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yet been taken. Nor is it entirely clear that the Commission has accepted our position that it has the statutory authority to deal comprehensively with the problem.
Meanwhile matters grow more pressing. After an earlier FCC action slowed much of cable's previously rapid growth, the current rules have once again permitted the industry to expand. In just over one year the Commission has issued over 1,000 certificates authorizing establishment of new cable systems or addition of new distant stations on existing systems; many of these systems are or will be located in the heart of the nation's larger metropolitan areas. Systems are now authorized or operating in substantial segments of the Atlanta, Boston, Buffalo, Cincinnati, Cleveland, Los Angeles, New York, Philadelphia, Pittsburgh, San Diego, San Francisco and St. Louis markets, to name only areas where NFL teams are located, and in many other cities and towns as well. There are something like 3,000 cable systems serving about 7 million homes in 6,000 communities across the nation, and one estimate is that 25 million homes will be connected to the cable by 1975.
Thus, the need for an effective solution increases. And that solution simply is to implement either in the copyright law or in FCC regulations the national policy as it affects televising of professional sports contests. As the Subcommittee's earlier action on S. 543 recognizes, that policy is most forcefully expressed in Public Law 87-331 (the Sports Broadcasting Act of 1961), as amended, 15 U.S.C. 88 1291–95. There are three principal points :
(1) It has always been the right and the practice of NFL teams not to televise a game in the very area in which it is being played. No television station in that area is authorized to carry that game (except by delayed bradcast), and no cable system should have any greater privilege. (The recent action of the Commerce Committee regarding telecasts of sold-out games, even if enacted into law, will have no bearing on this issue, because our concern in the copyright area is simply to see that cable stands on no different footing from broadcasting.)
(2) The 1961 Act gave sports leagues like the NFL the right to sell television privileges on a package basis and thereby to control the patterns of game telecasts. This has enabled the NFL to require networks to bring every team's away games back to its home city, which as a practical matter has resulted in games being carried on regional networks. And with one of these games also carried nationally under our relatively new "double header" program, we have been able to give most football fans two or three live telecasts of NFL games each Sunday afternoon during the season while also giving each team roughly equal television exposure. (Of course, Monday night games are also televised as are Saturday games late in the season.)
(3) As reflected in Section 3 of the 1961 Act, protecting attendance at college and high school games is an important feature of national policy. We impose restrictions upon the television networks and upon the teams to carry out this policy.
As we have shown many times, unrestricted cable television would undermine, perhaps seriously, these aspects of national policy and would upset the League's television patterns; it would also erode the value of the television rights we sell to the national networks. To prevent the .e unwanted and unfair results, we reafirm our support for Section 111(c)(4) (() of the pending bill, S. 1361, and for the other provisions entitling live sports telecasts to full copyright protection. We also urge vigorous action looking toward final enactment of these provisions into law.
STATEMENT OF J. WALTER KENNEDY, COMMISSIONER OF THE NATIONAL BASKETBALL
ASSOCIATION, BEFORE THE SUBCOMMITTEE OF PATENTS, TRADEMARKS AND COPYRIGHTS, COMMITTEE OF THE JUDICIARY, U.S. SENATE ON S. 1361
This statement is submitted in connection with the proposed Omnibus Copyright Bill, S. 1361, and specifically to support the retention in its present form of Section 111(c) (4) (C) of that Bill relating to the carriage of sports programs on cable television systems.
The proposed draft of the Copyright Bill contains provisions which would give to sports events the long overdue copyright-type protection which traditionally has been available to other forms of privately produced entertainment. In addition, the Bill would give to sports the vital blackout protection with respect to cable television systems like that which they presently receive with respect to over-the-air television.
Section 111(c)(4)(C) of the proposed Copyright Bill deals with the importation of distant sports signals. It provides that cable systems would be able to carry a sporting event only under circumstances when free television could carry it—that is, with proper authorization from the home team within the particular television market.
The National Basketball Association believes that it is vital that Section 111(c) (4) (C) of the Omnibus Copyright Bill S. 1361 be retained in its present form. Professional sports desperately needs this protection. Without it, cable systems can do without authorization what local stations are properly limited to doing only with permission. Cable should not be able to import distant signals of sporting events unless a local station or cable system is authorized to carry such programs by the appropriate team or league.
The need for the enactment of Section 111 in its present form is illustrated by the nature of the business of professional basketball and by its economic situation.
Professional basketball games are not produced primarily for television view. ing and do not have the potential for resale and reuse that a non-sports entertainment program might have. Therefore, importation of distant signals of live basketball games would have harmful results in two important areas: (1) the destructive impact on team attendance at home; and (2) destruction of the team's natural markets for future sales of authorized telecasts and cable transmission.
Sports telecasting is a unique form of entertainment with limited market. ability, both in terms of time and regional scope. Therefore, cable importation of distant live sports programs creates problems of a far greater magnitude than such cable distribution of other types of entertainment. Unlike “Lassie" or “Gone With The Wind”, very few backetball games (other than the "Game of the Week") have a sufficient national impact to be sold for television on more than regional basis, and none commands the requisite viewer interest to be sold on a repeat basis.
The economics of professional basketball requires that teams and leagues protect and expand existing sources and find new sources of revenues. Costs are such even today that teams cannot exist if they depend solely on the income generated from ticket sales. Television on an authorized, compensated basis has been the answer for sports—but not if cable systems are allowed to destroy these sources of revenues by picking up and distributing programs without compensating either the teams or leagues.
In recent years, a major income factor for the members of the National Basketball Association has been the NBA's ability to sell television rights on a national network basis. Outside this weekly network showing, other existing television rights are sold on a team-by-team basis. The revenues received as a result of this sale of the right to broadcast certain games have kept many NBA teams alive. These revenues are undoubtedly based upon the broadcaster's exclusive right to the game in the relevant territory, his ability to sell commercial time on the broadcast, and the sponsor's willingness to buy the time because he is assured against dilution of the audience by unauthorized cable competition
A recognition of the operation of professional basketball is needed to understand the impact of unauthorized cable transmission of distant signals. In contrast with football, professional basketball games are played somewhere in the United States—and perhaps close to a home city-on almost every day of the week. The home team may average two games a week at home, and unlimited cable distribution of distant signals could make available other games on those two days as well as on each of the remaining five days. Under these circumstances, the home team faces competition from within its own industry as well as competition from other forms of entertainment. In the case of a team which is not currently championship caliber, this increased competition can mean disaster.
Professional basketball's need for the protections contained in Section 111 is illustrated by the dilemma of new and less successful teams like the Cleveland Cavaliers. In order to survive, this team must build a local following, sell admissions and local television rights and establish its place in the community. If, on any evenings when the team is at home or not playing at home, Cleveland audiences had available to them on an unlimited basis games involving, for example, the Milwaukee Bucks, the Los Angeles Lakers and the New York Knickerbockers, the local team would have little chance of surviving. Within a short time, such saturation of local markets would result in a substantial reduction in the number of teams in existence, a loss of player and other employment, the elimination of the opportunity of many persons to see live basketball games, and the disappearance of the other benefits of local involvement which the existence of a home team presently offers. Further down the road could very likely be the shrinkage of the league to a few teams playing against each other principally for television purposes.
The National Basketball Association believes that cable, like over-the-air television, should bargain economically for the right to transmit sporting events and that professional sports should have the right to adequate compensation. The cable industry has often referred to "the public's right to see sports' contests," without any mention of the sports producer's right to be paid for assuming the costs and risks of the business and for his creative efforts in presenting the sports event. We respectfully submit that the public's “right to see sports contests is no greater than the public's “right to see" "Lassie" or "Gone With The Wind." We point out that no cable operator is so wedded to the public's "right to see" that he would permit anyone to use his cable to exercise that right without paying the cable operator for it.
By adopting Section 111(c) (4) (C) of the proposed Copyright Bill, the Subcommittee has recognized that professional sports is entitled to traditional copyright protection for the sale and broadcast of sports events.
The protection which you have provided in the proposed Copyright Bill is required for professional basketball because of the regional rather than national interest in many of its programs, because of the perishable nature of its product, because of the need to recognize that the professional sports teams and leagues do have proprietary rights to the sports events in which they participate and because of the economic distress in which the industry finds itself.
The National Basketball Association therefore asks that the provisions of the Copyright Bill affecting professional sports be retained in their present form.
Mr. BRENNAN. This concludes the hearings. We will leave the hearing record open until August 10th.
Senator McCLELLAN. We announced in the beginning of these series of hearings that the interested parties would have until August the 10th
Mr. BRENNAN. August the 10th.
Senator McCLELLAN [continuing]. to submit statements for the record. And as we conclude these hearings, the Chair would further announce that if we find some gaps in the testimony in the record we may hold another day of hearings or call on people to further respond to the Committee's request for information.
Thank you very much.
APPENDIX STATEMENT OF COPYRIGHT COMMITTEE, AMERICAN ASSOCIATION OF LAW LIBRARIES,
SUBMITTED BY JULIUS J. MARKE, CHAIRMAN Mr. Chairman and Members of the Subcommittee: I am Julius J. Marke, Law Librarian and Professor of Law, New York University. I am also past president and chairman of the Copyright Committee of the AALL, and submit this statement on behalf of the American Association of Law Libraries. The American Association of Law Libraries was established in 1906 for educational scientific purposes. It is conducted as a non-profit corporation to promote librarianship, to develop and increase the usefulness of law libraries, to cultivate the science of law librarianship and to foster a spirit of cooperation among the members of the profession.
Its headquarters is situated at 53 West Jackson Boulevard, Chicago, Illinois 60604, and it has approximately 1600 members located in every state of the union, Canada and Puerto Rico. All major legal publishers in the U.S. are associate members of the AALL. The AALL also has twelve Regional chapters known as Association of Law Libraries of Upstate New York, Chicago Association of Law Libraries, Greater Philadelphia Law Library Association, Law Libraries of New
England, Law Librarian's Society of Washington, D.C., Law Library Association of Greater New York, Minnesota Chapter of AALL, Ohio Regional Association of Law Libraries, Southeastern Chapter AALL, Southern California Association of Law Libraries, Southwestern Chapter of AALL and Western Pacific Chapter of AALL. The Association is also a publisher of established scholarly legal reference works such as the Law Library Journal, The Index to Foreign Legal Periodicals, Current Publication in Legal and Related fields, the AALL Publications Series and cooperates with the H. W. Wilson Company in the publication of the Index to Legal Periodicals. Its members work in Law School Libraries, Bar Association Libraries, County Law Libraries, and in Private Practitioners' Libraries. A significant number of them are authors and are very much concerned about the effect of the new technology on copyright law and scholarly legal research, especially as presently reflected in S. 1361.
Our purpose in submitting this statement is to stress our concern that materials duly acquired either by purchase or gift by law libraries and requested for scholarly legal research be promptly available in useable form and without burdensome administrative details by library users or other libraries on interlibrary loan.
We are very much aware of the plethora of statements and arguments over the various proposed copyright revision bills submitted to this Committee over the years both by owners and consumers of copyrighted publications. It is not our purpose to repeat them here. Rather, we would like to call to your attention some of the pressing problems, especially in the realm of public policy, your Committee must resolve, in arriving at a viable, revised copyright law.
(1) We recognize that commercial publishers have a valid interest in securing and maintaining a market for their copyrighted works. This interest, however, must be balanced with the interest of society in the support and implementation of scholarly legal research.
(2) We believe the nub of the problem lies in the interpretation and application of the Fair Use Doctrine as set forth in sections 107 and 108 of S. 1361, especially in light of the Report of the Commissioner in the Williams and Wilkins v. The U.S. in the U.S. Court of Claims filed February 16, 1972.
(3) In this context we support and approve the statement of the Copyright Committee, Association of American law schools (including American Association of University Professors and the American Council on Education) on S. 1361 submitted to your Committee on July 31, 1973.
(4) In this context, we also submit that there is an urgent need to give librarians an opportunity to spell out in specific detail, as part of the legislative history of sections 107 and 108, factors of library use of library materials not presently illustrated in section 107 nor in any of the studies of the Register of Copyright hitherto filed with Congressional Committees so that librarians could be properly guided in their conduct in such matters. As presently worded. the fear of copyright infringement, because of the lack of specificity of the guidelines established, is precluding and will preclude librarians from legally using copyrighted publications and even those in the publie domain, when in actuality, they could be protected by the applicability of the fair use doctrine. Librarians should be given the opportunity to present to this committee, and have considered by this Committee, within the context of fair use, a catalogue of library replication practices that would be tolerated under the proposed revision. For example, should the felt need for on-demand copies be considered as a fair use practice, when the publication to be replicated is out of print or subject to long delays when requested of a publisher.
(5) We believe that publishers and owners of copyrighted publications are failing to assume the responsibilities incumbent upon them in this replication controversy and placing the burden solely on the librarian, who in actually is merely the middleman between the public and the publisher. We strongly urge that this Committee reconsider the role publishers should play in this context and provide that publishers step forward to assume the prime role of controlling the replication of their own materials in libraries. By this we mean that publishers should go into the business of replicating their own materials in libraries, providing the hardware, and collecting the income directly, rather than depending on the librarian to act as their agent, without compensation.
(6) In any event, we submit that librarians should not be required to identify and account for photocopying in their libraries on behalf of their library users. To allow this practice will add considerably to the cost of running libraries at a time of diminishing library budgets and accelerating library costs. It must eventually also affect library service detrimentally and at the expense of scholarly research.
(7) In conclusion, we urge immediate enactment of Title II of S. 1361 (creation of a National Commission on New Technological Uses of Copyrighted Works) without waiting for passage of S. 1361 in its totality, so that possible solutions could be determined with reference to copyright as it will be affected by TV, radio, CATV, computers and similar developments relating to replication.
AMERICAN CHEMICAL SOCIETY,
Washington, D.C., August 6, 1973. Hon. John L. McCLELLAN, Chairman, Senate Judiciary Subcommittee on Patents, Trademarks and Copy
rights, Senate Office Building, Washington, D.C. DEAR SIR: I was gratified indeed with the privilege of offering the views of the American Chemical Society on Senate Bill 1361 and the matter of library photocopying, as well as other exemptions, which might allow photocopying of scholarly journals. I thank you and the committee for the respecftul attention given my remarks.
On May 3, 1973, Dr. Alan C. Nixon, President, American Chemical Society, addressed a letter to you expressing ACS views on the above subject. It is my understanding that this letter may not be a part of the record on which current considerations will be based. As certain parts of that letter present material op ACS programs which I believe pertinent to the current deliberations, I offer for the record four paragraphs which I believe are useful in development of a full understanding of the ACS position :
“The Society conducts research experimentation on the use of computers and allied electronic devices for the handling and dissemination of scientific information. Based on our own experience and observations of the work of others doing research in this area, we see that such developments are leading us toward systems where a single original work will be used to disseminate multiple copies as well as a variety of subcollections of information derived from the original work. In effect, we are in the process of enhancing the distribution of an author's works by replacing the printing plate with the capability of electronic processing. We urge that the proposed bill be aware of the impact of such developments on the role of copyright protection and follow a course which will in no way prove confining in terms of future technological progress.
The American Chemical Society is actively engaged in a continuing program of development and study relative to convenient access by users, including patofisa controversy and placing the burden solely on the librarian, who in actuality which are compatible with the best interests of both copyright producers and users. We are vigorously pursuing a long-standing program to pro ide intere-ted persons with copies of materials copyrighted by the Society, quickly and at the lowest possible cost, and to license others to reproduce such materials. We are doing all this because we clearly understand the need of chemists for quick and ready access to our published chemical information, and we also desire to adapt to their service the advantage of new communications technology.
Despite these efforts, it is an accepted fact that unauthorized photocopying of complete articles and other copyrighted materials is as widely practiced among scientists as in other lines of endeavor. Although we have no figures to indicate precisely the volume of such copying, in terms of subscription losses, it does appear that the amount of photocopying of chemical publications is considerably higher than in other fields of science. In a study of the copying of technical journals from the New York Public Library, five American Chemical Society journals appeared on the list of 22 most copied journals, and ranked 2, 3, 5, 12, and 13, respectively. Bonn, George S., “Science Technology Periodicals,” Library Journal, 88(5), 954-8, March 1, 1963. Later studies have shown similar results.
The American Chemical Society will continue to explore these problems in an effort to find solutions on a private level. In addition, we continue willing t• participate with others in studies concerning this general problem. We are demonstrating this actively (1) we were a convenor in 1970 of the first Parliament on New Technological Uses of Copyrighted Works, and are continuing our support of ongoing efforts; (2) we initiated and are participating in a multisponsored 1972–73 study of the impact of pending copyright-revision legislation on scientific communications; and (3) in 1972 and 1973, we have been participating with associations of private and nonprofit publishers and library associations in efforts to arrive at suggestions for legislative accommodation in the area of photocopying of scientific and technical periodicals. While these and other efforts are beng made by private and public interests, we urge that this Sul).