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The meeting of governmental experts was held in Paris in March 1971 and resulted in a draft convention which would include provisions that correspond closely to the content and purpose of S. 646.

If current plans remain unchanged, the convention will be adopted at a diplomatic conference to be held in Geneva in October of this year. This treaty would give to producers of sound recordings, who are nationals of contracting States, protection against the making, distribution, or importation of duplicates made without their consent where such acts are for the purpose of distribution to the public.

The treaty would assure protection for the U.S. repertoire of sound recordings in all States that become party to the agreement. U.S. ratification of or adherence to the proposed conventions depends, of course, upon enactment of a domestic law such as S. 646.

Further, passage of the proposed legislation would greatly enhance this Government's posture with respect to its continuing efforts to secure international protection for American sound recordings.

I might add parenthetically the passage of S. 646 would assist this Government in other meetings and conferences being held in allied areas in the copyright field.

For these reasons, the Department of State fully endorses and supports this bill.

Thank you.

Mr. KASTENMEIER. Thank you, Mr. Ladd.

I have just a couple of questions. The more technical questions relating to domestic applications we will save for the copyright office. But will this matter come up at all in any context during the July Universal Copyright Convention, or Berne Convention meeting in Paris, to your knowledge?

Mr. LADD. I doubt it. Let me defer, Mr. Chairman, to Mr. Winter on that question.

Mr. WINTER. I doubt very much that the question of protection of sound recordings will come up at the copyright revision conferences in July, in Paris.

The interest at these conferences is primarily in books for educational purposes. This is the main thrust of these conferences.

Mr. KASTENMEIER. Thank you.

You say that

Further, passage of the proposed legislation would greatly enhance this Government's posture with respect to its continuing efforts to secure international protection for American sound recordings.

What is the posture to the extent that you can say of certain other countries, major countries, in connection with their own sound recordings, or indeed ours?

Do they offer protection that we do not?

Mr. LADD. Yes, sir. Most of the developed countries, including many in Western Europe and Japan, have provisions which deal with this question in one way or another.

They may not deal with the question of protection under copyright law. It may be dealt with, for example, under the law of unfair competition.

I might add that a number of developing countries have established legislation in this area, and have as legitimate an interest in the protection of sound recordings as do the developed countries.

Mr. KASTENMEIER. When you say it is estimated that over 100 million pirated records are now made and sold throughout the world each year, of course you are referring to the records originated in terms of music and material in countries other than just the United States alone? Mr. LADD. That is right. That is the world figure.

Mr. KASTEN MEIER. To what extent, however, does that figure represent the U.S. records?

Mr. WINTER. We do not have any breakdown on that, Mr. Chairman, but I suppose that the representatives of the Recording Industry Association of America, Inc., might be able to give you a breakdown of that composite figure.

Mr. KASTEN MEIER. Are there any countries who either participated in the September 1970 meetings, or will participate in the one of October of this year, that have an interest other than in protecting sound recordings?

Mr. LADD. Let me defer to Mr. Winter on that question, Mr. Chair

man.

Mr. WINTER. Mr. Chairman, in September 1970, there were joint meetings of the Inter-governmental Copyright Committee of the Universal Convention, and the Berne Permanent Committee of the Berne Copyright Convention. There are 12 governments represented on each of these committees with some overlapping or duplication, and they represent a good cross-section of developed countries and developing countries, such as India and Kenya. All of these countries approved the joint resolution that Mr. Ladd has referred to, calling for a meeting of governmental experts, so I think one might conclude that there is a broad and widespread interest in both developed and developing countries in this proposed international convention.

Mr. KASTEN MEIER. One of the reasons I raised that is because there are sometimes differences among groups of nations.

You speak of developed and developing nations. In some cases, you notice, there are countries, as far as copyright is concerned, where piracy is a big business.

Perhaps it is bigger than protection in that country from an economic standpoint, and I am just interested in whether there are countries in which so-called piracy would be of economic benefit rather than the opposite.

Mr. LADD. I think that is an excellent question, and I feel that with some assurance, I can say we have been making some progress in these areas of piracy.

I believe that one country where piracy has been prevalent will have observers to the Copyright Revision Conference. While they are not participants, they seem to be increasingly interested in joining the copyright community.

Mr. KASTEN MEIER. Thank you for your remarks.

The gentleman from Massachusetts ?

Mr. DRINAN. Thank you very much, Mr. Ladd, for being with us. I have no questions.

Mr. KASTENMEIER. The gentleman from Pennsylvania.

Mr. BIESTER. We are very grateful to have Mr. Ladd before us this morning.

Welcome before the committee.

I wonder if you could tell us, out of the experience of the Department, whether any country has been successful in dealing with this problem?

Mr. LADD. In dealing domestically?

Mr. BIESTER. Within its own borders.

Mr. LADD. With respect to the pirating problem in a developing country, I would point out the case of Singapore, which recently enacted legislation similar to S. 646. It reportedly has been tremendously effective.

Singapore had been one of those countries, which had been engaging intensively in the pirating practice.

As we understand it now, the practice has all but halted.
Mr. BIESTER. Was the step taken similar to S. 646?

Mr. LADD. That is my understanding.

Mr. KASTENMEIER. Any further questions?

Mr. BIESTER. Those are all of the questions that I have.

Mr. KASTEN MEIER. Thank you, gentlemen. You are very helpful indeed.

Mr. LADD. We thank you for the opportunity of appearing before your committee.

Mr. KASTENMEIER. For our next witness, it is a personal pleasure to welcome back before this committee, a distinguished American in the field of copyrights and one of the most competent assistants the Copyright Office has ever had, and I refer to both the Register of Copyrights, Abraham L. Kaminstein, and his assistant, the Assistant Register of Copyrights, Miss Barbara A. Ringer.

You are most welcome as old friends.

STATEMENT OF ABRAHAM L. KAMINSTEIN, REGISTER OF COPYRIGHTS, AND BARBARA A. RINGER, ASSISTANT REGISTER OF COPYRIGHTS

Miss RINGER. Thank you very much, Mr. Chairman.

If I may, I should like to have my statement, which is short and some of which has already been covered, filed as part of the record, and I will simply speak to it. Then perhaps the best function I could serve the committee would be to answer questions.

Mr. KASTENMEIER. Without objection, your statement will be received and made a part of the record.

I hope in making your remarks more concise, you will not omit some of the material which might inform us.

Your statement is made a part of the record at this time. (Miss Ringer's statement follows:)

STATEMENT OF BARBARA A. RINGER, ASSISTANT REGISTER OF COPYRIGHTS

Mr. Chairman, I am Barbara Ringer, Assistant Register of Copyrights in the Copyright Office of the Library of Congress.

The Copyright Office fully endorses the purpose of S. 646, which is to offer long overdue protection against the unauthorized duplication of sound recordings. We also support the contents of the bill, which would add recordings to the list of copyrightable works and offer protection against what is loosely called "record piracy" or "tape piracy." I will leave it to other witnesses to document the extent to which this practice has grown over the last twenty years. However, I will say that no one familiar with the field can fail to be impressed with the dimensions and seriousness of the problem, both in this country and

throughout the rest of the world. The reason for the problem is the familiar failure of statutory law to keep pace with technical advances, and the victims of this failure are not limited to performers and record producers.

In 1965 your committee held extended hearings on the bill for general revision of the copyright law, which from its inception has contained provisions equivalent to those in S. 646. No one spoke against the basic purpose and principle of these provisions, and the bill containing them was passed by the House of Representatives on April 11, 1967. The reasons for lack of progress since then are unrelated to this issue, and derive primarily from the confused and unstable legal situation with respect to cable television in this country.

On the last day of your hearings in 1956 Mr. Kaminstein made this statement, which we reiterate today:

"Let me say plainly there is no doubt in my mind that recorded performances represent the 'writings of an author' in the constitutional sense, and are as fully creative and worthy of copyright protection as translations, arrangements, or any other class of derivative works. I also believe that the contributions of the record producer to a great many sound recordings also represent true ‘authorship' and are just as entitled to protection as motion pictures and photographs. No one should be misled by the fact that in these cases the author expresses himself through sounds rather than words, pictures, or movements of the body. There is a great deal of case law in this field, and it is in full support of the principles embodied in section 112."

What has changed since 1965 is not this principle, but the seriousness of the problem, which is linked to the growing use of tape cartridges and cassettes. The ease of duplicating methods, their low cost, and the lack of clear statutory sanctions, have encouraged the so-called pirates. The fate of the general revision bill remains uncertain, but we regard the immediate problems of unauthorized record duplication as too important and pressing to await the final outcome on the broader bill.

In our opinion S. 646 succeeds in accomplishing a difficult technical task: that of incorporating this new Federal right within the language and structure of the antiquated and ambiguous Act of 1909. In particular, we endorse the amendment of section 101 (e) of the statute comprised in section 2 of the bill. The substance of this amendment was also incorporated in the general revision bill, and would remove an unfair limitation on the remedies available to musical copyright owners imposed in the 1909 Act. Thus, in general, the owners of copyright in musical compositions and in sound recordings would be placed on an equal footing in their efforts to combat record piracy.

The representative of the Department of State will speak to the international dimensions of this problem, but we should like to underline that this is a matter of immediate concern, that a draft treaty closely similar to S. 646 is now being circulated to governments, and that an International Conference of States to adopt the treaty will be convened in Geneva in October. Favorable action on this bill will not only help our negotiators but also encourage protection of our records in other countries.

The bill contemplates a system of deposit and registration for sound recordings which would greatly enrich the collections of the Library of Congress and provide the public with useful legal and bibliographic information. Our best estimate is that annual registrations for sound recordings would total about 15,000. To place the new registration system in operation at the outset would require a non-recurring capital expenditure of between $10,000 and $20,000, a major item here consisting of printing new application forms and information circulars. If it were dedicated that the examination process did not require listening equipment, the initial figure could be kept below $15,000.

The largest annual cost, of course, would come in the annual salaries of the added staff needed to operate the registration system: examiners, catalogers, and those involved in searching, workflow, and accounting. Here our best estimate is a figure between $100,000 and $125,000 per annum. A substantial portion of this figure would be recovered in registration and other fees, and to this recovery figure should be added the value to the Library of Congress of the deposited recordings (with accompanying containers and text matter).

In a 1940 opinion Judge Leibell of the Southern District of New York observed: "Prior to the advent of the phonograph, a musical selection once rendered by an artist was lost forever, as far as that particular rendition was concerned. It could not be captured and played back again by any mechanical contrivance then known. Thus, the property right of the artist, pertaining as it did to an intangible musical interpretation, was in no danger of being violated. During all this time

the right was always present, yet because of the impossibility of violating it, it was not necessary to assert it."

A number of cases have upheld rights in recordings on various principles of State common law, most recently on the ground of unfair competition. We believe that limited Federal protection under the copyright law is more effective, more definite, and more appropriate. We therefore urge your favorable consideration of S. 646.

Miss RINGER. At the outset, let me say that, without qualification, the Copyright Office and the Library of Congress endorse the purpose of the legislation and the bill as drafted.

We have been on record for well over 10 years, as favoring the principle of protection for sound recordings under the copyright law. I might say, in passing, that the word "piracy" will be something you will hear a lot today. In using the term, I use it simply as a descriptive phrase without any pejorative implications.

Mr. KASTENMEIER. If I may interrupt, I was going to raise that as a question, because the term also had been used in connection with CATV, but some of the practices actually complained of as piracy were at least approved in some measure by the Supreme Court in a decision, so what does the term mean?

Miss RINGER. Actually, Mr. Chairman, the remarks made by Senator Hart in the other body drew a distinction between "illegal piracy" and "legal piracy." I think it is probably a valid distinction in principle; whether it was applicable in the context he was using it is perhaps something you might want to explore. In any case, in using the term I do not intend anything more than to describe the activities of, for example, tape duplicators who do not have authority from anybody.

What the bill would do in effect would be to add sound recordings to the list of 13 copyrightable works in section 5 of the 1909 law, and to create an exclusive right which would be limited to reproduction and distribution to the public of the reproductions.

I think it would be presumptuous for me to go into the economic background of this bill. Other witnesses will do this, and I personally have no detailed knowledge of the dimensions of or actual economic impact of record piracy.

At the same time, anyone working with this on a day-to-day basis cannot fail to be impressed with the enormous growth in the practice. over the last 5 years or so. I would attribute this to the ease of tape duplication, the growing market for tape cassettes and cartridges, and the lack of clarity in both state common law, and in particular, in the Federal copyright law.

As has already been stated by you, Mr. Chairman, and by the chairman of the full committee, your committee in 1965 held hearings in which this was a topic.

It was not one of the major topics, and at that time no one spoke against the principle that we are now discussing. The bill passed the House on April 11, 1967, without this issue being involved.

The failure to act on the issue in the other body had nothing to do with tape piracy or record duplication. It is essentially a hang-up resulting from the inability to solve the CATV problem. I think that one of the crucial questions you must consider is whether tape piracy is an urgent enough problem to spring it out of general revision, and go ahead and act on it separately. Our feeling is that it definitely is. Another question is one that I think you will hear more about. It

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