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Mr. CIANCIMINO. Father Drinan, we have never had the privilege. of finding out, because many of the groups have not, again at the behest of certain organized user groups, have not paid us. But I would hesitate to give you an educated guess. If you want one, I will submit maybe on an industrywide basis. I think if you hit $5,000 to $100,000 a year you are talking about a high amount.

Mr. Drinan. Would you tell me, sir, how this thing got in here? I must say, I am astonished to find 112(c) “Musical Work of a Religious Nature.” What pious Senator initiated this?

Mr. CIANCIMINO. Part of my testimony before the Senate did go into this rather dry legislative history of 112(c). It first appearedand I am now quoting from my testimony before the Senate-it says, "It first appeared in February 8, 1971. It appeared in an announcement from the Copyright Office relating to the introduction of S. 664 in the 92d Congress, and it describes the differences between that bill and the prior bill as 'technical amendments and a few minor additions of substantive detail.'”

Prior to that time, it has never been the subject matter of a hearing.
Mr. DRINAN. But who was the author?
Mr. CIANCIMINO. I plead innocence on this.
Mr. DRINAN. Only God knows.

Mr. CIANCIMINO. Only by hearsay, I believe I could say it was either the Copyright Office or the counsel for the subcommittee of the Senate.

Mr. DRINAN. And this somehow sailed through without controversy in the Senate ?

Mr. CIANCIMINO. That is correct. We had testimony on it in the Senate.

Mr. Drinan. Did anybody try to justify why, in their opinion, the law should prefer religious over rock?

Mr. CIANCIMINO. That is what I have been trying to find out, Father Drinan. I have really been trying to find out the difference. I think theologically the higher goal is religion rather than rock, but monetarily. There is a little thing called the establishment clause that says we can't do that.

But, I would like to ask Dr. Zimmerman the question that keeps coming up to me, and I suppose it is the $64 million question, but why must the copyright creator bear the burden. As much as anyone would want diffusion of the religious music and all, the bottom line is that the copyright creator doesn't get a certain fee.

Dr. ZIMMERMAN. Mr. Drinan, the feeling that we have had in this matter is that the use of the number on a religious broadcast, a nonprofit broadcast, does accrue great benefit to the copyright holder in that it popularizes that number. And I can attest from my own experience that when we use a number on our own broadcast, without any offer for sale of the number, we have numerous requests coming in to buy copies of that particular number, which accrues directly to the benefit of the

Mr. DRINAN. Well, that is not quite a straight answer, is it? Because the law says that the gentleman who has a rock broadcast, he may benefit directly or indirectly by popularizing his song in Peoria, but he is also entitled to his fee. It may be that it will never become popular and the only thing that he will have to go back to is that fee he gets. So that is really not an answer.

57-786-76—pt. 3

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You are claiming an exemption. You are claiming, well, we have to make known this song. But in subsection (c)(2), it says-and let me just read it-it says: "That a program embodying a performance of a nondramatic or musical work of a religious nature."

Now, when you say "nonprofit,” actually the law says that this particular exemption applies only to a nondramatic musical work of a religious nature. It is a specific and particular exemption only for religion, as I read it.

Dr. ZIMMERMAN. Well, of course, we have no case to make for others. I mean, it could well be that it should be broadened so that the real thrust of it is the nonprofit aspect of it, because to us, this is a very important component.

Mr. DRINAN. Well, sir, when I read this carefully, I was hoping you might be able to save yourself. If you go back to (b), if you had that language in, it would be more acceptable, that is, that it would not be an infringement of copyright for "a governmental body or other nonprofit organization” and so on. But that language is left, and it is narrowed down to only musical work of a religious nature. So that is a specific exemption for something that has to be exclusively religious, and that I find it difficult to justify: Dr. ZIMMERMAN. We would have no objection to that wording, sir.

Mr. DRINAN. Well, loads of other people would, not merely SESAC, but loads of other people. I mean, if every nonprofit organization-I mean, if the Birch Society could get its records out there without paying anybody, I think that certain people might object. Well, I thank you for your testimony. It has been illuminating. Mr. KASTENMEIER. The gentleman from New York, Mr. Pattison.

Mr. PATTISON. I am a little bit confused, I think, about the difference between what we are talking about here and the 2-cent or 3-cent whatever it is going to be, right for reproduction.

Mr. CIANCIMINO. It is basically the same right, Mr. Pattison. In the area of the recording industry, it has been codified by a compulsory license of 2 cents. In other areas of mechanical reproduction, such as by syndicated program producers, by radio or television producers where works are being reproduced but not in the form of commercial recordings which are sold by Columbia or Decca, there is no codification of the statute there. And industry practice has built up the price of the $10 per year per title for unlimited use. But basically, it evolves from the same mechanical right that is used by the commercial record companies.

Mr. PATTISON. So there isn't any question but if this language that we are talking about were absent that a religious or any other organization could find its own performers and make a disk-right?-and sell it or give it away or anything else and pay 2 cents ?

Mr. CIANCIMINO. Not to the public, but to transmitting organizations, as defined in 112(c), to radio stations primarily. Section 112(c) is a very limited area of mechanical reproduction rights, which are being used by program reproducers in the religious area and then disseminated to radio stations for a performance over the air. That is the only thrust of 112(c).

But, I thought your question was on the origin of the mechanical right as compared to the commercial phonograph record field. They both originate from the same right, from the same portion of section 1(e) of the 1909 act.

Mr. PATTISON. Well, I am still a little bit confused about that, but let me get on to another question.

Mr. MIDLEN. While we are on that, may I respond to that particular aspect, Congressman Pattison?

Mr. PATTISON. Yes.

Mr. MIDLEN. This point has been discussed with the Senate Subcommittee on Patents, Trademarks, and Copyrights and specifically with the chief counsel. The view expressed there, and with which we agree, is that the provisions in section 115(c)(2) concerning that 2 cents matter with respect to royalties payable under compulsory license, that is designed to apply to those reproducing phonorecords for commercial sale and would not apply to nonprofit organizations making mechanical reproductions of musical works of a religious nature.

Mr. CIANCIMINO. I believe the gentleman is referring to the current position of section 115, is that correct, as appears in the revision bill?

Mr. MIDLEN. 115(c) (2).

Mr. CIANCIMINO. In the current revision bill? Is it the 1909 statute or the current revision bill you are citing?

Mr. PATTISON. That is the current bill. Mr. CIANCIMINO. That is the current bill, yes. Mr. PATTISON. I am trying to sort that out in my mind. Mr. CIANCIMINO. But there is no such provision in the 1909 law. I think that is what your question was.

Mr. PATTISON. Just a point of information. Isn't it true that the reason that ASCAP and BMI do not license mechanical rights is that they are, isn't it true, that they are prohibited from doing so under the consent decree? Harry Fox basically does that.

Mr. CIANCIMINO. I don't profess to be an expert on the ASCAP consent decree. I do know that historically ASCAP's area of representation was in the performance rights area. I am not prepared to answer

any questions on the ASCAP consent decree at this time. Mr. PATTISON. Well, that is my impression. I think that they just can't get into that business, frankly, but I may be wrong about that.

If this language stays in the bill, I am troubled about the distinction between what is religious and what is not. Is Mahalia Jackson's “Amen,” for instance, is that a religious song? I mean, it is played over rock stations and played all the time everywhere.

Mr. CIANCIMINO. This is one of the very real problems. Ervin Drake, who is the president of the American Guild of Authors and Composers and who had submitted a letter when I testified before the Senate and it is appended to the Senate record, Ervin Drake wrote the song, “My Prayer," which is a very popular copyright. It wasn't written as a religious copyright. However, it is used in my Catholic Church, for example, in Sunday services, at Sunday Mass. Ervin Drake has told me—and a copy of his letter to the Senate is attached, which I have here, if anyone cares to see it—and he has told me and it specifically states the fact that it was not written as a religious copyright. And this is the area where we are going to get into trouble. This is the area of definition, which is going to cause a whole body of litigation, it seems to me, if 112(c) ever becomes law. And it is really an unwanted area, in my opinion, of litigation. I don't see any justification for it at all.

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Mr. PATTISON. Could we have some response from the religious people on that?

Mr. MIDLEN. Yes

Mr. PATTISON. How are we going to define this "of a religious nature”! Assuming it is a good provision in the bill, how are we going to define it?

Dr. ZIMMERMAN. My reply, Congressman, would be that if the program itself is for a religious purpose and it is in the context of a religious presentation that it is used, then the numbers used there would be construed to be used for a religious presentation. And I think

Mr. PATTISON. It seems to me, if you start every morning off with a prayer, you will then be exempt for the rest of the day.

Dr. ZIMMERMAN. Well, Mr. Pattison-
Mr. PATTISON. I mean, I don't want to be facetious. I am serious.

Dr. ZIMMERMAN. No, I understand. I want to be very honest, too. I would not construe that as what you are talking about at all. We are not talking about a broadcast station coming on with a devotional of some nature, which many of them do.

Mr. PATTISON. Yes.

Dr. ZIMMERMAN. We are talking about a presentation of a specific religious broadcast within the context of a program or service that has been produced by a religious broadcaster. And I cannot think of exceptions that would be made in the average religious broadcast that I know anything about, Congressman, that would bring in secular music.

Mr. PATTISON. Well, I take it—and I don't want to beat this to death-but I take it that would also include lots of organizations which people may or may not approve of, for instance, Dr. Moon's organization or "Children of God" or a variety of other organizations like "Universal Life Church," like lots of organizations that call themselves religious, like "Ethical Society," but which may not be religious in the normal Christian or Jewish or even any of the major religious traditions to actually be religious. So that if a broadcaster decided that he was going to call his program religious, that doesn't necessarily refer to a Christian God or Jewish God as we know it, perhaps, in our culture. Wouldn't you agree with that?

Mr. MIDLEN. If I might respond to that? The criteria is not whether the organization is religious or not religious. The criteria is whether it is a governmental body or a nonprofit organization, which then in turn meets the rather strict criteria which is set out in section 112(c), namely, one recording for nonprofit purposes for broadcasting. And it is spelled out there with considerable specificity, so that it is quite

And in response to your earlier question, I think that the amount that you were referring to is the 3 cents in section 115(c) (2) of this bill, and it is the position of the staff of the Senate Subcommittee on Patents and Copyrights that it does not cover such nonprofit aspects as are contemplated in section 112(c).

Mr. KASTEN MEIER. I would observe from the colloquy and from what Mr. Midlen says that while the intention, as expressed by Dr. Zimmerman, is to protect religious programs; in fact, we are pro

narrow.

tecting programs of nonprofit organizations, of governmental bodies, et cetera, which may happen to have religious music and only as to religious music.

I think I have observed religious programs that have had sectarian music, too, for various purposes on such programs. They would not, presumably, be protected, because they are not musical works of a religious nature. And notwithstanding the needfulness of the organization to be excluded, for the purposes you have cited, they would apparently have to comply with the copyright payments under this section and not be covered under this section.

Well, in any event, gentlemen, I wish on behalf of the subcommittee to thank you, all of you: Dr. Zimmerman, Mr. Midlen, Dr. Armstrong, and Mr. Ciancimino.

The last witness today is that of public radio and the handicapped. First, we would like to welcome Dr. Walter Sheppard, representing the Association of Public Radio Stations.

Dr. Sheppard, you may proceed first.

TESTIMONY OF DR. WALTER SHEPPARD, REPRESENTING THE AS.

SOCIATION OF PUBLIC RADIO STATIONS, ACCOMPANIED BY DR. MARGARET ROCKWELL OF WASHINGTON EAR; MATTHEW B. COFFEY, PRESIDENT, ASSOCIATION OF PUBLIC RADIO STATIONS; AND PHILIP HOCHBERG, COUNSEL

Dr. SHEPPARD. Thank you, Mr. Chairman. With me at the table are Dr. Margaret Rockwell, director of the Washington Ear, which is the print handicapped service of WETA-FM here in Washington to answer any questions that the members of the subcommittee may have about the operations of such services, and also Matthew Coffey, the president of the Association of Public Radio Stations and Mr. Philip Hochberg, counsel to the association.

We welcome the opportunity to testify here this morning on those issues we were unable to explore in detail at the hearing on July 10.

Throughout the recent history of the omnibus copyright revision bill, the Association of Public Radio Stations had maintained the need for preferential treatment-and indeed that is exactly what it is—for one of its special endeavors. In addition, we have requested an additional exemption for performance on public radio.

The members of this subcommittee are charged with the responsibility of making public policy decisions on copyright. There is nothing immutable in the concept of copyright protection; it is constantly being subjected to overriding questions of public policy. One need only look at the exemptions already embodied in the 1909 act and H.R. 2223 as examples. The concept of the compulsory license is but a further refinement of this principle.

TOTAL EXEMPTION FOR SERVICE TO THE PRINT HANDICAPPED

In what must be regarded as an innovative use of the broadcast medium, a growing number of public radio stations are now providing a special service designed for the print handicapped. This service is being made available through a part of the FM band which requires

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