longer than 8 minutes; indeed, if I interpreted his statistics correctly, and perhaps I did not, only four-tenths of 1 percent of total sales are in excess of 8 minutes and 1 second, and up to 9 minutes, and only four-tenths of 1 percent over 9 minutes and 1 second.

So, as a practical matter, the last clause in the disjunctive is pretty meaningless, is it not?

Mr. MEYERS. I would not say that. Professor Glover is sitting here. He can explain his figures, but we know that there are many classical records that go far beyond 3 minutes, and I do not know his category, whether he was talking in terms of popular singles or not.

Mr. PoFF. It is not a question of 3 minutes, it is a question of 8 minutes.

Mr. MEYERS. Well, I will say that the record many times goes beyond 8 minutes.

Mr. POFF. Am I incorrect in the statistics I have just quoted; namely, four-tenths of 1 percent between 8 minutes and 1 second and 9 minutes!

Mr. GLOVER. These do not include classical releases, these are popular records; some of the classical run 43 minutes, and so forth.

Mr. POFF. I understood this was a rather minimal amount. I am told that the classical LP phase is a losing industry.

Mr. GLOVER. It is. If you like, we can file some additional information on that. One of the very severe problems of recording current serious music is that it is already deeply in the red, and if you applied this proposed increase of a cent per minute or fraction thereof, it would put Aaron Copland so much further in the red, and some of these others, that you would scarcely have them recording.

Mr. POFF. I believe the burden of my question should be plain. Does this alternative of one-fourth cent per minute really mean a large amount in dollars and cents, and if it does, how? That is the question I really would like to have answered.

Mr. GLOVER. Sir, I think we are talking a little at cross purposes. The proposal that Mr. Meyers made on the quarter of a cent, this is the current practice.

Mr. POFF. I understand.

Mr. GLOVER. And we are distinguishing that from the proposed legislation which is a cent per minute, or part thereof.

Mr. POFF. Yes, sir; my question applies to his proposal. If it should be written into the law, would it be meaningful in dollars and cents, considering the fact that apparently very few selections that are subject to the royalty itself are in excess of 8 minutes?

Mr. BRIEF. If I may, please, Mr. Chairman

Mr. KASTENMEIER. Mr. Henry Brief.

Mr. BRIEF. When the law was written in 1909, it was in the early days of your cylinder and disk records which operated at 78 revolutions per minute, on which you could not really get more than one selection running more than about 3 or 4 minutes on a side. The law not having been revised since then, but technological changes having occurred in our industry since then, the question arose when the longplaying record was developed: what do you do now when you put the equivalent of six single records on each side? Do you still pay just 2 cents because it occupies one side of a record? And through volun

tary agreement, the industry said, "No, we will pay you the equivalent as if we were using six individual records per side."

The question furthermore arose, when you have a lengthy composition, like a symphony which still is copyrighted, do you still just pay the 2 cents just because it is actually one band that takes up 22 minutes of a side? And the industry said, "No, we will pay you onequarter of a cent per minute of playing time, or fraction thereof."

This has been the industry's practice voluntarily agreed to and in use today.

Mr. POFF. How much revenue is involved in that practice, the onefourth cent payments?

Mr. BRIEF. You catch me unaware. I will tell you I have an approximate idea of the total dollar volume accrued from classical LP recordings, but I do not know how much of that is in public domainBeethoven, Bach, Brahms, and so forth-and how much of that is still copyrighted, and I do not have an answer for that.

Mr. POFF. So that I may be absolutely correct, the figures Professor Glover used this morning excluded classical?

Mr. GLOVER. That particular exhibit 1 in the addendum refers only to the popular.

Mr. POFF. I see a gentleman there who wants to say something. Mr. Hawkins.

Mr. HAWKINS. David Hawkins, of Harvard University.

I put together this particular table, Mr. Poff, and let me clarify it for you. It includes popular selections only. If the proposed statute is left at 1 cent, this will have a dramatic impact upon popular records; in fact, 26.4 percent of popular selections run longer than 3 minutes as indicated by this particular table, and that 26.4 percent would bear the full brunt of the 1 cent.

It is my understanding that the 1-cent rate was put in to somehow compensate the classical copyright holders who claimed because they had a 42-minute piece they were not getting a fair break. There is no practical way to distinguish between what is classical and nonclassical for the purposes of this 1 minute of playing time provision, so it would fall equally on both the classical and popular selections of the industry. The impact on the classical area would run more to the availability of classical records rather than to total dollars; it would have the impact of raising the copyright fee on classical records from approximately 10 cents to something on the order of 40 cents, an increase of 30 cents on that part of the industry, as you heard this morning, which did not have large sales but was important qualitatively rather than quantitatively, in terms of the music appreciating public.

In terms of the popular music, the 1 cent would fall very heavily on the popular music. You would certainly find, I will guarantee, most selections would run to 3 minutes or less irrespective of the merit of cutting off at that point, because the cost of going from 3 minutes to 3 minutes and 1 second would cost a penny per selection sold. This is where the impact would be very large. In fact, 26.4 of the present releases would feel the impact of this 1 cent per minute of playing time provision.

While the proposal Mr. Meyers makes of moving to one-quarter of a cent may not have much of an impact on the popular area, it may not also have much of an impact on the classical area, because it reflects current practice, and, as we saw this morning, it certainly reflects the economics of the classical industry. Composers realize the economics of this business is pretty poor in the classical area, so they have agreed to the one-fourth cent rate.

Mr. POFF. I thank you gentlemen. I see now what I did not see when I first asked the question.

Mr. HAWKINS. This is a confusing table, sir.

Mr. POFF. I would like to summarize, and I hope you will agree that it is fair. If not, point out the particulars in which it is unfair. You favor the bill as proposed except with respect to that part which most immediately affects the industry of which you are a specific part, and the amendments which you have suggested are designed specifically to relieve what you feel would be an unfair imposition in section 113 on your specific part of the industry?

Mr. MEYERS. That is correct.

Mr. POFF. Thank you, gentlemen.

Mr. HUTCHINSON. I have no questions.

Mr. KASTENMEIER. Are there any other questions? If not, I want to thank you, Mr. Meyers, and Judge Arnold, and all the other witnesses who testified today.

Mr. ARNOLD. Mr. Chairman

Mr. KASTEN MEIER. Judge Arnold.

Mr. ARNOLD. Now if any of the committee cares to stay, I do not want to hold you, but we have a rather dramatic portrayal-and it is not a stunt-which I think rebuts what has been the attitude sometimes of the Copyright Office, that our creative contribution is minimal. It will take about 5 minutes.

Mr. KASTENMEIER. May I suggest this. The Chair would like to make an announcement. We will adjourn, but I hope all members will stay and listen to the tape.

We will hear on Wednesday next at 10 o'clock in the morning from a number of witnesses representing the film industry, certain printing industries, and audiovisual associations.

So the subcommittee stands adjourned then until 10 o'clock on Wednesday next.

(Whereupon, at 4:35 p.m., the subcommittee adjourned, to reconvene on Wednesday, June 16, 1965, at 10 a.m.)

(The following material was received by the subcommittee:)

Re H.R. 4347.

HERBERT FUCHS, Esq.,

KAYE, SCHOLER, FIERMAN, HAYS & HANDLER,
New York, N.Y., June 2, 1965.

Counsel, House Judiciary Committee, Subcommittee No. 3,
Washington, D.C.

DEAR MR. FUCHS: I am writing as general counsel for London Records, Inc., to state that my client endorses the position of the Record Industry Association of America, Inc., of which it is a member.

Although I had asked to testify when the hearings were first announced, discussions with others in the phonograph record industry now make it clear

that any statement on behalf of London Records, Inc., would merely be cumulative. Under the circumstances, there would be no point in my taking up the committee's time by appearing in person.

I should appreciate it if this letter could be made part of the record so that the position of London Records, Inc., will be noted.

Very truly yours,

SIDNEY A. DIAMOND.

NEW YORK, N.Y., June 8, 1965.

Re H.R. 4347, etc., general revision of the copyright law.
Hon. EMANUEL CELLER,

Chairman, Committee on the Judiciary,
House of Representatives, Washington, D.C.

HONORABLE SIR: Thank you for invitation extended Mr. Sidney Frey, of Audio Fidelity, Inc., to testify before your committee in the above matter, on June 10, 1965. Unfortunately Mr. Frey is in Europe on a previously planned trip.

However, herewith transmitted is copy of letter of March 5, 1965, addressed to Herbert Fuchs, Esq., committee counsel, which, in effect, outlines Mr. Frey's views on the proposed revision, from his position as a manufacturer of phonograph records.

It is respectfully requested that these views be read into the record or the letter filed with the record, in view of Mr. Frey's inability to attend and testify. Thank you for your cooperation.

Very truly yours,

HERBERT KANON,
Counselor at law.

MARCH 5, 1965.

Mr. HERBERT FUCHS,

Counsel, House Judiciary Committee,

Subcommittee No. 3,

Washington, D.C.

DEAR SIR: Thank you for your notice regarding hearings on H.R. 4347, proposed bill revising the copyright law.

I represent Audio Fidelity, Inc., a well-known manufacturer of quality phonograph records and tapes. This business and its predecessor have been operated by Mr. Sidney Frey since 1948. Mr. Frey is quite knowledgeable on the various aspects of musical composition copyrights and the recording and public performance thereof. He would be interested in attending and testifying at the forthcoming hearings.

In the meantime, or as a possible alternative to testimony, we are submitting the following, embodying our views on the proposed legislation.

We are very happy to see that phonograph records of sound recordings would be protected under the new law upon publication, by appropriate notice and deposit. (Sec. 402.)

We are also gratified and thoroughly approve of the elimination of the exemption in favor of coin-operated machines by which copyrighted musical compositions are performed. (Sec. 114.)

We are also in accord with extending the duration of copyrighted material for a period of 50 years beyond the death of the author. (Sec. 302.)

However, we are compelled to take issue with the proposal covering compulsory licensing in connection with manufacture of phonograph records. (Sec. 113.) Any increase beyond the present rate of 2 cents per musical composition might become destructive to the record producer or manufacturer and conceivably hurt the author and/or copyright owner and the publishers.

The standard musical phonograph record album usually contains 12 compositions. Assuming all of said compositions to be protected, the manufacturer would be paying 36 cents per album for the right to use the compositions, instead of the present 24 cents. This 36 cents is greater than the royalty to the artist, which usually runs about 20 to 30 cents based upon a $3.98 or $4.98 list price product. Even assuming such product sells for list price, the retailer and the distributor or jobber must make their profit, in addition to the manufacturer.

Very few phonograph record albums are actually sold at list price. Phonograph record albums are down to 79 cents and 99 cents as the price to the ultimate A 10 cents difference in the mechanical reproduction royalty would impel the manufacturers to record more public domain and unprotected compositions.

consumer.

This one-third increase in rate would not actually redound to the benefit of the authors and publishers. With the necessity for cutting costs in a highly competitive market and a low-priced product, manufacturers would record fewer copyrighted compositions. The composer would theoretically only benefit to the extent of one-half cent more and this benefit would rapidly disappear with less use of copyrighted compositions. The economic feasibility of continuing the 2-cent rate has been proven by its use since 1909. Publishers have been making more money at this same rate, by reason of the vast expansion of the phonograph record industry and the greater volume of recordings which has been generated thereby. Record manufacturers have been content to pay the current rate and, in unusual circumstances, have obtained a lower rate by negotiation. With a 3-cent rate, negotiations would start from this higher level. With fewer protected compositions used, the music publishing business would ultimately feel the effect of lost royalties.

It would also appear necessary that manufacturers should have some method of ascertaining whether the musical work has been publicly distributed, thereby calling into play the compulsory licensing provision. Accordingly, the obligation of the copyright owner should continue for him to file notice when such manufacture and distribution are first made. (Sec. 113, subdiv. (a).)

The filing of such notice by the copyright owner would also serve to include his current address in connection with the requirement to serve upon him a notice of intention to obtain a compulsory license. (Sec. 113, subdiv. (b).) The foregoing is by no means a thorough analysis of the sections referred to, but should serve as some indication to the committee that any changes must be given the most careful consideration.

Very truly yours,

HERBERT KANON.