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mitting nongovernmental professional publishing organizations to achieve additional circulation for those documents, books, and pamphlets concerning those publications. One may ask whether assignment of Government copyright might not be giving monopoly on public property, but I think royalties might be paid to the Government for the right to publish. It is in the public interest that much of the material issued by the Government should be in the public domain. It is equally in the public interest that some of the material produced by the Government be controlled by copyright and made available to customary publishing channels.
I should like now to comment on the fair use section. Senator McCLELLAN. Is that what I was discussing with the previous witness, the fair use clause?
Mr. CARROLL. Yes, sir. I should like to confine my remarks to photocopying
Just as the invention of movable type in the 15th century transformed the multiplication and distribution of the products of man's mind, so does the 20th century copying machinery transform the dissemination of knowledge. At the present rate of photocopying, it seems as though we shall all soon be hip deep in copies of one thing or another. There can be no birth control for this kind of reproduction.
Senator McCLELLAN. How did that get into this thing? That is not copyrighted yet.
Mr. CARROLL. It is control at the source of a material.
Senator McCLELLAN. Neither is that copyrighted, the source of birth control.
Mr. CARROLL. There can be no birth control for this kind of reproduction.
Senator McCLELLAN. OK.
Mr. CARROLL. For the copying machine should be as free as the printing press. However, the copier, as the printer, must recognize the property rights of the creator of the material being reproduced has and must not infringe on these rights or detract from them in any way. Our association supports the present wording of the bill, wherein fair use is not defined. We also recognize the
principle of freedom to make one copy of a portion of a book or a periodical or a document in a nonclassroom situation as a substitute from manual notetaking. We believe that the making of multiple copies without authorization, for whatever purpose under whatever auspices, is not fair use. It is proper that the doctrine of fair use be recognized in the bill but that the burden of definition be left to the courts, as is the situation at present.
As you may know, several of the book publishing associations, the American Book Publishers Council and the American Textbook Publishers Institute, are seeking better definitions of certain phrases and statements in this general part of the bill, and we subscribe to their efforts to have a clearer understanding of what is meant by transmit, exhibit, perform, and the like.
The last section on which I should like to comment is the manufacturing clause. The Association of American University Presses has consistently opposed without qualification the inclusion of a manufacturing clause in the new copyright bill since the matter of foreign manufacture is one for tariff regulation and is not only inappropriate for a law regulating intellectual property, but also indefensible, since it places at a disadvantage American authors whose works are manufactured abroad. I think that there should be no tinkering with the language of the chapter, no trading back and forth of the number of copies which may or may not be imported, no closing of loopholes in the language. I think that this wall, this barrier, should be completely removed. It is an artificial barrier and I think one of the things that may face us if the manufacturing clause is retained is that other countries may impose on our country, which is a major book exporting country, the same kind of manufacturing restrictions dealing with the use of American books in their own countries.
I would like to call to the committee's attention one brief section in my prepared statement dealing with the manufacturing clause.
If you had designed and built a house for yourself, which required imported materials for its successful completion, you would not object to paying reasonable tariffs on these materials, if they were required to protect American manufacturers. But you would object-strenuously and on principle—if such foreign manufacture threw a cloud on your title to the house you had built. An author's book is the house that he designed and built. The copyright is his title to that house. It is outrageous that such title should be jeopardized for any. thing other than malfeasance or nonfeasance on his part.
Thank you, Mr. Chairman
With your statement, as with all others, we are going to have to review it and study it. We are kind of hurrying along here to make this record, because we work under such stress in the Congress today, there are so many things that are pressing and require attention that it is just impossible to fully appreciate and understand all of the arguments that are presented to us pro and con on the issues that are involved in some of this highly technical legislation.
Thank you very much, sir.
Senator McCLELLAN. Mr. Feist, I notice you have a prepared statement, a rather lengthy statement. Would you like to insert it in the record and highlight it, or do you want to read it? STATEMENT OF LEONARD FEIST, CHAIRMAN, LEGISLATIVE COM
MITTEE, MUSIC PUBLISHERS ASSOCIATION OF THE UNITED STATES
Mr. FEIST. I would like to insert it in the record, Mr. Chairman, and to read certain parts and attempt to summarize other parts.
Senator McCLELLAN. The statement will be printed in full in the record, and you are at liberty to select passages from it and read that if you like and comment upon it and fill in anything you think you may have omitted in your statement, or emphasize anything therein you think of special importance and urgency for the committee's consideration.
Mr. FEIST. Thank you, Mr. Chairman.
Mr. Chairman, my name is Leonard Feist. I reside at 180 East 79th Street, New York City, and appear before this committee today as chairman of the Legislative Committee of the Music Publishers Association of the United States, an organization of which I am a past president.
Senator McCLELLAN. Does that have any relation to ASCAP? Mr. FEIST. No; members of the MPA are affiliated with ASCAP insofar as performing rights are concerned.
Senator McCLELLAN. Off the record. (Discussion off the record.) Mr. FEIST. I am grateful for the opportunity to testify before this committee on S. 1006, the copyright revision bill. Apart from all other considerations, it has a very unique meaning for me and I beg your indulgence if I make a brief personal comment. During the years from 1906 to 1909 when the last previous copyright revision was being considered, my father, a publisher of popular songs of some eminence and incidentally a founder of ASCĂP-made many journeys to this city. He came on behalf of the publishers and composers of his day to participate in the development of a new copyright law for the United States which would be more effective and workable in the light of those conditions in the field of music which had developed in the first decade of this century. My own music publishing activities have been concentrated on concert music, but my purpose at this time is identical with that of my father in his time—to urge passage of a new copyright law which will afford proper protection for composers and publishers in terms of the situation which prevails today. And thus, in my journeys to this city, I feel a deep sense of historical continuity, both personal and professional.
The Music Publishers Association of the United States is the oldest of music's trade groups, having been established in 1895. It has a membership of some 50 leading publishers of concert, educational, and sacred music. Generally, we are referred to as "standard" music publishers. But as time goes on, the line of demarcation between standard publishers and popular publishers becomes less and less sharply defined.
Our counsel may wish and we hope will have the opportunity of commenting on certain technical and clarifying portions of the bill, but I wish to say at this time that our ogranization appears here to express its wholehearted support of this bill.
We would like, at this point, to congratulate the Register of Copyrights and his able staff and to express our admiration for the successful resolution of the many complex problems which faced them in developing a copyright revision bill that would be appropriate to the times.
The standard music publishing business has changed remarkably in the 56 years since the passage of the last copyright law. In 1909, our business consisted entirely of the sale of paper, of sheet music. We depended entirely upon that for our income and it was a business of some profit. We did not even at that time receive royalties on phonograph records, because they became a subject of protection only on July 1, 1909.
Senator McCLELLAN. Is that when you first began to make phonograph records?
Mr. Feist. The phonograph was invented, Jr. Chairman, in 1878. Music, I believe, was first recorded on records in 1904. But only with the passage of the 1909 statute were records susceptible of payment of royalties to the composer under the copyright law.
Senator M.CLELLAN. Off the record. (Discussion off the record.)
Mr. Feist. Our greatest market at that time was the general musical public, the person who bought sheet music and played it for his own pleasure and the pleasure of his family circle. I deal in my statement with the type of music which was current at that time and being published by our members. We did, of course, have a large sale to church groups. The church field has always been a very important area of our activity. There were some small royalties which we received from symphony orchestras for their occasional performance of copyrighted music, but it was the sale of sheet music which supported our industry.
During the intervening years, it is almost unnecessary to point out the changes which have occurred. The market among the general music public has almost completely disappeared. Today, our market is through sale to the educational world. We sell, of course, continually to the churches. We have no sale to professional performing groups, because music of that kind today is usually available only on rental.
Senator McCLELLAN. You heard me discussing this educational aspect of the copyright situation with the previous witness, Mr. Rosenfield ?
Mr. FEIST. I did, indeed.
do you? Mr. FEIST. Oh, yes, we have a very strong interest in it, Mr. Chair
I shall come to that later in my statement and make a passing comment on Mr. Rosenfield's statement.
Senator McCLELLAN. Go right ahead.
The total sales of all sheet music, including popular songs today, amounts to somewhat less than $40 million a year
Mr. FEIST. Without income from rights, broadcasting rights, record rights, and other subsidiary rights, there would, to most music publishers, be no profit.
Senator McCLELLAN. Do I understand that out of the royalty that is paid to the composer, you get a percentage of that as publisher?
Mr. FEST. In general, royalties from, let us say, phonograph records are divided equally between publisher and composer.
Senator MCCLELLAN. All right, go ahead. Mr. Feist. You see, rights have come into being since the passage of the 1909 law which in fact do support our enterprises.
Now, if I may read, in the first decade of this century, music was essentially a matter of personal presence and was heard within earshot of live performers, and unless the performer had, by his diligence, committed the piece to memory, it was performed from the printed page. Thus, the sound of music and the printed note were completely bound together.
In the day-to-day musical experience of the public of the 1960's, the sight of the page of music is almost nonexistent. Most of the music which people hear comes to their ears through one or another of the
electronic devices which have come into being and which are becoming almost omnipresent. Indeed, today, a whole body of music never appears in print, since it is composed purely for purposes of performance without any expectation of the sale of copies. As a matter of fact, in the experimental areas of composition today, the sounds are not even made by live musicians, but are produced by electronic impulses in a laboratory, removing the written note completely from the communication of the sound. This makes the inclusion of sound recordings as an additional subject of copyright an important factor in revision, since it will not only give protection to the improvisational creations which are the essence of jazz and other areas of expression, but also to music created directly in sound for which no notation has yet, or may ever, be developed.
Senator McCLELLAN. Well, I am trying to remember; on the Lawrence Welk program, do they not have sheet music before them? You said it is never used any more.
Mr. FEIST. Probably in the case of Lawrence Welk, special arrangements are made for the particular instrumentation.
Senator McCLELLAN. I think I have seen them turning sheets.
Mr. Feist. That is quite possible, sir. I am perhaps overstating the case. But I wish to indicate that music comes to us through sound rather than through the concrete page of music.
Senator McCLELLAN. All right. Mr. FEIST. A matter, I think, of essential consideration in the area of copyright protection, and a matter of national consequence, I feel, is that growth of America as a creative force in the art of music. In 1909, for example, I believe that no American publisher involved himself to any degree with serious music, or what I prefer to call concert music, which was created by American composers. During the 1920's there was a real quickening of American creativity. We had composers who were providing something which was unique and native.
Following that, and as a particular gift of Mr. Hitler, the United States welcomed almost every composer of eminence from Europe. These composers were coming here as refugees, were invited to teach at our universities. They taught our younger composers. As a result of their influence and our own creativity, we have in the United States, in last decades, grown into a major creative force in music. It has been a growth that is remarkable in the history of music. There has never been one as quick; there has never been one that has been as explosive Perhaps some day, we shall become exporters of our concert music, just as today we are exporters of popular songs; the whole world dances to our American tunes. At the present moment, we are importers of concert music.
This cultural explosion, I think, is an important essential in our consideration of American copyrights.
I am proud that American music publishers have risen to the challenge of the "explosion" in American musical composition, and despite a timid beginning, are today assuming their professional responsibility for the musical art of their country. I must point out that this has been an act of faith, for, sad to say, the economic impact of the publication of this music is presently negative. The publisher's financial investment is seldom recouped, even over a long period of years. His investment of his energies will never be recouped.