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be able to determine whether or not a given duplicating project would be permissible.
First, NSSEA believes that it is essential that explicit guidance be provided on what constitutes "fair use" with respect to the duplication of instructional materials. Guidelines which have been devised with printed textual materials in mind will not resolve the problem of instructional materials. Unlike textbooks, most instructional materials are designed expressly to be used in segments which relate to specific areas of study. For this reason, duplication of portions of an instructional material program is far more detrimental to the rights of their creators than comparable duplication of a portion of a textbook would be. We urge, therefore, that copying even small segments of such materials be deemed not to constitute a "fair use".
Secondly, the application of the doctrine of "fair use" to what have been termed "consumables" must be clarified. Unlike textbooks, many printed instructional materials, like workbooks and exercises, are consumed in use. Recognizing the particular problems raised by these materials, Congressional committees have consistently made clear that the privilege of "fair use" by teachers and students would have "little, if any, application" to "consumables". A spokesman for the Ad Hoc Committee on Copyright Law Revision of the American Council on Education testified before this Committee that they were not asking for the right to reproduce writings that are destroyed in use. Supporting the virtual unanimity among Congressional committees, the educational community and the creators of instructional materials that duplication of instructional materials which are consumed in the classroom should not be permitted, NSSEA recommends that § 107 be amended accordingly.
Specific guidance is also needed on the application of § 107 to audio-visual materials. Due to the nature of audio-visual aids, no more than one set of a program is usually needed in any one classroom. And, often, a school will purchase only one of each program or set which will be rotated among the classrooms. Thus, even single duplications of these materials could have a significantly adverse impact on the audio-visual industry. NSSEA urges this committee to clarify § 107 and to set out express restrictions on the rights of educators to duplicate audio-visual materials.
The other section of H.R. 2223 which NSSEA finds particularly troubling is $ 110, which exempts from liability certain displays of copyrighted materials in a teaching context. § 110(1) provides that the "display" of a copyrighted work in the course of "face-to-face teaching activities" in a classroom by teachers or pupils is not an infringement of copyright-and to "display" a work is defined as "to show a copy of it”. Except for motion pictures and other "audio-visual" works, there is no requirement in the bill that such copy must be lawfully made in the first place. NSSEA believes that this provision is inconsistent with § 107 and could permit wholesale infringements of instructional material copyrights. Once the copy has been made of materials like sets of learning cards or slides, this exemption could allow teachers to use that copy freely thereafter without running any risk of copyright infringement. NSSEA believes that § 110 should be amended to restrict all the rights of "display" granted under this provision to copies which were lawfully made in the first instance. Clearly, your legislation should not create the circumstances whereby one section of the law permits people to do indirectly what another section forbids them to do directly.
In conclusion, Mr. Chairman, NSSEA commends the efforts of this committee to revise our existing copyright laws and to resolve the problems created by the rapid technological changes of the last few decades. The question of photocopying is clearly one of the most troublesome now facing your committee. The interests of educators and users, however, would be best protected in the long run by the maintenance of copyright protection which is sufficient to encourage and reward the further development of new educational methods and instructional materials.
1 S. Rep. No. 93-983, 93rd Cong., 2d Sess., at p. 117 (1974); H.R. Rep. No. 83, 90th Cong., 1st Sess., at p. 34 (1967).
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. KASTEN MEIER. 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.
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 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. Ás 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.