Broadcasting (Oct 1931-Dec 1932)

copyrighted works which chiefly concern the broadcaster are musical compositions. Stations vary in the proportion of music used in their programs, but he estimated that an average of 60 to 70 per cent of a station's hours of operation are taken up with music and that a full-time station will broadcast between 100 and 200 musical compositions a day. A large proportion of these are copyrighted, he pointed out. Interpretations which have been placed on the present copyright act by the courts, which have held that a station which broadcasts a copyrighted musical composition without permission of the owner is liable for infringement, were reviewed by Mr. Caldwell. The American Society, he charged, is attempting to settle by itself certain questions not decided in the courts "in the form of the license agreement which it imposes on the broadcaster." Points Out Pitfalls ASSERTING that the automatic copyright provision has many "pitfalls for the innocent infringer," he declared that unintentional violation of a copyright in radio can result, under the present law, in suits against not only the station or network but hotels, restaurants, barber shops, drug stores and other units which permit that program to reach the listening public over a receiving set in their establishment. "This sort of case," Mr. Caldwell said, "leads us to advocate the principle which we have come to call the single performance principle. We urge that the man who has no control over what music is played and who cannot possibly protect himself against infringement, no matter what precautions he takes and no matter how many license fees he pays, should not be held liable under sound copyright legislation. It seems unsound to us to say that the hotel proprietor who operates a radio receiving set is 'performing' the musical compositions which happen to be transmitted from some broadcasting station, or to say that a station in Washington, D. C, temporarily hooked up to a network, is performing a composition which it receives by wire and which is really being performed at the studio of a key station of a chain in New York. "Let all responsibility and liabilities rest with the person originating or controlling the original performance, but let all others be protected. The copyright owner is not injured by such a principle." Damages for innocent infringement, now fixed at a minimum of $250 for each performance, should be reduced "to correspond somewhere near to the damage actually suffered by the copyright owner," the NAB counsel argued. This statutory provision, he asserted, "gives a combination of copyright owners power to accumulate vast claims for damages against a broadcaster or hotel proprietor." "In the case of innocent infringement (particularly where there has been no copyright notice or registration) there should be no damages at all, and there should be adequate provision against the cumulating of statutory damages out of all proportion to the actual Gist of Caldwell Copyright Proposals 1. A trustworthy and practicable means by which copyrighted works can be distinguished from works that are in the public domain. 2. Protect'on against penalties, particularly lor innocent infringement. This neans : (a) That tie minimum damage clause should either be made to cormpond with the actual danages suffered or be eliminated and penalties, as distinguished from damages, should be payable to the U. S. Government, not to private parties. (b) That the single-performance principle should be recog nized, so that only the person originating the performance will be liable and no person who does not have control over what music will be played can be held. 3. Protection against abuses of power on the part of combinations of copyright owners. 4. If the author's so-called moral right is to be recognized, protection against the exercise of it against the usual incidents of broadcasting. 5. That ordinary commercial phonograph records shall not be given copyright protection as such. 6. Protection of broadcast programs from piracy. injury. In other wtrds, damages should be damages aid not penalties. Penalties should go to the United States Government. I do not know of any other Federal statute which gives private parties the right to collect penalties from other private parties such as does the present Copyright Act." This minimum penalty clause, together with the provision for attorney's fees, "is one of the cornerstones of the power which the American Society has exercised over broadcasting stations, hotels, restaurants and others," declared Mr. Caldwell. It is the means by which an unscrupulous lawye: can make a living out of innocenL. infringements. It is a club by wnich organizations such as the American Society force stations not only to pay license fees but to help the Society collect fees from others.1' Invading the inner operations of the Society, Mr. Caldwell declared that the Music Publishers Protective Association has its offices in the same quarters as the Society, has in part the same directors and soon will have the same executive as the Society. He referred, apparently, to E. Claude Mills, one of the Society's founders, who has recently resigned as president of Radio Music Co., NBC subsidiary, to rejoin the Society. Chairman Sirovich at this point declared that a Society official had denied to him that there was any affiliation between the ASCAP and the Protective Association. He asked Mr. Caldwell to be present when the Society officials testified Feb. 26. Phonograph Copyright THE PROTECTIVE Association, Mr. Caldwell continued, has retained control over recorded music, such as phonograph records. "Under the Copyright Act as it now stands there is a fixed royalty of two cents a record," he explained. "I understand, however, that the association makes certain claims about what we call electritranscriptions. * * * I understand that the publishers claim that not only must the manufacturer of these records pay a royalty to the publishers, the amount of which I do not know, but he must also pay something like 50 cents a record for each time that a broadcasting station broadcasts each record. The station must also, of course, pay a license fee to the American Society covering, in most cases, the very same music that is on the record. I am told that the plan is not to permit any station to broadcast a record manufactured by a concern which is not paying these royalties to the publishers." Mr. Caldwell recounted the history of the ASCAP, declaring that it now represents about -95 music publishers and several hundred composers and authors. The Society claims control of about 90 per cent of all popular music, a lesser amount of classical music and about 100 per cent of production music. Whatever the percentage, he said, a station cannot go through the usual day's programs which the public .wants without using music controlled by the Society. Monopoly Charged COMPETITION in musical composition is destroyed when any large proportion of copyright owners are permitted to pool their interests in one combination, especially when that combination has control of enough music as practically to have a veto power on the continued operation of a station. In other words, he said, copyrighted music is one of the most important raw materials from which a broadcast program is made. Yet control over a very large percentage of this raw material is lodged in one organization— a condition which is not permitted ly law in most industries, or, where it is, the combination is subject to severe restrictions and regulation. One of the greatest abuses inflicted by the Society upon broadcasters is a lack of uniformity in rates, Mr. Caldwell said. The broadcaster has no assurance as to the cost of operating his business next month or next year, he asserted. In the past the Society has entered into license agreements for one year with most stations and has consistently refused longer licenses or to permit the industry to know its future plans. "At the end of each year it has been the practice of the Society to impose enormous increases of royalties on the licensees, who are virtually powerless to oppose these increases since there is no equality of bargaining power. The station must either take the agreement or refuse it on the Society's terms and there is no room for negotiations." Right now, he continued, instead of a yearly basis, practically all stations are on a month-to-month basis. He pointed out that the Society announced last November that on or before Jan. 1, 1932, it planned to announce new terms with existing licensees to become (Continued on page 2U) Operators in Code No Longer Needed ABOLITION of the continuous watch requirement on the international distress frequency of 500 kc. by broadcasting stations, ordered by the Radio Commission as a part of the new Rules and Regulations, which became effective Feb. 1, also eliminates the necessity of having unlimited class operators in the control room of stations, according to William D. Terrell, director of the Radio Division, Department of Commerce. Mr. Terrell explained that formerly it was mandatory for stations assigned between 550 and 1,000 kc. to have operators on duty at all times who held unlimited class licenses, which require a knowledge of code. Stations operating between 1,000 and 1,500 kc. were not required to keep on duty operators conversant with code, because watches on the distress frequency were not essential. Thus, declared Mr. Terrell, limited class operators may be employed by all stations with the abolition of the listening watch, since by so doing the only necessity for a knowledge of code on the part of broadcast station operators has been eliminated. The new regulation specifies, however, that if developments show a need for distress frequency watches in certain sections of the country, particular stations may be designated by the Commission to maintain such watches. TitleRegistering Bureau For Programs Favored A CENTRAL bureau for the registration of titles for radio presentations is favored by Clark Kinnaird, director of WINS, New York. Such a bureau, which would be operated possibly as a branch of the National Association of Broadcasters, is needed, he feels, because of frequent conflicts between stations and performers over title rights. WINS recently discovered that the titles of two of its programs, "Musical Memories" and "The Answer Man," had been used previously by other broadcasters. Mr. Kinnaird also found that three titles originated by the New York station had been innocently duplicated by stations in other sections of the country. NBC-WMAQ Deal AMONG the items listed under the liabilities column of the Chicago Daily News' consolidated balance sheet for 1931, iust reported, is one for $576,687 listed as "deferred credit (portion of proceeds from leasing and operating arrangement of radio station deferred over period from Jan. 1, 1932, to Oct. 31, 1934"). When NBC took over 50 per cent ownership and control of the station on Nov. 1, 1931, the consideration was said to be around $600,000. KNOW New Call KNOW ARE the new letters of KUT, at Austin, Tex., a full time 100 watter on 1,500 kc. Page 6 BROADCASTING • March 1, 1932 /