cedures and patterns by which thousands of musical licenses are negotiated and granted each year for use by commercial broadcasters, motion picture companies and others, large and small, national and local, cannot be applied with the same effectiveness to public broadcasting.

Senators Mathias and McClellan, however, constructively urged us to focus more intently on what could be done to facilitate the granting of synchronization licenses to public broadcasters. Senator McClellan, as Chairman of the Senate Judiciary Subcommittee on Copyright, brought the parties together a short time ago to find a solution other than a compulsory license to facilitate the availability of copyrighted works to public broadcasters. These meetings made possible discussions which, because of their Congressional auspices, enabled the participants for the first time to engage in discussions of possible blanket licensing arrangements which otherwise could not have taken place.

Already agreement has virtually been reached on a form for a blanket synchronization license for all public broadcasters covering a publisher's entire catalogue which we will undertake to send to each publisher with our recommendation for acceptance. When such licenses have been signed by those publishers whose catalogues cover the great bulk of the music desired by public broadcasting, the latter will simply write one check for each of the four copyright organizations involved, with no other administrative burden whatsoever other than the maintenance of usage files enabling those organizations to determine the apportionment of these revenues. Although agreement is still to be reached on the timing of any arbitration required and on interim fees, it is already clear that these forthcoming agreements will provide for (a) interim fees undoubtedly lower than those which a government tribunal under the Mathias amendment would find to be a fair and appropriate proportion of the public broadcaster's total cost of production, particularly if the government's own administrative costs are added to those fees; and thereafter (b) the perpetual establishment of fair fees by negotiation or, in the event of a failure to agree, by mandatory arbitration. In short, from these meetings there is evolving for public broadcasting an innovative system of access to and payment for copyrighted music which is unprecedented in terms of its simplicity, speed and economy. Having participated in those meetings, we agree with the statement issued last month by the Subcommittee Chairman and all its members that "considerable progress has been made, and tentative understandings have been achieved on a number of issues," and that agreement on those issues still under discussion "also can be reached if the parties seek reasonable accommodations." We share the Subcommittee's interest "in obtaining a mutually satisfactory solution" and its "hope that a complete agreement will shortly be reached"; and we pledge our continued cooperation with these efforts. Indeed, further progress was made at a meeting as recent as Tuesday of this week. (The full statement of the Subcommittee is attached.)

Clearly such an approach is preferable to a new statute that would further diminish the free market in musical works by giving the Federal Government new authority as a price-fixer over an area otherwise subject to arms-length bargaining, and by giving the Federal Copyright Office an additional role as collector and distributor of royalties. No tribunal, however wise and impartial, can establish a rate for each work of music as fairly and economically as untrammeled negotiations between the two parties directly involved.

B. COMPULSORY LICENSING IS UNFAIR AND UNWORKABLE

The concept of compulsory licensing is anathema to the creative talent of this country. The holders of musical copyrights have been penalized by the statutory imposition of this approach since 1909 with respect to sound recordings, and are strongly opposed to its needless expansion. (It might be noted that the Register of Copyrights in his 1961 Report even called for the repeal of the compulsory license requirement for musical recordings as an exception, no longer needed, to "the fundamental principle of copyright that the author should have the exclusive right to exploit the market for his work.")

A compulsory license was deemed necessary in 1909 for sound recordings to prevent one piano-roll company from gaining a monopoly. It has now been deemed necessary as part of an agreement between all parties concerned with juke boxes because the economic base of that industry, previously exempted from all copyright liability, has historically depended solely upon its unobstructed access to copyrighted music. It has been deemed necessary for cable television in

order to initiate an equitable system of compensation in a situation where the courts ruled no compensation was due under existing law.

But no such compelling purpose has been alleged for the use of the compulsory license technique in this instance. No compulsory license is needed to prevent one public broadcaster from excluding all others, or to assure or commence either payment by public broadcasters to copyright holders or access on reasonable terms to their copyrighted material. No other compulsory license curbs, as the Mathias Amendment would curb, a pre-existing right of copyright proprietors to bargain freely in the marketplace. (Nor would any other compulsory license permit, as the Mathias Amendment's inclusion of unpublished works would permit, the public use of a copyrighted work before the creator of that work has even decided whether and in what form he wishes to make it public. Surely we have not come to the point in this country where a composer cannot create and copyright a work for his own satisfaction and then decide for personal or economic reasons to withhold it from the public. Still other hazy terminology in the Mathias Amendment could be interpreted to cover not only non-dramatic broadcasts of copyrighted music but also dramatic uses and even non-broadcast uses which are far beyond the scope intended for this Amendment by its own proponents.)

Surely it would be unthinkable to extend into public broadcasting this inevitably harsh and inequitable concept of compulsory government licenses and pricefixing in the absence of clear and convincing evidence of its absolute necessity. (The compulsion, it should be added, is all one way-the amendment would not enable an author to compel a public broadcaster to use his music.) Although one of the reasons offered in support of the Mathias approach was the administrative burden required if licenses are privately negotiated-a burden, of course, that will be virtually eliminated through the procedures now being negotiated by all the parties-it is clear that an even greater burden would be imposed on the public broadcaster by the Mathias Amendment's requirement that he maintain all necessary records for the Register of Copyrights and periodically produce documented rate-making data for the new tribunal (to say nothing of the additional burdens created for these Federal agencies). Indeed, given our industry's experience in developing licensing patterns, our willingness to use our best efforts to locate for any applicant the appropriate copyright owner, and the availability of The Harry Fox Agency, Inc. as a licensing agent for some 80% of all music publishers, the private enterprise course-under either the blanket licenses now being negotiated or the customary publisher-by-publisher pattern-should be substantially less administratively burdensome for the broadcasters than the public bureaucracy route.

Certainly the private parties directly involved can reach a rate decision more quickly than a federal tribunal, and achieve payment more efficiently than going through the Register of Copyrights as a middle-man. And given the minimal nature of those fees, it would be unconscionable to route them through the Register and thus require her under Sec. (a) (3) (B) to deduct her own administrative costs before distributing them. For the result would be either the virtual elimination of all compensation for the creator or the imposition of unnecessarily high fees for the public broadcaster.

In short, continuing cooperative efforts by both public broadcasters and copyright proprietors will resolve any remaining impediments to speedy clearance and licensing for even the smallest producer of public broadcast programming. Enactment of the Mathias Amendment will not save the public broadcasters money or time; it will not increase their access to copyrighted music; it will not decrease their administrative burden. It is not needed, justified or desirable, and should be promptly rejected by your Subcommittee.

II. The Bayh Amendment

The Bayh Amendment would remove all limitations from the right of educational broadcasters to make without payment supposedly "ephemeral" recordings for instructional purposes of those works they broadcast without license or compensation under Section 110(2).

"Ephemeral," according to every standard dictionary, means "lasting for a brief time, short-lived, sharply limited in duration." The traditional concept of ephemeral recordings, the House Judiciary Committee Report of 1967 pointed out, holds them to be

"Mere technical adjuncts of broadcasting that have no appreciable effect on the copyright owner's rights or market for copies or phono-records." (H. Rept. 90-83, p. 60, emphasis added)

The original proposal on ephemeral recordings in the general copyright revision bill of 1965 met this definition. It would have permitted those broadcasting organizations already lawfully entitled to transmit a copyrighted work to make (without being guilty of a copyright infringement) one copy or recording for their own transmission within six months, such copy thereafter to be either destroyed or preserved for archival purposes only. That was "ephemeral"; and as noted in both the 1967 House Judiciary Committee Report and the 1974 Senate Judiciary Committee Report on Copyright Law Revision, "The need for a limited exemption in these cases because of the practical exigencies of broadcasting has been generally recognized . . .". (H. Rept. 90-83, p. 59; S. Rept. 93-983, p. 135, emphasis added)

The House Judiciary Committee in 1967, after considering the testimony of educators and copyright proprietors, then permitted instructional broadcasters who pay no royalties for transmitting to classrooms and the like under Section 110 (2) to make two coipes for transmission within a period of one year. That was still "ephemeral;" and indeed the House Report emphasized that it was unwilling to "convert the ephemeral recording privilege into a damaging inroad upon the exclusive rights of reproduction and distribution." (H. Rept. 9082, p. 60) Instructional broadcasters wishing to make wider use of a work were, of course, to be free to negotiate appropriate compensation therefor with the copyright owners, who have always recognized the need for minimal fees for such uses. Unfortunately an amendment on the House floor that was adopted without debate eliminated all limitations.

The initial report of the Senate Judiciary Subcommittee on Patents, Trademarks and Copyrights in December 1969 increased the number to twelve and the period of retention to five years; and Section 112(b) of S. 1361, reported in July 1974, increased these limits still further to thirty copies for seven years and permitted educational broadcasters to exchange recordings for transmission. That Section 112(b), far from providing for "ephemeral" copies, would carve out a large new area of broadcasts from which copyright proprietors would be unable to receive compensation for their creative contribution. The Senate Report in fact noted the argument of the private enterprise producers of educational films that these recordings by instructional broadcasters "are in fact audiovisual works that often compete for exactly the same market .. without paying any copyright royalties. . .". The Report concluded: "These arguments are persuasive and justify the placing of reasonable limits on the recording privilege." (S. Rept. 93-983, p. 137, emphasis added)

We respectfully suggest that the limits set forth in Section 112(b) go beyond what is reasonable or necessary. Once 30 copies have been distributed, it will be difficult for the original distributor-and impossible for the copyright proprietor-to police their use and prevent or collect for infringements. Indeed the House Judiciary Committee in 1967 regarded two copies and one year as "reasonable limits" in the very same context (H. Rept. 90-83, pp. 62-63). Such a loophole, while encouraging widespread unauthorized uses, would surely not encourage copyright holders to cooperate enthusiastically with public broadcasters.

Now the Bayh amendment, contradicting the language of both Reports, proposes to revoke all limits altogether, to deny to American authors, composers and publishers any compensation whatsoever in one of the important and rapidly growing markets for their work. (Indeed its language does not even clearly limit to instructional uses the transmissions made by those who would receive copies from the instructional broadcaster.)

As observed above, educational broadcasting is now a big business, raising and spending large sums for performers, producers, technicians, executives and others, none of whom are asked or expected to contribute their services. We have every desire to grant licenses to instructional broadcasters as we do to other audio-visual work producers for minimal fees; and, as a by-product of the current negotiations previously mentioned, agreement is in fact being reached with these broadcasters on a simple short form of a request and license for the non-broadcast usage of copyrighted music. There is nothing "ephemeral" about the recordings created under these provisions; nor are they mere technical adjuncts to the broadcasting process. They are professionally created permanent programs intended for wide use. We have no objection to an amend

ment to the present statute permitting instructional telecasters to facilitate their task by making a very limited number of truly ephemeral copies. But it would be patently unfair for the Congress, by adopting the Bayh amendment or even Section 112(b) in its present form, to single out the creators of copyrighted works as the only participants in multiple instructional telecasts and rebroadcasts from unlicensed copies of their works who are uncompensated for their contribution.

Under Section 110 and a more limited Section 112, as well as under the doctrine of fair use, instructional broadcasters are already assured of ample free access to copyrighted works. We cannot believe the Congress will go further and in effect allow one substantial class of users to expropriate without compensation the property rights of this nation's creative talent.

JOINT STATEMENT OF CHAIRMAN AND MEMBERS OF SENATE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS

The Senate Subcommittee on Patents, Trademarks, and Copyrights during the processing of the legislation for the general revision of the copyright law gave lengthy and detailed consideration to an amendment proposed by Senator Charles McC. Mathias, Jr., to establish a statutory compulsory license for the use of certain categories of copyrighted works by public broadcasting. The initiative taken by Senator Mathias has considerably improved the possibility of a satisfactory resolution of the copyright problems of public broadcasting.

At the request of the Chairman of the Subcommittee, representatives of public broadcasting and of the creators and owners of copyrighted material have been meeting to explore mechanisms other than a statutory compulsory license to facilitate availability of such material to public broadcasting. Representatives of the Chairman, of each member of the Subcommittee, and of Senator Mathias attended certain of these meetings.

The Subcommittee notes that considerable progress has been made, and tentative understandings have been achieved on a number of issues. Some issues remain in dispute but the Subcommittee believes that these also can be resolved if the parties seek reasonable accommodations. Consequently, the Subcommittee urges the parties on an urgent basis to continue with the negotiations.

The Subcommittee will maintain its interest in obtaining a mutually satisfactory solution. The Subcommittee expresses the hope that a complete agreement will shortly be reached.

STATEMENT OF AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS

INTRODUCTION

ASCAP is opposed to the amendment proposed in the 93d Congress by Senator Charles McC. Mathias, Jr., to the copyright revision bill which would grant a compulsory license to public broadcasters (Amendment No. 1815 to S. 1361). The Senate Copyright Subcommittee recently reported S. 22, the general revision bill, to the Senate Judiciary Committee without the Mathias Amendment. Indeed, the Subcommittee voted unanimously against the Amendment. We urge this Committee to do the same.

Despite the length of the presentations you will hear today, the basic issue is really not complicated: that issue is whether public broadcasters are so different from commercial broadcasters and all other music users as to require a new and special marketing mechanism for clearing rights to music. We see no such need.

The proponents say they lack the time, money and expertise to deal successfully with numerous, widespread copyright owners. ASCAP was organized in 1914 to meet this very problem. We exist to provide a central clearing house through which each user may, under one license, perform all the works in our repertory.

This clearing house approach has worked well in the United States for more than 60 years. ASCAP's two activities, licensing and distribution of royalties are carried on under supervision of a Federal court. Users, ranging from the smallest tavern or local radio station to the largest national commercial television network, are assured of a bulk licensing mechanism at reasonable cost.

We perceive nothing about public broadcasting that sets it apart from all other users of copyrighted music, so as to require the compulsory license of the Mathias

Amendment. We think the present law requires public broadcasting to obtain licenses for nondramatic performances of copyrighted music. If there were any doubt, it would be removed by H.R. 2223 which eliminates the "for profit" limitation on the performance of nondramatic musical works contained in the present law. Section 106 (4) grants the copyright owner the exclusive right "in the case of literary, musical, dramatic, and choreographic works, pantomime, motion pictures and other audiovisual works, to perform the copyrighted works publicly." As the Senate Report on S. 1361, 93d Cong., 2d Sess. (1974), states, the purpose is to require those who perform copyrighted works publicly to pay license fees: "The line between commercial and 'nonprofit' organizations is increasingly difficult to draw. Many 'nonprofit' organizations are highly subsidized and capable of paying royalties and the widespread public exploitation of copyrighted works by educational broadcasters and other noncommercial organizations is likely to grow. In addition to these trends, it is worth noting that performances and displays are continuing to supplant markets for printed copies and that in the future a broad 'not for profit' exemption could not only hurt authors but could dry up their incentive to write." Sen. Rep. No. 93-983, 93d Cong., 2d Sess. (1974) 112.

Thus, the bill would require public broadcasting to negotiate for licenses in just the same way that all other music users do. However, the Mathias amendment would grant public broadcasters a compulsory license for the use of nondramatic literary and musical works, sound recordings and pictorial, graphic and sculptural works. The license fees for that compulsory license would be determined not by the usual negotiation between the parties, but by the Copyright Royalty Tribunal.

ASCAP is opposed in principle to any form of statutory compulsory license. The American tradition is to require a party seeking to use another's property to bargain with the property owner for such use. There is no reason to exempt public broadcasting from the American tradition. Indeed, public broadcasters rent their offices and studios in competition with other tenants; compete with other employers for their staffs and talent; and pay for all other services and property they use, in amounts fixed in the open market place. If public broadcasters wish to use the property of copyright owners, the fees should be negotiated. Spokesmen for public broadcasting argue that they should be treated like jukebox operators and that their broadcast originations should be treated like the secondary transmissions of CATV operators:

"Public broadcasting is no less restricted than cable television and juke-box interests in its inability to control copyright use, nor more able to reach mutually satisfactory royalty arrangements with copyright owners." Comments of the Public Broadcasting Service on Amendment 1815 and Amendment 1831 to S. 22 (S. 1361) submitted to Senate Subcommittee, 1975 (hereinafter "PBS Comments"), at p. 15.

We think these spokesmen are wrong. The differences between the public broadcasters and the jukebox or CATV industries are plain.

The three compulsory licenses in the bill are present for historical reasons, none of which apply to public broadcasting. The compulsory license for mechanical recordings has existed since 1909; the jukebox and cable television industries-unlike public broadcasting-have generally been exempt from all copyright liability. Compulsory licenses for them are the result of carefully worked out compromises.

As to the claim of inability to reach an agreement, the fact is that since the PBS Comments were submitted to the Senate Subcommittee, agreement has virtually been reached.

The Mathias Amendment is therefore simply unnecessary.
We turn now to a description of the rights involved.

I. Public broadcasting requires licenses from copyright proprietors for

"performance” and “synchronization” rights

Television broadcasts usually involve two separate copyright rights. The first is the "performance" right-the 1909 Copyright Act grants to the copyright owner the exclusive right to "perform" the work. These rights are generally granted on a blanket basis by the performing rights organizations, ASCAP, BMI and SESAC.

The second, the "synchronization" right, comes from the 1909 Copyright Act's grant to the copyright proprietor of the exclusive right to "record" his work. A synchronization license enables the licensee to record the copyrighted work in timed relation ("synchronization") with the visual image. Synchronization rights were originally granted to motion picture producers, and later to producers of television programs.