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Genius belongs to the composer; risk, patience, and faith in our native musical creativity and its ultimate success are the publisher's contribution to the process of America's artistic growth in music.

The establishment of the works of serious composers as part of the general repertory is an exceedingly slow process. Thus, the proposed extension of the term of copyright to life plus 50 years has a particular importance to our serious composers and their publishers. Now, indeed, copyrights of numerous works expire almost coincidentally with their public acceptance. Often composers do not live to see their own success, and with the present term of copyright, their families do not enjoy the fruits of the composers' genius. It has been said that the extension of term will stimulate composition because the rewards will continue for what will, in nearly every case, be a longer period of time. Certainly, if the rewards are greater, more talented people will be persuaded to devote their lives to artistic creativity, and I believe it a valid hypothesis that the greater the body of creative artists at work in any country, the greater the possibility that genius will strike.

In the spring of this year, the Rockefeller Brothers Fund published a panel report-Mr. Alienikoff, yesterday, particularly thought some proponent of the bill would quote from this very able and searching study. Its title is “The Performing Arts: Problems and Prospects. I have attached to my statement exhibit A) the list of the distinguished Americans who were members of that panel. The report states that not every member of the panel subscribes to every detail of the report, but that the report reflects their substanial agreement. I quote the following from the section dealing with copyright as an influence on the arts in America:

There are other ways by which revision of the federal copyright law could better protect the creative artist. One of the most important of these is extension of the time span of copyright protection—now a twenty-eight year original period with a renewal period of twenty-eight years—to a term comparable to that prevailing in England and most of Europe, which is the author's lifetime plus fifty years. At present, many elderly artists are in the curious position of outliving the royalties on their early works just at the time of life when this income may be most valuable to them.

Another matter of justice and equity to the composers and their publishers is the elimination in the proposed bill of the present exemption of public performance of nondramatic literary and musical works where the performance is not for profit.” In 1909, as I have noted, the major part of the composers' and publishers' income came from sales. All music was printed and was available only in that form. Today, music, as I have said, is universally available as sound and its public performance is omnipresent. In fact, it must be the serious composer's chief source of income, if he is to be compensated for his creativity.

Just as the current statute takes note of the fact that the dramatist's compensation must coine entirely from performance of his work, whether for profit or not, since sales of plays are negligible, so too must the composer's present situation and his right to royalties from all performances of his work be recognized.

One of the greatest users of concert music, chiefly through recordings or tapes, is the educational broadcaster whose activities are now deemed "not for profit.”

Of course, radio makes much greater use of music in its programing on a continuing basis than television. Educational radio, in fact, competes with commercial radio for listeners to concert music. Performers, engineers, announcers and others are all paid in one or another. But the composer is not now compensated, and this seems neither equitable nor to give encouragement to the creative art of music. On this subject, the Rockefeller panel report had this to say:

But perhaps the most serious threat is the current advocacy to exempt educational institutions from the obligation to pay royalties for the performance of musical, dramatic, and literary works. Some educational associations are seeking to gain a very broad exemption in the revision of the copyright law on the use of artistic creation, extending even to an exemption for mimeographed material used by a teacher in a classroom. But their efforts are focused on gaining freedom from royalties and control by the author of material used by educational television. Although educational television, in its initial stages, clearly deserves concessions and intelligent cooperation in its development by artists, there seems no reason why it should receive blanket exemption from the payment of reasonable fees. Were it to receive this exemption-indeed, if any educational institution were to receive it-artists would once more be in a position of being forced to provide a partial subsidy for the general culture and intellectual development of the nation.

It would strike me as ironic, gentlemen, if educational broadcasters resist payment of some moderate royalties—some reasonable royalties for the right to broadcast copyrighted music. It would seem to me to be out of keeping with the traditional cultural role of the universities and other institutions which support these broadcasting facilities, frequently out of tax moneys. One would hardly expect a university press—such as represented by Mr. Carroll—to refuse to pay royalties to the authors of their books, and, indeed, they, as a matter of universal practice, do pay royalties. They pay fees for permission to include excerpts from copyrighted works in their compilations and in their publications. Universities proudly maintain composers in residence, and it would be strange if they failed to acknowledge their obligation to composers not in residence whose music they use to such a great extent.

I mentioned before, Mr. Chairman, the growth of American music education to the point where it represented the greatest amount of our sales of sheet music. I was not aware of the fact that representatives of the ad hoc committee of educators would appear before my appearance here when I wrote my testimony. So I had anticipated in my statement some of the things which might be included in their testimony.

Music is especially vulnerable to what seems to be the position of some members of this group. Should it be proposed, for example, that a school be permitted to reproduce a single copy of a complete work, just one copy, I would like to point out that in terms of music for band or orchestra, which include the instrumentation and parts for all the performers, a single copy satisfies the total demand.

Senator McCLELLAN. Well, let me see if I understand. Here is a composer who has composed a march, we shall say. He arranged to have that published by the industry you represent. It is published. The sheet of music is sold. The school buys it. For that, it pays some royalty. Now, they want to get out on the football field or somewhere and play that march and they cannot copy the music without paying a royalty again, is that so?

Mr. ator McThey have ba

Mr. FEIST. If they bought it, Mr. Chairman?
Senator McCLELLAN. They bought a sheet of music.

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 extremeSenator McCLELLAN. That is what I am thinking we may be doing. 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. Senator McCLELLAN. I mean the principal you are espousing here. 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.


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