ment Music copyright holders seem to be doing very well under the present 2 cent rate Overall payments, and payments per tune, have more than doubled in the last 10 years. There appears to be no economic justification for the increase established in Section 115. To support this position, the recording industry has submitted full profit and lows data. The music publishers, on the other hand, have not The public interest is being well served at the present rate There is no monopoly on music, and musical compositions are readily available for recording Those were Congress" objectives in establishing the compulsory licensing system and the 2 cent rate This position is supported by the Consumer Federation of America, the nation's largest consumer organization; the American Federation of Musicians; the American Federation of Television and Radio Artists; and the Recording Industry Association of America. Each of these organizations has communicated its views to the committee As you may know, the Senate Judiciary Committee voted to reduce the royalties set in the Senate bill back to the 21% cents, or 1 cent per minute of playing time. This is a step in the right direction. My second request involves an omission from the general revision bill HR 2223 does not provide a performance royalty for those who create sound recordings. Simple equity says it should Mr. Danielson of California, and a number of our colleagues, have introduced separate legislation to provide for a performance right and royalty to the musicians, artists and record producers Who create recordings (HR_5345) A sound recording is the result of the cooperative efforts of artists, musicians, composers and the record producer. Under the 1900 copyright law the publisher composer is paid a performance royalty when a broadcaster plays a record containing the composer's tune. The rest of the creative team is paid nothing As the general revision bill now stands, the sound recording is the only eops righted creative work for which a royalty will not be paid when it is rformed by others for profit If sound recordings had been popilar in 1900 this would not have happened This inequity should be changed by this Congress The performance royalty provision is advocșted by the American Federation of Maseratis, the AFL C10, the American Federation of Television and Radio Artists, the Council of Professional Employees Actors' Equity, the National Endowment for the Arts, the Associated Council of the Arts the Copyright office the Recording Industry Association of America ahid the Section on Patent Trademark and Copyright Law of the American Bar Asso faħjeti My third point concerns the importance of amending Section 301(b) of the revision bill to insure that Congress does not in advertet fly preempt the laws of 32 states including Blinobe/w),ch now ontlaw the piracy of sound record nga As you know federal law protects sotand record nas produced after þöru mry 15 1972 Protection of recordings issued earlier is left to the states The Department of Justice has reconifer dedi wuch an amendmetit beci se nif Its concern that the present largʻiage could be misconstrued to preet pt wichi wate laws. This can be clarified by the inclusion of a new subsection (4) to Section 301 Chi as follows 704) Notind recordings fixed prior to February 15 1972 * The Senate Judiciary Comiti ¡ffee un intn.ously ad qfed this change My concern with these matters stets from tue fact that Chcsgo in the busn for mans performing artists and working nousterats for whom record? ga provide Important en juoyment opporturat es 41 ongo is also the hôte of me of a If Bafione w major recording evtpanies. Pronogrvu The and p*?y in alm. 1th Jorfant in other parts of 1. mois 1ere are my or record?g tarafi Hon. THOMAS F. RAILSBACK, CONGRESS OF THE UNITED STATES HOUSE OF REPRESENTATTOTS Washington, D.C., October 3, 19": Subcommittee on Courts, Civil Liberties, and the Administration of Jurm DEAR TOM: Mr. William E. Scarbrough, the Vice President and Get% Manager of WNYR/WEZO in Rochester, has written me of his concerts regim ing measures which would result in payment of royalties to performing arts and record companies for air play of records by broadcasters. Mr. Scarbrough's letter is a good one and I wonder if it could be made a par of the Subcommittee's hearings on the subject. Very truly yours, Hon. BARBER CONABLE, Jr.. Rayburn Building, Washington, D.C. BARBER B. CONAble. Jt MALRITE OF NEW YORK, INC. DEAR CONGRESSMAN CONABLE: Senator Hugh Scott and Representative George Danielson have introduced in the 94th Congress bills to require paymer royalties to performing artists and record companies for air play of records by broadcasters and other users. I find it unbelievable that the Senate and House of Representatives #, t even consider such a measure, and let there be no mistake, we oppure surs legislation on the basis of principle as well as for financial reasons. Artists, composers, musicians, etc. and record companies can attribute the enormous amounts of money paid for their services by the public to, fire and foremost-RADIO! The radio industry daily spends hours exposing their protaf to the masses and without charge to them. If there must be legislation. I KURZYST performers and record companies pay the broadcast industry! Talent and pridam without exposure have no value. Broadcasters are responsible for their suY YAG we have in effect "made them"! My personal experience over nineteen years in this business is that record companies spend very little money advertising their product. Of those me spent, more by far is spent in print advertising than through the very me, that shapes the appeal of their product--RADIO! Why? Radio expomers. [Dr product FREE. Record companies beat a path to broadcaster's doors w‚'b Des material, demonstrating its appeal, selling the broadcaster on the value and appeal of the artist. The performers send letters, make phone calls about test material and most of them are very friendly, UNTIL they become popular and are in such demand for appearances and concerts that they become unfogrtaje unreachable and inaccessible ... unless there is a “buck" involved. Te broadcaster accepts this as part of the process even though we know they were "made" by the industry. While the broadcast industry continues to grow, radio's profit margin in particular has continued a downward slide over the past ten years Totai ra! industry revenues for 1973 are estimated at 1.5 billion dollars. The record a dustry, on the other hand, is growing much faster; its revettes soared ! 49% during the 1968-73 period and were estimated by RIAA to have rea-teed 2017 billion dollars by 1973. We now pay rights fees for music used on our station to ASCAP, BMI, and SESAC. To require additional compensation te recording artists and record companies from the revenues of broadcasters cannot be justified and must not be legislated. Any assumption that all broadcast tere nues are derived from a service of playing musical recording is totaly erste ous. At WNYR and WEZO, large amounts of time are invested in program tå ingredients such as news sports, publie affairs, public service announcementk weather information, special programing features about our country individ a* the local community and area, and we must invest substantially in strong - f** personalities who identify with our community and contribute substarts 1 to generating revenues--yet this proposed legislation assumes that all our reve nues come about because of musie Adopting this principle would be an open invitation to any number of grija serving a function in the performance and recording of broadcast ma’erit; le seek royalty fees. With that principle once established. I find absolutely no comfort in the fact that the proposed legislation provides for a fee schedule that would be subject to review by an arbitration panel two years after enactment. This is not a matter of legislation for a crumbling, broadbased, far-reaching industry that will "punish” the American people. This legislation will amount to legalized robbery, if enacted, and I strongly urge you to take a vigorous negafive position on this preposterous record royalty legislation. Sincerely. WILLIAM E. Scarbrough, Vice President and General Manager, WNYR/WEZO. OCTOBER 17, 1975. Hon ROBERT W KASTEN MEIER, DEAR MR. CHAIRMAN · On behalf of the Ad Hoc Committee on Copyright Law Revision, a group of 41 educational organizations interested in HR 2223, the Copyright Reform bill, I am pleased to forward to you the attached resolution adopted by the Committee on October 15, 1975 We would welcome the opportunity to discuss the issues raised in our resolu tion with you or your staff Very truly yours, SHELDON ELLIOT STEINBACH, Chairman, Ad Hoc Committee on Copyright Law Revingn RESOLUTION. ADOPTED BY THE Ad Hoc Committra on Ocтoma 15, 1975 The Ad Hoc Committee on Copyright Law Revision proposes to the Congress that HR 2223, the copyright law revision bill, and the accompanying report, should be amended as follows. (1) There should be a limited educational exemption for non profit educational and research purposes, as already submitted to the House Subcommittee (2) At the very least, the Ad Hoc Committee beneves that the not profit educa tional and scholarly con.manity requires the following amendments and changes c) The Committee's report on the bill shonid state that so far as bon profit educational and scholarly uses are concerned section 107 is not merely a statement of present law because if is the intent of the Congress that there be a different standard for non commercial educational and scholarly uses under section 107 from the standard apt lied to con mercial uses of such copy rigüted materials. As the Register of Copyrights has recommetided, the non commercial character of non profit educational and scholarly uses “should weigh heavily in fair use decisions. This legislative intention should be force funy and cieariy met forth in the Committee « report A clearinghouse is not a proper requirement because it will ultimately mean the destruction of fair use xby In partic war the Committees report abonid clearly indicate that (1) section 107 authorizes muitipie copies of excerpts and short whole works for non profit educational and scholaris purjemen and (ii) the bill rejects any distinction between face to face teaching and transmissions for non profit education and moholarstep within the class Toom setting (e). The burden of proof in matters of fair use should rest as a matter of law on the copyright proprietor and not on the non profit educational or sch-lariy use? idi Matutory damages for innocent infringement by educators and scholars in hon profit uses abould be waived mandatorily. The not, int, we nee of such use shall be determined only by a court (e) Puration of copyright shou'd be on the present basis of a limited itatial term of 25 years pitis a renewal term of 25 or 45 years In addition the Ad H - Comnim, few supports the pomită id taken by cly the ubratianın fər alle til ag ser tam, los and (2) the instructional and putize broadcasters for amending section 111 (te) mtal melding secfi •n 11 Re: H.R. 2223. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS Hon. ROBERT W. KASTEN MEIER, DEAR CONGRESSMAN KASTEN MEIER: In the course of its hearings on HR your Subcommittee did not touch upon a subject that was, from 1931 ust. 1 recently, an established part of our copyright law-the obligations of estr ments using background music in the form of radio broadcasts over louisesä ers. . For over four decades, on the authority of Buck v. Jewell-LaSalle Realty fr 283 U.S. 191 (1931), ASCAP licensed establishments performing muse wa originated as radio broadcast transmissions when loudspeakers were used to fr ther transmit the music to the public. This was done on an even-handed and zet form basis throughout the country. By 1973, this licensing extended to 519<t establishments, resulting in total gross revenues to ASCAP's members of $27008 annually. As a matter of policy, ASCAP did not attempt to license the estab lishments which used only a single radio receiver apparatus of the kind monly used in the home. It was felt that such establishments, which were gen erally of the "Mom and Pop" type of small business, did not use muse to sură commercial advantage that licensing would be warranted, even though ter mit de infringements of copyright might be occurring. When your Subcommittee considered copyright revision legislation (HR 20 in 1967, it codified both the Jewell-LaSalle decision and ASCAP's policy IL. See tion 110(5) of the bill, which is identical to Section 110(5) of HR 223 14' Section reads: "§ 110. Limitations on exclusive rights; Exemption of certain performances and displays "Notwithstanding the provisions of section 106, the following are not infringe ments of copyright: “(5) communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless : "(A) a direct charge is made to see or hear the transmission, or "(B) the transmission thus received is further transmitted to the public Your report on the bill (H. Rep. No. 83, 90th Cong., 1st Sess, 1967) expia...ed the genesis of this provision. It said: "MERE RECEPTION IN PUBLIC "Unlike the other clauses of section 110, clause (5) is not to any extent a counterpart of the "for profit” limitation of the present stature. It applies for per formances and displays of all types of works, and its purpose is to exen på fàm, copy right liability anyone who merely turns on, in a public place, an ord," aty radio or television receiving apparatus of a kind commonly sold to members. { the public for private use The main effect of this exemption would be to ai the use of ordinary radios and television sets for the incidental en'erta retrof patrons in small business or professional establishments such as taverns counter, hairdressers, dry cleaner, doctors' offices, and the like. The clxuse has nothing to do with community antenna operations, and there is no intent in ta exempt performances in large commercial establishments, such as bus ters supermarkets, factories, or department stores, where broadcasts are tratst fed to substantial audiences by means of loudspeakers covering a wide area. The et emption would also be denied in any case where the audience is charged directly to see or hear the transmission The basic rationale of this clause is that the secondary use of the trinene sion by turning on an ordinary receiver in public is so remote and minimal no further liability should be imposed. In the vast majority of these esses 51 royalties are collected today, and the committee believes that the even should be made explicit in the statute Some fears have been expressed flat tech nical improvements in a 'single receiving apparatus of a kind cotumonly used ; private homes" might some day lead to abuse of this exemption, but the exhauft does not feel that this remote possibility justifies making vast numbers of air a business and professional people guilty of technical infringements cat p. 481 The report further explained, in its discussion of the definitions of “perform." "display," "publicly," and "transmit" that the bill was intended to define such uses as performances". The report said; "Under the definitions of "perform," "display," "publicly," and "transmit" now in section 101, the concepts of public performance and public display cover not only the initial rendition or showing, but also any further act by which that rendition or showing is transmitted or communicated to the public. Thus, for example: a singer is performing when he sings a song; a broadcasting network is performing when it transmits his performance (whether simultaneously or from_records); a local broadcaster is performing when it transmits the network broadcast, a community antenna service is performing when it retransmits the broadcast to its subscribers; and any individual is performing whenever he plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set. Although any act by which the initial performance or display is transmitted, repeated, or made to recur would itself be a ""performance" or "display" under the bill, it would not be actionable as an infringement unless it were done "publicly,” as defined in section 101 Certain other performances and displays, in addition to those that are "private," are exempted or given qualified copyright control under sections 107 through 116” cat p. 27) In 1973. in the normal course of its licensing activity, ASCAP offered to license George Alken, who owned several fast food restaurants in Pittsburgh, and who used radio broadensts over several loudspeakers as background music in his establishments Mr. Aiken repeatedly refused the Society s licetise and ASCAP brought suit against Mr Aiken in the name of its members. Whose compositions had been performed, on two counts of copyright infringement After trial, the District Court found for the copyright proprietors, Licentieth Century Muse Corp ▼ Asken, 356 F.Supp. 271 (WD Pa 1973) However, the Third Circuit reversed the trial court judgment, 500 F 2d 127 (1974), and on June 17, 1975, the Supreme Court affirmed the Third Circuit's decision, 429 US 121, 43 USLW 4790 by a vote of 6 2 1 (Justice Blackmun concurring in result only, and Chief Justice Burger and Justice Douglas dissentinga The Court principally relied upon its previous decisions in Fortnightly Corp v United Artsata, 392 1 8.390 (1968) and Teleprompter Corp v. CB8, 415 US 394 (194) Those enses held that cable television systems did not perform ́under the 1909 Copyright Act because they more closely resembled the pass,ve viewing audience than the active broadcaster The Court analogized between the acts of much CATV systems and those of Aiken, notwithstanding many differences between the two uses. As you know however cable television does perform” under HR-2223 Therefore the main rationale of the Arken ense Would not exist under the copyright revisions bill even using the Court a logge without relying on the express language of § 110(5), Aiken would perform because a CAIV system would “perform " In addition, the Court felt that holding that Aiken "performed" would result In an unenforceable and inequitable resuit On the unenforceability of such a decision the Court said One has only to consider the countless business establishments in this country with radio or television sets on their premises bars and beauty whipm cafeterian and car washes, dentists offices and drive ins to realize the total futility of any even handed effort on the part of copyright holders to lievtise eveli a substantial percentage of them " 1431 ST WATANI2) However, while the Court in a footnote, alluded to ASCAP ́s podes of hot requiring a Boetie from establishments using only a sit gle h te type revvAET It did not take into account the fact 11 at tront estafado ends of the type tên Flootieed rfeo tasee out}y fua! fv[4s uf fus! "T?use €s?a! 2. W e l'ere bas from liability under † 110×5) of HR 2223 for the satte reason that ASCAP had An Chief Justice. Hurger wad it. t. disserit A ken བུ་མོཟི་ཞེས་པོ༔ བུད་* པན་ |