Dr. SHEPPARD. That is true, Mr. Chairman, if you broadcast on the open channel. Of course, if you are broadcasting on the subchannel, then distribution of the special receiving sets is quite a controllable factor, so there could be no problem there. Technically, AM stations, and we have some in the public radio system, cannot avail themselves of this kind of transmission because it is technically not available to them. WHA in Madison is one example of a station that cannot institute SCA transmission, because the transmission-because the technology does not exist. I would also say that for stations that do not have or would not utilize SCA for this purpose, these stations are not going to devote a great deal of their daily schedules to the transmission of this kind of material, because they have an obligation to serve the general audience as well. We are not going to sit in Hersey, Pa., and read the entire morning edition of the Harrisburg Patriot News and then read the afternoon edition of the Harrisburg Evening News. It is not feasible. Mr. KASTENMEIER. The gentleman from Massachusetts. Mr. DRINAN. I am sorry, gentlemen, we have a vote and we just have to go to it. But, I see the controversy. I would hope that it could be resolvable amongst yourselves. I am happy to know all of the things the Library of Congress does. I see the point that Dr. Sheppard brings up, and I would hope that we would consciously or otherwise or inadvertently wouldn't deprive the blind or deaf of any services, but I am impressed by what is now being done. I hope that within the parameters of traditional copyright laws, we can continue that. As I say, we have to go. I personally cannot come back. But I would welcome any further elaborations of the conflicts involved here, so that we could have that for the record. Thank you. Mr. KASTEN MEIER. The gentleman from New York. Mr. PATTISON. Do we plan to come back? Mr. KASTENMEIER. We do not. Now is your opportunity to ask questions. Mr. PATTISON. Well, I congratulate Mr. Karp for his consistency. I congratulate Mr. Hoopes for his inconsistency. I really think I understand the issue and I don't have any questions. Mr. HOCHBERG. Mr. Chairman, may I add one comment? One of the points Mr. Karp did not and indeed perhaps would not address himself to is the problem that so much of what the services for the handicapped do deals with daily newspapers or news magazines. An attempt to get clearances on any timely basis may well be impossible. Mr. KARP. Mr. Chairman, I would like to emphasize I am not here speaking for the newspaper publishers or publishers of magazines. I am concerned with books, books written by authors. What Mr. Hoopes is telling you is all right with publishers, or the collection of rights that don't usually belong with the publishers to begin with: The right to make recordings, the right to broadcast books on radio and television, and other rights that can be interfered with. But I insist we must make it clear what we are really saying this can be done under a voluntary system, and even the open channels can be licensed under a voluntary system. We just can't afford to make the political judgment that somehow this book will jeopardize our position under the Mathias amendment, and therefore, we must except it. There is no merit to this. We think we have shown a very strong history Dr. SHEPPARD. Mr. Chairman, Dr. Rockwell has a comment. Dr. ROCKWELL. I would like to briefly state that as not only the director of the Washington Ear, which operates a service for the blind and physically handicapped who cannot read print, but as a long-term user of the Library of Congress program, that there are problems in securing copyright clearance in that best-selling books and particularly books on timely topics often take 2 or 211⁄2 years before they can reach the homes of people who cannot read print copies because of delays. As a matter of fact, I recently was speaking to a member of the Library of Congress saying that because the publishing houses apparently were cutting back on their own staff, that the length of time it took to secure these copyright clearances was lengthening. What the print handicapped, and I agree, I dislike that terminology-or what services such as the Washington Ear are trying to do is to read bestselling books and timely books while they are current and being discussed by the community, to read them on an installment basis. I applaud the fact that the publishers have an excellent record in making books available for the blind and physically handicapped. I have enjoyed many of these myself through the years. But, I would also like to add that the staffs such as at Washington Ear are very, very small. We are operating under many strains. And the procedure of securing copyright clearance would impose a crippling burden upon our operation. I don't think that the Library of Congress is prepared to assume the responsibility for these services, which are located throughout the country in securing clearances for us. They apparently are having their own present difficulties. Mr. KARP. Mr. Chairman, I think you really have to talk to the Library of Congress, because somehow I get an entirely different picture about how long it takes to clear. I know there are 1971 and 1972 best-sellers in this book, and many of them are by Authors League members. I do know that section 710 of the act would facilitate the clearance procedures, making it almost automatic. What we are proposing here is clearances can be made as early as the day of copyright registration. Mr. KASTEN MEIER. I take it you are not proposing any changes in the law? Mr. KARP. No, I am asking you to adopt the law as it is. Mr. KASTEN MEIER. I thank those appearing here. Mr. KARP. Except for this amendment in the Senate bill. [The prepared statement of Irwin Karp follows:] STATEMENT OF IRWIN KARP, COUNSEL, THE AUTHORS LEAGUE OF AMERICA, ON PROPOSED EXEMPTIONS FOR BROADCASTING READINGS OF BOOKS Mr. Chairman, my name is Irwin Karp, I am counsel for the Authors League of America, the national society of professional writers and dramatists. The Authors League appreciates this opportunity to state its views on proposed exemptions which would permit the broadcasting of books and other literary works, without the author's permission, by non-commercial stations to audiences which include blind or aurally handicapped persons. The texts of these proposals are quoted at the end of this statement. The Authors League urges that these proposed exemptions should not be added to the Copyright Revision Bill. They are not necessary to bring books to the blind. These exemptions would permit unauthorized broadcasts of books on programs that reach general audiences. They are broadly and ambiguously worded. DISSEMINATION OF BOOKS TO THE BLIND UNDER THE PRESENT COPYRIGHT LAW In evaluating the proposed exemptions, it is essential to consider how books are disseminated to the blind under the present copyright law. Sec. 1(a) grants authors the exclusive rights to print and publish copies of their books. These rights cover the production and distribution of braille editions which cannot be published without their permission. Sec. 1(c) grants authors the exclusive rights to make transcriptions or records of their books. These rights include the production of recordings of their books which cannot be made without their permission. Both sets of exclusive rights apply to non-profit as well as commercial uses. Functioning under these provisions of the present Act, the Library of Congress has, for forty years, distributed to blind persons across the nation recordings and braille editions of thousands of books. This program is conducted by the Library's Division for the Blind and Physically Handicapped. The Division currently adds approximately 1,000 titles a year to the stock of books available on records and cassettes; approximately 300 titles a year to the stock of books in braille editions. It also produces 23 magazines on records, and 23 in braille. Thousands of copyrighted books have been produced in these recordings and braille editions with the consent, and only with the consent of their authors and publishers who do not request or receive payment for these uses of their books. As the Librarian of Congress recently informed Senator McClellan, "Publishers and authors have been extremely cooperative in allowing us to record and emboss print materials on a non-fee basis... We are sensitive to and respect the rights of authors and publishers, and we appreciate their significant contribution in helping us make available educational, recreational and informational materials in braille and on records for use by individuals who cannot read print." THE LIBRARY'S CLEARANCE AND PRODUCTION PROCEDURES Requests for permission to produce recordings and braille copies of books are made by the Division For the Blind to copyright owners, on a standardized clearance form. After permission is received, recordings or braille editions are produced for it by various organizations. Recordings of books, Talking Books, are produced by two non-profit organizations: The American Foundation for the Blind and American Printing House for the Blind. These are professionally produced recordings. The narrators, often actors or announcers, are paid; the technicians are paid. As we have noted, authors and publishers do not receive compensation for their permission to use their books. The thousand or so titles currently produced each year on Talking Book records include works in the public domain and hundreds of copyrighted books. The copyrighted works include books in every field: fiction, biography, philosophy, science, education, economics, etc. The list includes established works and current books, including best sellers. You can get some idea of the rich and diverse collection available by glancing through this copy of the adult Talking Books catalog for 1972-1973, listing titles produced in recordings from January 1972 to December 1973. Talking Book records are distributed free of charge to blind persons and the "physically handicapped." (i.e., those whose physical handicaps prevent them from reading conventional print.) The recordings are borrowed from regional and subregional libraries which obtain them from the Division for the Blind. There is no time limit on borrowing, and it can be done by mail. TALKING BOOK RECORDS AND BRAILLE COPIES SERVE AN AUDIENCE OF BLIND AND PHYSICALLY HANDICAPPED USERS Obviously braille copies are used solely by blind persons. Talking Book records also are distributed only to blind or "physically handicapped" persons; and only this audience can use them. Talking Book records are recorded at 8% r.p.m., a speed which cannot be played on commercially produced record players. Special phonographs are required, and these Talking Book machines are loaned without charge to blind and "physically handicapped" persons. Talking Books are the primary and most effective means of bringing books to this special audience. The vast reservoir of books on records-approximately 10,000 titles are currently available-provides individual users with an enormous diversity of choice radio and television could never approach. It takes from 8 to 12 hours to read a book aloud. Broadcasting it would require several daily installments. Any blind person who happened to be interested in the book a station chose would be tied to its schedule. Talking Books records enable him to read books of his own choice, at times he selects. READINGS BY "CLOSED CIRCUIT" RADIO STATIONS Proponents of the exemptions contend they are needed to permit sub-carrier radio stations to broadcast readings of books to the blind. These point-to-point broadcasters cannot be received on ordinary radio sets. Special receivers are required, and these are supplied only to the blind and physically handicapped. These "closed-circuit" radio stations broadcast news reports, articles, advertisements for necessities and other current non-book information and material. A copyright exemption is not necessary to enable these stations to broadcast readings of books. They can obtain permission without charge-just as the Division for the Blind has obtained permission to make Talking Book records of thousands of books for distribution to the same audience. Authors and publishers will not hesitate to grant permission free of charge since these sub-carrier stations, like Talking Books and braille copies, reach an audience composed solely of the blind and physically handicapped. The clearance of permissions could be arranged by the Division for the Blindjust as it systematically arranges permissions for its braille editions and Talking Book records-and as it arranges permissions for other non-profit organizations to produce and distribute such materials. READINGS BY "OPEN CIRCUIT" RADIO AND TELEVISION STATIONS The proposed exemptions are not limited to "closed circuit" radio stations serving only the blind and physically handicapped. This would apply to programs, programs broadcast by "open circuit" non-commercial radio and television stations which reach a much wider audience, the sighted as well as the blind and physically handicapped. Any reading of a book broadcast by such stations would reach its entire audience, although the program were "specifically designed or presented for blind" listeners. That purported limitation, in the proposed exemptions, would be ineffective. The Authors League does not contend that non-commercial stations should not broadcast readings of books, because their audiences are not limited to blind persons. But it believes that permissions for these programs should and can be arranged on a voluntary basis-just as the vastly greater production of Talking Book records by the Division for the Blind has successfully been conducted for years under a voluntary licensing system. As indicated in the League's July 10th testimony on the proposed public broadcasting amendments, occasionally the broadcast of a book to audiences of nonprofit stations may reduce its sales; or prevent the author from licensing its use on records or tapes, or in commercial radio, television or motion pictures. Professional authors receive most, and usually all, of the income from these nonpublishing rights. Copyright owners' permissions are required under the present law to produce and distribute the Talking Books records and braille editions that have brought books to the blind for forty years. Their permission should be required to disseminate their books by broadcasts on non-profit stations. THE PROPOSED EXEMPTIONS SHOULD NOT BE ADOPTED For reasons we have indicated, the proposed exemptions are unnecessary, and unfair to authors. Publishers and authors of books have demonstrated their commitment, over four decades, to making their books available without charge to the blind and physically handicapped. The thousands of copyrighted books distributed on Talking Book records and in braille attest to that commitmentand prove beyond doubt that books can be made available to this audience under a voluntary licensing system, without expropriating authors' rights. Proponents of the exemptions contend that non-profit stations are free to broadcast books under the present law, and that the exemption is necessary to continue that right under the Revision Bill. We disagree. In order to broadcast readings of a book, it is necessary to make a recording of the reading. It is practically impossible to make even a single “live” reading, lasting 8 to 12 hours. It is utterly impossible to make repeat broadcasts of the reading, or make it available to other stations, without making a recording. As we have noted, the present law grants the author the exclusive right to make recordings of his book, whether they are produced by non-profit or commercial organizations. (And as we noted in our July 10th testimony, the 1909 exemption for "live" non-profit readings never contemplated the vast audiences of radio or television.) THE PROPOSED EXEMPTIONS ARE BROAD AND AMBIGUOUS The Authors League opposes the proposed exemptions because of their purpose and effect, not because of deficiencies in wording. But the proposals are broad and ambiguous. The first would add to Sec. 110 an exemption for (8) performance of a literary work in the course of a broadcast service specifically designed for broadcast on non-commercial educational radio or television stations to a print or aurally handicapped audience. It is not clear whether "print handicapped" means blind persons and those whose physical handicaps prevent them from reading conventional print; the definitions used by the Division for the Blind. Or whether it also includes the illiterate or poor readers, who also are "print handicapped." Obviously the former definition is the only one consistent with the apparent purpose of the exemption. It is not clear whether "performance" of a literary work is limited to reading it; or whether the proponents are stretching for the right to give dramatic renditions, which would make the exemption even more damaging to authors. It is not clear whether a "literary" work means a book, article or other "nondramatic" work; or also embrace other classes, which would make the exemption even more damaging. It is not clear what circumstances would render the broadcast "reading" of a book a "broadcast service specifically designed for broadcast. . . to a print . . . handicapped audience"-when broadcast on a station which reached an audience of sighted as well as blind persons. It seems obvious that the reading of a book to such an audience cannot have that limited purpose. The second proposal would add this exemption to Sec. 110: (8) performance or the reading aloud (whether in person or by phonorecords) of books and other literary works, musical scores, instructional texts, specialized materials and other printed matter in the course of a broadcast service specifically designed or presented for blind and other physically handicapped persons (who are unable to read normal printed material as a result of such limitations) on non-commercial educational radio or television, including non-commercial broadcasting on any subsidiary carrier authority or cable transmission. Provisions of this subsection shall apply to non-commercial telecasts specifically designed for the aural handicapped. This proposal contains a more precise definition of the blind and physically handicapped, but contains the same dangerous generalities and ambiguities of the first proposal, discussed above. We oppose both proposals. And we urge their proponents to heed the words of the Librarian of Congress: We are sensitive to and respect the rights of authors and publishers, and we appreciate their significant contribution in helping us make available educational, recreational and informational materials in braille and on records for individuals who cannot read print. Mr. KASTEN MEIER. This will conclude the regular copyright hearings other than to invite the Register of Copyrights to offer testimony in this room on October 2 at 10 o'clock in the morning. I should also say we have a letter from Mr. Edward W. Chapin, counsel to Broadcast Music, Inc., which will be accepted and made a part of the record on this subject. [Mr. Chapin's letter follows:] BROADCAST MUSIC, INC., Hon. ROBERT W. KASTEN MEIER, DEAR CHAIRMAN KASTEN MEIER: BMI would like to comment on the background statement filed with the Subcommittee on Courts, Civil Liberties and the Administration of Justice by the Association of Public Radio Stations. |