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Now, the Congress on the one hand creates and supports programs for the arts and the artists and then effectively prevents them from sharing in the huge profits being made by others on his works.

I am not opposed to technological change. I am pleased that so many Americans can enjoy it, but I do resent it when somebody makes a profit, a very good one, without so much as a token payment.

Another inconsistency which may interest you as members of the Judiciary Committee is that H.R. 2223 faces up to the author's problem regarding the duplicating machine, even treats the broadcaster's problem regarding cable.

Why, then, should it persist in ignoring the performing artist's problem created by technological changes which weren't even invented before-which were invented long before cable and Xerox came on the scene. The bill would limit the copying of the printed word, but it perpetuates the practice of permitting the free copying of a performer's work over and over again for the profit of others.

This is inconsistent, it is wrong, and the reluctance of the Congress to face up to it is wrong.

I have just returned from Europe where I attended a conference on performance problems. I brought with me some papers which I have not had a chance to duplicate. I would like to enter them for the record. They are a general survey of the legal protection of performers in other countries. It is a little humbling to see that Argentina, Austria, Ireland, and Paraguay have protections we haven't dreamed of in terms of the very protection we are seeking here, and I would like to enter this for the record.

Mr. KASTENMEIER. Without objection that will be received.
Mr. BIKEL. Thank you.

[The material referred to above follows:]

PERFORMERS' PARTICIPATION IN THE REVENUE ACCRUING FROM THE BROADCASTING OF SOUND RECORDINGS

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PERFORMERS' PARTICIPATION IN REVENUE ACCRUING FROM THE PUBLIC PERFORMANCE OF SOUND

RECORDINGS IN EUROPE

Countries

Austria.

Denmark

Legal rights to
remuneration for
public performance
sound recordings

Producers/

performers.

do.

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Collection and distribution

Collection by Austro-
Mechana on behalf of
producers and perform-
ers; distribution by LSG.
Collection by KODA on be-
half of producers and
performers; distribution
by GRAMEX.
National group of IFPI col-
lects and distributes rev-
enue from copying of
sound recordings for use
by telephone service.
SACEM collects and the
national group of IFPI
distributes revenue from
copying of sound record-
ings for provision of
background music.
Collection by GEMA on
behalf of producers and
performers; distribution
by GVL.

No collection of public per-
formance revenue to
date.
do.

No collection of public per-
formance revenue to
date, SIAE has agreed to
start collecting on behalf
of producers and per-
formers.

Public performance users
pay direct into fund.
Collection by SGAE on be-
half of producers; dis-
tribution by national
group of IFPI.
Collection by Mechanlizenz
of revenue from the copy-
ing of sound recordings
for certain purposes on
behalf of producers; dis-
tribution by national
group of IFPI.
PPL collects on behalf of
producers, and distrib-
utes to producers and
performers.

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PERFORMERS PARTICIPATION IN REMUNERATION ACCRUING FROM THE BROADCASTING AND PUBLIC PERFORMANCE OF SOUND RECORDINGS IN EUROPE

When considering the extent to which performers participate in the revenue accruing from performing rights, it may be useful to know a distinction between countries where the individual performers have a specific right to remuneration and other countries where, although they have no legal rights, performers do participate on the basis of voluntary sharing arrangements.

The Annexes attached hereto contain information in chart form relating to performing rights; amount of remuneration, how it is collected and distributed. and the extent to which performers participate in such remuneration.

I. VOLUNTARY SHARING ARRANGEMENTS

Performers participate on the basis of such arrangements in the United Kingdom and Spain, as well as in other European countries under the FIM/IFPI Agreement, 1954.

1. United Kingdom

Phonographic Performance Limited (PPL) is the organization set up by the United Kingdom record industry to collect and distribute all broadcasting and

public performance revenue on behalf of its member companies. As a result of a long-standing agreement with the Musicians' Union, the producers make voluntary payments to the performers amounting to 32% of the broadcasting and public performance revenue:

(i) individual performers under contract with UK record companies, members of PPL, receive 20% of the sums received from broadcasting and public performance by the respective record companies on the basis of needletime; (ii) the British Musicians' Union receives 12% of the total net distributable revenue for use for the benefit of the musical profession and benevolent purposes.

2. Spain

The remuneration due to the record producers is collected from the broadcasting stations by SGAE, which also collects remuneration from the public performance users in Spain. After deduction of its handling charges, SGAE pays the monies it has collected to the National Group of IFPI. The Musicians' Union in turn receives 10% of that remuneration from both broadcasting and public performance.

Agreement concluded on the 11th March 1954 between IFPI and the International Federation of Musicians. A copy of this Agreement in Italian is enclosed herewith. Broadly speaking, the Agreement provides that where there is no legislation granting rights in this respect to performers, the record producers, as represented by IFPI, have voluntarily agreed to pay to the organisations specifically representing performers in their respective countries 25% of the revenue from the broadcasting of sound recordings.

This Agreement has not been extended outside Europe, except for Israel. However, at present it is only applicable in the following countries: Belgium, France, Holland, Ireland and Switzerland. This is so because the Agreement does not apply in countries which have legislation specifically granting performing rights to performers, and there is a clause in the Agreement providing for its automatic termination whenever performers are granted such legal rights. The monies thus paid to the performers' organisations under this Agreement must be used "for the benefit of performing musicians", although a small percentage may be used for the organisation's administrative purposes.

II. PARTICIPATION PURSUANT TO RIGHTS GRANTED BY NATIONAL LAW

Similar considerations are involved in the collection and distribution of revenue from performing rights in the three Scandinavian countries, Denmark, Finland, and Sweden. The law is almost identical in all three countries, granting individual rights to remuneration to producers and performers with the provision that the performers' share shall be claimed through the producer. The situation in these countries may be contrasted with that in Germany.

1. Denmark

GRAMEX, a joint association representing producers and performers, administers their performing rights in Denmark. The broadcasting revenue is distributed to individual producers and individual performers on the basis of needletime. The individual performers' shares are worked out by means of a highly sophisticated computerized system, involving scales according to which royalties are shared proportionately between soloists, orchestras, conductors, etc. Remuneration for public performance is collected through KODA, which, after deducting its handling charges, passes the remainder on to GRAMEX. Since it is not possible to trace the specific records publicly performed, GRAMEX distributes 50% of the remuneration to individual record producers according to each record labels' share of the market, and the remaining 50% is distributed collectively to the various performers' unions. GRAMEX pays the following organisations which participate on a percentage basis:

Danish Musicians' Union 40%: Danish Conductors' Society 15%: Danish Choir Organisation 10% Soloist Organisations (through the Joint Council of Performing Artists) 15% Danish Actors' Union 15% and 5% reserved for the category of performers not belonging to any of the above organisations for these purposes.

2. Finland

The situation is very similar to that in Denmark, except that the Finnish GRAMEX distributes only broadcasting revenue, again on the basis of needle

time. It would appear that performers do not participate in the additional revenue from the copying of sound recordings for use by the telephone service. 3. Sweden

The situation in Sweden differs slightly from that in Denmark and Finland. Not only does the law grant a right to broadcasting remuneration only, as in Finland, but there is no joint organisation representing producers and performers administering these rights in Sweden. The broadcasting revenue is paid to the National Group of IFPI, 50% of which is distributed to individual producers on the basis of needletime. The remaining 50% is paid to SAMI, the performers' organisation, whose responsibility it is to pay the individual performers similarly on the basis of needletime.

4. Germany

Pursuant to the provisions of the national law which grants performers the right to remuneration and provides that producers shall be entitled to a share, the producers and performers established a joint organisation called Gesellschaft zur Verwertung von Leistungsschutzrechten (GVL) to administer their performing rights in Germany.

The broadcasting stations send GVL details of the amount of use they have made of the respective record labels, but not of the individual records. The remuneration is distributed to the individual record producers according to the proportions as shown on these lists; however, such information from the broadcasting organizations does not enable GVL to distribute the remaining 50% to individual performers on the basis of needletime, as is the case in other countries.

Broadcasting and public performance revenues (the latter being collected through GEMA) is therefore distributed by GVL to the individual performers entitled on the basis of the recording fees paid by the producers to the individual performers during the preceding year. This involves performers submitting forms to GVL listing all recordings participated in and fees received. There is, however, a ceiling preventing higher paid performers receiving more than a certain percentage. 5% of the total broadcasting and public performance remuneration is declared undistributable and paid into a fund for social purposes.

Reciprocal agreements have however been made concerning the remuneration due to foreign performers under Article 12 of the Rome Convention between GRAMEX, SAMI and GVL, and GRAMEX is also negotiating with LSG in Austria. These agreements are based on what is known as the London Principles (a copy of these Principles in French is enclosed herewith). IFPI and the International Federation of Musicians reached agreement on these Principles at a meeting in London in February 1969. The first two Principles govern the situation where broadcasting or public performance revenue is for some reason undistributable, in which case it shall be used for the general benefit of the musical profession as a whole. The third Principle provides that broadcasting or public performance revenue which cannot be distributed because the necessary information is not available, or because the beneficiary cannot be traced, shall be retained in the country in which it has arisen.

Under the Agreement between GRAMEX and SAMI, SAMI distributes the broadcasting revenue collected by GRAMEX in Denmark to Swedish performers, and vice-versa. But under the Agreements which GVL has made with GRAMEX and SAMI, the London Principles have been extended to the whole field of remuneration and each organisation has agreed to keep all the money collected on behalf of the other which would otherwise have been due to performers in that country.

III. INDIVIDUAL VERSUS COLLECTIVE DISTRIBUTION

There is, however, one remaining problem which should be mentioned in connection with the performers' participation in remuneration from performing rights, namely the question of individual versus collective distribution. The FIM philosophy has always been that such remuneration is only compensation for the exploitation of commercial sound recordings which deprive musicians of opportunities of employment, and therefore should be used for collective purposes and for the benefit of the musical profession as a whole.

FIM pressed hard at the Diplomatic Conference which adopted the Rome Convention in 1961 for its philosophy to be written into Article 12. However, it is clear from the records of the Conference that both the "social" philosophy and the "individual" philosophy are permitted under the Convention and it is open to each country to decide which to adopt. Furthermore, despite FIM's atti

tude to individual participation, it has not prevented it becoming the practice in many countries for rights to equitable remuneration to be granted to individual performers, for example, in Austria, Denmark, Finland, Germany and Sweden.

However, certain difficulties have arisen regarding the international application of Article 12 of the Rome Convention in countries where the law grants individual rights to performers and a partial solution to this has been found in the London Principles referred to above.

GENERAL SURVEY ON THE LEGAL PROTECTION OF PERFORMERS

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1 Right to remuneration for recording, reproduction, transmission of a performance to the public.

2 Rights against recording, reproduction, transmission or communication of a performance to the public without the performer's consent.

3 Right to remuneration for the broadcast or public performance of sound recordings of the performance.

The International Federation of Musicians has members in these countries and also in Belgium, France, Greece, Israel, Netherlands, Poland, Spain, Switzerland, Yugoslavia and Zaire.

CZECHOSLOVAKIA-LAW NO. 35 OF 25TH MARCH 1965 ON COPYRIGHT

Article 36

(2) Without the consent of performers, their performances may not be used for:

(a) Fixation of sounds or images or of both sounds and images (hereinafter called "fixation") made for the manufacture of copies intended for public sale, or for the making of films intended to be shown in public (hereinafter called "copies of fixation");

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