installments. Any blind person who happened to be interested in the book a station chose would be tied to its schedule. Talking Books records enable him to read books of his own choice, at times he selects. READINGS BY "CLOSED CIRCUIT" RADIO STATIONS Proponents of the exemptions contend they are needed to permit sub-carrier radio stations to broadcast readings of books to the blind. These point-to-point broadcasters cannot be received on ordinary radio sets. Special receivers are required, and these are supplied only to the blind and physically handicapped. These "closed-circuit" radio stations broadcast news reports, articles, advertisements for necessities and other current non-book information and material. A copyright exemption is not necessary to enable these stations to broadcast readings of books. They can obtain permission without charge-just as the Division for the Blind has obtained permission to make Talking Book records of thousands of books for distribution to the same audience. Authors and publishers will not hesitate to grant permission free of charge since these sub-carrier stations, like Talking Books and braille copies, reach an audience composed solely of the blind and physically handicapped. The clearance of permissions could be arranged by the Division for the Blindjust as it systematically arranges permissions for its braille editions and Talking Book records-and as it arranges permissions for other non-profit organizations to produce and distribute such materials. READINGS BY “OPEN CIRCUIT” RADIO AND TELEVISION STATIONS The proposed exemptions are not limited to "closed circuit" radio stations serving only the blind and physically handicapped. This would apply to programs, programs broadcast by "open circuit" non-commercial radio and television stations which reach a much wider audience, the sighted as well as the blind and physically handicapped. Any reading of a book broadcast by such stations would reach its entire audience, although the program were "specifically designed or presented for blind" listeners. That purported limitation, in the proposed exemptions, would be ineffective. The Authors League does not contend that non-commercial stations should not broadcast readings of books, because their audiences are not limited to blind persons. But it believes that permissions for these programs should and can be arranged on a voluntary basis-just as the vastly greater production of Talking Book records by the Division for the Blind has successfully been conducted for years under a voluntary licensing system. As indicated in the League's July 10th testimony on the proposed public broadcasting amendments, occasionally the broadcast of a book to audiences of nonprofit stations may reduce its sales; or prevent the author from licensing its use on records or tapes, or in commercial radio, television or motion pictures. Professional authors receive most, and usually all, of the income from these nonpublishing rights. Copyright owners' permissions are required under the present law to produce and distribute the Talking Books records and braille editions that have brought books to the blind for forty years. Their permission should be required to disseminate their books by broadcasts on non-profit stations. THE PROPOSED EXEMPTIONS SHOULD NOT BE ADOPTED For reasons we have indicated, the proposed exemptions are unnecessary, and unfair to authors. Publishers and authors of books have demonstrated their commitment, over four decades, to making their books available without charge to the blind and physically handicapped. The thousands of copyrighted books distributed on Talking Book records and in braille attest to that commitmentand prove beyond doubt that books can be made available to this audience under a voluntary licensing system, without expropriating authors' rights. Proponents of the exemptions contend that non-profit stations are free to broadcast books under the present law, and that the exemption is necessary to continue that right under the Revision Bill. We disagree. In order to broadcast readings of a book, it is necessary to make a recording of the reading. It is practically impossible to make even a single "live" reading, lasting 8 to 12 hours. It is utterly impossible to make repeat broadcasts of the reading, or make it available to other stations, without making a recording. As we have noted, the present law grants the author the exclusive right to make recordings of his book, whether they are produced by non-profit or commercial organizations. (And as we noted in our July 10th testimony, the 1909 exemption for "live" non-profit readings never contemplated the vast audiences of radio or television.) THE PROPOSED EXEMPTIONS ARE BROAD AND AMBIGUOUS The Authors League opposes the proposed exemptions because of their purpose and effect, not because of deficiencies in wording. But the proposals are broad and ambiguous. The first would add to Sec. 110 an exemption for (8) performance of a literary work in the course of a broadcast service specifically designed for broadcast on non-commercial educational radio or television stations to a print or aurally handicapped audience. It is not clear whether "print handicapped" means blind persons and those whose physical handicaps prevent them from reading conventional print; the definitions used by the Division for the Blind. Or whether it also includes the illiterate or poor readers, who also are "print handicapped." Obviously the former definition is the only one consistent with the apparent purpose of the exemption. It is not clear whether "performance" of a literary work is limited to reading it; or whether the proponents are stretching for the right to give dramatic renditions, which would make the exemption even more damaging to authors. It is not clear whether a "literary" work means a book, article or other "nondramatic" work; or also embrace other classes, which would make the exemption even more damaging. It is not clear what circumstances would render the broadcast "reading" of a book a "broadcast service specifically designed for broadcast... to a print . . . handicapped audience"-when broadcast on a station which reached an audience of sighted as well as blind persons. It seems obvious that the reading of a book to such an audience cannot have that limited purpose. The second proposal would add this exemption to Sec. 110: (8) performance or the reading aloud (whether in person or by phonorecords) of books and other literary works, musical scores, instructional texts, specialized materials and other printed matter in the course of a broadcast service specifically designed or presented for blind and other physically handicapped persons (who are unable to read normal printed material as a result of such limitations) on non-commercial educational radio or television, including non-commercial broadcasting on any subsidiary carrier authority or cable transmission. Provisions of this subsection shall apply to non-commercial telecasts specifically designed for the aural handicapped. This proposal contains a more precise definition of the blind and physically handicapped, but contains the same dangerous generalities and ambiguities of the first proposal, discussed above. We oppose both proposals. And we urge their proponents to heed the words of the Librarian of Congress: We are sensitive to and respect the rights of authors and publishers, and we appreciate their significant contribution in helping us make available educational, recreational and informational materials in braille and on records for individuals who cannot read print. Mr. KASTENMEIER. This will conclude the regular copyright hearings other than to invite the Register of Copyrights to offer testimony in this room on October 2 at 10 o'clock in the morning. I should also say we have a letter from Mr. Edward W. Chapin, counsel to Broadcast Music, Inc., which will be accepted and made a part of the record on this subject. [Mr. Chapin's letter follows:] BROADCAST MUSIC, INC., Hon. ROBERT W. KASTEN MEIER, DEAR CHAIRMAN KASTEN MEIER: BMI would like to comment on the background statement filed with the Subcommittee on Courts, Civil Liberties and the Administration of Justice by the Association of Public Radio Stations. Inasmuch as that document was prepared prior to the July 10th hearing before the Subcommittee it is understandable, but regrettable, that it contains a number of assumptions which run counter to fact. There is no problem of the clearance of musical works for use in nationally distributed programs, or, indeed, for use in local programs. The fact is that APRS can, as commercial stations have been doing for decades, obtain immediate blanket clearance of copyrighted music through easily negotiated licenses with the performing rights licensing organizations. The fact is that APRS will need no added personnel to perform a clearance function, for such a function will not exist. There is no intention on BMI's part to charge such exorbitant fees as are cited by APRS. The fact is that BMI's lowest rate for commercial broadcasters is $18 a month, a far cry from the APRS bogey of $15,000 to $20,000 annually. BMI has already told representatives of Public Broadcasting that we are ready to discuss an equitable rate. Toward the establishment of such a rate we have asked for data concerning rates charged by the owners of other rights equally necessary to programming. There is no serious problem of administrative burden placed on APRS after the negotiation of a BMI contract. At most we would require, as we do of other broadcasting licensees, a log of the music played for one week each year. Many stations already make this sort of information available to their listeners on a regular basis. This has been provided us by commercial stations with personnel even lesser in number than the average eight full-time employee programming staff APRS cite. The fact is that such an obligation is thoroughly in keeping with APRS' stated and laudable "obligation to the composer of our time." Fulfilling this simple responsibility will assure that these composers of our time receive money for the public performance of their music on public radio. Public Radio does, indeed, "make potential record buyers aware" of contemporary music. But this can also be a dubious blessing. The potential average sale of contemporary recorded concert music is about 2,500 copies. When APRS, "one of the few outlets for the work of young contemporary composers," schedules such music, tape recorders and cassettes whirl. That performance is bootlegged for personal use, generally reducing sales. The payment by APRS for a license from BMI will certainly not end this reprehensible practice, but it will slightly alleviate an economic wrong. We can only repeat the points we made on July 10th at the hearing before the Subcommittee: Public broadcasting will have no difficulty in negotiating a contract. Public broadcasting will have no serious financial burden placed upon it. Public broadcasting will have no serious administrative problems rising from reporting one week's music programming a year. The sole problem is how much public broadcasting is prepared to pay for the music it uses so lavishly. Respectfully, EDWARD W. CHAPIN. Mr. KASTENMEIER. The subcommittee thanks those of you present who have been witnesses and the record will be held open until October 2 for the filing of additional statements. That concludes this hearing. [Whereupon, at 1 p.m., the subcommittee recessed, to reconvene at 10 a.m., Thursday, October 2, 1975.] [Subsequently, the following two letters were submitted on behalf of Association of Public Radio Stations:] ASSOCIATION OF PUBLIC RADIO STATIONS, Hon. ROBERT W. KASTEN MEIER, DEAR MR. CHAIRMAN: On behalf of the Association of Public Radio Stations, I am writing to you (and to the other members of your Subcommittee) as you prepare to close the record in your hearings on H.R. 2223. I am writing for the primary purpose of offering to you language which would effect changes which we have sought in your legislation to allow service to the print or aural handicapped over the facilities of public broadcasting stations. CO! viously the interests of public radio lie exclusively with the print-handicapped (largely the blind) but many of the comments are applicable also to those with hearing handicaps.) Enclosed is language exempting performances over public broadcasting to the print or aural handicapped (such language having been taken from the current version of 8. 22, the counterpart bill in the Senate) and additional "perfecting" language to resolve a small, but important, problem that has arisen. Background of Hearing On two occasions, the Association of Public Radio Stations has appeared before you, urging special treatment of our services for the print-handicapped. On July 10, 1975, we briefly alluded to this question in our oral remarks and more fully treated it in a written statement accompanying our appearance. Briefly, we described the technical nature of this service and its growing use across the country. In that statement, we stressed the need for statutory language exempting both the performance and a recording pursuant thereto from any copyright liability. Representatives of the Association of Public Radio Stations again appeared before the Subcommittee on September 18, 1975. This appearance was specifically directed to discussion of the service to the blind. The statements reviewed again the status of the legislation and stressed the need for "perfecting" language in Section 112 to accompany that already adopted by the Senate in Section 110. Background of Service Begun in 1969 in Minnesota, radio reading services designed specifically for the print-handicapped have spread across the country. At present, there are approximately twenty closed circuit systems for the blind and physically handicapped; each month, new cities announce piaas to begin service as soon as possible. Generally, a portion of the FM band (requiring a special receiver) is used. Typical services throughout the country have a small paid staff and all reading is done by trained volunteers from the community. The service offers a variety of programs seven days a week. Funds to purchase the special receivers required to pick up the closed circuit programs, additional capital outlay and special projects must be obtained from local foundations, service clubs and individual gifts. Need for Service Radio systems for the blind and physically handicapped are known to be an excellent means of filling in the gaps between the Library of Congress Talking Book Service and the programs offered by radio and television. The former produces a limited number of books and magazines for the entire country and can neither be local nor current in focus. After a title has been selected by a committee, copyright clearance must be sought, the book must be transcribed into braille or recorded form, reproduced into the proper number of copies and finally transported through the mails to the various regional and sub-regional libraries located in the United States and its possessions where the books will be sorted, processed, and ultimately distributed to readers upon request. The regional and sub-regional libraries are chronically understaffed, and it is not uncommon for a print copy of a book to be available eighteen months to two years in local book stores before it can be enjoyed by the blind or physically handicapped. In addition only a limited number of copies are available for distribution and many readers must wait a number of months before the recorded book can be sent to them. Of equal significance, at least, is the use of newspapers and magazines. Newspapers should be heard the day they are published and magazines within the same week or month. However, the need to secure copyright clearance could result in making this new medium no more effective than other services in this respect. The paperwork would necessarily cause delays, and the burdens placed upon small staffs would cause further delay or affect the quality of the service in general because the time and the energy of the staff would be diverted from providing a variety of high quality programming for those who need it. As APRS has constantly stressed, there must be a Congressional recognition of service to the print-handicapped. Absent a statutory exemption, it is likely that the entire service would likely cease operation or would be forced to change so significantly that it would be of little value to the print-handicapped. 57-786-76-pt. 325 The service is indeed unique. It fills a void of information to the blind; it enables them to have access to material that they would not have in any other way. If the resolution of copyright is overladen with public interest considerations, there can be no doubt that this type of amendment offers greater benefits to the public than any alleged detriment to the creative community. Statutory Language-Performance Notwithstanding the allegations by The Authors League of America, APRS has always supported the language adopted by the Senate Subcom. mittee on Patents, Trademarks and Copyrights of the Committee on the Judiciary as Section 110 (8). This reads as follows: Notwithstanding the provisions of Section 106, the following are not infringements of copyrights; ... (8) Performance of a literary work in the course of a broadcast service specifically designed for broadcast on noncommercial radio and television stations to a print or aural-handicapped audience. APRS urges the adoption of this language by the House. Statutory Language—Recording In addition, "perfecting" language is needed to resolve the following problem a reading ("performance") of the Washington Post over the local printhandicapped service from 7 a.m. to 9 a.m. is exempted by new Section 110 (8). A recording is made of that performance for playback from 10 a.m. to noon. In addition, that tape is exchanged with the Richmond service. Both uses-rebroadcast and exchange-obviate the need for additional volunteer help. However, that recording violates the exclusive nature of Section 106(1). Language is therefore needed to work hand-in-hand with the Section 110 (8) exemption. We are enclosing suggested language-which tracks Section 110 (8)-for an exemption covering that recording. This may be done, we suggest, in one of two ways: amend Section 112(b) or add a new Section 112(e). (In proposing a change in Section 112(b), APRS hastens to add that the change suggested must not be interpreted as an endorsement of the limitation on the numbers of copies currently a part of Section 112 (b)). The Association of Public Radio Stations wishes to thank you, Mr. Chairman. for your consideration of these questions and wishes to note its appreciation of the unfailing courtesy that has been shown to us by you, members of the Subcommittee and the staff. Sincerely, MATTHEW B. COFFEY, President. (Attachment A) ADDITION OF NEW SUBSECTION 112(e) Notwithstanding the provisions of Section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization, entitled to transmit a performance or display of a work under Section 110 (8) to make copies or phonorecords of a particular transmission program embodying the performance or display. (Attachment B) AMENDMENT OF SUBSECTION 112(b) Notwithstanding the provisions of Section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization entitled to transmit a performance or display of a work, (1) under Section 110 (2) or under the limitations on exclusive rights in sound recordings specified by Section 114(2), to make no more than thirty copies or phonorecords of a particular transmission program embodying the performance or display, if— (A) no further copies or phonorecords are reproduced from the copies or phonorecords made under this clause; and (B) except for one copy or phonorecord that may be preserved exclusively for archival purposes, the copies or phonorecords are destroyed within seven years from the date the transmission program was first transmitted to the public. |