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enjoy the kind of music which has contributed to and hopefully will continue to contribute to the moral fiber of our great country.

Mr. KASTENMEIER. Thank you for your testimony. If you will wait for the following witnesses to appear, we will invite you back. Now the Chair

would like to call Mr. Thomas Zimmerman, first vice president, National Religious Broadcasters, Inc., accompanied by Dr. Ben L. Armstrong, executive secretary and John H. Midlen, counsel. TESTIMONY OF THOMAS F. ZIMMERMAN, FIRST VICE PRESIDENT,

NATIONAL RELIGIOUS BROADCASTERS, INC., ACCOMPANIED BY DR. BEN L. ARMSTRONG, EXECUTIVE SECRETARY, AND JOHN H. MIDLEN, COUNSEL

Dr. ZIMMERMAN. Yes, Mr. Chairman, I have to my left Dr. Armstrong, executive secretary of the National Religious Broadcasters, and to my right, Mr. John H. Midlen, counsel for the National Religous Broadcasters in the United States.

My name is Thomas F. Zimmerman. I am an ordained minister and general superintendent of Assemblies of God, which has nearly 9,000 churches in the United States. We operate a sizable publishing house, which has a significant sacred department. We also produce religious programs for presentation on radio and television. I present this testimony as first vice president of National Religious Broadcasters, concerning section 112(c) of H.R. 2223.

National Religious Broadcasters has approximately 650 members, distributed among the 50 States and territories. The membership consists primarily of broadcast station licensees and their associates, performing artists and other related persons in broadcasting, and religious program producers for broadcast stations. We estimate that there are 600 organizations, including those who are not NRB members, that produce religious programs on a nonprofit basis for a presentation on a number of broadcast stations. And there are many pastors, priests, and rabbis having their individual programs on local broadcast outlets.

Well-known religious programs utilizing religious music and which are vitally concerned that there be enacted the present provisions of section 112(c) of H.R. 2223, include Billy Graham's Hour of Decision, Eternal Light, Jewish Community Hour, The Hour of St. Francis, Sacred Heart Hour, The Lutheran Hour, Back to the Bible, Revival Time, and many others. Generally, these well-known programs are produced either on tapes or disk for distribution by mail of one copy only to each broadcast station carrying the program. The programs then are broadcast at the time and date agreed upon between the station and program producer. None of these programs is produced for a profit by the religious program producers. Instead, the religious program producer usually pays the broadcast station to carry the program or furnishes the religious program without charge to the station.

The broadcast stations customarily have performance rights licenses covering the religious music with ASCAP, BMI, and SESAC. Thus, religious music copyright owners do receive compensation for religious music broadcasts. NRB supports the rights of the copyright owners

to compensation for performances of religious music under these performance rights licenses, with the broadcast outlets. NRB also supports the rights of the copyright owners to compensation for mechanical reproductions of religious music for sale or other profit.

Presently, there is confusion and contradiction with respect to claims for mechanical reproduction fees for musical works of a religious nature included in religious programs produced by nonprofit organizations for broadcasting purposes. Only SESAC, to our knowledge, has pressured for such payments. We have no reports of any problems in respect to either ASCAP or BMI, and presumably they could arrange to handle mechanical rights.

We know of no court decision directly on the point. Any law requiring or leaving open the possibility that mechanical reproduction fees be paid for such use could make this music too expensive in the average religious broadcast, since the financial resources of these nonprofit program producers are not adequate to accommodate such costs, according to two NRB studies. These studies were in 1973 and 1975, and were among NRB members that reflected that the affect to the potential of unlimited mechanical reproduction fees predominately ranged from (1) using only religious music in the public domain; (2) substantial curtailment of the number of broadcast outlets used or (3) even total discontinuance of the religious program.

Responsible religious broadcasting is a nonprofit activity, constituting a ministry no less viable than the worship services of the synagogue or church.

Essentially, the taping or recording of programs not for profit and for single release or on occasions, a repeat release, simply is a method of producing such programs for convenience. To present the program live, utilizing telephone lines to individual broadcast stations would undeniably exempt from any claim for mechanical reproduction fees. But this procedure is not feasible, because of prohibitive costs and impracticability of using telephone lines.

Copyright owners receive a valuable service from religious program producers by the use of their music, thus gaining a broad exposure through radio and television presentation. Section 112(c) is not an industry innovation, but simply codifies a generally existing situation. There is not now any established right for mechanical reproduction fees for reproduction within the purpose of sale or compensation.

Nor can these religious music copyright owners really complain that the proposed section 112(c) in the copyright bill deprives them of any existing income. Only a small handful of religious program producers, to the best of our knowledge, succumb to SESAC's pressures for payment for mechanical reproductions in nonprofit, religious programs for broadcasting, and some of these having since terminated such payments. In short, there can be no claims for loss of income that they never really had.

Copyright legislation has rightly sought to protect copyright holders from mechanical reproduction of their literary property by those who do so for a profit, whether large or small. Religious program producers, however, clearly are not doing so for a profit, but for the purpose of using religious music for religious inspiration. Copyright owners can make no claim

that the recordings are offered for sale, since the tapes or disks for religious broadcasts are not sold.

It is the reverse situation where the program producer pays the broadcast station to carry the program, or furnishing it without charge.

When a recorded program is broadcast, the tape is returned or the disk destroyed. The tape is then erased so that it may be utilized for subsequent broadcasts.

The present copyright exemption language of paragraph 112(c) is carefully designed to cover onlý mechanical reproductions with limitations for nonprofit religious programs. The responsible religious programers meet these criteria and their position clearly justifies the proposed exemption.

At the 33d Annual Convention of the National Association of Evangelicals, April 10, 1975, which numbers among its membership more than 39,000 churches of various denominations in the United States, they adopted a resolution supporting the provisions in section 112(c) of H.R. 2223. This resolution is attached to my written statement.

The proposed provisions of section 112(c) of H.R. 2223 are nonsectarian and beneficial to Protestants, Catholics, and Jewish nonprofit religious program producers. We strongly urge the enactment in its present form of section 112(c) so that there will be encouraged the needed religious programing for the moral tone and well-being of our Nation.

Thank you, Mr. Chairman.

Mr. KASTENMEIER. Thank you, Mr. Zimmerman. For the record, the resolution of the National Association of Evangelicals will be made a part of the record

Mr. MIDLEN. The full text of the written statement of the National Religious Broadcasters, I ask be included too, Mr. Chairman.

Mr. KASTENMEIER. Yes, you are talking about the full text? Mr. MIDLEN. Yes, the full text, the written testimony. [The prepared statement of Dr. Thomas F. Zimmerman follows:]

STATEMENT OF REV. DR. THOMAS F. ZIMMERMAN FOR NATIONAL RELIGIOUS

BROADCASTERS

INTRODUCTION My name is Thomas F. Zimmerman. I am an ordained minister, and General Superintendent of Assemblies of God which has nearly 9,000 churches, a sacred music publishing company, and produces religious programs for presentation on radio and television stations. I present this testimony as First Vice President of National Religious Broadcasters concerning Section 112(c) of H.R. 2223.

National Religious Broadcasters (NRB) is a non-profit association formed in 1944 in order to contribute to the improvement of religious broadcasts, better serve the public interest, and more effectively minister to the spiritual welfare of this nation. The association has approximately 650 member organizations distributed among the 50 states of the United States, the District of Columbia, Puerto Rico, and Guam. The membership of National Religious Broadcasters consists of (1) broadcast station licensees and their associates, (2) performing artists and others related to broadcasting, and (3) those producing religious programs for broadcast stations. It is estimated there are more than 600 organizations, including those who are not NRB members, that produce religious programs on a non-profit basis for presentation on a number of broadcast stations. Additionally, it is conservatively estimated there are more than 1500 pastors, priests and rabbis having individual programs on local broadcast outlets.

Among the more widely known religious programs produced by NRB members for broadcasting are Billy Graham's Hour of Decision, The Lutheran Hour, The Baptist Hour, Methodist Hour, Back to the Bible (daily), Light and Life Hour (Free Methodist), Revivaltime (Assemblies of God), Words of Hope (Reformed

Church in America), Vespers (American Lutheran Church), Morning Chapel Hour (daily), Herald of Truth, and many, many others. Other religious programs utilizing religious music and having extensive broadcast dissemination include the Hour of St. Francis, Ave Maria Hour, Sacred Heart Hour, The Protestant Hour, Voice of Prophecy (Seventh Day Adventist), Lamp Unto My Feet (ecumenical), Jewish Dimension, The Eternal Light, and Jewish Community Hour.

These and practically all religious program producers are vitally concerned that there be enacted the present provisions of Section 112(c) of the pending H.R. 2223 for general revision of the Copyright Law clarifying the right of non-profit organizations under certain circumstances to make for distribution to licensed transmitting organizations phonorecordings of religious music for usage in religious programs.

GENERAL DESCRIPTION OF RELIGIOUS PROGRAMS

The religious music used in religious programs creates an appropriate devotional mood as well as serves as a musical bridge between the spoken words with the degree of usage of religious music varying from program to program. The format for the various religious programs differs, of course, in degree, but the production and distribution principles are relatively uniform. The programs are produced either on tape or disc for distribution by mail of one copy only to each broadcast station carrying the program. The programs then are broadcast at the time and day agreed upon between the station and the program producer. None of these programs is produced for profit by the religious program producers. In fact, the religious program producer usually pays the broadcast station to carry the program or furnishes the religious program without charge to the broadcast outlet. The broadcast stations customarily have performance rights licenses covering this religious music with ASCAP, BMI, and SESAC. NRB supports the rights of the copyright owners to compensation for performances of religious music under these performance rights licenses with the broadcast outlets. NRB also supports the rights of the copyright owners to compensation for mechanical reproductions of religious music made for sale or other profit.

THE NEED FOR THE MECHANICAL REPRODUCTION EXEMPTION FOR RELIGIOUS PROGRAMS

There presently exists confusion and contradiction with respect to claims for mechanical reproduction fees for musical works of a religious nature included in religious programs produced by non-profit organizations for broadcasting purposes. Religious program producers have reported no problems in this respect with ASCAP or BMI. Only SESAC, according to frequent reports, has pressured certain of the religious program producers to make such payments. We know of no court decision directly on the point.

Primarily sacred music is written and published for the purpose of spiritual ministry and religious inspiration. It is incorporated into religious broadcasts wholly apart from any intention or possibility of financial gain.

Any law requiring or leaving open the possibility that mechanical reproduction fees be paid for such use could make this music too expensive in the average religious broadcast since the financial resources of these program producers are not adequate to accommodate such cost as documented by NRB studies. In these studies, National Religious Broadcasters conducted Questionnaire Surveys among its membership in the Spring of 1973 and in the summer of 1975. The effect of the potential of unlimited mechanical reproduction fees among these responding organizations preponderantly ranged from (1) using only religious music in the public domain with such disadvantage for the listening or viewing audience to (2) substantial curtailment of the number of broadcast outlets used or (3) even total discontinuance of the religious program. Such a result would be a loss to all concerned, the composer, publisher, broadcaster, and most importantly the listening American public--since it could place a substantial part of modern religious music financially out of reach so far as religious broadcasting through use of mechanical reproduction means is concerned.

JUSTIFICATION FOR THE PROPOSED EXEMPTION Responsible religious broadcasting is a non-profit activity, carried on as a ministry no less viable than the worship services of a church or a synagogue. Essentially the taping or recording of programs not for profit and for a single

release (or on occasions a repeat release) is simply a means of producing such programs for convenience. It obviates the necessity of releasing the program "live" utilizing the more expensive and totally impractical method of telephone lines from the program producer to the individual broadcast stations, a procedure which would be undeniably exempt from any claim for mechanical reproduction fees.

It is common knowledge that religious program producers render a valuable service to copyright owners by the very use of their music for such music is given exceedingly broad exposure through radio and television presentations. Many, if not most, programs featuring religious music have accompanying ready-made information sheets for the purpose of acquainting listeners requesting details concerning such music including the author, composer, publisher, and possible location where the music as records or sheet music may be purchased. These informational sheets are of great assistance because of the high incidence of requests for the data to the clear advantage of the copyright owner. In sum, religious program producers serve to promote religious music to the benefit of the copyright owners of such music.

The proposed mechanical reproduction exemption would cause no measurable injury to religious music copyright owners, their publishers or agents as it simply codifies a generally existing situation. The creators of religious music derive their income primarily from publishing and selling hymnals, gospel songbooks, sheet music, and records. This is supplemented by income from performing and synchronization rights licenses.

Moreover, only a small percentage of the repertoire of religious music is ever broadcast. There is a tendency to emphasize the music that is or has been popular so that a majority of the songs in hymnals, gospel songbooks, and sheet music are never presented in religious programs on radio or television stations.

Nor can these religious music copyright owners really complain that the proposed Section 112(c) in the Copyright Bill deprives them of existing income. To the best of our knowledge only a small handful of religious program producers succumbed to SESAC's pressures for payment for mechanical reproductions in non-profit religious programs for broadcasting, and some of those have since terminated such payments. In short, the religious music copyright owners and their associates, who have been financially successful without mechanical reproduction income from non-profit religious programs, can make no claim for loss of income that they never really had.

In addition, mechanical reproduction fees for religious music in programs produced by non-profit organizations for broadcast stations could present substantial practical problems. Much of the music is not listed in catalogues of copyright owners so that there would be added the burden of seeking to ascertain to whom any such payments would be made.

Copyright legislation has rightly sought to protect copyright holders from mechanical reproduction of their literary property by those who do so for profitwhether large or small. Religious program producers, however, clearly are not doing so for profit, but for the purpose of using religious music for religious inspiration.

That the use made of religious music in a conventional religious broadcast is not for profit is demonstrated by the fact that when the recorded program has been broadcast, the tape is returned (or the disc destroyed) to the program producer. Its contents then are erased so that the tape may be utilized for subsequent broadcasts. Copyright owners can make no claim that the recordings are offered for sale since the tapes for religious broadcasts are not sold. In fact, the reverse takes place with the program producer paying the broadcast station to carry the program, or furnishing it without charge.

The present copyright exemption language of Paragraph 112(c) is carefully designed to cover only mechanical reproductions with limitations for non-profit religious programming. The program producer must be (1) a non-profit organization (or governmental body), (2) only one copy of the program can be distributed to the broadcast or transmitting outlet, (3) the musical work is of a religious nature, (4) the program producer receives no direct or indirect com. pensation for making or distributing such tape or recording, (5) there is only a single transmission (or in some instances a repeat transmission) to the public by the broadcast station or other transmitting organization having a license therefor, and (6) except for one copy reserved for archival purposes the tapes or records are destroyed within a year from the date of the public transmission. The responsible religious programmers meet these criteria, and their position clearly justifies the proposed exemption.

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