of licenses. Public broadcasters terminated these discussions to press for their Amendment in House Subcommittee hearings. We offered to resume whenever they are ready. Public broadcasting negotiates on a voluntary basis with its producers, directors, actors; and with those who produce its program materials-film companies, television producers, etc. It easily can negotiate with authors for uses of their works, which are a small part of its programming. Moreover the compulsory license system they propose is far more costly and burdensome. Two public agencies would operate it. The costs would be deducted from authors' compensation. Broadcasters would have a much heavier administrative burden than under voluntary licensing. There would be constant rate-making hearings and appeals. And to top it all, the system could not establish reasonable rates; compensation for performances of literary works cannot be established on a standardized basis, in contrast to the blanket licensing of performance rights in music. 8. DEMANDS FOR AN UNLIMITED EXEMPTION FOR RECORDINGS OF INSTRUCTIONAL BROADCASTING PROGRAMS Sec. 110(2) allows the uncompensated performance of literary works on instructional broadcasts which are part of systematic instructional activities of nonprofit educational institutions. This was initially intended to equate such broadcasts with classroom teaching—a live use. Next, Sec. 112 was amended to allow a station to use one recording, for a limited time make repeat broadcasts. Sec. 112 has now been expanded to allow the produ of 30 recordings which may be used for a 7 year period. This far transcends the、iginal purpose of these sections. It permits such broadcasters to go into the business of producing recorded programs, like a film company or television production enterprise. In all fairness, authors should be paid for such extensive use of their works. But they only can ask compensation if a broadcaster shes to make more than 30 copies or use the recordings after 7 years. Not content with this windfall, instructional Di adcasters now ask for the removal of this 30 copy-7 year limitation. They ask, in the Bayh amendment, for the privilege of making any number of copies and distributing them for any number of years. The Authors League strongly opposes this proposal. These recordings are produced by professionals, who are paid for their work. When they choose to use an author's book beyond the already too-broad limits of Sec. 112, authors are entitled to be compensated. 9. THE PROPOSED EXEMPTION FOR BROADCASTING READINGS OF BOOKS TO THE BLIND Public broadcasters have asked for an amendment to permit unauthorized performance of books on programs designed for blind audiences. This amendment is totally unnecessary. For 40 years the Library of Congress, through its Division for the Blind and Physically Handicapped has disseminated thousands of literary works to the blind in braille editions and TALKING BOOK records. All of this has been done solely by permission of authors and publishers, sought and obtained by the Library-without compensation. Broadcasts to the blind can be licensed in the same manner, without charge. 10. THE ANTI-COPYRIGHT ARGUMENTS (i) The Alleged "Non-Profit" Exemption. Teacher organizations have argued that schools enjoy a "non-profit" copying exemption under the present law. They are wrong. There is no such provision in the 1909 Act. As the House Judiciary Committee Report stressed: "The educational groups are mistaken in their argument that a 'for profit' limitation is applicable to educational copying under the present law." (ii) The Antitrust Argument. Library and teacher spokesmen label copyright as a "monopoly", suggesting it offends the Sherman Act. This is not so. Copyright does not give an author control over the market in books. His work competes with thousands of others. His copyright only grants him exclusive rights in the book he created. This is a "monopoly" only in the sense that any form of property is-i.e. a collection of exclusive rights in something. Copyrights do not allow authors to collectively deny their books to schools or libraries, as teachers collectively deny their services or fix prices for them, when they and their unions conduct strikes. (iii) The Restraint of Information Argument. Library and teacher spokesmen argue that a copyright restrains dissemination of information. This is incorrect. Patents prevent others from using the ideas they protect. Copyrights do not impose those restraints. Anyone, including other authors, is free to use the ideas, facts or information of a copyrighted work. Anyone is free to create a similar work. A copy right only protects against substantial copying of the author's expression. The Supreme Court has never interpreted "freedom to read” under the First Amendment to mean that copyrighted works can be reproduced free of charge; it frequently has emphasized that there is no conflict between publication for profit and the First Amendment. (iv) The Mere Privilege Argument. Teacher and library spokesmen argue that copyright is a "mere privilege" because it is granted by statute. But a literary work is absolute property under common law because "it rests upon the natural moral right of each one to enjoy the products of his own exertion . . ." Moreover, all property rights are established by the state; thus, billions of dollars worth of property in land and resources are created by federal and state statutes. Art. I, Sec. 8 of the Constitution enumerates the powers Congress was expected to exercise: enacting copyright laws is listed along with the others. As the Supreme Court ruled, the Constitution intended that authors be granted "valuable, enforceable" rights to encourage them to produce works of lasting value. Protecting authors' rights, not destroying them, was how the Constitution intended to promote literature, education and the arts. Compensating authors for uses of their works, not denying them remuneration, is the method it chose to promote the public interest. HERBERT FUCHS, Esq., Rayburn House Office Building JOHN HERSEY, President. ELIZABETH JANEWAY, HERMAN WOUK. THE AUTHORS LEAGUE OF AMERICA, INC., DEAR HERB: I'm enclosing a copy of my letter to Senator Mathias dated December 8, 1975, and copies of the two memoranda referred to therein—all with respect to the elimination of literary works from the compulsory licensing system of Section 118. Sincerely, Enclosures. Hon. CHARLES MCC. MATHIAS, Jr., Washington, D.C. IRWIN KARP. THE AUTHORS LEAGUE OF AMERICA, INC., DEAR SENATOR MATHIAS: I wanted to thank you again for the opportunity of discussing the Authors League's reasons for opposing the compulsory licensing of literary works for public broadcasting. In accordance with your suggestion, I am submitting herewith memoranda summarizing: (i) the dangers to freedom of expression inherent in the compulsory licensing of literary works, and the other reasons such a system should not be imposed on these works. (Memorandum A) (ii) the procedural safeguards and clarifications that should be added if the compulsory licensing system is to be enacted. (Memorandum B) Charles Lieb, counsel for the Association of American Publishers, and I prepared the memoranda, which reflect the views of the Association and the Authors League. I also wanted to report on the meeting which Mr. Lieb and I had with public broadcasting's representatives, Messrs. Aleinikoff and Smith, on November 25th, following my meeting with you and Mr. Klipper. Mr. Lieb and I said that authors and publishers were prepared to establish the voluntary licensing system which had been negotiated almost to the point of completion in our previous meetings-if books and other literary works were deleted from the "Mathias Amendment." We said on that basis we were ready to complete the drafting of the standard licensing form and prepare to set up the voluntary clearing house which the Association of American Publishers had offered to establish to expedite the simple licensing procedure. Mr. Lieb also stated that the Association was willing to discuss recommended rates if an antitrust amendment were adopted. The Authors League would be willing to do so, as well. Mr. Alienikoff and Mr. Smith said this was not acceptable to public broadcasting. They said they hoped that publishers and authors would agree to work out the system we had been negotiating-but that it should take effect whether or not the Mathias Amendment was adopted, and that even if we agreed to that system, they would continue to press for the Mathias Amendment. And, they indicated that even if you deleted books from your Amendment, they might seek to have other members of the Senate press for their inclusion. In effect, public broadcasting was saying "Heads we win, tails you lose." We believe that this position flatly contradicts the premise on which your Amendment was introduced-that if the parties negotiated a reasonable arrangement, the Amendment would be withdrawn. Mr. Lieb and I told Messrs. Smith and Aleinikoff that their proposal was not acceptable. We pointed out to them that the license form, which we were prepared to recommend as part of a voluntary system, granted public broadcasting much greater privileges than they would obtain under the compulsory licensing provisions and at much less expense and administrative burden. We said that if compulsory licensing were forced on authors and publishers they would exert every effort before the courts and the Tribunal to preserve their rights to the fullest extent possible. We also said that the rates ultimately fixed by a Tribunal under compulsory licensing might be substantially greater than the modest rates at which licenses are now granted and would be granted under the voluntary system we were negotiating to establish. Messrs. Smith and Aleinikoff made it abundantly clear that public broadcasting is not prepared to accept voluntary negotiated arrangements for literary works rather than a statutory compulsory licensing system. They reiterated that no agreement with authors and publishers would be acceptable unless the 5 conditions they presented to us in June of 1975 were satisfied. These conditions are listed at p. 27 of our July 10th statement to the House Judiciary Committee's Copyright Subcommittee; a copy was sent to you, and another is enclosed. What public broadcasting insists on, in these conditions, is that no author can decline to grant a license, that there must be a binding fee schedule and that the arrangement must continue in perpetuity. In short: they demand conditions that could only be satisfied by a mandatory, statutory licensing system. Messrs. Aleinikoff and Smith told us that public broadcasting would not be averse to a procedure under which a notice would be served on an author before his work was used, so that he could file a "refusal of use" which would prevent that particular reading of his work. Mr. Lieb and I said this procedure was not acceptable for various reasons. An author might be out of the country or otherwise unavailable, when the notice was received. As the Register of Copyrights has indicated, such a system would be unworkable, administratively. And it would establish a dangerous precedent. Moreover, we believe that many authors would be put to considerable cost and burden-since public television producers frequently request licenses for works they never use, and since authors might be required to pay filing fees to protect themselves against unwanted uses. Mr. Lieb and I believe that we and our colleagues, who have participated in the previous meetings with public broadcasting's representatives, have made every effort to negotiate a reasonable arrangement for the voluntary licensing of literary works for public broadcasting. These efforts have failed for one basic reason-public broadcasting wants a statutory compulsory licensing system. Under that umbrella, and using that leverage, it would not object to negotiating voluntary licenses that give it even more. It is clear to us that public broadcasting takes this position because it thinks it has the political advantage, and can get the Amendment passed. The Authors League and the Association of American Publishers urge that literary works should be deleted from your Amendment. Mr. Lieb joined with me in preparing this letter and authorizes me to say that it expresses the views of the Association of American Publishers as well as the Authors League. Sincerely yours, IRWIN KARP, Counsel, The Authors League. THE AUTHORS LEAGUE OF AMERICA, INC., Memorandum A to: Hon CHARLES MCC. MATHIAS, Jr. This memorandum, submitted by the Association of American Publishers and the Authors League of America, discusses (i) the dangers to freedom of expression inherent in the compulsory licensing of literary works for public broadcasting; (ii) the other reasons such a system should not be imposed on these works. 1. THE DANGERS TO FREEDOM OF EXPRESSION The Mathias Amendment would write into the United States Copyright Act, for the first time, the dangerous concept of a compulsory license system for books, magazine articles, newspaper columns and other literary works. As the Register of Copyrights testified in October, opposing its application to literary works: "The loss of control by authors over the use of their work in a major mass medium of communication, 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." Moreover, as she indicated, public broadcasting has not had any such difficulties. The compulsory licensing of literary works is utterly repugnant to the First Amendment principle that government may not compel the press to publish that which it chooses not to publish. In its 1974 opinion in Miami Herald Publishing Co. v. Tornillo (418 U.S. 241), the Supreme Court noted that it had for years "expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print." Such compulsion, said the Court, is unconstitutional; it cannot “be exercised consistent with the First Amendment guarantees of a free press.” (at. p. 258) Of course, the publishers and authors of books, magazines and other literary works are entitled to the same full measure of protection under the First Amendment. (see, for example: Time, Inc. v. Hill, 385 U.S. 374; Bantam Books v. Sullivan, 372 U.S. 58; Winters v. New York, 333 U.S. 505). And it is equally repugnant to the First Amendment that government should compel an author or publisher to permit the broadcast of a book he does not choose to have broadcast. Such a compulsory licensing system would deprive the author of protection against unauthorized broadcasting of portions of his work, out of context, which misrepresent his views and opinions; such a system denies him the right to decline licenses for broadcasts which may distort his book or article. Even more dangerous, the Mathias-amendment compulsory licensing of literary works creates, for the first time, a dangerous precedent in the Copyright Act for other forms of government compulsion and control over the use of copyright literary works. There is no provision for compulsory licensing of literary works in the present Copyright Act, or in the other provisions of the Revision Bill. The CATV clause (Sec. 111) only allows the simultaneous retransmission of an overthe-air broadcast-an antennae function. It does not allow a cable system to use a literary work, or recording of it, to produce or originate a program. The JukeBox and Record-license clauses (Secs. 115 and 116) deal only with nondramatic musical compositions, and only those previously recorded with the copyright owner's consent. Public television can easily and adequately acquire rights to literary works under voluntary arrangements. Its interest in obtaining an absolute power of expropriation does not justify the establishment of a compulsory licensing system for literary works which completely violates the spirit of the First Amendment, and constitutes so dangerous a precedent for further encroachments. As the Supreme Court has emphasized, this is not an area for ad hoc balancing. The dangers of government compulsion on those who create and publish books and magazines are too great a threat. The Court has refused to tolerate far blander threats to freedom of expression, because of the dangerous precedents such toleration would create. 2. OTHER REASONS COMPULSORY LICENSING OF LITERARY WORKS FOR PUBLIC BROADCASTING SHOULD BE REJECTED In our previous statements to the Subcommittee on Patents, Trademarks and Copyrights, we have discussed the many reasons why literary works should not be subjected to compulsory licensing. Those reasons also are set forth in considerable detail in our joint July 10th statement to the House Judiciary Committee's Copyright Subcommittee. We summarize a few of them, briefly : (i) The present law does not permit public broadcasters to produce recorded programs using literary works without the copyright owner's permission. (ii) Authors now voluntarily grant licenses for readings from books and other literary works on public broadcasting at modest rates. (iii) Compulsory licensing prevents the author from declining a license where he believes broadcasts of his work will diminish sales, destroy or impair motion picture or television or recording rights, or damage its artistic integrity. (iv) Compulsory licensing will deny authors and publishers the opportunity to negotiate reasonable compensation. Broadcasting of books cannot be licensed on a mass-basis, as can the performance of music. A musical composition can be performed countless times, on a non-exclusive basis by many different artists and orchestras. Its value and the author's compensation are equated with the number of performances. Literary works are used far less frequently in broadcasting. A book cannot be performed repeatedly to the same audiences (few books are read more than once); and the value of books vary widely, and cannot be equated with the number of performances. (v) The licensing of literary works for broadcasting on a voluntary basis is now a simple process, and could be simplified even more under arrangements proposed by the Association of American Publishers, Authors League and other groups, making compulsory licensing of literary works totally unnecessary. (vi) Public Television negotiates on a voluntary basis for all of its programming elements including motion pictures, plays, television programs produced by British TV or by domestic producers, and the services of its professional producers, directors, writers, actors, technicians, etc. For these and the other reasons discussed in our statements, the Authors League and Association of American Publishers submit there is no justification. for establishing the compulsory licensing of literary works for public broadcasting. IRWIN KARP, Esq., The Authors League. CHARLES LIEB, Esq., The Association of American Publishers. THE AUTHORS LEAGUE OF AMERICA, INC., Memorandum B to: Hon. CHARLES MCC. MATHIAS, Jr. The Association of American Publishers and the Authors League oppose the compulsory licensing of literary works for public broadcasting, for reasons summarized in our accompanying statement. However, if such a compulsory system is enacted, the Association and League believe that certain essential safeguards and clarifications must be added to the statute, to protect authors and publishers whose works would be broadcast without their permission. The Authors League and Association of American Publishers therefore urge that the following revisions be made in Sec. 118 and Chapter 8 of the Revision Bill, should compulsory licensing be enacted. 1. Rate-Making for Literary Works. Reasonable royalties for literary works cannot be established on the same mass-licensing basis as rates for broadcasting of music. As noted in our accompanying memorandum, an individual author's compensation for broadcasts of a musical work, which is performed repeatedly to the same audiences, is normally based on surveyed performances: and the lump-sum payments by broadcasters to licensing societies are distributed to composers and audiences on that basis. However the same audience will not read a book repeatedly, or listen to several broadcasts of it. The value of a literary work's broadcast rights depends on its merits, its success and its author's reputation. Thus, the reasonable fee for broadcasts of some works will be substantially higher than the usual fee patterns for various categories of writings that authors might ordinarily be willing to accept. It is, consequently, essential that the Act permit the author or publisher of a literary work who so elects, to maintain a separate proceeding before the Tribunal to establish rates for various types of public broadcasts of his work. Otherwise, the copyright owner of a valuable and unique work would be grossly undercompensated for such broadcasts. 57-786-76-pt. 353 |