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Ms. RINGER. You cannot really tell what is going to happen. Obviously, Teleprompter at one time it has been the largest -it anticipated the possibility of bringing perhaps 25 or 50 signals containing different programs into New York City, for example. This was a technical possibility, and
Mr. PATTISON. Although there are not that many programs that are available.
Ms. RINGER. If you wanted to use microwave relays, you probably could.
Mr. Pattison. There are not 25 or 50 programs being broadcast anywhere.
Ms. RINGER. In the country, yes. If you wanted to bring them in from the heartland, and so forth, I think you could.
Mr. PATTISON. You mean there are 25 or 50 independent signals? Ms. RINGER. You might have a lot of different “I Love Lucys.”
Mr. PATTISON. That is what I am talking about-excluding the repeats of the network programing, independent signals. I am not talking about signals that are owned by networks. I am talking about nonnetwork kind of programing, where you actually are creating something. It is pretty rare—there are only about 10 independents that really do that.
Mš. RINGER. But they buy syndicated programs and play them over and over again. At any one time, you could easily find 80 different programs.
Mr. PATTISON. With the availability of 30 I Love Lucys on the same TV set at the same time, this certainly poses a great
Ms. RINGER. No comment on that.
Mr. KASTENMEIER. One question. It has to do with the practice I am not aware of what the practice is in terms of vicarious liability for infringing performances, and the ballroom operator case; is that the practice that the orchestra-whatever orchestra it is-must go to BMI and get a license to play a repertoire of BMI pieces ?
Ms. RINGER. I believe it is usually the entrepreneur rather than the individual orchestra that does take the license. It is a blanket license.
Mr. KASTENMEIER. What you are saying is that the orchestra, which plays for profit, and in fact plays the music, does not pay a performing royalty?
Ms. RINGER. That is right, because the royalty is paid by the person who is providing the premises and is charging the admission. I think that is the usual pattern. I am sure there are variations to it, but essentially a band that goes into a place can assume that the person providing the physical facilities and so forth has a license from all three performing
rights societies. Mr. KASTENMEIER. Is there, in fact, a double payment? That is, if you had an orchestra, and obtained a license from the performing rights society for playing his repertoire, and also went into a place where the ballroom operator had also paid the same performing rights society for its license, is whether in fact that would be a double payment-your answer is, in fact, orchestras never do obtain ?
Ms. ŘINGER. I do not know. This is something we could inquire. I think it is a valid point. Mr. KASTENMEIER. Thank you for your-one more question.
Mr. Drinan. On a tribunal, we have had very, very little information or comments on it, and I am very afraid, frankly, of the implications of some of this in section 806, in that you seem to reflect that, too. As you indicate, section 111 was decided upon without any economic analysis of the royalties involved, and the final determination in any proceeding must be reported to the Congress, and either House can décide within 90 days. I can foresee all types of difficulties there.
How many final determinations from the tribunal would you imagine would be forthcoming in a year or 6 months ?
Ms. RINGER. On the ratemaking, there are currently in the bill, if you include thé recent -Mathias amendment in the Senate, four. There are four separate fees that are set, and would be subject to review by the tribunal. It depends on how often the tribunal is able to review it. Under the Senate amendment, it would be once every 10 years after the first time. I would say that it would be very unlikely that all four would not be reviewed and probably changed.
Mr. Driman. Then it is very indefinite. As you intimate, it is very indefinite. What happens if either house sets it aside what happens? Ms. RINGER. I do not know: Mr. DRINAN. This is very defective legislation, then.
Ms. RINGER. It obviously does not come into effect. But what happens with the tribunal? Can it go back and try again?
Can it have a fallback it could put forward? It certainly is not clear. This does need clarification.
Mr. Drinax. Do you think it is wise to say that, upon assuring of good cause, this committee or the Senate Judiciary Committee may waive the requirement that everything be finished within 1 year? It is most unusual.
Ms. RINGER. Yes, it is most unusual. I am not sure anyone has raised that specific question before.
Mr. DRINAN, 804(e). Ms. RINGER. I am not sure you were here when I mentioned I would address the whole of that in a separate chapter next week, I hope.
Mr. DRINAN. Thank you, Mr. Chairman.
Mr. KASTENMEIER. That concludes this morning's discussions with respect to chapter V. We thank you, Ms. Ringer, and we shall next meet on Thursday, November 6, here in this room at 10 o'clock. I am not sanguine about whether it will be the last of a series of your discussion.
Ms. RINGER. May I ask, Mr. Chairman I can get through this very much faster than I have. It depends entirely on what you want me to do.
Mr. KASTENMEIER. I would say the present pace is correct. A quicker pace would be, I am afraid, too superficial for our purposes. Therefore, I think we should continue at this pace, even if it requires more than the meeting on November 6 to complete our work.
With the House calling us to the floor, we will adjourn.
[Whereupon, at 12:15 p.m., the subcommittee recessed, to reconvene at 10a.m. Thursday, November 6, 1975.].
COPYRIGHT LAW REVISION
THURSDAY, NOVEMBER 6, 1975
HOUSE OF REPRESENTATIVES,
AND THE ADMINISTRATION OF JUSTICE
Washington, D.C. The subcommittee met, pursuant to notice, at 10:20 a.m., in room 2226, Rayburn House Office Building, the Honorable Robert W. Kastenmeier [chairman of the subcommittee) presiding.
Present: Representatives Kastenmeier and Railsback.
Also present: Herbert Fuchs, counsel, and Thomas E. Mooney, associate counsel.
Mr. KASTENMEIER. The hearing will come to order.
This morning the committee again will hear from Register of Copyright in what we had hoped might be the penultimate installment of the closing testimony, but it remains to be seen whether that is achieveable. In any event, we are pleased to greet Ms. Ringer, who may take up where she left off.
TESTIMONY OF BARBARA RINGER, REGISTER OF COPYRIGHTS
Ms. RINGER. Thank you, Mr. Chairman. I think I finished the discussion of section 111 and cable television last time unless the members have any questions. If not, I will go on to section 112, which is headed, “Ephemeral Recordings," under which I would like to discuss all of the issues remaining to be discussed in connection with nonprofit broadcast.
Under that heading—this is chapter 6 of the second supplementary report draft-there are four basic issues.
The first has to do with the right of instructional broadcasting to make and distribute sound recordings of their exempted broadcasts.
The second is the so-called Mathias amendment, which has been adopted by the Senate Judiciary Committee and is now section 118 of the Senate version of the bill.
The third concerns broadcasts for the blind and physically handicapped.
The fifth has to do with the practice prevalent in the broadcasting of religious programs, which involves making tapes and disks of religious broadcasts, including copyrighted music.
Mr. RAILSBACK. Is that fourth or fifth?
Ms. RINGER. This is the fourth. The first is the Bavh amendment on instructional broadcasting tapes. The second is the Mathias amendment, compulsory license. The third is broadcasting for the blind' and
physically handicapped. The fourth is the music of a religious nature tapes.
I just wanted to try to set this framework around this discussion. I will take each one of these up separately, and perhaps the simplest thing to do would be to have the questioning after each segment because they are pretty discrete.
The first which was known, but is no longer known, the Bayh amendment is discussed on pages 3 to 8 of chapter 6. It does have a history which is traced there, and I think I can summarize it rather simply. Ephemeral broadcast tapes are traditional in the broadcast ándustry, both in this country and abroad. The term "ephemeral recordings" is a very well known one, and in effect, it is sort of an understanding or fair use type of exemption which allows a licensed broadcaster or commercial broadcaster, or a broadcaster in Europe that takes licenses for copyrighted material to make a recording, now almost always a tape, for the purpose of simplifying this broadcasting procedure. In other words, it has a license. It is understood the broadcaster should have the right to make one tape, which will allow it to broadcast or rebroadcast because of time zone problems and that sort of thing, and then destroy it after it has served its purpose. It is almost always one tape, almost always a rather short period. Six months is not uncommon.
When you get to ITV, you have a different situation. You do not have a license in the first place. The broadcasts themselves are exempted in the second place. The tapes are shopped around, as the practice has emerged over the last 15 years or so, and in the absence of an actual electronically connected network of instructional broadcasters, the tapes of these in-school broadcasts are shopped around from instructional broadcaster to instructional broadcaster, are kept for quite a long time, and are reused.
Let me run down the history of this, which has gone through seven phases already. First, the bill back in the 1960's treated unlicensed ÎTV and licensed commercial broadcasting tapes the same way. They allowed one tape for 6 months, to be kept for 6 months and then destroyed.
Second, ITV was singled out; a distinction was drawn in section 112 between commercial licensed broadcasters and instructional broadcasters, and two tapes were allowed in the latter case, and they were allowed to be kept for 1 year. I am not going into the refinements on this, but essentially it was two tapes for 1 year. Then when the bill got to the House floor in April of 1967, the instructional broadcasters, the public broadcasting representatives were successful in geeting all the restrictions knocked out completely. No limit as to the number of tapes or the length of time they would be kept.
Mr. KASTEN MEIER. May I interrupt because I do not recall myself this refers exclusively to audiovisual tapes and not sound recordings only. Is that correct?
Ms. RINGER. It could include sound recordings. I think the basic
Mr. KASTENMEIER. Does the same thing apply to sound recordings only?
Ns. RINGER. That is right. Actually, the whole concept of ephemeral recording grew up when there was not any television. As you recall
I have forgotten the phrase that was used in the old days of radio “this is electrical recording," or something like that, as announced on the radio then. I do not think any distinction has been drawn in principle.
But we are really, as a practical matter, talking about videotape.. This is where the issue lies. The Senate took the bill over from the House at this point, and in 1969 when the subcommittee reported the bill, it put a limit back on the number and the time, but raised it substantially from the House committee's limits. The Senate limits at that point were 12 tapes for years.
Then in 1974, when the bill went through the Senate and passed on September 9, the 12 and 5 were raised to 30 and 7. I might say, in passing, that 7 does have a sort of magic meaning copyright law. I have never understood quite why, but it is interesting to see. You usually come down to 7 somewhere along the line.
At the end of the Senate process, when the bill was on the floor, an amendment that had been offered by Senator Bayh to take the restrictions off again was discussed, and the feeling that is reflected in the debate was that this was not being rejected, but the consideration of it was being postponed because it was submitted too late. However, when the Senate came back to the bill in 1975, the Bayh amendment was not pressed. It was not introduced, and I am told, although I have not any personal knowledge of this, that Senator Bayh has decided not to put it forward again. So the bill was reported by the full Senate Judiciary Committee on October 7 with the 30 tapes and 7-year limit in it, and on this point I have been asked by Senator McClellan to comment, and I use as my comments in this report pretty much what I wrote to him on January 31, 1975.
The Copyright Office adheres to the position that some limitation is essential, and the 30 copies should be ample to facilitate the activities of nonprofit organizations. The circulation of as many as 30 copies, itself, presents some danger to creators since it is extremely difficult to insure that unauthorized copies are not made.
But—and there is nothing magic about the 7-year cutoff—but I believe a limitation on the period of copies, that the copies or phonorecords may be held and used, is eminently sound. In other words, the Copyright Office is endorsing the 30-copy, 7-year limitation on the theory that you have to have some limitation, and that seems to be a viable one, although it may be a little excessive.
Now, if it is agreeable, I would like to stop for questions here, or if you would rather I go on and finish the chapter, as you wish.
Mr. KASTENMEIER. Thank you. Yes; superficially, it would appear that 30 copies, 7 years would seem to be practically not a limitation, although as you point out, Mr. Aleinikoff says, it is still sufficiently restrictive to prevent practical application of this exemption through the rapidly changing electronic world of American education.
Let us make it clear precisely what he conceives of there. In what respect might practical occurrence be restricted ?
Ms. RINGER. I think there are cases now where they are.
Ms. RINGER. These are actually tape networks; that is the term that is used, and they may very well use more than 30 in some cases,