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 him under Sec. (a) (3) (B) to deduct his own administrative costs before distributing 'them. In short, continuing and cooperative efforts by both public broadcasters and copyright proprietors will, as your Committee Report originally suggested, resolve any remaining impediments to speedy clearance and licensing; and this country's music publishers are offering and have always offered such cooperation. "... [I]f better clearance arrangements can be arrived at voluntarily," said Senator Mathias offering his Amendment, "the compulsory license requirements need not be preclusive." (Cong. Rec. 9-9-74, p. S16166) Although the Senator's informants have substantially exaggerated the complexities and disparities of the present clearance structure, we are certain that music copyright holders and their trade associations and licensing agencies will work with public broadcast representatives in any way necessary to improve the efficiency of existing arrangements 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 burdens. It is not needed, justified or desirable, .and should be rejected by your Commtitee. Sincerely, LEONARD FEIST, Executive Vice President. NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC., Hon. JOHN L. MCCLELLAN, DEAR SENATOR MCCLELLAN : The National Music Publishers Association is grateful for the opportunity presented by your letter of November 27, 1974 to comment on the amendment (No. 1831) introduced last year by Senator Birch Bayh during the consideration of S. 1361, the general Copyright Revision Bill. In the interest of expediting consideration of the general bill, the subject of "ephemeral recordings" has not previously been discussed by our representatives; but the Bayh Amendment is the culmination of a growing threat to copyright holders which deserves attention. "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 points 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. Rep. 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 copies 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. 90-83. p. 60). 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. Although we made no comment on this provision for the reasons stated above, 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 far 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 “reason able limits" in the very same context. (H. Rept. 90-83, pp. 62-63) 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.) 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 no objection to an amendment to the present statute permitting instructional telecasters to faciliate 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 an instructional telecast who are to be uncompensated for their contribution. We do not believe that the Congress will knowingly agree to allow one substantial class of users to expropriate without compensation the property rights of the nation's creative talent. Sincerely, LEONARD FEIST. THE AUTHORS LEAGUE OF AMERICA, INC., Re Senator Mathias' Amendment-No. 1815 Chairman, Subcommitee on Patents, Trademarks and Copyrights, DEAR CHAIRMAN MCCLELLAN: The Authors League of America, the national society of professional writers and dramatists, appreciates your invitation to submit comments on Senator Mathias' Amendment to the Copyright Revision Bill, to permit unauthorized uses of certain copyrighted works by Public Broadcasters. The Authors League strongly opposes this Amendment which would inflict serious injury on authors. Purpose of the Amendment The Amendment would allow public broadcasters to expropriate copyrighted books and other non-dramatic literary works for incorporating in television and radio programs, under a compulsory licensing system. It would permit broadcasters and producers to use these works without their authors' permission and despite their objections. Compensation for these unauthorized uses would be fixed by a "Copyright Royalty Tribunal." Summary of Objections The Authors League opposes the Amendment because: (i) It destroys the author's fundamental right to determine when, by whom. and under what conditions his book or other work may be used; and thus prevents him from protecting his work's integrity and his reputation (discussed at p. 3); and (ii) It would inflict great economic injury on authors: (a) by preventing them from licensing uses of their works by motion picture companies and nonsubsidized broadcasters and producers and (b) by denying them adequate compensation for public broadcasting uses of their works (discussed at pp. 3-4); and (iii) It permits public broadcasting organizations, producers and officials to exploit, for their benefit and economic advantage, the author's name, reputation and work. But public broadcasters are no more entitled to thus expropriate an author's book than to conscript directors, actors or announcers, or equipment and supplies, at salaries or prices fixed by "compulsory licensing." (pp. 4-5) Authors Will Be The Victims Most established authors of novels, biographies, histories and other works on subjects of general interest such as economics, sociology or the arts own the rights to use their works in television, radio and motion pictures, and receive the income from these uses. Their publishers neither control these rights nor receive any of the proceeds from them. Consequently it is thse authors, and not their publishers, who will be injured by the Amendment. Copyright Does Not Prevent Public Broadcasting from Doing its Job Nothing in the present Copyright Act or the Copyright Revision Bill passed by the Senate last fall prevents any public broadcaster from producing or broadcasting a program on the same subject matter that is dealt with in a copyrighted book. If a public broadcaster wishes to do a documentary on General Stillwell's career, it is not barred from doing so by Barbara Tuchman's copyright on her biography of the general. The public broadcaster is free to use the same sources, narrate the same facts and describe the same events reported in the copyrighted book. All that the copyright does is prohibit the public broadcaster (or anyone else) from substantially copying the author's expression of the material rather than independently writing its own script for its program. In addition, public broadcasters have the privilege of quoting and borrowing material from the book under the doctrine of fair use. Thus, the Amendment is not required to permit the production of public broadcasting programs on any subject. Its real effect will be to allow broadcasters and producers to expropriate an author's book on any subject rather than do their own creative writing; to also expropriate his name and reputation; and to injure him severely in the process. And in many instances, the Amendment will substitute expropriation and low "fixed prices" for voluntary negotiations with authors. Many writers would be willing to license the use of their books by public broadcasters provided reasonable compensation is paid and acceptable conditions are negotiated. But compulsory licensing is totally unjustified where the author declines to license uses of his work by public broadcasters. As indicated below, such a license may cause him great financial injury. Or he may decline a license to protect his book from being mutilated or his reputation from being damaged. His decision does not prevent the broadcaster from producing a program on the subject dealt with in his book. Nor does it prevent a broadcaster from negotiating voluntary licenses with other authors. And there are plenty to choose from-more than 30,000 books are published in this country each year plus many thousands more than this abroad. Injury to the Author's Reputation and Work The proposed Amendment would destroy the author's fundamental right to determine when, by whom, and under what conditions his copyrighted book may be adapted and used in a medium that reaches millions of people-publíc television. The destruction of this right would prevent the author from protecting the integrity of his work against mutilation or an inferior adaptation, and from protecting his reputation against the serious injury a misuse of his work would produce. A book may not be suitable for television, or for the type of program for which it could be expropriated under the Amendment. The author may believe that the public broadcaster who elects to expropriate his book under the Amendment is an incompetent who will destroy his work's integrity and his reputation by an inept adaptation and production. The Amendment would deny the author the protection he has under the Revision Bill, and under the present law the right to refuse to license that broadcaster to use and mangle-his work. The Economic Injury to Authors The Amendment would prevent authors from licensing the use of their works in motion pictures and television programs produced by the networks, commercial stations and other non-subsidized producers. Once a book has been adapted for a public broadcasting program and shown to millions of viewers, commercial broadcasters or film companies will not invest large sums to produce a second version. Moreover, the threat that a subsidized public broadcaster can expropriate a book at any time will foreclose commercial producers from acquiring rights in it; for they would not risk the heavy expenditures of a television program or film to be faced with a competing "public" version produced without the author's consent under the expropriation machinery of the Amendment. If adopted, it will inflict enormous injury on authors, depriving them of an important source of income. Moreover, the compulsory royalty plan to be established by the Amendment would deprive authors of reasonable compensation for the use of their books on television and radio. A royalty copyright tribunal is not capable of establishing such compensation for this major use of literary works. The economic situation is radically different from that involved in establishing rates for "small" performances of music on television or radio, or recording fees for phonograph records. The performance of music is, and can be, licensed on a "non-exclusive” basis, since one performance or recording does not preclude other performances or recordings. The public will listen to dozens or hundreds of different renditions of the same song over the years. But one television program based on a book usually is all the market can absorb. Moreover, the fee for a three-minute recording or performance of any two songs is not likely to be very different in a free market. But the value of rights to produce a motion picture or television program based on two different books can vary by thousands, even hundreds of thousands, of dollars. The film or television rights of one book will be worth far more than the rights in another work. The compulsory license/royalty tribunal plan in the Amendment could not establish reasonable compensation for the rights in individual books; it would lower the author's compensation for television uses of his book to the lowest common denominator, causing vast injury. Public Television Organizations and Officials Should Not Be Granted This Power of Expropriation It should be emphasized that public television is not an eleemosynary institution. Officials of public television stations, producers of public television programs, directors, actors, announcers, and technicians are paid for their work. Officials and producers receive substantial salaries. Unions of announcers, actors, and technicians bargain collectively for reasonable compensation, and strike when their demands are rejected. No statute permits the public broadcaster to expropriate the services of these people at wages fixed by a "tribunal”. On the average, those working in the vineyards of public television are much better compensated for their efforts than are the authors whose books would be expropriated under the Amendment. It should also be emphasized that public broadcasters and producers spend large sums to create many of their programs, which they then copyright and exploit as property under the Copyright Act. Public broadcasting programming has been financed by millions in grants from the federal government and the foundations, and by large payments from EXXON, MOBIL, XEROX and other giant corporate advertisers. The so-called "grants" from these corporations are indeed payments for the institutional advertising they obtain on the programs and in associated newspaper and magazine advertisements for the programs. The credits mentioning these corporations on the television programs are no different than the original format of radio advertising, when the corporate sponsor simply identified itself, and did not include any "selling" message to mar the good will it obtained by providing the money to make the program possible. Public broadcasting officials, producers and others in the establishment will benefit from the power to expropriate authors' works which would be placed in their hands by the Amendment. The success of their programs has a direct effect on their future compensation and careers. The more successful their programs, the more likely they are to command better salaries, obtain, new assignments and receive larger grants from the government, foundations, corporate Sponsors and listener subscriptions. They have a definite stake and motive in improving their programs by using the works, names and reputations of authors of books and other non-dramatic literary works who would be the victims of the Amendment. As we have noted, the compulsory licensing of television rights in books would permit public broadcasters and producers to appropriate wholesale the author's work, rather than do their own creative writing; and to seize the work at prices far lower than its reasonable value. Moreover, the expropriation machinery of the Amendment gives the broadcaster the opportunity to present the program as based on the work of the author. This permits public broadcasters and producers to trade on the name and reputation of a prominent author or book, to obtain greater recognition, publicity and audiences than they would receive if they created an original program. Public broadcasters and producers are not permitted to expropriate copyrighted books or other literary works under the Revision Bill. They are not permitted to expropriate these works, or the author's name or reputation, under the present copyright law (The adaptation of a book for a program broadcast on public television stations would infringe the author's rights under Sec. 1 of the current Act: to dramatize it [1(b)], to make a transcription or recording [1(c)], to make a copy [1(a)], to present a non-dramatic version for profit [1(c)], to publicly perform a dramatic version [1(d)].) The Authors League respectfully urges the Judiciary Committee to reject the Amendment, for the reasons stated above. Respectfully yours, IRWIN KARP, Counsel. THE AUTHORS LEAGUE OF AMERICA, INC., Re Senator Bayh's Amendment-No. 1831 Chairman, Subcommittee on Patents, Trademarks and Copyrights, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR CHAIRMAN MCCLELLAN: The Authors League of America appreciates your invitation to submit comments on Senator Bayh's Amendment to the Copyright Revision Bill. For the reasons discussed below, the Authors League strongly opposed the Amendment. The Amendment would permit unlimited recordings of instructional programs which make uncompensated use of copyrighted books and music. The Authors League urges its rejection because: (i) it would inflict heavy injury on American authors and publishers by vastly increasing the overly-broad privileges of broadcasting copyrighted books and music without compensation, which will be permitted under Sections 110 and 112; and (ii) its ambiguous language may, inadvertently, permit recordings to be used for broadcasts which are not exempt under Sec. 110. At the outset, it should be noted that instructional broadcasting is not hindered by the Revision Bill. In addition to the broad privileges granted by Sections 110 and 112, it has considerable free access to copyrighted materials under the doctrine of fair use. Moreover, much of its programing is created by it, or for it— often by salaried employees-and is copyrighted by the instructional broadcasters and program producers. Finally, it must be emphasized that instructional broadcasting is not an eleemosynary enterprise. Teachers, actors and announcers, directors, producers and executives are paid for their services in producing, recording and broadcasting the programs embodying an author's copyright book or music. Their unions strike for higher wages. They will probably even receive "royalties" for some repeat uses of the recordings and broadcasts which are made under the privilege of expropriation granted in Sections 110 and 112. Nonetheless, some educational broadcasters and program producers demand that Congress give them the unlimited power to expropriate authors' literary property, without compensation, for their enterprises-no matter how substantial the use, no matter how vast the audience that is reached. (i) The Amendment Permits Wholesale Expropriation of Authors' Works by Producers of Educational Programs Sec. 110 of the Revision Bill would permit the broadcasting of copyrighted literary and musical works in instructional programs without compensation to authors—when transmitted for reception in classrooms, or by disabled persons or government employees. The adverse impact of these free uses on authors is somewhat limited in the case of "live" broadcasts, since these reach limited audiences and are "ephemeral". However, Sec. 112(b) would greatly expand the scope and' damaging effect of the privilege by allowing the recording of these programs, and the distribution of copies to other broadcasters. |