cooperate in working out reasonable compromises manifested by most of the groups concerned. If this spirit continues to prevail during the present series of hearings, I believe we will be on the road to an ultimate solution.

Thank you for permitting us to present this, Mr. Chairman.

Senator BURDICK. Thank you, Mr. Kaminstein. I would say that you have done an excellent job in outlining the problem.

Mr. KAMINSTEIN. Thank you.

Senator BURDICK. And you have explained the Kastenmeier position. I want to ask you a few questions.

You stated at the end here:

* there is no easy shortcut for solving this problem; no outright exemption or provision for full liability would serve the public interest here.

In other words, that would indicate that somewhere between these two poles you would like to have a solution.

Mr. KAMINSTEIN. Exactly, Mr. Chairman. I think the extremes have been explored. They have been proposed by opposite sides. I do not think that they are workable in the long run.

Senator BURDICK. Do you have any comment on the Kastenmeier position?

Mr. KAMINSTEIN. I think it is the only proposal that has received extensive consideration. While it sounds complex, it tries to work the equities out in a detailed manner. It avoids large areas of Government regulation, particularly as to license fees which it leaves to the parties to negotiate or, if they cannot agree, leaves to the courts to be decided in particular cases. I certainly think it is very worthwhile and should receive the attention of your committee.

Senator BURDICK. Does that mean you support the Kastenmeier position?

Mr. KAMINSTEIN. Certainly, as a basis for going forward.

Senator BURDICK. Would you support it as a basis for a new statute written by this committee?

Mr. KAMINSTEIN. Yes, I would, Mr. Chairman. I think some of the criticisms leveled at it may have merit, and I think that is for the consideration both of the House committee and yours.

There are built-in safeguards. For example, on the third point I made with respect to the "white" area, the House committee proposal actually leaves to the Register the designation of the boundaries of the "white" area within standards laid down under any statute or other Federal regulation. In other words, it would enable the Register to adopt regulations laid down by the FCC in defining areas.

Senator BURDICK. You also testified that these problems of jurisdiction, copyright applications and others is coming more together. What do you mean, this should be considered in one bill, jurisdiction, copyright, and other applications?

Mr. KAMINSTEIN. I think copyright legislation might now solve most of the problems that have been posed in all three areas, in litigation, in FCC legislation, and in copyright legislation.

Senator BURDICK. Do I understand your testimony in summary that you firmly believe there is a "white" area?

Mr. KAMINSTEIN. Yes, sir; I do.

Senator BURDICK. And a "black" area?

Mr. KAMINSTEIN. That is right.

Senator BURDICK. And a "mixed" area?

Mr. KAMINSTEIN. Right now under Judge Herlands' decision, the entire area is "black."

Senator BURDICK. I understand that. Brennan, do you have any questions?

Senator McClellan? Mr.

Mr. BRENNAN. Yes, Mr. Chairman. Mr. Kaminstein, it would be helpful to the subcommittee to get your comments on some of the issues that will arise in the course of these 3 days of hearings. Does the Copyright Office have any objection in principle to a statutory requirement for the compulsory licensing of copyrights when this is deemed to be in the public interest?

Mr. KAMINSTEIN. The present statute already contains a compulsory licensing provision, and as I have indicated, the House committee proposal contains a provision which, in effect, amounts to a compulsory license. I see no objection to its use in this way.

Mr. BRENNAN. You testified last year in support of a compulsory licensing requirement with respect to musical recordings. Would you not agree that there is a greater public interest in assuring the public access to a larger number of TV channels than with respect to multiple recordings of the same composition?

Mr. KAMINSTEIN. My answer to that would be qualified. I think these matters are so important, reaching over into both copyright and communications areas, that they must be considered in the light of the particular situation. This is what the House committee proposal tries to do, to consider the equities in particular situations.

Mr. BRENNAN. But you do recognize that there is a public interest in having access to a variety of TV stations.

Mr. KAMINSTEIN. Certainly. I think the House committee proposal leads in that direction.

Mr. BRENNAN. Is there any objection in principle to a statutory rate or fee schedule?

Mr. KAMINSTEIN. I think there is. A compulsory license provision has to be used in a very guarded fashion, that is, only when it is absolutely necessary.

When you establish a statutory rate, you face a host of problems. One is that the statutory rate will be fixed for a great number of years. For example, the present provision in the 1909 statute as to musical recordings has remained at 2 cents for more than 57 years now.

In addition, when you try to fix a total rate for all works used, you face all the problems of distribution, which in some cases may be insurmountable.

Senator BURDICK. I have just one last good question. If a copyright is a property right, a property interest, why is any use of that right permitted without consent of the owner?

Mr. KAMINSTEIN. Senator Burdick, I think you will find that some of the witnesses will argue that any use is an infringement of their property right. My own feeling is that we should be a little more flexible than that, and the present statute does bend in that it contains a compulsory license provision with respect to records.

Senator BURDICK. I want your reasons why.

Mr. KAMINSTEIN. Why it should be?

Senator BURDICK. Yes.

Mr. KAMINSTEIN. Well, in considering the 1909 law, a great part of the hearings at that time were devoted to trying to arrive at a compromise in giving the copyright owner of music the right to record his music for use on piano rolls and phonograph records, while giving all recording companies access to the music recorded by any one of them.

As I indicated to Mr. Brennan, a compulsory license provision should be used very sparingly, but I think it has its uses and should be available in crucial situations.

I don't think this is an absolute right, and I don't think it can be treated as such in this situation.

Senator BURDICK. That is your answer, that it is not an absolute right.

Mr. KAMINSTEIN. That is right.

Senator BURDICK. Thank you.

Mr. KAMINSTEIN. I think the Congress has the ability to adapt it to a particular situation. For example, in the "white" area, the market of the copyright proprietor is being broadened in the area for which his right is sold, so that there is no real damage.

Senator BURDICK. There is no damage, but he has a right that has been used.

Mr. KAMINSTEIN. In theory I think that is absolutely correct.

Senator BURDICK. And I am trying to get the rationale for saying that it shouldn't apply in all cases.

Mr. KAMINSTEIN. I certainly agree that it should not apply in all cases. I think a compulsory license should be used only in crucial cases where no other agreement or compromise can be arrived at.

Senator BURDICK. Thank you very much.

The next witness is Mr. Rosel H. Hyde, Chairman of the Federal Communications Commission.

Would you introduce your associates also for the record?

STATEMENT OF ROSEL H. HYDE, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION; ACCOMPANIED BY HENRY GELLER, GENERAL COUNSEL, AND ARTHUR STAMBLER, LEGAL COUNSEL TO THE CHAIRMAN

Mr. HYDE. I have at my right Henry Geller, General Counsel to the Federal Communications Commission, to my left Arthur Stambler, Legal Counsel to the Chairman.

My name is Rosel H. Hyde, Chairman of the Federal Communications Commission. I appreciate this oportunity to present our views concerning the proposed revision of copyright law in the area of community antenna television-CATV which is an active currently subject to comprehensive Commission regulation. The Commission has long recognized that, for reasons I shall develop, copyright is a key factor in the community antenna television field.

The relationship between CATV and television broadcasters under the Communications Act has been one of the most important and most difficult problems facing the Commission in recent years. The Commission's CATV program, set forth in our second report and order of March 8, 1966, represents what we believe to be an effective

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compromise of the divergent views of the several Commissioners as to the need for Commission regulatory direction of CATV development under present circumstances, namely, with no definitive, settled copyright requirements. However, there is far greater unanimity in the Commission that copyright considerations should play an instrumental role in the CATV field and that the resolution of the copyright problem may have a most significant effect upon the CATV regulatory program which we have recently adopted.

In this light, I believe it would be helpful to the subcommittee if I were to first provide a summary of our CATV rules and policies which will serve as a backdrop for my subsequent comments on the copyright issue itself.

The Commission has given the matter of CATV intensive study over recent years and has conducted a number of public rulemaking proceedings. Our second report and order provides rules to govern the operation of all CATV systems. The report is a lengthy one and the regulations complex. Rather than attempting to set forth its full details here, I respectfully request that the second report be incorporated in the record, and I will here only briefly point up some highlights of the report, particularly as they relate to the copyright question before you.

Senator BURDICK. Without objection, that will be done.

(The report follows:)

[From the Federal Register, Mar. 17, 1966]

[From the Federal Register, Mar. 17, 1966]

Title 47-TELECOMMUNICATION lators, and a possible transition period