COPYRIGHT LAW REVISION TUESDAY, JUNE 3, 1975 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE The subcommittee met, pursuant to call, at 10:10 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee], presiding. Present: Representatives Kastenmeier, Danielson, Drinan, Pattison, Mann, and Mazzoli. Also present: Herbert Fuchs and Bruce A. Lehman, counsels; and Thomas E. Mooney, associate counsel. Mr. KASTENMEIER. The subcommittee will come to order. We are meeting again this morning to continue our study of the general revision of copyright law. This morning we have witnesses representing varying interests on the question of performance rights in jukebox performances. This is a question that 10 years ago, when this subcommittee held hearings, was, as I would observe, somewhat more controversial than it is today. Since then there have been agreements and accommodations, and while the parties are not precisely in agreement on the issue in all aspects, the differences are less grave. The committee policy in this set of hearings has been to call, as the first group of witnesses, those witnesses which have what appear to be a disagreement with the bill as introduced; that is to say, the bill as it passed the Senate late last year. In this case, it is not the proprietors of music, music composition, that are defending the bill in all particulars. Actually the performance rights societies have some disagreements with the bill as it passed, and consequently our first set of witnesses this morning represent the performance rights societies. They are a number of distinguished individuals. Ten years ago there were a different cast of people present. In addition to the general counsel of the American Society of Composers, Authors and Publishers, Mr. Bernard Korman, and the general counsel of Broadcast Music Inc., Mr. Chapin, and also counsel of SESAC, Inc., who will be a witness, Mr. Ciancimino, who was present 10 years ago, there are a number of distinguished American authors and composers. And first, if it is the pleasure of the panel before us, I would call on the great name in American music, the distinguished author, and composer, Aaron Copland, to be followed by the others as may be present. I notice we have Mr. Sy Oliver. Chip Davis and others may be here, and perhaps I should call on either you, Mr. Korman, or someone else who is appropriate to introduce each of the witnesses. But, first the Chair would like to greet and call on Mr. Copland to make his presentation. TESTIMONY OF AARON COPLAND, COMPOSER AND AUTHOR, ACCOMPANIED BY BERNARD KORMAN, GENERAL COUNSEL, AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS Mr. KORMAN. Mr. Chairman, if I may, since you mentioned that there would be other witnesses, and we had listed Johhny Mercer as one of them, Mr. Mercer had intended to be here. His wife is recovering from an operation and she is out in California, and he is with her, and therefore, unfortunately not here. We have arranged among ourselves a little different allotment of time than appears on your schedule. Sesac has graciously ceded 2 minutes of its time to us, and rather than Mr. Copland taking only 5 minutes, he will take 8 or 9, and I will try to briefly summarize the statement that Mr. Mercer would have made had he been here. Mr. KASTENMEIER. And who will speak for Broadcast Music Inc., Mr. Sy Oliver? Mr. CHAPIN. Mr. Chairman, Mr. Sy Oliver is here and will speak for Broadcast Music Inc. The other person, Mr. Frank Peewee King, has been delayed in transit, and we expect him at any moment. I would hope at your pleasure that he could be at the end. Somebody is at the airport waiting for him and he will bring him here just as soon as he arrives. Mr. KASTENMEIER. In which case we will call on you, Aaron Copland. Mr. COPLAND. Mr. Chairman and members of the committee. My name is Aaron Copland, and I reside in Peekskill, N.Y. appear today as a spokesman for the 23,000 members of the American Society of Composers, Authors and Publishers, on whose board of directors I have served since 1973. However, I believe I speak for all composers, authors, and publishers of music, and indeed, that the point of view I shall express is, in fact, the point of view of everyone who has looked at the jukebox question, with the sole exception, of course, of the jukebox industry. First, Mr. Chairman, I would like to express my personal appreciation of your extraordinary efforts on behalf of authors and composers over the past dozen years. I believe all creators owe you a large debt. I hope my statement will accomplish two things: First, to state succinctly ASCAP's position on the jukebox issue and, second, to set forth briefly some facts about the world of music which are not generally known. The origin of the $8 per year provision in the present bill is wellknown. In 1967, for the first time, the prospects for enactment of a general copyright revision bill were good, but there were two problems-the fee to be paid for jukebox performances and how cable television should be treated. To resolve the jukebox issue, we and other licensing organizations agreed with the jukebox industry that their fee would be $8 per box per year-substantially less than the $19 to $20 fee recommended by this subcommittee in 1966. The bill, as so amended, passed the House-with the cable television provisions deleted-but the Senate failed to act. The $8 fee for the 500,000 jukeboxes then in use would have produced $4 million per year in license fees. That is a total of $28 million for the period 1968 through 1974. Because the bill was not enacted, not a penny has been paid for performance fees. Your bill, Mr. Chairman, is the same as the bill passed by the Senate in September 1974. As a result of a last-minute amendment on the Senate floor, chapter 8 was changed so that the $8 fee would not be subject to periodic review and adjustment by the Copyright Royalty Tribunal." ASCAP's position, then, is that we support H.R. 2223 with a single change: we urge that chapter 8 be amended and restored to the form in which it won Senate Judiciary Committee approval. The jukebox fee should not be frozen by statute. It should be treated the same as the other statutory fees-the mechanical fee, section 115; and the cable television fee, section 111. Congress is too busy to be burdened with periodic review and adjustment of copyright royalty rates as economic conditions change. Such adjustments are best left to the Copyright Royalty Tribunal. Mr. Chairman, it would not surprise or disappoint me if, when my name was listed as a witness on this issue, you and the other members of the committee were puzzled as to why my fellow composers would call on me, or why I would agree, to speak for them when I am better known to concert audiences than to those who drop their quarters, half-dollars and, I am told, even their dollar bills, into jukeboxes. The answer is that the world of serious music is much closer to, and more dependent on, the world of popular music than is generally realized. To appreciate why this is so and how "serious" composers stand to share in royalties paid by jukebox operators-it is necessary to understand how ASCAP and similar licensing organizations function. ASCAP licenses are valuable to users precisely because they cover many compositions-the works of all of ASCAP's members and the works of tens of thousands of music creators who belong to similar foreign societies with which ASCAP is affiliated in all parts of the world. ASCAP members include composers of serious music, rock n' roll, the great American standards, music from Broadway shows, film music, religious music, jazz, country and western; indeed, all music. ASCAP is not a corporation. We are an unincorporated, nonprofit membership association-really, a kind of cooperative. Many of us who create music rely primarily on our copyright royalties for our livelihood. In addition to our performance royalties, we also receive record royalties. But it is important for you to realize that record sales benefit record companies and performers more than they benefit writers and publishers. Consider the mechanical royalty income earned by writers and publishers from a record that sells 1 million copies there are not many-and remember that at the present maximum statutory fee of 2 cents per record, the publisher would receive $10,000 and $10,000 would be divided among the writers. Other sources of income for composers, such as sheet music, are small. The fact is that careers in music would often be impossible without performance royalties. They are the mainstay for many composers. In deciding how to apportion the writers' share of ASCAP's revenues, the most successful popular writers do something unique as far as I know-they encourage the development of other writers by a distribution system which channels money from those who earn most to those who earn less. Specifically, the 100 or so writers who receive the most "performance credits" in the ASCAP survey of performances receive less than the amount they would receive if they were paid on the same basis as all other writers. These sums "flow down" to writers whose works do not enjoy equal commercial success. Money, after all, is the essential encouragement one must have. It permits the writer, especially the beginner, to keep writing when, otherwise, he might have to give up his profession. ASCAP's members have agreed to distribute 10 times as much to writers and publishers of serious music as this music earns from licensing performances in concerts and recitals. The money used for this purpose obviously comes from ASCAP's other licensees. These include "general" licensees, such as restaurants, hotels, and taverns, and would include receipts from jukebox operators. Accordingly, the fees ASCAP would receive for jukebox performances under the general revision bill are of vital interest to me and to other serious composers. And there are other reasons. There is the international aspect-we Americans receive far more for foreign performances of our works than we pay to foreign creators for American performances. Jukebox performances abroad earn money for our composers; why should we do less for theirs? Why, indeed, should we be parsimonious toward our creators in any aspect of our copyright law? As one who has devoted his life to the creation of music, I am deeply concerned about the term of copyright protection. I am told that some witnesses have appeared before this committee to argue against the term of life plus 50 years which you have proposed, Mr. Chairman, in your bill, and which is consistent with the terms in virtually all civilized countries. My own first work was published in 1921. In the absence of enactment of this bill, or of a further extension bill, this work of mine will go into the public domain in the United States in 1977. Elsewhere in the world, its copyright term will run at least 50 years after my death. I submit that the United States should protect works of authorshin at least as long as most other nations. Mr. Chairman and members of the committee, the achievements of Americans in literature, painting, and music are measures of the greatness of our Nation. They are honored around the world and we can all be proud of them. You have a rare opportunity: Most people are not in a position to offer more than lip service to the Nation's creators, men and women in every State, large and small. On this eve of our Bicentennial you can carry out the intention of the framers of our Constitution. In considering each of the solutions to the complex issues confronting you, the questions I should like you to repeat to yourself are: Is it fair to authors? Does it, in fact, carry out the famous constitutional mandate "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries?" Thank you. [The prepared statement of Mr. Copland follows:] STATEMENT OF AARON COPLAND, COMPOSER, MADE ON BEHALF OF THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS Mr. Chairman and members of the committee. My name is Aaron Copland, and I reside in Peekskill, New York. I am a composer, author, conductor, and teacher and a member of the National Institute of Arts and Letters and the American Academy of Arts and Letters. I appear today as a spokesman for the 23,000 members of the American Society of Composers, Authors and Publishers, on whose Board of Directors I have served since 1973. However, I believe I speak for all composers, authors, and publishers of music and, indeed, that the point of view I shall express is, in fact, the point of view of everyone who has looked at the juke box question, with the sole exception, of course, of the juke box industry. First, Mr. Chairman, I would like to express my personal appreciation of your extraordinary efforts on behalf of authors and composers over the past dozen years. I believe all creators owe you a large debt. I hope my statement will accomplish two things: first, to state succinctly ASCAP's position on the juke box issue and, second, to set forth briefly some facts about the world of music which are not generally known. For many years ASCAP and other organizations representing composers sought a change in the 1909 copyright law so that royalties would be earned when the public paid to hear our music played on juke boxes. Fortunately, we no longer have to concern ourselves with the basic question in dispute over those many years-whether juke box operators should pay any performance fees. They now agree to pay $8 per year per juke box. Thus, the only question now is whether the $8 fee should be frozen by statute or subject to periodic review and adjustment, up or down, as the facts may warrant. Last year the Senate Judiciary Committee recommended such review by the Copyright Royalty Tribunal, subject to veto by either House of Congress. We favor that approach. The origin of the $8 per year provision in the present bill is well-known. In 1967, for the first time, the prospects for enactment of a general Copyright Revision Bill were good, but there were two problems-the fee to be paid for juke box performances and how cable television should be treated. To resolve the juke box issue, we and other licensing organizations agreed with the juke box industry that their fee would be $8 per box per year-substantially less than the $19 to $20 fee recommended by this Subcommittee in 1966. The bill, as so amended, passed the House-with the cable television provisions deleted-but the Senate failed to act. The $8 fee for the 500,000 juke boxes then in use would have produced $4 million per year in license fees. That's a total of $28 million for the period 1968 through 1974. Because the bill was not enacted, not a penny has been paid for performance fees. Your bill, Mr. Chairman, is the same as the bill passed by the Senate in September, 1974. As a result of a last-minute amendment on the Senate floor, the juke box provision (§ 116) was changed so that the $8 fee would not be subject to periodic review and adjustment by the Copyright Royalty Tribunal. ASCAP's position, then, is that we support H.R. 2223 with a single change: we urge that § 116 be amended and restored to the form in which it won Senate Judiciary Committee approval. The juke box fee should not be frozen by statute. It should be treated the same as the other statutory fees-the mechanical fee (§ 115) and the cable television fee (§ 111). Congress is too busy to be burdened with periodic review and adjustment of copyright royalty rates as economic conditions change. Such adjustments are best left to the Copyright Royalty Tribunal. Mr. Chairman, it would not surprise or disappoint me if, when my name was listed as a witness on this issue, you and the other members of the committee were puzzled as to why my fellow composers would call on me, or why I would agree, to speak for them when I am better known to concert audiences than to 57-786 O 76 pt. 1 25 |