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have any complete outright exemption. The nonprofit public broadcasters were not really urging that. Their urgings for an exemption were directed to instructional television.
On the other hand, I think it is important to recognize that there is a not-for-profit limitation in the present law. The extent to which that applies to them is not all that clear. Unquestionably, some of their activities are exempted; others may not be, but, in any case, there is a sweeping not-for-profit limitation in the present law with respect to performances of nondramatic works.
When the Senate subcommittee reported the 1969 bill to the full Judiciary Committee on December 10, 1969, it rejected an amendment that had been put forward in the Senate. I am reading from the bottom of page 9, “To provide a compulsorv license at regulated rates for the use of copyrighted material and the programs of public television which are intended for reception by a general audience.”
This same position was adopted by the full committee, and it was also adopted after a great deal of discussion in the intervening years by the Senate when it passed the bill in 1974. However, before passage in September of 1974, on August 19, 1974, Senator Mathias introduced an amendment that would have added a new section 118 to the bill and the test of this provision.
This is the amendment on which you had hearings last June, I beliere. It is laid out on pages 11, 12, and the top of page 13 of my report. I quote it verbatim. I will try to summarize it very briefly.
Essentially, it would create a compulsory license for public broadcasts of nondramatic literary and musical works, sound recordings, and pictorial and graphic and sculptural works. The public broadcaster would be required to make a registration or recordation of its identity.
Mr. RAILSBACK. Where are you reading?
Ms. RINGER. I am summarizing from page 11, which sets out the Mathias amendment in the form in which it was the subject of your hearings in June.
At least 1 month after the initial broadcast and at later intervals, the public broadcaster is required to record in the Copyright Office a notice stating its identity and address and so forth. That establishes the compulsory license under this proposal.
Then the public broadcaster, or as it was called, any public broadcasting organization or institution, would deposit with the Register of Copyrights at intervals in accordance with requirements that the Register is supposed to prescribe a statement of account and the total royalty fees for the period covered by the statement under clause (2) of subsection (a) of this amendment. The royalty rates under this section shall be determined by the Copyright Royalty Tribunal as reasonable royalty rates for the inclusion of nondramatic works in public television and radio broadcasts. Such royalty rates may be calculated on a per use, a per program, pro rated or annual basis as the Copyright Royalty Tribunal finds most appropriate with respect to the type of the copyrighted work and the nature of broadcast use.
In other words, the framework of a compulsory license is set out here, but practically all of the details are left either to the Register of Copyrights or to the Royalty Tribunal, including the periodicy of the reporting and accounting and the amounts of the rates as they
apply to various types of works. And as I say, there were four types of works included under the original Mathias amendment: Nondramatic literary works, nondramatic musical works, sound recordings, and graphic works. Those were the four types. They did not include audiovisual motion pictures or dramatic works, including dramatic (musical works.
Mr. KASTENMEIER. Why did they not?
Mr. KASTENMEIER. Because presently they were commonly negotiated between the parties?
Ms. RINGER. Yes. And of course, this is what you see on public television, either public television's own dramatic presentations or dramatic works or motion pictures that they have licensed from suppliers, from motion picture producers, and audiovisual producers.
Mr. KASTENMEIER. By and large, what this covers is really marginal programing material in terms of public broadcasters.
Ms. RINGER. I would not necessarily call it marginal. It is the sort of thing that goes into the audiovisual works and motion pictures that they then put on.
Mr. KASTENMEIER. Practically speaking, for which they might have difficulty obtaining clearances.
Ms. RINGER. This is certainly their argument. That is correct.
This proposal was introduced as a formal Senate amendment and was mentioned briefly, as was the Bayh amendment, at the end of the Senate debate on September 9, 1974. Although not adopted, it was not rejected either.
I am reading now from the middle of page 13. When the Senate Judiciary Subcommittee resumed its consideration of the revision bill in the 94th Congress, efforts were made to resolve the problem of public broadcasting through negotiation, and a number of meetings aimed at blanket voluntary licensing were held. A mover of this effort was the Counsel to the Senate Judiciary Subcommittee, Mr. Brennan. The Mathias amendment was not adopted by the subcommittee when it reported the bill to the full Senate Judiciary Committee on April 13, 1975. But the following statement was issued, and I have repeated it in full since it is an element in the continuing legislative history of this provision.
In effect, it recounted that, at the request of the chairman of the subcommittee, a series of meetings had been held. And I think the thrust of this is that they had held some promise. And the final paragraph read: The subcommittee will maintain its interest in obtaining a mutually satisfactory solution. The subcommittee expresses the hope that a complete agreement will shortly be reached.
The meetings--I attended them myself-tended to look like they held some promise for working this out on a voluntary basis, and I believe I even mentioned that in my opening testimony—that I hoped that this problem could be solved without having you have to consider it in a completely new provision, the compulsory license provision, now in section 118.
On July 10—I was wrong, it was July 10, 1975, that your subcommittee heard testimony on the various amendments from panels rep
resenting the various sides. I have tried to summarize this testimony on pages 14 through 17 or 18, rather. I do not think I need to read all of that here. That has been fairly recent testimony before your subcommittee.
I am now reading from page 18. Both sides of the House hearings referred to the ongoing negotiations and to some of the problems that haid been encountered, including questions of compulsory arbitration and antitrust exemptions in anticipation of the impending markup of the revision bill by the full Senate Judiciary Committee. The repre-entatives of the public broadcasting industry again pressed for adoption of the Mathias amendment, which was adopted with some changes by the full Senate Judiciary Committee as section 118 of S. 22 as reported on October 7, and I here lay out the whole text of that which does, as I say, contain some changes. The text appears on page 19 throngh the middle of 21.
And I am now reading from the middle of 21. The comparison between the 1974 and 1975 versions of the Mathias amendment discloses some changes in language and structure. There are two important substantive changes. One, I think, can be disposed of quickly. Sound recordings have been dropped completely from the bill, from the compulsory licensing system. And the second, the structure and language was changed, and let me read this. It is item 2 at the bottom of page 21. Instead of making the act of “public broadcast" subject to compulsory licensing, the new Mathias amendment grants an exemption to "a public broadcasting entity”, subject to compliance with the compulsory licensing requirement. The new “public broadcasting entity” is defined as “any licensee or permittee of a noncommercial educational broadcast station or any nonprofit institution or orgunization engaged in public broadcasting”.
The latter term, "public broadcasting,” is defined very broadly indeed. Taken literally, this change could vastly expand the scope of the amendment beyond anything discussed in the House subcommittee hearings. This has been the subject of discussion since I wrote this chapter, Mr. Chairman, and I believe that the intention was not as broad as the language would suggest. But it does bespeak the necessity for considerable revision if this provision is to be accepted.
Mr. KASTENMEIER. Practically speaking, what entities might it include that the original Mathias would not have included?
Ms. RixGER. I think probably the purpose behind this was to allow entities such as schools and academic organizations to share any compulsory license that there has been. And I'll come to this again. Briefly, there has been a suggestion during all these meetings that the assumption be sufficiently broad to permit schools to video-tape off the air public broadcasting programs like "Jenny” or “Upstairs, Downstairs”.
Vr. RAILSBACK. Other than instructional
Ms. RixgER. Well, yes, because that is what is on public broadcasting, and use it for instructional purposes, but under very restrictive circumstances. The discussions would have put limits on the time that these could be used and the purpose they could be used for and so forth. But none of this made its way into the Mathias amendment.
And I may be wrong about this, but my assumption that in very broadly defining your broadcasting entity to include permittees, the
intention was to expand this to include anybody who might want to use a public broadcasting program for a legitimate purpose. I think it went way beyond what was intended.
Mr. KASTENMEIER. If it is at all subject to compliance with the compulsory licensing requirement though, even a school would have to, for such materials, get a compulsory license.
Ms. RINGER. I would say that the language was clumsily drafted. But I think there was much concern among copyright owners that it went beyond the sort of licensed public broadcasting entities that were originally contemplated. In any case, I do not want to overstress this, Mr. Chairman, because if this provision is included, it will have to be very substantially redrafted.
I think the sponsors would agree with this. I do not think anyone is insisting on the exact language. I think what we are striving for now is some idea of what is needed and wanted so the Congress can go ahead and make its decisions.
I am now going to read from page 27, which includes my comments and recommendations on this whole matter. And I think if you will bear with me, I will read them completely because I do not think I can summarize them very effectively.
The failure of the negotiations, aimed at finding a voluntary solution to these problems, which seemed so promising at the time of the House hearings in July 1975, is to be regretted and deplored.
Now, I might say that when I wrote this, it looked like this had completely broken off, that there were going to be no further discussions and voluntary negotiations. There have been meetings since then, and I think that perhaps the discussions, at least, are going forward again. There has not been a complete failure and an agreement to go off in different directions.
Compulsory licensing has been, and should be, regarded as an extreme last resort in copyright law. Despite the expressions of blame and disappointment now being exchanged, the Copyright Office remains unconvinced that voluntary arrangements are impossible other than under the compulsion of government regulation. It is true that public broadcasting is not paying anything now, that it enjoys at least some degree of exemption with respect to completely nonprofit performances, that its budgets remain low and clearances difficult, and that it is offering to pay fair royalties in the future under a compulsory license. It has also failed so far to gain the terms it was seeking in voluntary negotiations. But to conjure up the threat of massive government-run compulsory licensing machinery in an effort to improve its bargaining position is, I believe, of questionable necessity.
A careful review of the statements made during the negotiations in various written submissions, and at the hearings, indicates that clearance of music is public broadcasting's foremost concern and that a major impediment to a voluntary solution to that problem has been the lack of a statutory antitrust exemption.
In other words, public broadcasting is seeking a single license on a voluntary basis, or, if they cannot get that, on a compulsory basis. And the various interests that are involved on the other side of the negotiations are concerned, and I think with some reason, that they may be getting beyond what the antitrust laws permit in dealing
jointly with public broadcasting on a one-to-one basis. There are three performing rights societies, and there are music publishers and agencies and so forth that are involved in the making of recording licenses in this area, and all these licensing organizations have to be involved in any kind of voluntary agreement, and they are saying they need an antitrust exemption in order to do this.
At the same time, enactment of such an exemption has implications and unforeseeable consequences beyond the current problems of public broadcasting. A compulsory license limited to nondramatic musical compositions, might, in view of the organized structure of the industry, be made to work fairly well.
In other words, if you could get an antitrust exemption, you have got enough organization and few enough entities in the field to make this a practical possibility. Certainly, the dangers in compulsory licensing of literary works are less evident in the case of music. In ot her words, we have a lot of blanket or compulsory licensing in music under one form or other already, and the restrictive problems that I find in the case of literary works are not as serious in the case of music.
Mr. RAILSBACK. May I ask you exactly how is it working now? What are the procedures? What are the problems under the current law?
Ms. Rixger. Under the current law-we are talking about music and public broadcasting--there are no licenses at all. Public broadcasting is using music and is not paying.
Mr. RAILSBACK. How about literary works?
Ms. RINGER. That is right. Let me make clear, Mr. Railsback, that the present law in sections 1(c) and 1(e) makes clear that nonprofit performances are exempt. They are not included in the exclusive rights of the copyright owner, but this does not cover nonprofit recordings that are made for broadcasting, and it also does not cover some equivocal types of public broadcasting such as the sort of thing like a "Jenny" or an "Upstairs, Downstairs” where you see Mobil on the screen and where Mobil Oil advertisers in the New York Times, "Watch Channel 13 tonight.”
Mr. RAILSBACK. But your feeling is with the development of public broadcasting, with this tremendous expansion, that now literary works, if there were compulsory licenses, could really be jeopardized as far as their copyright owners
Ms. RINGER. Yes; I feel that--what I am trying to say right now is that I think the danger to copyright owners in the field of music is not as great as it is in the whole range of literary works. This is my feeling. I try to develop that a little bit later. And perhaps we can come back to this point after you have heard me out.
I am actually about to make this point that the Copyright Office considers the dangers of an unqualified compulsory License for literary works so great and the need for it so unproven, that it could not support a copyright bill containing such a provision, including the revision bill as it was reported by the full Senate Judiciary Committee on October 7, 1975. The loss of control by authors over the use of their