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Mr. Feist. If they bought it, Mr. Chairman?
Mr. Feist. They have it there to play. What I am referring to is the possibility that the bandmaster at high school “A” may have bought a copy of this and the bandmaster at high school “B” wants to make a Xerox copy of it and play it himself.
Senator McCLELLAN. For no profit, just for the school kids, just for the occasion of some school exercise, some school ceremony or something. I am just trying t get why in the world
Mr. Feist. To carry it to its ridiculous extreme
Mr. Feist. If we sold one copy of the band work and every band in the United States had the right to make a single copy of it, we would sell only one copy and we would not publish very much more band music.
Senator McCLELLAN. I am talking about here in the school. I am not talking about the school providing it to another school. That might be commercializing it.
Mr. Feist. That is the danger of the vagueness of these terms, sir.
Senator McCLELLAN. I realize that, and I am just trying to find the ground, the point at which you can separate the sheep from the goats and say this is right, that is wrong; up to here you will go and no further. I do not think it is easy to find that line of equity, but that is what we shall try to do or should try to do, I would say.
Mr. Feist. I, of course, can only speak about music. I am not competent to speak'as a lawyer; I am a businessman. But it would seem to me, sir, that if the activity deprives the copyright owner and the author of a potential sale or other revenue, then it is patently unfair.
Senator McCLELLAN. Suppose I am a parent and I have two children and I want both of them to take music and I buy a sheet of music and I have a copy of it made so my other two children can have it. One plays the piano and one plays something else. Suppose I buy a sheet of music and make copies of it for the other two. Have I violated your ethics, then?
Mr. FEIST. Not my ethics, no, sir.
Mr. FEIST. I listened with great interest to your question concerning your quotation of a poem. I do not speak for poets, but let me suggest that you wished to, in a speech, include a song and then I could comment. If you are going to sing as part of your speech.
Senator McCLELLAN. Suppose I got them all in a good mood and I thought a song was appropriate and I could sing–I cannot--and I just cut loose and sang that song and said, these are the sentiments I represent, these are the thoughts I wish to instill, the ideals. I would be violating the use?
Mr. FEIST. I would consider that not only fair use, but effective use, sir.
Senator MCCLELLAN. Well, I do not know whether it would be effective or not. Would I be subject then to a penalty for doing that under existing law, or do you want to make me subject to a penalty ?
Mr. Feist. I do not; I do not, indeed. I am sure that the statements of Mr. Rosenfield will be answered competently and convincingly
Senator McCLELLAN. I know there is a side on the part of the composers and so forth, but in some respects here, from my standpoint, the burden is going to be on them to show me that we ought to step in here by law and restrict the use of something that has been sold.
Mr. FEIST. The bill itself, sir, excepts and exempts all kinds of performances from the payment of royalties. Under section 109 (2) and (4)
Senator McCLELLAN. I said use it. I mean use it for enjoyment and not for commercial profit. I would not go that far, certainly, but I buy something. I am the head of the family. I think all my family should use it without paying royalties. The school buys something that has been copyrighted for the use of—well, like it buys a textbook for the use of those children, the pupils. If they took a copy to go around so each one could have a copy and study it, if the school had bought it for that purpose
Mr. Feist. May I suggest an example, sir? A school buys 40 copies of a choral work and sings it at a high school concert for the benefit of the teachers and the parents. There is no royalty collectible on that performance under the present law or under the proposed statute.
But let us assume--again I use the same example that the high school down the street wants to make copies.
Senator McCLELLAN. How are you going to police it?
Mr. Feist. That is our current problem, sir, and will continue to be one.
Senator McCLELLAN. It is a chronic problem?
Mr. Feist. Yes, sir. As long as the Xerox machines become better and better, then this will be one of our headaches.
Senator McCLELLAN. Let me ask you this. Could you make your royalties such in the beginning that it would anticipate these and make it sufficient to compensate you for such use as may be made in that respect ?
Mr. FEIST. I am afraid we would price ourselves out of the market in many cases, sir.
Senator MCCLELLAN. Go ahead. I did not mean to interrupt you too much.
Mr. Feist. I would like to make an important point, because I have been talking here in terms of music, but I want to emphasize the fact that relationships which have existed between music publishers and music educators represent, I think, a model of intelligent cooperation and mutual accommodation. I am sure that their organization, understanding the music publishers' essential contribution to their work, will not urge the exemptions which may be sought, but I want to make clear the possible impact of proposals of other groups of educators on the special area of music.
Other witnesses with the highest qualifications will testify later on behalf of music concerning the bill in general from the point of view of their particular field of activity: Their broad knowledge and profound understanding will also be brought to bear on certain specific aspects of the revision (among those the question of fair use). Therefore, I will limit my comments on these special points although my brevity should by no means suggest anything short of the strongest support of these provisions of S. 1006.
I would like to emphasize that our association considers the increase of the statutory royalty for recordings long overdue and particularly the need for this revision as it concerns recordings of extended works which, on long-playing records, can today be reproduced in their entirety on a single side. Incidentally, the statutory rate is now 2 cents a side. A 78-r.p.m. record of a symphonic work took five sides. Under today's statute, for 20 minutes of music, which could be recorded on one side of a long-playing record, we could be paid 2 cents.
Our association also considers the present jukebox exemption immoral and would like to point out that while most of the music played is popular music, nevertheless the performing rights organizations distribute to the serious composer a larger proportion than his strictly prorated share of the royalties they collect, so that some part of whatever moneys are collected from jukeboxes will, on the basis of established practices, be distributed to composers of concert music.
Senator MCCLELLAN. How are you going to regulate it? I am talking about law—a fellow goes and buys a jukebox and then goes and buys his records. At the point of sale, at the site of sale, no one knows what he is going to do with them. How are you going to police it? He puts it in the jukebox. People put their nickel or dime or quarter in there, as the case may be, and they hear it play. I am not opposed as a matter of principle—where records are used that way, they are commercialized in that sense. I am sympathetic, then, in that area toward the artist.
Mr. FEIST. I would have full confidence myself—I am not competent to make a comment on that, but I would have full confidence in the competence of performing rights societies to work out a method of collection of royalties which would be workable.
Senator McCLELLAN. Maybe they can. I was not challenging it particularly. I just raised the question.
Mr. FEIST. It is a complex and difficult problem to solve, indeed.
Senator McCLELLAN. Yes, it is. Again I come back, not being against the authors or publishers, I think they should be justly compensated. But where again a product is bought for the purpose of commercialization and not for the pleasure and enjoyment of the user, but to make a profit on it in that sense, it seems to me like maybe some royalty or some compensation to the author or the publisher-particularly the author-is justified. I do not know what arrangement is made between the author and the publisher. You said maybe they get half the royalties. That is an arrangement between them. I do not think it needs to interfere with the statute.
Mr. FEIST. I could talk at great length on the publishers' contribution. I shall not do so now.
Senator McCLELLAN. I am not challenging that. I simply say that is an arrangement that I assume you have worked out satisfactorily. I am trying to differentiate between the purchase of the record or the sheet of music or the book or the poem to be used in training, in educational and cultural advancement and not for profit. In that area, I think we can dispense with the followup or pursuing royalties, só to speak, if that is the right term. Again, in the area where it is purchased and used for profit or commercial gain and services, I think maybe the royalties should pursue that operation.
Mr. Feist. Is not the matter of use by educational people a question of the intent? I would like to depart, if I may, from music for just one moment.
There are many anthologies of poems for sale today, for almost every purpose. But there may be many teachers who would like to make their own anthology. They then would print one poem from here, one poem from there, and would make for themselves their own anthology. Would not that, although there are many little poems, would that not deprive the publisher and the author of the works included in the anthology, which is for sale, from their proper return?
Senator MoCLELLAN. Now, you are talking about where they assemble a book, put them together, publish them, and use them that way, are you not?
Mr. FEIST. Yes, these are for sale.
Senator MCCLELLAN. That might be an abuse. I do not say any of this could not be an abuse. I am just trying to lay down the broad principle in my thinking. I may be wrong.
Mr. FEIST. Well, as a matter of daily practice in publishing and dealing with commercial interests, we from time to time give to other publishers the right to publish brief excerpts without any charge. If the excerpt becomes a little longer, we make a modest charge. If they want a considerable part of a work, we may either refuse the use because we feel it interferes with our own market, or we may ask a royalty because they are benefiting from use and perhaps depriving us of a sale.
Senator McCLELLAN. Where something is taken and further commercialized and operated or made use of for profit, I am not opposed in my thinking as of now, at least to the royalty pursuing the performance or use thereof.
Mr. FEIST. I am sure this area will be pursued a great deal in subsequent testimony. I am sure there will be testimony on it that is very competent.
Senator McCLELLAN. I may say for the record that as I comment, I do it to argue with myself, quite often, to see if I can rationalize what the equities are and where right and justice may be. I do not want anyone to assume from anything I have said here this morning that I am prejudiced against the author and the publisher. I am certainly far from it. At the same time, I am sympathetic and friendly to our educational endeavors in this country and educational institutions and to the students in whom they are endeavoring to instill a little culture.
Mr. FEIST. I can say the same, Mr. Chairman, that all the witnesses who appear here in support of this bill and who may contradict some of the points that Mr. Rosenfield has made share your views. We would not be in the publishing business, we would not come here if we did not have a deep commitment to the culture and education of the country, and we share your views deeply. This is a matter of concern to us and for our authors and for our continuing market and from a fear concerning the technological developments which make it so easy to copy anything instantaneously and at very low cost.
Senator McCLELLAN. Modern innovations bring with them problems, do they not?
Mr. Fest. When my father was doing this, if I may return to that, the great problem was that new talking machine and what the record would do. Nobody foresaw at that time that the record market would become infinuitely larger than the music market. Nobody foresaw that that record would be used in a jukebox and an exemption that came into the 1909 law, without any particular testimony on the subject or any consideration, would today be a problem for publishers and authors and your committee.
Senator McCLELLAN. It simply emphasizes that it is time for Congress to review the situation and modernize our statutes in this field.
Mr. Feist. There is a provision in the bill, sir, which, although it has no effect on music, I feel I must mention. It was mentioned by Mr. Carroll. Music is not restricted in manufactures abroad. We can produce music overseas with no restriction. We do it to such a small extent that it is a fraction of 1 percent—it is almost nonexistent. If foreign manufacture of unrestricted publications is so completely inconsequential, I think that it follows that such restrictions are equally meaningless in relation to books and that such a provision in a copyright law protects no one and serves no useful purpose.
It was with great satisfaction that the world of music noted the recent passage of the arts and humanities endowment bill by the Senate. This bill indicates, more than any other of the many manifestations of America's cultural explosion, the commitment which the United States has come to acknowledge toward the arts. I submit, Mr. Chairman, with all deference, that the growth of our national culture through any of the stimulation presently being so vigorously developed will, of necessity, be shallow unless the roots of our national creativity are encouraged. The deepening and strengthening of these roots must be the aim and will be the consequence of a strong and enlightened copyright la w.
I thank you, sir, very much for the privilege of having the opportunity to appear here and testify.
(The prepared statement of Mr. Feist follows:)
STATEMENT OF LEONARD FEIST, ON BEHALF OF THE MUSIC PUBLISHERS
ASSOCIATION OF THE UNITED STATES, INO. 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.
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, 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 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 fifty leading publishers of concert, educational and sacred music. Generally,