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Congress cannot repair these past wrongs, but it can and should do something about avoiding or minimizing them in the future. There is, in the United States today, no more vital and creative force than that of performed music. Adequate protection for those responsible for this creative force involves much more than economics and the ability or willingness of various communications media to pay performing royalties. It is, first of all, a matter of justice and fairness; but, beyond that, it is in the paramount national interest to insure that growth in the creativity and variety of the performing arts in this country is actively encouraged by reasonable protection rather than stunted or destroyed by the lack of it.
There are problems with the bill in its present form. It is cast in the form of an amendment to title 17 of the present law, and I do not think that it will quite work in that form. There is no doubt in my mind it could be made to work in another form.
It is less important whether the performance royalty for sound recordings be established under the revision bill, or through separate legislation, or just exactly how it is done, than that Congress act affirmatively by declaring itself in favor of the principle of such a payment. Whatever form the legislation takes, I recommend that such a step be taken by the present Congress and that, recognizing the damaging effects of legislative inaction in the past, it not again postpone this affirmative declaration to another Congress, or another decade, or another generation.
At the same time it must be said that, on the basis of experience, if this legislation were tied to the fact of the bill for general revision of the copyright law, there is a danger that it could turn into a “killer" provision that would again stall or defeat omnibus legislation. This danger exists even more clearly than when I testified to this same effect last July, and would be very severe if the potential compulsory licensees-notably the broadcasting and jukebox industries-exerted their considerable economic and political power to oppose the revision bill as a whole. Should this happen, there could be no question about priorities. The performance royalty for sound re.cordings would have to yield to the overwhelming need for omnibus reform of the 1909 law.
I pass on now to page 29 of my statement, Mr. Chairman, in which I am trying to lay out some alternatives, because we do have a terrible confrontation and impasse on this issue.
An obvious possibility would be for Congress to accept the principle of payment but delay implementation for a period long enough to allow the working out of a viable compulsory licensing procedure.
Another possibility would be, as in the case of the previous legislation on copyright for sound recordings, to put a terminal date on the legislation, leaving it to a future Congress to judge on the basis of actual experience whether it should be extended permanently.
Other alternatives might include a transitional period during which all payments would go to the National Endowment for the Arts while a workable procedure for distributing license fees to individual copyright owners was being worked out.
I am not committed to any of these, and all I really wanted to say is what I expressed at the end of mv statement, which is my hope that these alternatives and others might be worked out and explored in a spirit of goodwill and give and take, with the aim of providing a framework in which the fairest and least burdensome payment mechanism could be established.
That is the end of my chapter, Mr. Chairman.
Ms. Ringer, I wonder if you could be a bit more affirmative or declarative about the possibility of détente?
On page 29 you ask is it unrealistic to hope that the commercial users of music would sit down with their alleged enemies; is there any movement toward that?
Ms. RINGER. As a matter of fact, such movement has not been achieved. As a result of the hearing in the Senate, there was an effort on the part, as I am told, of the proponents of the legislation to meet with representatives of the broadcasters to discuss possible alternatives, but no such meeting could be arranged.
Following that, as I indicated earlier in my statement, Mr. Galodner, representing the AFL-CIO council of professional employees, which is 20 national unions, wrote to Chairman Rodino stating that the council felt very strongly about the revision bill and, in effect, could not support it unless it contained a provision such as the old section 114 or the Danielson bill.
Mr. DRINAN. I take it you felt that any head on clash between the AFL-CIO and all the people that follow them, all the unions you mentioned here, and the sound recording industry, that is a David and Goliath.
Ms. RINGER. It is not the sound recording industry; they are allied on this issue.
Mr. DRINAN. This coalition.
Mr. DRINAN. I am trying to figure out how strong they are. From all your past experience over the 10 years, you make a very effective case in my mind for performance royalties, and you depart from your usual objective, impartial way, and you state their case very strongly. I am persuaded.
Let us hope that the détente you speak about on page 29 could happen.
Mr. DANIELSON. Would you ask the Register of Copyrights which way would the public interest best be served?
Mr. DRINAN. I think she has made it very clear. I will quote her beautiful prose. She can speak for herself. She speaks so well.
This is beautiful. “The results have been tragic: The loss of a major part of a vital artistic profession, the drying up of an incalculable number of creative wellsprings. The effect of this process on individual performers has been catastrophic, but the effect on the nature and variety of records that are made and kept and released, on the content and variety of radio programs, has been equally malign. Most of all, it is the United States public that has suffered from this process.”
Mr. DANIELSON. Her words with your baritone voice was good.
Ms. RINGER. I would pass on now to chapter XII which involves Federal preemption and duration of copyright.
Let me say, first, Mr. Chairman, that at one time, this was unquestionably the most controversial and debated issue in copyright revision.
This has not, however, been true for at least 10 years and probably quite a bit longer than that. I believe that the concept of a single Federal system of copyright is now almost universally accepted. There was no opposition to this concept in your hearings in 1975. The question of duration is still an issue, but I think if it is looked at in perspective, it should not be regarded as major.
I would leave you in no doubt, Mr. Chairman, as to my own feelings on this, which are very strong, and that is that the term of life of the author plus 50 years is the very heart of this revision bill.
Returning to the chapter as I have written it, the provisions I am discussing are summarized briefly on pages 2 through 3, and on pages 4 through 7 I attempt to discuss the present status of section 301, and I return to that now.
The Federal preemption provision in the bill has stayed pretty much the same since the early 1960's. What has happened is the result of a series of decisions by the courts, including the Supreme Court, which have had a sort of roller coaster effect with respect to Federal preemption, but which under the present law, as I think most people interpret it, requires some technical changes in section 301. These were drafted by various members of the copyright bar, and were adopted in the Senate version. The Copyright Office endorses them.
I do not think I need to go into the details of this except on one point, which must be discussed at some length, and this is set out as issue No. 2 in chapter XII of the draft report: should sound recordings fixed before February 15, 1972, be made to an exception to the Federal preemption presented by section 301 ? Let me read from page 10.
A unique and difficult problem is presented with respect to the status of sound recordings fixed before February 15, 1972, the effective date of the amendment bringing recordings fixed after that date under Federal copyright protection. In its testimony before the House Judiciary Subcommittee on May 8, 1975, the Department of Justice pointed out that under section 301, as then written, “this language could be read as abrogating the antipiracy laws, now existing in 29 States relating to pre-February 15, 1972 sound recordings, on the grounds that these statistics prescribe activities violating rights 'equivalent to * * * the exclusive rights within the general scope of * * *.'" Certainly such a result cannot have been intended for it would likely affect the immedate resurgence of piracy of pre-February 15, 1972 sound recordings.
The Justice Department pointed out this would not apply to recordings after February 15, 1972. Therefore, they recommended that these pre-1972 recordings simply be exempted from the effect of preemption. In other words, left under either Federal, or under State common law or statutory protection. The Senate Judiciary Committee adopted this suggestion and the Senate report which you received this morning states so, on this point. At the present time 32 States prohibit record piracy by statute and far more do so under common law.
The Congress and many States have determined that record pirates unfairly appropriate the property, efforts and capital, of the legitimate music industry. There is no justification for exposing pre-1972 recordings to expropriation by record pirates.
The result of this amendment would be to leave pre-1972 sound recordings as entitled to perpetual protection under State law while post-1972 recordings would eventually fall into the public domain as provided in the bill. The Copyright Office recognizes that under recent court decisions most pre-1972 recordings are protected by State statute and common law and that they should not all be thrown into the public doman instantly upon the coming into effect of the new law. However, we cannot agree that they should, in effect, be accorded perpetual protection as under the Senate amendment.
A possible solution would be to revise clause (4) [the new provision in the bill] to establish a future date for the preemption to take effect. This date-perhaps a bit breathtaking-might be February 15, 2047, which is 75 years from the effective date of the statute extending Federal protection to recordings. That sounds like a long time, but I would only point out that it is in comparison to eternity, on the length of term.
I do not make a big point of this. I try to lay out in the first part of the chapter the arguments that have been put forward with respect to lengthening the term, in principle and of the life plus 50 term, in particular. This has been a long-debated issue and is something on which we have very strong feelings. I will read from page 12:
Although the length of the term of copyright, as provided in the bill, was challenged by the Department of Justice, the National Education Association and certain tape duplicators at the 1975 House hearings, no real issue was made of the question of duration. The life-plus-50 term is strongly favored by a wide range of interests and it seems clear that it is accepted by most others. The Copyright Office considers it the foundation of the entire bill.
The last point in this chapter, Mr. Chairman, is not really very important and I would like to skip over it, if I may.
Mr. DANIELSON. Surely. Ms. Ringer, are there any questions? Mr. Drinan.
Mr. DRINAN. Simply on page 8-I am not certain I understand what the new law provides with respect to the renewal of copyrights.
Ms. RINGER. The renewal provision is dropped entirely for works coming under the copyright law after the effeetive date of revision bill. There are provided under chapter 2, and also under chapter 3 to some extent, provisions under which individual authors can recapture their copyrights, by termination of transfers. One element of the present renewal system is preserved in the bill, in a somewhat different form for subsisting copyrights in their first term on the effective date of the new law. The provision uses exactly the same langauge as under the present law, which was preserved because of the fact that there have been enormous amounts of trafficking in contracts for future interests with respect to renewals.
Mr. DRINAN. Are you satisfied with what is stated about renewal in S. 22?
Ms. RINGER. Yes.
Mr. DANIELSON. This is a good point to suspend for a few moments. We have a rollcall vote on an amendment to the tax law, and we are going to have to leave in a minute anyway, so we will recess. I respectfully request that my colleagues come back as soon as possible; perhaps, we can enable Ms. Ringer to conclude her testimony today then, but we must go now to vote so we will stand in recess for about 10 to 15 minutes.
[A brief recess was taken.]
Mr. KASTENMEIER, (chairman of the subcommittee). The subcommittee will come to order.
I regret to make an announcement—it has to do with procedure on the floor that will make it impossible for us to continue, at least beyond this segment. I do not think other members will be returning.
The procedure adopted is that each of these very important amendments on the tax reform bill will be debated for 10 minutes, and then there will be a formal vote. So I would propose to ask Ms. Ringer to sum up as to where you were before, anticipating, perhaps, 10 minutes or so we will have another vote. We will then conclude for the morning, and we will reconvene on next Thursday, or at such other time that is convenient. If it is necessary to call another meeting it will probably be on next Thursday, probably at 9:30 in the morning.
At this time of year we tend to be running into House sessions, unfortunately running concurrently with our own hearing. Should there be a need for another meeting, we can judge that following the con. clusion of Ms. Ringer's remarks.
Ms. RINGER. Mr. Chairman, may I suggest that perhaps I can finish even in 10 to 15 minutes if I skim quite a bit over what I have here.
The next chapter is formalities in infringement, and these are mostly technical questions. I have eight issues laid out, and I think that really only two of them need be addressed directly by way of summary.
Mr. KASTENMEIER. Had you concluded the discussion of Copyright Royalty Tribunal?
Ms. RINGER. No.
I thought this is the very last major issue I wanted—I think if I can get onto the last chapter, chapter 15, I can cover the fee bill your bill to raise the fees, and other purposes of the Royalty Tribunal very quickly, and perhaps that might be sufficient.
Perhaps it would be simple enough to simply skip over chapter 13 on formalities and infringement, simply noting we would recommend that some improvements be made in the deposit provisions--the provisions for deposit of copies of phonorecords for the Library of Congress, and to note that the Senate has adopted some fairly extensive revisions in the criminal infringement section dealing with seizure and forfeiture, consistent with the Justice Department's testimony on May 8.
Unless you want me to go into anything further in that chapter, I will pass right on to chapter 15, and discuss only the fee bill and the Royalty Tribunal.
I am well aware that the Royalty Tribunal is one of the major issues in the bill. If you would prefer to continue the testimony on that later, Mr. Chairman, I will be entirely at your disposal.
On the fee bill, discussed on pages 4 to 12 of the chapter, I think that I can summarize what I want to say by simply urging this subcommittee, if at all possible, to enact this separate legislation in advance of general revision, as soon as possible.
The bill does three things: It would raise the fees, which have not been raised since 1965, and which presently recover less than 40 percent