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THE AUTHORS LEAGUE OF A MERICA, INC.

December *, 1973
Memorandum A to : Hon ('HARLES McC. JATHIAS, Jr.

This memorandum, submitted by the Association of American Publishers
the Authors League of America, discusses (i) the dangers to freedom of my heart
sion inherent in the compulsory licensing of literary works for public burua B
ing: (ii) the other reasons such a system should not be imposed on the wipe

d to Mmpulenry licensing. Those reasons also :

: : our joint July 10th statement to the Hous *t noua mittre. We summarize a few of ther

>;*nt law does not permit public broadcast

A literary works without the copyright on A n Dow voluntarily grant licenses for readin as the son public broadcasting at modest rates.

1e ry licensing prevents the author from d
oppo brwdrasts of his work will diminish sales, d
**Wheerisin or recording rights, or damage its
Piotrais ry licensing will deny authors and publi
8.2 probable cotupensation. Broadcasting of bool
w alk as can the performance of music. A musica

Milonga thines, on a non-exclusive basis by ma
**7 l's vate and the author's compensation are e
pod Literary works are used far less frequ
(12 lunes performed repeatedly to the same andien
1*"* , and the value of books vary widely, and

i performances.
T en-ing of literary works for broadcastin
**** pruness, and could be simplified even m

d !be Asurla "jon of American Publishers, Al
· * m.pricory licensing of literary works

ijay Tv'* Vision Degotiates on a voluntary basi 2:19 ty neluding motion pictures, plays, televi

IT or by domestic producers, and the services "","times pe r actors, technicians, etc.

pro and the other reasons discussed in our AT IR A tation of American Publishers submit

ii ndio le compulsory licensing of literary

IBV

1. THE DANGERS TO FREEDOM OF EXPRESSION
The Mathias Amendment would write into the United States (ops riet:
for the first time, the dangerous concept of a compulsory license system for *
magazine articles, newspaper columns and other literary works, As the Rre
ister of Copyrights testified in October, opposing its application to literary with

“The loss of control by authors over the use of their work in a tisa Mt D. medium of communication, and the dangers of state control and leren auf free dom of expression implícit in the proposed system would probably be true price to pay even if public broadcasting were being severely hampered log 2 legal obligation to get clearances."

Moreover, as she indicated, public broadcasting has not had any such d.. culties.

The compulsory licensing of literary works is utterly repingnant to the Firs Amendment principle that government may not compel the promise to preblish that which it chooses not to publish. In its 1974 opinion in Miami Herald Porn

('0. r. Tornillo (418 1.8. 211), the Supreme ('ourt noted that it had for years "expressed sensitivity as to whether a restriction or requirement sted.be compulsion exerted by government on a newspaper to print that slikih i z not otherwise print."

Such compulsion, said the ('ourt, is unconstitutional: It cannot "the fiend consistent with the First Amendment guarantees of a free press" (at per

Of course, the publishers and authors of books, magazines and other itenant works are entitled to the same full measure of protection under the Fint A * ment (see, for example: Time, Inc. r. Hill, 395 US 374; Bantam Birker sido ran, 37: U.S. 58; Winters t'. Ver York, 333 'S 505). And it is only praise nant to the First Amendment that government should compel an author at lisher to permit the broadcast of a book he does not choose to have brudens Such a compulsory licensing system would deprire the author of propert! against unauthorized broadcasting of portions of his work, out of currt, w! misrepresent his vietos and opinions, such a system denies him the rigtit te de cline licenses for broadcasts which may distort huis book or article

Even more dangerous, the Mathias-amendment compulsory lirising of litet ary works creates, for the first time, a dangerous prudent in the topic! A for other forms of government compulsion and auntrul ores the up of print literary works. There is no provision for compulsory licensing of literary wish the present (opyright Act, or in the other prosisjons of the Return R!

IT. CATV clause (Sec. 111) only allons the simultaneots retransmission of an u pogon the-air broadcast-an antennae function. It does not allos a ble sistemu to by a literary work, or recording of it, to procure or originate a program Te J: E Box and Record-license clauses (Seo's. 113 and 116) deal only with t amoye musical compitions, and only those previously rounded with the regio?:2:1 Owner's consent.

Publie television can easily and adequately acquire rights to Henry Wirks under voluntary arrangements. Ils interest in obtaining an a ute powers propriation des not justify the establishment of a mantent P 118 ' for literary works which completely rjolates the wpirit of the First Artist and constitutes se dangerous a prevent for further encroachmet.' A. preme (ourt has emphasized, this is not an area for ad her balancing Tir dar kem of government ampulsion on the who create and phih Besa"! makazine are timerrat a threat The ('ourt has refused to folrrite par le pat threats to freedom of expr1011, ning of the dangerous prenents and eration would rate.

The A88ociation oj

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THE AUTHORS LEAGUE

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bymetry. B to Hon. CHARLES MOC. MATHIAS, Jr.

f ilm of American Publishers and the Au * Y ag of literary works for public broad

4 ruerpanying statement. However, if s e Ariation and League believe that cer dne 3. Iust be added to the statute, to prote

*** Widbe broadcast without their permis *1.**.Vigie and Asociating of American I

pinjone he made in Sec. 118 and n try irencing the enacted. Bos, Waling for Literary Workx. Reasonable ror

kiind un tte kame mass-licensing basis 18. As Del in ont arropanring memorandu

! it lima di acts of a musical work, which 4

. IDormally based on surveye

by laruadkastere to licensing sou * **

on thant basis. However the * ** Kaloy, or listen to several broadca ***** Piritas right deiw-nds on its merits, i

Personalile fee for broadcasts of 2. pap antle usual fe patterns for fari

linals be willing to acrept. mo is essential that the Act permit notkut merts, to maintain a separ ' ' ist millor various types of puw " Min n er of a valuable and uni

A' u ku bi broadcasts.

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In our previous statements to the Subavunmitten on l'atents. Traitor and Consright, we hare dintt**d the many reasons why literary works shug'

be subjected to compulsory licensing. Those reasons also are set forth in considerable detail in our joint July 10th statement to the House Judiciary Committee's Copyright Subcommittee. We sumina rize a few of them, brietiy:

(1) The present law does not permit public broadcasters to produce recorded programs using literary works without the copyright owner's permission.

(ii) Authors now voluntarily grant licenses for readings from books and other literary works on public broadcasting at modest rates.

(iii) Compulsory licensing prevents the author from declining a license where he believes broadcasts of his work will diminish sales, destroy or impair motion picture or television or recording rights, or damage its artistic integrity.

(iv) Compulsory licensing will deny authors and publishers the opportunity to negotiate reasonable compensation. Broadcasting of books cannot be licensed on a mass-basis, as can the performance of music. A musical composition can be performed countless times, on a non-exclusive basis by many different artists and orchestras. Ity value and the author's compensation are equated with the number of performances. Literary works are used far less frequently in broadcasting. A book cannot be performed repeatedly to the same andiences (few books are read more than onee) ; and the value of books vary widely, and cannot be equated with the number of performances.

(v) The licensing of literary works for broadcasting on a voluntary basis is now a simple process, and could be simplified even more under arrangements proposed by the Association of American Publishers, Authors League and other groups, making compulsory licensing of literary works totally unnecessary.

(vi) Public Television negotiates on a roluntary basis for all of its programming elements including motion pictures, plays, television programs prodnced by British TV or by domestic producers, and the services of its professional prodters, directors, writers, actors, technicians, ete.

For these and the other reasons discussed in our statements, the Authors League and Association of American Publishers submit there is no justification for establishing the compulsory licensing of literary works for public broadcasting.

IRWIN KARP. Esq..

The Authors League.

CHARLES LIEB, Esq..
The Association of American Publishers.

THE AUTHORS LEAGUE OF AMERICA, INC.,

December 8, 1975. Memorandum B to: Hon. CHARLES MOC. MATHIAS, Jr.

The Association of American Publishers and the Authors League oppose the compulsory licensing of literary works for public broadcasting, for reasons sum. marized in our accompanying statement. However, if such a compulsory system is enacted, the Association and League believe that certain essential safeguards and clarifications must be added to the statute, to protect authors and publishers whose works would be broadcast withont their permission.

The Authors League and Association of American Publishers therefore urge that the following revisions he made in Sec. 118 and (hapter 8 of the Revision Bill, should compulsory licensing be enacted.

1. Rate-Joking for Literary Works. Reasonable royalties for literary works cannot be established on the same mass-licensing basis as rates for broadcasting of music. As noted in our accompanying memorandum, an individual author's compensation for broadcasts of a musical work, which is performed repeatedly to the same audiences, is normally based on surveyed performances; and the lump-sum payments by broadcasters to licensing Societies are distributed to composers and audiences on that basis. However the saine audience will not read a book repeatedly, or listen to several broadeasts of it. The valne of a literary work's broadcast rights depends on its merits, its success and its author's reputation. Thus, the reasonable fee for broadcasts of some works will be substuntially higher than the usual fre patterns for various categories of writings that authors might ordinarily be willing to accept.

It is, consequently, essential that the Act permit the author or publisher of a literary work who so elects, to maintain a separate proceeding before the Tribunal to establish rate for various types of public broadcasts of his work. Otherwise, the copyright owner of a valuable and unique work would be grossly undercompensated for such broadcasts.

57-786-76-pt. 3—-53

Boxect dixclosures hare made it quite clear tha 5 genre le commercial broadcasting and ac

it is an article which appeared in the Ver 1 % 1973 with the headline "TV STAT LINCE ITS CHANNEL 13". The article, by

d out that public broadcasting uses p ! walions for program grants, somew Dalbredears 14e ratings as sales tools"

munter-programming the technique un
- prigrains where they are likely to

2. The Author's Right to Prohibit ['sex. We believe the damaging mot of compulsory licensing make it essential that literary works of * to such expropriation. Allowing an author to refuse uses is not sutten vent all of these consequences; particularly the dangerous threat to irrele expression inherent in the drastic expansion of the government's pup? the author's work. However, if the compulsory licensing my mten literary works, we submit that at a minimum, any author should .

B to refuse permission for a particular tise within one moutb alter be the swritten notice from a public broadcaster or pruducer of intentka fire the work. Moreover, an author should be prutteel, in lieu of iodidad of refusal, to periodically file in the copyright Ottice notice of kiss , public broadcasting use of specified works So filing fees should be cd. " such notices.

3. Reporting of Use8. Every public broadcaster should be requird ! periodic reports with the Copyright Office, with a copy for the copyrii.* listing each broadcast of a copyrighted work, the type of program, (1 $. I. royalty rate and other pertinent information. Without berts

: owner could not determine whether the appropriate royalty rate had tertain to specific broadcasts or whether royalty ( putations were ruitert.

4. Payment of Royalties. Royalty parmeutn should be made to the owner. If payments are made to the copyright Other each broade asir! allocate the particular amounts due to each copright owner wire 12 broadcasts

5. Administrative Erpenses. No portion of the expenses incurred Copyright Otlice in receiving or disburning royalties should i cha" ! authors and publishers, who are opposed to compulsors licensing, surt u*** would diminish or obliterate their royalties.

6. Votice of Lose. Public broadcasters lould live required to give an ***,* • publisher notice of the production and broadcasting of programs using his 149 works, within 30 days thereof.

7. Inception of Royalty Obligations. Public hroad, asters shond to pay royalties for all uses of literary works made from and after the * date of the Revision Bill, at the rates subsequentir tired by the Tr::***

8. Enforcement. A public broadcaster'failure to tile report or 11 false reports, should cancel its compulsory license; the copyright o r permitted to recover unpaid royalties and penalties, and damage for at

He a d that since 40% of the funds come fi 3 e teipTINOB % form of sponsorship", the **. tainain a full-time department to work

** sin gams. Ritghly equivalent to a **LK. in fact, etuplare spreral former netwo

i pe Farben an article appearing in the Noir le** 18 by the heading "$1.5 MILLIO

ES WIET". Thus, it appears that WXET 1 ¢ay for onts which exceeded budget to

16.. al my ments to personnel because

LI thank this incident in itself destro Se disasard by public broadcasters that thes

* Labins of music, although they

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1918 tot the mind that on June 13, 1975 I wi

0 % atlaidi fequesting relevant ecol Parts iguals public broadcasters for the

at the 14tpiration for Public Broadcasting ***

o n qui-gustonmental agencies, I hav pe mye med. Pasirlare I had the courtesy of an ackn ** (**overruns probably explains w

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notantly submit this informat * Paindlus the public broadcaster t., the B pinter of Coisrights.

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9. Judicial Rerieic. The various public broadcauting rosalties and importers set by the Tribunal must be subject to full judicial res fe*, rather than the rowly limited review provided in Sec. 809.

Irway Kamp. E .

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BROAD INT Vrusc. Ivr.

Xrir York, J.), Vogember 15 19** Re: Public Broadcasting. Hon. ROBERT WKANTE VMEIFR. Chairman, 8mbrommittee on ('ourts, Ciril L. hertire, and the Administrata *

Jnalice, Rayburn Il & Office Building, Hushington, DC. Drir (HAIRMAN KASTYNMER: On July 10, 1975, the Segheresentieren ! testimony on the pro**** Mathias Almendruent from all in*pum sem! *** I aprun on behalf of Broadcast Juwie, Inc. in of initiat to the a! ! ! It is not my purs to rent any of the arguments aduannat ta' tl' i * ever. I wish to roll the Saxlmwimmittanttention to whatent Infrika! " I ryypse te included in the news of heariu

Ramntir, the Rrister of (op right the laturable Briar R!****** ***

mtatement in which whe, among other things, **A rizre the art , 3 ranche publie broadcaster in Aras of the amendment Point 1 go .* **

e arrument that publie tornada terutninot attend the p r: 1.* 1 reueet BMI ATX other 10 ir 14-inc ornnirnik : Punt ** is ainsnind by publie susisort and donation>: it does not supruit anys exploitation."

{From the Sew York Times,
TS STATION CHANES MONEY AND RA

(By Les Bros
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3. S iti trim the cattitive at
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A FORM OF talpinim, they pointed on

thes rll us how well de humil vice president of

Recent disclosures hare made it quite clear that public broadcasting does in fact, operate like commercial broadcasting and actively engages in commercial exploitation.

I enclose an article which appeared in the New York Times dated Jonday, Xovember 3, 1975 with the headline "TV STATION CHASES MONEY AND RATINGS-IT'S CHANNEL 13". The article, by the distinguished reporter Les Brown, pointed out that public broadcasting user ratings "to strengthen its app peals to corporations for program grants, somewhat in the manner that commercial broadcasters use ratings as sales tools". He also revealed that they engage in counter-programming "the technique used by commercial broadcasters of wheduling programs where they are likely to fare best against the competition".

He reported that since 40% of the funds come from private corporations which is “public television's form of sponsorship", there is the revelation that "the station maintains a full-time department to work at we'uring corporate backing for proposed programs. Roughly equivalent to a commercial station's sales de partment, it, in fact, employs several former network salesmen."

I also enclose an article appearing in the New York Times on Thurular. November 18, under the heading “$1.5 MILLION ADAMS SAGA OVERRI V SIIAKES WNET". Thus, it appears that W.NET had no difficulty in finding $1.5 million to pay for costs which exceeded budget for one series, Much of this went into additional payments to personnel because of delays in programming and scheduling. I think this incident in itself destross the credibility of the argument advanced by public broadcasters that they cannot afford to pay the composers and publishers of music, although they can pay everyone else involved in their productions,

I note for the record that on June 23, 1975 I wrote to Counsel for public broadcasting (copy attached) requesting relevant economic data which should include the costs incurred by public broadcasters for their productions. Despite the fact that the Corporation for Public Broadcasting and the Public Broadcasting System are quasi-governmental agencies, I have not received the information requested, nor have I had the courtesy of an acknowledgement of my request. The article on the cost overruns probably explains why I did not and will not receive the information.

Although I reluctantly submit this information, I believe that it is relevant to those issues raised by the public broadcasters and, specifically, the argument summarized by the Register of Copyrights. Sincerely,

EDWARD M. CRAMER. (From the New York Times, Nov. 3, 1975.) TV STATION CHASES MONEY AND RATINGS--It's CHAN.VEL 13

(By Les Brown)

As the noncommercial system, publie television is often thought to hare a natural exemption from the competitive and economic drives that rule other stations on the dial. But officials of public station WNET/13 here way that they are no less preoccupied with money and ratings than commercial broadcasters are.although in a quite different way.

The concern with money is inesinpable for a station that lacks a stable financial base and whose operating budget this year exceeds $ 30 million. But ratings the demon of commercial television--would seem possible to ignore for a station that was not striving to reach the largest possible audience.

In a wide-ranging interview with editors and reporters of The New York Times last week, the principal executives of WNET explained why they do choose to care about the Vielsen audience data and the station's competitive standing among other channels here.

A FORM OF FEEDBACK For public television, they pointed out, ratings represent a form of audience feedback.

"On one level, they tell us how well we're executing what we want to do." said Robert Kotlowitz, vice president of prograins for WNET. "Otherwise, we're

(By Les Brown) I te titreime payments to crews working again po me as is maintaining historical authenticity, int 1 and to create a $1.5 million cost overrun is

17rales." WXET's ambitious Bicentennial 18 records has revealed.

PTI is at the heart of a controversy surroun A

d the administration of John Jay Iselin,

left with convincing ourselves that we have made all the right decisions for

THEY SPOKE TOO SOON audience."

Mr. Kotlowitz noted that in the case of "Monty Python's Flying Ciru Cynning the controversy at the station over the d ratings revealed to the station that it was reaching a significant number you can wause of cost over-runs on the ambitious dr teen-agers for the first time and indicated how that segment of the abi

Adama (bronides." Mr. Iselin said, "We were might be continually served. In the case of the “Bach B Minor Man

3 runs we thought we had the money for." got a surprising rating, "we made a discovery of what our publie wants 13 E l that it was not uncommon for major motic scheduled more serious music," Mr. Kotlowitz said.

84.. d their budgets. John Jay Iselin, president of WNET, justified the use of ratings is termes

us at WXET are that "Adams Chronicles" 1 cost-efficiency, saying "they give us & way of determining how well we're te 1 ee brodert. When this was discovered late in the funds we raise from the public."

M eent withdrew the proposed nightly program He said also that they were used by the station to strengthen its appeal to

ceples "Behind the Lines" and cut back other corporations for program grants, somewhat in the manner that comes

- why the price for the over-runs had to be pa broacasters use ratings as sales tools.

1: * ** Mr. lvlin explained that they were prod

. 16 that those were the only funds the station NOT DIRECTLY COMPETITIVE

Swi fur "Adamus Chronicles." Noting that WNET does not want to be directly competitire with our

[From the New York Times, Nov. 13, TV, Mr. Iselin said the station had set a goal of reaching 10 percent of the ta audience with its programming. "If we were to achieve 20 percent, I think

$1.6 MILLION ADAMS SAGA OVERRUN SHA could be accused of diluting the mix," he said.

(Last Tuesday, the PBS presentation of "The Incredible Machine," a Natal Geographic special, drew 36 percent of the local audience.)

Mr. Iselin and Mr. Kotlowitz conceded that they also engaged in cott programming, the technique practiced by commercial broadcasters of wobedek programs where they are likely to fare best against the competition. Partly 23 involves studying the ratings of other stations for vulnerable spots

"Monty Python" was moved from Sunday nights to Thursdays as a programming measure, they said, although acknowledging that it prored on successful maneuver. They also told of being tempted to schedule "tertain Downstairs" directly opposite the CBS version of that British series "Bars Hill."

Asked it WXET was interested in carrying the reruns of "Beacon HIL** that the series has been canceled, Mr. Kotlowitz stated. "Not even t' i en offered free"

In discussing how program decisions are made at the public station, Mr. Kotlowitz, a novelist and former editor of Harper's magazine, said that we tially "one honors one's instincts for what is interesting and consequential the extent that our funds permit."

"Ours will always be a precarious venture because the quest for stable finan. ing never ends," Mr. Iselia remarked.

"It costs us $1.7 million a year just to turn on the transmitter," he went & "Programs we'd like to put on the air get set aside because we can't find the funds for them. Too many people just don't understand that televisionpublic television is very expensive."

Mr. Iselin indicated that to produce a simple 30-minute studio disedia connertion with a film (such as was done last week for "Last Grave at baza") costs around $8,000.

Ethan Allen Hitchcock, chairman of the Educational Bmadrasting (oppunt tion, parent of WNET, offered a breakdown of the funding sources that showed that the station's share of the annual Federal appropriation for publle treet sion will cover only 5 percent of its expenss this year. The state's appropriation will cover 10 percent.

THE LARGEST PORTION A large portion of the operational and discretionary program funds ens troca public subscription, but the greatest part-40 percent-ts raised from print corporations for program underwriting, publie television's form of us

This has here an area of much importance that the station maintains full-time departinent to work at Kernring corporate backing for proposed in grama Roughly equivalent to a commercial station's sales departmeal 8,5 fact, employs wreml former network salesmen.

Mr. Hitchcock, who has been werbending the station's capital fund ante for its move into tba Henry Hindson Hotel where the clis's pahir trleri rente is being established, and that $1 million remained to be raised of te $10 miftion needed

He mid the corporation's board has approved. in principle, the batning of the new senter for the pullanthropic donor who would cover the $4 million balance

g. It is curring at a time when the statio
".* *year. While other cultural instituti
pol met eeney's financial crisis or of the uncertai
35*33} to amassing record public contributions
w ater-trate than $30 million for the current

ima are also on the rise, indicating growin
e r a period when accolades might normally be

sua fire by a body of critics, spurred on $3* **s are charming him with concentrating on

til public affairs programming and ch

tunds Meh rper of Channel 13 with National Ec T

o nth a local station and a major

wirler system. This duality has bee T h e fast, when priorities have seemed t

e banhaha erupted in September, wher en *9. r that bad not yet gone into produ

- and made outbacks in others in * Alan Chronicles" the thronuclen" WSET admittedly i W tale a ries as dramatically engrossin pris often as the most celebrated prod

EXPENSES JUMPE PENA. . 13-1eek series for PBS that Potreban Adams throngh 150 year

Irun the National Endowment for tapod the Atlantie Rirbield Corporation.

a en wertuin was not forecast durin

U p In cherk, and why there Sa n dts critics of WNET: The came to be spent over and above

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