SUPPLEMENTAL REBUTTAL STATEMENT OF CHARLES L. STEWART, JR.
(NATIONAL AUDIO-VISUAL ASSOCIATION)

At the April 28 hearing, the subcommittee again heard statements to the effect that unless educational uses of copyrighted materials are exempt from copyright protection, such uses are "forbidden", "barred", or available only within "straitjackets". These terms raise a "straw man". In truth, all copyrighted materials are for sale by the publishers. Their use is not forbidden; it is solicited. Textbooks and instructional audio-visual materials are produced expressly for sale to schools, and the present copyright law, like its predecessors, affords income to the authors who conceive and create them. The present law encourages authors to devote their time and talent to sharing their knowledge through authorship. To the extent that the new law might exempt educational users from paying royalties, it would "kill the goose that lays the golden eggs". Thus the policy question is not whether to "forbid" or to permit. It is whether to appropriate works of authors and publishers without compensation, or to continue the present system of pecuniary rewards for creativity.

A second "straw man" attacked today by seekers of broader exemptions is the "monopoly" of a copyright. The exclusive rights granted by law to copyright owners are no more like forbidden monopolies than are the rights granted by deeds or leases of exclusive rights in real estate. Copyrighted works compete with each other, in the free market. Each is unique (and every parcel of land is unique) but he who owns a copyright has an exclusive right only in his own "work", not a monopoly of the market (educational or general) to which it is sold.

The present copyright law protects reading or presentation of “nondramatic literary" works. That phrase was adopted before audiovisual instruction began. It is retained in the bill before this committee. The House relies on that phrase to protect "audiovisual works" as defined in the new bill. These works should be, and can easily be, excluded from all subsections of 110 and 112 which take the place of the "for profit" limitation in the 1909 Act. Failure to exclude them by express language permits an inference that instructional educational broadcasters are being granted a right to transmit nondramatic audiovisual works by section 110 (2) and to make copies of such transmissions under section 112(b) without permission of the copyright owner. No educational broadcaster has ever sought such a right. In fact, Mr. Jorgensen has told this subcommittee today that the instructional audiovisual materials produced by private companies are far superior to the instructional television programs produced by school systems and other public sources. The outstanding products in this field derive their incentive and reward from the fact, arising under the present law, that these works are not exempt from copyright protection when they are used in instructional television programs.

A second compelling reason for this basic revision of the House version of section 112(b) is that private companies which produce films for classroom projectors are already granting instructional TV rights, at charges which are low, despite the large investment required to produce them. Although some films are made under contracts (with authors, publishers and performers) which withhold TV rights, the quantity of which is available is large and growing. The creators of these works receive full royalties from the producers of the films. It would be unjust and short-sighted to retain in the new law the broad House exemption for transmitting and copying programs for instructional TV without paying such royalties, since this would allow appropriation of the authors' works without compensation.

To continue the incentive and rewards for creating and distributing nondramatic works, it is essential that section 110 (2) of the new act as passed by the House be amended to exclude audiovisual works from its provisions and the provisions of section 112(b). The desirability of these changes is contested by no one.1 Their importance is great. They should not be overlooked in the final writing of the Senate bill, and they should be included in the Act as finally adopted.

1 The amendments to the definitions of "audiovisual works," to "perform." to "display." and "to perform or display a work publicly' and other recommendations presented in our previous statements to this subcommittee, are essential and they, too, are unopposed.

STATEMENT OF NORMAN E. JORGENSEN, NATIONAL ASSOCIATION OF EDUCATIONAL BROADCASTERS; ACCOMPANIED BY CHALMERS H. MARQUIS

Mr. JORGENSEN. On behalf of the National Association of Educational Broadcasters, Mr. Chairman, I would like to state that as a member of the Ad Hoc Committee on Copyrights, we strongly endorse the remarks that Mr. Rosenfield made here this morning.

To get to the educational broadcasting problem, I have a feeling that Mr. Karp, in stating the problem with respect to authors, particularly with respect to the widespread use of material beyond a 100mile limitation, which is the present limitation of the bill, states his problem a little bit too broadly. You have to realize that in the adopted House version of the bill that this 100-mile limitation is removed completely, but that there are some very detailed circumscriptions on that particular provision. The broadcast has to be instructional television and it has to be instructional television in very precise terms. It is that kind of exemption that we are asking for and that NAEB has always asked for.

The 100-mile limitation, to the Ad Hoc Committee and the NAEB, was never acceptable. In our summit meetings with the Register and in our discussions with Mr. Karp and his associates, that 100-mile limitation, even as far as the House Judiciary Committee was concerned, was regarded as too restrictive, and the least that education should have had was a distance of 250 miles or intrastate whichever was greater The House, in its wisdom, went beyond our conservative request, said it should be unlimited. It said there was no reason why a child who happens to be in a hinterland community should not have the advantage of a program that was produced in some more affluent area where this program could be produced but not as a regular course of instruction in his own less fortunate community.

So, I think you have to look at this wise exemption in terms of the benefit it brings to education, because it is solely education we are talking about here. Actually, one of the arguments that we made in the first instance and which I believe is a very valid argument is that any one of these educational stations regardless of its location could produce the same program which was being delivered to it an any event, and having the right to produce it in the first instance certainly put them in a position to be the beneficiary and broadcaster of any such program, irrespective of where it was produced.

So, in terms of the 100-mile limitation, which was never pleasing to us and which the House has decided should be expanded without geographical limit, certainly its elimination can do no more except to bring about benefits in the whole field of education, which is the object of the licensing of these educational stations to begin with.

In terms of recording, I do not recall as has been stated by Mrs. Linden that we agreed that educational stations should only make a recording for archival purposes. We are the first to recognize that all of broadcasting today is done more and more by means of tapes and recordings. It is the most efficient way to program any broadcast station, educational or otherwise. To limit any one educational station to two recordings, one for archival purposes and one for their own use,

would destroy this multicopy distribution system which the House has certainly recognized by permitting an unlimited number of copies. It is feasible when there is no limit on copies that all the stations who could possibly use the program will have access to it. I must say that we did not argue for limitless copies in the summit meetings that the lady referred to. But we certainly argued for more copies than the two she now mentioned and which would seem to be the limitation that our opponents would prefer to place on this type of educational broadcast.

As to competition, the competition that would exist between any private producers of educational broadcasting, educational films, and those films which were produced by educational stations, I just do not think there is any real competition present that these people seem to view, because you have programs that are not comparable in type. For example, an educational station, in cooperation with a local school system or a local university, if you will, will produce a series of 13 or 26 or 36 programs on the new math or English, or one thing or another. This kind of thing is done because they have the facilities, the teachers, and all of the know-how.

As to other film producers who are producing educational-type films, they are producing very professional type films that when compared to these educational institution's films one is comparing, for example, a Cadillac to a roller skate. These commercial people have tremendous facilities, tremendous resources and access to the means for very fine finished productions. The school system that is producing this type of instructional program that they are using for a schoolroom, simply is not the same plush production that you are accustomed to seeing in a commercial-type production. So that in terms of competition, competition in the true sense of the word really does not exist.

As far as what the House has done in terms of the removal of the artificial 100-mile limitation and the restrictive number of recordings is that they have recognized these are the present practices of these educational stations today, and this is the way they have got to continue to operate if these benefits, in terms of education, are to be continued to be brought to the American public.

Senator MCCLELLAN. Very well. There are 9 minutes left.

Mr. JORGENSEN. Well, my colleague here reminds me that I should emphasize again, although I am certain I said it and I am sure the chairman realized it, that what we are talking about is instructional television, which is severely circumscribed by the House amendment. We are not talking about public television.

For example, we are being barraged of late with a lot of publicity about public television. There are hearings that have been going on before Senator Pastore's committee, and public television, in terms of being a mighty national force as a supplementary nationwide television service to commercial service has received a tremendous amount of attention lately. We certainly do not want this committee to confuse public television with instructional television, because we are asking for these exemptions only in the area of instructional television. We think those exemptions which the House has brought to the schoolroom teacher should also be brought to instructional television, since that medium is simply an extension of that which we want our children to hear and learn in school today.

Senator MCCLELLAN. Thank you, sir.
There are approximately 8 minutes left.

Mr. JORGENSEN. We will turn back our time, sir.

Mr. ROSENFIELD. Mr. Chairman, may I just say, that in our ad hoc statement we did not refer to this matter or to the matter to which Mr. Morton spoke because of the division of time. But, I should like clearly, on behalf of the ad hoc, committee to put ourselves on record as strongly in support of the presentations that have been made by Mr. Jorgensen for educational broadcasting, and by Mr. Morton for Educom. Senator MCCLELLAN. Very well.

Do you want to yield your time to anybody else?

Mr. JORGENSEN. I will yield it to you, Mr. Chairman.

(By order of the chairman Mr. Jorgensen's letter appears as follows:)

Hon. JOHN L. MCCLELLAN,

Chairman, Subcommittee on Patents, Trademarks, and Copyrights,
Senate Committee on the Judiciary,
Washington, D.C.

MAY 9, 1967.

In accordance with the permission granted by the Chairman of the Committee, this is a short statement submitted on behalf of the National Association of Educational Broadcasters (NAEB). We also associate ourselves fully with the position in this regard taken by the Ad Hoc Committee of Educational Organizations, of which we have long been a member.

S. 597 provides copyright exemptions to the classroom teacher; NAEB urges that those same exemptions should be available to that same teacher when she appears in that teaching capacity before an educational television camera or radio microphone. Congress has the right to grant to or withhold from the copyright owner (not always the author) its protection. Thus, in balancing the public interest in this context, that American education should be the beneficiary, does not appear to be too difficult a decision. This can be accomplished in the area of educational broadcasting by following the House version of S. 597. namely, H.R. 2512, as there passed. The limited exemptions passed by the House would permit teachers to teach American children without reference to artificial restrictions regarding the distances over which programs are broadcast, or numbers of available copies of such programs, so that more remote, rural areas of our country may also be served by providing such copies by mail. This public education process is not only not a threat to any private enterprise, but is in fact a responsibility of the people to provide by all available means.

A democracy can survive only when guided by an informed electorate. What education is supporting here strikes at the base of the country's future. There should not be any obstacles thrown in the way of the free flow of information, particularly when the laudable end is the creation of a sound citizenry. NORMAN E. JORGENSEN,

Counsel for the National Association of Educational Broadcasters. Senator MCCLELLAN. I will permit you to ask a question, if that is what you had in mind, Mr. Manges.

Mr. MANGES. I just wanted to add a sentence or two to my statement that I had omitted.

Senator MCCLELLAN. Without objection.

Mr. MANGES. I would just say that even before these liberalizing amendments had been passed, the bill has been one of great advantage to the educational broadcasters. By way of illustration, under the present law, the exemption accorded to nonprofit broadcasting of nondramatic literary work does not include recorded programs. In this connection, it should be borne in mind that with respect to educational broadcasting programing, only 8 percent comprises live performance, as stated by Mr. Marquis before this subcommittee. Mr.

Marquis is connected with the National Association of Educational Broadcasters.

The bill, even before the liberalizing amendment, permitted the making and use of recordings so long as there was compliance with section 110.

Senator MCCLELLAN. Very well. The one-page rule applies to you. The committee will stand in recess until 3 o'clock this afternoon. (Thereupon at 11: 45 a.m., the hearing recessed until 3 p.m. the same day.)

AFTERNOON SESSION

Senator MCCLELLAN. Please come to order.

Mr. BRENNAN. We resume with the fourth issue, the amendment offered by Senator Harrison Williams of New Jersey, on the performance royalty in sound recordings.

We have allocated 30 minutes to the proponents of the amendment, starting with Mr. Adler.

PERFORMANCE ROYALTY IN SOUND RECORDINGS

(Amendment of Senator Williams of New Jersey)

STATEMENT OF JEROME H. ADLER, AFL-CIO MUSICIANS UNION

Mr. ADLER. Mr. Chairman, my name is Jerome H. Adler. I am counsel to the American Federation of Musicians of the United States and Canada, AFL-CIO, which includes in its membership some 275,000 professional musicians.

I have handed up a full statement, but in the interest of time and the hour, I will abbreviate.

Senator MCCLELLAN. It may be put in the record in full. You may summarize it, or proceed in any manner you wish.

Mr. ADLER. Thank you.

We appreciate the opportunity to appear before the subcommittee once again now to withdraw our previously expressed misgivings concerning the original draft of Senator Harrison Williams' amendment No. 131 to the copyright revision law-S. 597-and now to state our sincere and enthusiastic support of that proposed amendment which is being modified in response to our previous comments.

Two weeks ago on April 11, 1967--Mr. Herman Kenin, president of the American Federation of Musicians, presented to this subcommittee the urgent petition of organized musicians for the inclusion in the bill of a limited right in performers to receive equitable remuneration when sound recordings embodying their renditions are publicly performed for profit. Our petition bespoke the aspirations of all American performers-the aspirations which, for more than three decades, have been voiced in vain by actors and singers, as well as by instrumental musicians; acknowledged in principle by courts, commentators, and even the Register of Copyrights; but thus far denied in practice principally by reason of historic, rigid, unyielding opposition of free-riding users and jealous music publishers and public performance societies.