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a special receiver. The purpose of this service is to give access to printed material to the blind or those otherwise too physically handicapped to read.

Must someone-simply because he has no sight-be denied the timely information contained in the daily newspaper or weekly news magazines ? Must he rely on 31/2 minutes of news on the hour and headlines on the half hour? Is it absolutely necessary that he wait months before being able to hear a book being read via talking records?

We brought this issue to the attention of the Senate Copyright Subcommittee staff this spring. On May 28, 1975, in a meeting between representatives of public broadcasting, the copyright holders, and the Senate subcommittee staff, language was drafted which resolved a significant part of the print-handicapped problem. The Senate subcommittee has approved that as section 110(8) of S. 22.

While the addition of this section resolved any question of performance, it did not resolve the section 112 question which makes a program recording a copyright violation. In other words, section 110(8) would exempt a work performed on the local service for the print handicapped. However, if a recording of that initial performance was made to facilitate a second performance on another print-handicapped service, that recording would violate section 112.

Questions will 'be raised as to the “free ride” that the blind will now be getting. And we concede that point to you. Not only will the blind be getting special treatment, but so too will those who for other physical reasons cannot read. But we must consider this: How many newspapers, magazines, and books are ever purchased by the blind and those with associated physical disabilities? A human right of access to information in a usable form is the issue.

As a matter of public policy, the choice seems clear. This right should not be denied.



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Since 1909 noncommercial radio has been exempt from the payment of copyright fees under the “not-for-profit clause.” Public radio is asking the committee to continue this exemption by amending H.R. 2223 to reinstate the exemption for local public radio performances.

Without this exemption, classical music may well disappear from the airwaves. The number of commercial classical stations is dwindling. Two stations have changed formats just since your July 10 hearing, WHAS in Louisville and WBAL in Baltimore. The public radio stations are becoming the single source of over-the-air performance for classical composition. If payment is imposed, not only will the public lose a valued cultural service, but the young composers will lose the last remaining radio outlet for their works.

Why will this happen? I think there are four reasons. I will mention them briefly now and expand on them later in questioning:

(1) The inability to determine rights to classical music, since only one record company consistently provides that information. (2) The uncertainty over public domain music with the emergence of derivative or critical editions of previously public domain works. (3) The inability of the societies to guarantee that they cover 100 percent of the composers. Some estimates indicate only about 75 percent of classical composers belong to the societies. The stations could find themselves dealing with individual composers in the hundreds. (4) The lack of local station resources. Clearance requires the filling out of forms and recordkeeping. Public radio stations are required to operate 16 hours a day, 7 days a week with an average full-time staff of eight people. · Frankly, Mr. Chairman,

having never been subject to copyright payment, we don't know the full meaning of the inclusion. What we do know is that we strain our resources to the limit daily to provide a public service to the print handicapped and to the general public interested in serious music. To impose the burden of copyright will cause us to curtail services to no one's benefit.

Thank you, Mr. Chairman.

Mr. KASTENMEIER. Dr. Sheppard, do you have the text of the amendment consisting of section 110, subsection (8)? We do not have it before us. Would you read it?

Dr. SHEPPARD. Yes, certainly. This is a general section on uses of works that are exempt from copyright infringement:

Performance of a literary work in the course of a broadcast service specifically designed for broadcast on noncommercial educational radio and television stations to a print or oral handicapped audience.

And Mr. Hochberg points out that the text is actually printed in Mr. Karp's statement he has prepared for submission at the bottom of page 4 of that statement.

Mr. KASTENMEIER. Next, we would like to hear-I wonder if you would make room for one of the other witnesses, and then you can remain there and you don't have to get up and so forth. I would like to invite Mr. Townsend Hoopes, president, Association of American Publishers and, as well, Mr. Irwin Karp, counsel, Authors League of America, Inc.



Mr. HOOPES. I will be merciful, Mr. Chairman, and I will be brief.

Mr. Chairman, my name is Townsend Hoopes. I am president of the Association of American Publishers, a trade organization composed of approximately 260 member companies and subsidiaries which account for more than 80 percent of the dollar sales of books and audiovisual materials published in this country. Its membership includes a number of university presses and other nonprofit publishers.

We have been asked to comment on what we understand are two proposed amendments to H.R. 2223 put forward by public broadcasting interests, dealing with special exemptions for the blind and the deaf.

With you, Mr. Chairman, we have been somewhat uncertain as to which of the several informal proposals are at issue here. We are not certain we have seen the language of the ones that are and, therefore, we cannot address them specifically.

We can, however, state our position with reference to two sections proposed by the subcommittee on the Senate Judiciary Committee for inclusion in the Senate bill, S. 22. Section 110(8) would provide that performance of a literary work as part of a program specifically designed for broadcast on noncommercial educational radio and television stations to a print or oral handicapped audience” is not an infringement of copyright. The publishers' association fully supports the essence of the subsection. We would hope, however, that the Congress will take steps to clarify the somewhat awkward and opaque phrase "print or oral handicapped audience.”

In addition, we support the proposed section 710 of S. 22, which would establish procedures whereunder the copyright owner may voluntarily grant a license to the Library of Congress to produce braille copies or phonorecords for the blind and physically handicapped.

We cite these two provisions, Mr. Chairman, to demonstrate that our purpose, with respect to the blind and deaf persons, is to be quite forthcoming on the matter of facilitating their access to literary works through the medium of programs designed expressly or primarily for their benefit. We realize that this position involves the partial relinquishment of rights of copyright owners, and further that it entails a degree of risk and vulnerability to abuse. We nevertheless take this position in the belief that blind and deaf people are deserving of special consideration, and in the trust that all parties concerned will endeavor to be fair and proportionate.

As to specific amendments to H.R. 2223 on this subject, we must reserve our position until we have had an opportunity to study the language thereof.

Mr. KASTENMEIER. Thank you. Mr. Karp, we will now hear from you.

Mr. KARp. Thank you, Mr. Chairman. I have submitted a statement, which I request be included in the record. It is on behalf of the Authors League.

May I state at the outset that the provisions of proposed section 110(8) that appears at the bottom of page 4 of my statement, which was adopted by the staff of the Senate subcommittee and the subcommittee

Mr. KASTEN METER. Yes, and it is precisely as read.
Mr. KARP. As I gave, yes.
Mr. KASTENMEIER. As was read by Dr. Sheppard.

Mr. Karp. Yes, that is the same language on page 4 of my statement. I just want to make it clear that this was not written with the cooperation of the Authors League. Quite the contrary. When it was proposed, we objected, as we object right now. We objected for what I think are good and sufficient reasons.

In evaluating the proposed-oh, I might say that the other exemption, which I quoted on page 5, was a proposal made by the American Foundation for the Blind, which would go also as clause 8 of section 110. We have, in effect, rival proposals for an exemption, neither of which we support. We are equally opposed to both of them.

In evaluating these proposed exemptions, it is essential to consider how books are disseminated to the blind under the present provisions of the 1909 act. Under the provisions of the 1909 act, the Library of Congress, for 40 years, has distributed to blind persons recordings and braille editions of thousands of books. This program is conducted by the Library's Division for the Blind and Physically Handicapped.


Approximately 1,000 titles a year are added to the stock of books available on records and cassettes, and 300 to the stock of books in braille, an additional library produces several magazines on records and in braille.

Thousands of copyrighted books have been produced in these recordings, with the consent and only with the consent of their authors and publishers who do not request or receive payment for these uses. The issue here is not payment. The issue is not granting consent. The issue is whether a section of the community, of the creative community in this country, which has proved with a 40-year record its ability to make available its property for free use by the blind, whether they should now have that right taken away, because a group of people in public radio say, without any justification, that they must have this done.

Under the present law, the copyright owner's permission is required to make these recordings and to publish braille editions. Let me emphasize we are not dealing with recordings in the musical section. Section 1(c) of the Copyright Act deals with literary works and gives the copyright owner the exclusive right to make a recording by which his work can be presented, and there is no nonprofit limitation.

As the Library of Congress recently informed Senator McClellan, publishers and authors have been extremely cooperative in allowing us to record materials on a non fee basis. And we are sensitive to and respect the rights of authors and publishers. And we appreciate the significant contribution in helping us make educational and recreational materials available on braille and on records for use of individuals who cannot read print.

Let me turn and try to summarize briefly my description of the clearance procedures and the production procedures of the Division for the Blind of the Library of Congress, which has produced these thousands of records and made them available across the country under a voluntary system.

Now, requests for permission to produce recordings and braille copies are made by the Division to copyright owners on a standardized clearance form. After the permission is obtained, and it is obtained in almost every case, then without consideration the records are produced.

As I said, thousands of titles are currently in print, as it were, on records and available. And I would like to leave with the committee this 1972-73 catalog [indicating] which is a log of talking book records. This is only the books produced in that year, and not the catalog available in total. This is just the titles produced in that year, so that you will have some idea of the range and diversity of books available on these records. These records are distributed free of charge to blind persons and those whose physical handicaps prevent them from reading print.

I assume that is what the rather clumsy language "print-handicapped” meant. One of our objections to the language itself is that any illiterate or poor reader is print-handicapped. I assume our friends didn't intend to include that.

These are made available across the country without charge through divisional or regional libraries or subregional libraries. Now, these recordings are only available to blind persons. Not only is their distribution limited, but technologically, it just happens that they cannot

be played on ordinary record players because they happen to be recorded at 843 r/min, which is not a speed that can be played on ordinary phonographs. They have to be played on special phonograph machines, which are distributed to the blind free of charge by the Library's Division of the Blind and the regional libraries.

Now, these books are the primary and most effective means of bringing books to the special audience of the blind and physically handicapped. The thousand titles currently in print under this voluntary system make available enormous diversity of choice, which radio just can't provide. It takes 8 to 12 hours to read a book aloud. Broadcasting would require several daily installments. Any blind person who happened to be interested in the book that a radio station happened to choose, would have to sit at that set for 8 to 12 hours to hear the book in its entirety.

On talking records, he can choose any book he wishes without charge and listen to it at the time he selects.

Now, this is only by way of setting the background. We are not arguing that radio should not broadcast books. We are simply pointing out that we are not dealing here with some dire emergency

that this group of public broadcasters is rushing into the breech to meet. There is a rich and valuable service already provided by the Library of Congress under their voluntary system. We have no objection to subcarrier stations, those which are only received by the blind because of the special frequencies on which they are broadcasting, we have no objections to those stations broadcasting books. But we insist that with a 40-year record of performance, that the Congress can be certain that licenses without charge will be granted by authors and publishers to these stations just as they are granted to the Library of Congress.

We are also certain that we don't deal even with this licensing problem we got into with public radio because the Library of Congress itself can clear these licenses. The Division for the Blind not only licenses the braille editions and records which it produces, but it performs that function for other voluntary, nonprofit organizations which wish to produce this type of material. I dare say that the Division for the Blind, without any great difficulty, could clear these books for use by these closed circuit radio stations, clear them in advance and clear them without any charge at all.

My last point, Mr. Chairman, involves open-circuit radio and television, which means education. Shall I continue?

Mr. KASTENMEIER. Continue.

Mr. KARP. It involves educational or instructional stations which broadcast to the general audience. Here, of course, there is no way of distinguishing between the reading of an entire book or a substantial portion of a book, distinguishing from the entire audience or just to the blind members. The book is read and is read to the whole audience on channel 13 or any other station that would be entitled, under this exemption, to do this.

Mr. KASTENMEIER. May I ask Dr. Sheppard to respond to that point? When you are enabling the local radio station to broadcast, presumably to the blind audience, you have no way of, do you, of insuring that that is the audience you have, in fact?

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