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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
news programs are not going to be protected in the way an entertainment program is. A lot of people might say, gosh, they ought to have more protection, maybe, because that is the best of television. That is the best thing they do.
Mr. KASTENMEIER. What present arrangement do you prefer to make? That is to say, do you prepare video tape cassettes which you sell, including a licensing for display, to institutions?
Mr. EVANS. Yes; we do. Not of hard news, as you pointed out earlier-more of the news documentaries. The news public affairs programs find a market and we sell those, of course, regularly through commercial channels-not ourselves; we have distributors who handle those for us. We are trying to build that business up. Our news division is trying to break even too. They never do, but as a source of income for them, it is a business opportunity they do not want to see taken away. It is a small market, that is the trouble. You can say, oh, what harm will it do if 15 or 20 or 30 libraries around the country make copies and distribute them as the bill says they may. How is that going to hurt anybody? It is a small market, and you may only have 15 or 20 or 30 sales. That is the trouble, if those are satisfied through this provision.
Now, if this becomes copyright law, we are not going to be able to sell anything.
Mr. KASTENMEIER. It is also true that principally, news shows are produced not for the residual copyright value but for the immediate showing and sponsorship.
Mr. EVANS. That is true.
Mr. KASTENMEIER. There is no distinction in the bill. It just says news, audiovisual news programs, all lumped in together.
I yield to the gentleman from New York, Mr. Badillo.
Mr. BADILLO. You say the problem is being resolved by private initiative. How is it being resolved in the library in my neighborhood in the Bronx, for example?
Mr. EVANS. CBS is only one network, one of the three. We have an agreement with the National Archives pursuant to which we send
Mr. BADILLO. I understand that. Then they would have to buy it in my neighborhood?
Mr. EVANS. Suppose you want to see the Walter Cronkite news for some day last month or last year. You can go to your local library and say, would you please apply to the National Archives under the interlibrary loan agreement, and get me this episode, this program. And in due course-I do not know how fast it happens-but in due course, your library would get that, and you will be able to look at it as much as you want to.
Mr. BADILLO. At no cost to the library?
Mr. EVANS. That is my understanding. That is part of the service the National Archives provides.
Mr. BADILLO. Are any other networks doing this?
Mr. EVANS. No, sir. We hope they will come along. We do not think that our competitors are going to let CBS become the network of record, as it were. We think they will follow along.
Mr. KASTEN MEIER. The gentleman from New York, Mr. Pattison. Mr. PATTISON. I am also interested in, not so much the commercial application of this, but just the fact it gets done by somebody--I do
not care how it is done. But I think that it is a tragedy if you cannot go back to June 6, 1945 and look at the news like you can with the New York Times or any other major newspaper. And I just-it has not been done up until the time Vanderbilt really started it. It is being done now by CBS only, and I would be very interested in your suggestion to where we could somehow insure, not just on a whim of CBS, but we can insure somehow that this is done, because I think it is a very important kind of thing of our national history.
Mr. EVANS. I think Senator Baker's 1973 bill pointed the way. The theory of that was that as a condition to getting copyright, you would deposit a copy or two copies with the Library of Congress, and then it would be there for everybody. CBS would-we supported it at the time. We support it today. We think there should be a national repository of these broadcasts where anybody can go and see them.
Mr. KASTENMEIER. Suppose we could limit this in some way by allowing various archives to take the evening news-and by the way, parenthetically, you were talking about documentaries; I do not think that is the intention of anybody to steal a documentary; I think that is a work of art and does have lasting impact. I think we are talking about the evening news, morning news, or whatever. Suppose you could have a provision that said that the archives could gather this information without permission, without copyright violation, but that they could not exploit it commercially without some sort of preclearance or permission. So that it would be there just for, primarily, scholars and people who-which I think is the only thing it is going to be used for anyway. I do not think any of us want to see somebody come into an archives and take pieces of news and put together a program without recognizing that somebody is owed something for that.
Talking about just using it for scholarly research, or unscholarly research, without exploiting it commercially, suppose we could put a provision in there. Would that be acceptable to the networks, or CBS? Mr. EVANS. I do not think we could support that, because no one whose copyright is embodied in a film or a tape likes to be in a situation where there are going to be 20 or 30 or 40 copies of it floating around. The thing slips away from you. Inevitably, you are no longer the owner of anything. That is why we thought it would be much better to have this material at the Library of Congress where everyone could be sure it would not only be available but the owner could be sure it was not going to be misused or mistreated or copied or excerpted or anything like that, at least not without the owner's permission.
I think we would rather see some genuine national repository than a lot of smaller ones, lesser ones around the country.
Mr. PATTISON. But there would have to be specific noncopyright legislation for that purpose?
Mr. EVANS. Yes, there would be.
Mr. PATTISON. It would not be covered by what we are doing here? Mr. EVANS. I do not think so. There would have to be some language, a new bill or an amendment to this bill. I think it is within the power of the Congress to enact such legislation.
Mr. PATTISON. I have no further questions.
Mr. KASTEN MEIER. Does the gentleman from Massachusetts have any questions?
Mr. DRINAN. Thank you, Mr. Chairman.
Does this cover "Face the Nation," "Issues and Answers"?
Mr. EVANS. As I take it, I think it would. Those are considered news programs. They are produced by our news division, and by the news divisions of the other networks.
Mr. DRINAN. Why did you not include them in your agreement with schools, therefore? You get $25 a year from schools to record off-the-air programs, but that does not extend to the CBS half hour on Sunday?
Mr. EVANS. That is right, because when we went out into the field to see what school districts wanted, their emphasis was on the hard news broadcasts for the classroom teaching purpose. I do not think there would be any reason why--if somebody said, we would like to include that too, I am sure we would be very happy to have that suggestion made to us; but this is where we started.
Mr. DRINAN. Your language on that $25 is somewhat ambiguous, that you lease things or allow this for as little as $25 a year.
Mr. EVANS. Yes; it goes up to-I am trying to remember what the top figure is. I will have to guess $3,000 a year or something like that. Mr. DRINAN. $3,000 for a school?
Mr. EVANS. That would be for a school district, perhaps, with 250,000 students.
Mr. DRINAN. Whether they take advantage of it or not?
Mr. EVANS. That is right. But the thing here is, the school records off the air. Once they get a license from us, they just turn on their Sony tape recorders and make as many copies as they want. Their only obligation is to wipe the tape, I think after 30 days, because the school people we talked to-said that would be about the useful life of anything like that. We tried to make it cheap for the small school systems, but then larger districts for an entire State came to us, and we have been negotiating with some large units who said we would like to have it for all the students in our State. We do not think-I think it is $2,500 or $3,000, $3,500 a year-we do not think that is an unreasonable fee for making copies for uses in all the classrooms in a State.
Mr. DRINAN. They get the picture, as well as the sound?
Mr. EVANS. Yes; they get the whole thing, and then they do what they want with it, make copies or whatever. Our only requirement is that at the end of a month, they wipe the tape.
[Subsequent to the hearings the following letter was received for the record:]
New York, N.Y., July 3, 1975.
Hon. ROBERT W. KASTEN MEIER, Chairman, Subcommittee on Courts, Civil Liberties and Administration of Justice, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR MR. KASTEN MEIER: At the June 12, 1975 hearing on section 108 of H.R. 2223 I testified on behalf of CBS in opposition to 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 other owners of copyrighted works. I also testified that the problem addressed by these unusual provisions is not one that requires Congressional action because it is being resolved by private initiative.
As part of my demonstration of resolution by private initiative, I testified that 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. During the course of my testimony, Mr. Drinan asked how high the charges for such licenses