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all destroyed within one year from the date the transmission program was first transmitted to the public.
Mr. BRENNAN. To testify in opposition to this provision, we have the counsel of SESAC, Mr. Albert F. Ciancimino.
STATEMENT OF ALBERT F. CIANCIMINO, COUNSEL, SESAC, INC.
Mr. CIANCIMINO. Thank you, Mr. Brennan.
Mr. Chairman, in the relatively short time allotted, I shall try to summarize the reasons supporting our position that section 112(c) of S. 1361 should be totally deleted.
With regard to the legislative history of 112(c), it first appears on the scene as late as February 8, 1971, with the introduction of S. 644 by the chairman of this subcommittee. It was not included in any prior legislation nor was it the subject of any study by the Copyright Office nor any other governmental or nongovernmental body, nor to my knowledge was such a provision ever contemplated by any legislative or administrative body until shortly before February 8, 1971.
Just about every significant section of S. 1361 has been the subject of intense study and analysis; not so with 112(c). Lo and behold, in 1971 without any prior notice or knowledge on the part of those representing the interests of copyright proprietors of music, it sprang into existence and became part of the copyright revision bill.
Prior to today, there has never been any testimony at any prior hearings concerning the merits or pitfalls of this subsection. I therefore urge this subcommittee to weigh carefully the following reasons why 112(c) should not be enacted into law.
Section 112(c) would exempt from infringement the making by a nonprofit organization of no more than one copy or phonorecord of broadcast programs containing nondramatic musical works of a religious nature for use in a single broadcast by a licensed broadcaster. In short, it places a limitation upon the copyright proprietor's right to mechanically reproduce the work, which to my knowledge, does not appear in prior case law or statute. There is no precedent for limiting the creator's rights in the area of mechanical reproduction of his work just because of the type of work he creates.
The current copyright law in section 1(e) clearly grants to the copyright proprietor the exclusive right to make "any form of record in which the thought of an author may be recorded and from which it may be read or reproduced.”
Several things are immediately clear from this language. First, there was no intention on the part of Congress at the time section 1(e) was enacted to in any way limit the copyright proprietor's right in the form of recording because of the type of work which the copyright proprietor creates, for example, a religious work.
Second, there was no intention on the part of Congress to limit the author's right to certain kinds of recording, since the statute states "any form of recording" and these are not words of limitation but rather words of all inclusiveness. It would clearly refer to not only phonorecord, but also any type of magnetic tape or other reproduction of the musical composition.
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To the extent therefore that the National Religious Broadcasters Association has circulated a nonlegal position which states in part that “The Copyright Law of 1909 on which SESAC's claims are based, does not refer at all to magnetic tapes since these did not come into existence until much later,” we submit that such a nonlegal position is both misleading and inaccurate.
Proponents of 112(c) have also asserted that they are paying twice for the same copyrighted music. We heard about the two tickets to the one performance this morning. They claim this since the copyright proprietor receives performance fees as well as mechanical reproduction fees.
It is clearly stated in copyright law that the right to mechanically reproduce is a distinctly separate right from the other rights granted copyright owners. The issuance of a performance right license does not therefore, in and of itself, grant to the licensee the right to mechanically reproduce. Conversely, a license to mechanically reproduce does not carry with it the right to perform the work.
Now, Mr. Chairman, I have submitted citations in my prepared statement to support those statements.
Senator MOCLELLAN. Very well.
Mr. CIANCIMINO. Further, the mechanical reproduction license is issued to and the fee paid by the program producer. The performance of the program comes within the scope of the broadcaster's performance license agreement and is paid for by the broadcasters so that you have two completely independent rights being paid for by two completely independent people: one for the right for mechanical reproduction and the other for the right to perform.
It is therefore somewhat misleading for the proponents of 112(c) to allege that they are paying twice for the same music.
With regard to the structure of 112(c) itself, we submit that it is unclear, ambiguous, and will, if enacted, be the cause of extended litigation. Section 112(c) exempts a work of a religious nature. The term “work of a religious nature” is of extraordinary breadth. There is no definition in the statute of such a term and indeed it may very well be impossible to come up with a meaningful definition.
Must a song refer to God or a supernatural being to be of a religious nature? Can a composition extolling the virtues of nature be considered a religious composition ? A theme which simply fosters the concept of clean living and moral value, can this be a work of a religious nature?
It would seem that whether a musical work is of a religious nature in many instances will be, not in the eyes of the beholder, but most certainly, in the ears of the listener.
Further, subsection (c) refers to a "musical work of a religious nature or of a sound recording.” It would therefore appear to apply to any sound recording which meets the subsequent conditions of the section regardless of whether or not the musical work is of a religious nature. Again, the lack of prior study and analysis is evident.
I am rather certain that this subcommittee does not intend to apply 112(c) to all musical compositions regardless of nature. This I have gathered from the announcement of the copyright office and introductory remarks of the chairman when S. 644 was introduced in 1971, and which referred to works of a religious nature.
Finally, there is no definition of the term “transmitting organization.” There are definitions of “transmission program" and "transmit” but not for a "transmitting organization.” Query: does it include a satellite? Is it limited only to radio and television stations? These are all questions that are left open.
These are the criticisms of the structure of 112(c), which I hope will become immaterial when this subcommittee has fully evaluated the issues involved and has deleted the section in its entirety. There is absolutely no justification for this section 112(c) exemption from copyright infringement which in effect treats the creator of religious works as a second-class citizen.
One who creates a religious copyright and desires to live from the profits gained therefrom has the same expenses as one who creates a nonreligious copyright. He must pay the same amount for a loaf of bread or a bottle of milk.
Why then the distinction in allowing the author of a nonreligious work a broader earning base than the creator of a religious copyright? Why allow a program producer to distribute 4,000 copies of taped programs to broadcasters throughout the country, that is one to each broadcaster, without payment being made to those creators whose religious music is being used !
With Public Law 92–140, this Congress in 1971 has expanded the area of copyright protection, as it relates to the right to reproduce sound recordings, when it passed what is commonly referred to as the antipiracy legislation. The protection accrues to the benefit of the company that owns the physical sound recording itself and guards against its unauthorized duplication. It covers all sound recordings, not just sound recordings of works of a nonreligious nature.
It does seem somewhat incongruous and unjust to extend such a right to a person other than the author in sound recordings of a religious nature while at the same time enacting 112(c) which would limit the author's right to mechanically reproduce the work if it be of a religious nature.
We agree with the antipiracy legislation. In fact, as chairman of committee 301 of the American Bar Association, I had the pleasure of sponsoring a resolution which was ultimately passed by the American Bar Association in favor of such an extension of copyright.
I can only hope that this subcommittee will recognize the contradiction and inconsistency of 112(c) which would limit, dilute, and erode the copyright proprietor's rights. Again, why should the author of a religious work be treated as a second-class citizen?
As a member of committee 304 of the ABA, I would like to advise the subcommittee that committee 304 has passed the following resolution which it will submit to the American Bar Association at its annual meeting in Washington next week:
Resolved, That the section of Patent, Trademark and Copyright Law opposes in principle any statutory limitation which would exempt from infringement the making by a non-profit organization of recordings of broadcast programs containing non-dramatic musical works of a religious nature for use in a single broadcast by a licensed broadcaster.
Senator McCLELLAN. Your time has expired, but you may continue for a couple of minutes.
Mr. CIANCIMINO. Thank you, Mr. Chairman.
Specifically, the section of patent, trademark, and copyright law opposes in its entirety section 112(c) of S. 1361.
I am pleased to report that on July 17, 1973, in Chicago, the above resolution was approved by the council of the patent, trademark, and copyright law section subject to ratification by the section at the annual meeting. Once approved by council, it is fair to say that it is virtually assured of passage as an ABA resolution next week.
Mr. Chairman, I would like to submit as part of my written statement letters from 23 outstanding publishers of gospel and sacred music asking this subcommittee to delete section 112(c). I would also like to take a few moments at this time to read the following brief letters, some in part endorsing our position.
Senator McCLELLAN. Would you not like to have those letters printed in the record, or excerpts?
Mr. CIANCIMINO. Yes, Mr. Chairman. I would, however, like to read brief excerpts from them at this time.
"From the Harry Fox Agency, we agree with the positions of SESAC that inclusion of Section 112(c) of S. 1361 would be detrimental and contrary to the legitimate interests of publishers and others,” Albert Burman.
From the National Music Publishers Association, and again, these are publishers that go far beyond the scope of religious music, Mr. Chairman.
"The National Music Publishers Association agrees with the position taken by SECAC concerning Section 112(c) of S. 1361." Leonard Feist.
From the Music Publishers Association: At a board meeting of this association on April, the following resolution was passed unanimously.
"Resolved that MPA supports the SESAC in its efforts to eliminate the proposed exemption for the making of copies of tapes of religious broadcasters."
From the Church Music Publishers Association: This letter is to certify that the Church Music Publishers Association proudly endorses the position of Mr. Albert F. Ciancimino on the total deletion of Section 112(c) of the bill, S. 1361.
Although the supporters of proposed Section 112(c) are undoubtedly well intentioned, it is relatively apparent that they have not studied the existing copyright law, its history or the proposed revision in its entirety. Clearly, there is no justification for the imposition of those limitations contained in Section 112(c)Edward Cramer.
From ASCAP: I have been authorized by the American Society of Composers, Authors, and Publishers on behalf of its members, who advise you that they join the writers and publishers of religious works that you represent in opposing enactment of Section 112(c) of S. 1361.--Herman Finkelstein.
From the American Guild of Authors and Composers: Together with the members of the music industry, we have sought to have enacted a revision of the existing copyright act, which would expand the benefits of copyright act, which would expand the benefits of copyright protection to our 3,000 members. It is for this reason that we wish to record our opposition to Section 112(c) of S. 1361, and to associate ourselves with the remarks of Mr. Albert F. Ciancimino—by Mr. Ervin Drake.
Senator McCLELLAN. Can you place the rest of it in the record ?
Mr. CIANCIMINO. From the International Gospel Publishers Association:
As attorney for the International Gospel Publishers Association, I wish to go on record on behalf of the association as being emphatically opposed to any copyright provision granting religious broadcasters any exemptions for the paying of performance or mechanical rights pursuant to the Copyright Act of the United States.
Specifically, we are opposed to the proposed copyright amendments contained in Senate bill 644, and 112(c)-Mr. David Ludwig.
In conclusion, Mr. Chairman, I ask this subcommittee to consider and weigh the practical necessities for such an exemption against the far-reaching and negative effects which it will have, not only on trade industry practice as it currently exists, but on the unwarranted dilution of the rights originally granted to the copyright proprietor by Congress in 1909.
Only by allowing the copyright proprietor of religious works equal rights and an equal opportunity to earn a living, will we continue to enjoy the kind of music which has contributed to and hopefully will continue to contribute to the moral fiber of our great country.
Thank you, Mr. Chairman.
Senator MCCLELLAN. I just want to ask you one question. I want to see if I can focus very sharply upon the issue here by this illustration.
Reverend Billy Graham, an internationally known minister, holds many meetings where his sermon, in fact, the whole service is recorded. In such a service, no doubt they do sing hymns, that are copyrighted, play music that is copyrighted; is that correct? Mr. CIANCIMINO. Yes, they do.
Senator McCLELLAN. Now, what you are objecting to is or what you are insisting upon is that if a recording is made at the time of the original program and that recording is sent to another station later to be replayed and rebroadcast, then if I understand you, you say that the composer, or proprietor of a song that may have been sung in that service is entitled to a copyright fee.
Mr. CIANCIMINO. That is correct, Mr. Chairman. In fact what happens is Mr. Graham will syndicate programs in which he is using copyrighted music to many stations.
Senator McCLELLAN. Now, does he pay a copyright fee on it originally when they are singing it? He is holding a service here and they sing "Rock of Ages" or something, which is copyrighted, at that time is a copyright fee earned, or is it payable?
Mr. CIANCIMINO. Here, Mr. Chairman, we are speaking of a per formance fee for the initial performance of the work.
Senator McCLELLAN. That's right. Initially, in the service, they sing a song that has been sold and is copyrighted ?
Now, no copyright fee attachments are legally levied against that if he sings from a book that is copyrighted ?
Mr. CIANCIMINO. In the performance there, Mr. Chairman, there is a for-profit limitation; in other words, a public performance has to be for profit, as specified in the copyright law.
Senator MCCLELLAN. They take up a collection sometime.
Mr. CIANCIMINO. That is very true, and they charge admission many times. It depends on the preacher involved. Whether or not it is for profit, of course, is many times questionable. And it is our position as a