Church in America), Vespers (American Lutheran Church), Morning Chapel' Hour (daily), Herald of Truth, and many, many others. Other religious programs utilizing religious music and having extensive broadcast dissemination include the Hour of St. Francis, Ave Maria Hour, Sacred Heart Hour, The Protestant Hour, Voice of Prophecy (Seventh Day Adventist), Lamp Unto My Feet (ecumenical), Jewish Dimension, The Eternal Light, and Jewish Community Hour. These and practically all religious program producers are vitally concerned that there be enacted the present provisions of Section 112(c) of the pending H.R. 2223 for general revision of the Copyright Law clarifying the right of non-profit organizations under certain circumstances to make for distribution to licensed transmitting organizations phonorecordings of religious music for usage in religious programs. GENERAL DESCRIPTION OF RELIGIOUS PROGRAMS The religious music used in religious programs creates an appropriate devotional mood as well as serves as a musical bridge between the spoken words with the degree of usage of religious music varying from program to program. The format for the various religious programs differs, of course, in degree, but the production and distribution principles are relatively uniform. The programs are produced either on tape or disc for distribution by mail of one copy only to each broadcast station carrying the program. The programs then are broadcast at the time and day agreed upon between the station and the program producer. None of these programs is produced for profit by the religious program producers. In fact, the religious program producer usually pays the broadcast station to carry the program or furnishes the religious program without charge to the broadcast outlet. The broadcast stations customarily have performance rights licenses covering this religious music with ASCAP, BMI, and SESAC. NRB supports the rights of the copyright owners to compensation for performances of religious music under these performance rights licenses with the broadcast outlets. NRB also supports the rights of the copyright owners to compensation for mechanical reproductions of religious music made for sale or other profit. THE NEED FOR THE MECHANICAL REPRODUCTION EXEMPTION FOR RELIGIOUS PROGRAMS There presently exists confusion and contradiction with respect to claims for mechanical reproduction fees for musical works of a religious nature included in religious programs produced by non-profit organizations for broadcasting purposes. 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. We know of no court decision directly on the point. Primarily sacred music is written and published for the purpose of spiritual ministry and religious inspiration. It is incorporated into religious broadcasts wholly apart from any intention or possibility of financial gain. Any law requiring or leaving open the possibility that mechanical reproduction fees be paid for such use could make this music too expensive in the average religious broadcast since the financial resources of these program producers are not adequate to accommodate such cost as documented by NRB studies. In these studies, National Religious Broadcasters conducted Questionnaire Surveys among its membership in the Spring of 1973 and in the summer of 1975. The effect of the potential of unlimited mechanical reproduction fees among these responding organizations preponderantly ranged from (1) using only religious music in the public domain with such disadvantage for the listening or viewing audience to (2) substantial curtailment of the number of broadcast outlets used or (3) even total discontinuance of the religious program. Such a result would be a loss to all concerned, the composer, publisher, broadcaster, and most importantly the listening American public-since it could place a substantial part of modern religious music financially out of reach so far as religious broadcasting through use of mechanical reproduction means is concerned. JUSTIFICATION FOR THE PROPOSED EXEMPTION Responsible religious broadcasting is a non-profit activity, carried on as a ministry no less viable than the worship services of a church or a synagogue. Essentially the taping or recording of programs not for profit and for a single release (or on occasions a repeat release) is simply a means of producing such programs for convenience. It obviates the necessity of releasing the program "live" utilizing the more expensive and totally impractical method of telephone lines from the program producer to the individual broadcast stations, a procedure which would be undeniably exempt from any claim for mechanical reproduction fees. It is common knowledge that religious program producers render a valuable service to copyright owners by the very use of their music for such music is given exceedingly broad exposure through radio and television presentations. Many, if not most, programs featuring religious music have accompanying ready-made information sheets for the purpose of acquainting listeners requesting details concerning such music including the author, composer, publisher, and possible location where the music as records or sheet music may be purchased. These informational sheets are of great assistance because of the high incidence of requests for the data to the clear advantage of the copyright owner. In sum, religious program producers serve to promote religious music to the benefit of the copyright owners of such music. The proposed mechanical reproduction exemption would cause no measurable injury to religious music copyright owners, their publishers or agents as it simply codifies a generally existing situation. The creators of religious music derive their income primarily from publishing and selling hymnals, gospel songbooks, sheet music, and records. This is supplemented by income from performing and synchronization rights licenses. Moreover, only a small percentage of the repertoire of religious music is ever broadcast. There is a tendency to emphasize the music that is or has been popular so that a majority of the songs in hymnals, gospel songbooks, and sheet music are never presented in religious programs on radio or television stations. Nor can these religious music copyright owners really complain that the proposed Section 112(c) in the Copyright Bill deprives them of existing income. To the best of our knowledge only a small handful of religious program producers succumbed to SESAC's pressures for payment for mechanical reproductions in non-profit religious programs for broadcasting, and some of those have since terminated such payments. In short, the religious music copyright owners and their associates, who have been financially successful without mechanical re production income from non-profit religious programs, can make no claim for loss of income that they never really had. In addition, mechanical reproduction fees for religious music in programs produced by non-profit organizations for broadcast stations could present substantial practical problems. Much of the music is not listed in catalogues of copyright owners so that there would be added the burden of seeking to ascertain to whom any such payments would be made. Copyright legislation has rightly sought to protect copyright holders from mechanical reproduction of their literary property by those who do so for profitwhether large or small. Religious program producers, however, clearly are not doing so for profit, but for the purpose of using religious music for religious inspiration. That the use made of religious music in a conventional religious broadcast is not for profit is demonstrated by the fact that when the recorded program has been broadcast, the tape is returned (or the disc destroyed) to the program producer. Its contents then are erased so that the tape may be utilized for subsequent broadcasts. Copyright owners can make no claim that the recordings are offered for sale since the tapes for religious broadcasts are not sold. In fact, the reverse takes place with the program producer paying the broadcast station to carry the program, or furnishing it without charge. The present copyright exemption language of Paragraph 112(c) is carefully designed to cover only mechanical reproductions with limitations for non-profit religious programming. The program producer must be (1) a non-profit organization (or governmental body), (2) only one copy of the program can be distributed to the broadcast or transmitting outlet, (3) the musical work is of a religious nature, (4) the program producer receives no direct or indirect compensation for making or distributing such tape or recording, (5) there is only a single transmission (or in some instances a repeat transmission) to the public by the broadcast station or other transmitting organization having a license therefor, and (6) except for one copy reserved for archival purposes the tapes or records are destroyed within a year from the date of the public transmission. The responsible religious programmers meet these criteria, and their position clearly justifies the proposed exemption. SUPPORTING RESOLUTION OF NATIONAL ASSOCIATION OF EVANGELICALS A major church body, the National Association of Evangelicals-which numbers among its membership more than 39,000 churches of various denominations in the United States on April 10, 1975 at its Thirty-Third Annual Convention adopted a Resolution supporting the provisions in Section 112(c) of H.R. 2223 and S. 22 relating to religious broadcasting by non-profit organizations and urging that H.R. 2223 and S. 22 be so enacted. This Resolution of the National Association of Evangelicals is attached to this Statement. CONCLUSION The proposed provisions of Section 112(c) will be equally beneficial to Protestant, Catholic and Jewish non-profit religious program producers. Recent public developments have demonstrated that more than ever before there is a need to improve the moral tone and well-being of our nation. Increased religious broadcasting for this purpose is a definite need, and we urge the enactment in its present form of Section 112(e) of H.R. 2223 so that there will be encouraged rather than decreased or eliminated the amount of religious programming for this purpose. COPYRIGHT LAW AND RELIGIOUS BROADCASTING Whereas, there was introduced in January, 1975 and are pending before the Senate of the United States a Bill (S. 22) and before the House of Representatives of the United States a Bill (H.R. 2223) for the general revision of the Copyright Law, and Whereas, there is included in both Copyright Bills a provision (Section 112c) clarifying the right of non-profit organizations under certain circumstances to make for distribution to licensed transmitting organizations phonorecordings of religious music, and Whereas, payment of copyright fees for mechanical recordings of religions music for transmission over broadcast outlets could impose financial demands that would seriously curtail or possibly eliminate in some instances the presentation of religious programming, and Whereas, the National Association of Evangelicals on May 2, 1973 at the 31st Annual Convention at Portland, Oregon adopted a resolution supporting a similar provision in the then pending Copyright Bill, and Whereas, the National Association of Evangelicals, which numbers among its membership more than 39,000 churches of various denominations in the United States, considers that the state of the nation and of the world requires increased rather than decreased religious broadcasting to improve the moral tone and wellbeing of the nation, Now, therefore, the National Association of Evangelicals, at this 33rd Annual Convention at Los Angeles, California on April 10, 1975 does hereby reaffirm its support of the provision in Section 112(e) of the pending Copyright Bills in the Senate and House of Representatives of the United States relating to religious broadcasting by non-profit organizations and does hereby urge that such proposed legislation be so enacted. Passed by the Annual Business Session on April 10, 1975. NATIONAL ASSOCIATION OF EVANGELICALS, Mr. KASTEN MEIER. Mr. Ciancimino, would you please come forward? Is the present state of the law that there is liability or that there is not liability? Let me ask you first, Mr. Ciancimino, and any other of the panel of the National Religious Broadcasters can also speak to the question. Do you construe the present law to provide liability or not? Mr. CIANCIMINO. Very definitely, it provides for liability. If I might read from section 1(e), which clearly grants to copyright proprietors the exclusive right to "make any form of record in which the thought of an author may be recorded and from which it may be read or reproduced." This has been interpreted by courts to grant mechanical reproduction rights, as qualified by the compulsory license provisions, to grant it to an author in every area of mechanical reproduction. There is no for-profit limitation that has ever been imposed on the creator for the mechanical reproduction rights which he enjoys under the statute. Mr. KASTEN MEIER, Then section 112(c) is a change from the present law? Mr. CIANCIMINO. Very definitely. Mr. MIDLEN. I distinctly disagree, Mr. Chairman. All of the cases that we know about in this field relate to reproduction when reproduction is made for profit. And we have already said that we think that a copyright owner is entitled to payment when there is reproduction for profit. The law does not say anything on this point. And certainly the Congress, as we read the legislative history in this matter, did not consider or did not have in mind in any respect the fact that reproduction for nonprofit would entitle a copyright owner to any such compensation, nor do we know of any court case that holds such an entitlement, when reproduction is totally nonprofit. Mr. CIANCIMINO. Mr. Chairman? Mr. KASTENMEIER. Mr. Ciancimino. Mr. CIANCIMINO. Need I simply remind the chairman and the members of the subcommittee that groups such as educators, and public broadcast service representatives on this very right, namely, the mechanical prodretion right, have never quarreled with the existence of that right, but they have asked that the right be governed by the Mathias bill. This is the first time that I have heard anyone quarrel with the copyright statute as to the rights granted to an author for mechanical reproduction. I would humbly disagree with my learned counsel, my opposing counsel, and suggest to him that the cases that he refers to are cases in the area of performance rights law, where the area of for profit is a key issue under the 1909 statute, but not the area of mechanical rights. Mr. KASTEN MEIER. May I ask, first of all, what music are we talking about? What music is represented, Mr. Ciancimino, by SESAC which is religious in character and which is or might be used by National Religious Broadcasters? Mr. CIANCIMINO. SESAC represents a broad spectrum of music. The type of music we represent in this particular area is music from very well-known and prominent publishing companies in the gospel and sacred area. Saintspiration is one and Lilinus is another one of the largest. And there are many, many companies of this type that we represent. We represent them, not only for the performance rights, but also for the mechanical and reproduction rights. We also appended to our testimony before the Senate. letters of endorsement from many music publishers in the gospel and sacred field, as well as organized publisher organizations in the church and gospel area. So this is the extent to which we have an interest in the matter. We are not the only organizations that do have an interest, but somehow, perhaps by default, I have been chosen to be the spokesman for the industry on this particular issue. Mr. KASTENMEIER. Dr. Zimmerman, Mr. Ciancimino says on page 3 that "National Religious Broadcast members can well afford to pay the creator of a religious song $10 a year for unlimited use of that song." Is that not true? Dr. ZIMMERMAN. Mr. Chairman, our surveys show that this would impose a very substantial imposition on a number of broadcasters. We made a very careful survey. The survey was secured on the basis of confidentiality so that we would get an accurate input from them. But our surveys show that, as I have indicated, that there would be the necessity on the part of many of the broadcasters to have to go to only use of music in the public domain or a substantial curtailment on the part of their broadcasts or, in a few cases, the discontinuance of their religious programs. On the surface, it does not appear to be a sizable sum of money, but actually the $10 per year per number is sort of an arbitrary figure, I suppose, that SESAC has determined. There is nothing to guarantee that that would not be altered. And it is not an insignificant matter. I know personally of several broadcasters who have told me that to meet this additional obligation would, in fact, infringe upon them a very substantial problem. Mr. KASTENMEIER. Mr. Ciancimino, Dr. Armstrong-well, Mr. Midlen before, said there are some of his members who have submitted to the importionings of your organization and do make payments. What is the situation? Have you established the right to collect pursuant to any court tests or otherwise? Have you tested this matter in the courts or are you policing this if you think it is your right? Mr. CIANCIMINO. SESAC has never in the past had occasion to bring an action against anyone for the violation of this particular right. We feel that under the 1909 statute, under section 1(e), it is clear that we have it. We have established the right to collect for this use. It is not something that is an innovation within the last couple of months. The $10 fee is also the fee that is charged by the Harry Fox organization for a similar type of use. It is an industrywide established fee. I suppose we could raise the fee if we could have the user agree to pay a higher fee, just as we can raise the fees in the areas of the performance rights. But we are dealing here with an industry and we don't take very lightly to simply subjectively raising a fee without some kind of an agreement on behalf of the licensees. We do have some of the program producers licensed and have had them licensed for many years. These are the people that are recognizing their responsibility under the 1909 act. A sizable number of them were licensed up until a couple of years ago when again, at the importuning of the NRB they decided not to be licensed any further, pending clarification of the issue. Mr. KASTENMEIER. Mr. Ciancimino, Dr. Zimmerman also suggests that there is an organization-that his organization is a very large one and contains many hundreds of individual church groups, broadcast, et cetera. You have cited some of the better known ones. In the ad there you cited Billy Graham, or Oral Roberts. These individuals may be identified with organizations that have these economic resources, but many of them obviously do not, maybe even hundreds do not. They |