Lapas attēli
PDF
ePub

One can wonder how 2 cents in 1909 could possibly still be viable today. The answer is probably that the LP resulted in the unit price going from 2 cents to about 20 cents or in some cases 24 cents as a ceiling.

But at the same time it has been argued very forcefully that the 2cent rate is infinitely too low, even considering the LP and the other structural changes that have occurred in that industry. In the 1965 hearings, there was massive testimony of a statistical nature dealing with the validity of the 2-cent rate.

Your committee agreed to 212 cents as a reasonable rate at which to peg the royalty.

The Senate, facing an inflationary curve which had only just started in 1965, raised the fee to 3 cents after considering at one point a 311⁄2cent rate. This is still a very, very sharp controversy and I think you better prepare yourself for quite a lot of statistics within the coming

weeks.

Finally, and the seventh issue that I will mention, is the performance right for records which has the-as the chairman mentioned

Mr. KASTENMEIER. May I interrupt? I have five: Cable TV, library photocopying, liability of public broadcasting, jukeboxes, public recording.

Ms. RINGER. I am sorry. I accidentally skipped one, the question of educational use other than broadcasting and it will be the subject of one of your days of testimony, if not more. In the 1965 hearings, you heard a good deal of testimony on the issue of classroom photocopying and other copying by teachers of copyrighted material.

This was put forward in the context of the fair use provision which is now section 107 of the bill and is a rather general statement of the doctrine of fair use.

The question was whether or not a vague provision of this was sufficient to give teachers guidance as to what they could and could not do with respect to copyrighted material, except when they had at their fingertips a good deal of electronic and other machinery for using copyrighted materials and making them available to their students and pupils. At the time, you sought to solve this problem by considering all of the arguments that had been made and attempting in the report to lay out what the committee regarded as fair use in this context.

There are about four closely packed pages still in the report, in the Senate version, that reflect your committee's actual drafting of what you considered the scope of fair use to be in this context of classroom teaching.

This has not, I think it is fair to say, satisfied the educational representatives. I believe you will hear proposals on this issue and I would list this as one of the seven major issues.

An adjunct to the seven is the copyright royalty tribunal which is an issue in itself but arises in the context of three of the other issues and also of a fourth, which is the seventh of the major issues, the performance right in records.

The testimony in 1965 on this issue was very interesting. The record producers put forward a very strong case for anti-piracy legislation and during the hearing, after testimony by performers and performers' representatives, they added to that a proposal for a performing right in recordings. That would mean payment under some

sort of system for playing records on disc jockey programs, for playing records on jukeboxes, and for playing records on cable television and music systems.

I draw a distinction at this point between the music on the record and the recording itself. The music is already protected against all of these uses except cable and jukebox and would be protected against all of them under the bill.

The stopgap legislation that you passed in 1971 effective in 1972, created a copyright in a sound recording that would extend to any creative elements present in the recording but limited it to the particular situation of so-called piracy, unauthorized duplication, usually on 8-track cartridges.

This legislation which was temporary in its 1971 form was standardized as permanent legislation in 1974 and is now part of the copyright law. I don't regard "piracy" as an issue. It may become one.

What is an issue, and the major issue in the Senate consideration of the bill in 1974, was the proposal that a performing right be added to the law that would allow the collection of royalties for the playing of records as such on radio, television, cable, jukeboxes, and so forth.

The sponsor of this legislation in the Senate was Senator Scott. The bill contained this provision when it went to the floor of the Senate and was knocked out in a rather heated debate during that consideration.

Senator Scott has reintroduced the proposal as a separate bill and Representative Danielson has introduced the same bill. In the Senate subcommittee I gather there will be hearings on the Scott bill and there is a possibility that it might be joined with the revision bill.

In any case it is not a piece of separate legislation in its real effect. I think it is something your subcommittee should consider as part of the overall picture of general revision.

I repeat, however, that the Danielson bill is a revision of the 1909 law, which is the approach that is being taken in the Senate by Senator Scott. I am not sure I have made that clear.

I should say on this point that I believe very strongly that sound recordings and the performances incorporated in them are creative works, that they are the writings of an author, and that they are subject to copyright protection under the Constitution.

There is no doubt about this in my mind and I believe that your action in passing legislation that recognizes sound recordings as copyrightable and protects them against piracy is consistent with that view. It is not whether they should be protected but how they should be protected, whether protection should go beyond piracy to include the payment of royalty for performances by various media. In principle, I support that, too.

I think that the ways of working it out need to be carefully considered. The proposal in the old section 114 in the Senate version in 1974 had problems of a practical nature, but I am not sure that they are insuperable.

These are the seven major issues and much of the testimony you will hear will be centered around them and will be economic in nature. In addition to this you will hear discussion at various points of the manufacturing clause, section 601 of the bill, and which is a disgraceful vestige, in my opinion, of 19th century protectionist thinking.

The manufacturing clause was added in the 1891 Copyright Act as the price the printers exacted for allowing copyright to be extended to foreign authors. They had been getting a free ride up to that point and they insisted that, as a price for allowing Dickens and Tolstoy to be protected in this country, the works could not be copyrighted unless they were printed here.

This provision, which was bad legislation to begin with, has become eroded over the years and in 1965 it was eroded some more. The Register's initial recommendation was that it be done away with. It became apparent that it could not be knocked out of the bill without a major fight.

As a result, it has been retained with a considerably narrowed scope. I believe that the principal arguments you will hear, perhaps tomorrow and in succeeding days, involve the fact that we are now equating Canada with the United States in terms of the place of manufacture, and this raises a host of technical questions which I won't go into. I think there has been accommodation among the parties and therefore it is unlikely you will find people attacking the manufacturing clause out of hand, as I have just done.

Yet personally I find it very, very bad legislation and would like to see it gone. It may not be practical to do that.

I believe you will also hear testimony from artists and their representatives with respect to the unsatisfactory situation of artists under the present law.

I think this is a valid argument. The revision bill would help artists but probably would not go as far as they would like it to.

Mr. KASTENMEIER. When you say "artists," whom do you have in mind?

MS. RINGER. Painters, sculptors, graphic artists, and designers. I wanted to mention the design bill. Title II of the bill is a completely separate piece of legislation which was conjoined with the revision, bill in the Senate more or less as legislative expediency at the time. The two problems are related and I have no objection to them being addressed together. I think this is probably a good idea.

But you will find differences in approach between them, and a bridge provision in section 113 deserves your attention. I think the design bill is a good bill and it deserves to be passed whether as a title II of this overall omnibus revision or separately.

It is then unclear whether there will be a debate over it. There has not been in the Senate.

There are other issues. There is a proposal that would exempt a proprietor of a ballroom or similar place of entertainment from liability and place the liability on the performing organization.

There are undoubtedly dozens of other little or perhaps not so little issues that will arise during these hearings. But I have tried to give you the overall framework of what you will be hearing, and in my opinion you do not need to go back to ground zero.

I don't think you need to start at the beginning. I think you can consider many issues settled, thanks to your efforts in the sixties. Your problem is not a simple one but I think it is something that is solvable and I am extremely encouraged by the scheduling of hearings and the general atmosphere that I find here today.

Thank you, Mr. Chairman.

Mr. KASTENMEIER. Thank you, Ms. Ringer, for a very comprehensive review historically of the issues involved in copyright law revision.

The Chair will state, that at our next hearing, we will have Government represented by three other entities, the Justice Department, the Commerce Department, and the State Department, and to some extent, other aspects will be more deeply explored with reference to the bill in terms of its administration from the governmental point of view.

I have at this point just a couple of questions and then I would like to yield to my colleagues. From time to time there have been arguments made that we could leave something out of the bill.

Indeed, from time to time, certain areas have not been covered in the bill. But is it not the case, this being a unified code, that the operation of the bill does apply whether or not we specifically deal with a subject or not? That is to say, all we have done in a sense is by our nonstatement, to leave the matter somewhat unresolved in terms of potential litigation?

Therefore, we can really not fail to deal with an issue. It will be dealt with one way or the other. The code, title 17, will cover it. So we have made a conscientious decision even by omission. Do you agree?

Ms. RINGER. I would agree. In 1909 there was probably no intention to protect sound recordings. I think the legislative history would bear this out although it is ambiguous. In the early 1970's there was an increase in record piracy because of the increasing popularity of 8-track cartridges. As a result, there was a major effort to get States to pass legislation or to enforce common law protection of what were clearly, in a layman's sense, published works because of the lacuna in the 1909 statute. There was no explicit protection. This issue went all the way to the Supreme Court and the Supreme Court upheld the validity of a State criminal statute against record piracy on the ground that Congress had not preempted that protection since it had failed to act.

You may not even be refraining deliberately from giving protection, which I think was the thrust of your question. You may, in fact, be handing them State protection which is variable and inconsistent in many cases and has a lot of undesirable features. These were the very undesirable features that Madison mentioned in the "Federalist Papers" when he was defending the copyright clause in the Constitution.

Mr. KASTENMEIER. By virtue of passing this bill, we will deal with every issue. Whether we deal with it completely or not for the purpose of resolving the issues involved is the only question, not whether it has dealt with the four corners of the bill because the four corners of the bill will presume to deal with everything in copyright.

Ms. RINGER. I quite agree, Mr. Chairman.

Mr. KASTENMEIER. One of the apprehensions that, as we develop this bill and probably future amendments to it, is that by creating rights and extending rights, we might make the law very complicated given the present state and future state of society, that the business of getting clearances and knowing what levels of rights are really being accorded may get extraordinarily difficult, particularly for users.

What is your comment to that?

Ms. RINGER. This has been a concern to us in the Copyright Office, too. There are some situations-and I think cable is one of the best examples I have ever seen-that are so intrinsically complicated that you cannot deal with them in a broad-brush way.

I think that your efforts to deal with the CATV problem in 1965 which were attacked as being terribly complicated are extraordinarily clear and simple compared to the FCC regulations which in effect did the same thing.

At the same time, I am very disturbed about the increasing reliance on compulsory licensing to resolve difficult conflicts. The law is so out of date that there are now areas in which authors are simply not being protected at all. In these areas there have built up user interests that are so strong and so deeply embedded that to impose outright copyright liability, with no if's, and's or but's, would create very serious problems.

Because the 1909 law has been allowed to become hopelessly out of date, you have to compromise, and the obvious compromise in many of these cases is compulsory licensing.

When you begin this game in areas now protected under copyright, where the protection already exists and licensing arrangements have already been made, then I think you are doing something very drastic, and the ultimate result could be substantial changes in the character of copyrights that might actually make it harmful to the author rather than helpful.

Mr. KASTENMEIER. Now, I would like to yield to the gentleman from California, Mr. Wiggins.

Mr. WIGGINS. Following you will be many witnesses who will reflect their economic interests and you may be one of the few witnesses who do not have an obvious economic stake in this bill.

Can you help me with some of the problem policy issues which may pervade all of these sections of the bill? I think I can understand à person's economic ax. I respect their points of view. But, I am not sure I really understand the public policy issues involved and I would like your assistance.

Ms. RINGER. The 1909 Joint Congressional Committee, in its report No. 2222, made a statement which has been quoted many times and which I agreed with at one time, but which I have ceased to agree with.

I will paraphrase it. It was that copyright is not for the protection of the author, but for the public and that where the author's interests and the public's interests conflict, the author must yield.

This sounds great and for a long time, I felt that this was probably correct. But, the more I have looked upon the status of authors in this country and the fact that the public interest is badly served when authors are badly served, I have felt that too often the public interest has been identified with economic users rather than with authors.

In recent years, partly as a result of this whole revision exercise. I have been trying to gage individual issues in terms of their impact upon creativity and authorship, which I consider the ultimate public interest.

The Constitution speaks of the desirability of promoting the progress of science and useful arts, science in the broad sense of learning or knowledge, by offering protection for limited times to authors and inventors.

It seems to me that it is this protection, the exclusive rights that are supposed to be granted to authors, that is the ultimate public interest that the Constitution and its drafters were thinking about.

« iepriekšējāTurpināt »