Mr. DRINAN. On a tribunal, we have had very, very little information or comments on it, and I am very afraid, frankly, of the implications of some of this in section 806, in that you seem to reflect that, too. As you indicate, section 111 was decided upon without any economic analysis of the royalties involved, and the final determination in any proceeding must be reported to the Congress, and either House can decide within 90 days. I can foresee all types of difficulties there. How many final determinations from the tribunal would you imagine would be forthcoming in a year or 6 months?

Ms. RINGER. On the ratemaking, there are currently in the bill, if you include the recent Mathias amendment in the Senate, four. There are four separate fees that are set, and would be subject to review by the tribunal. It depends on how often the tribunal is able to review it. Under the Senate amendment, it would be once every 10 years after the first time. I would say that it would be very unlikely that all four would not be reviewed, and probably changed.

Mr. DRINAN. Then it is very indefinite. As you intimate, it is very indefinite. What happens if either house sets it aside what happens? Ms. RINGER. I do not know.

Mr. DRINAN. This is very defective legislation, then.

MS. RINGER. It obviously does not come into effect. But what happens with the tribunal? Can it go back and try again? Can it have a fallback it could put forward? It certainly is not clear. This does need clarification.

Mr. DRINAN. Do you think it is wise to say that, upon assuring of good cause, this committee or the Senate Judiciary Committee may waive the requirement that everything be finished within 1 year? It is most unusual.

Ms. RINGER. Yes, it is most unusual. I am not sure anyone has raised that specific question before.

Mr. DRINAN. 804 (e).

MS. RINGER. I am not sure you were here when I mentioned I would address the whole of that in a separate chapter next week, I hope. Mr. DRINAN. Thank you, Mr. Chairman.

Mr. KASTENMEIER. That concludes this morning's discussions with respect to chapter V. We thank you, Ms. Ringer, and we shall next meet on Thursday, November 6, here in this room at 10 o'clock. I am not sanguine about whether it will be the last of a series of your discussion.

MS. RINGER. May I ask, Mr. Chairman-I can get through this very much faster than I have. It depends entirely on what you want me to do.

Mr. KASTENMEIER. I would say the present pace is correct. A quicker pace would be, I am afraid, too superficial for our purposes. Therefore, I think we should continue at this pace, even if it requires more than the meeting on November 6 to complete our work.

With the House calling us to the floor, we will adjourn.

[Whereupon, at 12:15 p.m., the subcommittee recessed, to reconvene at 10 a.m. Thursday, November 6, 1975.]

THURSDAY, NOVEMBER 6, 1975

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,

AND THE ADMINISTRATION OF JUSTICE
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to notice, at 10:20 a.m., in room 2226, Rayburn House Office Building, the Honorable Robert W. Kastenmeier [chairman of the subcommittee] presiding.

Present: Representatives Kastenmeier and Railsback.

Also present: Herbert Fuchs, counsel, and Thomas E. Mooney, associate counsel.

Mr. KASTEN MEIER. The hearing will come to order.

This morning the committee again will hear from Register of Copyright in what we had hoped might be the penultimate installment of the closing testimony, but it remains to be seen whether that is achieveable. In any event, we are pleased to greet Ms. Ringer, who may take up where she left off.

TESTIMONY OF BARBARA RINGER, REGISTER OF COPYRIGHTS— Resumed

MS. RINGER. Thank you, Mr. Chairman. I think I finished the discussion of section 111 and cable television last time unless the members have any questions. If not, I will go on to section 112, which is headed. "Ephemeral Recordings," under which I would like to discuss all of the issues remaining to be discussed in connection with nonprofit broadcast.

Under that heading-this is chapter 6 of the second supplementary report draft-there are four basic issues.

The first has to do with the right of instructional broadcasting to make and distribute sound recordings of their exempted broadcasts. The second is the so-called Mathias amendment, which has been adopted by the Senate Judiciary Committee and is now section 118 of the Senate version of the bill.

The third concerns broadcasts for the blind and physically handicapped.

The fifth has to do with the practice prevalent in the broadcasting of religious programs, which involves making tapes and disks of religions broadcasts, including copyrighted music.

Mr. RAILSBACK. Is that fourth or fifth?

Ms. RINGER. This is the fourth. The first is the Bavh amendment on instructional broadcasting tapes. The second is the Mathias amendment, compulsory license. The third is broadcasting for the blind and

physically handicapped. The fourth is the music of a religious nature tapes.

I just wanted to try to set this framework around this discussion. I will take each one of these up separately, and perhaps the simplest thing to do would be to have the questioning after each segment because they are pretty discrete.

The first which was known, but is no longer known, the Bayh amendment is discussed on pages 3 to 8 of chapter 6. It does have a history which is traced there, and I think I can summarize it rather simply. Ephemeral broadcast tapes are traditional in the broadcast industry, both in this country and abroad. The term "ephemeral recordings" is a very well known one, and in effect, it is sort of an understanding or fair use type of exemption which allows a licensed broadcaster or commercial broadcaster, or a broadcaster in Europe that takes licenses for copyrighted material to make a recording, now almost always a tape, for the purpose of simplifying this broadcasting procedure. In other words, it has a license. It is understood the broadcaster should have the right to make one tape, which will allow it to broadcast or rebroadcast because of time zone problems and that sort of thing, and then destroy it after it has served its purpose. It is almost always one tape, almost always a rather short period. Six months is not uncommon.

When you get to ITV, you have a different situation. You do not have a license in the first place. The broadcasts themselves are exempted in the second place. The tapes are shopped around, as the practice has emerged over the last 15 years or so, and in the absence of an actual electronically connected network of instructional broadcasters, the tapes of these in-school broadcasts are shopped around from instructional broadcaster to instructional broadcaster, are kept for quite a long time, and are reused.

Let me run down the history of this, which has gone through seven phases already. First, the bill back in the 1960's treated unlicensed ITV and licensed commercial broadcasting tapes the same way. They allowed one tape for 6 months, to be kept for 6 months and then destroyed.

Second, ITV was singled out; a distinction was drawn in section 112 between commercial licensed broadcasters and instructional broadcasters, and two tapes were allowed in the latter case, and they were allowed to be kept for 1 year. I am not going into the refinements on this, but essentially it was two tapes for 1 year. Then when the bill got to the House floor in April of 1967, the instructional broadcasters, the public broadcasting representatives were successful in geeting all the restrictions knocked out completely. No limit as to the number of tapes or the length of time they would be kept.

Mr. KASTEN MEIER. May I interrupt because I do not recall myself this refers exclusively to audiovisual tapes and not sound recordings only. Is that correct?

Ms. RINGER. It could include sound recordings. I think the basic Mr. KASTEN MEIER. Does the same thing apply to sound recordings only?

Ms. RINGER. That is right. Actually, the whole concept of ephemeral recording grew up when there was not any television. As you recall

I have forgotten the phrase that was used in the old days of radio-"this is electrical recording," or something like that, as announced on the radio then. I do not think any distinction has been drawn in principle.

But we are really, as a practical matter, talking about videotape.. This is where the issue lies. The Senate took the bill over from the House at this point, and in 1969 when the subcommittee reported the bill, it put a limit back on the number and the time, but raised it substantially from the House committee's limits. The Senate limits at that point were 12 tapes for years.

Then in 1974, when the bill went through the Senate and passed on September 9, the 12 and 5 were raised to 30 and 7. I might say, in passing, that 7 does have a sort of magic meaning copyright law. I have never understood quite why, but it is interesting to see. You usually come down to 7 somewhere along the line.

At the end of the Senate process, when the bill was on the floor, an amendment that had been offered by Senator Bayh to take the restrictions off again was discussed, and the feeling that is reflected in the debate was that this was not being rejected, but the consideration of it was being postponed because it was submitted too late. However, when the Senate came back to the bill in 1975, the Bayh amendment was not pressed. It was not introduced, and I am told, although I have not any personal knowledge of this, that Senator Bayh has decided not to put it forward again. So the bill was reported by the full Senate Judiciary Committee on October 7 with the 30 tapes and 7-year limit in it, and on this point I have been asked by Senator McClellan to comment, and I use as my comments in this report pretty much what I wrote to him on January 31, 1975.

The Copyright Office adheres to the position that some limitation is essential, and the 30 copies should be ample to facilitate the activities of nonprofit organizations. The circulation of as many as 30 copies, itself, presents some danger to creators since it is extremely difficult to insure that unauthorized copies are not made.

But-and there is nothing magic about the 7-year cutoff-but I believe a limitation on the period of copies, that the copies or phonorecords may be held and used, is eminently sound. In other words, the Copyright Office is endorsing the 30-copy, 7-year limitation on the theory that you have to have some limitation, and that seems to be a viable one, although it may be a little excessive.

Now, if it is agreeable, I would like to stop for questions here, or if you would rather I go on and finish the chapter, as you wish.

Mr. KASTENMEIER. Thank you. Yes; superficially, it would appear that 30 copies, 7 years would seem to be practically not a limitation, although as you point out, Mr. Aleinikoff says, it is still sufficiently restrictive to prevent practical application of this exemption through the rapidly changing electronic world of American education.

Let us make it clear precisely what he conceives of there. In what respect might practical occurrence be restricted?

Ms. RINGER. I think there are cases now where they are.

Mr. KASTEN MEIER. Where the network requires more than 30 copies? Ms. RINGER. These are actually tape networks; that is the term that is used, and they may very well use more than 30 in some cases,

but there has to be a limitation somewhere, and as I tried to bring out here, you just keep raising the figures on and on. You have to reach a point at which you stop.

Mr. KASTENMEIER. Is the 7 years thought to be restrictive?

Ms. RINGER. Aside from its mystical significance, I do not think it is anything more than a compromise.

Mr. KASTEN METER. It is almost like a short term of copyright itself with a quarter of the first renewal term, first term.

Mr. RAILSBACK. May I inquire as to how all of this works? Can you explain to me how an instructional broadcaster shifts these things

around?

MS. RINGER. I think these situations vary. Now, we are talking only about the sort of thing that children receive in their classrooms or with some exceptions to this, the sort of things that are exempted under section 110(2). I think you have a teacher who goes into a studio and teaches a class with audiovisual aids of one sort or another, and this is videotaped and is put on the tube in various ways, and is sent around through the mail or express company type of thing. Mr. RAILSBACK. Thank you.

Mr. KASTEN MEIER. This is, of course, distinguished from public

television.

Ms. RINGER. Yes; I am coming to that now. This is quite different. Mr. KASTEN MEIER. This is the definition of "for instructional purposes." You may continue.

MS. RINGER. Thank you. The next issue is a very live one; I think it is one of the most important questions you will have to consider because of the fact you are now presented, or likely to be presented, with a Senate amendment of rather sweeping scope and significance.

The Mathias amendment, so-called, is discussed on pages 8 to 21 of my report, chapter 6. What I deal with mostly there is an effort to trace the legislative history, first of the instructional broadcasting exemption in 110(2) and the reason why there is no exemption or other provision dealing with public broadcasting in section 110. itself, which is the basic provision dealing with the limitations on performing rights.

I think I might start with the quotation at the top of page 9, which is from the 1965 Supplementary Report of the Register, as to why, what were then somewhat embryonic public broadcasting activities were not exempted:

The bill imposes no blanket for profit limitation on the right of public performance. In view of the recent upsurge in the number and importance of nonprofit performances-this was in 1965-particularly nonprofit broadcasts reaching huge audiences, we have concluded that a present blanket exemption for nonprofit broadcasting has become. too broad in its application to the new conditions of today, and that it would involve serious dangers to the authors' rights if continued into the future.

In other words, we favored dropping the for-profit limitation with respect to public, noninstructional broadcasting of a nonprofit nature. This was more or less accepted by the subcommittee, I think. The history of this would bear out that this basic conclusion is not really disputed, that nonprofit broadcasting of a public nature should not