should you wish copies of the full letters of endorsement which are already contained in the record of the Senate hearings held in 1973, I will be more than happy to supply them to you. These organizations represent substantially all of the responsible copyright proprietor interests in the United States today and all of them are opposed to the inclusion of Section 112 (c) in the pending Revision Bill. I might also add that the American Bar Association passed a resolution in 1973 which opposes 112 (c) in its entirety.

It is interesting to note that in the monthly newsletter of the NRB called "Hotline", the June 1975 issue referred to a petition filed with the FCC which the NRB claimed "clearly discriminates against sectarian groups" and the NRB pointed out that the religious orientation of an applicant should not be used as a basis for determining its eligibility for a commission license. SESAC wholly endorses this position and we further ask that the religious orientation of a copyright creator not be used as a basis for determining his eligibility to receive copyright royalty payments.

Before concluding, I must touch upon the often used NRB argument that 112 (c) would eliminate unfair double fees. The NRB points to the performance payment made by a radio station to SESAC, ASCAP and BMI, generally under a blanket licensing arrangement, as well as the payment of a mechanical royalty under the current law by the program producer. This is no different, Mr. Chairman, from a situation where a commercial record company, such as Columbia, Decca, RCA, etc. would pay the copyright proprietor a mechanical reproduction fee for each record pressed, while at the same time the broadcaster pays a performance fee for his performance of the recording over the air. There is no "double fee". There are simply different uses being made by different people, each of which justifiably calls for compensation to the copyright owner.

In conclusion, I ask this sub-committee to consider and weigh the practical necessities for such an exemption as exists in 112 (c) against the far-reaching and negative effects which it will have not only on trade industry practice as currently exists, but on the unwarranted dilution of the rights originally granted to the copyright proprietors 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. CIANCIMINO. I will try to omit certain portions of the statement in the interest of time. The main issue involving section 112(c) of H.R. 2223 is relatively simple. It is whether or not a religious program producer can use a piece of religious music and distribute it to approximately 4,000 radio stations without any compensation to the creator of that religious music.

You may remember, Mr. Chairman and members of the committee, that even the Public Broadcasting Service representatives have not asked for an exemption in the mechanical rights area, but rather have asked for a statutorily governed fee to be set by Congress. The National Religious Broadcasters are going one step beyond the educators and public broadcasters by asking for this total exemption. It is our position that no such exemption is justified and it should not be granted.

In the summer of 1973, I had the pleasure of appearing before a Senate subcommittee on this very issue. At that time, as now, I testified first since the 112(c) exemption is already in the proposed copyright revision bill. Testimony given by the National Religious Broadcasters after my appearance, therefore, went unrebutted. I will now refer to and answer segments of the NRB's prior testimony in order to set the record straight.

By the way, I noted from reading the statement made by the NRB that all of the points I am addressing myself to are repeated in their testimony before you this morning.

In 1973, the NRB made much of the fact that of the three performing rights organizations-ASCAP, BMI, and SESAC-only SESAC was asking religious program producers to sign licenses for recordings of religious music on their transcribed programs. It was implied that SESAC was overreaching and applying undue pressure in an area where the other two organizations were not causing any problems. To quote from the NRB's 1973 testimony:

I might add, it is in their testimony today, too.

To quote from the NRB's 1973 testimony:

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.

The NRB failed to point out, however, that ASCAP and BMI cannot ask for mechanical licenses in this area because they do not represent the mechanical rights on behalf of their affiliates. Both ASCAP and BMI represent only the performance rights. SESAC alone of the three organizations represents not only the performance rights but also the mechanical and synchronization rights on behalf of its affiliates. I believe the NRB is well aware of this basic fact of life in our industry, and I am dismayed that such a fact has been so terribly distorted.

One thing should be made clear. We have no desire to inhibit the broadcasting of religiously oriented programs. To the contrary, we are simply trying to maintain the integrity of a religious copyright and we are simply trying to preserve to the creator of a religious copyright those rights which are now, and even under H.R. 2223, will continue to be available to the creator of nonreligious copyrights.

Why should one who creates a religious work be treated as a second class citizen?

The creator of a religious copyright has the same expenses as the creator of a nonreligious copyright. He must pay the same 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? Also, one can imagine the very substantial problems of determining what is a religious work. In many instances, whether a work is of a religious nature is determined on a subjective basis by each listener.

In 1973 the NRB also asserted:

Any law requiring a leaving open the possibility that mechanical reproduction fees be paid for such use could make this music too expensive in the average religious broadcast.

The fact of the matter is that the usual charge to a program producer for the use of a copyright in a transcribed program to be heard on radio is a rather nominal $10 per year copyright for unlimited use of that copyright during that year. I think that organizations such as Billy Graham's Hour of Decision, the Lutheran Hour, the Baptist Hour, and others cited by the NRB as NRB members in 1973 can well afford to pay the creator of a religious song $10 a year for unlimited. use of that song. If they can afford this more than the half-page ad in a Minneapolis newspaper earlier this month to attract viewers and listeners of the Word of God, they surely can pay those creating the music of God. The NRB in 1973 said over and over again that respon

sible religious broadcasting is a nonprofit activity carried on as a ministry. We again emphasize that we have no quarrel with the importance of such a ministry and with the fact that the country needs more of this kind of broadcasting. All we ask is that these nonprofit organizations-many of whom are rather large and wealthypay for the use of their religious music just as they pay for their newspaper advertisements, their electricity, their studio and auditorium rental, their executive salaries, their plane fares from city to city, their guests stars, and every other expense normal to their business. Again in 1973 the NRB stated, and again today they state:

The proposed mechanical reproduction exemption would cause no measurable injury to religious music copyright owners, their publishers or agents * * *.

What is left unsaid is that many of the program producers at the behest of NRB have refused to pay mechanical royalties pending resolution of this issue by Congress. However, if they recognize their current obligations under the 1909 law, as have some of the associates, a more substantial amount of income would be accruing to copyright proprietors today.

Therefore, the injury to religious music copyright owners is both measurable and substantial, as evidenced by the list of endorsements appended to my testimony in 1973 from the foremost copyright proprietor organizations in the industry. Letters were submitted in agreement with SESAC's basic position from the Church Music Publishers Association, the National Music Publishers Association, the Music Publishers Association, BMI, ASCAP, the Harry Fox Agency, the American Guild of Authors and Composers, and the National Gospel Music Publishers Association.

Mr. Chairman, should you wish copies of the full letters of endorsement which are already contained in the record of the Senate hearings held in 1973, I will be more than happy to supply them to you. These organizations represent substantially all of the responsible copyright proprietor interests in the United States today and all of them are opposed to the inclusion of section 112 (c) in the pending revision bill. I might also add that the American Bar Association passed a resolution in 1973 which opposes 112(c) in its entirety.

It is interesting to note that in the monthly newsletter of the NRB called Hotline, the June 1975 issue referred to a petition filed with the FCC which the NRB claimed "clearly discriminates against sectarian groups" and the NRB pointed out that the religious orientation of an applicant should not be used as a basis for determining its eligibility for a commission license. SESAC wholly endorses this position and we further ask that the religious orientation of a copyright creator not be used as a basis for determining his eligibility to receive copyright royalty payments.

In the interests of time, I will conclude, Mr. Chairman, by asking this subcommittee to consider and weigh the practical necessities for such an exemption as exists in 112(c) against the far reaching and negative effects which it will have not only on trade industry practice as currently exists, but on the unwarranted dilution of the rights originally granted to the copyright proprietors by Congress in 1909. Only by allowing the copyright proprietors 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.

Mr. KASTENMEIER. Thank you for your testimony. If you will wait for the following witnesses to appear, we will invite you back. Now the Chair would like to call Mr. Thomas Zimmerman, first vice president, National Religious Broadcasters, Inc., accompanied by Dr. Ben L. Armstrong, executive secretary and John H. Midlen, counsel. TESTIMONY OF THOMAS F. ZIMMERMAN, FIRST VICE PRESIDENT, NATIONAL RELIGIOUS BROADCASTERS, INC., ACCOMPANIED BY DR. BEN L. ARMSTRONG, EXECUTIVE SECRETARY, AND JOHN H. MIDLEN, COUNSEL

Dr. ZIMMERMAN. Yes, Mr. Chairman, I have to my left Dr. Armstrong, executive secretary of the National Religious Broadcasters, and to my right, Mr. John H. Midlen, counsel for the National Religious Broadcasters in the United States.

My name is Thomas F. Zimmerman. I am an ordained minister and general superintendent of Assemblies of God, which has nearly 9,000 churches in the United States. We operate a sizable publishing house, which has a significant sacred department. We also produce religious programs for presentation on radio and television. I present this testimony as first vice president of National Religious Broadcasters, concerning section 112(c) of H.R. 2223.

National Religious Broadcasters has approximately 650 members, distributed among the 50 States and territories. The membership consists primarily of broadcast station licensees and their associates, performing artists and other related persons in broadcasting, and religious program producers for broadcast stations. We estimate that there are 600 organizations, including those who are not NRB members, that produce religious programs on a nonprofit basis for a presentation on a number of broadcast stations. And there are many pastors, priests, and rabbis having their individual programs on local broadcast outlets.

Well-known religious programs utilizing religious music and which are vitally concerned that there be enacted the present provisions of section 112(c) of H.R. 2223, include Billy Graham's Hour of Decision, Eternal Light, Jewish Community Hour, The Hour of St. Francis, Sacred Heart Hour, The Lutheran Hour, Back to the Bible, Revival Time, and many others. Generally, these well-known programs are produced either on tapes or disk for distribution by mail of one copy only to each broadcast station carrying the program. The programs then are broadcast at the time and date agreed upon between the station and program producer. None of these programs is produced for a profit by the religious program producers. Instead, the religious program producer usually pays the broadcast station to carry the program or furnishes the religious program without charge to the station.

The broadcast stations customarily have performance rights licenses covering the religious music with ASCAP, BMI, and SESAC. Thus, religious music copyright owners do receive compensation for religious music broadcasts. 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 for sale or other profit.

Presently, there is confusion and contradiction with respect to claims for mechanical reproduction fees for musical works of a religious nature included in religious programs produced by nonprofit organizations for broadcasting purposes. Only SESAC, to our knowledge, has pressured for such payments. We have no reports of any problems in respect to either ASCAP or BMI, and presumably they could arrange to handle mechanical rights.

We know of no court decision directly on the point. 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 nonprofit program producers are not adequate to accommodate such costs, according to two NRB studies. These studies were in 1973 and 1975, and were among NRB members that reflected that the affect to the potential of unlimited mechanical reproduction fees predominately ranged from (1) using only religious music in the public domain; (2) substantial curtailment of the number of broadcast outlets used or (3) even total discontinuance of the religious program.

Responsible religious broadcasting is a nonprofit activity, constituting a ministry no less viable than the worship services of the synagogue or church.

Essentially, the taping or recording of programs not for profit and for single release or on occasions, a repeat release, simply is a method of producing such programs for convenience. To present the program live, utilizing telephone lines to individual broadcast stations would undeniably exempt from any claim for mechanical reproduction fees. But this procedure is not feasible, because of prohibitive costs and impracticability of using telephone lines.

Copyright owners receive a valuable service from religious program producers by the use of their music, thus gaining a broad exposure through radio and television presentation. Section 112(c) is not an industry innovation, but simply codifies a generally existing situation. There is not now any established right for mechanical reproduction fees for reproduction within the purpose of sale or compensation. Nor can these religious music copyright owners really complain that the proposed section 112 (c) in the copyright bill deprives them of any existing income. Only a small handful of religious program producers, to the best of our knowledge, succumb to SESAC's pressures for payment for mechanical reproductions in nonprofit, religious programs for broadcasting, and some of these having since terminated such payments. In short, there can be no claims for loss of income that they never really had.

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

Copyright owners can make no claim that the recordings are offered for sale, since the tapes or disks for religious broadcasts are not sold.