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BUPPORTING RESOLUTION OF NATIONAL ASSOCIATION OF EVANGELICALS A major church body, the National Association of Evangelicals—which numbers among its membership more than 39,000 churches of various denominations in the United States-on April 10, 1975 at its Thirty-Third Annual Convention adopted a Resolution supporting the provisions in Section 112(c) of H.R. 2223 and S. 22 relating to religious broadcasting by non-profit organizations and urging that H.R. 2223 and S. 22 be so enacted. This Resolution of the National Association of Evangelicals is attached to this Statement.
The proposed provisions of Section 112(c) will be equally beneficial to Protestant, Catholic and Jewish non-profit religious program producers. Recent public developments have demonstrated that more than ever before there is a need to improve the moral tone and well-being of our nation. Increased religious broadcasting for this purpose is a definite need, and we urge the enactment in its present form of Section 112(c) of H.R. 2223 so that there will be encouraged rather than decreased or eliminated the amount of religious programming for this purpose.
COPYRIGHT LAW AND RELIGIOUS BROADCASTING
Whereas, there was introduced in January, 1975 and are pending before the Senate of the United States a Bill (S. 22) and before the House of Representatives of the United States a Bill (H.R. 2223) for the general revision of the Copyright Law, and
Whereas, there is included in both Copyright Bills a provision (Section 112c) clarifying the right of non-profit organizations under certain circumstances to make for distribution to licensed transmitting organizations phonorecordings of religious music, and
Whereas, payment of copyright fees for mechanical recordings of religious music for transmission over broadcast outlets could impose financial demands that would seriously curtail or possibly eliminate in some instances the presentation of religious programming, and
Whereas, the National Association of Evangelicals on May 2, 1973 at the 31st _Annual Convention at Portland, Oregon adopted a resolution supporting a similar provision in the then pending Copyright Bill, and
Whereas, the National Association of Evangelicals, which numbers among its membership more than 39,000 churches of various denominations in the United States, considers that the state of the nation and of the world requires increased rather than decreased religious broadcasting to improve the moral tone and wellbeing of the nation,
Now, therefore, the National Association of Evangelicals, at this 33rd Annual Convention at Los Angeles, California on April 10, 1975 does hereby reaffirm its support of the provision in Section 112(c) of the pending Copyright Bills in the Senate and House of Representatives of the United States relating to religious broadcasting by non-profit organizations and does hereby urge that such proposed legislation be so enacted. Passed by the Annual Business Session on April 10, 1975.
NATIONAL ASSOCIATION OF EVANGELICALS,
BILLY A, MELVIN, Executive Director. Mr. KASTENMEIER. Mr. Ciancimino, would you please come forward ?
Is the present state of the law that there is liability or that there is not liability? Let me ask you first, Mr. Ciancimino, and any other of the panel of the National Religious Broadcasters can also speak to the question.
Do you construe the present law to provide liability or not?
Mr. CIANCIMINO. Very definitely, it provides for liability. If I might read from section 1(e), which clearly grants to copyright proprietors the exclusive right to "make any form of record in which the thought of an author may be recorded and from which it may be read or reproduced.” This has been interpreted by courts to grant mechanical reproduction rights, as qualified by the compulsory license provisions, to grant it to an author in every area of mechanical reproduction. There is no for-profit limitation that has ever been imposed on the creator for the mechanical reproduction rights which he enjoys under the statute.
Mr. KASTEN JEIER. Then section 112(c) is a change from the present law?
Mr. CIANCIMINO. Very definitely.
Mr. MILEN. I distinctly disagree, Mr. Chairman. All of the cases that we know about in this field relate to reproduction when reproduction is made for profit. And we have already said that we think that a copyright owner is entitled to payment when there is reproduction for profit. The law does not say anything on this point. And certainly the Congress, as we read the legislative history in this matter, did not consider or did not have in mind in any respect the fact that reproduction for nonprofit would entitle a copyright owner to any such compensation, nor do we know of any court case that holds such an entitlement, when reproduction is totally nonprofit.
Mr. CIANCIMINO. Mr. Chairman?
Mr. CIANCIMINO. Need I simply remind the chairman and the members of the subcommittee that groups such as educators, and public broadcast service representatives on this very right, namely, the mechanical production right, have never quarreled with the existence of that right, but they have asked that the right be governed by the Mathias bill. This is the first time that I have heard anyone quarrel with the copyright statute as to the rights granted to an author for mechanical reproduction.
I would humbly disagree with my learned counsel, my opposing counsel, and suggest to him that the cases that he refers to are cases in the area of performance rights law, where the area of for profit is a key issue under the 1909 statute, but not the area of mechanical rights.
Mr. KASTENMEIER. May I ask, first of all, what music are we talking about? What music is represented, Mr. Ciancimino, by SESAC which is religious in character and which is or might be used by National Religious Broadcasters?
Mr. CIANCIMINO. SESAC represents a broad spectrum of music. The type of music we represent in this particular area is music from very well-known and prominent publishing companies in the gospel and sacred area. Saintspiration is one and Lilinus is another one of the largest. And there are many, many companies of this type that we represent. We represent them, not only for the performance rights, but also for the mechanical and reproduction rights. We also appended to our testimony before the Senate, letters of endorsement from many music publishers in the gospel and sacred field, as well as organized publisher organizations in the church and gospel area. So this is the extent to which we have an interest in the matter. We are not the only organizations that do have an interest, but somehow, perhaps by default, I have been chosen to be the spokesman for the industry on this particular issue.
Mr. KASTENMEIER. Dr. Zimmerman, Mr. Ciancimino says on page 3 that “National Religious Broadcast members can well afford to pay the creator of a religious song $10 a year for unlimited use of that song." Is that not true?
Dr. ZIMMERMAN. Mr. Chairman, our surveys show that this would impose a very substantial imposition on a number of broadcasters. We made a very careful survey. The survey was secured on the basis of confidentiality so that we would get an accurate input from them. But our surveys show that, as I have indicated, that there would be the necessity on the part of many of the broadcasters to have to go to only use of music in the public domain or a substantial curtailment on the part of their broadcasts or, in a few cases, the discontinuance of their religious programs.
On the surface, it does not appear to be a sizable sum of money, but actually the $10 per
year per number is sort of an arbitrary figure, I suppose, that SESAC has determined. There is nothing to guarantee that that would not be altered.
And it is not an insignificant matter. I know personally of several broadcasters who have told me that to meet this additional obligation would, in fact, infringe upon them a very substantial problem.
Mr. KASTENMEIER. Mr. Ciancimino, Dr. Armstrong-well, Mr. Midlen before, said there are some of his members who have submitted to the importionings of your organization and do make payments. What is the situation? Have you established the right to collect pursuant to any court tests or otherwise? Have you tested this matter in the courts or are you policing this if you think it is your right?
Mr. CIANCIMINO. SESAC has never in the past had occasion to bring an action against anyone for the violation of this particular right. We feel that under the 1909 statute, under section 1(e), it is clear that we have it. We have established the right to collect for this use. It is not something that is an innovation within the last couple of months. The $10 fee is also the fee that is charged by the Harry Fox organization for a similar type of use. It is an industrywide established fee. I suppose we could raise the fee if we could have the user agree to pay a higher fee, just as we can raise the fees in the areas of the performance rights. But we are dealing here with an industry and we don't take very lightly to simply subjectively raising a fee without some kind of an agreement on behalf of the licensees. We do have some of the program producers licensed and have had them licensed for many years. These are the people that are recognizing their responsibility under the 1909 act. A sizable number of them were licensed up until a couple of years ago when again, at the importuning of the NRB they decided not to be licensed any further, pending clarification of the issue.
Mr. KASTENMEIER. Mr. Ciancimino, Dr. Zimmerman also suggests that there is an organization that his organization is a very large one and contains many hundreds of individual church groups, broadcast, et cetera. You have cited some of the better known ones. In the ad there you cited Billy Graham, or Oral Roberts. These individuals may be identified with organizations that have these economic resources, but many of them obviously do not, maybe even hundreds do not. They
are not so similarly situated as far as resources. Is there any way to distinguish between these groups or organizations?
Mr. CIANCIMINO. Well, I think, Mr. Chairman, that if the industry recognized its responsibility in this area, and if there were some legitimate economic considerations to be taken into consideration by SESAC, that we could work out something for the smaller program producer to meet their economic needs. We do this in many instances with the broadcast industry where a station is economically in trouble and we work out some kind of assistance for him so we don't cause an undue economic burden on him. We don't want to have any user of this music go out of business. That is not why we are here.
Mr. KASTENMEIER. Do you have any statute or language to recom. mend! Your sole recommendation is to strike section 112(c). I take it you are not asking to amend it or modify it?
Mr. CIANCIMINO. That is correct. We have no specific license rate schedule to propose. Under the 1909 law, there was no need for such a rate schedule. There was an accepted industrywide rate structure which, in effect, governed the relationship between the parties.
Dr. ZIMMERMAN. Mr. Chairman, If I could be permitted to have just a word on the question submitted. I would be greatly distressed if those using the medium of tapes or disks for the purpose of releasing a religious broadcast, if that was going to be left to the discrimination of an organization like SESAC or any other licensing agency, It seems to me that would put us in an untenable position. We would be more or less at the mercy of what they determined in a certain case. And to me, that would be a very unacceptable approach to the situation.
The religious broadcasters are not asking for charity. We are asking for recognition of the fact that we are producing a nonprofit broadcast, merely using the convenience of tape or disk rather than long lines for the convenience and economic advantages of that particular procedure. It seems to me that the question is rather irreconcilable that if a telephone line was used, there would be no question. But just because we happen to use the medium of a tape, then that throws it into a whole new category. And frankly, it just seems like it is not an equitable approach to the matter.
Mr. CIANCIMINO. Mr. Chairman, might I just comment on that for 1 second. I believe in the prepared statement of Dr. Zimmerman, the reason why they don't use a telephone line is because of the expense. I am wondering why they haven't asked the telephone company for an exemption from paying the telephone line fees. Why must the copyright creator always be the one to subsidize the various enterprises the users are undertaking? Why must the copyright owner always be the one who doesn't get paid? And everybody says they do you a favor by popularizing your work and having it performed and having it broadcast. Well, everybody is willing to have everybody else pay, but unfortunately, the copyright creator sometimes bear, the burden of the subsidy.
Mr. KASTENMEIER. That has been a recurrent thing.
Mr. KASTENMEIER. But I would ask Dr. Zimmerman not to comment on that, but assume a proposition that religious composers do not make a great deal of money and that they ought to be rewarded, even modestly, for their work. Now, how is it they can survive without that? I assume very often they are not commercial successes. In fact, by the very nature of their music, they are religious rather than commercial in character. It would seem that they would largely have to depend on religious organizations to compensate them a sum.
Dr. ZIMMERMAN. Well, Mr. Chairman, we take the position that they really are paid, because the stations who air these programs are licensed for the performance rights and we use the stations and pay the stations. So, indirectly, we are, in fact, contributing toward the payment for that particular performance of that song. In a sense, it is almost like buying two tickets to the same ballgame, for the simple reason it is paid for the performance right and then, because we happen, by the convenience and the economics of it, to use a tape as a medium, we find ourselves paying a second time for the use of the same song.
Mr. KASTENMEIER. Thank you, I apologize to my colleagues for taking so long.
Mr. CIANCIMINO. Mr. Chairman, might I comment on that last statement, please?
Mr. KASTENMEIER. Very briefly. Mr. CIANCIMINO. Very briefly, but I do not want to let it pass, if at all possible. This two-ticket argument has been used over and over again, not only by the NRB, but by many other people. Following their rationale, a phonograph record company such Columbia, Decca, RCA, they shouldn't pay mechanical reproduction fees either. Because their argument would be when the radio station plays it, there is a performance credit that is given and therefore the author is paid.
There is clearly a different use here. First of all, they refer to a second payment where they haven't even made a first payment yet. The ones who are making the second payment are the broadcasters and it is for a performance use, completely different and apart from the use they make when they incorporate a religious song in their program and distribute it to the broadcasters and in turn get contributions and what-not from it. Thank you.
Dr. ZIMMERMAN. Mr. Chairman, if I could only point out one difference, and I am not wanting to belabor the time, but the difference we see is that Decca or the other record is a record sold for profit. And we make a strong differential between a tape that has been made for a one-time use and is not for sale and not for profit and one that is used for profit. So, in that sense, we do not see the argument at all.
Mr. KASTENMEIER. The gentleman from Massachusetts.
Mr. DRINAN. Thank you, Mr. Chairman. I never expected we would have a theological argument on copyright. We have had everything else.
But, on the contention that if everything is made not for profit, it somehow washes it, well, I have difficulty, because the teacher who Xeroxes 30 copies of Robert Frost's poems for her little children in school is in violation of the law, although she doesn't profit at all.
I wonder if anybody can tell us how much money we are actually talking about, a ball park figure. Is it a few hundred or a few thousand or what?