOSEPH. My response is that they have the data bases that they use for their own purposes, with the same information users want. Changing the format of the data bases shouldn't be a terribly difficult thing to do, and the data bases ought to be available to users in the same way that ASCAP and BÃI use them for their own purposes.
Mr. HUGHES. Would you identify yourself, for the record.
Mr. JOSEPH. I'm sorry, Mr. Chairman. My name is Bruce Joseph of Wiley, Rein & Fielding. I'm counsel to the NRB Music License Committee.
Mr. HUGHES. Mr. Joseph, thank you very much.
Mr. GOMEZ. I would just like to comment that we, in the past, have begged and pleaded for our list, for the Spanish-language list.
We are told that they are not separated from their regular data base, and that if they furnished us their entire list or repertoire, the entire catalog, that it would fill a room this big, and therefore, it is impractical for them to furnish it to us. But I believe that they are computerized.
Mr. ATSINGER. I could also shed another bit of information on that.
Under both per-program licenses of ASCAP and BMI, we are required to log extensive information—the title, the composer, the author, and quite a bit of additional information. Let me say this, I don't believe that they need that much information to determine whose copyright it is. I think they could achieve it much easier
than that, and I suspect that the format they use for internal purposes may be just fine for our purposes as well. But that would have to be explored to conclude that with certainty.
Mr. HUGHES. Well, your suggestion is, you believe that the reason it is not made available is because they prefer the blanket license, and all of their policies are couched in a fashion that would encourage you to acquire a blanket license.
Mr. ATSINGER. If you can't figure out what you are buying, and you are going to be sued if you infringe, you have no choice but to take both licenses.
Mr. HUGHES. But that's what you're suggesting to me.
Mr. ATSINGER. Yes, I am. And I think, quite frankly, Magistrate Dollinger said as much in his opinion, after a lengthy trial.
It's in my written statement, the exact quote of the magistrate on this very point. He concluded exactly the same thing, that it is not in their business interest to make the per-program license available, and that they would prefer to see people take the blanket license.
Mr. HUGHES. In the previous panel and in some of the suggestions yesterday, it appears that the witnesses did not believe that this could be remedied through negotiation; that ASCAP and BMI, in particular, are very comfortable with the present system, and the only thing that will change their policy is legislation, amending the copyright law. What's your view?
Mr. ATSINGER. Well, we tend to agree with that. We've been at this for a long, long time. I look at this whole area as almost like a “Dicken's Bleak House." I mean, I'll probably die before there is ever any real equity here.
Mr. HUGHES. We hope that doesn't happen.
Mr. ATSINGER. Well, I hope so, too. But the TV people have spent a lot of money, they've been at it for a long, long time. They have the money, and it may be a strain for them. But we agree with them.
Mr. HUGHES. What's your view, Ms. Meloy?
Ms. MELOY. I would agree 100 percent. You know, I think it is definitely in ASCAP's and BMI's interests to have users to be blanket licenses, and the licenses we want are not in their interests. But, again, when a station such as ours, Mr. Chairman, pays 99 percent, and we're only playing 17 percent of their play list, I challenge the system, and I say that it is not a rational system.
Mr. HUGHES. Mr. Gomez.
Mr. GOMEZ. The negotiating process is there, and they explain to you how it works and what we should do, but nobody really believes that there would be any gain.
Mr. HUGHES. In other words, you'd like to head up a negotiating team with the ammunition they have?
Mr. GOMEZ. We have never requested that, officially, but we would probably consider that.
Mr. HUGHES. Well, thank you. You've been very, very helpful to me, as have all our witnesses within the last 2 days. It's a very, very interesting, intriguing area. It's rather complex, and we've got a lot of very good suggestions. It's my intent that we will attempt to address what I believe are some major problems.
Thank you very much. That concludes the hearing for today, and the subcommittee stands adjourned.
[Whereupon, at 12:05 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.)
APPENDIX 1.-H.R. 3288, A BILL TO AMEND TITLE 17, U.S. CODE,
TO CREATE AN EXCEPTION FROM COPYRIGHT INFRINGEMENT FOR CERTAIN PERFORMANCES IN PLACES OF PUBLIC ACCOMMODATION
To amend title 17, United States Code, to create an exception from copyright
infringement for certain performances in places of public accommodation.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 14, 1993
following bill; which was referred to the Committee on the Judiciary
tion from copyright infringement for certain perform-
1 Be it enacted by the Senate and House of Representa-
3 SECTION 1. SHORT TITLE
4 This Act may be cited as the “Public Accommoda-
(2) by inserting after paragraph (9) the follow
“(10) communication of a transmission, by
radio or television, embodying a performance or display of a work by the public reception of the trans
mission on a receiving or recording apparatus in a
restaurant, tavern, or other commercial establish
ment serving food or drink, the performance of
which is incidental to the main purpose of the res
taurant, tavern, or other commercial establishment,
unless a direct charge is made to see or hear the