Additional material-Continued Marshall, Nancy H., director, Wisconsin Interlibrary Loan Service, Mathews, Hon. David, Secretary, Department of Health, Education, Mercer, Johnny, composer, prepared statement_ Nathan, Robert R., president, Robert R. Nathan Associates, Inc., Page 215 261 381 1054 1640 825, 1385 National Music Publishers Association and American Guild of Authors & Composers, prepared statement--- Nimmer, Prof. Melville B., professor of law, UCLA School of Law, Norwood, Frank W., executive secretary, Joint Council on Educational Parker, Michael, director, Typographical Development Mergenthaler Passano, William M., chairman of the board, Williams & Wilkins Co., Rayin, Mona (R.N.), instructor coordinator of R.N. Programs and Ringer, Barbara, Register of Copyrights, letter dated June 6, 1975, to 920 1038 883 1041 260 214 1017 1016 1008 Ruck, Don V., vice president, National Hockey League, prepared 813 Schrader, Dorothy M., General Counsel, Copyright Office, prepared 1015 Stevens, Hon. Ted, a U.S. Senator From the State of Alaska, letter 1659 207 "The Great American Rip-Off," by Mike Terranova, a pamphlet 1265 Times Mirror, prepared statement.. 852 "Typeface Design Protection," statement of position of the American 1226 Valenti, Jack, president, Motion Picture Association of America, Inc., September 10, 1975 1724 November 7, 1975. 1736 Vanantwerpen, F. J., president, Council of Engineering and Scientific Wally, Alan I., president, Record and Tape Association of America, 369 1263 367 276 Woodriff, Dr. Ray, Department of Chemistry, Montana State Univer- 265 Wigron, Harold E., National Education Associations.. Young, Hon. Don, a Representative in Congress From the State of Appendixes Appendix 1.-Teleprompter Corp. memorandum on Constitutionality 214 1917 2051 2092 2124 COPYRIGHT LAW REVISION THURSDAY, JUNE 12, 1975 HOUSE OF REPRESENTATIVES, AND THE ADMINISTRATION OF JUSTICE OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to call, at 9:30 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee] presiding. Present: Representatives Kastenmeier, Danielson, Drinan, Badillo, Pattison, Railsback, and Wiggins. Also present: Herbert Fuchs, counsel, and Thomas E. Mooney, associate counsel. Mr. KASTENMEIER. The committee will come to order for the purpose of continuing our hearings on matters related to copyright revision. I will encourage both the members of the committee and the witnesses, particularly in colloquies, to be as concise as possible. We are confronted with the fact the House will be in session at 10 o'clock, and undoubtedly there will be interruptions this morning. So that we can continue in an orderly fashion and get the substance of the testimony, I will encourage the colloquies to be as brief as possible. This morning during the first segment of the hearing, the committee would like to hear about the issue involving news archives. There are two witnesses present who will address themselves to that question. First, I would like to call Mr. Robert Evans, who is vice president and general counsel of Columbia Broadcasting, on the question of the news archives. You are welcome, as you were 10 years ago. Will you commence. [The prepared statement of Mr. Robert V. Evans follows:] STATEMENT OF ROBERT V. EVANS, VICE PRESIDENT AND GENERAL COUNSEL, CBS INC. My name is Robert Evans. I am Vice President and General Counsel of CBS. I appear today to oppose those provisions of section 108, namely subsection (f) (4) and subsection (h), which, in our opinion, discriminate unfairly against owners of "audiovisual news programs" by making their rights inferior to the rights of the owners of other copyrighted works. Moreover, the problem addressed by these unusual provisions is not one that requires Congressional action because it is being resolved by private initiative. Section 108 deals with limited reproduction and distribution rights for libraries and archives. Subsection (f)(4) provides that "Nothing in this section-shall be construed to limit the reproduction and distribution of a limited number of copies and excerpts by a library or archives of an audiovisual news program * *." Subsection (h) tracks the language I have just quoted-for the purpose of making clear that, although musical, pictorial, graphic and sculptural worksas well as motion pictures and other audiovisual works-are specifically excluded from the reproduction and distribution rights granted in section 108, audiovisual works dealing with news are not so excluded. A law that says creators of television news programs-and those creators are not confined to the television networks, because two-thirds of television news programs are created by local stations rather than the networks-receive less protection than the creators of television entertainment programs seems manifestly unfair. Why should a local station that produces a documentary on a subject of national interest find that outsiders, who made no contribution whatsoever to its creation, are perfectly free under the law to reproduce it without permission or payment? It is true that subsection (f) (4) speaks of a "limited number of copies and excerpts," but whatever that limited number is, it may very well represent the entire market for the program. It has always been the theory of our copyright law that copyright protection exists to encourage the creation of superior works and that the best way to do that is to ensure that their creators would be financially rewarded if the works found public acceptance. I submit that subsection (f) (4) has just the opposite effect for audiovisual news programs. Not only is this provision unfair; it is also unnecessary. We understand that it was introduced by Senator Baker to insure the continuation of the Vanderbilt University Archive. But the Vanderbilt Archive is hardly a national repository. CBS has no objection to the establishment of a genuine national repository of television programs in the Library of Congress, along the lines proposed in Senator Baker's 1973 bill. With a few minor clarifications CBS would be happy to support the enactment of such legislation. However, even should national repository legislation not be enacted, subsection (f) (4) is unnecessary because CBS last year entered into an agreement with the National Archives and Records Service pursuant to which CBS delivers a recording in the form of a video tape cassette of every hard news broadcast presented on the CBS Television Network. These cassette recordings are available for viewing by researchers and others at the National Archives in Washington, and copies of the recordings are also available at the 11 Branch Archives throughout the country, at the six Presidential Libraries and at public, college, university, and other libraries everywhere in the United States. Subsection (f) (4) is also unnecessary because CBS recently put into effect a new policy under which it is licensing schools and school districts for as little as $25 a year to record off the air programs of THE CBS MORNING NEWS, THE CBS EVENING NEWS, and THE CBS WEEKEND NEWS for in-school educational and instructional purposes. We are confident that the other networks will not leave these fields to CBS alone. In short, the problem of access to recordings of news broadcasts is being resolved by private initiative. To summarize-subsection 108 (f) (4) and the provision of subsection 108 (h) which makes an exception of "an audiovisual work dealing with news" are not only discriminatorily undesirable, they are also unnecessary. They should be stricken from the bill. TESTIMONY OF ROBERT V. EVANS, VICE PRESIDENT AND GENERAL COUNSEL, CBS, INC. Mr. EVANS. My name is Robert Evans. I am vice president and general counsel of CBS. I appear today to oppose those provisions of section 108, namely subsections (f) (4) and subsection (h), which in our opinion, discriminate unfairly against the owners of audiovisual news programs by making their rights inferior to the rights of the owners of other kinds of copyrighted works. Moreover, the problem addressed by these unusual provisions is not one that requires Congressional action because it is being resolved by private initiative. Section 108 deals with limited reproduction and distribution rights for libraries and archives. Subsection (f) (4) provides that "nothing in this section shall be construed to limit the reproduction and distribution of a limited number of copies and excerpts by a library or archives of an audiovisual news program." Subsection (h) tracks the language I have just quoted for the purpose of making clear that al though musical, pictorial, graphic, and sculptural works, as well as motion pictures and other audiovisual works, are specifically excluded from the reproduction and distribution rights granted in section 108, audiovisual works dealing with news are not so excluded. A law that says creators of television news programs and those creators are not confined to the television networks, because two-thirds of television news programs are created by local stations rather than the networks-a law that says creators of news programs receive less protection than the creators of entertainment programs seems manifestly unfair. Why should a local station that produces a documentary on a subject of national interest find that outsiders, who made no contribution whatsoever to its creation, are perfectly free under the law to reproduce and distribute it without permission or payment? It is true that subsection (f) (4) speaks of a limited number of copies and excerpts, but whatever that limited number is, it may very well represent the entire market for the program. It has always been the theory of our copyright law that copyright protection exists to encourage the creation of superior works and that the best way to do that is to insure that their creators would be financially rewarded if the works found public acceptance. I submit that subsection (f) (4) has just the opposite effect for television news programs. Not only is this provision unfair; it is also unnecessary. We understand that it was introduced by Senator Baker to insure the continuation of the Vanderbilt University Archive. But the Vanderbilt Archive is hardly a national repository. CBS has no objection to the establishment of a genuine national repository of television programs in the Library of Congress, along the lines proposed in Senator Baker's 1973 bill. With a few minor clarifications CBS would be happy to support the enactment of such legislation. However, even if national repository legislation is not enacted, subsection (f) (4) is unnecessary because CBS last year entered into an agreement with the National Archives and Records Service pursuant to which CBS delivers a recording in the form of a video tape cassette of every hard news broadcast presented on the CBS television network. These cassette recordings are available for viewing by researchers and others at the National Archives here in Washington, and copies of the recordings are also available at the 11 branch Archives throughout the country, at the 6 Presidential libraries, and at public, college, university, and other libraries everywhere in the United States. Subsection (f) (4) is also unnecessary because CBS recently put into effect a new policy under which it is licensing schools and school districts for as little as $25 a year to record off-the-air programs of the CBS morning news, the CBS evening news, and the CBS weekend news for in-school educational and instructional purposes. We are confident that the other networks will not leave these fields to CBS alone. In short, the problem of access to recordings of news broadcasts is being resolved by private initiative. To summarize, subsection 108 (f) (4) and the provision of subsection 108 (h) which makes an exception of an audiovisual work dealing with news are not only discriminatorily undesirable, they are also unnecessary. We urge they be stricken from the bill. Mr. KASTENMEIER. Thank you, Mr. Evans. What is the practice today for, let's say, CBS and Vanderbilt University as an archive. Do they purchase a cassette or a film of your news shows? Mr. EVANS. No; they do not. They are recording off the air, without our permission, and indeed, we began a lawsuit against them a couple of years ago to stop them from doing it. Mr. KASTENMEIER. Has that lawsuit been resolved? Mr. EVANS. No; it is pending and we have had some talks. We are trying to resolve it without having to go to trial. We are hopeful. I think the people at Vanderbilt are hopeful we are going to find a solution, since we are really not in opposition on what we want to achieve. They want to do the same thing we want to do, which is make it possible for teachers, scholars, or anybody who wants to see what was on the news yesterday or last week or last month or last year, researching find a way people can do that with some convenience. I guess where we disagree is really on the matter of principle as to whether we have got a copyright in our news program, or whether we do not. Only a court can answer that if we cannot work it out between us. But I am hopeful we will be able to resolve our dispute. Mr. KASTENMEIER. I take it the Senate must have concluded that with respect to television news programs of a special character, like a daily newspaper, copyright applied. They have a spontaneous value, but as a short period of time goes by, they have little residual value except for documentary purposes, unlike entertainment shows, which could be shown many times and have many intrinsic values. I do not know that, but I would assume that there must be some special reason why news programs were selected out as having a different quality than other works that might be protected in this fashion. Would you not agree? Mr. EVANS. I have read-the only available material, I think, is the Congressional Record and what Senator Baker said when he introduced the bill. I do not think he cast it in those terms. I think rather he put it on a basis that if the bill were enacted, he had an opinion from the Register of Copyrights that the Vanderbilt Archive would be stopped from doing what they were doing unless they could work out a license agreement with CBS. I think he put it on that basis, that this was needed to keep the Vanderbilt Archive in operation. Mr. KASTENMEIER. The same principle would apply, of course, to NBC and to ABC and to any local news program, I assume. Mr. EVANS. Yes; it would. And the dollars, of course, as you pointed out, Mr. Chairman, the dollars are not enormous in terms of what any news organization can realize after the first broadcast. But once in a while, they will be especially good or lucky, and they will get something that has some lasting value, maybe regionally, maybe locally, maybe nationally. And even if they are then able to get another $1,500 or $2,000 out of it by licensing its use, in news terms, that is a lot of money. That is a lot of money at CBS, because news is not a moneymaking proposition, and any dollar you can make is a real dollar in the news business. I think that is even more particularly true at smaller stations. That is why I feel it is a hard thing to do, to say that |