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obtain permission directly from the copyright holder or agent" and gave the station the appropriate names and addresses for the works it was interested in.
One publisher informed the station that the rights it was seeking were cleared by ASCAP and available under a regular ASCAP license. Five years later the other publisher has not even been heard from at WFIU-FM.
If such confusion and misinformation exists within the licensing societies and the publishers, public radio has no hope of operating in this area “with no clearance burden".
The licensing societies publish lists and directories of their members, but licensees receive a constant stream of corrections, additions, deletions, and other changes to be posted to the membership list. A piece of music cleared before lunch may change its status when the afternoon mail arrives. Clearly stations already straining at hopelessly inadequate budgets must hire someone to be in charge of clearance matters if they are subjected to performance fees. 2. Uncertainty from the Emergence of Critical Editions of Public Domain Works
A reasonable person might ask why stations faced with these problems would not limit their broadcasts to works in the public domain. The answer lies in the difficulty of determining what is and what is not in the public domain. The preceding section contains an example: five recordings of the same Mahler symphony from the same company with radically conflicting information, and nine other recordings of the same piece with no information at all.
Here is another example: Wolfgang Mozart died in 1791 ; in the late 1960's stations using recordings of European concerts distributed by the Broadcasting Foundation of America were told they would have to pay a publisher $750 for the right to broadcast some of Mozart's music first performed and published about two hundred years ago.
The claim for payment for performance of the Mozart music was based on the fact that a German publisher had just published the music in question in a critical edition ; that is, an edition correcting errors in previous editions of the same music and setting forth the changes in detail. Critical editions are protected for ten years under German law and performances utilizing them have to be licensed just like a work written yesterday.
A critical edition may be the reason for some of the conflicting information on the recordings of the Mahler symphony. But assuming this to be true, how does WITF-FM determine the status of the other recordings of the same Mahler symphony in its library? Apparently the only absolutely certain way is to hire an experienced musician and purchase a large library of printed scores and set the musician to work listening to the recordings and comparing them with the scores.
It should be noted that musical scholars are at work on critical editions of the works of a number of composers long dead and whose works have been in the public domain until now, One has an uneasy vision of ultimately having no public domain music left. This is probably an extreme never to be reached, but the spectre has enough substance and reality to prompt local public radio stations to seek protection from it in the form of the exemption APRS has proposed. 3. The Inability of the Societies to Guarantee that they cover 100 Percent of the
Composers In its statement to the Subcommittee of July 10, 1975, pp. 31–2, ASCAP says:
By entering into a license agreement with each of the three major performing rights organizations, ASCAP, BMI, and SESAC, public broadcasting can be assured of performance licenses in virtually all copyrighted musical
compositions. (Emphasis in original.) The crucial word here is the adverb “virtually.” It means that not all music would be cleared by such licenses. As long as it were not, each work broadcast would have to be checked to see if it is covered by the station's licenses; the confusion over the Mahler symphony cited above indicates clearly that such checking is a job for an expert.
A spokesman at BMI's American Composers Alliance told the Music Director of an APRS member station that "about one fourth" of the active composers today are not affiliated in any way--personally or through a publisher-with ASCAP, BMI, or SESAC.
Again quoting composer and radio broadcaster Donald Wilson: "This ‘noncoverage' would include works by student composers, other young composers and even older composers who have not yet received due attention such as Richard Robinson in Atlanta (or, for that matter, Charles Ives—whose work was ignored throughout his entire creative life)." He continues :
Specifically, as an employee of WUHY-FM in Philadelphia in the mid 1960's, I broadcast a number of my works in my "Tone Roads" series that would not have been covered by licensing. Assuming that these works were copyrighted individually by their composers (or covered by statutory copyright in lieu of this), I would like to furnish you with this list of composers who were not, to the best of my knowledge, affiliated with ASCAP, BMI or SESAC at the time their music was initially broadcast on "Tone Roads" Philadelphia: Wm. Dudley
Paul Zukofsky Louis Angelini
Richard Fitz Ken Stallings
Daniel Lentz John Bergamo
Robt. Suderburg Chas. Buel
Gerald Shapiro Doug Leedy
Eugene Turitz David Stock
John Melby Richard Robinson
Max Schubel Barbara Kolb
Phil Corner Wm. Valente
Jacob Glick Chas. Boone
Alden Jenks Peter Winkler
Don Wilson These were composers mostly in their twenties and either still in school or fresh out. I have refrained from listing composers who were at that time in their thirties (such as Donald Erb and George Crumb) on the chance that they might have become affiliated as a result of an early publication of which I would not have been aware.
The point to all this is that my series, “Tone Roads"--for which WUHY-FU received a “Major” Armstrong Citation in 1966—simply could not have eristed at all if I would have been required to seek copyright clearance for each of the works by unaffiliated composers that I broadcast over a two-year period; either that or would have been an entirely different series limited to commercial recordings of established composers ... And as for funds for help with the paper work, let alone licensing fees--well, the station was so poor that my starting salary was $100 per week in 1965, and I had already received my doctorate in composition.
I would love to see (hear) a radio series like “Tone Roads" that would pay considerable attention to the youngest of young composers, those who are still exploring for a style of their own, but I am worried that the lack of exemption for non-profit broadcast of nondramatic musical works as stipulated by House Bill 2223 will completely destroy all hopes of such a series' coming into existence. (August 24, 1975; emphasis supplied.) 4. The Lack of Station Resources
Public radio does not now have the resources in people or money that it will need if it loses its existing non-profit exemption. Never having been subject to copyright clearance, we are uncertain of the full meaning and impact of inclusion. In spite of the claims made previously by the music industry, as we have shown above, clearance of classical music is not a straightforward and simple process. It requires expert knowledge and a great deal of time. Both are expensive."
In addition, clearance requires the filling out of forms and record keeping. One person estimated that it would cost each public radio station $10,000 to $20,000 a year to handle copyright clearances. This estimate may be conservative just for the administrative costs, regardless of the amount of the license fee.
Public radio does not have this kind of financial resources available. A commercial station may raise its advertising rates to cover increased costs of this kind, but public radio stations have no rates to raise to anyone.
Public radio stations do not receive large underwriting grants from Mobil Oil Corporation or Xerox Corporation or from any company or individual.
Public radio simply is not wealthy.
The average station has an annual budget of $132,000 and an average staff of eight full-time employees. It receives no more than $18,700 from the Cor. poration for Public Broadcasting in its annual Community Service Grant, (Note that the average Community Service Grant for a public television station is larger than the total budget of the average public radio station.)
It is easy to see why an additional $10,000 or $20,000 per year would doom some public radio stations to total extinction.
But extinction would not come solely from the expense. To be eligible for federal assistance, a station must meet certain criteria established by the CPB. These criteria require, among other things, that a station operate 16 hours per day, seven days per week, and 52 weeks per year. The most recent figures available show that the average CPB-qualified public radio station broadcasts classical music for 60 percent of the time it is on the air. Without relatively cost-free access to music, what will these stations broadcast? Without music, they may drop below the CPB requirements for qualification, lose the little federal dollar support they now receive, lose their NPR affiliation, and will have to go off the air.
This would be a sad fate for a public radio system launched so enthusiastically by the Congress in the Public Broadcasting Act of 1967. Instead of growing to serve all Americans as it is now doing, public radio will shrink to virtually nothing. Statutory Language-Performance
We have enclosed as attachment A language to be adopted as an amendment to section 110. (The inclusion of this subsection–110(9)—presumes adoption of the exemption for performances to print-handicapped audiences.) Sincerely,
MATTHEW B. COFFEY,
AMENDMENT TO SECTION 110 Notwithstanding the provisions of section 106, the following are not infringements of copyright:
(9) performance of a non-dramatic literary or musical work in the course of a broadcast by any licensee or permittee of a non-commercial educational
radio station. [The above inclusion of subsection 110(9) presumes adoption by the House of subsection 110(8), an exemption of performances designed for broadcast to a print-handicapped audience already approved by the Senate Copyright Subcommittee.]
COPYRIGHT LAW REVISION
THURSDAY, OCTOBER 9, 1975
HOUSE OF REPRESENTATIVES,
AND THE ADMINISTRATION OF JUSTICE
Washington, D.C. The subcommittee met, pursuant to notice, at 10:10 a.m. in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee] presiding.
Present: Representatives Kastenmeier, Drinan, Pattison, and Railsback.
Also present: Herbert Fuchs, counsel; and Thomas E. Mooney, associate counsel. Mr. KASTENMEIER. The hearing will come to order.
This morning, and again on October 23, next Thursday, in this room the subcommittee will hear closing testimony from Ms. Barbara Ringer, the Register of Copyrights. Ms. Ringer has been requested and has agreed to give us a detailed review of the state of the revision project, now that the hearings have been completed. Of course, we also would observe that in the other body, the Judiciary Committee in the Senate has reported out, earlier this week, a slightly modified version of the bill. So, I think these hearings are most timely. I would expect that other members would be appearing very shortly.
In any event, it is always a pleasure to greet Barbara Ringer. I suppose we would like to hear ultimately about three things: First, the general review of the bill in its entirety-and these three things are not necessarily in this order-but we are interested in the bill, and in the sections and in the provisions, whether or not they are in controversy, or have been in controversy ; second, those matters which still provoke some controversy, and we would like to pay special attention to them; and third, we would like to ask you, if you are able, to indicate how the present state of the bill in the other body may differ from the other body's action of last year, which is really encompassed in H.R. 2223, which is substantially the Senate bill of the second session of 1974.
Well, in any event, you may proceed.
TESTIMONY OF BARBARA RINGER, REGISTER OF COPYRIGHTS, LI.
BRARY OF CONGRESS, ACCOMPANIED BY DOROTHY SCHRADER, GENERAL COUNSEL
Ms. RINGER. I would like to start with a general statement and endeavor to answer your questions, then proceed with a general