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is desired for broadcasts and other transmissions going beyond those permitted under the exception the possibility for expediting clearances would be to use the procedure proposed in section 710 in the current Senate version of the bill.
This is, I am sure, quite mysterious to you because we have not gotten to that chapter yet, but chapter 7 is the Copyright Office chapter of the bill, and section 710 has been added in the Senate to permit automatic, more or less automatic, voluntary clearances for making braille and recordings by the Library of Congress for the blind as a part of the copyright registration process. It is a completely voluntary thing, but it would expedite clearances and make the whole thing rather automatic and self-operating.
I have explained this here. I think the same kind of system could be used for readings to the blind on public radio that go beyond what might be permitted under the American Council's proposal. In any event, the language of section 110(8) in the current Senate version needs substantial tightening and clarification.
This is the end of my statement on that point.
Mr. KASTENMEIER. Do we have the language of 110? This is on page 22?
Ms. Rixger. Yes, on page 22.
Mr. RAILSBACK. May I ask a question. Do you then favor the Council's new language?
Ms. Ringer. Not exactly. I think it provides the basis for a reasonable solution. I think it has a lot of qualifying language in it that is needed in order to put a provision like this into the bill.
Mr. KASTENMEIER. One of the problems that appeared at the time of the testimony at the hearing on this question was what, in fact, is a program specifically designed for-to aural handicapped audiences. And as you pointed out, would it be rendered unattractive for a general audience? Is there any discriminating way that such a broadcast could be made so that the general audience would have more interest in it? Because obviously, there is a temptation to design a program for as large an audience as you can get for the handicapped and the nonhandicapped.
Mss. RINGER. This is the problem. Mr. KASTENMEIER. That point has never really been clarified. Ms. RINGER. I honestly think that the McDaniel proposal contains a built-in answer to the problem because what the public broadcasters say is that we must entirely do this on subcarriers and maybe some cable. In other words, if the blind have special equipment, either cableequipped or equipped to receive subcarrier-subcarriers, by the way, are the sort of things like music services that you hear in supermarkets and that sort of thing, but the public cannot get it unless you want to take some sophisticated equipment and tamper with your receiving set, which most people are not going to do. They are not going to do it just to receive things for the blind. And so I think that as a practical matter, this would probably solve it, if it were limited to subcarriers.
And if I understand what the public broadcasters have been saving, there are only a few isolated cases in which they have to broadea-t on FM circuit, and in those cases, what I am saying is there is a great disposition on the part of authors and publishers to grant voluntary
licensing. But they want to be given that opportunity. They just do not want the right to be taken away from them, and they want to be able to say, “Yes, you can do it," but they are not, apparently, insisting on receiving any payment.
And I would say that they are not willing to say that we would! grant licenses in every case, and I do not blame them.
I might say, Mr. Chairman, in this context, that a recent story in the paper that I read-I think it was in one of the newsmagazines as a matter of fact-indicated that the Washington Eve, which is the public radio to the blind in Washington, has been broadcasting things that commercial broadcasting could not handle. And the two examples that were mentioned were the “Joy of Sex” and “Fear of Flying.” This is stuff that the blind would like to hear as well as the readers would like to read. It is something that is popular. But it really should not be put on the open circuit without the author's permission. I am not sure that Erica Jong would want "Fear of Flying” to be read out on AM radio in toto.
Mr. RAILSBACK. You mean it was just read over the radio? Ms. RINGER. On a subrarrier here in Washington, yes. Mr. RAILSBACK. Unedited ? Ms. RINGER. I do not know. Mr. KASTENMEIER. You say, "subcarrier.” Precisely, what are we talking about?
Ms. RINGER. I do not know the electronics of it, but you have an FM signal and apparently it is possible in most instances for physical reasons, reasons of physics, to put a subcarrier signal out under that license signal which can be received on very special equipment, and the blind are furnished this equipment by the various organizations that operate for their benefit.
Mr. RAILSBACK. What about captioned news on television where the regular ABC news is shown several hours later, but with a printed explanation continually flashed across the screen for those who cannot hear the broadcast, but anyone can watch and listen. How do you feel about this?
Ms. Ringer. I feel they should be licensed, and I think that in the cases where it is being done now, they are, and that no royalties are charged. But if you take the right away, then this can, of course, get out of hand.
I watch channel 7 news on channel 26 at 11 o'clock every night. Mr. KASTENMEIER. The caption headline presumably would not run a clearance or license-that Mr. Railsback referred to—would not require any preclearance or license. The reading of captioned headlines.
Ms. Ringer. No. This is not the reading of captioned headlines. This is the performance of Harry Reasoner's news broadcast on public television with large captions which can be read by the deaf. In other words, they see the graphics and then read what the commentator is saving in capsulized form. And I think that should he licensed.
If I may go on, the final point in this chapter is the question of ephemeral recordings of works of a religious nature. Section 112(c) first met the light of day on February 8, 1971, when Senator McClel. lan introduced S. 644, the 1971 version of the revision bill, with one minor change that has remained a part of the bill since then and was the subject of hearings in both houses before the Senate Judiciary Subcommittee on August 1, 1973, and before your committee's subcommittee on September 18, 1975. The provision was sponsored by the Association of National Religious Broadcasters, NRB, and would exempt as a form of ephermeral recording the making of a nonprofit organization of a single reproduction of a program containing nondramatic musical works "of a religious nature" for use in a single broadcast by a licensed broadcaster.
In other words, everything is single here except that they will make as many tapes of discs as there are stations carrying the broadcast. That is the way they operate. They make a tape and reproduce it in as many copies as are needed for their local broadcasters and then send them out.
This was objected to by the representative of SESAC who was also representing other performing rights societies and musical copyright owners who put the issue in slightly different terms—whether or not a religious program producer can use a piece of religious music and distribute it to approximately 4,000 radio stations without any compensation to the creator of the religious music. He argued that a payment of mechanical reproduction fees in this situation would be nominal, but to withhold it altogether would violate established trade practices and discriminate against the creators of music of a religious nature, a term he considered questionably vague.
The representatives of religious broadcasters—I am reading from the bottom of page 25—stated that religious programs are produced on tape or disc for distribution by mail of one copy only to each broadcast station carrying the program. None of the programs are prepared for profit, and the program producer either pays the station to carry the program or furnishes it free of charge. The stations have performing licenses so that the copyright owners receive compensation. Following the performance, the tape is returned or the disc is destroyed. And NRB argued that to require a second payment for the mechanical reproduction would only drive some of the copyrighted music of the air.
That is the gist of the arguments, Mr. Chairman. And on pages 32 and 33 of this chapter, I say we take no position on this basically. But I do not think it should be left at a point which seemed to emerge during the hearing which questioned whether or not this was constitutional because of the establishment of the religion clause of the Constitution. There are precedents with respect to religious services and works of a religious nature in the present law. And as for the revision bill, it seems to me unlikely that this would be considered questionable constitutionally. We are trying to find here an area of nonprofit broadcasting that should not be charged for, and it is very common in foreign laws and it exists in the present law, to exempt this genus of nonprofit broadcasting or performance from liability. I just cannot see the constitutional problem there.
On the other hand, I do not think that the Copyright Office should take a position on the substance. This is a question, I think, that should be left entirely to the Congress.
Jr. KASTENMEIER. Why do you say that?
Ms. RINGER. I think there are two special interests involved. I think Congress has to decide which way to go. When it gets down to that kind of bare question, we will duck. It is that simple.
Mr. RAILSBACK. This is the first time you have ducked.
Mr. KASTENMEIER. You take a very tough line with respect to the Senate Judiciary Committee's action with compulsory licensing for literary works. Before, you went so far as to say that the Copyright Office could not support a copyright bill containing what the Senate has contained in its bill.
Ms. RINGER. The distinction, Mr. Chairman, is very clear to me. I am not sure I am going to be able to make it clear to you. But it seems to me that that goes to the heart of the copyright law, I think, in saying that the Copyright Office opposes quite fundamentally a compulsory license that would deprive authors as a general class completely, authors of literary works completely, of any right to control the use of their works in a very major communications medium. To say that we oppose that is not to take a position between special interests on a narrow question. I think that is a very basic question, a very fundamental question.
I have no hesitation in taking a position. I do not think of authors. Mr. Chairman, as a special interest. Authors generally. I really do not. I think the organizations that represent them are special interests. But when you are talking about the basic beneficiaries of the copyright law, I do not consider that
Mr. KASTENMEIER. What about composers?
Ms. RINGER. I am saying here that the basic question whether or not a performing rights society, if you will-and I think SESAC is the only one that has made efforts to collect in this situation—whether or not they collect from the producer of a religious program, in addition to collecting from the local broadcaster that is carrying the program. This is a special interest question. And I think that the distinction is very clear to me.
When you get to a point like this, it seems to me that Congress should decide it. I have personal views on it, sort of, but I do not think it is all that important a question.
Mr. RAILSBACK. In other words, the various stations do pay for that performance. They do pay, do they not? They do not pay the mechanical royalty, however.
Ms. RINGER. Yes; but they are not paying for the making of the recording, and this is what SESAC has argued. It seems to me there is a very fundamental difference between-I might give you a little preview of some of my other testimony-I am going to duck on several other things, and perhaps that will give you some idea of how I view these things.
I think the ultimate resolution of the jukebox question, whether or not it should be $8, whether or not it should be under a Tribunal, is a special interest question which we will duck. This is something that only Congress can decide. If you want to ask me my personal views on it, I will tell you, but I do not think this is something that the Office ought to take a position on.
And the distinction there I was trying to bring out is that we think that the jukebox operators should pay. Similarly, we are not going to take a position between, for example, 212 cents and 3 cents on the mechanical. This is not, I think, the Copyright Office's role.
Mr. KASTEN MEIER. I do not see your distinction as characterizing it as a special interest. Really, all interests in this bill are, in one form or another, special interests. A few of them are so broad as to command any other term.
Ms. Ringer. Perhaps that is true, Mr. Chairman. I have tried. I have thought about this a very great deal in trying to decide how far I should go in expressing positions on this
Mr. KASTENMEIER. I do not think we should use the term "special interest" in the derogatory sense.
Ms. RINGER. Do not misunderstand me. Not at all.
Mr. KASTENMEIER. They can be distinguished from other interests so they are in fact special.
Ms. RINGER. Let me say on this that I am very concerned about what is happening to the copyright law which is aimed at I do not think anyone will deny it-protecting authors. And in that regard, I think you have to look at a very large picture, and when you come at something like the compulsory license for literary works on a medium that is the universal broadcasting medium everywhere else in the world, on nonprofit broadcasting, and you say you are going to deprive authors of the right to say what the terms are under which their works can be used, except economic ones, then you are doing something that we have never done in this country before in relation to copyright law. It seems to me that is quite a different matter from whether or not religious broadcast producers should pay SESAC rovalties.
Mr. KASTENMELER. I understand your point although I would say in terms of a colloquy on the question, that it is the interest of a literary copyright proprietor, which would be the author, whose publishing authorization is far more marginal in this sense of communication. Ile does not rely on making his money with whether his work is read in part or whole in television than really composers who rather more depend on television and broadcasting as the media for communicating their created work. While I get the principle you are expounding, I think practically speaking, I think there is a disparity really as to what the effect of this really is.
Ms. RINGER. I guess it depends on whether or not you are talking only about money or if you are talking about copyright as something more than that. And I am talking about copyright as something more.
Vr. KASTEN MEIER. On this particular question-religious programs--my recollection was--and I am not clear because we do have part of the Senate report, but I do not know whether the language is here. The question was raised that the religious program was exempted, not just religious music. It was thought implicit that the music would be religious, but as a matter of fact, it would not have to be. As I understand it, you could use a jazz piere, a classical piece, anything. It would not have to be religious music per se if it were embodied in a religious program.