Mr. BADILLO. This is now on television, on the same metropolitan television as channel 2 or 4. You say that he should not have the right to turn you down. You go on and then he can argue whether you are getting more or less for the performance but not whether or not the performance should go on. That is the basis of one of the most important factors in the copyright thing, whether there should be reuse of it. Mr. KASTEN MEIER. The gentleman's time has expired. The gentleman from New York, Mr. Pattison. Mr. PATTISON. I am interested in this rather minor, I guess, problem to the bill but major to the public radio people that print handicapped problems. I guess Mr. Giorda is the person to answer this. Presently what do you do? You have readers reading novels and things of that nature and you have exemptions under present law? Mr. GIORDA. That is right. Mr. PATTISON. Is that exemption continued in the Senate bill? Mr. GIORDA. It is partially there. Under Section 110 (8) it is there. However, there is an additional piece of relief that would be needed under Section 112. Mr. PATTISON. Elaborate on that. Mr. GIORDA. Service for the present handicapped as you know is designed to provide a reading service for those who are blind or who are too infirm to read, novels, anything of this sort. We need access to the materials and we need also to be able to provide for recording to facilitate Mr. PATTISON. Let's just do the reading part of it. Under the Senate bill, there is no problem there. The exemption is continued. The problem is that if you want to get a volunteer to read at 3 o'clock in the afternoon to be put on at 8 o'clock in the morning, you have a problem of recording and that is not covered. MI GIORDA. That is correct. Mr. PATTISON. You are not talking about broadcasting generally. You broadcast on a special channel. Mr. GIORDA. That is correct on the subchannel. Mr. PATTISON. It does not go to anybody who does not have that receiver. Mr. GIORDA. As long as the reading service is being conducted on the subchannel of an FM station; however, there are certain-in fact, there are 20 AM only public radio stations that have some very limited. reading services for the blind, limited because there is not enough time in their broadcast day to permit inclusion of more than an hour or so of this sort of material. Mr. PATTISON. They just do that on the regular commercial AM? Mr. GIORDA. Not commercial. Mr. PATTISON. It could be done commercially. Mr. GIORDA. That is right. Mr. PATTISON. If it was done commercially, there is no exemption? Mr. GIORDA. No. Mr. ALEINIKOFF. May I interiect for 1 minute? This is the subiect that Mr. Kastenmeier alluded to as one which is going to be gone into much deeper in September in future hearings. Mr. PATTISON. All right. In the area of public broadcasting to the extent that things are produced nationally by PBS or whatever, is that the same problem as something produced locally? Does it pose the same problems? Mr. ALEINIKOFF. Yes, it does. It is more difficult on the local side. for the local station to clear. But on the other hand, as Mr. Smith said, the national programs are produced by local stations. They are produced by perhaps half of the 200 stations. Mr. PATTISON. They are produced locally but distributed nationally? Mr. ALEINIKOFF. Yes. The national schedule is determined by local stations. The programs are produced locally and selected locally. Mr. PATTISON. The Agronsky show is produced locally here in Washington and distributed nationally. Is there any place where the national stuff is produced? Mr. ALEINIKOFF. No; only in the institutions like Sesame Street. Mr. PATTISON. If it were a centralized kind of network the way a commercial network operates, it would be a different problem, nationally and locally? Mr. ALEINIKOFF. It would be helpful if it were that way. I suppose that we could develop a staff to do this nationally. Somebody has suggested, well, why don't you do this for all the local producers on national programs? The answer is that it just does not work. You can't produce a program in Detroit or Des Moines and use a clearance facility located someplace else. In addition there is always the problem of whether the national facility would have too much to say about what the contents of the local program is. Mr. KASTENMEIER. The gentleman's time has expired. The Chair would like to ask one or two questions further on the second go-around. Ten years ago, as I recall, the question arose as to whether some clearances could be achieved by agreement, where proprietors of copyrighted materials would be able to make it easier to clear material because clearance has always been a problem, not merely for broadcasts but for educators and others. I gather 10 years later that there hasn't really been very much progress toward the clearance. Can you advise me what efforts have been made and what seem to be the difficulties in arriving at some mechanism for clearance? Obviously you raised that issue. Mr. ALEINIKOFF. We raised that in the context of the new copyright revision bill. Under the current law there are not for profit and other exemptions that we have been operating under for a number of years. When we ask the industries to sit down and talk and negotiate, we find that we don't have a monolithic broadcasting system in this country. In foreign countries, there is a monolithic broadcasting organization. What we are faced with is not only three different performing rights organizations which up to the time the Senate committee asked us to meet in the same room with them, always wanted to negotiate separately. We are also faced with the fact that we have no place to negotiate the recording rights that for us are as essential as performing rights. We have had all of these institutions coming together under a bill which gave us exemption, but under which we were willing to make a voluntary payment. Whatever negotiations we had, which ever side wants to take the blame or blame the other for it, those negotiations have never come to pass. We feel on our side that we have made an attempt, especially on the music side. On the literary side, I guess we have discussed this as part of the general educational copying and fair use picture from time-to-time with representatives of the publishers and the authors, especially in terms of instructional broadcasting. But we have never gone farther than that because there has never seemed to be any absolute need under the act. They certainly did not want to discuss it with us terribly much. As Mr. Smith said the publishers and authors have antitrust problems in terms of ever discussing standard arrangements, group arrangements, or even remedies. There has just been no place to go. As you know, on the photographs we have had nobody to discuss with at all. Mr. KASTENMEIER. Perhaps the question had better be asked of the other party. The characterization was either unwilling or unable or the inability. My last question is we have discussed this morning this Mathias amendment and the Bayh amendment very concisely. What other issues confront public or instructional broadcasting in terms of copyright, which we may later have to deal with? Mr. ALEINIKOFF. The main issues are programs for the disabled and the possibility of exemptions for local radio stations. In addition, we have the problem of recording public broadcasting programs for the school uses we are willing to authorize, which we are not quite clear about under the way the current bill as phrased. Last of all, there is the problem of the newer methods of technology such as educational television channels or public access channels on cable television or closed circuit signals in schools, just because the developments in technology may need some clarifications. We are not very clear yet whether all that can be handled in report language but we would like an opportunity to come back and discuss it. Mr. KASTEN MEIER. The gentleman from New York? Mr. PATTISON. I apologize. That ephemeral business went by me. I think I was talking to somebody here. Would you go over that again, the issue you discussed about ephemeral recordings? Mr. ALEINIKOFF. The issue on ephemeral recordings is that the recording rights for instructional classroom programs has been segregated in the bill under the general topic of ephemeral recordings. That section was intended to permit broadcasters to make one or two recordings so that you could broadcast on a prerecorded rather than a live basis and so you could have network shows that were delayed by recording. When we came down to looking at the problems of recording programs for instructional broadcasts for longer periods of time, that also was kept in the same section. It no longer fits. Mr. PATTISON. You want to keep it and reuse it over and over again. Mr. ALEINIKOFF. That is right. It is a misnomer to have it in that section. We would like it in a section either by itself or together with the 110(2) classroom exemption that would provide the means for programs to be recorded and kept and used. Mr. PATTISON. I have no further questions. Mr. KASTENMEIER. That concludes the presentation on the part of the public broadcasters and we appreciate your testimony this morning. [Subsequent to the hearing the following letter was received for the record:] JOINT COUNCIL ON EDUCATIONAL TELECOMMUNICATIONS, Washington, D.C., July 10, 1975. Hon. ROBERT W. KASTENMEIER, Chairman, Subcommittee on Courts, Civil Liberties and the Administration of Justice, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR MR. KASTEN MEIER: At its January 22, 1975 Board meeting, the members of the Joint Council on Educational Telecommunications discussed copyright revision legislation with particular reference to the amendments submitted by Senators Mathias (Senate Amendment No. 1815) and Bayh (Senate Amendment No. 1913). At that meeting, the Board, without dissent, directed me to write this letter for your consideration and for the record to express our support of both amendments. As you know, the JCET was founded in 1950 as the Joint Committee on ETV to lead the effort to reserve channels for educational television. Our interest in such newer communications technologies as cable and satellites in no way diminishes our concern with instructional and public broadcasting. In reference to Mr. Mathias' amendment, we believe that a system of compulsory licensing of copyrighted materials is both just and necessary if public radio and television are to fulfill the role which the Congress intended for them in the Public Broadcasting Act of 1967. Commercial broadcasting provides neither model nor analogy by which public broadcasting's need for timely access to copyrighted materials can be measured. The widely varied fare which makes up the public broadcasting schedule taps a potentially limitless range of nondramatic literary and musical works, sound recordings and pictorial, graphic and sculptural works. Still more important, public radio and television are decentralized, grass roots, systems. The network programs seen on PBS are not produced by the network, but by public television stations and other agencies. National Public Radio leans heavily on its member stations for the production of its network-distributed programming. Only a system of compulsory licensing can provide the hundreds of noncommercial radio and television stations with timely access to materials for local and network programs while, at the same time, assuring that copyright holders will be adequately and fairly recompensed. In the matter of Mr. Bayh's amendment, the JCET holds that removal of arbitrary restrictions on the number and life of copies of instructional programs made by governmental bodies and other nonprofit organizations is necessary to provide a climate in which well-produced, educationally sound, instructional programs can flourish. As we said in my testimony of July 31, 1973, to the Senate Subcommittee on Patents, Trademarks and Copyrights: "All our experience testifies to the fact that instructional programming of the highest quality-particularly in television-requires substantial resources. Rather than rely on what their own limited resources can provide, school systems, state-wide agencies, and noncommercial broadcasters are coming together to form consortia to finance instructional series for their own use and for sharing with other educational groups. In order to achieve financing and recoup the substantial investments which are required for program series which are professionally produced under the guidance of educational experts in content and methodology, the programs must be available for widespread and prolonged use. Because instructional broadcasting-and particularly instructional televisionis at last emerging from the cottage industry stage, we suggest that statutory limits upon the number of tape copies which may be made, or their useful life, are counterproductive." The members of the Joint Council on Educational Telecommunications urge that these amendments be introduced in the current session and adopted as a part of H.R. 2223. Thank you for the opportunity to express our views. Sincerely, Attachment. FRANK W. NORWOOD, 1974 JCET MEMBERSHIP Agency for Instructional Television. American Association for Higher Education. American Association of Community and Junior Colleges. American Council on Education. American Library Association. Association for Educational Communications & Technology. Council of Chief State School Officers. Great Plains National Instructional Television Library. National Catholic Educational Association. National Education Association. National Public Radio. National University Extension Association. Public Broadcasting Service. Indiana Higher Education Telecommunication System. Pennsylvania Public Television Network. Southern Educational Communications Association. Mr. KASTEN MEIER. The Chair will call a recess because there is a second quorum on for a period of 10 minutes. We will reconvene at 11:40. Until that time, the subcommittee stands in recess. [Quorum recess.] Mr. KASTEN MEIER. The hearing will come to order. When we recessed we were about to call as witnesses opponents of the Mathias and Bayh amendments. Shortly other members, hopefully, will join us. I would like to call and to greet representing the American Society of Composers, Authors, and Publishers (ASCAP), general counsel, Mr. Bernard Korman, who has been with us before and his statement is joined in by SESAC and by the National Music Publishers Association. I am pleased to greet, representing Broadcast Music, Inc., Mr. Edward M. Cramer, president and Mr. Edward W. Chapin, counsel to the organization. Following these representatives of musical interests, I would like to greet the Association of American Publishers, Inc., Charles Lieb, counsel, and the Authors' League of America, Inc., Irwin Karp, counsel. Mr. Karp has been before us many times and has testified on many issues. Also, I am told that we have here Mr. Townsend Hoopes, president of AAP, the Association of American Publishers, and Mr. Ivan R. Bender, Educational Media Producers Council and Mr. Jon Baumgarten on behalf of Macmillan Inc. and on behalf of Harcourt Brace Jovanovich. Gentlemen, I guess you are outnumbered by your opponents. May I call first on Mr. Chapin? |