are not so similarly situated as far as resources. Is there any way to distinguish between these groups or organizations?

Mr. CIANCIMINO. Well, I think, Mr. Chairman, that if the industry recognized its responsibility in this area, and if there were some legitímate economic considerations to be taken into consideration by SESAC, that we could work out something for the smaller program producer to meet their economic needs. We do this in many instances with the broadcast industry where a station is economically in trouble and we work out some kind of assistance for him so we don't cause an undue economic burden on him. We don't want to have any user of this music go out of business. That is not why we are here.

Mr. KASTENMEIER. Do you have any statute or language to recom. mend? Your sole recommendation is to strike section 112(c). I take it you are not asking to amend it or modify it?

Mr. CIANCIMINO. That is correct. We have no specific license rate schedule to propose. Under the 1909 law, there was no need for such a rate schedule. There was an accepted industrywide rate structure which, in effect, governed the relationship between the parties.

Dr. ZIMMERMAN. Mr. Chairman, If I could be permitted to have just a word on the question submitted. I would be greatly distressed if those using the medium of tapes or disks for the purpose of releasing a religious broadcast, if that was going to be left to the discrimination of an organization like SESAČ or any other licensing agency. It seems to me that would put us in an untenable position. We would be more or less at the mercy of what they determined in a certain case. And to me, that would be a very unacceptable approach to the situation.

The religious broadcasters are not asking for charity. We are asking for recognition of the fact that we are producing a nonprofit broadcast, merely using the convenience of tape or disk rather than long lines for the convenience and economic advantages of that particular procedure. It seems to me that the question is rather irreconcilable that if a telephone line was used, there would be no question. But just because we happen to use the medium of a tape, then that throws it into a whole new category. And frankly, it just seems like it is not an equitable approach to the matter.

Mr. CIANCIMINO. Mr. Chairman, might I just comment on that for 1 second. I believe in the prepared statement of Dr. Zimmerman, the reason why they don't use a telephone line is because of the expense. I am wondering why they haven't asked the telephone company for an exemption from paying the telephone line fees. Why must the copyright creator always be the one to subsidize the various enterprises the users are undertaking? Why must the copyright owner always be the one who doesn't get paid? And everybody says they do you a favor by popularizing your work and having it performed and having it broadcast. Well, everybody is willing to have everybody else pay, but unfortunately, the copyright creator sometimes bears the burden of the subsidy.

Mr. KASTENMEIER. That has been a recurrent thing.
Mr. CIANCIMINO. It certainly has been, Mr. Chairman.

Mr. KASTEN MEIER. But I would ask Dr. Zimmerman not to comment on that, but assume a proposition that religious composers do

not make a great deal of money and that they ought to be rewarded, even modestly, for their work. Now, how is it they can survive without that? I assume very often they are not commercial successes. In fact, by the very nature of their music, they are religious rather than commercial in character. It would seem that they would largely have to depend on religious organizations to compensate them a sum.

Dr. ZIMMERMAN. Well, Mr. Chairman, we take the position that they really are paid, because the stations who air these programs are licensed for the performance rights and we use the stations and pay the stations. So, indirectly, we are, in fact, contributing toward the payment for that particular performance of that song. In a sense, it is almost like buying two tickets to the same ballgame, for the simple reason it is paid for the performance right and then, because we happen, by the convenience and the economics of it, to use a tape as a medium, we find ourselves paying a second time for the use of the same song.

Mr. KASTEN MEIER. Thank you, I apologize to my colleagues for taking so long.

Mr. CIANCIMINO. Mr. Chairman, might I comment on that last statement, please?

Mr. KASTEN MEIER. Very briefly.

Mr. CIANCIMINO. Very briefly, but I do not want to let it pass, if at all possible. This two-ticket argument has been used over and over again, not only by the NRB, but by many other people. Following their rationale, a phonograph record company such Columbia, Decca, RCA, they shouldn't pay mechanical reproduction fees either. Because their argument would be when the radio station plays it, there is a performance credit that is given and therefore the author is paid.

There is clearly a different use here. First of all, they refer to a second payment where they haven't even made a first payment yet. The ones who are making the second payment are the broadcasters and it is for a performance use, completely different and apart from the use they make when they incorporate a religious song in their program and distribute it to the broadcasters and in turn get contributions and what-not from it. Thank you.

Dr. ZIMMERMAN. Mr. Chairman, if I could only point out one difference, and I am not wanting to belabor the time, but the difference we see is that Decca or the other record is a record sold for profit. And we make a strong differential between a tape that has been made for a one-time use and is not for sale and not for profit and one that is used for profit. So, in that sense, we do not see the argument at all. Mr. KASTENMEIER. The gentleman from Massachusetts.

Mr. DRINAN. Thank you, Mr. Chairman. I never expected we would have a theological argument on copyright. We have had everything else.

But, on the contention that if everything is made not for profit, it somehow washes it, well, I have difficulty, because the teacher who Xeroxes 30 copies of Robert Frost's poems for her little children in school is in violation of the law, although she doesn't profit at all.

I wonder if anybody can tell us how much money we are actually talking about, a ball park figure. Is it a few hundred or a few thousand or what?

Mr. CIANCIMINO. Father Drinan, we have never had the privilege of finding out, because many of the groups have not, again at the behest of certain organized user groups, have not paid us. But I would hesitate to give you an educated guess. If you want one, I will submit maybe on an industrywide basis. I think if you hit $5,000 to $100,000 a year you are talking about a high amount.

Mr. DRINAN. Would you tell me, sir, how this thing got in here? I must say, I am astonished to find 112(e) "Musical Work of a Religious Nature." What pious Senator initiated this?

Mr. CIANCIMINO. Part of my testimony before the Senate did go into this rather dry legislative history of 112(c). It first appearedand I am now quoting from my testimony before the Senate--it says, "It first appeared in February 8, 1971. It appeared in an announcement from the Copyright Office relating to the introduction of S. 664 in the 92d Congress, and it describes the differences between that bill and the prior bill as 'technical amendments and a few minor additions of substantive detail.""

Prior to that time, it has never been the subject matter of a hearing. Mr. DRINAN. But who was the author?

Mr. CIANCIMINO. I plead innocence on this.

Mr. DRINAN. Only God knows.

Mr. CIANCIMINO. Only by hearsay, I believe I could say it was either the Copyright Office or the counsel for the subcommittee of the Senate. Mr. DRINAN. And this somehow sailed through without controversy in the Senate?

Mr. CIANCIMINO. That is correct. We had testimony on it in the Senate.

Mr. DRINAN. Did anybody try to justify why, in their opinion, the law should prefer religious over rock?

Mr. CIANCIMINO. That is what I have been trying to find out, Father Drinan. I have really been trying to find out the difference. I think theologically the higher goal is religion rather than rock, but monetarily. There is a little thing called the establishment clause that says we can't do that.

But, I would like to ask Dr. Zimmerman the question that keeps coming up to me, and I suppose it is the $64 million question, but why must the copyright creator bear the burden. As much as anyone would want diffusion of the religious music and all, the bottom line is that the copyright creator doesn't get a certain fee.

Dr. ZIMMERMAN. Mr. Drinan, the feeling that we have had in this matter is that the use of the number on a religious broadcast, a nonprofit broadcast, does accrue great benefit to the copyright holder in that it popularizes that number. And I can attest from my own experience that when we use a number on our own broadcast, without any offer for sale of the number, we have numerous requests coming in to buy copies of that particular number, which accrues directly to the benefit of the

Mr. DRINAN. Well, that is not quite a straight answer, is it? Because the law says that the gentleman who has a rock broadcast, he may benefit directly or indirectly by popularizing his song in Peoria, but he is also entitled to his fee. It may be that it will never become popular and the only thing that he will have to go back to is that fee he gets. So that is really not an answer.

57-786-76-pt. 3—24

You are claiming an exemption. You are claiming, well, we have to make known this song. But in subsection (c) (2), it says-and let me just read it-it says: "That a program embodying a performance of a nondramatic or musical work of a religious nature."

Now, when you say "nonprofit," actually the law says that this particular exemption applies only to a nondramatic musical work of a religious nature. It is a specific and particular exemption only for religion, as I read it.

Dr. ZIMMERMAN. Well, of course, we have no case to make for others. I mean, it could well be that it should be broadened so that the real thrust of it is the nonprofit aspect of it, because to us, this is a very important component.

Mr. DRINAN. Well, sir, when I read this carefully, I was hoping you might be able to save yourself. If you go back to (b), if you had that language in, it would be more acceptable, that is, that it would not be an infringement of copyright for "a governmental body or other nonprofit organization" and so on. But that language is left, and it is narrowed down to only musical work of a religious nature. So that is a specific exemption for something that has to be exclusively religious, and that I find it difficult to justify.

Dr. ZIMMERMAN. We would have no objection to that wording, sir. Mr. DRINAN. Well, loads of other people would, not merely SESAC, but loads of other people. I mean, if every nonprofit organization-I mean, if the Birch Society could get its records out there without paying anybody, I think that certain people might object.

Well, I thank you for your testimony. It has been illuminating.

Mr. KASTENMEIER. The gentleman from New York, Mr. Pattison. Mr. PATTISON. I am a little bit confused, I think, about the difference between what we are talking about here and the 2-cent or 3-cent whatever it is going to be, right for reproduction.

Mr. CIANCIMINO. It is basically the same right, Mr. Pattison. In the area of the recording industry, it has been codified by a compulsory license of 2 cents. In other areas of mechanical reproduction, such as by syndicated program producers, by radio or television producers where works are being reproduced but not in the form of commercial recordings which are sold by Columbia or Decca, there is no codification of the statute there. And industry practice has built up the price of the $10 per year per title for unlimited use. But basically, it evolves from the same mechanical right that is used by the commercial record companies.

Mr. PATTISON. So there isn't any question but if this language that we are talking about were absent that a religious or any other organization could find its own performers and make a disk-right?-and sell it or give it away or anything else and pay 2 cents?

Mr. CIANCIMINO. Not to the public, but to transmitting organizations, as defined in 112(c), to radio stations primarily. Section 112 (c) is a very limited area of mechanical reproduction rights, which are being used by program reproducers in the religious area and then disseminated to radio stations for a performance over the air. That is the only thrust of 112(c).

But, I thought your question was on the origin of the mechanical right as compared to the commercial phonograph record field. They both originate from the same right, from the same portion of section 1(e) of the 1909 act.

Mr. PATTISON. Well, I am still a little bit confused about that, but let me get on to another question.

Mr. MIDLEN. While we are on that, may I respond to that particular aspect, Congressman Pattison?

Mr. PATTISON. Yes.

Mr. MIDLEN. This point has been discussed with the Senate Subcommittee on Patents, Trademarks, and Copyrights and specifically with the chief counsel. The view expressed there, and with which we agree, is that the provisions in section 115 (c) (2) concerning that 2 cents matter with respect to royalties payable under compulsory license, that is designed to apply to those reproducing phonorecords for commercial sale and would not apply to nonprofit organizations making mechanical reproductions of musical works of a religious

nature.

Mr. CIANCIMINO. I believe the gentleman is referring to the current position of section 115, is that correct, as appears in the revision bill? Mr. MIDLEN. 115(c) (2).

Mr. CIANCIMINO. In the current revision bill? Is it the 1909 statute or the current revision bill you are citing?

Mr. PATTISON. That is the current bill.

Mr. CIANCIMINO. That is the current bill, yes.

Mr. PATTISON. I am trying to sort that out in my mind.

Mr. CIANCIMINO. But there is no such provision in the 1909 law. I think that is what your question was.

Mr. PATTISON. Just a point of information. Isn't it true that the reason that ASCAP and BMI do not license mechanical rights is that they are, isn't it true, that they are prohibited from doing so under the consent decree? Harry Fox basically does that.

Mr. CIANCIMINO. I don't profess to be an expert on the ASCAP consent decree. I do know that historically ASCAP's area of representation was in the performance rights area. I am not prepared to answer any questions on the ASCAP consent decree at this time.

Mr. PATTISON. Well, that is my impression. I think that they just can't get into that business, frankly, but I may be wrong about that. If this language stays in the bill, I am troubled about the distinction between what is religious and what is not. Is Mahalia Jackson's "Amen," for instance, is that a religious song? I mean, it is played over rock stations and played all the time everywhere.

Mr. CIANCIMINO. This is one of the very real problems. Ervin Drake, who is the president of the American Guild of Authors and Composers and who had submitted a letter when I testified before the Senate and it is appended to the Senate record, Ervin Drake wrote the song, "My Prayer," which is a very popular copyright. It wasn't written as a religious copyright. However, it is used in my Catholic Church, for example, in Sunday services, at Sunday Mass. Ervin Drake has told me and a copy of his letter to the Senate is attached, which I have here, if anyone cares to see it-and he has told me and it specifically states the fact that it was not written as a religious copyright. And this is the area where we are going to get into trouble. This is the area of definition, which is going to cause a whole body of litigation, it seems to me, if 112(c) ever becomes law. And it is really an unwanted area, in my opinion, of litigation. I don't see any justification for it at all.