Mr. PATTISON. Well, I am still a little bit confused about that, but let me get on to another question.

Mr. MIDLEN. While we are on that, may I respond to that particular aspect, Congressman Pattison?

Mr. PATTISON. Yes.

Mr. MIDLEN. This point has been discussed with the Senate Subcommittee on Patents, Trademarks, and Copyrights and specifically with the chief counsel. The view expressed there, and with which we agree, is that the provisions in section 115 (c) (2) concerning that 2 cents matter with respect to royalties payable under compulsory license, that is designed to apply to those reproducing phonorecords for commercial sale and would not apply to nonprofit organizations making mechanical reproductions of musical works of a religious

nature.

Mr. CIANCIMINO. I believe the gentleman is referring to the current position of section 115, is that correct, as appears in the revision bill? Mr. MIDLEN. 115 (c) (2).

Mr. CIANCIMINO. In the current revision bill? Is it the 1909 statute or the current revision bill you are citing?

Mr. PATTISON. That is the current bill.

Mr. CIANCIMINO. That is the current bill, yes.

Mr. PATTISON. I am trying to sort that out in my mind.

Mr. CIANCIMINO. But there is no such provision in the 1909 law. I think that is what your question was.

Mr. PATTISON. Just a point of information. Isn't it true that the reason that ASCAP and BMI do not license mechanical rights is that they are, isn't it true, that they are prohibited from doing so under the consent decree? Harry Fox basically does that.

Mr. CIANCIMINO. I don't profess to be an expert on the ASCAP consent decree. I do know that historically ASCAP's area of representation was in the performance rights area. I am not prepared to answer any questions on the ASCAP consent decree at this time.

Mr. PATTISON. Well, that is my impression. I think that they just can't get into that business, frankly, but I may be wrong about that. If this language stays in the bill, I am troubled about the distinction between what is religious and what is not. Is Mahalia Jackson's "Amen," for instance, is that a religious song? I mean, it is played over rock stations and played all the time everywhere.

Mr. CIANCIMINO. This is one of the very real problems. Ervin Drake, who is the president of the American Guild of Authors and Composers and who had submitted a letter when I testified before the Senate and it is appended to the Senate record, Ervin Drake wrote the song, "My Prayer," which is a very popular copyright. It wasn't written as a religious copyright. However, it is used in my Catholic Church, for example, in Sunday services, at Sunday Mass. Ervin Drake has told me and a copy of his letter to the Senate is attached, which I have here, if anyone cares to see it-and he has told me and it specifically states the fact that it was not written as a religious copyright. And this is the area where we are going to get into trouble. This is the area of definition, which is going to cause a whole body of litigation, it seems to me, if 112 (c) ever becomes law. And it is really an unwanted area, in my opinion, of litigation. I don't see any justification for it at all.

Mr. PATTISON. Could we have some response from the religious people on that?

Mr. MIDLEN. Yes

Mr. PATTISON. How are we going to define this "of a religious nature"? Assuming it is a good provision in the bill, how are we going to define it?

Dr. ZIMMERMAN. My reply, Congressman, would be that if the program itself is for a religious purpose and it is in the context of a religious presentation that it is used, then the numbers used there would be construed to be used for a religious presentation. And I think

Mr. PATTISON. It seems to me, if you start every morning off with a prayer, you will then be exempt for the rest of the day. Dr. ZIMMERMAN. Well, Mr. Pattison

Mr. PATTISON. I mean, I don't want to be facetious. I am serious. Dr. ZIMMERMAN. No, I understand. I want to be very honest, too. I would not construe that as what you are talking about at all. We are not talking about a broadcast station coming on with a devotional of some nature, which many of them do.

Mr. PATTISON. Yes.

Dr. ZIMMERMAN. We are talking about a presentation of a specific religious broadcast within the context of a program or service that has been produced by a religious broadcaster. And I cannot think of exceptions that would be made in the average religious broadcast that I know anything about, Congressman, that would bring in secular

music.

Mr. PATTISON. Well, I take it-and I don't want to beat this to death-but I take it that would also include lots of organizations which people may or may not approve of, for instance, Dr. Moon's organization or "Children of God" or a variety of other organizations like "Universal Life Church," like lots of organizations that call themselves religious, like "Ethical Society," but which may not be religious in the normal Christian or Jewish or even any of the major religious traditions to actually be religious. So that if a broadcaster decided that he was going to call his program religious, that doesn't necessarily refer to a Christian God or Jewish God as we know it, perhaps, in our culture. Wouldn't you agree with that?

Mr. MIDLEN. If I might respond to that? The criteria is not whether the organization is religious or not religious. The criteria is whether it is a governmental body or a nonprofit organization, which then in turn meets the rather strict criteria which is set out in section 112(c), namely, one recording for nonprofit purposes for broadcasting. And it is spelled out there with considerable specificity, so that it is quite

narrow.

And in response to your earlier question, I think that the amount that you were referring to is the 3 cents in section 115 (c) (2) of this bill, and it is the position of the staff of the Senate Subcommittee on Patents and Copyrights that it does not cover such nonprofit aspects as are contemplated in section 112(c).

Mr. KASTEN MEIER. I would observe from the colloquy and from what Mr. Midlen says that while the intention, as expressed by Dr. Zimmerman, is to protect religious programs; in fact, we are pro

tecting programs of nonprofit organizations, of governmental bodies, et cetera, which may happen to have religious music and only as to religious music.

I think I have observed religious programs that have had sectarian music, too, for various purposes on such programs. They would not, presumably, be protected, because they are not musical works of a religious nature. And notwithstanding the needfulness of the organization to be excluded, for the purposes you have cited, they would apparently have to comply with the copyright payments under this section and not be covered under this section.

Well, in any event, gentlemen, I wish on behalf of the subcommittee to thank you, all of you: Dr. Zimmerman, Mr. Midlen, Dr. Armstrong, and Mr. Ciancimino.

The last witness today is that of public radio and the handicapped. First, we would like to welcome Dr. Walter Sheppard, representing the Association of Public Radio Stations.

Dr. Sheppard, you may proceed first.

TESTIMONY OF DR. WALTER SHEPPARD, REPRESENTING THE ASSOCIATION OF PUBLIC RADIO STATIONS, ACCOMPANIED BY DR. MARGARET ROCKWELL OF WASHINGTON EAR; MATTHEW B. COFFEY, PRESIDENT, ASSOCIATION OF PUBLIC RADIO STATIONS; AND PHILIP HOCHBERG, COUNSEL

Dr. SHEPPARD. Thank you, Mr. Chairman. With me at the table are Dr. Margaret Rockwell, director of the Washington Ear, which is the print handicapped service of WETA-FM here in Washington to answer any questions that the members of the subcommittee may have about the operations of such services, and also Matthew Coffey, the president of the Association of Public Radio Stations and Mr. Philip Hochberg, counsel to the association.

We welcome the opportunity to testify here this morning on those issues we were unable to explore in detail at the hearing on July 10. Throughout the recent history of the omnibus copyright revision bill, the Association of Public Radio Stations had maintained the need for preferential treatment-and indeed that is exactly what it is-for one of its special endeavors. In addition, we have requested an additional exemption for performance on public radio.

The members of this subcommittee are charged with the responsibility of making public policy decisions on copyright. There is nothing immutable in the concept of copyright protection; it is constantly being subjected to overriding questions of public policy. One need only look at the exemptions already embodied in the 1909 act and H.R. 2223 as examples. The concept of the compulsory license is but a further refinement of this principle.

TOTAL EXEMPTION FOR SERVICE TO THE PRINT HANDICAPPED

In what must be regarded as an innovative use of the broadcast medium, a growing number of public radio stations are now providing a special service designed for the print handicapped. This service is being made available through a part of the FM band which requires

a special receiver. The purpose of this service is to give access to printed material to the blind or those otherwise too physically handicapped to read.

Must someone-simply because he has no sight-be denied the timely information contained in the daily newspaper or weekly news magazines? Must he rely on 312 minutes of news on the hour and headlines on the half hour? Is it absolutely necessary that he wait months before being able to hear a book being read via talking records?

We brought this issue to the attention of the Senate Copyright Subcommittee staff this spring. On May 28, 1975, in a meeting between representatives of public broadcasting, the copyright holders, and the Senate subcommittee staff, language was drafted which resolved a significant part of the print-handicapped problem. The Senate subcommittee has approved that as section 110 (8) of S. 22.

While the addition of this section resolved any question of performance, it did not resolve the section 112 question which makes a program recording a copyright violation. In other words, section 110 (8) would exempt a work performed on the local service for the print handicapped. However, if a recording of that initial performance was made to facilitate a second performance on another print-handicapped service, that recording would violate section 112.

Questions will be raised as to the "free ride" that the blind will now be getting. And we concede that point to you. Not only will the blind. be getting special treatment, but so too will those who for other physical reasons cannot read. But we must consider this: How many newspapers, magazines, and books are ever purchased by the blind and those with associated physical disabilities? A human right of access to information in a usable form is the issue.

As a matter of public policy, the choice seems clear. This right should not be denied.

PERFORMANCE TO THE PUBLIC

Since 1909 noncommercial radio has been exempt from the payment of copyright fees under the "not-for-profit clause." Public radio is asking the committee to continue this exemption by amending H.R. 2223 to reinstate the exemption for local public radio performances. Without this exemption, classical music may well disappear from the airwaves. The number of commercial classical stations is dwindling. Two stations have changed formats just since your July 10 hearing, WHAS in Louisville and WBAL in Baltimore. The public radio stations are becoming the single source of over-the-air performance for classical composition. If payment is imposed, not only will the public lose a valued cultural service, but the young composers will lose the last remaining radio outlet for their works.

Why will this happen? I think there are four reasons. I will mention them briefly now and expand on them later in questioning:

(1) The inability to determine rights to classical music, since only one record company consistently provides that information. (2) The uncertainty over public domain music with the emergence of derivative or critical editions of previously public domain works. (3) The inability of the societies to guarantee that they cover 100 percent of the composers. Some estimates indicate only about 75 percent of classical

composers belong to the societies. The stations could find themselves dealing with individual composers in the hundreds. (4) The lack of local station resources. Clearance requires the filling out of forms and recordkeeping. Public radio stations are required to operate 16 hours a day, 7 days a week with an average full-time staff of eight people. Frankly, Mr. Chairman, having never been subject to copyright payment, we don't know the full meaning of the inclusion. What we do know is that we strain our resources to the limit daily to provide a public service to the print handicapped and to the general public interested in serious music. To impose the burden of copyright will cause us to curtail services to no one's benefit.

Thank you, Mr. Chairman.

Mr. KASTEN MEIER. Dr. Sheppard, do you have the text of the amendment consisting of section 110, subsection (8)? We do not have it before us. Would you read it?

Dr. SHEPPARD. Yes, certainly. This is a general section on uses of works that are exempt from copyright infringement:

Performance of a literary work in the course of a broadcast service specifically designed for broadcast on noncommercial educational radio and television stations to a print or oral handicapped audience.

And Mr. Hochberg points out that the text is actually printed in Mr. Karp's statement he has prepared for submission at the bottom of page 4 of that statement.

Mr. KASTENMEIER. Next, we would like to hear-I wonder if you would make room for one of the other witnesses, and then you can remain there and you don't have to get up and so forth. I would like to invite Mr. Townsend Hoopes, president, Association of American Publishers and, as well, Mr. Irwin Karp, counsel, Authors League of America, Inc.

PANEL DISCUSSION: DR. WALTER SHEPPARD, DR. MARGARET ROCKWELL, MATTHEW B. COFFEY, PHILIP HOCHBERG, TOWNSEND HOOPES, AND IRWIN KARP

Mr. HOOPES. I will be merciful, Mr. Chairman, and I will be brief. Mr. Chairman, my name is Townsend Hoopes. I am president of the Association of American Publishers, a trade organization composed of approximately 260 member companies and subsidiaries which account for more than 80 percent of the dollar sales of books and audiovisual materials published in this country. Its membership includes a number of university presses and other nonprofit publishers.

We have been asked to comment on what we understand are two proposed amendments to H.R. 2223 put forward by public broadcasting interests, dealing with special exemptions for the blind and the deaf.

With you, Mr. Chairman, we have been somewhat uncertain as to which of the several informal proposals are at issue here. We are not certain we have seen the language of the ones that are and, therefore, we cannot address them specifically.

We can, however, state our position with reference to two sections proposed by the subcommittee on the Senate Judiciary Committee for inclusion in the Senate bill, S. 22. Section 110(8) would provide that