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Mr. COOPER. That is well put.
JIr. Drivax. I am just delighted and I congratulate you. I back my time.
Jr. KASTENMEIER. The gentleman from New York.
Mr. KASTENJEIER. If there are no further questions, then. We appreciate the appearance of Vr. ('ooper and Mr. Holmes and th: colleagues.
settlement of the insule between the parties is reflected in l... following correspondence:
(1) Letter from Jack Valenti, president, Motion Picture www. tion, to the Chair, dated November 7, 1975, and enclosure, and 1 letter from Senator Ted Stevens of Alaska to the Char, diger] Sovember 10), 1978.
Morios PirTIRE ASSOCIATION OF AMERICA, IV:
Washington, D.C. Jotember 7, 12:: Ilon. ROBERT W. KASTES BIFIER, Chairman, House Subcommittee on ('ourta, ('iril Libertica, and the Administrs!.
of Justice, Waahington, D.C. MY DEAR MR. (UAIRMAX; You will recall that under date of Ocinds 1975 Senator Stevens wrote you with Tompt to the agreement on the talent programs for nonsimultaneous transmui-ion by calle mit 11. in fhore amas as jointly agreed to by Jir. Lee Iloim in khalf of the Guam calle ystem and myself in behalf of the copyright holders
S tor Siestin praised the surfing for their willingness to work oni! 15 agreement but su r ed that consideration be given to further chan say tha would jrmit so-called "bioscling of tapes within Ala ha as jwmil*red be****n Guam a nit within the Pacinie trust territories) and that tbe la DJ ** cabile mistet for piratical taping be mindit .
This is to advise you that our staff ople met with Sentor Srrrne' $1$ and with voir committe tunsel. Jr. Furks during with it wae Rited to work out language to meet Senator Stevens riquet. Subsequentis, 1., Nanyi a nd that we further modify a rabiessteu's liabilily against duplication a la *** have done No.
Attached herewith is the complete text of the Stevens. Il on Pat a reydleut av furi!ier forlife-l at Senatus wesens r est. I assume that Senator Spirns will advimo son of his approval of what has been done. I be that this adial compromise will be mali iactury to you and your sulkummittee Sinderely,
JAY K VADST
Prendre (Corrected epy) PROPOSED ARENDMENTS TO HR. 13
On page 11, between lines 1% and 19, insert the following:
s he (fi relating to nutsikuultaneous we a ry transmissjonis hy a cable systet. R') Kuh tran seus are actional le as at of urinart1.
4t 1 dr
. and are fully subjent to the realies prasided by entiset hotel through unles:
.) the porann an the villeta in transmitted no more than one time to the calientes si ritme, and
(B) te riktigul protum, plerde", or moftra pale ture idea ito :
prrrent surh duplication if it does not ouon or control the facility, (iii) takes adequate precautions to prevent duplication while the tape is being transported, and (iv) subject to paragraph (2), erases or destroys, or causes the erasure or destruction of the videotape ; and
(D) within 45 days after the end of each calendar quarter, an owner or officer of the cable system executes an affidavit attesting (i) to the steps and precautions taken to prevent duplication of the videotape, and (ii) subject to paraKraph (2), to the erasure or destruction of all videotapes made or used during such quarter, and
(Esuch owner or officer places or causes each such affidavit, and affidavits received pursuant to pa ragraph (2) (C), to be placed in a file, open to public inspection, at such system's main office in the community where the transmission is made or in the nearest community where such systein maintains an office; and
(F) the nonsimultaneous transmission is one that the cable system would be authorized to transınit under the rules, regulations and authorizations of the Federal Communications Commission in effect at the time of the nonsimultaneous transmission if the transmission had been made simultaneously, except that this clause shall not apply to inadvertent or accidental transmissions.
(2) If a cable system transfers to any person a videotape of a program nonsimultaneously transmitted by it, such transfer is actionable as an act of infringe. ment under section 501, and is fully subject to the remedies provided by sections are through 306, except that Cany cable system in Guam, the Northern Mariana Imlands, or the Trust Territory of the Pacific Islands may transfer. pursuant to a written, nonprofit contract providing for the equitable sharing of the costs of such videotape and its transfer, a videotape nonsiinultaneously transmitted by it in accordance with paragraph (1), [to another cable system in Guam, the Vorthern Mariana Islands, or the Trust Territory of the Pacific Islands,] may be transferred by one cable system in Alaska to another system in Alaska, by one cable system in llawaii permitted to make surh nonsimultaneous transmis$109x to another such cable system in Hawaii, or by one cable system in Guam,
k lorthern Mariana Ixluguis, or the Trust Territory of the Pacific Islands, to another cable system in any of those three territories, if :
(A) each such contract is available for public inspection in the offices of the cable system involved, and a copy of such contract is filed, within 30 days after such contract is entered into, with the Copyright Office in the Library of Congress (which Office shall make each such contract available for public inspec. tion); and
B) the cable system to which the videotape is transferred complies with panigraph (1) (A), (B), (C)(i), (iii) and (iv) and (D) through (F): and
I() such system provides a copy of the affidavit required to be made in acqondance with paragraph (1) (D) to each cable system making a previous nonsimuitaneus transinission of the same videotape.
(3) This subsection shall not be construed to supersede the exclusivity protection provisions of any existing agreement, or any such a greement hereafter entered into, between a cable system and a television broadcast station in the area in which the cable system is located, or a network with which such station is affiliated.
(4) is used in this subsection, the term "videotape", and each of its variant forms, means the reproduction of the images and sounds of a program or pro grains broudcast by a television broadcast station licensed by the Federal Communications ('ommission, regardless of the nature of the material objects, such as tapes or motion pictures, in which the reproduction is embodied.
One page 17, line 19, strike out “(e)" and insert in lieu thereof “(f)".
On page 17, line 29, immediately after "or", insert a comma and the following: *in accordance with subsection (e),".
Washington, D.C., Vorember 10, 1975. Han. ROBERT W. KASTENMEIER, (hairman, Ilouse Subcommittee on Courts, ('ivil Liberties and the Administra
tion of Justice, Washington, D.C. DEAR MR. CHAIRMAN: Pursuant to my October 8th letter to you concerning Neveral problems I had with proposed amendments to Section 111 of the Omni. bus Copyright Bill, my office has had the benefit of several discussions with representatives of the Motion Picture Association in an attempt to reach agree.
ment on these matters. I am pleased to report to you that such agreement hus now beeu reached.
As you will recall, these problems affected copyright matters pertainler to non contiguous cable systems. At the behest of Mr. Fuchs, of your ofte pirn discussions were held and agreement was reached on working for these pro
med anendments which address the concerns of both the Motion Picture Ås ciation and the cable operators in Alaska. It is my understanding that you are in possession of a copy of the revised wording for these proposed amepdım" contained in Mr. Valenti's Norenber 7th letter to you concerning this mattet.
I wish to thank you and your fellow members on the Subcommittee for your
('.8. Senator Mr. KASTENMEIER. Now, the committee would like to turn to the questions of ephemeral recording rights, involving music of a religious nature, as appears in Section 112(c). Our first witness on that subjes i this morning is Albert Ciancimino.
TESTIMONY OF ALBERT F. CIANCIMINO, COUNSEL, SESAC, INC., OF
Mr. CIANCIUIxo. Well, I am not General SESAC, as on the witte list, but I thank you for allowing me to be here today.
Jr. Chairman, I would like to submit the complete text of my stałe ment to you,
Mr. KASTEN MEIER. Without objection, your statement in its entiriy will be accepted and made a part of the record.
The prepared statement of Albert Ciancimino follows:)
STATEMENT OF ALBERT F. CIANCIMINO, COIXSEL FOR SESAC, Isc. Afr. Chairman, members of the Committee, my name ie Albert F. Ciancis and I am a member of the New York Bar and counsel to SESAC Inc. in .* \
The main issue involving Section 112(C) of H.R. 23 is relatively simple !! wliether or not & religious program producer can use a p * of reliki m ** and distribute it to approximately 4.(N) radio stations without any cus*11.0 to the creator of that religious in usc, Stripping away all of the other (* 130 widtenuem, we basically come to the question--I Congress Rolls to provide t...! the creator of a religious copyright is to continue to have the right to myire ja) Bent for the m hanical reproduction of his work by a relixion paD producer, or for the first time in the history of the l'aited States copri: 44 is Conxr going to say that in the area of mechanical reprovinction rikan outrikut pleruption is ko to be granted. You may remember. Vir (hairman :)
turn of the ('**0011:Ittee, that even the l'ullie Broadcasting Service : is untenut asked for an exemption in the mechanreal riehts arra. but man have anárd for a latuparily Queried fee to be art by Congress, The Nahi R: TIKIN Broadcasters are puing one step sond the pineator and public brad
*ers by auditik for this total exrtuption. It is our position that no sucb eieas tot is justidad and it should not be granted
In the summer of 1973, I had the pleasure of 1*ering before a Senate Sisi onnittee on ih.* Very **ur. At that time, as noites win the 11* ! exemption is already in the propied (pright Rrebeli Bill. Tretimor gives by the Satual Reli!"## Brondeswer after my a arunce, therefore yrat unret:uttend. I will not refer to and aus wir segments of the RB's prior In in order to set the remordstracht
In 1973, the VII nde min b of the fact of the threrforming rights oriri. at uw ASAP, B and SISAC, only I was in Rots pain prumut tosin *** Par munding of remotis music ou tbeir trar?! Dr . It was infried that
was overrrarning and aulving undur port
sure in an area where the other two organizations were not causing any problems. To quote from the XRB's 1973 testimony :
"Religious program producers have reported no problems in this respect with ASCAP or BMI, Only SESAC, according to frequent reports, has pressured certain of the religious program producers to make such payments."
The NRB failed to point out, however, that ASCAP and BMI cannot ask for mechanical licenses in this area because they do not represent the mechanical rights on behalf of their affiliates. Both ASCAP and BMI represent only the performance rights. SESAC alone of the three organizations represents not only the performance rights but also the mechanical and synchronization rights on behalf of its affiliates. I believe the NRB is well aware of this basic fact of life in our industry, and I am dismayed that such a fact has been so terribly distorted.
One thing should be made clear. We have no desire to inbibit the broadcasting of religiously oriented programs. To the contrary, we are simply trying to maintain the integrity of a religious copyright and we are simply trying to preserve to the creator of a religious copyright those rights which are now, and even under H.R. 2223, will continue to be available to the creator of non-religious copyrights. Why should one who creates a religious work be treated as a second class citizen? Clearly, even under the NRB's proposal as reflected in 112(c). this exemption is to be granted only with regard to religious works. If Oral Roberts or Billy Graham uses a non-religious work on his program, there is no question that he will be responsible for the payment of mechanical royalty fees. The creator of a religious copyright has the same expenses as the creator of a non-religious copyright. He must pay the same for a loaf of bread or a bottle of milk, Why then the distinction in allowing the author of a non-religious work a broader earning base than the creator of a religious copyright. Also, one can imagine the very substantial problems of determining what is a religious work. In many instances, whether a work is of a religious nature is determined on a subjective basis by each listener.
In 1973 the NRB also asserted : “Any law requiring or leaving open the possibilits that mechanical reproduction fees be paid for such use could make this music too expensive in the average religious broadcast. ..."
The fact of the matter is that the usual charge to a program producer for the use of a copyright in a transcribed program to be heard on radio is a rather nominal $10.00 per year per copyright for unlimited use of that copyright during that year. I think that organizations such as Billy Graham's Hour of Decision, The Lutheran Hour, The Baptist Hour and others cited by the NRB in 1973 as NRB members can well afford to pay the creator of a religious song $10.00 a year for unliinited use of that song. If they can afford this more than half-page ad in a Minneapolis newspaper earlier this month to attract viewers and listeners of the Word of God, they surely can pay those creating the music of God. The NRB in 1973 said over and over again that responsible religious broadcasting is a non-profit activity carried on as a ministry. We again emphasize that we have no quarrel with the importance of such a ministry and with the fact that the country needs more of this kind of broadcasting. All we ask is that these non-profit organizations (many of whom are rather large and wealthy) pay for the use of their religious music just as they pay for their newspaper advertisements, their electricity, their studio and auditorium rental, their executive salaries, their plane fares from city to city, their guest starts and every other evense normal to their business,
Again in 1973 the NRB stated and again today they state: "The proposed Inechanical reproduction exemption would cause no mea surable injury to religious music copyright owners, their publishers or agents. ...".
What is left unsaid is that many of the program producers at the behest of XRB bave refused to pay mechanical royalties pending resolution of this issue by Congress. However, if they recognize their current obligations under the 1909 law, as have some of their associates, a more substantial amount of income would be accruing to copyright proprietors today. Therefore, the injury to religious music copyright owners is both measurable and substantial, as evidenced by the liet of endorsements appended to my testimony in 1973 from the foremost copy. right proprietor organizations in the industry. Letters were submitted in agree. ment with SESAC's basic position from The Church Music Publishers Associa.. tion. The National Music Publishers Association, The Music Publishers Associa. tion, BMI, ASCAP, The Harry Fox Agency, The American Guild of Authors and Composers and The National Gospel Music Publishers Association. Mr. Chairman,
should you wish copies of the full letters of endorsement which are alrer: tained in the record of the Senate hearings held in 1973. I will be there than happy to supply them to you. Thew organizations represent substantiai'1. of the responsibile copyright proprietor interests in the l'nited State ) yn i all of them are opposed to the inclusion of Section 11216) in the pendink itri Bill. I might also add that the Ainerican Bar Axuxation paranda 10,17; 1973 which op ses 112(e) in its entirety.
It is interesting to note that in the monthly newsletter of the VRHA! *liotline", the June 1975 is lle referred to a petition filed with the Filip the XRB claimed “clearly discriminates against sectarian prome" and the Vitit pointed out that the religious orientation of an applicant should not be aw 18 à basis for determining its eligibility for a commission license, ST SAG* endorses this position and we further ask that the religious orientation ! coprricht reator not be und as a basis for determining bis eligibility to me, copyriglit royalty payments.
Refore concluding, I must touch upon the often used XRB argument that 112(c) would eliminate unfair double fees. The NRB points to the furf'. payment made by a raitio station to SESAC, ASCAP and BMI ponerally tur tota å blanket licensing arrangement, as well as the payment of a mechanical really under the current law by the program producir. This is no different, Mr (i * men, from a situation where a commercial record company, ench ac (*ealn** 1 Derma RCA, pt. would pay the appright proprietor a mert animal regimu fee for each record prel, while at the same time the borden ter : * formance fre for his performance of the recordinx ores the nir. There is "double frusta. Tupre are simply different pe ting made his difforint pepe earl of which juifably calls for compan«ntion to the right (ner
In conclusion. I a-k this sulfommittee to consides and rich pie pret! newsiting for such an atentino existe in
uch an atenti'n A Priete in 112(e) a inst the (nr. ** and neentive ents which it will have not only on tracks innstre timer 10 currently prixts, but on the warranted dilution of the rights original'; *** to the copyright proprietor by (ongress in 18). Onlr br ailesine the copyri!
tirtor of pligious work qual rights and an al opwirtillits to #*** living, will we contine to enjoy the kind of mnaf which has contine pq*] hotufully will continue to contribute to the moral fiber of our great country
Mr. CIA V INO. I will try to omit certain portions of the wate!l.: nt in the interest of time. The main is le involving sertion 11:00! ILR....)3 is relatively simple. It is whether or not a moligiosa porta arram procurer can u piekte of relirio mitir and direito approvimately 4.) radio stations without any compensation to the error of that rulis 0149
You may ni'member, Mr. Chairman and members of t lupa pupurpl} ****, that even tlie Publie Broa lemtingistica nopeitatile prove aakad for an eremption in the mechanical rights aria, but raripriyet ashed for a statutorily governel free to be set by (ons The Vio tional Rligious Broadcaster are one on op beyond t!. pa bodo pinoy and public broadcasters by asking for tistotlerompe on. It ist." powinion that no such temption is j12: iltied and it wirould 1.00 1*
In 'lie simmer of 1972, I lad the polit.yap of appear:robbins Sanite slommitta on the very muelt that time, as not. I fire first snoethe 11n) eremption is almal in the
r opi. ririt ninyonyll. Troutimony in love the l ong! Referanse Brad.
men after mas a trale, thin for rent united. I 'l you poför to end a irments of the RB, por tantons in or to not the record traverit,
Beth 1:1. I notast from Nading the statement made by the VB that all of the point. I am a n no 1:1 (toare neatein ,07 testimony twfore you the Thorning.