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(2) under Section 110(8), to make copies or phonorecords of a particular trans. mission program embodying the performance or display.
(The inclusion of Subsection 112(b) (1) herein is for drafting purposes only and should not be constituted as any endorsement of the limitations contained therein. )
ASSOCIATION OF PUBLIC RADIO STATIONS,
Washington, D.C., October 2, 1975. Hon. ROBERT W. KASTENMEIER, Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of
Justice, Committee on the Judiciary, Rayburn House Ofice Building, Wash
ington, D.C. DEAR MR. CHAIRMAN: Since the earliest days of broadcasting in the United States, noncommercial (public) radio has been exempt from the payment of copyright fees for performances under the “not for profit" clauses of Sections 1(a) and 1(e). Public radio is now asking the Subcommittee to continue this exemption by amending H.R. 2223 to reinstate the exemption for local public radio performances. Our request is based on several points :
The threatened disappearance of classical music from the air.
The complex technical and financial problems music performance clearance raises. We would like to examine each of these points in detail.
THE THREATENED DISAPPEARANCE OF CLASSICAL MUSIC FROM THE AIR Without the exemption requested by local public radio, classical music may well disappear from the nation's airwaves. It is quite clear that the number of comercial stations playing classical music is dwindling. Indeed, between the Sul committee's hearings on July 10 and September 18, two more commercial cassical music stations changed their formats-WHAS-FM in Louisville and WBAI-FM in Baltimore. The September issue of Radio Music Jonthly reports, *The FM station (WHAS). according to program director Brench Boden, just couldn't make financial ends meet with a classical music format, an unpleasant familiar story to too many other stations in this country." Mr. Boden cites a losg of over one million dollars as "the general factor that led to the decision to make the change.
The same issue of Radio Jusic Monthly reports that WBAI, FY "also went under for financial reasons" because the station could not get sufficient advertising support to maintain its classical music format.
Commercial radio is not an alternative to public radio in providing classical music to American listeners. In a letter to the editor of Broadcasting magazine, J. Robert Rogers, one of the original owners of WGMS-AM-FM, Washington, D.C., states that "classical music has become an ever smaller drop in the buket of (commercial) broadcast programming." (Broadcasting, September 1, 1973. p. 16.)
One result of such events is that classical inusic listeners must turn increasingly to noncommercial public radio for this type of music, The Radio Music Jlonthly report on WHAS-FM points out that "Louisville will not be totally left without a concert music station, as there is currently a public library station in Louisville that broadcasts some good music, and there is also a possibility of a local col. lepe starting up a classical format (noncommercial) station."
But now we face the potential Catch-22 situation of classical music disapparing from public broadcasting as well, since the burden of copyright is threatened.
What will happen if the public stations are forced off the air or forced to stop broadcasting classical music because of the necessity of clearing performanoes? Listeners will then have nowhere to turn for classical music in the home propt to phonograph records, which are rapidly being priced out of the reach of millions of people at $6.95 and $7.95 per disc.
We will discuss the reasons why public stations may be forced off the air or out of classical music broadcasting in the third section of this statement.
THE BENEFIT DERIVED BY COMPOSERS FROM PUBLIC RADIO PERFORMANCE Public radio stations have been accused of exploiting America's creative talent because the stations do not pay performance fees. This is not so. Broadcast of the works of composers-especially young, virtually-unknown composers can be of material assistance to them.
Primarily there is the educational value of such broadcasts. In the nonmetropolitan areas of the country, classical music lovers have no way to hear the works of contemporary composers except on public radio. There are no concerts devoted to introducing new music. The local record shops stock very little classical music, and what they do stock is mainly traditional masters that always sell well.
Local symphony orchestras play very little contemporary music because of the technical difficulties posed for the semi-professional and amateur players and more importantly-because of audience resistance to much contemporary classical music.
Broadcasts on public radio perform two functions for the contemporary composer:
First, they introduce listeners to the creative talents of the time and make them familiar with their compositions.
Second, the educative process can lead to live performances for which composers are paid and which bring them into direct touch with audiences and performers. Composer Scott Huston wrote to the Music Director of public station WGUC-FM, Cincinnati :
Our recent conversation stirred my memory with regard to the number of performances of my music that have come about from a direct or indirect result of my recorded things that have been played on FM radio, here or elsewhere. Without much prodding I can recall instantly a performance of Phenomena which a University of Vermont faculty member heard on New York radio, resulting in three performances of that work in Vermont and New Hampshire. Another work which was performed because the director heard it on the FM radio was my Pro Vita, for solo piano and brass choir. Other works which were performed as a direct result of radio hearings are the Penta-Tholoi and the Sound at Night, roughly ten other pieces were bought, rehearsed and performed at universities, festivals of contemporary music and the like, because someone heard them on the air waves.
One could always wish for more emolument, but BMI, royalties and commissions keep one pleasantly surprised, if not rich; more important to a composer is the exposure afforded by FM (non-profit) radio. Therefore, although I am not sure of the exact situation, I would tend to agree with you that non-profit stations do such yeoman service to us "serious" composers that they should not have to pay fees to any licensing organization. (Italics
supplied.) Another composer, Donald Wilson, wrote to Congressman Delbert Latta about H.R. 2:223:
As a composer, I find the radio my major source of information concerning the state of my art, namely contemporary music. As an educator, I regularly recommend specific programs to my students as they (the programs) pertain to course work. In both capacities I would be severely distressed at the discontinuation of contemporary music broadcasting. Yet this may be the ultimate effect of H.R. 2223, for local public radio broadcasters will be forced to avoid programming copyrighted works for lack of funds.
On the other hand, as a published composer and member of one of the licensing organizations, I would doubt very much if my income would be siguificantly enhanced by royalties from radio broadcasts of my compositions. In other words, weighing the advantage of licensing against the disadvantages stated above, I would much prefer the exemption. Before joining the faculty of Bowling Green University, Mr. Wilson worked in public radio for several years. Among his accomplishments was the production of an award winning, two-year series, Tone Roads, devoted to the work of contemporary composers, chiefly young, beginning composers. He has supplied APRS with a few quotations from correspondence he had with composers about the programs and his use of their works on the air.
From Warren Benson: "I will send you the tapes of my large works for band that are suitable for broadcast performances. I am pleased that you are interested in using them and grateful for the exposure that they will receive" (Feb ruary 8, 1966). Thank you so much for the copies of the March (Program) Guide, containing the listing of my Trio for Percussion on the broadcast of March 10th. Don't worry about the individual listings; any listing at all is a pleasure" (March 31, 1966). "Again, my thanks for your interest in my music and your continued assistance to all composers with whom you come in contact" (December 12, 1966). (Emphasis supplied.)
From Charlex Boone: Bill Valente suggested I write you regarding tapes we have of selected compositions from Composers' Forum concerts given during the jest two years. We would be delighted if you would be interested in playing them on W HY and will be glad to send them to you. ... The tapes I would send you would be from our Campus Concerts Series, programs of music by young composers..." (December 4, 1907.)
From George Burt: "I was really delighted and flattered that you had sched. uled my choral piece for the March 20 broadcast. Also, I am certainly impressed with the kind of programming you are doing ... I have just accepted a new position at the University of Michigan and will be there starting next SeptemLir. If you would be interested in obtaining tapes of pieces written by any of the composers there, please let me know as I would be happy to act as middleman." (Jarch 28, 1967.)
Several years later, after Mr. Wilson had left the station, WUHY decided to re-run the original Tone Rouds programs. Typical of letters received was this one from a listener:
Over a period of time (even since WUHY increased its broadcast time), I have been an avid follower of your program "Tone Roads." Admittedly, I have not liked every piece, but I have always found it interesting to hear what the contemporary trends are. It is rare that one has an opportunity to hear private tapes which are commercially unavailable. I hope that the program is not being discontinued. One of the programs that I enjoyed the most was the one which featured the works of Donald Erb, as recorded on the first edition of Opus One records. Is this a company one subscribes to? I am interested in finding out what else they have recorded and may be interested in buying some of the records. (Letter from Mrs. Rheto Smith,
Julr 4. 1973.) Mr. Wilson says, “Since then, we have corresponded off and on, and I have been requested to send scores of my own works for possible performance in the Philadelphia area." Throughout his correspondence with composers, he reports, **one finds joy and excitement," and he concludes, "To think that the phrase
otherwise than in a transmission to the public could put an end to so much Poi will all over the country! What an ironic tribute to the 200th anniversary of the nation's birth!"
Two of the principal licensing societieg.ASCAP and BMI-seemingly recog. nize the educative value of public radio broadcasts of contemporary classical music. Both are or have been connected with weekly series ou National Public Radio designed to introduce contemporary composers and their works to interested listeners.
The Coordinator of Concert Activities for ASCAP, Martin Bookspan, is the host of Composers' Forum, on which composers are interviewed about their work and examples are played. This series has been on NPR for two years or longer.
Last spring there was another series produced by the American Composers' Alliance. This group has been described by one of its staff members as "subsidizred" by BMI. Composers were not interviewed, but extensive background was giren by the amouncer.
Even the well-established composer benefits from the exposure public radio can give. For instance, many symphonic works of Aaron Copland, Roy Harris, Walter Pistou, and William Schuman have never been performed in south central Pennsylvania where APRS member station WITF-FM is located, and much of the music of these leading American composers would be totally unknown in that arex-Harrisburg, York, Lebanon, Lancaster-if WITF-FM did not broadcast them. Indeed, to celebrate Mr. Copland's 75th birthday anniversary in November. the Harrisburg Symphony Orchestra has been emboldened to program one of his most dithcult scores, Orchestral Variations, at least in part because it and other contemporary works have been heard over WITF-FM and Ilarrisburg Symphony audiences are getting familiar with the sound and idiom. In addition, the Orchestra's Music Director and Conductor will be able to present a pre-concert analysis of the Orchestral Variations and other music on the progran orer WITF-FM. No commercial station in the area could be expected to devote 90 minutes to such a program, and WITF-FM will present it twice three hours of air time.
THE COMPLEX OF TECHNICAL AND FINANCIAL PROBLEMS RAISED BY MUSIC PERFORM
ANCE CLEARANCE FOR PUBLIC RADIO
If copyright payment is imposed, APRS believes the public will lose a valued cultural service, the nation's young composers will lose the last remaining radio
outlet for their works and contact with their potential audience, and at least some of our public radio stations will have to close. There are four reasons why APRS believes this to be the probable outcome:
(1) The inability to determine rights to classical music, since only one record company consistently provides this information.
(2) Uncertainty over public domain music with the emergence of derivative or critical editions of previously public domain works.
(3) The inability of the societies to guarantee that they cover 100 percent of the composers.
(4) The lack of station resources. 1. Inability To Determine Rights to Classical Music
In spite of the claim that "there is simply no clearance burden on public broadcasting whatsoever" made by ASCAP on page 32 of its statement to this Subcommittee on July 10, 1975, there are real and serious difficulties faced by public radio stations in clearing music for broadcast.
Contrary to what one might logically think, it is not easy to determine who is the copyright owner of a piece of music. The societies have said that the information is on the record label or record jacket. This may be true in the field of popular music, but it is most definitely not the case with classical musica statement that can be verified by anyone in five minutes in any station's record library.
The only record company that apparently supplies copyright information is Columbia, and even it does not do so 100 percent of the time. And it is now doing so only on copies specially processed for its monthly service to radio stations; if a station buys a record from earlier releases, there probably will be no copyright information. One of the other major companies -RCA-sometimes supplies information and sometimes does not. The other major record companies provide no useful information at all at any time. Easily 75 percent to 80 percent of the classical records in any public radio station's library will be found to contain no copyright information.
Even where records have information, it may be contradictory. APRS member station WITF-FM surveyed the major symphonic works of one composer, Gustav Mahler, to see what it would face if it were clearing this music for broadcast. One result is typical of the difficulties stations face if clearance is imposed. Columbia, the company that does the only consistent job of supplying copyright information, has five different recordings of Mahler's Symphony No. 1 ; the information supplied with two of them says it is in the public domain; the information supplied with two others that it is copyrighted and licensed by BMI; and the information on the fifth recording says it is licensed by ASCAP. There is no information at all on the other nine recordings of this music WITF-FM consulted.
When information is given on records, it frequently is only the initials of the licensing society. This might be adequate as long as the publisher or composer does not change affiliation (although one ASCAP report requires the station to list the publisher; see below). If that happens the station does not know who the publisher was originally and cannot hope to track the changing affiliation without personnel assigned
Even the publishers themselves are confused or unable to answer questions. Public radio station WMUK in Kalamazoo, Michigan, wanted to broadcast King Darid hy Artur Honegger, but it was uncertain whether it was regarded as a dramatic work, so it contacted Belwin-Mills Publishing Corporation, which at one time cleared performances of Honegger's dramatic works. Belwin-Mills referred WMUK to the New York office of Editions Salabert, Honegger's publisher. Salabert, in turn, referred WMUK to E. C. Schirmer Music Company, Boston, which was finally able to answer the question. This took only a month and six letters relatively quick.
In another instance, the results took longer and left the station right back where it had started. The Music Director of WFIU-FM at Indiana University decided to try "a little experiment to see just what was involved with getting clearances." He chose Broadway show music, which involves dramatic rights which must always be cleared by the copyright holder and can never be cleared through ASCAP or BMI. Nonetheless, a BMI Vice President assured the station that it could broadcast the original cast recording of She Loves Me without further action.
The response from ASCAP took a month and a half, but it contained the correct statement that "in order to play the original cast recordings you must
obtain permission directly from the copyright holder or agent" and gave the station the appropriate names and addresses for the works it was interested in.
One publisher informed the station that the rights it was seeking were cleared by ASCAP and available under a regular ASCAP license. Five years later the other publisher has not even been heard from at WFIU-FM.
If such confusion and misinformation exists within the licensing societies and the publishers, public radio has no hope of operating in this area "with no clearance burden".
The licensing societies publish lists and directories of their members, but licensees receive a constant stream of corrections, additions, deletions, and other changes to be posted to the membership list. A piece of music cleared before lunch may change its status when the afternoon mail arrives. Clearly stations already straining at hopelessly inadequate budgets must hire someone to be in charge of clearance matters if they are subjected to performance fees. 2. Uncertainty from the Emergence of Critical Editions of Public Domain Works
A reasonable person might ask why stations faced with these problems would not limit their broadcasts to works in the public domain. The answer lies in the difculty of determining what is and what is not in the public domain. The precoding section contains an example: five recordings of the same Mahler symphony from the same company with radically conflicting information, and nine other recordings of the same piece with no information at all.
Here is another example: Wolfgang Mozart died in 1791 ; in the late 1960's stations using recordings of European concerts distributed by the Broadcasting Foundation of America were told they would have to pay a publisher $750 for the right to broadcast some of Mozart's music first performed and published about two hundred years ago.
The claim for payment for performance of the Mozart music was based on the fact that a German publisher had just published the music in question in a critical edition, that is, an edition correcting errors in previous editions of the same music and setting forth the changes in detail. Critical editions are protected for ten years under German law and performances utilizing them have to be licensed just like a work written yesterday.
A critical edition may be the reason for some of the conflicting information on the recordings of the Mahler symphony. But assuming this to be true, how does WITF-FM determine the status of the other recordings of the same Mahler symphony in its library? Apparently the only absolutely certain way is to hire an experienced musician and purchase a large library of printed scores and set the musician to work listening to the recordings and comparing them with the scores.
It should be noted that musical scholars are at work on critical editions of the works of a number of composers long dead and whose works have been in the public domain until now. One has an uneasy vision of ultimately having no public domain music left. This is probably an extreme never to be reached, but the spectre has enough substance and reality to prompt local public radio stations to seek protection from it in the form of the exemption APRS has proposed. 3. The Inability of the Societies to Guarantee that they cover 100 Percent of the
Composers In its statement to the Subcommittee of July 10, 1975, pp. 31-2, ASCAP says:
By entering into a license agreement with each of the three major performing rights organizations, ASCAP, BMI, and SESAC, public broadcasting can be assured of performance licenses in virtually all copyrighted musical
compositions. (Emphasis in original.) The crucial word here is the adverb "virtually." It means that not all music would be cleared by such licenses. As long as it were not, each work broadcast would have to be checked to see if it is covered by the station's licenses: the confusion over the Mahler symphony cited above indicates clearly that such checking is a job for an expert.
I spokesman at BMI's American Composers Alliance told the Music Director of an APRS member station that "about one fourth" of the active composers today are not affiliated in any way-personally or through a publisher--with ASCAP, BMI, or SESAC.
Again quoting composer and radio broadcaster Donald Wilson: "This ‘noncoverage' would include works by student composers, other young composers and eren older composers who have not yet received due attention such as Richard Robinson in Atlanta (or, for that matter, Charles Ives-whose work was ignored throughout his entire creative life)." He continues :