apply to various types of works. And as I say, there were four types of works included under the original Mathias amendment: Nondramatic literary works, nondramatic musical works, sound recordings, and graphic works. Those were the four types. They did not include audiovisual motion pictures or dramatic works, including dramatic Omusical works.

Mr. KASTENMEIER. Why did they not?

Ms. RINGER. I think

Mr. KASTEN MEIER. Because presently they were commonly negotiated between the parties?

Ms. RINGER. Yes. And of course, this is what you see on public television, either public television's own dramatic presentations or dramatic works or motion pictures that they have licensed from suppliers, from motion picture producers, and audiovisual producers.

Mr. KASTENMEIER. By and large, what this covers is really marginal programing material in terms of public broadcasters.

Ms. RINGER. I would not necessarily call it marginal. It is the sort of thing that goes into the audiovisual works and motion pictures that they then put on.

Mr. KASTEN MEIER. Practically speaking, for which they might have difficulty obtaining clearances.

Ms. RINGER. This is certainly their argument. That is correct.
Let me pursue this a little bit.

This proposal was introduced as a formal Senate amendment and was mentioned briefly, as was the Bayh amendment, at the end of the Senate debate on September 9, 1974. Although not adopted, it was not rejected either.

I am reading now from the middle of page 13. When the Senate Judiciary Subcommittee resumed its consideration of the revision bill in the 94th Congress, efforts were made to resolve the problem of public broadcasting through negotiation, and a number of meetings aimed at blanket voluntary licensing were held. A mover of this effort was the Counsel to the Senate Judiciary Subcommittee, Mr. Brennan. The Mathias amendment was not adopted by the subcommittee when it reported the bill to the full Senate Judiciary Committee on April 13, 1975. But the following statement was issued, and I have repeated it in full since it is an element in the continuing legislative history of this provision.

In effect, it recounted that, at the request of the chairman of the subcommittee, a series of meetings had been held. And I think the thrust of this is that they had held some promise. And the final paragraph read: The subcommittee will maintain its interest in obtaining a mutually satisfactory solution. The subcommittee expresses the hope that a complete agreement will shortly be reached.

The meetings-I attended them myself-tended to look like they held some promise for working this out on a voluntary basis, and I believe I even mentioned that in my opening testimony-that I hoped that this problem could be solved without having you have to consider it in a completely new provision, the compulsory license provision, now in section 118.

On July 10-I was wrong, it was July 10, 1975, that your subcommittee heard testimony on the various amendments from panels rep

resenting the various sides. I have tried to summarize this testimony on pages 14 through 17 or 18, rather. I do not think I need to read all of that here. That has been fairly recent testimony before your subcommittee.

I am now reading from page 18. Both sides of the House hearings referred to the ongoing negotiations and to some of the problems that had been encountered, including questions of compulsory arbitration and antitrust exemptions in anticipation of the impending markup of the revision bill by the full Senate Judiciary Committee. The representatives of the public broadcasting industry again pressed for adoption of the Mathias amendment, which was adopted with some changes by the full Senate Judiciary Committee as section 118 of S. 22 as reported on October 7, and I here lay out the whole text of that which does, as I say, contain some changes. The text appears on page 19 through the middle of 21.

And I am now reading from the middle of 21. The comparison between the 1974 and 1975 versions of the Mathias amendment discloses some changes in language and structure. There are two important substantive changes. One, I think, can be disposed of quickly. Sound recordings have been dropped completely from the bill, from the compulsory licensing system. And the second, the structure and language was changed, and let me read this. It is item 2 at the bottom of page 21. Instead of making the act of "public broadcast" subject to compulsory licensing, the new Mathias amendment grants an exemption to "a public broadcasting entity", subject to compliance with the compulsory licensing requirement. The new "public broadcasting entity" is defined as "any licensee or permittee of a noncommercial educational broadcast station or any nonprofit institution or organization engaged in public broadcasting".

The latter term, "public broadcasting," is defined very broadly indeed. Taken literally, this change could vastly expand the scope of the amendment beyond anything discussed in the House subcommittee hearings. This has been the subject of discussion since I wrote this chapter, Mr. Chairman, and I believe that the intention was not as broad as the language would suggest. But it does bespeak the necessity for considerable revision if this provision is to be accepted.

Mr. KASTEN MEIER. Practically speaking, what entities might it include that the original Mathias would not have included?

Ms. RINGER. I think probably the purpose behind this was to allow entities such as schools and academic organizations to share any compulsory license that there has been. And I'll come to this again. Briefly, there has been a suggestion during all these meetings that the assumption be sufficiently broad to permit schools to video-tape off the air public broadcasting programs like "Jenny" or "Upstairs, Downstairs". Mr. RAILSBACK. Other than instructional

MS. RINGER. Well, yes, because that is what is on public broadcasting, and use it for instructional purposes, but under very restrictive circumstances. The discussions would have put limits on the time that these could be used and the purpose they could be used for and so forth. But none of this made its way into the Mathias amendment.

And I may be wrong about this, but my assumption that in very broadly defining your broadcasting entity to include permittees, the

intention was to expand this to include anybody who might want to use a public broadcasting program for a legitimate purpose. I think it went way beyond what was intended.

Mr. KASTEN MEIER. If it is at all subject to compliance with the compulsory licensing requirement though, even a school would have to, for such materials, get a compulsory license.

MS. RINGER. I would say that the language was clumsily drafted. But I think there was much concern among copyright owners that it went beyond the sort of licensed public broadcasting entities that were originally contemplated. In any case, I do not want to overstress this, Mr. Chairman, because if this provision is included, it will have to be very substantially redrafted.

I think the sponsors would agree with this. I do not think anyone is insisting on the exact language. I think what we are striving for now is some idea of what is needed and wanted so the Congress can go ahead and make its decisions.

I am now going to read from page 27, which includes my comments and recommendations on this whole matter. And I think if you will bear with me, I will read them completely because I do not think I can summarize them very effectively.

The failure of the negotiations, aimed at finding a voluntary solution to these problems, which seemed so promising at the time of the House hearings in July 1975, is to be regretted and deplored.

Now, I might say that when I wrote this, it looked like this had completely broken off, that there were going to be no further discussions and voluntary negotiations. There have been meetings since then, and I think that perhaps the discussions, at least, are going forward again. There has not been a complete failure and an agreement to go off in different directions.

Compulsory licensing has been, and should be, regarded as an extreme last resort in copyright law. Despite the expressions of blame and disappointment now being exchanged, the Copyright Office remains unconvinced that voluntary arrangements are impossible other than under the compulsion of government regulation. It is true that public broadcasting is not paying anything now, that it enjoys at least some degree of exemption with respect to completely nonprofit performances, that its budgets remain low and clearances difficult, and that it is offering to pay fair royalties in the future under a compulsory license. It has also failed so far to gain the terms it was seeking in voluntary negotiations. But to conjure up the threat of massive government-run compulsory licensing machinery in an effort to improve its bargaining position is, I believe, of questionable necessity.

A careful review of the statements made during the negotiations in various written submissions, and at the hearings, indicates that clearance of music is public broadcasting's foremost concern and that a major impediment to a voluntary solution to that problem has been the lack of a statutory antitrust exemption.

In other words, public broadcasting is seeking a single license on a voluntary basis, or, if they cannot get that, on a compulsory basis. And the various interests that are involved on the other side of the negotiations are concerned, and I think with some reason, that they may be getting beyond what the antitrust laws permit in dealing

jointly with public broadcasting on a one-to-one basis. There are three performing rights societies, and there are music publishers and agencies and so forth that are involved in the making of recording licenses in this area, and all these licensing organizations have to be involved in any kind of voluntary agreement, and they are saying they need an antitrust exemption in order to do this.

At the same time, enactment of such an exemption has implications and unforeseeable consequences beyond the current problems of public broadcasting. A compulsory license limited to nondramatic musical compositions, might, in view of the organized structure of the industry, be made to work fairly well.

In other words, if you could get an antitrust exemption, you have got enough organization and few enough entities in the field to make this a practical possibility. Certainly, the dangers in compulsory licensing of literary works are less evident in the case of music. In other words, we have a lot of blanket or compulsory licensing in music under one form or other already, and the restrictive problems that I find in the case of literary works are not as serious in the case of music.

Mr. RAILSBACK. May I ask you exactly how is it working now? What are the procedures? What are the problems under the current law?

Ms. RINGER. Under the current law-we are talking about music and public broadcasting-there are no licenses at all. Public broadcasting is using music and is not paying.

Mr. RAILSBACK. How about literary works?

Ms. RINGER. I Would say the same situation is true, as a generality. Mr. RAILSBACK. And they are not paying royalties?

Ms. RINGER. That is right. Let me make clear, Mr. Railsback, that the present law in sections 1(c) and 1(e) makes clear that nonprofit performances are exempt. They are not included in the exclusive rights of the copyright owner, but this does not cover nonprofit recordings that are made for broadcasting, and it also does not cover some equivocal types of public broadcasting such as the sort of thing like a "Jenny" or an "Upstairs, Downstairs" where you see Mobil on the screen and where Mobil Oil advertisers in the New York Times, "Watch Channel 13 tonight."

Mr. RAILSBACK. But your feeling is with the development of public broadcasting, with this tremendous expansion, that now literary works, if there were compulsory licenses, could really be jeopardized as far as their copyright owners

Ms. RINGER. Yes; I feel that-what I am trying to say right now is that I think the danger to copyright owners in the field of music is not as great as it is in the whole range of literary works. This is my feeling. I try to develop that a little bit later. And perhaps we can come back to this point after you have heard me out.

I am actually about to make this point that the Copyright Office considers the dangers of an unqualified compulsory license for literary works so great and the need for it so unproven, that it could not support a copyright bill containing such a provision, including the revision bill as it was reported by the full Senate Judiciary Committee on October 7. 1975. The loss of control by authors over the use of their

work in a major mass communications medium, and the dangers of state control and loss of freedom of expression implicit in the proposed system, would probably be too high a price to pay even if public broadcasting were being severely hampered by the legal obligation to get clearances. But, aside from the problem of reading to the blind, discussed below, it cannot be said that the practical problems of public broadcasters in getting clearances for reading literary works, have been illustrated convincingly, much less proved.

It has been suggested that the problem of loss of control might be solved and I am talking now about literary works-might be solved by requiring a notice to be filed, perhaps 2 weeks or 1 month in advance, by the public broadcaster on the copyright owner-presumably at the last address shown in the records of the Copyright Office.

This suggestion has been thrown out informally, thus providing a right of refusal. And there is a precedent for this in the bill-section 110(4)-where you can go out and do something if the copyright owner does not object in advance.

We have serious doubts about both the practicability or the necessity of such a system, though obviously it would be preferable to a raw compulsory license.

And the problem of pictorial, graphic, and sculptural works, including photographs. This practical problem strikes us as a great deal more real than that of literary works. Here, the public broadcasters needs are obviously demonstrable, and the difficulties involved in individual clearances more evident. They do use a lot of graphics, and they are not paying, and they are not getting clearance. I am not sure that there is any organized way of trying to get clearances.

Mr. RAILSBACK. Why is it more difficult?

MS. RINGER. The reason is very simple. There are just no organized agencies besides a few. There is the Bettman Archive and Magnum Pictures and that sort of thing, but aside from agencies of that sort which control very large masses of pictures and you sometimes do see credit lines in magazines next to a reprinted photograph, for example but there is no organized licensing arrangement, unlike literary works, where you do have at least a publisher you can write to that normally has a rights and permissions department that is set up to handle this sort of thing. You do not have that kind of structure in the graphic area. That is not to say that it could not be created, but it just does not exist now.

Should a compulsory license be established for music, its extension to graphics might be justified in theory. A problem here is that there is no organizational representative to speak for artists and photographers. And my point here is that they really have not been consulted, that their works are probably being discussed and dealt with without anyone really being able to speak for them in these hearings or anywhere else. In fairness, their rights should not be swept aside in the interest of expediency and business convenience. It bothers me a great deal that we are blithely saying you are going to be subject to a compulsory license when nobody here has spoken to this from what I know personally to be a great huge body of artists and photographers out there who would be very disturbed about this if it happened.