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work in a major mass communications medium, and the dangers of state control and loss of freedom of expression implicit in the proposed system, would probably be too high a price to pay even if public broadcasting were being severely hampered by the legal obligation to get clearances. But, aside from the problem of reading to the blind, discussed below, it cannot be said that the practical problems of public broadcasters in getting clearances for reading literary works, have been illustrated convincingly, much less proved.
It has been suggested that the problem of loss of control might be solved-and I am talking now about literary works-might be solved by requiring a notice to be filed, perhaps 2 weeks or 1 month in advance, by the public broadcaster on the copyright owner-presumably at the last address shown in the records of the Copyright Office.
This suggestion has been thrown out informally, thus providing a right of refusal. And there is a precedent for this in the bill-section 110(4)—where you can go out and do something if the copyright owner does not object in advance.
We have serious doubts about both the practicability or the necessity of such a system, though obviously it would be preferable to a raw compulsory license.
And the problem of pictorial, graphic, and sculptural works, includ. ing photographs. This practical problem strikes us as a great deal more real than that of literary works. Here, the public broadcasters needs are obviously demonstrable, and the difficulties involved in individual clearances more evident. They do use a lot of graphics, and they are not paying, and they are not getting clearance. I am not sure that there is any organized way of trying to get clearances.
Mr. RAILSBACK. Why is it more difficult?
Vs. RINGER. The reason is very simple. There are just no organized agencies besides a few. There is the Bettman Archive and Magnum Pictures and that sort of thing, but aside from agencies of that sort which control very large masses of pictures and you sometimes do see credit lines in magazines next to a reprinted photograph, for example—but there is no organized licensing arrangement, unlike literary works, where you do have at least a publisher you can write to that normally has a rights and permissions department that is set up to handle this sort of thing. You do not have that kind of structure in the graphic area. That is not to say that it could not be created, but it just does not exist now.
Should a compulsory license be established for music, its extension to graphics might be justified in theory. A problem here is that there is no organizational representative to speak for artists and photographers. And my point here is that they really have not been consulted, that their works are probably being discussed and dealt with without anyone really being able to speak for them in these hearings or anywhere else. In fairness, their rights should not be swept aside in the interest of expediency and business convenience. It bothers me a great deal that we are blithely saving you are going to be subject to a compulsory license when nobody here has spoken to this from what I know personally to be a great huge body of artists and photographers out there who would be very disturbed about this if it happened.
Mr. RAILSBACK. But at the same time, as I understand it, they are going to be paying royalties, and those royalties will be determined by a tribunal. That is the other side of it.
Ms. Ringer. Yes; this is true. But my point generally in this chapter, in this section, is that a compulsory license is not just some simple little thing. You are giving up very major rights. And you have got to have somebody out there fighting for you.
What I am really saying is that I am perfectly well aware that public broadcasting has problems in this area and is not paying now. It is not getting clearances. And it is in the respectful position of now saying, yes, we want to pay, and we will pay through a compulsory license.
What I am saying is that there is nobody on the other side to say yes or no. They just have not been heard. This bothers me a good deal, although I am not justifying the present situation one way or the other.
Let me summarize this. This is point (f) on page 29. The Copyright Office is not convinced that any compulsory license is necessary for public broadcasting. But if Congress considers that some sort of compulsory licensing is needed, we believe it should be confined to music and that the Mathias amendment should be completely rewritten to make its vague and ambiguous language conform to the language and content of the revision bill, to insure that it goes no further than intended or needed, and to provide for a workable and fair administratire framework. The rights to perform and to make and distribute recorded programs should be limited to bona fide noncommercial elucational broadcasters and should be carefully circumscribed in the statute itself.
I make the point at the top of page 30 concerning schools making videotape recordings and say that since this is a section 107 problem, it should be dealt with in this context. I have since had second thoughts about this. Mr. Chairman, since I wrote this chapter, and I am inclined to think that this should probably be dealt with in the bill, that if my interpretation of the intention behind the definition of public broadcasting entity is correct, then this question of taping in the schools should be addressed somewhere in this section and not floating in midair and voluntary arrangements. This is assuming that there is a 118 in the House bill."
One possible way of dealing with the problem of pictorial, graphic, and sculptural works might be to provide a temporary moratorium. This is in an effort to try to address your question, Mr. Railsback. During the moratorium, public broadcasters would be free to use graphics, but only if they made reports on the works used, and the nature and frequency of their use, to the Copyright Office. And I say the Copyright Office because I do not know who else would be able to assimilate the information.
The Office could be charged with the responsibility to report its findings to the congressional committees by a certain date, together with recommendations for legislative action. It could be hope that, out of this process, a nationwide clearinghouse arrangement with standard fees and blanket licensing agreements covering graphics, could be evolved.
What I am suggesting here must be obvious to you, is to establish a little bit of a compulsion to get organizations set up and to get some ideas of what fees ought to be paid and who they ought to be paid to. I think this is an important problem, and I am not sure that I think this is a better way of approaching it than just putting it into a compulsory licensing system and hoping for the best. But I will leave it at that.
The Copyright Office opposition to compulsory licensing schemes involving primary uses of literary works, even if combined with advance notice and right of refusal, is deep seated. At the same time, we recognize the advantages in centralized blanket licensing on a voluntary basis for all concerned.
Nr. KASTENMEIER. Let me interrupt here because here again, this repeats your position laid out on page 28, section c. I take it this is what you have in mind, is primary uses of nondramatic literary works.
Ms. RINGER. That is right.
Mr. KASTENMEIER. How is it that public television would use nondramatic literary works?
Ms. RINGER. Actually, they use quite a lot in children's broadcasting. I think there is quite a lot of reading of children's books on children's programs.
Mr. KASTEN MEIER. A chapter a day, that kind of thing.
Ms. RINGER. Or maybe even a whole book. Children's books are short, and I think there are cases where a great deal of the text, if not the whole text, is read out. There are occasions where on something like "Book Beat," which is a book review interview program I have heard, and this has been used as an example. A whole chapter, or very large excerpts from the chapter were read out. There are examples of it; they do not want to make the clearances, but to set up a whole compulsory license just for this kind of little use on television which does not seem to be that important.
There are cases in public radio where very substantial amounts are read and not just for the blind and not on subcarriers. These are cases where large segments of novels, for example, are read out.
Mr. KASTENMEIER. I am not familiar, personally, with anything television uses, like the readings of literary works.
Vs. RINGER. I am not sure they are concerned about lengthy readings, Mr. Chairman. I think they are concerned about readings, period, and readings of political writings and that sort of thing.
Nr. KASTENMEIER. That which would not be fair, you said, under any circumstances.
Ms. Ringer. There is a line somewhere, and I would say that in fair use in public broadcasting on open-circuit nationwide or any completely open context, the amount that could be used would not be huge.
Mr. KASTEN MEIER. That is what I am wondering. Inherently, I do not see where the abuse could take place so that the author would really have a damage to-possibly to the control of his work-but not in any other regard.
Ms. RINGER. You are saying economic advantage. And I do not think there is a great deal of money involved in this issue. I think there is a huge principle involved in this issue. I have not mentioned poetrychildren's books and poetry
Jr. RAILSBACK. What about cookbooks? Do they not read cookbooks?
Ms. RINGER. They may, Mr. Railsback. If they do, I am unaware of it, but they may.
Actually, I am not just repeating my point here at the bottom of page 30, Mr. Chairman. I am actually going to make another point, which is that if public broadcasting has a problem here, it is really using a cannon to kill a flea, to bring out the compulsory licensing mechanisın to solve it. We recognize that centralized, blanket licensing on a voluntary basis has advantages for all concerned. We also recognize that negotiations toward this end are not going to occur automatically and need to be encouraged if not induced.
The discussions that have been held under the auspices of the Senate Judiciary Subcommittee would not have taken place without the efforts of that sucbommittee to have them take place.
We do not favor a moratorium in the literary area, but perhaps this same effect could be achieved by limiting liability for statutory-or perhaps even actual damages for a stated period, during which the patterns of use and the practical needs of copyright owners and users could be studied in some depth.
As already indicated, whatever its substantive content, the language and structure of the Mathias amendment needs thorough revision.
In addition, if changes in the duties and functions of the Copyright Rovalty Tribunal are contemplated as a result of actions on the Mathias amendment in either House, a careful review of the substantive and procedural impact of these changes on the workings of the other compulsory licensing provisions in the bill should be undertaken at the same time.
In other words, the Mathias amendment, section 118 of the Senate bill as it now stands is not really workable as a compulsory license, and a great many procedural questions involving the Copyright Royalty Tribunal need to be considered in that context. If you are going to do that, the changes that you might make in order to accommodate the Mathias amendment could have very radical effects on the working of other compulsory licensing that we have been discussing. And I think this all needs to be carefully considered and integrated. And that is the end of my comments on the Mathias amendment.
Shall I go on?
Ms. Ringer. The next point is the side product of this, the question of broadcasting for the blind and physically handicapped. And the discussion of this starts on page 22. A byproduct of the negotiations aimed at voluntary licensing for public broadcasting was a proposal to exempt the reading of literary works and broadcasts to the blind from copyright liability. No agreement on this issue could be reached during negotiations. So on July 3, 1975, the Senate Judiciary Subcommittee reported S. 22 to the full committee with a new subsection adding the following performing rights exemption in section 110.
Now you do not have this before you in your bill because this was added by the Senate Judiciary Subcommittee in July. This would be completely exempt under section 110: performance of a literary work in the course of a broadcast service specifically designed for broadcast
on noncommercial educational radio and television stations to a print or aural handicapped audience.
I am not going to lambast this too thoroughly, but it is pretty loosely drafted, and I do not think many people would argue that it should stand as it is written. I would point out among other things that it refers to literary works which would include plays. It does not say nondramatic, so it could include any dramatic work. That is only one of its several problems.
Your subcommittee heard testimony on this on September 18, 1975 separate from the public broadcasting testimony which had been in July. While reserving the position of his organization on the language in which it is expressed, the representative of the Association of American Publishers endorsed the principle of a limited exemption for broadcasting of copyrighted works to the blind and deaf. A representative of the Authors League, however, opposed the position adopted by the Senate subcommittee as well as another proposal which had been put forth by the American Foundation for the Blind. And I think it is important enough to have included at the top of page 23 because it lay the basis for a later proposal which I think may, possibly provide a solution to the problem.
The authors' opposition was based partly on the broad and ambiguous wording of the proposals and on the lack of demonstrated need for exemption. It was pointed out that the division for the blind and physically handicapped at the Library of Congress obtains royaltyfree clearances expeditiously for a large number of braille and recorded editions of copyrighted works.
The representatives of public radio supported the Senate subcommittee amendment and urged that a corresponding right to make ephemeral recordings in this situation be written into section 112. That point, I think, should not be forgotten. Mr. Chairman, obviously this stuif is done from tape, and the section that is written into 110 in the Senate version does not deal with the question of recordings. Obviously, that is another technical defect in this whole thing.
On October 7, 1975, the full Senate Judiciary Committee reported S. 22 without any change in the new section 110 (8). Meanwhile, however, Durward K. McDaniel, national representative of the American Council of the Blind, wrote to Chairman Kastenmeier presenting a revised text of the Council's earlier proposal, this time limiting the exemption to performance “on any subsidiary radio carrier authority or cable transmission."
In other words, the idea is to have an exemption, make it clear what you are talking about, limit it as appropriate to make it a practical matter, and at the same time, not allow this to go on in public AM radio. There are a few cases where there are not subcarriers available in the area being covered and where they are using public radio. But that means that you can turn your car radio on and listen to this stuff being read out without any royalties and without any control or licensing of any sort.
On this whole point-I will turn now to page 31-I say the recent proposal of the American Council of the Blind appears to form the basis for a reasonable compromise based on limiting the exemption to subcarriers or restricted cable facilities. Where royalty-free license