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COPYRIGHT LAW REVISION

THURSDAY, NOVEMBER 6, 1975

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE OX COURTS, CIVIL LIBERTIES,

AND THE ADMINISTRATION OF JUSTICE
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 10:20 a.m., in room 2226, Rayburn House Office Building, the Honorable Robert W. Kastenmeier (chairman of the subcommittee] presiding.

Present: Representatives Kastenmeier and Railsback.

Also present: Herbert Fuchs, counsel, and Thomas E. Mooney, associate counsel. Mr. KASTENMEIER. The hearing will come to order.

This morning the committee again will hear from Register of Copyright in what we had hoped might be the penultimate installment of the closing testimony, but it remains to be seen whether that is achieveable. In any event, we are pleased to greet Ms. Ringer, who may take up where she left off. TESTIMONY OF BARBARA RINGER, REGISTER OF COPYRIGHTS

Resumed Ms. RINGER. Thank you, Mr. Chairman. I think I finished the discussion of section 111 and cable television last time unless the members have any questions. If not, I will go on to section 112, which is headed, “Ephemeral Recordings,” under which I would like to discuss all of the issues remaining to be discussed in connection with nonprofit broadcast.

Under that heading—this is chapter 6 of the second supplementary report draft—there are four basic issues.

The first has to do with the right of instructional broadcasting to make and distribute sound recordings of their exempted broadcasts.

The second is the so-called Mathias amendment, which has been adopted by the Senate Judiciary Committee and is now section 118 of the Senate version of the bill.

The third concerns broadcasts for the blind and physically handicapped.

The fifth has to do with the practice prevalent in the broadcasting of religious programs, which involves making tapes and disks of religious broadcasts, including copyrighted music.

Mr. RALLSBACK. Is that fourth or fifth?

Ms. Ringer. This is the fourth. The first is the Bavh amendment on instructional broadcasting tapes. The second is the Mathias amendment, compulsory license. The third is broadcasting for the blind and

physically handicapped. The fourth is the music of a religious nature tapes.

I just wanted to try to set this framework around this discussion. I will take each one of these up separately, and perhaps the simplest thing to do would be to have the questioning after each segment because they are pretty discrete.

The first which was known, but is no longer known, the Bayh amendment is discussed on pages 3 to 8 of chapter 6. It does have a history which is traced there, and I think I can summarize it rather simply. Ephemeral broadcast tapes are traditional in the broadcast industry, both in this country and abroad. The term "ephemeral recordings" is a very well known one, and in effect, it is sort of an understanding or fair use type of exemption which allows a licensed broadcaster or commercial broadcaster, or a broadcaster in Europe that takes licenses for copyrighted material to make a recording, now almost always a tape, for the purpose of simplifying this broadcasting procedure. In other words, it has a license. It is understood the broadcaster should have the right to make one tape, which will allow it to broadcast or rebroadcast because of time zone problems and that sort of thing, and then destroy it after it has served its purpose. It is almost always one tape, almost always a rather short period. Six months is not uncommon.

When you get to ITV, you have a different situation. You do not have a license in the first place. The broadcasts themselves are exempted in the second place. The tapes are shopped around, as the practice has emerged over the last 15 years or so, and in the absence of an actual electronically connected network of instructional broadcasters, the tapes of these in-school broadcasts are shopped around from instructional broadcaster to instructional broadcaster, are kept for quite a long time, and are reused. .

Let me run down the history of this, which has gone through seven phases already. First, the bill back in the 1960's treated unlicensed ITV and licensed commercial broadcasting tapes the same way. They allowed one tape for 6 months, to be kept for 6 months and then destroyed.

Second, ITV was singled out; a distinction was drawn in section 112 between commercial licensed broadcasters and instructional broadcasters, and two tapes were allowed in the latter case, and they were allowed to be kept for 1 year. I am not going into the refinements on this, but essentially it was two tapes for 1 year. Then when the bill got to the House floor in April of 1967, the instructional broadcasters, the public broadcasting representatives were successful in geeting all the restrictions knocked out completely. No limit as to the number of tapes or the length of time they would be kept.

Mr. KASTENMETER. May I interrupt because I do not recall myself this refers exclusively to audiovisual tapes and not sound recordings only. Is that correct?

Ms. RINGER. It could include sound recordings. I think the basic Mr. KASTENMEIER. Does the same thing apply to sound recordings only?

Ms. RINGER. That is right. Actually, the whole concept of ephemeral recording grew up when there was not any television. As you recall

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I have forgotten the phrase that was used in the old days of radio“this is electrical recording," or something like that, as announced on the radio then. I do not think any distinction has been drawn in principle.

But we are really, as a practical matter, talking about videotape. This is where the issue lies. The Senate took the bill over from the House at this point, and in 1969 when the subcommittee reported the bill, it put a limit back on the number and the time, but raised it substantially from the House committee's limits. The Senate limits at that point were 12 tapes for years.

Then in 1974, when the bill went through the Senate and passed on September 9, the 12 and 5 were raised to 30 and 7. I might say, in passing, that 7 does have a sort of magic meaning copyright law. I have never understood quite why, but it is interesting to see. You usually come down to 7 somewhere along the line.

At the end of the Senate process, when the bill was on the floor, an amendment that had been offered by Senator Bayh to take the restrictions off again was discussed, and the feeling that is reflected in the debate was that this was not being rejected, but the consideration of it was being postponed because it was submitted too late. However, when the Senate came back to the bill in 1975, the Bayh amendment was not pressed. It was not introduced, and I am told, although I have not any personal knowledge of this, that Senator Bayh has decided not to put it forward again. So the bill was reported by the full Senate Judiciary Committee on October 7 with the 30 tapes and 7-year limit in it, and on this point I have been asked by Senator McClellan to comment, and I use as my comments in this report pretty much what I wrote to him on January 31, 1975.

The Copyright Office adheres to the position that some limitation is essential, and the 30 copies should be ample to facilitate the activities of nonprofit organizations. The circulation of as many as 30 copies, itself, presents some danger to creators since it is extremely difficult to insure that unauthorized copies are not made.

But—and there is nothing magic about the 7-year cutoff—but I believe a limitation on the period of copies, that the copies or phonorecords may be held and used, is eminently sound. In other words, the Copyright Office is endorsing the 30-copy, 7-year limitation on the theory that you have to have some limitation, and that seems to be a viable one, although it may be a little excessive.

Now, if it is agreeable, I would like to stop for questions here, or if you would rather I go on and finish the chapter, as you wish.

Mr. KASTENMEIER. Thank you. Yes; superficially, it would appear that 30 copies, 7 years would seem to be practically not a limitation, although as you point out, Mr. Aleinikoff says, it is still sufficiently restrictive to prevent practical application of this exemption through the rapidly changing electronic world of American education.

Let us make it clear precisely what he conceives of there. In what respect might practical occurrence be restricted ? Ms. RINGER. I think there are cases now where they are. Mr. KASTENMEIER. Where the network requires more than 30 copies?

Ms. RINGER. These are actually tape networks; that is the term that is used, and they may very well use more than 30 in some cases, but there has to be a limitation somewhere, and as I tried to bring out here, you just keep raising the figures on and on. You have to reach a point at which you stop.

Mr. KASTENMEIER. Is the 7 years thought to be restrictive? Ms. RINGER. Aside from its mystical significance, I do not think it is anything more than a compromise.

Nr. KASTEN MEIER. It is almost like a short term of copyright itself with a quarter of the first renewal term, first term.

Mr. RAILSBACK. May I inquire as to how all of this works? Can you explain to me how an instructional broadcaster shifts these things around?

Ms. Ringer. I think these situations vary. Now, we are talking only about the sort of thing that children receive in their classrooms or with some exceptions to this, the sort of things that are exempted under section 110(2). I think you have a teacher who goes into a studio and teaches a class with audiovisual aids of one sort or another, and this is videotaped and is put on the tube in various ways, and is sent around through the mail or express company type of thing.

Mr. RAILSBACK. Thank you. · Mr. KASTENMEIER. This is, of course, distinguished from public television.

Ms. RINGER. Yes; I am coming to that now. This is quite different.

Mr. KASTENMEIER. This is the definition of "for instructional purposes." You may continue.

Ms. RINGER. Thank you. The next issue is a very live one; I think it is one of the most important questions you will have to consider because of the fact you are now presented, or likely to be presented, with a Senate amendment of rather sweeping scope and significance.

The Mathias amendment, so-called, is discussed on pages 8 to 21 of my report, chapter 6. What I deal with mostly there is an effort to trace the legislative history, first of the instructional broadcasting exemption in 110(2) and the reason why there is no exemption or other provision dealing with public broadcasting in section 110, itself, which is the basic provision dealing with the limitations on performing rights.

I think I might start with the quotation at the top of page 9, which is from the 1965 Supplementary Report of the Register, as to why, what were then somewhat embryonic public broadcasting activities were not exempted :

The bill imposes no blanket for profit limitation on the right of public performance. In view of the recent upsurge in the number and importance of nonprofit performances-this was in 1965-—particularly nonprofit broadcasts reaching huge audiences, we have concluded that a present blanket exemption for nonprofit broadcasting has become too broad in its application to the new conditions of today, and that it would involve serious dangers to the authors' rights if continued into the future.

In other words, we favored dropping the for-profit limitation with respect to public, noninstructional broadcasting of a nonprofit nature. This was more or less accepted by the subcommittee, I think. The history of this would bear out that this basic conclusion is not really disputed, that nonprofit broadcasting of a public nature should not have any complete outright exemption. The nonprofit public broadcasters were not really urging that. Their urgings for an exemption were directed to instructional television.

On the other hand, I think it is important to recognize that there is a not-for-profit limitation in the present law. The extent to which that applies to them is not all that clear. Unquestionably, some of their activities are exempted; others may not be, but, in any case, there is a sweeping not-for-profit limitation in the present law with respect to performances of nondramatic works.

When the Senate subcommittee reported the 1969 bill to the full Judiciary Committee on December 10, 1969, it rejected an amendment that had been put forward in the Senate. I am reading from the bottom of page 9, “To provide a compulsory license at regulated rates for the use of copyrighted material and the programs of public television which are intended for reception by a general audience.”

This same position was adopted by the full committee, and it was also adopted after a great deal of discussion in the intervening years by the Senate when it passed the bill in 1974. However, before passage in September of 1974, on August 19, 1974, Senator Mathias introduced an amendment that would have added a new section 118 to the bill and the text of this provision..

This is the amendment on which you had hearings last June, I believe. It is laid out on pages 11, 12, and the top of page 13 of my report. I quote it verbatim. I will try to summarize it very, briefly.

Èssentially, it would create a compulsory license for public broadcasts of nondramatic literary and musical works, sound recordings, and pictorial and graphic and sculptural works. The public broadcaster would be required to make a registration or recordation of its identity. Mr. RAILSBACK. Where are you reading ?

Ms. RINGER. I am summarizing from page 11, which sets out the Mathias amendment in the form in which it was the subject of your hearings in June.

At least 1 month after the initial broadcast and at later intervals, the public broadcaster is required to record in the Copyright Office a notice stating its identity and address and so forth. That establishes the compulsory license under this proposal,

Then the public broadcaster, or as it was called, any public broadcasting organization or institution, would deposit with the Register of Copyrights at intervals in accordance with requirements that the Register is supposed to prescribe a statement of account and the total royalty fees for the period covered by the statement under clause (2) of subsection (a) of this amendment. The royalty rates under this section shall be determined by the Copyright Royalty Tribunal as reasonable royalty rates for the inclusion of nondramatic works in public television and radio broadcasts. Such royalty rates may be calculated on a per use, a per program, pro rated or annual basis as the Copyright Royalty Tribunal finds most appropriate with respect to the type of the copyrighted work and the nature of broadcast use. . • In other words, the framework of a compulsory license is set out here, but practically all of the details are left either to the Register of Copyrights or to the Royalty Tribunal, including the periodicy of the reporting and accounting and the amounts of the rates as they

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