From Charles Boone: Bill Valente suggested I write you regarding tapes we have of selected compositions from Composers' Forum concerts given during the past two years. We would be delighted if you would be interested in playing them on WUHY and will be glad to send them to you. . . . The tapes I would send you would be from our Campus Concerts Series, programs of music by young composers..." (December 4, 1965.)

From George Burt: "I was really delighted and flattered that you had scheduled my choral piece for the March 20 broadcast. Also, I am certainly impressed with the kind of programming you are doing. . I have just accepted a new position at the University of Michigan and will be there starting next September. If you would be interested in obtaining tapes of pieces written by any of the composers there, please let me know as I would be happy to act as middleman." (March 28, 1967.)

Several years later, after Mr. Wilson had left the station, WUHY decided to re-run the original Tone Roads programs. Typical of letters received was this one from a listener:

Over a period of time (even since WUHY increased its broadcast time), I have been an avid follower of your program "Tone Roads." Admittedly, I have not liked every piece, but I have always found it interesting to hear what the contemporary trends are. It is rare that one has an opportunity to hear private tapes which are commercially unavailable. I hope that the program is not being discontinued. One of the programs that I enjoyed the most was the one which featured the works of Donald Erb, as recorded on the first edition of Opus One records. Is this a company one subscribes to? I am interested in finding out what else they have recorded and may be interested in buying some of the records. (Letter from Mrs. Rheto Smith, July 4, 1973.)

Mr. Wilson says, "Since then, we have corresponded off and on, and I have been requested to send scores of my own works for possible performance in the Philadelphia area." Throughout his correspondence with composers, he reports, "one finds joy and excitement," and he concludes, "To think that the phrase 'otherwise than in a transmission to the public' could put an end to so much good will all over the country! What an ironic tribute to the 200th anniversary of the nation's birth!"

Two of the principal licensing societies-ASCAP and BMI-seemingly recognize the educative value of public radio broadcasts of contemporary classical music. Both are or have been connected with weekly series on National Public Radio designed to introduce contemporary composers and their works to interested listeners.

The Coordinator of Concert Activities for ASCAP, Martin Bookspan, is the host of Composers' Forum, on which composers are interviewed about their work and examples are played. This series has been on NPR for two years or longer. Last spring there was another series produced by the American Composers' Alliance. This group has been described by one of its staff members as "subsidized" by BMI. Composers were not interviewed, but extensive background was given by the announcer.

Even the well-established composer benefits from the exposure public radio can give. For instance, many symphonic works of Aaron Copland, Roy Harris, Walter Piston, and William Schuman have never been performed in south central Pennsylvania where APRS member station WITF-FM is located, and much of the music of these leading American composers would be totally unknown in that area-Harrisburg, York, Lebanon, Lancaster-if WITF-FM did not broadcast them. Indeed, to celebrate Mr. Copland's 75th birthday anniversary in November, the Harrisburg Symphony Orchestra has been emboldened to program one of his most difficult scores, Orchestral Variations, at least in part because it and other contemporary works have been heard over WITF-FM and Harrisburg Symphony audiences are getting familiar with the sound and idiom. In addition, the Orchestra's Music Director and Conductor will be able to present a pre-concert analysis of the Orchestral Variations and other music on the program over WITF-FM. No commercial station in the area could be expected to devote 90 minutes to such a program, and WITF-FM will present it twicethree hours of air time.

THE COMPLEX OF TECHNICAL AND FINANCIAL PROBLEMS RAISED BY MUSIC PERFORMANCE CLEARANCE FOR PUBLIC RADIO

If copyright payment is imposed, APRS believes the public will lose a valued cultural service, the nation's young composers will lose the last remaining radio

outlet for their works and contact with their potential audience, and at least -some of our public radio stations will have to close. There are four reasons why -APRS believes this to be the probable outcome:

(1) The inability to determine rights to classical music, since only one record company consistently provides this information.

(2) 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.

(4) The lack of station resources.

1. Inability To Determine Rights to Classical Music

In spite of the claim that "there is simply no clearance burden on public broadcasting whatsoever" made by ASCAP on page 32 of its statement to this Subcommittee on July 10, 1975, there are real and serious difficulties faced by public radio stations in clearing music for broadcast.

Contrary to what one might logically think, it is not easy to determine who is the copyright owner of a piece of music. The societies have said that the information is on the record label or record jacket. This may be true in the field of popular music, but it is most definitely not the case with classical music-a statement that can be verified by anyone in five minutes in any station's record library.

The only record company that apparently supplies copyright information is Columbia, and even it does not do so 100 percent of the time. And it is now doing so only on copies specially processed for its monthly service to radio stations; if a station buys a record from earlier releases, there probably will be no copyright information. One of the other major companies-RCA-sometimes supplies information and sometimes does not. The other major record companies provide no useful information at all at any time. Easily 75 percent to 80 percent of the classical records in any public radio station's library will be found to contain no copyright information.

Even where records have information, it may be contradictory. APRS member station WITF-FM surveyed the major symphonic works of one composer, Gustav Mahler, to see what it would face if it were clearing this music for broadcast. One result is typical of the difficulties stations face if clearance is imposed. Columbia, the company that does the only consistent job of supplying copyright information, has five different recordings of Mahler's Symphony No. 1; the information supplied with two of them says it is in the public domain; the information supplied with two others that it is copyrighted and licensed by BMI; and the information on the fifth recording says it is licensed by ASCAP. There is no information at all on the other nine recordings of this music WITF-FM consulted.

When information is given on records, it frequently is only the initials of the licensing society. This might be adequate as long as the publisher or composer does not change affiliation (although one ASCAP report requires the station to list the publisher; see below). If that happens the station does not know who the publisher was originally and cannot hope to track the changing affiliation without personnel assigned.

Even the publishers themselves are confused or unable to answer questions. Public radio station WMUK in Kalamazoo, Michigan, wanted to broadcast King David by Artur Honegger, but it was uncertain whether it was regarded as a dramatic work, so it contacted Belwin-Mills Publishing Corporation, which at one time cleared performances of Honegger's dramatic works. Belwin-Mills referred WMUK to the New York office of Editions Salabert, Honegger's publisher. Salabert, in turn, referred WMUK to E. C. Schirmer Music Company, Boston, which was finally able to answer the question. This took only a month and six letters-relatively quick.

In another instance, the results took longer and left the station right back where it had started. The Music Director of WFIU-FM at Indiana University decided to try "a little experiment to see just what was involved with getting clearances." He chose Broadway show music, which involves dramatic rights which must always be cleared by the copyright holder and can never be cleared through ASCAP or BMI. Nonetheless, a BMI Vice President assured the station that it could broadcast the original cast recording of She Loves Me without further action.

The response from ASCAP took a month and a half, but it contained the correct statement that "in order to play the original cast recordings you must

obtain permission directly from the copyright holder or agent" and gave the station the appropriate names and addresses for the works it was interested in.

One publisher informed the station that the rights it was seeking were cleared by ASCAP and available under a regular ASCAP license. Five years later the other publisher has not even been heard from at WFIU-FM.

If such confusion and misinformation exists within the licensing societies and the publishers, public radio has no hope of operating in this area "with no clearance burden".

The licensing societies publish lists and directories of their members, but licensees receive a constant stream of corrections, additions, deletions, and other changes to be posted to the membership list. A piece of music cleared before lunch may change its status when the afternoon mail arrives. Clearly stations already straining at hopelessly inadequate budgets must hire someone to be in charge of clearance matters if they are subjected to performance fees.

2. Uncertainty from the Emergence of Critical Editions of Public Domain Works A reasonable person might ask why stations faced with these problems would not limit their broadcasts to works in the public domain. The answer lies in the difficulty of determining what is and what is not in the public domain. The preceding section contains an example: five recordings of the same Mahler symphony from the same company with radically conflicting information, and nine other recordings of the same piece with no information at all.

Here is another example: Wolfgang Mozart died in 1791; in the late 1960's stations using recordings of European concerts distributed by the Broadcasting Foundation of America were told they would have to pay a publisher $750 for the right to broadcast some of Mozart's music first performed and published about two hundred years ago.

The claim for payment for performance of the Mozart music was based on the fact that a German publisher had just published the music in question in a critical edition; that is, an edition correcting errors in previous editions of the same music and setting forth the changes in detail. Critical editions are protected for ten years under German law and performances utilizing them have to be licensed just like a work written yesterday.

A critical edition may be the reason for some of the conflicting information on the recordings of the Mahler symphony. But assuming this to be true, how does WITF-FM determine the status of the other recordings of the same Mahler symphony in its library? Apparently the only absolutely certain way is to hire an experienced musician and purchase a large library of printed scores and set the musician to work listening to the recordings and comparing them with the scores. It should be noted that musical scholars are at work on critical editions of the works of a number of composers long dead and whose works have been in the public domain until now. One has an uneasy vision of ultimately having no public domain music left. This is probably an extreme never to be reached, but the spectre has enough substance and reality to prompt local public radio stations to seek protection from it in the form of the exemption APRS has proposed.

3. The Inability of the Societies to Guarantee that they cover 100 Percent of the Composers

In its statement to the Subcommittee of July 10, 1975, pp. 31-2, ASCAP says: By entering into a license agreement with each of the three major performing rights organizations, ASCAP, BMI, and SESAC, public broadcasting can be assured of performance licenses in virtually all copyrighted musical compositions. (Emphasis in original.)

The crucial word here is the adverb "virtually." It means that not all music would be cleared by such licenses. As long as it were not, each work broadcast would have to be checked to see if it is covered by the station's licenses; the confusion over the Mahler symphony cited above indicates clearly that such checking is a job for an expert.

A spokesman at BMI's American Composers Alliance told the Music Director of an APRS member station that "about one fourth" of the active composers today are not affiliated in any way-personally or through a publisher-with ASCAP, BMI, or SESAC.

Again quoting composer and radio broadcaster Donald Wilson: "This 'noncoverage' would include works by student composers, other young composers and even older composers who have not yet received due attention such as Richard Robinson in Atlanta (or, for that matter, Charles Ives-whose work was ignored throughout his entire creative life)." He continues:

Specifically, as an employee of WUHY-FM in Philadelphia in the mid 1960's, I broadcast a number of my works in my "Tone Roads" series that would not have been covered by licensing. Assuming that these works were copyrighted individually by their composers (or covered by statutory copyright in lieu of this), I would like to furnish you with this list of composers who were not, to the best of my knowledge, affiliated with ASCAP, BMI or SESAC at the time their music was initially broadcast on “Tone Roads" Philadelphia:

These were composers mostly in their twenties and either still in school or fresh out. I have refrained from listing composers who were at that time in their thirties (such as Donald Erb and George Crumb) on the chance that they might have become affiliated as a result of an early publication of which I would not have been aware.

The point to all this is that my series, "Tone Roads"-for which WUHY-FM received a "Major" Armstrong Citation in 1966-simply could not have existed at all if I would have been required to seek copyright clearance for each of the works by unaffiliated composers that I broadcast over a two-year period; either that or would have been an entirely different series limited to commercial recordings of established composers... And as for funds for help with the paper work, let alone licensing fees-well, the station was so poor that my starting salary was $100 per week in 1965, and I had already received my doctorate in composition.

I would love to see (hear) a radio series like "Tone Roads" that would pay considerable attention to the youngest of young composers, those who are still exploring for a style of their own, but I am worried that the lack of exemption for non-profit broadcast of nondramatic musical works as stipulated by House Bill 2223 will completely destroy all hopes of such a series' coming into existence. (August 24, 1975; emphasis supplied.)

4. The Lack of Station Resources

Public radio does not now have the resources in people or money that it will need if it loses its existing non-profit exemption. Never having been subject to copyright clearance, we are uncertain of the full meaning and impact of inclusion. In spite of the claims made previously by the music industry, as we have shown above, clearance of classical music is not a straightforward and simple process. It requires expert knowledge and a great deal of time. Both are expensive.

In addition, clearance requires the filling out of forms and record keeping. One person estimated that it would cost each public radio station $10,000 to $20,000 a year to handle copyright clearances. This estimate may be conservative just for the administrative costs, regardless of the amount of the license fee. Public radio does not have this kind of financial resources available. A commercial station may raise its advertising rates to cover increased costs of this kind, but public radio stations have no rates to raise to anyone.

Public radio stations do not receive large underwriting grants from Mobil Oil Corporation or Xerox Corporation or from any company or individual. Public radio simply is not wealthy.

The average station has an annual budget of $132,000 and an average staff of eight full-time employees. It receives no more than $18,700 from the Corporation for Public Broadcasting in its annual Community Service Grant. (Note that the average Community Service Grant for a public television station is larger than the total budget of the average public radio station.)

It is easy to see why an additional $10.000 or $20,000 per year would doom some public radio stations to total extinction.

But extinction would not come solely from the expense. To be eligible for federal assistance, a station must meet certain criteria established by the CPB. These criteria require, among other things, that a station operate 16 hours per day, seven days per week, and 52 weeks per year. The most recent figures available show that the average CPB-qualified public radio station broadcasts classical music for 60 percent of the time it is on the air. Without relatively cost-free access to music, what will these stations broadcast? Without music, they may drop below the CPB requirements for qualification, lose the little federal dollar support they now receive, lose their NPR affiliation, and will have to go off the air. This would be a sad fate for a public radio system launched so enthusiastically by the Congress in the Public Broadcasting Act of 1967. Instead of growing to serve all Americans as it is now doing, public radio will shrink to virtually nothing.

Statutory Language-Performance

We have enclosed as attachment A language to be adopted as an amendment to section 110. (The inclusion of this subsection-110 (9)-presumes adoption of the exemption for performances to print-handicapped audiences.)

Sincerely,

Attachment.

MATTHEW B. COFFEY,

President.

AMENDMENT TO SECTION 110

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(9) performance of a non-dramatic literary or musical work in the course of a broadcast by any licensee or permittee of a non-commercial educational radio station.

[The above inclusion of subsection 110 (9) presumes adoption by the House of subsection 110(8), an exemption of performances designed for broadcast to a print-handicapped audience already approved by the Senate Copyright Subcommittee.]