their wonderful cooperation in seeing us through this educational television documentary project. If you, or anyone at G. Schirmer, Inc. has not seen this program (this goes for the Ives show as well) I will be most happy to arrange a screening here at N.E.T. at your convenience. Once again, thank you very much. Sincerely, Mr. BENJAMIN V. GRASSO, JOHN Q. ADAMS, Jr., Chief, Music Clearance. NATIONAL EDUCATIONAL TELEVISION, General Manager, Associated Music Publishers, Inc., DEAR BEN: Enclosed herewith are your usual synchronization license forms covering musical compositions included in N.E.T. programs in our “U.S.A.: Music and Poetry" series. Also enclosed are checks in the amount of $210 in payment for each of these licenses. As usual, would you sign a copy of each license and return it to my attention. Thank you very much for your cooperation. Very truly yours, JOHN Q. ADAMS, Jr., STATEMENT OF AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS ASCAP opposes the amendment proposed by Senator Birch Bayh to the general copyright revision bill in the 93d Congress (Amendment No. 1831 to S. 1361) which would permit unlimited recordings of instructional programs which make uncompensated use of copyrighted works. Senator Bayh's amendment would alter Section 112 of the copyright revision bill, entitled "Limitation on exclusive rights: Ephemeral recordings" so that recordings could be made which would be anything but ephemeral-they would be unlimited in number and permanent in duration. ASCAP licenses only the non-dramatic public performance of our members copyrighted musical compositions. Section 110(2) of the revision bill would permit uncompensated performances of copyrighted works by broadcasts made for reception in classrooms, by disabled persons, or by government employees. We have not objected to this provision in the general public interest and in order to speed enactment of copyright revision. Section 112(b) of the copyright revision bill, however, especially in the form proposed by Senator Bayh's amendment, would give this exemption vastly extended impact by allowing unlimited free recording of such broadcasts by governmental bodies or other nonprofit organizations which qualify under Section 110(2). The amendment might be read to allow distribution of such recordings by or through governmental bodies or nonprofit organizations which do not qualify under Section 110(2), presumably including public broadcasters. The history of this section reveals a constant and shocking erosion of author's rights. After years of hearings and discussion, the 1967 revision bill drawn by the House Judiciary Committee (H.R. 2512, 90th Cong., 1st Sess., 1967) permitted one recording of such a program, for transmission purposes, to be kept for one year, with another copy to be kept for archival purposes only. It was then the view that instructional broadcasters who wish to reach wider audiences should make some arrangement with the copyright owners. However, these limitations were removed by a floor amendment adopted without debate. As originally drafted, the Senate bill (S. 1361, 93d Cong., 1st Sess., 1973) allowed twelve recordings for use over a five-year period. While this was a significant extension of the original provision drawn by the House, the copyright proprietors did not object, feeling that an objection would unduly delay the passage of revision legislation. Then the Senate committee expanded this recording privilege in its markup of the bill to thirty copies for use over a seven-year period, an extension which we felt was unwarranted. Now, Senator Bayh's amendment would remove all limitations, unfairly depriving the copyright proprietor of any compensation for his work. 57-786-76-pt. 2-18 The instructional broadcaster pays those he employs in the production of his programs-why should he not pay the copyright proprietor? Schools have always bought and paid for textbooks-why should they not pay for copyrighted materials in other forms? Previous bills gave the instructional broadcaster a significant privilege of free recording. Surely, if the instructional broadcaster wishes to make even greater use of copyrighted works, the producer of the program should pay the copyright proprietor a fair fee for his greater use. It was the intent of Section 112(b) that the use of recordings be limited to those circumstances which permitted free broadcasts under Section 110(2)— broadcasts of instructional programs for reception in classrooms, by disabled persons, or by government employees. As reported out of the Senate committee, Section 112(b) made this clear, by allowing such recordings to be made by “a governmental body or other nonprofit organization entitled to transmit a performance or display of a work, under Section 110 (2)" (emphasis added). Senator Bayh's amendment might even remove this important restriction and so allow distribution of such recordings to any other governmental bodies or nonprofit organizations, whether they qualify under Section 110 (2) or not. The amendment thus might allow far greater free use of copyrighted works than the draftsmen of copyright revision legislation intended. We did not object to a limited exemption, as set forth in the original draft of S. 1361, in the hope that this would speed general revision and thus be in the interest of all concerned. But when ephemeral comes to mean permanent and, as a practical matter, uncontrolled, we must object and register our opposition. [Subsequent to the hearing the following letters were received for the record:] AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, Hon. ROBERT W. KASTEN MEIER, New York, N.Y., September 29, 1975. DEAR CONGRESSMAN KASTEN MEIER: Last spring, your Subcommittee held hearings on an amendment to the Copyright Revision Bill proposed by Senator Mathias, which would grant a compulsory license to public broadcasters. In June of this year the Senate Subcommittee rejected the proposed amendment. At the hearings before your Subcommittee, representative of public broadcasting tried to support the Mathias Amendment by claiming that they had met difficulty in the past obtaining synchronization licenses from music publishers, and that the compulsory license was necessary to resolve this "burdensome clearance problem." In their testimony and statements, representatives of copyright proprietors demonstrated that public broadcasting's claims were unfounded-that, in fact, until public broadcasting stopped asking for the necessary synchronization licenses, they had no difficulty at all in obtaining them. Copies of typical letters from a public broadcaster to a copyright proprietor showing how routinely these licenses were requested and granted are in the record as part of ASCAP's statement. On September 22, 1975, Judge Morris E. Lasker of the United States District Court for the Southern District of New York decided Columbia Broadcasting System, Inc. v. ASCAP, et al. (No. 69 Civ. 5740, Sept. 22, 1975), an antitrust case invloving the licensing of music to CBS for its television network. A copy of the Opinion and Order is attached. CBS claimed that it could not deal directly with ASCAP's members because among other reasons, it would have great trouble locating them. We replied that CBS had no trouble at all finding members for "synch" licensing, and we saw no reason the trouble would be greater if CBS wanted to discuss performances licensing. We now have a judicial finding as to how routinely "synch" licenses are issued, once publishers know they are wanted. The process takes "two to three days at most." The Court said: "The television synchronization right is the right to record copyrighted music on the soundtrack of a filmed or taped program. Such rights are required for programs which are to be rerun, as distinguished from those (such as sports events or certain "one-run" taped programs) which are regarded as "live" performances. The grant of TV "synch" rights is almost exclusively brokered through the facilities of the Harry Fox Agency, Inc., which represents virtually every major publisher, about 3,500 in all. As outlined by Fox's Managing Director, Albert Berman, and by Robert Wright and Edward Vincent, who are members of producers' staffs, the typical "synch" rights transaction starts with a telephone call to Fox from the producer or from Bernard Brody or Mary Williams, synch rights agents located in Los Angeles who represent producers in their dealings with Fox. Because Fox has instructions regarding each publisher's fee structure, (or, more often, is familiar with it on the basis of past experience) it is usually able to quote prices over the telephone for the compositions which interest the producer. The entire transaction, including actual issuance of the license, is completed within two to three days at most. Fox issues several thousand licenses annually, using a basic staff of only two employees." (Slip Opinion at 46-47). Here, then, is support on a full trial record for the copyright proprietors' statements that there is existing machinery for granting synchronization licenses which works quickly and efficiently. Public broadcasting also claimed that alleged difficulties in clearing synchronization rights, including locating the copyright proprietors, resulted in serious production delays. This is contradicted by the Court's statement that the entire transaction, including the issuance of the license, is completed within two to three days at most. It is also contradicted by the Court's discussion concerning the location of copyright proprietors: ". . . Wright, who is on the staff of The Carol Burnett Show, testified that problems in clearing synch rights are "rare". Edward Vincent, a former staff member of the Jim Nabors Variety Hour, testified that the Bernard Brody Agency would have no difficulty in giving him the name and address of any copyright owner. Even if lines of communication to obtain synch rights were not already established, there are several other ways in which a producer could identify the publisher of music he plans to use. Emil Poklitar, who works in CBS' music clearance department stated that CBS maintains a file containing the relevant information on over 100,000 compositions. Indeed, as Wright testified, publishers regularly barrage television producers with catalogs and brochures to promote the use of their music. Where they have not done so, there appears to be no reason why CBS could not simply request the catalogs of the major publishers. Finally, it should be stressed that in the vast majority of cases, the copyright owner listed on the sheet music or phonograph record is still the owner of the composition in question." (Slip Opinion at 49-50). In sum, then, the decision of the Court confirms the statements of the copyright proprietors that there are no problems in obtaining synchronization licenses. If public broadcasting's support for a compulsory license arises from concern over "burdensome clearance requirements," that concern is unfounded. The machinery has been there all along-the public broadcasters have chosen, over the past ten years, to ignore it. We again urge the Subcommittee to reject the Mathias Amendment, and respectfully request that this letter (without the lengthy attachment which would unduly burden the record) be made part of the record. Finally, on behalf of the members of ASCAP, I again thank you for the opportunity to appear and to testify and for the courtesy extended to me by you and the other members of the Subcommittee. Sincerely, BERNARD KORMAN, General Counsel. Hon. HERBERT FUCHS, WEISMAN, CELLER, SPETT, MODLIN & WERTHEIMER, Counsel, House Subcommittee on Courts, Civil Liberties, and Administration of Justice, Washington, D.C. DEAR HERBERT: Pursuant to our telephone conversation today, I am enclosing copies of the Mathias and Bayh amendments and a letter, dated November 27, 1974, from Senator McClellan requesting comment on the two amendments. I also enclose copies of the responses filed with the Senate Copyright Subcommittee by ASCAP, the Authors League of America and the National Music Publishers Association. President, American Society of Composers, Authors, and Publishers, New York, N.Y. DEAR MR. ADAMS: During the consideration this year in the United States Senate of S. 1361, legislation for the general revision of the copyright law, Senator Charles McC. Mathias, Jr. introduced Senate Amendment No. 1815 relating to the public broadcast of certain copyrighted works, and Senator Birch Bayh introduced Senate Amendment No. 1831 relating to the making of copies of certain transmission programs. Copies of these Amendments are enclosed. Neither amendment was called up by its sponsor during the Floor consideration of S. 1361, however, it is anticipated that the issues presented by these amendments will be considered during the further processing of copyright legislation in the Senate early in 1975. It would assist the Senate in the consideration of these amendments to receive written statements on behalf of interested parties. In order to be of assistance to the Subcommittee on Patents, Trademarks and Copyrights, such statements should be submitted not later than January 15, 1975. It is requested that the Subcommittee be supplied with 20 copies of any submission, to be mailed to the Subcommittee, Room 349-A Russell Senate Office Building, Washington, D.C. 20510. With kind regards, I am. JOHN L. MCCLELLAN. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, Hon. JOHN L. MCCLELLAN, DEAR MR. CHAIRMAN: The American Society of Composers, Authors and Publishers (ASCAP) submits this statement in accordance with your letter of November 27, 1974, inviting comments on the proposed amendments introduced by Senator Mathias (Senate Amendment No. 1815) and Senator Bayh (Senate Amendment No. 1831) to S. 1361 for the general revision of the copyright law. We believe neither amendment is in the interest of the American public or the creators of American music, and so oppose both of them. Senator Mathias' amendment would deny to authors the right to negotiate with public broadcasters for reasonable terms on which their nondramatic literary and musical works, as well as pictorial, graphic, and sculptural works, would be made available for performance or display over public television and radio stations upon payment of a compulsory license fee to be set by a Copyright Royalty Tribunal. While we are pleased that Senator Mathias agrees with the draftsmen of the general revision legislation that broadcasters should not receive an unjustified "free ride" at the expense of American creators, we do not believe there is any justification for making public broadcasting subject to compulsory licensing. Public broadcasters pay for the staffs they employ, the talent they hire, and the services and property they use, in amounts fixed in the open market place. The wages they pay their employees are not fixed by Congress, but rather are negotiated with the employees or their representatives. If they wish to use the property of copyright owners, the fees for those uses should similarly be negotiated. It has always been the American tradition to allow parties interested in the use of a product or service to bargain freely for such use, and that should be the case here. The special status of public broadcasters in the context of American radio and television has always been recognized by copyright owners. There is no doubt that, in context of free negotiations between the copyright proprietors on one hand and the public broadcasters on the other, reasonable license fees for the use of copyrighted works could be arrived at. Such reasonable fees have been negotiated with commercial broadcasters for over 30 years. There is therefore no reason or necessity for the requirement of a statutory compulsory license fee. We urge the Committee to pass the revision bill in its original form, without Senator Mathias' amendment. Senator Bayh's amendment would permit unlimited recordings of instructional programs which make uncompensated use of copyrighted works. We also oppose this amendment. Section 110 (2) of the revision bill would permit uncompensated performances of copyrighted works by broadcast where such broadcasts are made for reception in classrooms, by disabled persons, or by government employees. We have not objected to this provision. Section 112(b) of the copyright revision bill, however, especially in the form proposed by Senator Bayh's amendment, would give this exemption vastly extended impact by allowing unlimited free recording of such broadcasts and distribution of copies to other broadcasters. After years of hearings and discussions concerning copyright revision, the revision bill as drawn by the House Judiciary Committee permitted one recording of such a program, for transmission purposes, to be kept for one year, with another copy to be kept for archival purposes only. It was felt, quite reasonably, that instructional broadcasters who wish to reach wider audiences should make some arrangement with the copyright proprietors. However, these limitations were removed by a floor amendment adopted without debate. As originally drafted, your committee's bill allowed twelve recordings for use over a five-year period. While this was a significant extension of the original provision drawn by the House, the copyright proprietors did not object, feeling that an objection would unduly delay the passage of revision legislation. Your committee expanded this recording privilege in its markup of the bill to thirty copies over a seven-year period of use, an extension which we felt was not required. But Senator Bayh's amendment would remove any limitation entirely, unfairly depriving the copyright proprietor of any compensation for his work. The instructional broadcasters pays those whom he employs in the production of his programs-why should he not pay the copyright proprietor? Your committee's draft bill has already given the instructional broadcaster a significant privilege of free recording. Surely, if the instructional program wishes to make even greater use of copyrighted works. the producer or broadcaster of such program should pay the copyright proprietor of that use. Further, it was the intent of Section 112(b) that the use of such recordings be limited to those circumstances which permitted such broadcasts under Section 110 (2)-the broadcasts of instructional programs for reception in classrooms, by disabled persons, or by government employees. As reported out of your committee, Section 112(b) made this clear, by allowing such recordings to be made by "a governmental body or other nonprofit organization entitled to transmit a performance or display of a work. under section 110(2) or under the limitations on exclusive rights in sound recordings specified by section 114(a)” (emphasis added). Senator Bayh's amendment removes this restriction, and allows the distribution of such recordings to any other governmental bodies or nonprofit organizations, whether they qualify under Section 110 (2) or not. The amendment thus might allow a far greater free use of copyrighted works than the draftsmen of S. 1361 intended. We did not object to a limited exemption, as set forth in the original draft of S. 1361, in the hope that this would speed general revision and thus be in the interest of all concerned. But we cannot accept the blanket exemption given by Senator Bayh's amendment, and so oppose its adoption. |