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Religious Broadcasters conducted a questionnaire survey among its membership in the spring of 1973.

The effect of the potential of unlimited mechanical reproduction fees among these responding organizations preponderantly ranged from: First, using only religious music in the public domain with such disadvantage for the listening or viewing audience to; secondly, substantial curtailment of the number of broadcast outlets used; or thirdly, even total discontinuance of the religious program.

Such a result would be a loss to all concerned, the composer, publisher, broadcaster, and most important the listening American public—since it could place a substantial part of modern religious music financially out of reach so far as religious broadcasting through use of mechanical reproduction means is concerned.

Responsible religious broadcasting is a nonprofit activity, carried on as a ministry no less viable than the worship services of a church or a synagogue. Essentially the taping or recording of programs not for profit and for a single release is simply a means of producing such programs for convenience.

It obviates the necessity of releasing the program live utilizing the more expensive and totally impractical method of telephone lines from the program producer to the individual broadcast stations, a procedure which would be undeniably exempt from any claim for mechanical reproduction fees.

The proposed mechanical reproduction exemption would cause no measurable injury to religious music copyright owners, their publishers or agents. The creators of religious music derive their income primarily from publishing and selling hymnals, Gospel songbooks, and sheet music. This is supplemented by income from performing and synchronization rights licenses.

Moreover, only a small percentage of the repertoire of religious music is ever broadcast. There is a tendency to emphasize the music that is or has been popular so that a majority of the songs in hymnals, Gospel songbooks, and sheet music are never presented in religious programs on radio or television stations.

Nor can these religious music copyright owners really complain that the proposed section 112(c) in the copyright bill deprives them of existing income. To the best of our knowledge, only a small handful of religious program producers succumbed to SESAC's pressures for payment for mechanical reproductions in nonprofit religious programs for broadcasting, and some of those have since terminated such payments.

In short, the religious music copyright owners and their associates, who have been financially successful without mechanical reproduction income from nonprofit religious programs, can make no claim for loss of income that they have never really had.

In addition, mechanical reproduction fees for religious music in programs produced by nonprofit organizations for broadcast stations could present substantial practical problems. Much of the music is not listed in catalogs of copyright owners so that there would be added the burden of seeking to ascertain to whom any such payments would be made.

Copyright legislation has rightly sought to protect copyright holders from mechanical reproduction of their literary property by those who do so for profit, whether large or small. Religious program producers, however, clearly are not doing so for profit, but for the purpose of using religious music for religious inspiration.

That the use made of religious music in a conventional religious broadcast is not for profit is demonstrated by the fact when the recorded program has been broadcast, the tape is returned to the program producer or the disc destroyed. Its contents then are erased so that the tape may be utilized for subsequent broadcasts.

Copyright owners can make no claim that the recordings are offered for sale since the tapes for religious broadcasts are not sold. In fact, the reverse takes place with the program producer paying the broadcast station to carry the program, or furnishing it without charge.

The present copyright exemption language of paragraph 112(C) is carefully designed to cover only mechanical reproductions with limitations for nonprofit religious programing. The program producer must be : first, a nonprofit organization, or governmental body; second, only one copy of the program can be distributed to the broadcast or transmitting outlet; third, the musical work is of a religious nature; fourth, the program producer receives no direct or indirect compensation for making or distributing such tape or recording; fifth, there is only a single transmission to the public by the broadcast station or other transmitting organization having a license therefor; and sixth, except for one copy reserved for archival purposes, the tapes or records are destroyed within a year from the date of the public transmission.

The responsible religious programers meet these criteria, and their position clearly justifies the proposed exemption.

Mr. Chairman, the position here stated is supported by a resolution adopted by the National Association of Evangelicals, representing 36.000 churches at its convention in May 1973.

In conclusion, the proposed provisions of section 112(c) will be equally beneficial to Protestant, Catholic, and Jewish nonprofit religious program producers. There is a need to improve the moral tone and well-being of our Nation. Increased religious broadcasting for this purpose is a definite need.

And we urge the enactment in its present form of section 112(c) of S. 1361.

Thank you.

Senator McCLELLAN. May I ask if demands have been made upon you in the past for copyright fees?

Dr. NELSON. Yes, they have.
Senator McCLELLAN. When were these demands first initiated ?
Dr. NELSON. Well, in my own case, about a year ago.

Senator MCCLELLAN. Does section 112(c) in any way change the practice and the custom that has prevailed in the past?

Dr. NELSON. I think its adoption would continue the situation as it is.

Senator McCLELLAN. That's what I'm asking.

Does it legalize, finalize as the law, the custom that has prevailed in the past with respect of rebroadcasting religious services?

Dr. NELSON. Yes, sir. I think it ratifies the principle that religious music should be used for religious purposes without strictures of this kind.

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Senator McCLELLAN. Now, do I also understand that you want this restricted under section 112(c) to nonprofit?

Dr. NELSON. Well, that is a basic point, Mr. Chairman. That is the basic point. We do not feel that we have any right to contest the rights of copyright owners in cases where performances have any measure of profit, large or small.

Senator McCLELLAN. So this would only apply to those nonprofit services?

Dr. NELSON. Yes, sir.
Senator McCLELLAN. Rebroadcast ?
Well, thank you very much.

Mr. MILEN. Thank you, Mr. Chairman, and may the written statement for National Religious Broadcasters be incorporated into the record ?

Senator McCLELLAN. Very well. It will be received and placed in the record.

[The prepared statement of Rev. Dr. Wilbur E. Nelson follows:] TESTIMONY OF REV. DR. WILBUR E. NELSON FOR NATIONAL RELIGIOUS BROADCASTERS

INTRODUCTION

My name is Wilbur E. Nelson and I live in Long Beach, California. I am an ordained Minister of the Evangelical Free Church and Minister and Director of Morning Chapel Hour. I present this testimony as Secretary of National Religious Boadcasters and Chairman of its Copyright Committee concerning Section 112(c) of S. 1361.

National Religious Broadcasters (NRB) is a non-profit association formed in 1944 in order to contribute to the improvement of religious broadcasts, better serve the public interest, and more effectively minister to the spiritual welfare of this nation. The association has approximately 550 member organizations distributed among the 50 states of the United States, the District of Columbia and Puerto Rico. The membership of National Religious Broadcasters consists of (1) broadcast station licensees and their associates, (2) performing artists and others related to broadcasting, and (3) those producing religious programs for broadcast stations. There are more than 425 organizations, including those who are not NRB members, that produce religious programs on a non-profit basis for presentation on a number of broadcast stations. Additionally, it is conservatively estimated there are more than 1,500 pastors and rabbis having individual programs on local broadcast outlets.

Among the more widely known religious programs produced by NRB members for broadcasting are Billy Graham's Hour of Decision, The Lutheran Hour, The Baptist Hour, Methodist Hour, Back to the Bible (daily), Light and Life Hour (Free Methodist), Revivaltime (Assemblies of God), Morning Chapel Hour (daily), Herald of Truth, and many, many others. Other religious programs utilizing religious music and having extensive broadcast dissemination include the Hour of St. Francis, Ave Maria Hour, Sacred Heart Hour, The Protestant Hour, Voice of Prophecy (Seventh Day Adventist), Lamp Unto My Feet (ecumenical), Jewish Dimension. The Eternal Light, and Jewish Community Hour.

These and practically all religious program producers are vitally concerned that there be enacted the present provisions of Section 112(c) of the pending S. 1361 for general revision of the Copyright Law clarifying the right of nonprofit organizations under certain circumstances to make for distribution to licensed transmitting organizations phonorecordings of religious music for usage in religious programs.

GENERAL DESCRIPTION OF RELIGIOUS PROGRAMS The religious music used in religious programs creates an appropriate devotional mood as well as serves as a musical bridge between the spoken words with the degree of usage of religious music varying from program to program. The format for the various religious programs differs, of course, in degree, but the production and distribution principles are relatively uniform. The programs are produced either on tape or disc for distribution by mail of one copy only to each broadcast station carrying the program. The programs then are broadcast at the time and day agreed upon between the station and the program produced. None of these programs is produced for profit by the religious program producers. In fact, the religious program producer usually pays the broadcast station to carry the program or furnishes the religious program without charge to the broadcast outlet. The broadcast stations customarily have performance rights licenses covering this religious music with ASCAP, BMI, and SESAC. NRB supports the rights of the copyright owners to compensation for performances of religious music under these performance rights licenses with the broadcast outlets. NRB also supports the rights of the copyright owners to compensation for mechanical reproductions of religious music made for sale or other profit.

THE NEED FOR THE MECHANICAL REPRODUCTION EXEMPTION FOR RELIGIOUS PROGRAMS

There presently exists confusion and contradiction with respect to claims for mechanical reproduction fees for musical works of a religious nature included in religious programs produced by non-profit organizations for broadcasting purposes. Religious program producers have reported no problems in this respect with ASCAP or BMI. Only SESAC, according to frequent reports, has pressured certain of the religious program producers to make such payments. Further, there is basic division in the ranks among Gospel or religious music publishers with some seeking to assert mechanical reproduction claims and others considering that they are not appropriate. (See attached letters of March 21, 1973 from Affiliated Music Enterprises and Interpublications, Inc.). We know of no court decision directly on the point.

Primarily sacred music is written and published for the purpose of spiritual ministry and religious inspiration. It is incorporated into religious broadcasts wholly apart from any intention or possibility of financial gain.

Any law requiring or leaving open the possibility that mechanical reproduction fees be paid for such use could make this music too expensive in the average religious broadcast since the financial resources of these program producers are not adequate to accommodate such cost as documented by an NRB study. In this study, National Religious Broadcasters conducted a Questionnaire Survey among its membership in the Spring of 1973. The effect of the potential of unlimited mechanical reproduction fees among these responding organizations preponderantly ranged from (1) using only religious music in the public domain with such disadvantage for the listening or viewing audience to (2) substantial curtailment of the number of broadcast outlets used or (3) even total discontinuance of the religious program. Such a result would be a loss to all concerned, the composer, publisher, broadcaster, and most importantly the listening American public-since it could place a substantial part of modern music financially out of reach so far as religious broadcasting through use of mechanical reproduction means is concerned.

JUSTIFICATION FOR THE PROPOSED EXEMPTION Responsible religious broadcasting is a non-profit activity, carried on as a ministry no less viable than the worship services of a church or a synagogue. Essentially the taping or recording of programs not for profit and for a single release is simply a means of producing such programs for convenience. It obviates the necessity of releasing the program “live” utilizing the more expensive and totally impractical method of telephone lines from the program producer to the individual broadcast stations, a procedure which would be undeniably exempt from any claim for mechanical reproduction fees.

It is common knowledge that religious program producers render a valuable service to copyright owners by the very use of their music for such music is given exceedingly broad exposure through radio and television presentations. Many, if not most, programs featuring religious music have accompanying readymade information sheets for the purpose of acquainting listeners requesting details concerning such music including the author, composer, publisher, and possible location where the music as records or sheet music may be purchased. These informational sheets are of great assistance because of the high incidence of requests for the data to the clear advantage of the copyright owner.

The proposed mechanical reproduction exemption would cause no measurable injury to religious music copyright owners, their publishers or agents. The creators of religious music derive their income primarily from publishing and selling hymnals, gospel songbooks, and sheet music. This is supplemented by income from performing and synchronization rights licenses.

Moreover, only a small percentage of the repertoire of religious music is ever broadcast. There is a tendency to emphasize the music that is or has been popular so that a majority of the songs in hymnals, gospel songbooks, and sheet music are never presented in religious programs on radio or television stations.

Nor can these religious music copyright owners really complain that the proposed Section 112(c) in the Copyright Bill deprives them of existing income. To the best of our knowledge only a small handful of religious program producers succumbed to SESAC's pressures for payment for mechnical reproductions in non-profit religious programs for broadcasting, and some of those have since terminated such payments. In short, the religious music copyright owners and their associates, who have been financially successful without mechanical reproduction income from nonprofit religious programs, can make no claim for loss of income that they never really had.

In addition, mechanical reproduction fees for religious music in programs produced by non-profit organizations for broadcast stations could present substantial practical problems. Much of the music is not listed in catalogues of copyright owners so that there would be added the burden of seeking to ascertain to whom any such payments would be made.

Copyright legislation has rightly sought to protect copyright holders from mechanical reproduction of their literary property by those who do so for profitwhether large or small. Religious program producers, however, clearly are not doing so for profit, but for the purpose of using religious music for religious inspiration.

That the use made of religious music in a conventional religious broadcast is not for profit is demonstrated by the fact that when the recorded program has been broadcast, the tape is returned (or the disc destroyed) to the program producer. Its contents then are erased so that the tape may be utilized for subsequent broadcasts. Copyright owners can make no claim that the recordings are offered for sale since the tapes for religious broadcasts are not sold. In fact, the reverse takes place with the program producer paying the broadcast station to carry the program, or furnishing it without charge.

The present copyright exemption language of Paragraph 112(c) is carefully designed to cover only mechanical reproductions with limitations for non-profit religious programming. The program producer must be (1) a nonprofit organization (or governmental body), (2) only one copy of the program can be distributed to the broadcast or transmitting outlet, (3) the musical work is of a religious nature, (4) the program producer receives no direct or indirect compensation for making or distributing such tape or recording, (5) there is only a single transmission to the public by the broadcast station or other transmitting organization have a license therefor, and (6) except for one copy reserved for archival purposes the tapes or records are destroyed within a year from the date of the public transmission. The responsible religious programmers meet these criteria, and their position clearly justifies the proposed exemption.

SUPPORTING RESOLUTION OF NATIONAL ASSOCIATION OF EVANGELICALS A major church body, the National Association of Evangelicals—which numbers among its membership more than 36,000 churches of various denominations in the United States-on May 2, 1973 at its Thirty-First Annual Convention adopted a Resolution supporting the provisions in Section 112(c) of S. 1361 relating to religious broadcasting by non-profit organizations and urging that S. 1361 be so enacted. This Resolution of the National Association of Evangelicals is attached to this Statement.

CONCLUSION The proposed provisions of Section 112(c) will be equally beneficial to Protestant, Catholic and Jewish non-profit religious program producers. Recent public developments have demonstrated that more than ever before there is a need to improve the moral tone and well-being of our nation. Increased religious broadcasting for this purpose is a definite need, and we urge the enactment in its present form of Section 112(c) of S. 1361 so that there will be encouraged rather than decreased or eliminated the amount of religious programming for this purpose.

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