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copies and their use over a period of 7 years is too broad and that a better measure would have been the prior measure of 12 copies over a period of 5 years that was in your prior House bill and in the prior Senate bill.
Let me try to explain the Bayh amendment. I note this morning that it causes considerable confusion, and it causes me confusion at times, too. You have to read subsection 112(b), which is supplanted by the Bayh amendment, together with section 110(2). Section 110 is headed "Limitations on Exclusive Rights, Exemption of Certain Performances and Displays." The first subdivision exempts from copyright control the use of material in face-to-face teaching activities.
In subdivision (2), to which reference has been made in section 112 (b), this supplements the face-to-face classroom teaching provision with a further enlargement of the teaching right to broadcast instructional material provided the broadcast is a regular part of systematic instructional activities and the performance is directly related to the classroom study and the transmission is made primarily to the classroom or for disabled people who can't attend the classroom.
This is the subject of 112(b) (2), which provides that with respect to a transmission that may be made under the instructional broadcasting exemption of 110, the transmitting organization may make no more than 30 copies of the program for use over a period of 7 years except that a copy might be kept thereafter for archival purposes. The Bayh amendment would eliminate all such restrictions. Specifically, what it would do would be to eliminate the 30-copy_restriction, thus permitting the making of an unlimited number of copies. It would eliminate the requirement of the period of use, thus permitting the copies and copies of copies and so on to be used and reused over an indefinite period.
Moreover, it would permit the distribution of these records or audiovisual tapes or whatever you would want to call them, it would permit their distribution to an unlimited number of other nonprofit organizations and would eliminate the restriction that the distributees make use of these recordings subject to the systematic instructional requirements and limitations of section 110.
We think this is a gross and unfair and unwise statute. We think that the issue is not whether this kind of recording of instructional programs should be permitted. We think the issue is whether it should be permitted, programs which contain material copyrighted by others.
If the instructional organizations create their own programs and use their own work which they themselves might copyright or use works on which they get permission from the copyright owner then, of course, within that permission they would have the right to make recordings. Mr. Drinan asked this morning who opposes the amendments.
Besides the people at this table, your committee in 1967 opposed it, the Senate committee opposed it, Ms. Ringer, in her letter of January 31 of this year to Senator McClellan, said: "I am also unable to support the Bayh amendment."
The revision bill provides an exemption to make 30 copies. I feel that some limitation is necessary and 30 copies should be sufficient. It is extremely difficult to insure that unauthorized copies are not made. We will be handing up copies of this letter.
[The letter referred to follows:]
Hon. JOHN L. MCCLELLAN,
Committee on the Judiciary, Washington, D.C.
DEAR SENATOR MCCLELLAN: This is in reference to your letter of September 22, 1974 requesting the views of the Copyright Office on two amendments to the Copyright Revision Bill proposed separately by Senators Mathias and Bayh in the 93rd Congress, which you anticipate will be raised again during the consideration of S. 22.
Senator Mathias' proposal, identified as Senate Amendment No. 1815, would have created a compulsory license to use copyrighted nondramatic literary and musical works, sound recordings, and pictorial, graphic, and sculptural works in the transmission of educational television or radio programs on noncommercial educational broadcast stations.
Senator Bayh's proposal, identified as Senate Amendment No. 1831, would have granted an unlimited exemption to nonprofit organizations and governmental bodies to make copies of programs they transmit and to distribute the copies for transmission by other similar organizations. The revision bill as it passed the Senate and the pending bill, S. 22, permit such organizations to make 30 copies or phonorecords, subject to the limitation that all copies and phonorecords, with the exception of one for archival purposes, must be destroyed within seven years from the date the program was first transmitted to the public.
I am in full support of the objectives of public educational broadcasting, and I sympathize with the aims of the Mathias and Bayh proposals to facilitate these objectives. Nevertheless, despite the worthy motivations behind these proposals, I feel that they go much too far in creating new and additional exemptions to the legitimate rights of authors and copyright proprietors. The copyright system can fulfill its objective of promoting "the progress of science and the useful arts" only if the exclusive rights of authors to control use of their works and receive payment on a negotiated basis are respected. Reasonable exceptions to these exclusive rights are appropriate and necessary: the revision bill already grants many exceptions for nonprofit organizations and governmental bodies, and on some especially difficult, complex issues it has been necessary to resort to compulsory licensing systems. However, I am becoming increasingly concerned about the implications of widespread compulsory licensing of copyrights, and the dangers that these systems bring to bear on creativity and freedom of expression.
The revision bill provides significant exemptions with respect to performances and displays of certain copyrighted works on educational television for instructional purposes. The fair use provisions of section 107 would also permit limited use of excerpts on public broadcasting stations in general. The concessions regarding instructional television are especially significant. They meet the greatest need of educational television and permit broad access to certain copyrighted works on a basis comparable to educators in a classroom. These exemptions were carefully worked out as a reasonable compromise, and they have my general support.
On the other hand, a broad compulsory license to use certain works on opencircuit educational television such as that proposed by Senator Mathias, is not, in my opinion justified or necessary, and I urge the Judiciary Committee not to adopt it. In presenting non-instructional programs, educational television directly competes for viewers, with commercial television. Uncontrolled use of copyrighted works on educational television, even though subject to some payment as determined by the Copyright Royalty Tribunal, would seriously interfere with the markets for the author's works on commercial television, and would unquestionably decrease their value. Nondramatic literary works are particularly vulnerable since the author's market for performing them is so small. I realize that the budgets of public broadcasting stations are very small, and that the costs of obtaining clearances for small incidental uses of photographs, drawings, and the like can be unjustified, costly, and bothersome, but the broad-brush approach of the Mathias proposal seems unsuitable as a solution to this problem.
Addressing myself directly to the details of the proposal, I believe as a policy matter that the failure to establish any statutory royalty makes the plan unworkable. Unless the parties negotiate the payment, all cases would have to be handled by the Copyright Royalty Tribunal. The burden on the Tribunal
would be staggering. The administrative costs could well exceed the royalties assessed. In my opinion, it would be far more economical to increase the governmental subsidies to public television to pay for programming costs, including permissions.
I am also unable to support the Bayh Amendment. As outlined earlier, the revision bill provides an exemption to make 30 copies or phonorecords, for transmission. I feel that some limitation is essential, and 30 copies should be ample to facilitate the activities of nonprofit organizations. The circulation of as many as 30 copies itself presents some danger to creators, since it is extremely difficult to insure that unauthorized copies are not made. Moreover, I believe a limitation on the period the copies or phonorecords may be held is eminently sound. There is nothing magic about a seven-year cut but, as a matter of principle, if a program is to be rebroadcast after a substantial period following the initial transmission, the authors and proprietors of the copyrighted works embodied in the program should be entitled to renegotiate a new deal, including additional compensation.
In conclusion, I must oppose the broad exemptions from the rights of authors proposed in the Mathias and Bayh amendments. The laudable objectives of public television and radio can be achieved more appropriately, and probably more economically, by direct support through government funding of public broadcasting. Direct subsidies represent recognition of the often-stated but fundamental truth, that creators of copyrighted works are entitled to just rewards from society for their endeavors as surely as administrators, technicians, performers, and other workers engaged in public broadcasting.
BARBARA RINGER, Register of Copyrights.
Mr. DRINAN. Would the gentleman yield for just a moment? I asked that question because I thought that all of you people had amicably worked out all your differences. In this Senate subcommittee where everybody gets along so well, they must have a charm over there.
Mr. LIEB. I should say that our conversations, which we held at the suggestion of the Senate subcommittee, related almost entirely to the Mathias amendment. There were no discussions about this and we had assumed prior to July 2 when we were told by the public broadcasting people that they would not negotiate further with us on an agreement in substitution for Mathias, we only learned after that that they would push for the Bayh amendment as well as the Mathias amendment.
I also want to call your attention to the fact that the Cambridge Research Institute which published the survey of the copyright law for your general assistance in 1973 expresses the opinion that the elimination of the limitations in section 112(b) are unnecessary.
Mr. KASTENMEIER. Thank you, Mr. Lieb.
Mr. KORMAN. Could I recapture 10 seconds of the several minutes? Our statement was rather lengthy and I fear that no one would get to look at the exhibits attached to it. I would like to call the committee's attention to the last exhibit which consists of copies of four letters that NET sent to a music publisher at a time when it was still acquiring synchronization licenses.
I am troubled, Mr. Chairman, because in 1975, my friend, Eric Smith, this morning speaks of the great difficulties of establishing clearance practices. There are simply no such difficulties. I call your attention to this because these letters illustrate how easy it was. On the third page of the first of them, there is a note which I think is particularly interesting.
This is a letter dated March 8, 1965, from NET to the Associated Music Publishers Co. In the letter, they are requesting a synchronization license for NET programs and they don't even identify the compositions.
They say in the note selections 2 and 3 above are as yet unnamed. Mr. Cowell will select them at time of performance. We will let you know at that time. However, overall duration will remain 8 minutes. What does it mean? It is an illustration, Mr. Chairman, of how this business really works.
Clearances are often obtained long after the fact. Commercial television network series may run the full 39 weeks and be off the air before the lawyers have gotten the contracts in shape to be signed. No one is sitting around lurking, as these public television people would suggest, behind bushes with clubs to hit them over the head as soon as their foot slips.
It does not happen at all. They can readily get the permission they
Mr. KASTEN MEIER. I appreciate your referring to these letters.
Mr. LIEB. May I request permission for Mr. Bender to submit a statement and possibly to say a few words?
Mr. KASTEN MEIER. We would be pleased to accept your statement. What do you propose to speak on?
TESTIMONY OF IVAN R. BENDER, ON BEHALF OF THE EDUCATIONAL MEDIA PRODUCERS COUNCIL, AND JON BAUMGARTEN ON BEHALF OF MACMILLAN INC. AND HARCOURT BRACE JOVANOVICH (PUBLISHERS)
Mr. BENDER. I Would like to amplify a statement that was made by Mr. Cohen this morning representing the agency for instructional television. I would like to also ask your permission for us to file a short written statement to further amplify and illustrate what I am going to say.
Mr. KASTENMEIER. Without objection we will receive that statement as I noted earlier. You are recognized for 2 minutes.
Mr. BENDER. Mr. Cohen seemed to represent this message that there is no such thing as an educational audiovisual industry. As a matter of fact, that is not true and I am sure that you realize that several hundreds of educational films and filmstrips are produced every year in this country and the use of those films is designed for schools and other kinds of instructional purposes.
The fact of the matter is as well as the use of these materials in the schools, the new technology, closed circuit television and open circuit television has caused our industry to look into this particular phase of the marketplace much more readily and in fact depend upon it very, very much.
The distribution of 60 millimeter motion pictures in the schools is becoming a much more difficult prospect because of the new technology. If the Mathias and the Bayh amendments together were adopted, the recording and distribution and retransmission privileges under the Bayh amendment, I say would put the television people in a tremendously unfair competitive situation where they would not only have an additional subsidy to create the materials but also be able to distribute those materials for retransmission without the kinds of problems and constraints that the commercial sector does have.
Lastly, I would like to say that many educational television stations actually seek distributors, commercial distributors of their materials.
As a matter of fact in Northern Virginia, the Northern Virginia Educational Television Authority recently contracted with the Encyclopaedia Britannica to produce television shows. They sought permission to use the materials that appear in those programs and were able to grant to us the rights to distribute those materials in the schools.
That is the end of my statement today and I would like to file this further written statement. Thank you very much.
Mr. KASTEN MEIER. Someone mentioned from the questions that we ask you are not to infer positions. Whether or not we necessarily agree with the thrust of the questions we ask, however, sometimes emotions of the questioner betray whether or not the question is put in that fashion.
We were developing the question of whether much of what public broadcasting presents now or whether public broadcasting is a not-forprofit enterprise for purposes of copyright. You cited a case or two. We have not been able, of course, to expand fully on it because it would take a very long time. But is it not the case that some public broadcasting or some public broadcasting facilities are not for profit and some public broadcasting facilities, because of perhaps the way they present their material or for other reasons are for profit?
Is that not the case? Can you not find a pure not-for-profit broadcasting enterprise?
Mr. KORMAN. If there were a public station that did not have any corporate announcement of financing, no sponsorship in any sense, and if anyone were paid at that station for rendering services, if they got the musicians to come in and perform free, I suppose everyone would agree, if no one got paid and the executives also contributed their services, I don't think any argument could be made that there is any profit for anyone.
There a situation did arise years ago that I think is pertinent to the question you raise. There was a radio station, and this case is referred to in our statement, there was a radio station operated by the Eugene Debs Memorial Fund qualified as a nonprofit educational foundation. That station broadcast a copyrighted composition on a sustaining program, a program that had no announcements.
The question was whether that performance was a public performance for profit. The court held that it was. Its reasoning was that that performance and that program was used to attract an audience and the station did have other programs which were commercially sponsored. Even though the ultimate purpose of the foundation was charitable, the fact that this money was brought in resulted in the foundation not running at a deficit was considered to make it for profit.
The music was used in a way to produce money for the foundation and the court felt that the copyright owner was entitled to be paid. If people are making their living as people in public television industry, and I deliberately call them an industry.
They are. They are big. If everyone else is making money out of this industry, then it seems to me that the people who furnish the creative materials that go into the programs should be compensated.
Mr. KARP. May I supplement that by pointing out that we in New York and across the country have long since recognized that the distinction between profit and not for profit often is meaningless.
The Port of New York Authority is not for profit. Read the book "The Power Broker" and you can't help realizing there has been a