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Full text of "Copyright law revision : hearings before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, House of Representatives, Ninety-fourth Congress, first session, on H.R. 2223 .."

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COPYRIGHT LAW REVISION 

HEARINGS ^« "^'"''^ 



BEFORE THE 



SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, 
AND THE ADMINISTRATION OF JUSTICE 

OF THE 

COMMITTEE ON THE JUDICIARY 
HOUSE OF REPRESENTATIVES 

NINETY-FOURTH CONGRESS 

FIRST SESSION 
ON 

H.R. 2223 

COPYRIGHT LAW REVISION 



MAY 7, ,S, 14, 15; JUNE 3, 5, 11. 12 : JT'LY 10, 17. 23 ; SEPTEMBER 11, 
18 ; OCTOBER 9, 30 ; NOVEMBER 6, 20 ; AND DECEMBER 4, 1975 



Serial No. 36 



''"*\a.^^^^'''^'''"'J^ 




Printed for the use of the Committee on the Judiciary 

U.S. GOVERNMENT PRINTING OFFICE 
57-786 O WASHINGTON : 1976 

NORTHEASTERN UNIVERSITY SCHOOL of UW UBRARY 



COMMITTEE ON THE JUDICIARY 

PETER W. RODINO, JR.. New Jersey, Chairman 
JACK BROOKS, Texas EDWARD HUTCHINSON, Michigan 

ROBERT W. KASTENMEIER, Wisconsin ROBERT McCLORY, Illinois 
DON EDWARDS, California TOM RAILSBACK, Illinois 

WILLIAM L. HUNGATE, Missouri CHARLES E. WIGGINS, California 

JOHN CONYERS, JR., Michigan HAMILTON FISH, Jr., New York 

JOSHUA BILBERG, Pennsylvania M. CALDWELL BUTLER, Virginia 

WALTER FLOWERS, Alabama WILLIAM S. COHEN, Maine 

JAMES R. MANN, South Carolina CARLOS J. MOORHEAD, California 

PAUL S. SARBANES, Maryland JOHN M. ASHBROOK, Ohio 

JOHN F. SEIBERLING, Ohio HENRY J. HYDE, Illinois 

GEORGE E. DANIELSON, California THOMAS N. KINDNESS, Ohio 

ROBERT F. DRINAN, Massachusetts 
BARBARA JORDAN, Texas 
RAY THORNTON, Arkansas 
RLIZABETH HOLTZMAN, New York 
EDWARD MEZVINSKY, Iowa 
HERMAN BADILLO, New York 
ROMANO L. MAZZOLI, Kentucky 
EDWARD W. PATTISON, New York 
CHRISTOPHER J. DODD, Connecticut 
WILLIAM J. HUGHES, New Jersey 
MARTIN A. RUSSO, Illinois 

Earl C. Dudley, Jr., General Counsel 
Garner J. Cline, Staff Director 

Herbert Fuchs, Counsel 

William p. Shattuck, Counsel 

Alan A. Parker, Counsel 

James F. Falco, Counsel 

Maurice A. Barboza, Counsel 

Thomas W. Hutchison, Counsel 

Arthur P. Endres, Jr., Counsel 

Daniel L. Cohen, Counsel 

Franklin G. Polk, Counsel 

Thomas E. Mooney, Counsel 

Alexander B. Cook, Counsel 

Coonstantine J. GekaSj Consel 

Alan F. Coffey, Jr., Counsel 

Kenneth N. Klee, Counsel 

Raymond V. Smietanka, Counsel 



Subcommittee on Courts, Civil Liberties, and the Administration of Justice 

ROBERT W. KASTENMEIER, Wisconsin, Chairman 
GEORGE E. DANIELSON, California TOM RAILSBACK, Illinois 

ROBERT F. DRINAN, Massachusetts CHARLES E. WIGGINS, California 

HERMAN BADILLO, New York 
EDWARD W. PATTISON, New York ^ 

Herbert FCchs, Counsel 
Bruce A. Lehman^ Counsel 

— Gail P. Higgins, Counsel 

^^ Timothy A. Boggs, Professional Staff Member 

* * Thomas E. Mooney, Associate Counsel 



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CONTENTS 



Hearings held on — ^ase 

May 7, 1975 1 

May 8, 1975 - 119 

May 14, 1975 183 

May 15, 1975 267 

June 3, 1975 373 

June 5, 1975 433 

June 11, 1975 483 

June 12, 1975 683 

July 10, 1975 857 

July 17, 1975 991 

July 23, 1975 1297 

September 11, 1975 1393 

September 18, 1975 1663 

October 9, 1975 1779 

October 30, 1975 1807 

November 6, 1975 1835 

November 20, 1975 1865 

December 4, 1975 1951 

Text of — «a 

H.R. 2223 3 

H.R. 4965 87 

H.R. 5345 80 

S. 1361 857 

Witnesses : 

Abrams, George, Alphabets, Inc 1014 

Prepared statement 1027 

AleinikoflF, Eugene N., counsel to the Agency for Instructional Tele- 
vision and Other Educational Television Agencies 859 

Prepared statement 860 

Allen, Nicholas E., counsel, Music Operators of America 421 

Barco, George J., general counsel, Pennsylvania Cable Television 

Association 656 

Prepared statement 661 

Baumgarten, Jon, Macmillan, Inc., and Harcourt Brace and 

Jovanovich 978 

Bender, Ivan R., on behalf of the Educational Media Producers 

Council 978 

Prepared statement 

Bikel, Theodore, president. Actors Equity Association 1298 

Prepared statement 1352 

Biller, Joel W., Secretary for Commercial Affairs and Business 

Activities, Department of State 119 

Binns, J. Warren, Jr., administrator of Instructional Television & 

Radio and Educational Products Dissemination 859 

Prepared statement 882 

Blake, Eubie, American Guild of Authors and Composers 1648 

Bradley, Rex A., chairman, National Cable Television Association.. 483 

Prepared statement 501 

Bresnan, William J., president. Cable Television Division of Tele- 
prompter Corp 667 

Prepared statement 679 

Brylawski, E. Fulton, chairman, Copyright Committee, Bar Associa- 
tion of the District of Columbia 459 

Prepared statement 460 

(in) 



rv 

Witnesses — Continued Page 

Cairns, Robert W., executive director, American Chemical Society 229 

Prepared statement 231 

Cameron, Prof. Rondo, author 467 

Prepared statement 473 

Chapin, Edward W., counsel. Broadcast Music, Inc 907 

Ciancimino, Albert F., counsel, SESAC, Inc 398, 1738 

Prepared statement 397, 1738 

Cohen, Edwin G., executive director of the Agency Instructional 

Television 859 

Prepared statement 880 

Cohen, John, member of the board of directors. National Association 

of Recording Merchandisers, Inc 1571 

Prepared statement 1571 

Collins, Fred, Jr., president. Music Operators of America 410 

Cooper, Edward, vice president. Motion Picture Association of 

America 1731 

Cooper, Robert, executive secretary. Community Antenna Television 

Association 613 

Prepared statement 624 

Copland, Aaron, composer , 374 

Prepared statement 377 

Coppedge, John O., chairman. National Collegiate Athletic Associa- 
tion, Cable Television Association, Cable Television Association 

Subcommittee 820 

Prepared statement 817 

Cornils, Wayne, chairman. Small Market Radio Committee, National 

Association of Broadcasters 1366 

Cramer, Edward M., president. Broadcast Music, Inc 907 

Davis, Louis F. (Chip), composer 396 

Prepared statement 395 

Dew, Walter, Advertising Typographers Association 1142 

Prepared statement 1212 

Ebenstein, Daniel, on behalf of Leonard Storch Enterprises, Inc 1142 

Prepared statement 1144 

Evans, Robert V., vice president and general counsel, CBS, Inc 684, 765 

Prepared statement 683, 764 

Farmer, Ernest R., president, Shawnee Press, Inc., Delaware Water 

Gap, Pa 344 

Prepared statement 342 

Feist, Leonard, executive vice president. National Music Publishers 

Association 1 579 

Fitzpatrick, James, general counsel, Recording Industry Association 

of America 1298, 1393 

Ford, Frederick W., counsel. Ad Hoc Committee of Concerned Cable 

Television Operators for a Fair Copyright Law 627 

Prepared statement 636 

Freitag, Bernard J., teacher. Council Rock High School, New Town, 

Pa 276 

Gastel, Joseph, copyright attorney 1014 

Prepared statement 1019 

Glover, John D., director, Cambridge Research Institute 1401 

Prepared statement - 1402 

Goldbloom, Irwin, Deputy Assistant Attorney General, Civil Division, 

Department of Justice 127 

Prepared statement 149 

Golodner, Jack, executive secretary. Council of AFL-CIO Unions for 

Professional Employees 1 298 

Gortikov, Stanley, president. Recording Industry Association of 

America, Inc 1298, 1393 

Prepared statement 1304, 1394 

Gramuglia, Thomas, Independent Record & Tape Association of 

America 1 238 

Prepared statement 1279 

Hamlisch, Marvin, American Guild of Authors and Composers 1646 



Witnesses — Continued 

Hardy, Ashton R., General Counsel, Federal Communications Com- Page 

mission 433 

Prepared statement 444 

Heilman, David, EC Tape Service 1238 

Hightower, John, chairman, Advocates for the Arts 1298 

Prepared statement 1339 

Kitchens, Howard B., executive director, Association for Educational 

Communications & Technology 288 

Prepared statement 279 

Hochberg, Philip R., on behalf of Don V. Ruck, vice president. Na- 
tional Hockey League 810 

Prepared statement 812 

Hogan, Robert F., executive secretary. National Council of Teachers 

of English 292 

Prepared statement 290 

Holmes, Lee, president, GuamCable TV Co 1717 

Prepared statement 1719 

Hoopes, Townsend, president. Association of American Publishers 237 

Prepared statement 238, 1702 

Howard, William K., president, Hollywood Film Council 700 

Prepared statement 698 

Kaminstein, Abraham L., former Register of Copyrights, Library of 

Congress 91 

Kapp, Michael, president, Warner Special Products 1570 

Karp, Irwin, counsel for the Authors League of America, Inc 216 

354, 907, 1704 

Prepared statement 220, 348, 910, 1705, 1764 

Keller, Thomas J., Acting General Counsel, Office of Telecommuni- 
cations Policy, Executive Office of the President 447 

Prepared statement 457 

Kiser, David B., associate, Cambridge Research Institute 1401 

Korman, Bernard, general counsel, American Society of Composers, 

Authors & Publishers 374, 907 

Krelstein, Harold, chairman. Radio Board of Directors, National 

Association of Broadcasters 1366 

Kuhn, Bowie, Commissioner of Baseball 794 

Prepared statement 785 

Latman, Alan, attorney. International Typographic Composition 

Association 991 

Prepared statement 1004 

Leeds, Henry, counsel, Mergenthaler Corp 1014 

Lieb, Charles H., counsel for the Association of American Publishers 225 

Prepared statement 226 

Linden, Bella L., representing educational publishers 313 

Prepared statement 311 

Lorenz, John G., Acting Librarian of Congress, Library of Congress 91 

Low, Edmon, representative of six library associations 184 

Prepared statement 199 

Mawdsley, Russell, chairman, Legislative Committee, Music Operators 

of America 421 

Prepared statement 418 

Meell, Efdward J., chairman. Educational Media Producers Council 330 

Prepared statement 316 

Merry, Donald D., president, Sicom Electronics Corp 474 

Prepared statement 479 

Meyer, Gerald, counsel. Motion Picture Association 759 

MuUiken, Charles, International Typographic Association 11 42 

Prepared statement 1212 

Nathan, Robert R., economist and attorney, president, Robert R. 

Nathan Associates 1580 

Oliver, Sy, composer 390 

Prepared statement 391 

Parker, Michael, director, typographic development, Mergenthaler 391 

Corp 1014 

Prepared statement 1036 

Patterson, Perry S., counsel, Rock-Ola Manufacturing Corp 411 

Prepared statement 413 



VI 

Witnesses — Continued 

Peer, Ralph, vice president, Peer-Southern Organization; director, T'age 

National Music Publishers Association 1645 

Quayle, Donald R., senior vice president for broadcasting. Corpora- 
tion for Public Broadcasting 859 

Prepared statement 863 

Raskind, Leo J., representing the Association of American Law 
Schools, the American Association of University Professors, and the 

American Council on Education 272 

Prepared statement 269 

Ringer, Barbara, Register of Copyrights, Library of Congress 91, 

1779, 1807, 1865, 1901 

Prepared statement 95 

Rockwell, Dr. Margaret, Washington Ear 1757 

Sandler, Jack B., chairman, Government Relations Committee of 

the Book Manufacturers Institute, Inc 1695 

Prepared statement 1697 

Sheppard, Dr. Walter, representing the Association of Public Radio 

Stations 1757 

Simon, Gerald A., managing director, Cambridge Research Institute- 1401 

Simpson, Paul C, Nashville, Tenn 693 

Prepared statement 690 

Smith, Eric H., associate general counsel. Public Broadcasting 

Service 859 

Prepared statement 865 

Steinbach, Sheldon E., staff counsel, American Council on Education. _ 268 
Strackbein, 0. R., representing International Allied Printing Trades 

Association 1663 

Prepared statement 1666 

Summers, John B., general counsel, National Association of Broad- 
casters 777 

Prepared statement 774 

Tegtmeyer, Rene D., Assistant Commissioner for Patents, Depart- 
ment of Commerce 163 

Prepared statement 159 

Valenti, Jack, president, Motion Picture Association of America, Inc., 

and the Association of Motion Picture & Television Producers, Inc- _ 704 

Prepared statement 705, 761, 1731 

Van Arkel, Gerard, general counsel. International Typographical 

Union 1694 

Prepared statement 1668 

Wally, I. Alan, president. Record & Tape Association of America 1238 

Prepared statement 1251 

Wasilewski, Vincent T., president. National Association of Broad- 
casters 1366 

Prepared statement 1363 

Wasserstrom, Alfred H., copyright attorney 1142 

Prepared statement 1217 

Wicks, David O., Jr., Becker Communications Associates 598 

Prepared statement 607 

Wolff, I. Sanford, the American Federation of Musicians (AFL-CIO), 
and the American Federation of Television and Radio Artists 

(AFL-CIO) 1298 

Prepared statement 1298 

Won Pat, Hon. Antonio Borja, a Representative in Congress from 

the Territory of Guam 1717 

Zimmerman, Thomas F., first vice president. National Religious 

Broadcasters, Inc 1 743 

Prepared statement 1745 

Zurkowski, Paul G., president, Information Industry Association 340 

Prepared statement 332 



vn 

Additional material — 

Affidavits and letters concerning licensing of copyrighted products to Page 
television stations and the sale of advertising time to advertisers 743 

Allen, Joseph P., Assistant Administrator for Legislative Affairs, 
National Aeronautics and Space Administration, letter dated 
September 5, 1975, to Hon. Peter W. Rodino, Jr., chairman, House 
Committee on the Judiciary 178 

American Broadcasting Companies, Inc., prepared statement 827 

American Business Press, Inc., prepared statement 252 

American Guild of Authors and Composers and the National Music 

PubHshers Association, joint statement 1586, 1641 

American Society of Composers, Authors, and Publishers, prepared 

statement 925, 947 

Biemiller, Andrew, director. Legislative Department, AFL-CIO, letter 

dated July 22, 1975, to Hon. Robert W. Kastenmeier 1335 

Bresnan, William J., president. Cable Division, Teleprompter Corp.. 849 

Broadcast Music, Inc., prepared statement 389, 962, 965 

Burns, Aaron, president. International Typeface Corp., letter dated 

July 28, 1975, to Hon. Robert W. Kastenmeier 1020 

"Cable Television Under the 1972 Rules and the Impact of Alternative 

Copyright Fee Proposals," by Bridger M. Mitchell 517 

Cairns, Robert W., American Chemical Society, letter dated June 25, 

1975, to Hon. Robert W. Kastenmeier 243 

"Copyrightability of Typeface and Type Font Design," statement of 

position, Castcraft Industries, Inc 1228 

Coyle, Maurice J., M.D., Department of Radiology, Providence Hos- 
pital, Anchorage, Alaska, letter dated July 9, 1975, to Hon. Peter W. 
Rodino, Jr 215 

Davis, Hal C, president, American Federation of Musicians, letter 

dated July 8, 1975, to Hon. Robert W. Kastenmeier 1658 

Ebenstein, Daniel, Amster and Rothstein, counselors at law, letter 

dated July 18, 1975, to Hon. Robert W. Kastenmeier 1194 

Evans, Robert V., vice president, CBS, letter dated July 3, 1975, to 
Hon. Robert W. Kastenmeier, chairman. Subcommittee on Courts, 
Civil Liberties, and the Administration of Justice 689 

Feist, Leonard, National Music Pubhshers' Association, Inc., letter 

dated October 3, 1975, to Hon. Robert W. Kastenmeier 1651 

Finn, James B., Ph. D., senior vice president, research and develop- 
ment, the C. V. Mosby Co., letter dated August 8, 1975, to Dr. 
Ray Alan Woodriff 265 

General license agreement, restaurants, taverns, nightclubs, and simi- 
lar establishments 385 

Harris, James A., president. National Education Association, pre- 
pared statement 274 

Hightower, John B., chairman. Advocate for the Arts/Association 

Councils for the Arts, prepared statement 263 

Ivy, Emma G., R.N., Wrangell General Hospital, Wrangell, Alaska, 

letter dated July 22, 1975, to Hon. Don Young 215 

Keaney, Kevin J., general counsel. Federal Librarians Association, 

prepared statement 262 

King, Frank Peewee, composer, prepared statement 394 

Korman, Bernard, general counsel, American Society of Composers, 
Authors, and Publishers, letter dated August 6, 1975, to Hon. 
Robert W. Kastenmeier 383 

Lindow, Lester W., executive director. Association of Maximum 

Service Telecasters, prepared statement 845 

Lorenz, John G., Acting Librarian of Congress, letter dated August 
26, 1975, to Hon. Peter W. Rodino, Jr., chairman. House Com- 
mittee on the Judiciary 174 

McCloskey, Robert J., Assistant Secretary for Congressional Rela- 
tions, Department of State, letter dated May 7, 1975, to Hon. Peter 
W. Rodino, Jr., chairman. House Committee on the Judiciary 172 

McKenna, Frank, executive director. Special Libraries Association, 

prepared statement 209 

Marke, Julius J., American Association of Law Libraries, prepared 

statement 254 



VIII 

Additional material — iContinued 

Marshall, Nancy H., director, Wisconsin Interlibrary Loan Service, 

Madison, Wis., letter dated May 6, 1975, to Hon. Robert W. Page 

Kastenmeier 215 

Mathews, Hon. David, Secretarj', Department of Health, Education, 

and Welfare, prepared statement 261 

Mercer, Johnny, composer, prepared statement 381 

Mergenthaler Linotype Co., prepared statement 1054 

Nathan, Robert R., president, Robert R. Nathan Associates, Inc., 

letter dated October 24, 1975, to Hon. Robert W. Kastenmeier 1640 

National Broadcasting Co., Inc., prepared statement 825, 1385 

National Music Publishers Association and American Guild of Authors 

& Composers, prepared statement 920 

Nimmer, Prof. Melville B., professor of law, UCLA School of Law, 

prepared statement 1038 

Norwood, Frank W., executive secretary. Joint Council on Educational 

Telecommunications, letter dated July 10, 1975, to Hon. Robert W. 

Kastenmeier 883 

Parker, Michael, director, Tj^pographical Development Mergenthaler 

Linotype Co., letter dated July 28, 1975, to Hon. Robert W. 

Kastenmeier 1041 

Passano, William M., chairman of the board, Williams & Wilkins Co., 

prepared statement 260 

Rayin, Mona (R.N.), instructor coordinator of R.N. Programs and 

Outreach, letter dated August 12, 1975, to Hon. Don Young 214 

"Registration of Original Typeface Designs: Extension of Comment 

Period," vol.. No. 223, Federal Register, November 18, 1975 1017 

"Registration of Original Typeface Designs," vol. 39, No. 176, Federal 

Register, September 10, 1974 1016 

Ringer, Barbara, Register of Copyrights, letter dated June 6, 1975, to 

Hon. Robert W. Kastenmeier 1008 

Ruck, Don V., vice president. National Hockey League, prepared 

statement 813 

Schrader, Dorothy M., General Counsel, Copyright Office, prepared 

statement 1015 

Stevens, Hon. Ted, a U.S. Senator From the State of Alaska, letter 

dated October 8, 1975, to Hon. Robert W. Kastenmeier 1659 

Steuermann, Clara, president. Music Library Association, prepared 

statement 207 

"The Great American Rip-Off," bj' Mike Terranova, a pamphlet 

published by the Independent Record and Tape Association of 

America 1265 

Times Mirror, prepared statement 852 

"Typeface Design Protection," statement of position of the American 

Institute of Graphic Arts 1226 

Valenti, Jack, president. Motion Picture Association of America, Inc., 

letters to Hon. Robert W. Kastenmeier — 

September 10, 1975 1724 

November 7, 1975 . 1736 

Vanantwerpen, F. J., president. Council of Engineering and Scientific 

Society Executives, prepared statement 369 

Wally, Alan I., president, Record and Tape Association of America, 

letter dated July 22, 1975, to Hon. Robert W. Kastenmeier 1263 

Warren, Albert, chairman. Copyright Committee, Independent News- 
letter Association, prepared statement 367 

Wigron, Harold E., National Education Associations 276 

Woodriff, Dr. Ray, Department of Chemistry, Montana State Univer- 
sity, prepared statement 265 

Young, Hon. Don, a Representative in Congress From the State of 

Alaska, letter dated October 2, 1975, to Hon. Robert W. 

Kastenmeier 214 

Appendixes 

Appendi?t 1. — Teleprompter Corp. memorandum on Constitutionality 

of Proposed Copyright Legislation (H.R. 2223) 1917 

Appendix 2. — 18 briefing papers submitted by the Copyright Office__ 2051 
Appendix 3. — Report of Working Group of Conference on Resolution 

of Copyright Issues (dealing with library photocopying) 2092 

Appendix 4. — Miscellaneous communications 2124 



COPYRIGHT LAW REVISION 



WEDNESDAY, MAY 7, 1975 

House of Representatives, 
Subcommittee on Courts, Civil Liberties, 

AND THE Administration of Justice 
OF THE Committee on the Judiciary 

Washingto?!, B.C. 

The subcommittee met, pursuant to notice, at 10:10 a.m., in room 
2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier 
[chairman of the subcommittee] presiding. 

Present : Representatives Kastemneier, Danielson, Drinan, Pattison, 
Railsiback, and Wiggins. 

Also present : Herbert Fuchs and Bruce A. Lehman, counsels ; and 
Thomas E. Mooney, associate counsel. 

Mr. Kastenmeier. The committee will come to order. We have met 
this morning to begin subcommittee hearings on H.R. 2223, introduced 
by the Chair, for the general revision of the copyright law. 

Ten yeare ago this month in this room the subcommittee began what 
turned out to be 22 days of public hearings on a bill having the same 
purpose, namely, the total revision of title 17, United States Code, the 
copyright law. 

The 1965 hearings, followed by many subcommittee meetings, re- 
sulted in a revision bill being reported to and passed by the House of 
Representatives on April 11, 1967. The Senate, however, failed to act 
on that bill and the House-passed bill expired. 

In September 1974, when the Senate at last did pass a copyright law 
revision bill, the involvement of the House Judiciaiy Committee in 
the nomination of Nelson Rockefeller to be Vice President prevented 
House consideration of the measure during what was left of 1974. 
However, the Congress did enact legislation creating a National Com- 
mission on New Technological Uses of Copyrighted Works, of which 
the President is to appoint the members. 

With the coining of 1975, Senator McClellan reintroduced the 1974 
Senate-passed bill as S. 22, and the Chair introduced an identical bill 
in the House under the number H.R. 2223. Title II of the bills S. 22 and 
H.R. 2223, go beyond providing copyright law revision, and provide 
protection of ornamental designs of useful articles. 

In addition, the subcommittee has before it two measures directly 
related to the proposed revision. One of these, H.R. 5345, introduced 
by our subcommittee colleague, Mr. Danielson, would create a per- 
former's royalty as part of the bundle of rights known as copyright. 

The other, H.R. 4965, introduced by Mr. Won Pat, would authorize 
the making of video tapes for transmission on noncontiguous cable 
television systems, that is, in places other than the 48 mainland States. 

(1) 



H.R. 2223, H.R. 5345, and H.R. 4965 will be placed in the record 
of the hearings at the conclusion of this statement. 

Article I, section 8 of the Federal Constitution empowers Congress 
"to promote the progress of science and useful arts, by securing to 
authors * * * the exclusive right to their * * * writings * * *." At the 
very least, therefore, Congress has the constitutional obligation to 
determine whether and to what extent the progress of the useful arts 
will be promoted by congressional grants of exclusivity for the writ- 
ings of authors. 

The purpose of the pending legislation is, in short, to bring up to 
date the copyright law which has not been substantially revised since 
1 909. It should be our commitment to correct this neglect, for the great 
and growing acceleration of technology and the resultant new uses of 
copyrighted works have rendered much of the existing law inade- 
quate and obsolete. 

The subcommittee is pleased, this morning, to open the hearings by 
welcoming witnesses from the Library of Congress. We have the 
Honorable John G. Lorenz, Acting Librarian of Congress; Abraham 
L. Kaminstein, former Register of Copyrights who went through the 
1965-67 hearings with us, and Barbara Ringer, also an old friend, the 
present Register of Copyrights. Mr. Lorenz, will you begin ? 

[H.R. 2223, H.R. 5345, and H.R. 4965 are as follows:] 



94th CONGRESS f f ^% OOOO 

1ST Session J^^ |^^ ZZZO 



IN THE HOUSE OF REPRESENTATIVES 

January 28,1975 

Mr. Kastenmeier introduced the following bill ; which was referred to the Com- 
mittee on the Judiciary 



A BILL 

For the general revision of the Copyright Law, title 17 of the United States 

Code, and for other purposes. 

1 Be it enacted hy the Seiiate and House of Representatives of the 

2 United States of America in Congress assembled, 

3 TITLE I— GENERAL REVISION OF COPYRIGHT LAW 

4 Sec. 101. Title 17 of the United States Code, entitled "Copyrights", 

5 is hereby amended in its entirety to read as follows : 

6 TITLE 17— COPYRIGHTS 

Chapter Sec. 

1. Subject Matter and Scope of Copyright 101 

2. CoPTRiGHT Ownership and Transfer 201 

3. Duration of Copyright 301 

4. Copyright Notice, Deposit, and Registration 401 

5. Copyright Infringement and Remedies 501 

6. Manufacturing Requirement and Importation 601 

7. Copyright Office 701 

8. Copyright Royalty Tribunal. 801 

7 Chapter 1.— SUBJECT MATTER AND SCOPE OF COPYRIGHT 

Sec. 

101. Definitions. 

102. Subject matter of copyright : In general. 

103. Subject matters of copyright : Compilations and derivative works. 

104. Subject matter of copyright : National origin. 

105. Subject matter of copyright : United States Government works. 

106. Exclusive rights in copyrighted works. 

107. Limitations on exclusive rights : Fair use. 

108. Limitations on exclusive rights : Reproduction by libraries and archives. 



2 

1 TITLE 17— COPYRIGHTS— Continued 

2 Chapter 1.— SUBJECT MATTER AND SCOPE OF 

3 COPYRIGHT— Continued 

Sec. 

109. Limitations on exclusive rights : Effect of transfer of particular copy or 

phonorecord. 

110. Limitations on exclusive rights : Exemption of certain performances and 

displays. 

111. Limitations on exclusive rights : Secondary transmissions. 

112. Limitations on exclusive rights : Ephemeral recordings. 

113. Scope of exclusive rights in pictorial, graphic, and sculptural works. 

114. Scope of exclusive rights in sound recordings. 

115. Scope of exclusive rights in nondramatic musical works : Compulsory license 

for making and distributing phonorecords. 

116. Scope of exclusive rights in nondramatic musical works : Public perform- 

ances by means of coin-operated phonorecord players. 

117. Scope of exclusive rights : Use in conjunction with computers and similar 

information systems. 

4 § 101. Definitions 

5 As used in this title, the following terms and their variant forms 

6 mean the following : 

7 An "anonymous work" is a work on the copies or phonorecords 

8 of which no natural person is identified as author. 

9 "Audiovisual works" are works that consist of a series of related 

10 images which are intrinsically intended to be shown by the use of 

11 machines or devices such as projectors, viewers, or electronic 
13 equipment, together with accompanying sounds, if any, regardless 

13 of the nature of the material objects, such as films or tapes, in 

14 which the works are embodied. 

15 The "best edition" of a work is the edition, published in the 

16 United States at any time before the date of deposit, that the Li- 

17 brary of Congress determines to be most suitable for its purposes. 

18 A person's "children" are his immediate offspring, whether 

19 legitimate or not, and any children legally adopted by him. 

20 A "collective work" is a work, such as a periodical issue, an- 

21 thology, or encyclopedia, in which a number of contributions, 

22 constituting separate and independent works in themselves, are 

23 assembled into a collective whole. 

24 A "compilation" is a work formed by the collection and assem- 

25 bling of pre-existing materials or of data that are selected, coordi- 

26 nated, or arranged in such a way that the resulting work as a 

27 whole constitutes an original work of authorship. The term "com- 

28 pilation" includes collective works. 

29 "Copies" are material objects, other than phonorecords, in which 

30 a work is fixed by any method now known or later developed, and 

31 from which the work can be perceived, reproduced, or otherwise 



1 communicated, either directly or with the aid of a machine or 

2 device. The term "copies" includes the material object, other than 

3 a phonorecord, in which the work is first fixed. 

4 "Copyright owner," with respect to any one of the exclusive 

5 rights comprised in a copyright, refers to the owner of that par- 

6 ticular right. 

7 A work is "created" when it is fixed in a copy or phonorecord 

8 for the first time ; where a work is prepared over a period of time, 

9 the portion of it that has been fixed at any particular time con- 

10 stitutes the work as of that time, and where the work has been 

11 prepared in diiferent versions, each version constitutes a separate 

12 work. 

13 A "derivative work" is a work based upon one or more pre- 

14 existing works, such as a translation, musical arrangement, dram- 

15 atization, fictionalization, motion picture version, sound record- 

16 ing, art reproduction, abridgment, condensation, or any other 

17 form in which a work may be recast, transformed, or adapted. A 

18 work consisting of editorial revisions, annotations, elaborations, 

19 or other modifications which, as a whole, represent an original 

20 work of authorship, is a "derivative work." 

21 A "device," machine," or "process" is one now known or later 

22 developed. 

2*^ To "display" a work means to show a copy of it, either directly 

24 or by means of a film, slide, television image, or any other device 

25 or process or, in the case of a motion picture or other audiovisual 

26 work, to show individual images nonsequentially. 

27 A work is "fixed" in a tangible medium of expression when its 

28 embodiment in a copy or phonorecord, by or under the authority 

29 of the author, is sufficiently permanent or stable to permit it to 

30 be perceived, reproduced, or otherwise communicated for a period 

31 of more than transitory duration. A work consisting of sounds. 

32 images, or both, that are being transmitted, is "fixed" for pur- 

33 poses of this title if a fixation of the work is being made simultane- 

34 ously with its transmission. 

35 The terms "including" and "such as" are illustrative and not 

36 limitative. 

37 A "joint work" is a work prepared by two or more authors 

38 with the intention that their contributions be merged into insepa- 

39 rable or interdependent parts of a unitary whole. 

40 "Literary works" are works other than audiovisual works, 



6 



1 expressed in words, numbers, or other verbal or numerical sym- 

2 bols or indicia, regardless of the nature of the material objects, 

3 such as books, periodicals, manuscripts, phonorecords, or film, in 

4 which they are embodied. 

5 "^Motion pictures" are audiovisual works consisting of a sei-ies 

6 pi related images which, when shown in succession, impart an 

7 impression of motion, together with accompanying sounds, if any. 

8 To "perform" a work means to recite, render, play, dance, or 

9 act it, either directly or by means of any device or pix)cess or, in 

10 the case of a motion picture or other audiovisual work, to show its 

11 images in any sequence or to make the sounds apcqmpanying it 

12 audible. 

13 "Phonorecords" are material objects in which sounds other than 

14 those accompanying a motion picture or otlier ai|diovisual woi-k, 

15 are fixed by any method now known or later xieveloped, and from 

16 which the sounds can be perceived, reproduced, or otherwise com- 

17 municated, either directly or with the aid of a n^achine or device. 

18 The term "phonorecords" includes the material object in which 

19 the sounds are first fixed. 

20 "Pictorial, graphic, and sculptural works" include two-dimen- 

21 sional and three-dimensional works of fiixe, graphic, and applied 

22 art, photographs, prints and art reproductions, maps, globes, 

23 charts, plans, diagrams, and models. 

24 A "pseudonymous work" is a work on the copies or plienor 

25 records, of which the author is identified under a fictitious name. 

26 "Publication" is the distribution of copies or phonorecords of a 

27 work to the public by sale or other transfer of ownership, or by 

28 rental, lease, or lending. The offering to distribute copies or 

29 phonorecords to a group of persons for purposes of further disr 

30 tribution, public performance, or public display, constitutes 

31 publication. A public performance or display of a work does not 

32 of itself constitute publication. 

33 To perform or display a work "publicly" means i 
( 1 ) to perform or display it at a place open to the public or 

at any place where a substantial number of persons outside 
of a normal circle of a family and its social acquaintances is 



34 
35 
36 



37 gathered ; 



38 
39 



(2) to transmit or otherwise communicate a performance 
or display of the work to a place specified by clause (1) or 
*" to the public, by means of any device or process, whetlier the 



1 members of the public capable of receiving the performance 

2 or display receive it in the same place or in separate places 

3 and at the same time or at different times. 

4 "Sound recordings" are works that result from the fixation of 

5 a series of musical, spoken, or other sounds, but not including the 

6 sounds accompanying a motion picture or other audiovisual work, 

7 regardless of the nature of the material objects, such as disks, 

8 tapes, or other phonorecords, in which they are embodied. 

9 "State" includes the District of Columbia and the Common- 

10 wealth of Puerto Rico, and any territories to which this title is 

11 made applicable by an act of Congress. 

12 A "transfer of copyright ownership" is an assignment, mort- 

13 gage, exclusive license, or any other conveyance, alienation, or 

14 hypothecation of a copyright or of any of the exclusive rights 

15 comprised in a copyright, whether or not it is limited in time or 

16 place of effect, but not including a nonexclusive license. 

17 A "transmission program" is a body of material that, as an 

18 aggregate, has been produced for the sole purpose of transmission 

19 to the public in sequence and as a xmit. 

20 To "transmit" a performance or display is to communicate it 

21 by any device or process whereby images or sounds are received 

22 beyond the place from which they are sent. 

23 The "United States," when used in a geographical sense, com- 

24 prises the several States, the District of Columbia and the Com- 

25 monwealth of Puerto Rico, and the organized territories under 

26 the jurisdiction of the United States Government. 

27 A "useful article" is an article having an intrinsic utilitarian 

28 function that is not merely to portray the appearance of the 

29 article or to convey information. An article that is normally a part 

30 of a useful article is considered a "useful article." 

31 The author's "widow" or "widower" is the author's surviving 

32 spouse under the law of his domicile at the time of his death, 

33 whether or not the spouse has later remarried. 

34 A "work of the United States Government" is a work prepared 

35 by an officer or employee of the United States Government as part 

36 of his official duties. 

37 A "work made for hire" is : 

38 (1) a work prepared by an employee within the scope of 

39 his employment ; or 



•8 



1 (2) a work specially ordered or commissioned for use as 

2 a contribution to a collective work, as a part of a motion pic- 

3 ture or other audiovisual work, as a translation, as a supple- 
4: mentary work, as a compilation, as an instructional text, as 

5 a test, as answer material for a test, as a photographic or 

6 other portrait of one or more persons, or as an atlas, if the 

7 parties expressly agree in a written instrument signed by 

8 them that the work shall be considered a work made for hire. 
^ A "supplementary work" is a work prepared for publication 

10 as a secondary adjunct to a work by another author for the 

^^ purpose of introducing, concluding, illustrating, explaining, 

12 revising, commenting upon, or assisting in the use of the other 

13 work, such as forewords, afterwords, pictorial illustrations, 
1^ maps, charts, tables, editorial notes, musical arrangements, 
1^ answer material for tests, bibliographies, appendixes, and 
1^ indexes. An "instructional text'* is a literary, pictorial, or 
1' graphic work prepared for publication with the purpose of 
1° use in systematic instructional activities. 

§ 102. Subject matter of copyright: In general 

(a) Copyright protection subsists, in accordance with this title, in 
"1 original works of authorship fixed in any tangible medium of expres- 
"2 sion, now known or later developed, from which they can be perceived, 
"3 reproduced, or otherwise communicated, either directly or with the aid 
2* of a machine or device. Works of authorship include the following 
"^ categories : 

2" ( 1 ) literary works ; 

^' (2) musical works, including any accompanying words ; 

^^ (3) dramatic works, including any accompanying music; 

^^ (4) pantomimes and choreographic works; 

^" ( 5 ) pictorial, graphic, and sculptural works ; 

^1 ( 6 ) motion pictures and other audiovisual works ; 

^^ (7) sound recordings. 

(b) In no case does copyright protection for an original work of 
autliorship extend to any idea, plan, procedure, process, system, method 
of operation, concept, principle, or discovery, regardless of the form 
in which it is described, explained, illustrated, or embodied in such 
work. 



19 
20 



33 
34 

35 
36 
37 

^° §103. Subject matter of copyright: Compilations and derivative 
3" works 

(a) The subject matter of copyright as specified by section 102 in- 



40 



9 



1 eludes compilations and derivative works, but protection for a work 

2 employing pre-existing material in which copyright subsists does not 

3 extend to any part of the work in which such material has been used 

4 unlawfully. 

5 (b) The copyright in a compilation or derivative work extends only 

6 to the material contributed by the author of such work, as dis- 

7 tinguished from the pre-existing material employed in the work, 

8 and does not imply any exclusive right in the pre-existing material. 

9 The copyright in such work is independent of, and does not aifect 

10 or enlarge the scope, duration, ownership, or subsistence of, any copy- 

11 right protection in the pre-existing material. 

12 § 104. Subject matter of copyright : National origin 

13 (a) Unpublished Works. — The works specified by sections 102 and 

14 103, while unpublished, are subject to protection under this title with- 

15 out regard to the nationality or domicile of the author. 

16 (b) PtJBLisHED Works. — The works specified by sections 102 and 

17 103, when published, are subject to protection under this title if — 

18 (1) on the date of first publication, one or more of the authors 

19 is a national or domiciliary of the United States, or is a national, 

20 domiciliary, or sovereign authority of a foreign nation that is a 

21 party to a copyright treaty to which the United States is also a 

22 party ; or 

23 (2) the work is first published in the United States or in a for- 

24 eign nation that, on the date of first publication, is a party to the 

25 Universal Copyright Convention of 1952 ; or 

26 (3) the work is first published by the United Nations or any 

27 of its specialized agencies, or by the Organization of American 

28 States ; or 
(4) the work comes within the scope of a Presidential procla- 
mation. Whenever the President finds that a particular foreign 

31 nation extends, to works by authors who are nationals or domicili- 

32 aries of the United States or to works that are first published in 

33 the United States, copyright protection on substantially the same 

34 basis as that on Avhich the foreign nation extends protection to 

35 works of its own nationals and domiciliaries and works first pub- 
lished in that nation, he may by proclamation exlend protection 

3' under this title to works of which one or more of the authors is, 
on the date of first publication, a national, domiciliary, or sov- 
ereign authority of that nation, or which was first published in 
that nation. The President may revise, suspend, or revoke any 



29 
30 



40 
41 

42 



10 



8 

1 such proclamation or impose any conditions or limitations on 

2 protection under a proclamation. 

3 (c) The expropriation, by a <iovernmental organization of a for- 

4 eijrn country, of a copyripfht, or the ri<rht to secure a copyrifrht, or 

5 any rigfht comprised in a copyright, or any right in a work for which 

6 copyright may be secured, or the transfer of a copyright or of any such 

7 right, or the power to authorize any use of the work thereunder, from 

8 the author or copyright owner to a governmental agency of a foreign 

9 country pursuant to any law, decree, regulation, order or other action 

10 of the government effecting or requiring such transfer, shall not be 

11 given effect for the purposes of this title. 

12 §105. Subject matter of copyright: United States Government 

13 works 

14 Copyright protection under this title is not available for any work 

15 of the United States Government, but the United States Government 

16 is not precluded from receiving and holding copyrights transferred 

17 to it by assignment, bequest, or otherwise. 

18 § 106. Exclusive rights in copyrighted works 

19 Subject to sections 107 through 117, the owner of copyriglit under 

20 this title has the exclusive rights to do and to authorize any of the 

21 following : 

22 (1) to reproduce the copyrighted work in copies or phono- 

23 records ; 

24 (2) to prepare derivative works based upon the copyrighted 

25 work ; 

26 (3) to distribute copies or phonorccords of the copyrighted 

27 work to the public by sale or other transfer of ownersliip, or by 

28 rental, lease, or lending; 

29 (4) inthecaseof literary, musical, dramatic, and choreographic 

30 works, pantomimes, juotion pictures and other audiovisual works. 

31 to perform the copyrighted work publicly ; 

32 (5) in the case of literary, musical, dramatic and choreographic 

33 works, pantomimes, and pictorial, graphic, or sculptural works, 

34 including the individual images of a motion picture or other 

35 audiovisual work, to display the copyrighted work publicly. 

36 § 107. Limitations on exclusive rights: Fair use 

37 Notwithstanding the provisions of section 106, the fair use of a 

38 copyrighted work, including such use by reproduction in copies or 

39 phonorecords or by any other means specified by that section, for pur- 

40 poses such as criticism, comment, news reporting, teaching, scholar- 



11 



1 ship, or research, is not an infringement of copyright. In determining 

2 whether the use made of a work in any particular case is a fair use 

3 the factors to be considered shall include : 

4 ( 1 ) the purpose and character of the use ; 

5 (2) the nature of the copyrighted work ; 

6 (3) the amount and substantiality of the portion used in re- 

7 lation to the copyrighted work as a whole ; and 

8 (4) the effect of the use upon the potential market for or value 

9 of the copyrighted work. 

10 §108. Limitations on exclusive rights: Reproduction by libraries 

11 and archives 

12 (a) Notwithstanding the provisions of section 106, it is not an in- 

13 fringement of copyright for a library or archives, or any of its em- 

14 ployees acting within the scope of their employment, to reproduce no 

15 more than one copy or phonorecord of a work, or distribute such copy 

16 or phonorecord, under the conditions specified by this section, if : 

17 (1) The reproduction or distribution is made without any pur- 

18 pose of direct or indirect commercial advantage; 

19 (2) The collections of the library or archives are (i) open to the 

20 public, or (ii) available not only to researchers affiliated with the 

21 library or archives or with the institution of which it is a part, but 

22 also to other persons doing research in a specialized field ; and 

23 (3) The reproduction or distribution of the work includes a 

24 notice of copyright. 

25 (b) The rights of reproduction and distribution under this section 

26 apply to a copy or phonorecord of an unpublished work duplicated in 

27 facsimile form solely for purposes of preservation and security or for 

28 deposit for research use in another library' or achives of the type de- 

29 scibed by clause (2) of subsection (a), if the copy or phonorecord 

30 reproduced is currently in the collections of the library or archives. 

31 (c) The right of reproduction under this section applies to a copy 

32 or phonorecord of a published work duplicated in facsimile form solely 

33 for the purpose of replacement of a copy or phonorecord that is dam- 

34 aged, deteriorating, lost, or stolen, if the library or archives has, after 

35 a reasonable effort, determined that an unused replacement cannot be 

36 obtained at a fair price. 

37 (d) The rights of reproduction and distribution under this section 

38 apply to a copy, made from the collection of a library or archives 

39 where the user makes his request or from that of another libraiy or 

40 archives, of no more than one article or other contribution to a copy- 



12 



10 



1 righted collection or periodical issue, or to a copy or phonorecord of a 

2 small part of any other copyrighted work, if : 

3 (1) The copy becomes the property of the user, and the library 

4 or archives has had no notice that the copy would be used for any 

5 purpose other than private study, scholarship, or research ; and 

6 (2) The library or archives displays prominently, at the place 

7 where orders are accepted, and includes on its order form, a wam- 

8 ing of copyright in accordance with requirements that the Reg- 

9 ister of Copyrights shall prescribe by regulation. 

10 (e) The rights of reproduction and distribution under this section 

11 apply to the entire work, or to a substantial part of it, made from the 

12 collection of a library or archives where the user makes his request or 

13 from that of another library or archives, if the library or archives has 

14 first determined, on the basis of a reasonable investigation that a copy 

15 or phonorecord of the copyrighted work cannot be obtained at a fair 

16 price, if : 

17 (1) The copy becomes the property of the user, and the library 

18 or archives has had no notice that the copy would be used for any 

19 purpose other than private study, scholarship, or research; and 

20 (2) The library or archives displays prominently, at the place 

21 where orders are accepted, and includes on its order form, a wam- 

22 ing of copyright in accordance with requirements that the Register 

23 of Copyriglits shall prescribe by regulation. 

24 (f) Nothing in this section — 

25 (1) shall be construed to impose liability for copyright in- 

26 fringement upon a library or archives or its employees for the un- 

27 supervised use of reproducing equipment located on its premises, 

28 provided that such equipment displays a notice that the making 

29 of a copy may be subject to the copyright law ; 

30 (2) excuses a person who uses such reproducing equipment or 

31 who requests a copy under subsection (d) from liability for copy- 

32 right infringement for any such act, or for any later use of such 

33 f opy5 if it exceeds fair use as provided by section 107 ; 

34 (3) in any way affects the right of fair use as provided by sec- 

35 tion 107, or any contractual obligations assumed at any time by 

36 the library or archives when it obtained a copy or phonorecord of 

37 a work in its collections ; 

38 (4) shall be construed to limit the reproduction and distribu- 

39 tion of a limited number of copies and excerpts by a library or 



13 



11 

1 archives of an audiovisual news program subject to clauses (1), 

2 (2), and (3) of subsection (a). 

3 (g) The rights of reproduction and distribution under this section 

4 extend to the isolated and unrelated reproduction or distribution of a 

5 single copy or phonorecord of the same material on separate occasions. 

6 but do not extend to cases where the library or archives, or its 

7 employee : 

8 (1) is aware or has substantial reason to believe that it is 

9 engaging in the related or concerted reproduction or distribution 

10 of multiple copies or phonorecords of the same material, whether 

11 made on one occasion or over a period of time, and whether 

12 intended for aggregate use by one or more individuals or for sepa- 

13 rate use by the individual members of a group ; or 

14 (2) engages in the systematic reproduction or distribution of 

15 single or multiple copies or phonorecords of material described 

16 in subsection ( d ) . 

17 (h) The rights of reproduction and distribution under this section 

18 do not apply to a musical work, a pictorial, graphic or sculptural work, 

19 or a motion picture or other audiovisual work other than an audio- 

20 visual work dealing with news, except that no such limitation shall 

21 apply with respect to rights granted by subsections (b) and (c). 

22 §109. Limitations on exclusive rights: Effect of transfer of par- 

23 ticular copy or phonorecord 

24 (a) Notwithstanding the provisions of section 106(3), the owner of 

25 a particular copy or phonorecord lawfully made under this title, or any 

26 person authorized by him, is entitled, without the authority of the 

27 copyright owner, to sell or otherwise dispose of the possession of that 

28 copy or phonorecord. 

29 (b) Notwithstanding the provisions of section 106(5), the owner 

30 of a particular copy lawfully made under this title, or any person 

31 authorized by him, is entitled, without the authority of the copyright 

32 owner, to display that copy publicly, either directly or by the projec- 

33 tion of no more than one image at a time, to viewers present at the 

34 place where the copy is located. 

35 (c) The privileges prescribed by subsections (a) and (b) do not, 

36 unless authorized by the copyright owner, extend to any person who 

37 has acquired possession of the copy or phonorecord from the copy- 

38 right owner, by rental, lease, loan, or otherwise, without acquiring 

39 ownership of it. 



14 



12 

1 § 110. Limitations on exclusive rights: Exemption of certain per- 

2 formances and displays 

3 Notwithstanding the provisions of section 106, the following are not 

4 infringements of copyright : 

5 ( 1 ) performance or display of a work by instructors or pupils 

6 in the course of face-to-face teaching activities of a nonprofit 

7 educational institution, in a classroom or similar place devoted 

8 to instruction, unless, in the case of a motion picture or other 

9 audiovisual work, the performance, or the display of individual 

10 images, is given by means of a copy that was not lawfully made 

11 under this title, and that the person responsible for the perform- 

12 ance knew or had reason to believe was not lawfully made ; 

1^ (2) performance of a nondramatic literary or musicial work 

1* or display of a work, by or in the course of a transmission, if : 

1^ (A) the performance or display is a regular part of the 

systematic instructional activities of a governmental body or 
l * a nonprofit educational institution ; and 

" (B) the performance or display is directly related and of 

material assistance to the teaching content of the transmis- 
sion ; and 

(C) the transmission is made primarily for : 

22 

(i) reception in classrooms or similar places normally 

23 



19 

20 



24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 



devoted to instruction, or 

(ii) reception by persons to whom the transmission is 
directed because their disabilities or other special circum- 
stances prevent their attendance in classrooms or similar 
places normally devoted to instruction, or 

(iii) reception by officers or employees of governmen- 
tal bodies as a part of their official duties or employ- 
ment; 

(3) performance of a nondramatic literary or musical work 
or of a dramatico-musical work of a religious nature, or display of 
a work, in the course of services at a place of worship or other 
religious assembly ; 

(4) performance of a nondramatic literary or musical work 
otherwise than in a transmission to the public without any pur- 
pose of direct or indirect commercial advantage and without 
payment of any fee or other compensation for the performance 
to any of its performers, promoters, or organizers, if : 

(A) there is no direct or indirect admission charge, or 



15 



13 

1 (B) the proceeds, after deducting the reasonable costs of 

2 producing the performance, are used exclusively for educa- 

3 tional, religious, or charitable purposes and not for private 

4 financial gain, except where the copyright owner has served 

5 notice of his objections to the performance under the follow- 

6 ing conditions: 

7 (i) The notice shall be in writing and signed by the 

8 copyright owner or his duly authorized agent; and 

9 (ii) The notice shall be served on the person respon- 

10 sible for the performance at least seven days before the 

11 date of the performance, and shall state the reasons for 

12 his objections ; and 

13 (iii) The notice shall comply, in form, content, and 
1^ manner of service, with requirements that the Register 
15 of Copyrights shall prescribe by regulation ; 

1^ (5) communication of a transmission embodying a performance 

1' or display of a work by the public reception of the transmission 

1° on a single receiving apparatus of a kind commonly used in pri- 

19 vate homes, unless : 

(A) a direct charge is made to see or hear the transmis- 
sion; or 

(B) the transmission thus received is further transmitted 
23 to the public ; 

2^ (6) performance of a nondramatic musical work in the course 

■^5 of an annual agricultural or liorticultural fair or exhibition con- 

"^" ducted by a governmental body or a nonprofit agricultural or hor- 

■^ ' ticultural organization ; 

2° (7) performance of a nondramatic musical work by a vending 

establishment open to the public at large without any direct or 
indirect admission charge, where the sole purpose of the perform- 
ance is to promote the retail sale of copies or phonorecords of the 
work and the performance is not transmitted beyond the place 
^ where the establishment is located. 

^ §111. Limitations on exclusive rights: Secondary transmissions 
(a) Certain Secondary Transmissions Exempted. — -The second- 
ary transmission of a primary transmission embodying a performance 
or display of a work is not an infringement of copyright if : 

(1) the secondary transmission is not made by a cable system, 
and consists entirely of the relaying, by the management of a 



20 
21 
22 



29 
30 



38 
39 



hotel, apartment house, or similar establishment, of signals trans- 



1 



16 



14 



mitted by a broadcast station licensed by the Federal Communica- 

2 tions Commission, within the local service area of such station, to 

3 the private lodgings of guests or residents of such establishment, 

4 and no direct charge is made to see or hear the secondary trans- 

5 mission; or 

6 (2) the secondary transmission is made solely for tlie purpose 
' and under the conditions specified by clause (2) of section 110; or 

8 (3) the secondary transmission is made by a common, contract, 

9 or special carrier who has no direct or indii-ect control over the 

10 content or selection of the primary transmission or over tlie par- 

11 ticular recipients of the secondary transmission, and whose activ- 

12 ities with respect to the secondary transmission consist solely of 

13 providing wires, cables, or other communications channels for the 
1^ use of others : Provided, That the provisions of this clause extend 
15 only to the activities of said carrier with respect to secondary 
1" transmissions and do not exempt from liability the activities of 
1' others with respect to their own primai-y or secondary transmis- 
1° sion; or 

1^ (4) the secondary transmission is not made by a cable system but 

2^ is made by a governmental body, or other nonprofit organization, 

"1 without any purpose of direct or indirect commercial advantage, 

22 and without charge to the recipients of the secondary transmission 

^^ other than assessments necessary to defray tlie actual and reason- 

2* able costs of maintaining and operating the secondary transmis- 

25 sion service. 

2" (b) Secondary Transmissiox of Primary Transmissiox to Con- 

2' TROLLED Group. — Notwithstanding the provisions of subsections (a) 

2o and (c), the secondary transmission to tlie public of a primary trans- 

2" mission embodying a jjerformance or display of a work is actionable as 

''^ an act of infringement under section 501, and is fully subject to the 

^1 remedies pi'ovided by sections 502 througli 5(l(;, if the jirimary trans- 

'^2 mission is not made for reception by tlic public at large but is con- 

''^ trolled and limited to reception by particulai' lucuibers of the pul)lic. 

^^ (c) Secoxdary Traxsmissioxs by Cable Systems. — 

(1) Subject to the provisions of clause (2) of this subsection, sec- 
ondary transmissions to the jDublic by a cable system of a i^rimary 

*" ti-ansmission made by a broadcast station licensed by the Federal 
Communications Commission and embodying a performance or dis- 
play of a work shall be subject to compulsory licensing upon compli- 

*0 ance with the requirements of subsection (d) in the following cases: 



17 



15 

1 (A) Where the signals comprising the primary transmission 

2 are exclusively aural and the secondai-y ti-ansmission is permis- 

3 sible under the rules, regulations or authorizations of the Federal 

4 Communications Commission ; or 

5 (B) Where the community of the cable system is in whole or 
g in part within the local service area of the primary transmitter; 

7 or 

8 (C) Where the carriage of the signals comprising the second- 

9 ary transmission is permissible under the rules, regulations or 

10 authorizations of the Federal Communications Commission. 

11 (2) Notwithstanding the provisions of clause (1) of this subsection, 

12 the secondary transmission to the public by a cable system of a pri- 

13 mary transmission made by a broadcast station licensed by the Fed- 
14: eral Communications Commission and embodying a performance or 

15 display of a work is actionable as an act of infringement under section 

16 501, and is fully subject to the remedies provided by sections 502 

17 through 506, in the following cases : 

18 (A) Where the carriage of the signals comprising the second- 

19 ary transmission is not permissible under the rules, regulations 

20 or authorizations of the Federal Communications Commission ; or 

21 (B) IVli ere the cable system, at least one month before the date 

22 of the secondary transmission, has not recorded the notice speci- 

23 fied by subsection (d) . 

24 (d) Compulsory License foe Secondary Transmissions by Cable 

25 Systems. — 

26 (1) For any secondary transmission to be subject to compulsory 

27 licensing under subsection (c) , the cable system shall at least one month 

28 before the date of the secondary transmission or within 30 days after 

29 the enactment of this Act, whichever date is later, record in the Copy- 

30 right Office, a notice including a statement of the identity and address 

31 of the person who owns or operates the secondary transmission service 

32 or has power to exercise primary control over it together with the 

33 name and location of the primary transmitter, or primary transmit- 

34 ters and thereafter, from time to time, such further information as the 

35 Register of Copyrights shall prescribe by regulation to carry out the 

36 jiurposes of this clause. 

37 (2) A cable system whose secondary transmissions have been subject 

38 to compulsory licensing under subsection (c) shall, during the months 

39 of January, April, July, and October, deposit with the Register of 



18 



16 

1 Copyrights, in accordance with requirements that the Register shall 

2 prescribe by regulation — 

3 (A-) A statement of account, covering the tliree months next 

4 preceding, specifying the number of channels on which the cable 

5 system made secondary transmissions to its subscribers, the names 

6 and locations of all primary transmitters whose transmissions 

7 were further transmitted by the cable system, the total number 

8 of subscribers to the cable system, and the gross amounts paid to 

9 the cable system irrespective of soiu-ce and separate statements of 

10 the gross revenues paid to the cable system for advertising, leased 

11 channels, and cable-casting for which a jier-program or per- 

12 channel charge is made and by subscribers for the basic service of 

13 providing secondary transmissions of primary broadcast trans- 
it mitters ; and 

15 (B) A total royalty fee for the period covered by the state- 
ly ment, computed on the basis of specified percentages of the gross 
l*"^ receipts from subscribers to the cable service during said period 

18 for the basic service of providing secondary transmissions of 

19 primary broadcast transmitters, as follows : 

20 (i) i/o percent of any gross receipts up to $40,000 ; 

21 (ii) 1 percent of any gross receipts totalling more than 

22 $40,000 but not more than $80,000 ; 
(iii) 11/2 percent of any gross receipts totalling more than 



23 



29 
30 



24 $80,000, but not more than $120.000 ; 

25 (iv) 2 percent of any gross receipts totalling more than 

26 $120,000. but not more than $160,000; and 

27 (v) 214 percent of any gross receipts totalling more than 

28 $160,000. 
(3) The royalty fees thus deposited shall be distributed in accord- 
ance with the following procedures : 

•^1 (A) During the month of July in each year, every person claiming 

3" to be entitled to compulsory license fees for secondary transmissions 
33 made during the preceding twelve-month period shall file a claim 
'^'* with the Register of Copyrights, in accordance with requirements that 
^5 the Register shall prescribe by regulation. Xot withstanding any pro- 
36 visions of the antitrust laws (the Act of Octobei' 15. 1914. 38 Stat. 730. 
3' and any amendments of such laws), for purposes of this clause any 
claimants may agree among themselves as to the proportionate divi- 
sion of compulsory licensing fees among them, may lump their claims 



38 
39 



19 



17 

1 together and file them jointly or as a single claim, or may designate 

2 a common agent to receive payment on their behalf. 

3 (B) After the first day of August of each year, the Register of 

4 Copyrights shall determine whether there exists a controversy con- 

5 ceming the statement of account or the distribution of royalty fees. If 

6 he determines that no such controversy exists, he shall, after deduct- 

7 ing his reasonable administrative costs under this section, distribute 

8 such fees to the copyright owners entitled, or to their designated 
^ agents. If he finds the existence of a controversy he shall certify to 

10 that fact and proceed to constitute a panel of the Copyright Royalty 

11 Tribunal in accordance with section 803. In such cases the reasonable 

12 administrative costs of the Register under this section shall be de- 
1^ ducted prior to distribution of the royalty fee by the tribunal. 

1* (C) During the pendency of any proceeding under this subsection, 

1^ the Register of Copyrights or the Copyright Royalty Tribunal shall 
1" withhold from distribution an amount sufficient to satisfy all claims 
1' with respect to which a controversy exists, but shall have discretion 
1° to proceed to distribute any amounts that are not in controversy. 
1^ (e) Definitions. — 

As used in this section, the following terms and their variant forms 
■^1 mean the following : 

^^ A "primary transmission" is a transmission made to the public 

2^ by the transmitting facility whose signals are being received and 

further transmitted by the secondary transmission service, regard- 
less of where or when the performance or display was first 
transmitted. 



25 
26 



2' A "secondary transmission" is the further transmitting of a 

primary transmission simultaneously with the primary trans- 
mission or nonsimultaneously with the primary transmission if by 
a "cable system" not located in whole or in part within the bound- 

^1 ary of the forty-eight contiguous States, Hawaii, or Puerto Rico : 

Provided^ hoxoever. That a nonsimultaneous further transmission 
by a cable system located in a television market in Hawaii of a 
primary transmission shall be deemed to be a secondary trans- 
mission if such further transmission is necessary to enable the 
cable system to carry the full complement of signals allowed it 

^' under the rules and regulations of the Federal Communciations 

°'° Commission. 



28 
29 
30 



32 
33 
34 
35 
36 



20 



18 



1 A "cable system" is a facility, located in any State, Territory, 

2 Trust Territory or Possession that in whole or in part i-eceives 

3 signals transmitted or programs broadcast by one or more tele- 

4 vision broadcast stations licensed by the Federal Communications 

5 Commission and makes secondary transmissions of such signals 

6 or programs by wires, cables, or other communications channels 

7 to subscribing members of the public who pay for such service. 

8 For purposes of determining the royalty fee under subsection 

9 (d) (2) (B), two or more cable systems in contiguous communi- 

10 ties under common ownership or control or operating from one 

11 headend shall be considered as one system. 

12 The "local service area of a primary transmitter" comprises 

13 the area in which a television broadcast station is entitled to 

14 insist upon its signal being retransmitted by a cable system 

15 pursuant to the rules and regulations of the Federal Communica- 

16 tions Commission. 

17 §112. Limitations on exclusive rights: Ephemeral recordings 

18 (a) Notwithstanding the provisions of section 106, and except in the 

19 case of a motion picture or other audiovisual work, it is not an 

20 infringement of copyright for a transmitting organization entitled to 

21 transmit to the public a performance or display of a work, under a 

22 license or transfer of the copyright or under the limitations on exclu- 

23 sive rights in sound recordings specified by section 114(a), to make 

24 no more than one copy or phonorecord of a particular transmission 

25 program embodying the performance or display, if — 

26 (1) the copy or phonorecord is retained and used solely by the 

27 transmitting organization that made it, and no further copies or 

28 phonorecords are reproduced from it ; and 

29 (2) the copy or phonorecord is used solely for the transmitting 

30 organization's own transmissions within its local service area, or 

31 for purposes of archival preservation or security ; and 

32 (3) unless preserved exclusively for archival purposes, the copy 

33 or phonorecord is destroyed within six months from the date the 

34 transmission program was first transmitted to the public. 

35 (b) Notwithstanding the provisions of section 106, it is not an in- 

36 fringement of copyright for a governmental body or other nonprofit 

37 organization entitled to transmit a performance or display of a work, 

38 under section 110(2) or under the limitations on exclusive rights in 

39 sound recordings specified by section 114(a), to make no more than 



21 



19 



1 thirty copies or phonorecords of a particular transmission program 

2 embodying the performance or display, if — 

3 ( 1 ) no further copies or phonorecords are reproduced from the 

4 copies or phonorecords made under this clause ; and 

5 (2) except for one copy or phonorecord that may be preserved 

6 exclusively for archival purposes, the copies or phonorecords are 

7 destroyed within seven years from the date the transmission pro- 

8 gram was first transmitted to the public. 

9 (c) Notwithstanding the provisions of section 106, it is not an in- 

10 fringement of copyright for a governmental body or other nonprofit 

11 organization to make for distribution no more than one copy or phono- 

12 record for each transmitting organization specified in clause (2) of this 

13 subsection of a jjarticular transmission program embodying a perform- 

14 ance of a nondramatic musical work of a religious nature, or of a sound 

15 recording of such a musical work, if — 

16 (1) there is no direct or indirect charge for making or dis- 

17 tributing any such copies or phonorecords ; and 

18 (2) none of such copies or phonorecords is used for any jDer- 

19 formance other than a single transmission to the public by a trans- 

20 mitting organization entitled to transmit to the public a perform- 

21 ance of the work under a license or transfer of the copyright ; and 

22 (3) except for one copy or plionorecord that may be preserved 

23 exclusively for archival purposes, the copies or phonorecords are 

24 all destroyed within one year from the date the transmission pro- 

25 gram was first transmitted to the public. 

26 (d) The transmission program embodied in a copy or phonorecord 

27 made under this section is not subject to protection as a derivative 

28 work under this title except Avith the express consent of the owners 

29 of copyright in the pre-existing works employed in the program. 

30 § 113. Scope of exclusive rights in pictorial, graphic, and sculp- 

31 tural works 

32 (a) Subject to the provisions of clauses (1) and (2) of this subsec- 

33 tion, the exclusive right to reproduce a copyrighted pictorial, graphic, 

34 or sculptural work in copies under section 106 includes the right to 

35 reproduce the work in or on any kind of article, whether useful or 

36 otherwise. 

37 (1) This title does not afford, to the owner of copyright in a 

38 Avork that portrays a useful article as such, any greater or lesser 

39 rights with respect to the making, distribution, or display of the 

40 useful article so portrayed than those afforded to such works 



22 



20 

1 under the law, whether title 17 of the common law or statutes of 

2 a State, in effect on December .'U. 1976. as held applicable and 

3 construed by a court in an action brought under this title. 

4 (2) In the case of a work lawfully reproduced in useful articles 

5 that have been offered for sale or other distribution to the public, 

6 copyright does not include any right to prevent the making, dis- 

7 tribution, or display of pictures or photographs of such articles 

8 in connection with advertisements or commentaries related to the 

9 distribution or display of such articles, or in connectioi with news 

10 reports. 

11 (b) When a pictorial, graphic, or sculptural work in which copy- 

12 right subsists under this title is utilized in an original ornamental 

13 design of a useful article, by the copyright proprietor or under an 

14 express license from him, the design shall be eligible for protection 

15 under the provisions of title III of this Act. 

16 (c) Protection under this title of a work in which copyright subsists 

17 shall terminate with respect to its utilization in useful articles when- 

18 ever the copyright proprietor has obtained registration of an orna- 

19 mental design of a useful article embodying said work under the pro- 

20 visions of title III of this Act. Unless and until the copyright pro- 

21 prietor has obtained such registration, the copyright pictorial, graphic, 

22 or sculptural work shall continue in all respects to be covered by and 

23 subject to the protection afforded by the copyright subsisting under 

24 this title. Nothing in this section shall be deemed to create any addi- 

25 tional rights or protection under this title. 

26 (d) Nothing in this section shall affect any right or remedy held 

27 by any person under this title in a work in which copyright was sub- 

28 sisting on the effective date of title II of this Act, or with respect to 

29 any utilization of a copyrighted work other than in the design of a 

30 useful article. 

31 § 114. Scope of exclusive rights in sound recordings 

32 (a) The exclusive rights of the owner of copyright in a sound record- 

33 ing are limited to the rights specified by clauses (1) and (3) of sec- 

34 tion 106, and do not include any right of performance under section 

35 106(4). 

36 (b) The exclusive riglit of the owner of copyright in a sound record- 

37 ing to reproduce it under section 106(1) is limited to the right to 

38 duplicate the sound recording in the form of plionorecords that directly 

39 or indirectly recapture the actual sounds fixed in the recording. This 

40 right does not extoiid to the making or duplication of anotlior soimd 



23 



21 

1 recordinof that is an independent fixation of other sounds, even though 

2 such sounds imitate or simulate those in the copyrighted sound 

3 recording. 

4 (c) This section does not limit or impair the exclusive right to per- 

5 form publicly, by means of a phonorecord, any of the works specified 

6 by section 106 (4). 

7 §115. Scope of exclusive rights in nondramatic musical works: 

8 Compulsory license for making and distributing phono- 

9 records 

10 In the case of nondramatic musical works, the exclusive rights pro- 

11 vided by clauses (1) and (3) of section 106, to make and to distribute 

12 phonorecords of such works, are subject to compulsory licensing under 

13 the conditions specified by this section. 

14 (a) Availability and Scope of Compulsory License. — 

15 (1) When nhonorecords of a nondramatic musical work have 

16 been distributed to the public under the authority of the copyright 

17 owner, any other person may, by complying with the provisions 

18 of this section, obtain a compulsory license to make and distribute 

19 phonorecords of the work. A person may obtain a compulsory 

20 license only if his primary purpose in making phonorecords is to 

21 distribute them to the public for private use. A person may not 

22 obtain a compulsory license for use of the work in the duplication 

23 of a sound recording made by another. 

24 (2) A compulsory license includes the privilege of making a 

25 musical arrangement of the work to the extent necessary to con- 

26 form it to the style or manner of interpretation of the perform- 

27 ance involved, but the arrangement shall not change the basic 

28 melody or fundamental character of the work, and shall not be 
2^ subject to protection as a derivative work under this title, except 

30 with the express consent of the copyright owner. 

31 (b) Notice of Intention to Obtain Comptjlsory License ; Desig- 

32 nation of Owner of Performance Right. — 

33 (1) Any pei-son who wishes to obtain a compulsory license 
under this section shall, before or within thirty days after making, 



34 



35 and before distributing any phonorecords of the work, serve notice 

36 of his intention to do so on the copyright owner. If the registra- 

37 tion or other public records of the Copyright Office do not identify 

38 the copyright owner and include an address at which notice can 
3^ be served on him, it shall be sufficient to file the notice of intention 
^ in the Copyright Office. The notice shall comply, in form, con- 



32 
33 



24 



22 



1 tent, and manner of service, with requirements that the Eegister 

2 of Copyrights shall prescribe by regulation. 

3 (2) If the copyright owner so requests in writing not later than 

4 ten days after service or filing of the notice required by clause ( 1 ) , 

5 the person exercising the compulsory license shall designate, on 

6 a label or container accompanying each phonorecord of the work 

7 distributed by him, and in the form and manner that the Eegister 

8 of Copyrights shall prescribe by regulation, the name of the 

9 copyright owner or his agent to whom royalties for public per- 

10 formance of the work are to be paid. 

11 • (3) Failure to serve or file the notice required by clause (1), or 

12 to designate the name of the owner or agent as required by clause 

13 (2), forecloses the possibility of a compulsory license and, in the 

14 absence of a negotiated license, renders the making and distribu- 

15 tion of phonorecords actionable as acts of infringement under 

16 section 501 and fully subject to the remedies provided by sections 

17 502 through 506. 

18 (c) RoTALTT Payable Under Compulsory License. — 

19 (1) To be entitled to receive royalties under a compulsory 

20 license, the copyright owner must be identified in the registration 

21 or other public records of the Copyright Office. The owner is 

22 entitled to royalties for phonorecords manufactured and distrib- 

23 uted after he is so identified but he is not entitled to recover for 

24 any phonorecords previously manufactured and distributed. 

25 (2) Except as provided by clause (1), the royalty under a 

26 compulsory license shall be payable for every phonorecord manu- 

27 factured and distributed in accordance with the license. With 

28 respect to each work embodied in the phonorecord, the royalty 

29 shall be either three cents, or three quarter cent per minute of 

30 playing time or fraction thereof, whichever amount is larger. 

31 (3) Royalty payments shall be made on or before the twentieth 
day of each month and shall include all royalties for the month 
next preceding. Each monthly payment shall be accompanied 

"^ by a detailed statement of account, which shall be certified by a 

35 Certified Public Accountant and comply in form, content, and 

36 manner of certification with I'equirements that the Register of 

37 Copyrights shall prescribe by regulation. 
(4) If the copyright owner does not receive the monthly pay- 
ment and statement of account when due, he may give written 

40 notice to the licensee that, unless the default is remedied within 



38 
39 



25 



23 

1 thirty daj's from the date of the notice, the compulsory license 

2 will be automatically terminated. Such termination renders the 

3 making and distribution of all phonorecords, for wliich the roy- 

4 alty had not been paid, actionable as acts of infringement under 

5 section 501 and fully subject to the remedies provided by sections 

6 502 through 506. 

7 §116. Scope of exclusive rights in nondramatic musical works: 

8 Public performances by means of coin-operated phono- 

9 record players 

10 (a) Limitation on Exclusive Right. — In the case of a non- 
11 dramatic musical work embodied in a phonorecord, the exclusive right 

12 under clause (4) of section 106 to perform the work publicly by means 

13 of a coin-operated phonorecord player is limited as follows: 

14 (1) The proprietor of the establishment in which the public 

15 performance takes place is not liable for infringement with re- 

16 spect to such public performance unless : 

17 (A) he is the operator of the phonorecord player ; or 

18 (B) he refuses or fails, within one month after receipt by 

19 registered or certified mail of a request, at a time during 

20 which the certificate is required by subclause (1) (C) of sub- 

21 section (b) is not affixed to the phonorecord player, by the 

22 copyright owner, to make full disclosure, by registered or 

23 certified mail, of the identity of the operator of the phono- 

24 record player. 

25 (2) The operator of the coin-operated phonorecord player may 

26 obtain a compulsory license to perform the work publicly on that 

27 phonorecord player by filing the application, affixing the certifi- 

28 cate, and paying the royalties provided by subsection (b). 

29 (b) Recordation of Coin-Operated Phonorecord Player, Affixa- 

30 tion of Certificate, and Royalty Payable Under Compulsory 

31 License. — 
(1) Any operator who wishes to obtain a compulsory license 

for the- public performance of works on a coin-operated phono- 

34 record player shall fulfill the following requirements: 

35 (A) Before or within one month after such performances 
are made available on a particular phonorecord player, and 



32 
33 



36 



3' during the month of January in each succeeding year that 

3^ such performances are made availal)le in that particular 

39 phonorecord player, he shall file in the Copyright Office, in 

^^ accordance with requirements that the Register of Copyrights 



cT-Toc r-\ _ nc 



26 



24 



1 shall prescribe by regulation, an application containing the 

2 name and address of the operator of the phonorecord player 

3 and the manufacturer and serial number or other explicit 

4 identification of the phonorecord player, and in addition to 

5 the fee prescribed by clause (9) of section T08(a), he shall 

6 deposit with the Register of Copyrights a royalty fee for 

7 the current calendar year of $8 for that particular phono- 

8 record player. If such performances are made available on a 

9 particular phonorecord player for the first time after July 1 

10 of any year, the royalty fee to be deposited for the remainder 

11 of that year shall be $4.00. 

12 (B) Within twenty days of receipt of an application and a 

13 royalty fee pursuant to subclause ( A) , the Register of Copy- 

14 rights shall issue to the applicant a certificate for the phono- 

15 record player. 

16 (C) On or before March 1 of the year in which the certifi- 

17 cate prescribed by subclause (B) of this clause is issued, or 

18 within ten days after the date of issue of the certificate, the 

19 operator shall affix to the particular phonorecord player, in a 

20 position where it can be readily examined by the public, the 

21 certificate, issued by the Register of Copyrights under sub- 

22 clause (B), of the latest application made by him under sub- 

23 clause (A) of tins clause with respect to that phonorecord 

24 player. 

25 (2) Failure to file the application, to affix the certificate or to 

26 pay the royalty required by clause (1) of this subsection renders 

27 the public performance actionable as an act of infringement under 

28 section 501 and fully subject to the remedies provided by section 

29 502 through 506. 

30 (c) Distribution OF RoYAi/TTES. — 

31 (1) During the month of January in each year, every pei-son 

32 claiming to be entitled to compulsory license fees under this section 

33 for performances during the preceding twelve-month period shall 

34 file a claim with the Register of Copyrights, in accordance with 

35 requirements that the Register shall prescribe by regidation. 

36 Such claim shall include an agreement to accept as final, except as 

37 provided in section 809 of this title, the determination of the Copy- 

38 right Royalty Tribunal in any controversy concerning the distri- 

39 bution of royalty fees deposited under subclause (a) of subsec- 

40 tion (b) (1) of this section to which the claimant is a party. Not- 



27 



25 

1 withstanding any provisions of the antitrust laws (the Act of 

2 October 15, 1914, 38 Stat. 730, and any amendments of any such 

3 laws), for purposes of this subsection any claimants may agree 

4 among themselves as to the proportionate division of compulsory 

5 licensing fees among them, may lump their claims together and 

6 file them jointly or as a single claim, or many designate a common 

7 agent to receive payment on their behalf. 

8 (2) After the first day of October of each year, the Register of 

9 Copyrights shall determine whether there exists a controversy 

10 concerning the distribution of royalty fees deposited under sub- 

11 clause (A) of subsection (b) (1). If he determines that no such 

12 controversy exists, he shall, after deducting his reasonable ad- 

13 ministrative costs under this section, distribute such fees to the 

14 copyright owners and performers entitled, or to their designated 

15 agents. If he finds that such a controversy exists, he shall certify 

16 to that fact and proceed to constitute a panel of the Copyright 

17 Royalty Tribunal in accordance with section 803. In sucli cases the 

18 reasonable administrative costs of the Register under this section 

19 shall be deducted prior to distribution of the royalty fee by the 

20 tribunal. 

21 (3) The fees to be distributed shall be divided as follows: 

22 (A) To every copyright owner not affiliated with a jserform- 

23 ing rights society the pro rata share of the fees to be dis- 

24 tributed to which such copyright owner proves liis entitle- 

25 ment; and 

26 (B) To the performing rights societies the remainder of 

27 the fees to be distributed in such pro rata shares as they shall 

28 by agreement stipulate among themselves, or, if they fail to 

29 agree, the pro rata share to which such performing rights 

30 societies prove their entitlement. 

31 (C) During the pendency of any proceeding under this 

32 section, tlie Register of Copyrights or the Copyright Royalty 

33 Tribunal shall withhold from distribution an amount suffi- 

34 cient to satisfy all claims with respect to which a controversy 

35 exists, but shall have discretion to proceed to distribute any 

36 amounts that are not in controversy. 

37 (4) The Register of Copyrights sliall promulgate regulations 

38 under which persons who can reasonably be expected to have 

39 claims may, during the year in which performances take place, 

40 without expense to or harassment of operators or proprietors of 



28 



26 

1 establishments in which phonorecord players are located, have 

2 such access to such establishments and to the phonorecord players 

3 located therein and such opportunity to obtain information with 

4 respect thereto as may be reasonably necessary to determine, by 

5 sampling procedures or otherwise, the proportion of contribution 

6 of the musical works of each such person to the earnings of the 

7 phonorecord players for which fees shall have been deposited. 

8 Any person who alleges that he has been denied the access per- 

9 mitted under the regulations prescribed by the Register of Copy- 

10 rights may bring on an action in the United States District Court 

11 for the District of Columbia for the cancellation of the compul- 

12 sory license of the phonorecord player to which such access has 

13 been denied, and the court shall have the power to declare the 

14 compulsory license thereof invalid from the date of issue thereof. 

15 (d) Criminal Penalties. — Any person who knowingly makes a 

16 false representation of a material fact in an application filed under 

17 clause (1) (A) of subsection (b), or who knowingly alters a certificate 

18 issued under clause (1)(B) of subsection (b) or knowingly affixes 

19 such a certificate to a phonorecord player other than the one it covers, 

20 shall be fined not more than $2,500. 

21 (e) Definitions. — As used in this section, the following tenns and 

22 their variant forms mean the following : 

23 (1) A "coin-operated phonorecord player" is a machine or 

24 device that: 

25 (A) is employed solely for the performance of non- 
26 dramatic musical works by means of phonorecords upon being 

27 activated by insertion of a coin ; 

28 (B) is located in an establishment making no dii-ect or 

29 indirect charge for admission ; 

30 (C) is accompanied by a list of the titles of all the musical 

31 works available for performance on it, which list is affixed to 

32 the phonorecord player or posted in the establishment in a 

33 prominent position where it can be readily examined by the 

34 public; and 

35 (D) affords a choice of works available for performance 

36 and permits the choice to be made by the patrons of the 

37 establishment in which it is located. 

38 (2) An "operator" is any person who, alone or jointly with 

39 others : 

40 (A) owns a coin-operated phonorecord player ; or 



29 



27 

1 (B) has the power to make a coin-operated phonorecord 

2 player available for placement in an establishment for pur- 

3 poses of public performance ; or 

4 (C) has the power to exercise primary control over the 

5 selection of the musical works made available for public 

6 performance in a coin-operated phonorecord player. 

7 (3) A "performing rights society" is an association or corpora- 

8 tion that licenses the public performance of nondramatic nmsical 

9 works on behalf of the copyright owners, such as the American 

10 Society of Composers, Authors and Publishers, Broadcast Music, 

11 Inc., and SESAC, Inc. 

12 §117. Scope of exclusive rights: Use in conjunction with com- 

13 puters and similar information systems 

14 Notwithstanding the provisions of sections 106 through 116, this 

15 title does not afford to the owner of copyright in a work any greater 

16 or lesser rights with respect to the use of the work in conjunction with 

17 automatic systems capable of storing, processing, retrieving, or trans- 

18 ferring information, or in conjunction with any similar device, ma- 

19 chine, or process, than those afforded to works under the law, whether 

20 title 17 or the common law or statutes of a State, in effect on Decem- 

21 ber 31, 1976, as held applicable and construed by a court in an action 

22 brought under this title. 

23 Chapter 2.— COPYRIGHT OWNERSHIP AND TRANSFER 

See. 

201. Ownership of copyright. 

202. Ownership of copyright as distinct from ownership of material object. 

203. Termination of transfers and licenses granted by the author. 

204. Execution of transfers of copyright ownership. 

205. Recordation of transfers and other documents. 

24 § 201. Ownership of copyright 

25 (a) Initial Ownership. — Copyright in work protected under this 

26 title vests initially in the author or authors of the work. The authors 

27 of a joint work are co-ownei*s of copyright in the work. 

28 (b) Works Made for HrRE. — In tlie case of a work made for hire, 

29 the employer or other persons for whom the work was prepared is 

30 considered the author for purposes of this title, and, unless the parties 

31 have expressly agreed otherwise in a written instrument signed by 

32 them, owns all of the rights comprised in the copyright. 

33 (c) Contributions TO Collective Works. — Copyright in each sep- 

34 arate contribution to a collective work is distinct from copyright in 

35 the collective work as a whole, and vests initially in the author of the 

36 contribution. In the absence of an express transfer of the copyright 



30 



28 

1 or of any rights under it, the owner of copyright in the collective 

2 work is presumed to have acquired only the privilege of reproducing 

3 and distributing the contribution as part of that particular collective 

4 work, any revision of that collective work, and any later collective 

5 work in the same series. 

6 (d) Transfer OF Ownership. — 

7 (1) The ownership of a copyright may be transferred in whole 

8 or in part by any means of conveyance or by operation of law, and 

9 may be bequeathed by will or pass as personal property by the 

10 applicable laws of intestate succession. 

11 (2) Any of the exclusive rights comprised in a copyright, 

12 including any subdivision of any of the rights specified by section 

13 106, may be transferred as provided by clause ( 1 ) and owned sepa- 
ls rately. The owner of any particular exclusive right is entitled, to 

15 the extent of that right, to all of the protection and remedies 

16 accorded to the copyright owner by this title. 

17 § 202. Ownership of copyright as distinct from ownership of 

18 material object 

19 Ownership of a copyright, or of any of the exclusive rights under 

20 a copyright, is distinct from ownership of any material object in 

21 which the work is embodied. Transfer of ownership of any material 

22 object, including the copy or phonorecord in which the work is first 

23 fixed, does not of itself convey any rights in the copyrighted work 

24 embodied in the object; nor, in the absence of an agreement, does 

25 transfer of ownership of a copj^right or of any exclusive rights under 

26 a copyright convey property rights in any material object. 

27 § 203. Termination of transfers and licenses granted by the author 

28 (a) Conditions for Termination. — In the case of any work other 

29 than a work made for hire, the exclusive or nonexclusive grant of a 

30 transfer or license of copyright or of any right under a copyright, 

31 executed by the author on or after January 1, 1977, otherwise than 

32 by will, is subject to termination under the following conditions : 

33 (1) In the case of a grant executed by one author, termination 

34 of the grant may be effected by that author or, if he is dead, by 

35 the person or persons who, under clause (2) of this subsection, 

36 own and are entitled to exercise a total of more than one half of 

37 that author's termination interest. In the case of a grant executed 

38 by two or more authors of a joint work, termination of the grant 

39 may be effected by a majority of the authors who executed it; 

40 if any of such authors is dead, his termination interest may be 



31 



29 

1 exercised as a unit by the person or persons who, under clause (2) 

2 of this subsection, own and are entitled to exercise a total of more 

3 than one half of his interest. 

4 (2) Where an author is dead, his or her termination interest is 

5 owned, and may be exercised, by his widow (or her widower) and 

6 children or grandchildren as follows : 

7 (A) The widow (or widower) owns the author's entire ter- 

8 mination interest unless there are any surviving children or 

9 grandchildren of the author, in which case the widow (or 

10 widower) owns one half of the author's interest; 

11 (B) The author's surviving children, and the surviving 

12 children of any dead child of the author, own the author's 

13 entire termination interest unless there is a widow (or wid- 

14 ower) , in which case the ownership of one half of the author's 

15 interest is divided among them ; 

16 (C) The rights of the author's children and grandchildren 

17 are in all cases divided among them and exercised on a per 

18 stirpes basis according to the number of his children repre- 

19 sented ; the share of the children of a dead child in a termina- 

20 tion interest can be exercised only by the action of a majority 

21 of them. 

22 ( 3 ) Termination of the grant may be effected at any time during 

23 a period of five years beginning at the end of thirty -five years from 

24 the date of execution of the grant ; or, if the grant covers the right 

25 of publication of the work, the period begins at the end of thirty- 

26 five years from the date of publication of the work under the grant 

27 or at the end of forty years from the date of execution of the 

28 grant, whichever term ends earlier. 

29 (4) The termination shall be effected by serving an advance 

30 notice in writing, signed by the number and proportion of owners 

31 of termination interests required under clauses (1) and (2) of this 

32 subsection, or by their duly authorized agents, upon the grantee 

33 or his successor in title. 

34 (A) The notice shall state the effective date of the t«rmina- 

35 tion, which shall fall within the five-year period specified by 

36 clause (3) of this subsection, and the notice shall be served 

37 not less than two or more than ten years before that date. A 

38 copy of the notice shall be recorded in the Copyright Office 

39 before the effective date of termination, as a condition to its 

40 taking effect. 



32 



30 



1 (B) The notice shall comply, in form, content, and man- 

2 ner of service, with requirements that the Register of Copy- 

3 rights shall prescribe by regulation. 

4 (5) Termination of the grant may be effected notwithstand- 

5 ing any agreement to the contrary, including an agreement to 

6 make a will or to make any future grant. 

7 (b) Effect of Termination. — Upon the effective date of termina- 

8 tion, all rights under this title that were covered by the terminated 

9 grant revert to the author, authors, and other persons owning termi- 

10 nation interests under clauses (1) and (2) of subsection (a), includ- 

11 ing those owners who did not join in signing the notice of termination 

12 under clause (4) of subsection (a) but, with the following limitations : 

13 (1) -A- derivative work prepared under authority of the grant 

14 before its termination may continue to be utilized under the terms 

15 of the grant after its termination, but this privilege does not ex- 

16 tend to the preparation after the termination of other derivative 

17 works based upon the copyrighted work covered by the terminated 

18 grant. 

19 (2) The future rights that will revert upon termination of the 

20 grant become vested on the date the notice of termination has 

21 been served as provided by clause (4) of subsection (a). The 

22 rights vest in the author, authors, and other persons named in, 

23 and in the proportionate shares provided by, clauses (1) and (2) 

24 of subsection (a). 

25 (3) Subject to the provisions of clause (4) of this subsection, 

26 a further grant, or agreement to make a further grant, of any 

27 right covered by a terminated grant is valid only if it is signed 

28 by the same number and proportion of the owners, in whom the 

29 right has vested under clause (2) of this subsection, as are re- 

30 quired to terminate the grant under clauses (1) and (2) of sub- 

31 section (a). Such further grant or agreement is effective with 

32 respect to all of the persons in whom the right it covers has vested 

33 under clause (2) of this subsection, including those who did not 
34: join in signing it. If any person dies after rights under a ter- 

35 minated grant have vested in him, his legal representatives, 

36 legatees, or heirs at law represent him for purposes of this clause. 

37 (4) A further grant, or agreement to make a further grant, of 

38 any right covered by a terminated grant is valid only if it is made 

39 after the effective date of the termination. As an exception, how- 

40 ever, an agreement for such a further grant may be made between 



33 



31 

1 the persons provided by clause (3) of this subsection and the 

2 original grantee or his successor in title, after the notice of termi- 

3 nation has been served as provided by clause (4) of subsection (a) . 

4 (5) Termination of a grant under this section affects only those 

5 i-ights covered by the grant tluit arise under this title, and in no 

6 way affects rights arising under any other Federal, State, or for- 

7 eign laws. 

8 (6) Unless and until termination is etl'ected under this section, 

9 tlie grant, if it does not provide otherwise, contiiiues in effect for 

10 the term of copyright provided by this title. 

11 §204. Execution of transfers of copyright ownership 

12 (a) A transfer of copyright ownership, other than by operation of 

13 law, is not valid unless an instrument of conveyance, or a note or 

14 memorandum of the transfer, is in writing and signed by the owner 

15 of the rights conveyed or his duly authorized agent. 

16 (b) A certificate of acknowledgement is not required for the valid- 

17 ity of a transfer, but is prima facie evidence of the execution of the 

18 transfer if: 

19 (1) in the case of a transfer executed in the United States, the 

20 certificate is issued by a person authorized to administer oaths 

21 within the United States ; or 

22 (2) in the case of a transfer executed in a foreign country, the 

23 certificate is issued by a diplomatic or consular officer of the 

24 United States, or by a person authorized to administer oaths 

25 whose authority is proved by a certificate of such an officer. 

26 § 205. Recordation of transfers and other documents 

27 (a) CoxDiTioxs for Recordatiox. — Any transfer of copyright own- 

28 ership or otlier document pertaining to a copyright may be recorded 

29 in the Copyright Office if the document filed for recordation bears the 

30 actual signature of the person who executed it, or if it is accompanied 

31 by a sworn or official certification that it is a true copy of the original. 

32 signed document. 

33 (b) Certificate of Eecordatiox. — The Register of Copyrights 

34 shall, upon receipt of a document as provided by subsection (a) and 

35 of the fee provided by section 708, record the document and return it 

36 with a certificate of recordation. 

37 (c) Recordatiox as Cox'structive Notice. — Recordation of a docu- 

38 ment in the Copyright Office gives all persons constructive notice of the 

39 facts stated in the recorded document, but only if : 



34 



32 

1 (1) the document, or material attached to it, specifically identi- 

2 fies the work to which it pertains so that, after the document is 

3 indexed by the Register of Copyrights, it would be revealed by a 

4 reasonable search under the title or registration number of the 

5 work ; and 

6 (2) registration has been made for the work. 

' (d) Recordation as Prerequisite to Infringement Suit. — No per- 

° son claiming by virtue of a transfer to the owner of copyright or of 

^ any exclusive right under a copyright is entitled to institute an in- 

^^ fringement action under this title until the instrument of transfer 

^^ under which he claims has been recorded in the Copyright Office, but 

•'■^ suit may be instituted after such recordation on a cause of action that 

^^ arose before recordation. 

(e) Priority Between Conflicting Transfers. — As between two 
^^ conflicting transfers, the one executed first prevails if it is recorded, in 

the manner required to give constructive notice under subsection (c) 
within one month after its execution in the United States or within two 

1 Q 

months after its execution abroad, or at any time before recordation in 
such manner of the later transfer. Otherwise the later transfer prevails 
if recorded first in such manner, and if taken in good faith, for valu- 
able consideration or on the basis of a binding promise to pay royal- 
ties, and without notice of the earlier transfer. 

(f) Priority Between Conflicting Transfer of Ownership and 
^ Nonexclusive License. — A nonexclusive license, whether recorded or 

not, prevails over a conflicting transfer of copyright ownership if the 

26 • • • 

license is evidenced by a written instrument signed by the owner of the 

rights licensed or his duly authorized agent, and if : 

(1) the license was taken before execution of the transfer; or 

(2) the license was taken in good faith before recordation of 
the transfer and without notice of it. 

Chapter 3.— DURATION OF COPYRIGHT 

Sec. • 

301. Pre-emption with respect to other laws. 

302. Duration of oopyright : Works created on or after January 1, 1977. 

30.3. Duration of copyright : Works created but not published or copyrighted 
before .January 1, 1077. 

304. Duration of copyright : Subsisting copyrights. 

305. Duration of copyright : Terminal date. 

32 § 301. Pre-emption with respect to other laws 

33 (a) On and after Januat y 1. 107.7. all riirhts in the nature of cnpy- 

34 right in works that como within tlie subject matter of copyright as 

35 specified by sections 102 and 103, whether created before or after that 



16 

17 



20 
21 
22 
23 



27 
28 
29 
30 
31 



35 



33 



1 date and whether published or unpublished, are governed exclusively 

2 by this title. Thereafter, no person is entitled to copyright, literary 

3 property rights, or any equivalent legal or equitable right in any such 

4 work under the common law or statutes of any State. 

5 - (b) Nothing in this title annuls or limits any rights or remedies 

6 under the common law or statutes of any State with respect to : 

T ( 1 ) unpublished matei-ial that does not come within the subject 

8 matter of copyright as specified by sections 102 and 103, including 

9 works of authorship not fixed in any tangible medium of ex- 

10 pression ; 

11 (2) any cause of action arising from undertakings commenced 

12 before January 1, 1977; 

13 (3) activities violating rights that are not equivalent to any of 

14 the exclusive rights within the general scope of copyright as speci- 

15 fied by section 106, including breaches of contract, breaches of 

16 trust, invasion of privacy, defamation, and deceptive trade prac- 
1*^ tioes such as passing off and false representation. 

18 §302. Duration of copyright: Works created on or after Janu- 

19 ary 1, 1977 

20 (a) In General. — Copyright in a woi'k created on or after January 

21 1, 1977, subsists from its creation and. except as provided by the 

22 following subsections, endures for a term consisting of the life of the 

23 author and fifty years after his death. 

24 (b) Joint Works. — In the case of a joint work prepared by two 

25 or more authors who did not work for hire, the copyright endures for 

26 a term consisting of the life of the last surviving author and fifty 

27 years after his death. 

28 (c) Anonymous Works, Pseudonymous Works, and Works Made 

29 for Hire. — In the case of an anonymous work, a pseudonymous work 

30 or a work made for hire, the copyright endures for a term of seventy- 

31 five years from the year of its first publication, or a term of one 

32 himdred years from the year of its creation, whichever expires first. 

33 If, before the end of such term, the identity of one or more of the 

34 authors of an anonymous or pseudonymous work is revealed in the 

35 records of a registration made for that work under subsection (a) 

36 or (d) of section 407, or in the records prov-ided by this subsection, 

37 the copyright in the work endures for the term specified by subsections 

38 (a) or (b), based on tlie life of the author or authors whose identity 

39 has been i-evealed. Any person having an intei"est in the copyright in 

40 an anonymous or pseudonymous work may at any time record, in 



36 



34 

1 records to be maintained by the Copyright Office for that purpose, a 

2 statement identifying one or more authors of the work ; the statement 

3 shall also identify the person filing it, the nature of his interest, the 

4 source of his information, and the particular work affected, and shall 

5 comply in form and content witli requirements that the Register of 

6 Copyrights shall prescribe by regulation. 

7 (d) Records Relating to Death of Authobs. — Any person having 

8 an interest in a copyright may at any time record in the Copyright 

9 Office a statement of the date of death of the author of the copy- 

10 righted work, or a statement that the author is still living on a par- 

11 ticular date. The statement shall identify the pereon filing it, the 

12 nature of his interest, and the source of his information, and shall 

13 comply in form and content with requirements that the Register 

14 of Copyrights shall prescribe by regulation. The Register shall main- 

15 tain current records of information relating to the death of authors 

16 of copyrighted works, based on such recorded statements and, to the 

17 extent he considers practicable, on data contained in any of the records 

18 of the Copyright Office or in other reference sources. 

19 (e) Presumption as to Author's Death. — After a period of seventy- 

20 five years from the year of first publication of a work, or a period 

21 of one hundred years from the year of its creation, whichever expires 

22 first, any person who obtains from the Copyright Office a certified re- 

23 port that the records provided by subsection (d) disclose nothing to 

24 indicate that the author of the work is living, or died less than fifty 

25 years before, is entitled to the benefit of a presumption that the author 

26 has been dead for at least fifty years. Reliance in good faith upon this 

27 presumption shall be a complete defense to any action for infringe- 

28 ment under this title. 

29 § 303. Duration of copyright . Works created but not published 

30 or copyrighted before January 1, 1977 

31 Copyright in a work created before January 1, 1977, but not thereto- 

32 fore in the public domain or copyrighted, subsists from January 1, 

33 1977, and endures for the term provided by section 302. In no case, 

34 however, shall the term of copyright in such a work expire before 
December 31, 2001 ; and, if the work is published on or before December 
31, 2001, the term of copyright shall not expire before December 31, 



35 
36 



37 2026. 

38 § 304. Duration of copyright: Subsisting copyrights 

39 (a) Copyrights in Their First Term on January 1, 1977. — Any 

40 copyright, the first term of which is subsisting on January 1, 1977, 



37 



35 



1 shall endure for twenty-eight years from the date it was originally 

2 secured : Provided. That in the case of any posthumous work or of any 

3 periodical, cyclopedic, or other composite work upon wliich the copy- 

4 right was originally secured by the proprietor thereof, or of any work 

5 copyrighted by a corporate body (otherwise than as assignee or li- 

6 c*nsee of the individual author) or by an employer for whom such 

7 work is made for hire, the proprietor of such copyright shall be en- 

8 titled to a renewal and extension of the copyright in such work for the 

9 further term of forty-seven years when application for such renewal 

10 and extension shall have been made to the Copyriglit Office and duly 

11 registered therein within one year prior to the expiration of the origi- 

12 ual term of copyriglit : And pi'ovided further. That in the case of any 

13 other copyrighted work, including a contribution by an individual 
14: author to a periodical or to a cyclopedic or other composite work, the 

15 author of such work, if still living, or the widow, widower, or children 

16 of the author, if the author be not living, or if such author, widow, 
1' widower, or children be not living, then the author's executore, or in 

18 the absence of a will, his next of kin shall be entitled to a renewal and 

19 extension of the copyright in such work for a further term of forty- 

20 seven years when application for such renewal and extension shall 

21 have been made to the Copyright Office and duly registered therein 

22 within one year prior to the expiration of the original term of copy- 

23 right : Aiul provided further. That in default of tlie registration of 

24 such application for renewal and extension, the copyright in any work 

25 shall terminate at the expiration of twenty-eight years from the date 

26 copyright was originally secured. 

27 (b) Copyrights in Their Renewal. Term or Registered for Re- 

28 newal Before January 1, 1977. — The duration of any copyright, the 

29 renewal term of whicli is subsisting at any time between December 31, 

30 1975, and December 31, 197G. inclusive, or for which renewal registra- 

31 tion is made between December 31, 1975, and December 31. 1976, 

32 inclusive, is extended to endure for a term of 75 years from the date 

33 copyright was originally secured. 

34 (c) Termination of Transfers and Licenses Covering Extended 

35 Renewal Term. — In the case of any copyright subsisting in either 

36 its first or renewal term on January 1. 1977. other than a copyright 

37 in a work made for liire, the exclusive or nonexclusive grant of a trans- 

38 fer or license of the renewal copyright or of any right under it, 

39 executed before January 1, 1977, by any of the persons designated by 



38 



36 



1 the second proviso of subsection (a) of this section, otherwise than by 

2 will, is subject to termination under the following condition : 

3 ( 1 ) In the case of a grant executed by a person or persons other 

4 than the author, termination of the grant may be effected by the 

5 surviving person or persons who executed it. In the case of a 

6 grant executed by one or more of the authors of the work, termina- 

7 tion of the grant may be effected, to the extent of a particular 

8 author's share in the ownership of the renewal copyright, by the 

9 author who executed it or, if such author is dead, by the person or 

10 persons who, under clause (2) of this subsection, own and are 

11 entitled to exercise a total of more than one half of that author's 

12 termination interest. 

13 (2) Where an author is dead, his or her termination interest is 

14 owned, and may be exercised, by his widow (or her widower) and 

15 children or grandchildren as follows : 

1" (A) The widow (or widower) owns the author's entire 

1' termination interest unless there are any surviving children 

1° or grandchildren of the author, in which case the widow (or 

19 widower) owns one half of the author's interest; 

^ (B) The author's surviving children, and the surviving 

21 children of any dead child of the author, own the author's 

22 entire termination interest unless there is a widow (or wid- 

23 ower) , in which case the ownership of one half of the author's 

24 interest is divided among them ; 

25 (C) The rights of the author's children and grandchildren 

26 are in all cases divided among them and exercised on a per 

27 stirpes basis according to tlie number of his children repre- 

28 sented ; the share of the children of a dead child in a termina- 
ls tion interest can be exercised only by the action of a major- 
30 ity of them. 

"1 (3) Termination of the grant may be effected at any time dur- 

ing a period of five years beginning at the end of fifty-six years 
form the date copyright was originally secured, or beginning on 
January 1, 1977, whichever is later. 

(4) The termination shall be effected by serving an advance 
notice in writing upon the grantee or his successor in title. In the 
case of a gi-ant executed by a person or persons other than the 
author, the notice shall be signed by all of those entitled to termi- 
nate the grant under clause (1) of this subsection, or by their duly 
authorized agents. In the case of a grant executed by one or more 



32 
33 
34 
35 
36 
37 
38 
39 
40 



39 



37 

1 of the authors of the work, the notice as to any one author's share 

2 shall be signed by him or his duly authorized agent or, if he is 

3 dead, by the number and proportion of the owners of his termina- 

4 tion interest required under clauses (1) and (2) of this subsection, 

5 or by their duly authorized agents. 

6 (A) The notice shall state the eflfective date of the termi- 

7 nation, which shall fall within the five-year period specified 

8 by clause (3) of this subsection, and the notice shall be served 

9 not less than two or more than ten years before that date. A 

10 copy of the notice shall be recorded in the Copyright Office 

11 before the effective date of termination, as a condition to its 

12 taking effect. 

13 (B) The notice shall comply, in foi-m, content, and manner 

14 of service, with requirements that the Register of Copyrights 

15 shall prescribe by regulation. 

16 (5) Termination of the grant may be effected notwithstanding 

17 any agreement to the contrary, including an agreement to make 

18 a will or to make any future grant. 

19 (6) In the case of a grant executed by a person or persons other 

20 than the author, all rights under this title that were covered by 

21 the terminated grant revert, upon the effective date of termination, 

22 to all of those entitled to terminate the grant under clause (1) of 

23 this subsection. In the case of a grant executed by one or more 

24 of the authors of the work, all of a particular author's rights 

25 under this title that were covered by the terminated grant revert, 

26 upon the effective date of termination, to that author or, if he is 

27 dead, to the persons owning his termination interest under clause 

28 (2) of this subsection, including those owners who did not join 

29 in signing the notice of termination under clause (4) of this sub- 

30 section. In all cases the reversion of rights is subject to the follow- 

31 ing limitations : 

32 (A) A derivative work prepared under authority of the 

33 grant before its termination may continue to be utilized under 

34 the terms of the grant after its termination, but this privilege 

35 does not extend to the preparation after the t-ermination of 

36 other derivative works based upon the copyrighted work cov- 

37 ered by the terminated grant. 

38 (B) The future rights that will revert upon termination 

39 of the trrant become vested on the date the notice of termi- 



40 



38 



10 



^ nation has been served as provided by clause (4) of this 

^ subsection. 

^ (C) Where an author's rights revert to two or more per- 

* sons under clause (2) of. this subsection, they shall vest in 
^ those persons in the proportionate shares provided by that 
^ clause. In such a case, and subject to the provisions of sub- 

• clause (D) of this clause, a further grant, or agreement to 
° make a further grant, of a particular author's share with 
^ respect to any right covered by a terminated grant is valid 

only if it is signed by the same number and proportion of 

11 the owners, in whom the right has vested under this clause, 

12 as are required to terminate the grant under clause (2) of 

13 this subsection. Such further grant or agreement is effective 

14 with respect to all of the persons in whom the right it 

15 covers has vested under this subclause, including those who 

16 did not join in signing it. If any person dies after rights 

17 under a terminated grant have vested in him, his legal repre- 

18 sentatives, legatees, or heirs at law represent him for purposes 

19 of this subclass. 

20 (D) A further grant, or agreement to make a further 

21 grant, of any right covered by a terminated grant is valid 

22 only if it is made after the effective date of the termination. 

23 As an exception, however, an agreement for such a further 

24 grant may be made between the author or any of the per- 

25 sons provided by the first sentence of clause (6) of this 

26 subsection, or between the persons provided by subclause 

27 (C) of this clause, and the original grantee or his successor 

28 in title, after the notice of termination has been served as 

29 provided by clause (4) of this subsection. 

30 (E) Termination of a grant under this subsection affects 

31 only those rights covered by the grant that arise under this 

32 title, and in no way affects rights arising under any other 

33 Federal,State, or foreign laws. 

34 (F) Unless and until termination is effected under this 

35 section, the grant, if it does not provide otherwise, continues 

36 in effect for the remainder of the extended renewal term. 

37 § 305. Duration of copyright : Terminal date 

38 All terms of copyright provided by sections 302 through 304 run to 

39 the end of the calendar year in which they would otherwise expire. 



41 



39 

1 Chapter 4.— COPYRIGHT NOTICE, DEPOSIT, AND 

2 REGISTRATION 

Sec. 

401. Notice of copyright : Visually perceptible copies. 

402. Notice of copyright : Phonorecords of sound recordings. 

403. Notice of copyright : Publications incorporating United States Government 

works. 

404. Notice of copyright : Contributions to collective works. 

405. Notice of copyright : Omission of notice. 

406. Notice of copyright : Error in name or date. 

407. Deposit of copies or phonorecords for Library of Congress. 

408. Copyright registration in general. 

409. Application for registration. 

410. Registration of claim and Issuance of certificate. 

411. Registration as prerequisite to infringement suit. 

412. Registratiou as prerequisite to certain remedies for infringement. 

3 § 401. Notice of copyright : Visually perceptible copies 

4 (a) General Requirement. — ^Whenever a -work protected under 

5 this title is published in the United States or elsewhere by authority 

6 of the copyright owner, a notice of copyright as provided by this sec- 

7 tion shall be placed on all publicly distributed copies from which the 

8 work can be visually perceived, either directly or with the aid of a 

9 machine or device. 

10 (b) Form of Notice. — The notice appearing on the copies shall con- 

11 sist of the following three elements : 

12 (1) the symbol © (the letter C in a circle), the word "Copy- 

13 right," or the abbreviation "Copr.'' ; 

14 (2) the year of first publication of the work: in the case of 

15 compilations or derivative works incorporating previously pub- 

16 lished material, the year date of first publication of the compila- 

17 tion or derivative work is sufficient. The year date may be omitted 

18 where a j^ictorial, graphic, or sculptural work, with accompanying 

19 text matter, if any. is reproduced in or on greeting cards, post- 
20 cards, stationery, jewelry, dolls, toys, or any useful articles ; 

21 (3) the name of the owner of copyright in the work, or an ab- 

22 breviation by which the name can be recognized, or a generally 

23 known alternative designation of the owner. 

24 (c) Position of Notice. — The notice shall be affixed to the copies in 

25 such manner and location as to give reasonable notice of the claim 

26 of copyright. The Register of Copyrights shall prescribe by regula- 

27 tion, as examples, specific methods of affixation and positions of the 

28 notice on various types of woi-ks that will satisfy this requirement, but 

29 these specifications shall not be considered exhaustive. 

30 §402. Notice of copyright : Phonorecords of sound recordings 

31 (a) General Requirejlext. — Whenever a sound recording pro- 



c;7_'7QC r^ 



42 



40 

1 tected under this title is published in the United States or elsewhere by 

2 authority of the copyright owner, a notice of copyright as provided 

3 by this section shall be placed on all publicly distributed phonorecords 

4 of the sound recording. 

5 (b) Form of Notice. — The notice appearing on tlie phonorecords 

6 shall consist of the following three elements : 

7 (1) the symbol ® (the letter P in a circle) ; 

8 (2) the year of first publication of the sound recording ; 

9 (3) the name of the owner of copyrights in the sound record- 

10 ing, or an abbreviation by which the name can be recognized, or a 

11 generally known alternative designation of the owner; if the 

12 producer of the sound recording is named on the phonorecord 

13 labels or containers, and if no other name appears in conjunction 

14 with the notice, his name shall be considered a part of the notice. 

15 (c) Position of Notice. — The notice shall be placed on the surface 

16 of the phonorecord, or on the phonorecord label or container.- in such 

17 manner and location as to give reasonable notice of the claim of copy- 

18 right. 

19 §403. Notice of copyright: Publications incorporating United 

20 State Government works 

21 Whenever a work is published in copies or phonorecords consisting 

22 preponderantly of one or more works of the United States Govern- 

23 ment, the notice of copyright provided by section 401 or 402 shall 

24 also include a statement identifying, either affirmatively or negatively, 

25 those portions of the copies or phonorecords embodying any work or 

26 works protected under this title. 

27 §404. Notice of copyright: Contributions to collective works 

28 (a) A separate contribution to a collective work may bear its own 

29 notice of copyright, as provided by section 401 througli 403. How- 

30 ever, a single notice applicable to the collective work as a whole is 

31 sufficient to satisfy the requirements of sections 401 through 403 with 

32 respect to the separate contributions it contains (not including adver- 

33 tisements inserted on behalf of persons other than the owner of copy- 

34 right in the collective work) , regardless of the ownership of copyright 

35 in the contributions and whether or not they have been previously 

36 published. 

37 (b) Where the person named in a single notice applicable to a 

38 collective work as a whole is not the owner of copyright in a separate 

39 contribution that does not bear its own notice, the case is governed 

40 by the provisions of section 406(a). 



43 



41 

1 § 405. Notice of copyright : Omission of notice 

2 (a) Effectt of Omission on Copyright. — The omission of the copy- 

3 right notice described by sections 401 through 408 from copies or 

4 phonorecords publicly distributed by authority of the copyright 

5 owner does not invalidate the copyright in a work if : 

6 (1) the notice has been omitted from no more than a relatively 

7 small number of copies or phonorecords distributed to the public ; 

8 or 

9 (2) registration for the work has been made before or is made 

10 within five years after the publication without notice, and a 

11 reasonable effort is made to add notice to all copies or phono- 

12 records that are distributed to the public in the United States 

13 after the omission has been discovered; or 

14 (3) the notice has been omitted in violation of an express re- 

15 quirement in writing that, as a condition of the copyright owner's 

16 authorization of the public distribution of copies or phonorecords, 

17 they bear the prescribed notice. 

18 (b) Effect of Omission on Innocent Infringers. — Any person 

19 who innocently infringes a copyright, in reliance upon an authorized 

20 copy or phonorecord from which the copyright notice has been 

21 omitted, incurs no liability for actual or statutory damages under sec- 

22 tion 504 for any infringing acts committed before receiving actual 

23 notice that registration for the work has been made under section 408, 
^ if he proves that he was misled by the omission of notice. In a suit 

25 for infringement in such a case the court may allow or disallow re- 

26 covery of any of the infringer's profits attributable to the infringe- 

27 ment, and may enjoin the continuation of the infringing undertaking 

28 or may require, as a condition for permitting the infringer to con- 

29 tinue his undertaking, that he pay the copyright owner a reason- 

30 able license fee in an amount and on terms fixed by the court. 

31 (c) Removal of Notice. — Protection under this title is not affected 

32 by the removal, destruction, or obliteration of the notice, without 

33 the authorization of the copyright owner, from any publicly distrib- 

34 uted copies or phonorecords. 

35 §406. Notice of copyright: Error in name or date 

36 (a) Error in Name. — Where the person named in the copyright 

37 notice on copies or phonorecords publicly distributed by authority of 

38 the copyright owner is not the owner of copyright, the validity and 

39 ownership of the copyright are not affected. In such a case, however. 

40 any person who innocently begins an undertaking that infringes the 



44 



42 



1 copyright has a complete defense to any action for such infringement 

2 if he proves that he was misled by the notice and began the undertak- 

3 ing in good faith under a purported transfer or license from the person 

4 named therein, unless before the undertaking was begun : 

5 (1) registration for the work had been made in the name of 

6 the owner of copyright ; or 

7 (2) a document executed by the person named in the notice 

8 and showing the ownership of the copyright had been recorded. 
& The person named in the notice is liable to account to the copyright 

10 owner for all receipts from purported transfei'S or licenses made by 

11 him under the copyright. 

12 (b) Error in Date. — When the year date in the notice on copies or 

13 phonorecords distributed by authority of the copyright owner is 

14 earlier than the year in which publication first occurred, any period 

15 computed from the year of first publication under section 302 is to be 

16 computed from the year in the notice. Where the year date is more 

17 than one year later than the year in which publication first occurred, 

18 the work is considered to have been published without any notice and 

19 is governed by the provisions of section 405. 

20 (c) Omission of Name or Date. — Where copies or phonorecords 

21 publicly distributed by authority of tlie copyright owner contain no 

22 name or no date that could reasonably be considered a part of the 

23 notice, the work is considered to have been published witliout any 

24 notice and is governed by the provisions of section 405. 

25 § 407. Deposit of copies or phonorecords for Library of Congress 

26 (a) Except as provided by subsection (c), the owner of copyright 

27 or of the exclusive right of publication in a work published with no- 

28 tice of copyright in the United States shall deposit, within three 

29 months after the date of such publication : 

30 ( 1 ) two complete copies of the best edition ; or 

31 (2) if the work is a sound recording, two complete phono- 

32 i-ecords of the best edition, together with any printed or other 

33 visually perceptible material published with such phonorecords. 

34 This deposit is not a condition of copyright protection. 

35 (b) The required copies or phonorecords shall be deposited in tlie 

36 Copyright Office for the use or disposition of the Library of Congress. 

37 Tlie Register of Copyrights shall, when requested by the depositor 

38 and upon payment of the fee prescribed by section 708, issue a receipt 

39 for the deposit. 

40 (c) The Eegister of Copyrights may by regulation exempt any 



45 



43 

1 categories of material from the deposit requirements of this section, 

2 or require deposit of only one copy or phonorecord with respect to 

3 any categories. 

4 (d) At any time after publication of a work as provided by sub- 

5 section (a), the Register of Copyrights may make written demand 

6 for the required deposit on any of the persons obligated to make the 

7 deposit under subsection (a). Unless deposit is made within three 

8 months after the demand is received, the person or persons on whom 

9 the demand was made are liable : 

10 (1) toafineof not more than $250 for each work; and 

11 (2) to pay to the Library of Congress the total retail price of 

12 the copies or phonorecords demanded, or, if no retail price has 

13 been fixed, the reasonable cost to the Library of Congress of 

14 acquiring them. 

15 § 408. Copyright registration in general 

16 (a) Registration^ Permissive. — At any time during the subsistence 

17 of copyright in any published or unpublished work, the owner of 

18 copyright or of any exclusive right in the work may obtain registration 

19 of the copyright claim by delivering to the Copyright Office the deposit 

20 specified by this section, together with the application and fee specified 

21 by sections 409 and 708. Subject to the provisions of section 405(a), 

22 such registration is not a condition of copyright protection. 

23 (b) Deposit for Copyright Registration. — Except as provided by 

24 subsection (c), the material deposited for registration shall include: 

25 (1) in the case of an impublished work, one complete copy or 

26 phonorecord ; 

27 (2) in the case of a published work, two complete copies or 

28 phonorecords of the best edition ; 

29 (3) in the case of a work first published abroad, one complete 

30 copy or phonorecord as so published ; 

31 (4) in the case of a contribution to a collective work, one com- 

32 plete copy or phonorecord of the best edition of the collective 

33 work. 

34 Copies or phonorecords deposited for the Library of Congress imder 

35 section 407 may be used to satisfy the deposit provisions of this section, 

36 if they are accompanied by the prescribed application and fee, and by 

37 any additional identifying material that the Register may, by regula- 

38 tion, require. 

39 (c) Administrative Classification and Optional Deposit. — The 

40 Register of Copyrights is authorized to specify by regulation the 



46 



44 

1 administrative classes into which works are to be placed for purposes of 

2 deposit and registration, and the nature of the copies or phonorecords 

3 to be deposited in tlie various classes specified. The regulations may 

4 require or permit, for particular classes, the deposit of identifying 

5 material instead of copies or phonorecords, the deposit of only one copy 

6 or phonorecord where two would normally be required, or a single 

7 registration for a group of related works. This administrative classi- 

8 fication of works has no significance with resj^ect to the subject matter 

9 of copyright or the exclusive rights provided by this title. 

10 (d) Corrections and Amplifications. — The Register may also 

11 establisih, by regulation, formal procedures for the filing of an applica- 

12 tion for supplementary registration, to corre^^t an error in a copyrig'ht 

13 registration or to amplify the information given in a registration. Such 

14 application shall be accompanied by the fee provided by section 708, 

15 and shall clearly identify the registration to be corrected or amplified. 

16 The information contained in a supplementary registration augments 

17 but does not supersede that contained in the earlier registration. 

18 (e) Published Edition of Previously Registered Work. — ^Reg- 

19 istration for the first published edition of a work previously registered 

20 in unpublished form may be made even though the work as published is 

21 substantially the same as the unpublished version. 

22 § 409. Application for registration 

23 The application for copyright registration shall be made on a form 

24 prescribed by the Register of Copyrights and shall include : 

25 ( 1 ) the name and address of the copyright claimant ; 

26 (2) in the case of a work other than an anonymous or pseudony- 

27 mous work, the name and nationality or domicile of the author or 

28 authors and, if one or more of the authors is dead, the dates of 

29 their deaths; 

30 (3) if the work is anonymous or pseudonymous, the nationality 

31 or domicile of the author or authors ; 

32 (4) in the case of a work made for liire, a statement to this 

33 effect; 

34 (5) if the copyright claimant is not the author, a brief state- 

35 ment of how the claimant obtained ownership of the copyright ; 

36 (6) the title of the work, together with any previous or alterna- 

37 tive titles under which the work can be identified ; 

38 (7) the year in which creation of t lie work was completed ; 

39 (8) if the work has been published, the date and nation of its 

40 first publication ; 



47 



45 

1 (9) in the case of a compilation or derivative work, an identi- 

2 fication of any pre-existing work or works that it is based on or 

3 incorporates, and a brief, general statement of the additional 
4: material covered by the copyright claim being registered; 

5 (10) in the case of a published work containing material of 

6 which copies are required by section 601 to be manufactured in 

7 the United States, the names of the persons or organizations 

8 who performed the processes specified by subsection (c) of sec- 

9 tion 601 with respect to that material, and the places where those 

10 processes were performed ; and 

11 (11) any other information regarded by the Register of Copy- 

12 rights as bearing upon the preparation or identification of the 

13 work or the existence, ownership, or duration of the copyright. 

14 § 410. Registration of claim and issuance of certificate 

15 (a) Wlien, after examination, the Register of Copyrights deter- 

16 mines that, in accordance with the provisions of this title, the material 

17 deposited constitutes copyrightable subject matter and that the other 

18 legal and formal requirements of this title have been met, he shall reg- 

19 ister the claim and issue to the applicant a certificate of registration 

20 under the seal of the Copyright Office. The certificate shall contain 

21 the information given in the application, together with the number 

22 and effective date of the registration. 

23 (b) In any case in which the Register of Copyrights determines 

24 that, in accordance with the provisions of this title, the material de- 

25 posited does not constitute copyrightable subject matter or that the 

26 claim is invalid for any other reason, he sail refuse registration and 

27 shall notify the applicant in writing of the reasons for his action. 

28 (c) In any judicial proceedings the certificate of a registration made 

29 before or within five years after first publication of the work shall 

30 constitute prima facie evidence of the validity of the copyright and 

31 of the facts stated in the certificate. The evidentiary weight to be 

32 accorded the certificate of a registration made thereafter shall be 

33 within the discretion of the court. 

34 (d) The effective date of a copyright registration is the day on 

35 which an application, deposit, and fee, which are later determined by 

36 the Register of Copyrights or by a court of competent jurisdiction to 

37 be acceptable for registrtion, have all been received in the Copyright 

38 Office. 



48 



46 



1 § 411. Registration as pierequisite to infringement suit 

2 (a) Subject to the provisions of subsection (b), no action for in- 

3 fringement of the copyright in any work shall be instituted until 

4 registration of the copyright claim has been made in accordance with 

5 this title. In any case, however, where the deposit, application, and fee 

6 required for registration have been delivered to the Copyright Office 

7 in proper form and registration has been refused, the applicant is 

8 entitled to institute an action for infringement if notice thereof, with 

9 a copy of the complaint, is served on the Register of Copyrights. The 

10 Register may, at his option, become a party to the action with respect 

11 to the issue of registrability of the copyright claim by entering his 

12 appearance within sixty days after such service, but his failure to do 

13 so shall not deprive the court of jurisdiction to determine that issue. 

14 (b) In the case of a work consisting of sounds, images, or both, the 

15 first fixation of which is made simultaneously with its transmission, 

16 the copyright owner may either before or after such fixation takes 

17 place, institute an action for infringement under section 501, fully 

18 subject to the remedies provided by sections 502 through 506, if. in 

19 accordance with requirements that the Register of Copyrights shall 

20 prescribe by regulation, the copyright owner — 

21 (1) serves notice upon the infringer, not less than ten or more 

22 than thirty days before such fixation, identifying the work and 

23 the specific time and source of its first transmission, and declar- 

24 ing an intention to secure copyright in the work ; and 

25 (2) makes registration for the work within three months after 

26 its first transmission. 

27 § 412. Registration as prerequisite to certain remedies for 

28 infringement 

29 In any action under this title, other than an action instituted under 

30 section 411 (b) , no award of statutory damages or of attoinoj-'s fees, as 

31 provided by sections 504 and 505, shall be made for : 

32 (1) anj' infringement of copyright in an unpublished work 

33 commenced before the effective date of its registration; or 

34 (2) any infringement of copyright commenced after first pub- 

35 lication of the work and before the effective date of its registra- 

36 tion, unless such registration is made within three months after 

37 its first publication. 



49 



47 

1 Chapter 5.— COPYRIGHT INFRINGEMENT AND REMEDIES 

Sec. 

501. Infringement of copyright. 

502. Remedies for infringement : Injunctions. 

503. Remedies for infringement : Impounding and disposition of infringing 

articles. 

504. Remedies for infringement : Damages and profits. 

505. Remedies for infringement : Costs and attorney's fees. 

506. Criminal offenses. 

507. Limitations on actions. 

508. Notification of filing and determination of actions. 

2 § 501. Infringement of copyright 

3 (a) Anyone who violates any of the exclusive rights of the copy- 

4 right owner as provided by sections 106 through 117, or who imports 

5 copies or phonorecords into the United States in violation of section 

6 602, is an infringer of the copyright. 

7 (b) The legal or beneficial owner of an exclusive right under a 

8 cojiyright is entitled, subject to the requirements of sections 205(d) 

9 and 411, to institute an action for any infringement of that particular 

10 right committed while he is the owner of it. The court may require 

11 him to serve written notice of the action with a copy of the complaint 

12 upon any person shown, by the records of the Copyright Office or 

13 otherwise, to have or claim an interest in the copyright, and shall re- 

14 quire that such notice be served upon any person whose interest is 

15 likely to be affected by a decision in the case. The court may require 

16 the joinder, and shall permit the intervention, of any person having 

17 or claiming an interest in the copyright. 

18 (c) For any secondary transmission by a cable system that em- 

19 bodies a performance or a display of a work which is actionable as an 

20 act of infringement under subsection (c) of section 111, a television 

21 broadcast station holding a copyright or other license to transmit or 

22 j)erf orm the same version of that work shall, for purposes of subsection 

23 (b) of this section, be treated as a legal or beneficial owner if such 

24 secondary transmission occurs within the local service area of that 

25 television station. 

26 § 502. Remedies for infringement: Injunctions 

27 (a) Any court having jurisdiction of a civil action arising under 

28 this title may, subject to the provisions of section 1498 of title 28, 

29 grant temporary and final injunctions on such terms as it may deem 

30 reasonable to prevent or restrain infringement of a copyright. 

31 (b) Any such injunction may be served anywhere in the United 

32 States on the person enjoined; it shall be operative throughout the 

33 United States and shall be enforceable, by proceedings in contempt or 

34 otherwise, by any United States court having jurisdiction of that per- 



50 



48 



1 son. The clerk of the court granting the injunction shall, when re- 

2 quested by any other court in which enforcement of the injunction is 

3 sought, transmit promptly to the other court a certified copy of all 

4 the papers in the case on file in his office. 

'5 § 503. Remedies for infringement : Impounding and disposition of 

6 infringing articles 

7 (a) At any time while an action under this title is pending, the court 

8 may order the impounding, on such terms as it may deem reasonable, 

9 of all copies or phonorecords claimed to have been made or used in vio- 

10 lation of the copyright owner's exclusive rights, and of all plates, 

11 molds, matrices, masters, tapes, film negatives, or other articles by 

12 means of which such copies or phonorecords may be reproduced. 

13 (b) As part of a final judgment or decree, the court may order the 

14 destruction or other reasonable disposition of all copies or phonorec- 

15 ords found to have been made or used in violation of the copyright 

16 owner's exclusive rights, and of all plates, molds, matrices, masters, 

17 tapes, film negatives, or other articles by means of which such copies 

18 or phonorecords may be reproduced. 

19 § 504. Remedies for infringement : Damages and profits 

20 (a) In General. — Except as otherwise provided by this title, an in- 

21 f ringer of copyright is liable for either : 

22 (1) the copyright owner's actual damages and any additional 

23 profits of the infringer, as provided by subsection (b) ; or 

24 (2) statutory damages, as provided by subsection (c). 

25 (b) Actual Damages and Profits. — The copyright owner is en- 

26 titled to recover the actual damages suffered by him as a result of the 

27 infringement, and any profits of the infringer that are attributable to 

28 the infringement and are not taken into account in computing the 

29 actual damages. In establishing the infringer's profits, the copyright 

30 owner is required to present proof only of the infringer's gross revenue, 

31 and the infringer is required to prove his deductible expenses and the 

32 elements of profit attributable to factors other than the copyrighted 

33 work. 

34 (c) Statutory Damages.— 

35 (1) Except as provided by clause (2) of this subsection, the 

36 copyright owner may elect, at any time before final judgment is 

37 rendered, to recover, instead of actual damages and profits, an 

38 award of statutory damages for all infringements involved in 

39 the action, with respect to any one work, for winch any one 

40 infringer is liable individually, or for which any two or more 



51 



49 

1 infrinjjers are liable jointly and severally, in a sum of not less 

2 than $250 or more tlian $10,000 as the court considers just. For 

3 the purposes of this subsection, all the parts of a compilation or 

4 derivati\-e Avoi'k constitute one work. 

5 (2) Tn a case where the copyright owner sustains the burden 

6 of provin<r, and the court finds, that infrin<rement was committed 

7 willfully, tlie court in its discretion may increase the award of 

8 statutory damages to a smn of not more than $50,000. In a case 

9 where the infringer sustains the burden of proving, and the court 

10 finds, that he was not aware and had no reason to believe that his 

11 acts constituted an infringement of copyright, the court in its 

12 discretion may reduce tlie award of statutory damages to a sum 

13 of not less than $100. In a case where an instructor, librarian or 

14 archivist in a nonprofit educational institution, library, or ar- 

15 chives, who infringed by reproducing a copyrighted work in copies 

16 or phonorecords, sustains the burden of proA'ing that he believed 

17 and had reasonable grounds for believing that the reproduction 

18 was a fair use under section 107, the court in its discretion may 

19 remit statutory damages in whole or in part. 

20 § 505. Remedies for infringement: Costs and attorney's fees 

21 In any civil action under tjiis title, the court in its discretion may 

22 allow the recovery of full costs by or against any party other than 

23 the United States or an officer thereof. Except as otherwise provided 

24 by this title, the court may also award a reasonable attorney's fee to 

25 the prevailing party as part of the costs. 

26 § 506. Criminal offenses 

27 (a) Criiminai. Infringement. — Any person who infringes a 

28 copyright willfully and for purposes of commercial advantage or pri- 

29 vate financial gain shall be fined not more than $2,500 or imprisoned 

30 not more than one year, or both, for the first such offense, and shall 

31 be fined not more than $10,000 or imprisoned not more than three 

32 years, or both, for any subsequent oft'ense, provided however, that any 

33 person wlio infringes willfully and for purposes of commercial advan- 

34 tage or private financial gain the copyright in a sound recording 

35 afforded by subsections (1) and (3) in section 106 or the copyright in 

36 a motion picture afforded by subsections (1), (3), and (4) in section 

37 106 shall be fined not more than $25,000 or imprisoned for not more 

38 than one year, or both, for the first such offense and shall be fined 

39 not more than $50,000 or imprisoned not more than two years, or 

40 both, for any subsequent offense. 



52 



50 



1 (h) Fraudulent Copyrioht Notice. — Any person who, with fraud- 

2 nlent intent, places on any article a notice of copyright or words of 

3 the same purport that he knows to be false, or who, with fraudulent 

4 intent, publicly distributes or imports for public distribution any 

5 article bearing such notice or words that he knows to be false, shall be 

6 fined not more than $2,500. 

7 (c) Frauoulext Removal of CopYr.iciiT Notice. — Any person who, 

8 with fraudulent intent, removes or alters any notice of copyright 

9 appearing on a copy of a copyrighted work shall be fined not more 

10 than $2,500. 

11 (d) False Representation. — Any person who knowingly makes a 

12 false representation of a material fact in the application for copyright 

13 registration provided for by secton 409, or in any written statement 

14 filed in connection with the application, shall be fined not more than 

15 $2,500. 

16 § 507. Limitations on actions 

17 (a) Criminal Proceedings.— No criminal proceeding shall be main- 

18 tained under the provisions of this title unless it is commenced within 

19 three years after the cause of action ai'ose. 

20 (b) Civil Actions. — No civil action shall be maintained under the 

21 provisions of this title unless it is commenced within three years after 

22 the claim accrued. 

23 § 508. Notification of filing and determination of actions 

24 (a) Within one month softer the filing of any action under this title, 

25 the clerks of the courts of the United States shall send written notifica- 

26 tion to the Register of Copyrights setting forth, as far as is shown 

27 by the papers filed in the court, the names and addresses of the parties 

28 and the title, author, and registration number of each work involved 

29 in the action. If ajiy other copyrighted work is later included in the 

30 action by amendment, answer, or other pleading, the clerk shall also 

31 send a notification concerning it to tlie Register within one month 

32 after the pleading is filed. 

33 (b) Within one month after any final order or judgment is issued 

34 in tlie case, the clerk of the court shall notify the Register of it, 

35 sending him a copy of the order or judgment together with the written 

36 opinion, if any, of the court. 

37 (c) Upon receiving the notifications specified in this section, the 

38 Registei' shall make them a part of the public records of the Copyright 

39 Office. 



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51 

1 Chapter 6.— MANUFACTURING REQUIREMENT AND 

2 IMPORTATION 

Sec. 

601. Manufacture, importation, and public distribution of certain copies. 

602. Infringing importation of copie.s or phonorecord.s. 

603. Importation prohibitions : Enforcement and disposition of excluded articlea 

3 § 601. Manufacture, importation, and public distribution of cer- 

4 tain copies 

5 (a) Except as provided by subsection (b), the importation into or 

6 public distribution in the United States of copies of a work consisting 

7 preponderantly of nondramatic literary material that is in the English 

8 language and is protected under this title is prohibited unless the 

9 i^ortions consisting of such material have been manufactured in the 

10 United States or Canada. 

11 ( b ) The provisions of subsection ( a ) do not apply : 

12 (1) where, on the date when importation is sought or public 

13 distribution in the United States is made, the author of any sub- 

14 stantial part of such material is neither a national nor a domicil- 

15 iary of the United States or, if he is a national of the United 

16 States, has been domiciled outside of the United States for a 

17 continuous period of at least one year immediately preceding that 

18 date ; in the case of work made for hire, the exemption provided 

19 by this clause does not apply unless a substantial part of the work 

20 was prepared for an employer or other person who is not a na- 

21 tional or domiciliary of the United States or a domestic corpora- 

22 tion or enterprise ; 

23 (2) where the Bureau of Customs is presented with an import 

24 statement issued under the seal of the Copyright Office, in which 

25 case a total of no more than two thousand copies of any one such 

26 work shall be allowed entry ; the import statement shall be issued 

27 upon request to the copyright owner or to a person designated by 

28 bim at the time of registration for the work under section 408 

29 or at any time thereafter ; 

30 (3) where importation is sought under the authority or for the 

31 use, other than in schools, of the government of the United States 

32 or of any State or political subdivision of a State ; 

33 (4) where importation, for use and not for sale, is sought: 

34 (A) by any person with respect to no more than one copy 

35 of any one work at any one time ; 

36 (B) by any person arriving from abroad, with respect to 

37 copies forming part of his personal baggage ; or 



54 



52 

1 (C) by an organization operated for scholarly, educa- 

2 tional, or religious purposes and not for private gain, with 

3 respect to copies intended to form a part of its library ; 

4 (5) where the copies are reproduced in raised characters for 

5 the use of the blind ; 

6 (6) where, in addition to copies imported under clauses (3) 

7 and (4) of this subsection, no more than two thousand copies of 

8 any one such work, which have not been manufactured in the 

9 United States or Canada, are publicly distributed in the United 

10 States. 

11 (c) The requirement of this section that copies be manufactured in 

12 the United States or Canada is satisfied if : 

13 (1) in the case where the copies are printed directly from type 

14 that has been set, or directly from plates made from such type, 

15 the setting of the type and the making of the plates have been 

16 performed in the United States or Canada ; or 

17 (2) in the case where the making of plates by a lithographic 

18 or photoengraving process is a final or intermediate step preceding 

19 the printing of the copies, the making of the plates has been per- 

20 formed in the United States or Canada ; and 

21 (3) in any case, the printing or other final process of producing 

22 multiple copies and any binding of the copies have been performed 

23 in the United States or Canada. 

24 (d) Importation or public distribution of copies in violation of 

25 this section does not invalidate protection for a work under this title. 

26 However, in any civil action or criminal proceeding for infringement 

27 of the exclusive rights to reproduce and distribute copies of the work, 

28 the infringer has a complete defense with respect to all of the non- 
29 dramatic literary material comprised in the work and any other parts 

30 of the work in which the exclusive rights to reproduce and distribute 

31 copies are owned by the same person who owns such exclusive rights 

32 in the nondramatic literary material, if he proves : 

33 (1) that copies of the work have been im^wrted into or publicly 

34 distributed in the United States in violation of this section by or 

35 with the authority of the owner of such exclusive rights ; and 

36 (2) that the infringing copies were manufactured in the United 

37 States or Canada in accordance with the provisions of subsection 

38 (c) ; and 

39 (3) that the infringement was commenced before the effective 



55 



53 

1 date of registration for an authorized edition of the work, the 

2 copies of which have been manufactured in the United States or 

3 Canada in accordance with the provisions of subsection (c). 

4 (e) In any action for infringement of the exclusive rights to repro- 

5 duce and distribute copies of a work containing material required by 

6 this section to be manufactured in the United States or Canada, the 

7 copyright owner shall set forth in the complaint the names of the per- 

8 sons or organizations who performed the processes specified by subsec- 

9 tion (c) with respect to that material, and the places where those 

10 processes were performed. 

11 § 602. Infringing importation of copies or phonorecords 

12 (a) Importation into the United States, without the authority of 

13 the owner of copyright under this title, of copies or phonorecords of 

14 a work that have been acquired albroad is an infringement of the 

15 exclusive right to distribute copies or phonorecords under section 106, 

16 actionable under section 501. This subsection does not apply to : 

17 (1) importation of copies or phonorecords under the authority 

18 or for the use of the government of the United States or of any 

19 State or political subdivision of a State but not including copies 

20 or phonorecords for use in schools, or copies of any audiovisual 

21 work imported for purposes other than archival use ; 

22 (2) importation, for the private use of the importer and not 

23 for distribution, by any person with respect to no more than one 

24 copy or phonorecord of any one work at any one time, or by any 

25 person arriving from abroad with respect to copies or phono- 

26 records forming part of his personal baggage; or 

27 (3) importation by or for an organization operated for schol- 

28 arly, educational, or religious purposes and not for private gain, 

29 with respect to no more than one copy of an audiovisual work 

30 solely for its archival purposes, and no more than five copies or 

31 phonorecords of any other work for its library lending or archival 

32 purposes. 

33 (b) In a case where the making of tlie copies or phonorecords would 

34 have constituted an infringement of copyright if this title had been 

35 applicable, their importation is prohibited. In a case where the copies 

36 or phonorecords were lawfully made, the Bureau of Customs has no 

37 authority to prevent their importation unless the provisions of section 

38 601 are applicable. In either case, the Secretary of tlic Treasury is 

39 authorized to prescribe, by regulation, a procedure under which any 



56 



54 

1 person claiming an interest in the copyright in a particular work may, 

2 upon payment of a specified fee. be entitled to notification by the 

3 Bureau of the importation of articles that appear to be copies or 

4 phonorecords of the work. 

5 §603. Importation prohibitions: Enforcement and disposition of 

6 excluded articles 

7 (a) The Secretary of the Treasui'V and the United States Postal 

8 Service shall separately or jointly make regulations for the enforce- 

9 ment of the provisions of this title prohibiting importation. 

10 (b) These regulations may require, as a condition for the exclusion 

11 of articles under section 602 : 

12 (1) that the person seeking exclusioii obtain a court order 

13 enjoining importation of the articles; or 

14 (2) that he furnish proof, of a specified nature and in accoid- 

15 ance with prescribed procedures, that the copyright in which he 

16 claims an interest is valid and that the importation would violate 

17 the prohibition in section 602 ; he may also be required to post a 

18 surety bond for any injury that may result if the detention or 

19 exclusion of the articles proves to be unjustified. 

20 (c) Articles imported in violation of the importation prohibitions 

21 of this title are subject to seizure and forfeiture in the same manner 

22 as property imported in violation of the customs revenue laws. For- 

23 feited articles shall be destroyed as directed by the Secretary of the 

24 Treasury or tlie court, as the case may be : howevei-, the articles may be 

25 returned to the countiy of export whenever it is shown to the satisfac- 

26 tion of the Secretary of the Treasury that the importer had no reasftn- 

27 able grounds for believing that his acts constituted a violation of law. 

28 Chapter 7.— COPYRIGHT OFFICE 

Sec. 

701. The Copyright Office : General responsibilities and organization. 

702. Copyright Office regulations. 

703. Effective date of actions in Copyright Office. 

704. Retention and disposition of articles deposited in Copyright Office. 

705. Copyright Office records: Preparation, maintenance, public inspection, and 

searching. 

706. Copies of Copyright Office records. 

707. Copyright Office forms and publications. 

708. Copyriglit Off.ce fees. 

709. Delay in delivery caused by disruption of jiostal or other services. 

29 §701. The Copyright Office: General responsibilities and organi- 

30 zation 

31 (a) All administrative functions and duties under this title, ex- 

32 cept as otherwise specified, are the responsibility of the Register of 

33 Copyrights as director of the Copyright Office in the Library of Con- 



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55 

1 gress. The Register of Copyrights, together with the subordinate 

2 officers and employees of the Copyright Office, sliall be appointed by 

3 the Librarian of Congress, and shall act under his general direction 
4: and supervision. 

5 (b) The Register of Copyrights shall adopt a seal to be used on 

6 and after January 1, 1977, to authenticate all certified documents 

7 issued by the Copyright Office. 

8 (c) The Register of Copyrights shall make an annual report to 

9 the Librarian of Congress of the work and accomplishments of the 

10 Copyright Office during the previous fiscal year. The annual report 

11 of the Register of Copyrights shall be published separately and as 

12 a part of the annual report of the Librarian of Congress. 

13 § 702. Copyright Office regulations 

14 The Register of Copyrights is authorized to establish regulations 

15 not inconsistent with law for the administration of the functions and 

16 duties made his responsibility under this title. All regulations estab- 

17 lished by the Register under this title are subject to the approval of 

18 the Librarian of Congress. 

19 §703. EfiFective date of actions in Copyright Office 

20 In any case in which time limits are prescribed under this title 

21 for the performance of an action in the Copyright Office, and in 

22 which the last day of the prescribed period falls on a Saturday, Sun- 

23 day, holiday or other non-business day within the District of Colum- 

24 bia or the Federal Grovernment, the action may be taken on the next 

25 succeeding business day, and is effective as of the date when the 

26 period expired. 

27 § 704. Retention and disposition of articles deposited in Copyright 

28 Office 

29 (a) Upon their deposit in the Copyright Office under sections 407 

30 and 408, all copies, phonorecords, and identifying material, including 

31 those deposited in connection with claims that have been refused 

32 registration, are tlie property of the United States Government. 

33 (b) In the case of published works, all copies, phonorecords. and 

34 identifying material deposited are available to the Library of Con- 

35 gress for its collections, or for exchange or transfer to any other 

36 library. In the case of unpublished works, the Library is entitled to 

37 select any deposits for its collections. 

38 (c) Deposits not selected by the Library under subsection (b), or 

39 identifying portions or reproductions of them, shall be retained under 

40 the control of the Copyright Office, including rentention in Go\crn- 

57-786 O - 76 - pt. 1 - 5 



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56 

1 ment storage facilities, for the longest period considered practicable 

2 and desirable by the Register of Copyrights and the Librarian of 

3 Congress. After that period it is within the joint discretion of the 

4 Register and the Librarian to order their destruction or other disposi- 

5 tion ; but, in the case of unpublished works, no deposit shall be de- 

6 stroyed or otherwise disposed of during its term of copyright. 

7 (d) The depositor of copies, phonorecords, or identifying material 

8 imder section 408, or the copyright owner of record, may request 

9 retention, under the control of the Copyright Office, of one or more 

10 of such articles for the full term of copyright in the work. The Regis- 

11 ter of Copyright shall prescribe, by regulation, the conditions under 

12 which such requests are to be made and granted, and shall fix the 

13 fee to be charged under section 708(a) (11) if the request is granted. 

14 §705. Copyright Office records: Preparation, maintenance, public 

15 inspection, and searching 

16 (a) The Register of Copyrights shall provide and keep in the Copy- 

17 right Office records of all deposits, registrations, recordations, and 

18 other actions taken under this title, and shall prepare indexes of all 

19 such records. 

20 (b) Such records and indexes, as well as the articles deposited in 

21 connection with completed copyright registrations and retained under 

22 the control of the Copyright Office, shall be open to public inspection. 

23 (c) Upon request and payment of the fee specified by section 708, 

24 the Copyright Office shall make a search of its public records, indexes, 

25 and deposits, and shall furnish a report of the information they dis- 

26 close with respect to any particular deposits, registrations, or recorded 

27 documents. 

28 § 706. Copies of Copyright Office records 

29 (a) Copies may be made of any public records or indexes of the 

30 Copyright Office ; additional certificates of copyright registration and 

31 copies of any public records or indexes may be furnished upon request 

32 and payment of the fees specified by section 708. 

33 (b) Copies or reproductions of deposited articles retained under 

34 the control of the Copyright Office shall be authorized or furnished 

35 only under the conditions specified by the Copyright Office regulations. 

36 § 707. Copyright Office forms and publications 

37 (a) Catalog of Copyright Entries. — The Register of Copyrights 

38 shall compile and publish at periodic intervals catalogs of all copy- 

39 right registrations. These catalogs shall be divided into parts in 

40 accordance with the various classes of works, and the Register has 



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57 

1 discretion to determine on the basis of practicability and usefulness, 

2 the form and frequency of publication of each particular part. 

3 (b) Other Pubi.ications. — The Register shall furnish, free of 

4 charge upon request, application forms for copyright registration and 

5 general informational material in connection with the functions of the 

6 Copyright Office. He also has authority to publish compilations of 

7 information, bibliographies, and other material he considers to be 

8 of value to the public. 

9 (c) Distribution of Publications. — All publications of the Copy- 

10 right Office shall be furnished to depository libraries as specified under 

11 section 1905 of title 44. United States Code, and, aside from those fur- 

12 nished free of charge, shall be offered for sale to the public at prices 

13 based on the cost of reproduction and distribution. 

14 § 708. Copyright Office fees 

15 (a) The following fees shall be paid to the Register of Copyrights: 

16 ( 1 ) for the registration of a copyright claim or a supplementary 

17 registration under section 408, including the issuance of a certifi- 

18 cate of registration, $6 ; 

19 (2) for the registration of a claim to renewal of a subsisting 

20 copyright in its first term under section 304(a), including the 

21 issuance of a certificate of registration, $4; 

22 (3) for the issuance of a receipt for a deposit under section 

23 407, $2; 

24 (4) for the recordation, as provided by section 205, of a transfer 

25 of copyright ownership or other document of six pages or less, 

26 covering no more than one title, $5 ; for each page over six and 

27 for each title over one, 50 cents additional ; 

28 (5) for the filing, under section 115(b), of a notice of intention 

29 to make phonorecords, $3 ; 

30 (6) for the i-ecordation, under section 302(c), of a statement 

31 revealing the identity of an author of an anonymous or pseu- 

32 donymous work, or for the recordation, under section 302(d) , of a 

33 statement relating to the death of an author, $5 for a document of 

34 six pages or less, covering no more than one title; for each page 

35 over six and for each title over one, 50 cents additional ; 

36 (7) for the issuance, under section 601, of an import state- 

37 ment, $3; 

38 (8) for tlie issuance, under section 706, of an additional certifi- 

39 cate of registration, $2 ; 



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58 

1 (9) for the issuance of any other certification, $3; the Register 

2 of Copyri<rhts has discretion, on the 'basis of their cost, to fix the 

3 fees for preparing: copies of Copyright Office records, whether 

4 they are to be certified or not ; 

5 (10) for the making and reporting of a search as provided by 

6 section 705. and for any related services, $5 for each hour or frac- 

7 tion of an hour consumed ; 

8 (11) for any other special services requiring a substantial 

9 amount of time or expense, sucli fees as the Register of Copyrights 

10 may fix on the basis of the cost of providing the service. 

11 (b) The fees prescribed by or under this section are applicable to the 

12 United States Government and any of its agencies, employees, or 

13 officers, but the Register of Copyrights has discretion to waive the 

14 requirement of this subsection in occasional or isolated cases involving 

15 relatively sinall amoimts. 

16 § 709. Delay in delivery caused by disruption of postal or other 

17 services 

18 Tn any cas<e in which the Register of Copyright determines, on the 

19 basis of such evidence as he may by rejtulation require, that a deposit, 

20 application, fee, or any otiier material to be delivered to the Copyright 

21 Office by a particular date, would have been received in the Copyright 

22 Office in due time except for a general disruption or suspension of 

23 [)ostal or other transportation or communications services, the actual 

24 receipt of such material in the Copyright Office within one month after 

25 the date on which the Register determines that the disruption or sus- 

26 pension of such services has terminated, shall be considered timely. 

27 Chapter 8.— COPYRIGHT ROYALTY TRIBUNAL 

Sec. 

SOI. Copyright Royalty Tribunal: Establislunent and purpose. 

802. Petitions for the adjustment of roj-alty rates. 

803. Membership of the Tribunal. 

804. Procedures of the Tribunal. 

805. Compensation of members of the Triliunal ; expenses of the Tribunal. 

806. Reports to the Congre.ss. 

807. Effective date of royalty adjustment. 

808. Effective date of royalty distribution. 

809. .Judicial renew. 

28 § 801. Copyright Royalty Tribunal : Establishment and purpose 

29 (a) There is hereby created in tJie Library of Congress a Copyright 

30 Royalty Tril)unal. 

31 (b) Subject to the piovisions of this chapter, the purpose of the 

32 Tribunal shall be: (1) to make determinations concerning the adjust- 

33 ment of the copyright royalty rates specified by sections 111 and 11;") 

34 so as to assure that such rates are reasonable and in the event that the 



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59 



1 Tribunal shall determine that the statutory royalty rate, or a rate pre- 

2 viously established by tlie Tribunal, or the revenue basis in respect to 

3 section 111, does not provide a reasonable royalty fee for the basic 

4 service of providing secondary transmissions of the primary broad- 

5 cast transmitter or is otherwise unreasonable, the Tribunal may change 

6 the royalty rate or the revenue basis on which the royalty fee shall be 

7 assessed or both so as to assure reasonable royalty fee; and (2) to de- 

8 termine in certain circumstances the distribution of the royalty fees 

9 deposited with the Register of Copyrights under sections 111 and 116. 

10 § 802, Petitions for the adjustment of royalty rates 

11 (a) On July 1. 1977, the Register of Copyrights shall cause to be 

12 published in the Federal Register notice of the commencement of pro- 

13 ceedings for the review of the royalty rate specified by sections 111 

14 and 115. 

15 (b) During the calendar year 1981, and in each subsequent fifth 

16 calendar year, any owner or user of a copyrighted work whose royalty 

17 rates are specified by this title, or by a rate established by the Tri- 

18 bunal, may file a petition with the Register of Copyrights declaring 

19 that the petitioner requests an adjustment of the rate. The Register 

20 shall make a determination as to whether the applicant has a signifi- 

21 cant interest in the royalty rate in which an adjustment is requested. 

22 If the Register determines that the petitioner has a significant interest, 

23 he shall cause notice of his decision to be published in the Federal 

24 Register. 

25 § 803. Membership of the Tribunal 

26 (a) In accordance with Section 802, or upon certifying the existence 

27 of a controversy concerning the distribution of royalty fees deposited 

28 pursuant to sections 111 and 116. the Register shall request the Amer- 

29 loan Arbitration Association or any similar successor organization to 

30 furnish a list of three members of said Association. The Register shall 

31 commmiicate the names together witli such information as may be 

32 appropriate to all parties of interest. And such party witliin twenty 

33 days from the date said communication is sent may submit to the Regis- 

34 ter written objections to any or all of the proposed names. If no such 

35 objections are leceived. oi- if tlie Registei' determines that said objec- 

36 tions are not well founded, he shall certify the appointment of the three 

37 designated individuals to constitute a panel of the Tribunal for the 

38 consideration of the specified rate or royalty distribution. Such panel 

39 shall function as the Tribunal established in section 801. If the Register 

40 determines that the objections to the designation of one or more of the 



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60 



1 proposed individuals are well founded, the Register shall request the 

2 American Arbitration Association or any similar successor organiza- 

3 tion to propose the necessary number of substitute individuals. Upon 

4 receiving such additional names the Register shall constitute the panel. 

5 The Register shall designate one member of the panel as Chairman. 

6 (b) If any member of a panel becomes unable to perform his duties, 

7 the Register, after consultation with the parties, may provide for the 

8 selection of a successor in the manner prescribed in subsection (a). 

9 § 804. Procedures of the Tribunal 

10 (a) The Tribunal shall fix a time and place for its proceedings and 

11 shall cause notice to be given to the parties. 

12 (b) Any organization or person entitled to participate in the pro- 

13 ceedings may appear directly or be represented by counsel. 

14 (c) Except as otherwise provided by law, the Tribunal shall deter- 

15 mine its own procedure. For the purpose of carrying out the provisions 

16 of this chapter, the Tribunal may hold hearings, administer oaths, 

17 and require, by subpoena or otherwise, the attendance and testimony 

18 of witnesses and the production of documents. 

19 (d) Every final decision of the Tribunal shall be in writing and 

20 shall state the reasons therefor. 

21 (e) The Tribunal shall render a final decision in each proceeding 

22 within one year from the certification of the panel. Upon a showing 

23 of good cause, the Senate Committee on the Judiciary and the House of 

24 Representatives Committee on the Judiciary may waive this require- 

25 ment in a particular proceeding. 

26 § 805. Compensation of members of the Tribunal ; expenses of the 

27 Tribunal 

28 (a) In j^roceedings for the distribution of royalty fees, the compen- 

29 sation of members of the Tribunal and other expenses of the Tribunal 

30 shall be deducted prior to the distribution of the funds. 

31 (b) In proceedings for the adjustment of royalty rates, there is 

32 hereby authorized to be appropriated such sums as may be necessary. 

33 (c) The Library of Congress is authorized to fuinish facilities and 

34 incidental service to the Tribunal. 

35 (d) The Tribunal is authorized to procure temporary and inter- 

36 mittent services to the same extent as is authorized by section 3109 of 

37 title 5, United States Code. 

38 § 806. Reports to the Congress 

39 The Tribunal immediately upon making a final determination in 

40 any proceeding for adjustment of a statutory royalty shall transmit 



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61 



1 its decision, together with the reasons therefor, to the Secretary of the 

2 Senate and the Clerk of the House of Representatives for reference 

3 to the Judiciary Committees of the Senate and the House of 

4 Representatives. 

5 § 807. Effective date of royalty adjustment 

6 (a) Prior to the expiration of the first period of ninety calendar 

7 days of continuous session of the Congress, following the transmittal 

8 of the report specified in section 806, either House of the Congress may 

9 adoiJt a resolution stating in substance that the House does not favor 

10 the recommended royalty adjustment, and such adjustment, therefore, 

11 shall not become effective. 

12 (b) For the purposes of subsection (a) of this section 

13 ( 1 ) Continuity of session shall be considered as broken only by 

14 an adjournment of the Congress sine die, and 

15 (2) In the computation of the ninety-day period there shall be 

16 excluded the days on which either House is not in session because 

17 of an adjournment of more than three days to a day certain. 

18 (c) In the absence of the passage of such a resolution by either 

19 House during said ninety-day period, the final determination by the 

20 Tribunal of a petition for adjustment shall take effect on the first day 

21 f ollow ing ninety calendar days after the expiration of the period speci- 

22 fied by subsection (a). 

23 (d) The Register of Copyrights shall give notice of such effective 

24 date by publication in the Federal Register not less than sixty days 

25 before said date. 

26 § 808. Effective date of royalty distribution 

27 A final determination of the Tribunal concerning the distribution 

28 of royalty fees deposited with the Register of Copyrights pursuant to 

29 sections 111 and 116 shall become effective thirty days following such 

30 determination unless prior to that time an application has been filed 

31 pursuant to section 809 to vacate, modify or correct the determination, 

32 and notice of such application has been served upon the Register of 

33 Copyrights. The Register upon the expiration of thirty days shall dis- 

34 tribute such I'oyalty fees not subject to any apjjlication filed pui-suant 

35 to section 809. 

36 § 809. Judicial review 

37 In any of the following cases tlie T'nited States District Court for 

38 the Distrirt of Columbia may make an order vacating, modifying or 

39 correcting a final determination of the Tribunal concerning the distri- 

40 Ijution of royalty fees — 



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62 

1 (a) Where the determination was procured by corruption, fraud, 

2 or undue means. 

3 (b) Where there was evident partiality or corruption in any mem- 

4 her of the panel. 

5 (c) Where any member of the panel was guilty of any misconduct 

6 by which the rights of any party have been prejudiced. 

7 TRANSITIONAL AND STTPPLEMENTARY PROVISIONS 

8 Sec. 102. This title becomes effective on January 1. 1977. except as 

9 otherwise provided by section 304(b) of title 17 as amended by this 

10 title. 

11 Sec. 103. This title does not provide copyright protection for any 

12 work that goes into the public domain before January 1, 1977. The 

13 exclusive rights, as provided by section 106 of title 17 as amended 

14 by this title, to reproduce a work in phonorecords and to distribute 

15 phonorecords of the work, do not extend to any nondramatic musical 

16 work copyrighted before July 1, 1909. 

17 Sec. 104. All proclamations issued by the President under sections 

18 1(e) or 9(b) of title 17 as it existed on December 31, 1976, or under 

19 previous copyright statutes of the United States shall continue in 

20 force until terminated, suspended, or revised by the President. 

21 Sec. 105. (a) (1) Section 505 of title 44, United States Code, Sup- 

22 plement IV, is amended to read as follows : 

23 '*§ 505. Sale of duplicate plates 

24 "The Public Printer shall sell, under regulations of the Joint Com- 

25 mittee on Printing to persons who may apply, additional or duplicate 

26 stereotype or electrotype plates from which a Government publication 

27 is printed, at a price not to exceed the cost of composition, the metal, 

28 and making to the Government, plus 10 per centum, and tlie full 

29 amount of the price shall be paid when the order is filed." 

30 (2) The item relating to section 505 in the sectional analysis at the 

31 beginning of chapter 5 of title 44, United States Code, is amended to 

32 read as follows : 

"505. Sale of duplicate plates." 

33 (b) Section 2113 of title 44, United States Code, is amended to read 

34 as follows : 

35 "§ 2113. Limitation on liability 

36 "Wlien letters and other intellectual productions (exclusive of 

37 patented material, published works under copyright protection, and 

38 unpublished works for which copyright registration has been made) 

39 come into the custody or possession of the Administrator of General 



65 



63 



1 Services, the United States or its agents are not liable for infringe- 

2 ment of copyright or analogous rights arising out of use of the mate- 

3 rials for display, inspection, research, reproduction, or other purposes." 

4 (c) In section 1498(b) of title 28 of the United States Code, the 

5 phrase "section 101(b) of title 17" is amended to read "section 504(c) 

6 of title 17". 

7 (d) Section 543(a) (4) of the Internal Revenue Code of 1954, as 

8 amended, is amended by striking out "(other than by reason of sec- 

9 tion2or6thereof)". 

10 (e) Section 3202(a) of title 39 of the United States Code is 

11 amended by striking out clause (5). Section 3206(c) of title 39 of the 

12 United States Code is amended by striking out clause (c). Section 

13 3206(d) is renumbered (c). 

14 (f) In section 6 of the Standard Reference Data Act (section 

15 290(e) of title 15 of the United States Code, Supplement IV). sub- 

16 section (a) is amended to delete the reference to "section 8" and to 

17 substitute therefor the phrase "section 105". 

18 Sec. 106. In any case where, before January 1, 1977, a person has 

19 lawfully made parts of instruments serving to reproduce mechani- 

20 cally a copyrighted work under the compulsory license provisions of 

21 section 1(e) of title 17 as it existed on December 31. 1976, he may 

22 continue to make and distribute such parts embodying the same me- 

23 chanical reproduction without obtaining a new compulsory license 

24 under the terms of section 115 of title 17 as amended by this title. 

25 However, such parts made on or after January 1, 1977, constitute 

26 phonorecords and are otherwise subject to the provisions of said 

27 section 115. 

28 Sec. 107. In the case of any work in which an ad interim copyright 

29 is subsisting or is capable of being secured on December 31, 1976, 

30 under section 22 of title 17 as it existed on that date, copyright pro- 

31 tection is hereby extended to endure for the term or terms provided 

32 by section 304 of title 17 as amended by this title. 

33 Sec. 108. The notice provisions of sections 401 through 403 of title 

34 17 as amended by this title apply to all copies or phonorecords publicly 

35 distributed on or after January 1, 1977. However, in the case of a work 

36 published before January 1, 1977, compliance with the notice provi- 

37 sions of title 17 either as it existed on December 31, 1976, or as amended 

38 by this title, is adequate witli respect to copies publicly distributed 

39 after December 31. 1976. 



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64 

1 Sec. 109. The registration of claims to copyright for which the 

2 required deposit, application, and fee were received in the Copyright 

3 Office before January 1, 1977, and the recordation of assignments of 

4 copyright or other instruments received in the Copyright Office before 

5 January 1, 1977, shall be made in accordance with title 17 as it existed 

6 on December 31, 1976. 

7 Sec. 110. The demand and penalty provisions of section 14 of title 17 

8 as it existed on December 31, 1976, apply to any work in which copy- 

9 right has been secured by publication with notice of copyright on or 

10 before that date, but any deposit and registration made after that date 

11 in response to a demand under that section shall be made in accordance 

12 with the provisions of title 17 as amended by this title. 

13 Sec. 111. Section 2318 of title 18 of the United States Code is 

14 amended to read as follows : 

15 "§2318. Transportation, sale or receipt of phonograph records 

16 bearing forged or counterfeit labels 

17 "Whoever knowingly and with fraudulent intent transports, causes 

18 to be transported, receives, sells, or offers for sale in interstate or 

19 foreign commerce any phonograph record, disk, wire, tape, film, or 

20 other article on which sounds are recorded, to which or upon which is 

21 stamped, pasted, or affixed any forged or counterfeited label, knowing 

22 the label to have been falsely made, forged, or counterfeited shall be 

23 fined not more than $25,000 or imprisoned for not more than one 

24 year, or both, for the first such offense and shall be fined not more than 

25 $50,000 or imprisoned not more than two years or both, for any sub- 

26 sequent offense." 

27 Sec. 112. All causes of action that arose under title 17 before Jan- 

28 nary 1, 1977, sliall be governed by title 17 as it existed when the cause 

29 of action arose. 

30 Sec. 113. If any provision of title 17, as amended by this title, is 

31 declared unconstitutional, the validity of the remainder of the title 

32 is not affected. 

33 TITLE II— PROTECTION OF ORNAMENTAL DESIGNS 

34 OF USEFUL ARTICLES 

35 DESIGNS PROTECTED 

36 Sec. 201. (a) The author or other proprietor of an original orna- 

37 mental design of a useful article may secure the protection provided 

38 by this title upon complying with and subject to the provisions hereof. 

39 (b) For tlie purposes of this title — 

40 (1) J^ "useful article" is an article which in normal use has an 

41 intrinsic utilitarian function that is not merely to portray the appear- 



67 



65 

1 ance of the article or to convey information. An article which normally 

2 is a part of a useful artick shall be deemed to be a useful article. 

3 (2) The "design of a useful article", hereinafter referred to as a 

4 "design"', consists of those aspects or elements of the article, including 

5 its two-dimensional or three-dimensional features of shape and sur- 

6 face, which make up the appearance of the article. 

7 (3) A design is "ornamental" if it is intended to make the article 

8 attractive or distinct in appearance. 

9 (4) A design is "original" if it is the independent creation of an 

10 author who did not copy it from another source. 

11 DESIGNS NOT SUBJECT TO PROTECTION 

12 Sec. 202. Protection under this title shall not be available for a 

13 design that is — 

14 (a) not original; 

15 (b) staple or commonplace, such as a standard geometric figure, 

16 familiar symbol, emblem, or motif, or other shape, pattern, or con- 

17 figuration which has become common, prevalent, or ordinary ; 

18 (c) ditferent from a design excluded by subparagraph (b) above 

19 only in insignificant details or in elements which are variants com- 

20 monly used in the relevant trades ; or 

21 (d) dictated solely by a utilitarian function of the article that 

22 embodies it ; 

23 (e) composed of three-dimensional features of shape and sur- 

24 face with respect to men's, women's, and children's apparel, in- 

25 eluding undergarments and outerwear. 

26 revisions, ADAPTATIONS, AND REARRANGEMENTS 

27 Sec. 208. Protection for a design under this title shall be available 

28 notwithstanding the employment in the design of subject matter ex- 

29 eluded from protection under section 202, if the design is a substantial 

30 revision, adaptation, or rearrangement of said subject matter: Pro- 

31 vided. That such protection shall be available to a design employing 

32 subject matter protected under title I of this Act, or title 35 of the 

33 United States Code or this title, only if such protected subject matt«r is 

34 employed with the consent of the proprietor thereof. Such protection 

35 shall be independent of any subsisting protection in subject matter 

36 employed in the design, and shall not be construed as securing any 

37 right to subject matter excluded from protection or as extending any 

38 subsisting protection. 

39 commencement of protection 

40 Sec. 204. (a) The protection provided for a design under this title 

41 shall commence upon the date when the design is first made public. 



68 



1 (b) A design is made public when, by the proprietor of the design 

2 or with his consent, an existing useful article embodying the design 

3 is anywhere publicly exhibited, publicly distributed, or offered for 

4 sale or sold to the public. 

5 TERM OF PROTECnOX 

6 Sec. 205. (a) Subject to the provisions of this title, the protection 

7 herein provided for a design shall continue for a term of five years 

8 from the date of the commencement of protection as provided in sec- 

9 tion 204:(a). but if a proper application for renewal is received by 

10 the Administrator during the year prior to the expiration of the five- 

11 year term, the protection herein provided shall be extended for an 

12 additional period of five years from the date of expiration of the first 

13 five years. 

14 (b) If the design notice actually applied shows a date earlier than 

15 the date of the commencement of protection as provided in section 

16 L'U4:(a). protection shall teiminate as though the term had commenced 

17 at the earlier date. 

18 (c) Where the distinguishing elements of a design are in substan- 

19 tially the same form in a number of different useful articles, the 

20 design shall be protected as to all such articles when protected as 

21 to one of them, but not more than one registration shall be required, 
as provided in this title all rights under this title in said design shall 
Upon expiration or termination of protection in a particular design 

24 terminate, regardless of the number of different articles in which thft 

25 design may have been utilized during the term of its protection. 

26 THE DESIGN NOTICE 

27 Sec. 206. (a) Whenever any design for which protection is sought 

28 under this title is made public as provided in section 204(b), the 

29 proprietor shall, subject to the provisions of section 207. mark it or 

30 have it marked legibly with a design notice consisting of the following 

31 three elements : 

32 (1) the words "Protected Design", the abbreviation "Prot'd 

33 Des." or the letter "D" within a circle thus @ ; 

34 (2) the year of the date on which the design was first made 

35 public ; and 

36 (3) the name of the proprietor, an abbreviation by which the 

37 name can be recognized, or a generally accepted alternative desig- 

38 nation of the proprietor; any distinctive identification of the 
proprietor may be used if it has been approved and recorded by 



22 
23 



39 



69 



67 

1 the Administrator before the design marked with such identifica- 

2 t ion is made public. 

3 After registration the registration number may be used instead of 

4 the elements specified in (2) and (3) hereof. 

5 (b) The notice shall be so located and applied as to give reasonable 

6 notice of design protection while the useful article embodying the 

7 design is passing through its normal channels of commerce. This re- 

8 quirement may be fulfilled, in the case of sheetlike or strip materials 

9 bearing repetitive or continuous designs, by application of the notice 
10 to each repetition, or to the margin, selvage, or reverse side of the ma- 
ll terial at reasonably frequent intervals, or to tags or labels affixed to 

12 the material at such intervals. 

13 (c) '\\nien the proprietor of a design has complied with the provi- 

14 sions of this section, protection under this title shall not be affected 

15 by the removal, destruction, or obliteration by others of the design 

16 notice on an article. 

lY EFFECT OF OMISSION OF NOTICE 

18 Sec. ^OT. The omission of the notice prescribed in section 206 shall 

19 not cause loss of the protection or prevent recovery for infringement 

20 against any person who, after written notice of the design protection, 

21 begins an undertaking leading to infringement: Provided, That such 

22 omission shall prevent any recovery imder section 222 against a person 

23 who began an undertaking leading to infringement before receiving 

24 written notice of the design protection, and no injunction shall be 

25 had unless the pi-oprietor of the design shall reimburse said person 

26 for any reasonable expenditure or contractual obligation in connection 

27 with such undertaking incurred before written notice of design protec- 

28 tion, as the court in its discretion shall direct. The burden of proving 

29 written notice shall be on the proprietor. 

30 INFRINGEMENT 

31 Sec. 208. (a) It shall be infringement of a design protected under 

32 this title for any person, without the consent of the proprietor of 

33 the design, within the United States or its territories or possessions 

34 and during the term of such protection, to — 

35 (1) make, have made, or import, for sale or for use in trade, 

36 any infringing article as defined in subsection (d) hereof; or 

37 (2) sell or distribute for sale or for use in trade any such 

38 infringing article : Provided, however, That a seller or distributor 

39 of any such article who did not make or import the same shall be 

40 deemed to be an infringer only if — 



70 



68 

1 (i) he induced or acted in collusion with a manufacturer to 

2 make, or an importer to import such article (merely purchas- 

3 ing or giving an order to purchase in the ordinary course of 

4 business shall not of itself constitute such inducement or 

5 collusion) ; or 

6 (ii) he refuses or fails upon the request of the proprietor 

7 of the design to make a prompt and full disclosure of his 

8 source of such article, and he ordei-s or reordei-s such article 

9 after having received notice by registered or certified mail 

10 of the protection subsisting in the design. 

11 (b) It shall be not infringement to make, have made, import, sell, 

12 or distribute, any article embodying a design created without knowl- 

13 edge of, and copying from, a protected design. 

14 (c) A person who incorporates into his own product of manufacture 

15 an infringing article acquired from others in the ordinary course of 

16 business, or who, without knowledge of the protected design, makes or 

17 processes an, infringing article for the account of another person in the 

18 ordinary course of business, shall not be deemed an infringer except 

19 under the conditions of clauses (i) and (ii) of paragraph (a) (2) of 

20 this section. Accepting an order or reorder from the source of the in- 

21 fringing article shall be deemed ordering or reordering within the 

22 meaning of clause (ii) of paragraph (a) (2) of this section. 

23 (d) An "infringing article" as used herein is any article, the design 
24r of which has been copied from the protected design, without the con- 

25 sent of the proprietor: Provided, however, That an illustration or 

26 picture of a protected design in an advertisement, book, periodical, 

27 newspaper, photograph, broadcast, motion picture, or similar medium 

28 shall not be deemed to be an infringing article. An article is not an 

29 infringing article if it embodies, in common with the protected design, 

30 only elements described in subsections (a) through (d) of section 202. 

31 (e) The party alleging rights in a design in any action or proceed- 

32 ing shall have the burden of affirmatively establishing its originality 

33 whenever the opposing party introduces an earlier work which is 

34 identical to such design, or so similar as to make a prima facie show- 

35 ing that such design was copied from such work. 

36 APPLICATION FOK REGISTRATION 

37 Sec. 209. (a) Protection under this title shall be lost if application 

38 for registration of the design is not made within six months after the 

39 date on which the design was first made public as provided in section 

40 304(b). 



71 



69 

1 (b) Application for registration or renewal may be made by the 

2 proprietor of the design. 

3 (c) The application for registration shall be made to the Adminis- 

4 trator and shall state (1) the name and address of the author or 

5 authors of the design; (2) the name and address of the proprietor 

6 if different from the author; (3) the specific name of the article, in- 

7 dicating its utility ; (4) the date when the design was first made public 

8 MS provided in section 204(b) ; and (5) such other information as may 

9 be required by the Administrator. The application for registration 
10 may include a description setting forth the salient features of the de- 
ll sign, but the absence of such a description shall not prevent registra- 

12 tion under this title. 

13 (d) The application for registration shall be accompanied by a 

14 statement under oath by the applicant or his duly authorized agent or 

15 representative, setting forth that, to the best of his knowledge and be- 

16 lief ( 1 ) the design is original and was created by the author or authors 

17 named in the application ; (2) the design has not previously been regis- 

18 tered on behalf of the applicant or his predecessor in title; (3) the de- 

19 sign has been made public as provided in section 204(b) ; and (4) the 

20 applicant is the person entitled to protection and to registration under 

21 this title. If the design has been made public with the design notice 

22 prescribed in section 206, the statement shall also describe the exact 

23 form and position of the design notice. 

24 (e) Error in any statement or assertion as to the utility of the article 

25 named in the application, the design of which is sought to be regis- 

26 tered, shall not affect the protection secured under this title. 

27 (f ) Errors in omitting a joint author or in naming an alleged joint 

28 author shall not affect the validity of the registration, or the actual 

29 ownership or the protection of the design : Provided^ That the name of 

30 one individual who was in fact an author is stated in the application. 

31 Where the design was made within the regular scope of the author's 

32 employment and individual authorship of the design is difficult or im- 

33 iK>ssible to ascribe and the application so states, the name and address 

34 of the employer for whom the design was made may be stated instead 

35 of that of the individual author. 

36 (g) The application for registration shall be accompanied by two 

37 copies of a drawing or other pictorial representation of the useful 

38 article having one or more views, adequate to show the design, in a 

39 form and style suitable for reproduction, which shall be deemed a 

40 part of the application. 



72 



70 

1 (h) Related useful articles having common design features may be 

2 included in the same application under such conditions as may be pre- 

3 scribed by the Administrator. 

4 BENEFIT OF EARLIER FILING DATE IN FOREIGN COUNTRY 

5 Sec. 210. An application for registiation of a design filed in this 

6 country by any person who has, or whose legal representative or pred- 

7 ecessor or successor in title has previously regularly filed an applica- 

8 tion for registration of the same design in a foreign country which af- 

9 fords similar privileges in the case of applications filed in the United 

10 States or to citizens of tlie United States shall have the same effect 

11 as if filed in this country on the date on which the application was 

12 fii-st filed in any such foreign country, if the application in this country 

13 is filed within six months from the earliest date on which any such 

14 foreign application was filed. 

15 OATHS AND ACKNOWLEDGMENTS 

16 Sec. 211. Oaths and acknowledgments required by this title may be 

17 made before any person in the United States authorized by law to 

18 administer oaths, or, when made in a foreign country, before any 

19 diplomatic or consular officer of the United States authorized to ad- 

20 minister oaths, or before any official authorized to administer oaths in 

21 the foreign country concerned, whose authority shall be proved by a 

22 certificate of a diplomatic or consular officer of the United States, and 

23 shall be valid if they comply with the laws of the state or country 

24 where made. 

25 EXAMINATION OF APPLICATION AND ISSUE OR REBTJSAL OF REGISTRATION 

26 Sec. 212. (a) Upon the filing of an application for registration in 

27 proper form as provided in section 209, and upon payment of the fee 

28 provided in section 215, the Administrator shall determine whether 

29 or not the application relates to a design which on its face appears to 

30 be subject to protection under this title, and if so, he shall register the 

31 design. Registration under this subsection shall be announced by 

32 publication. 

33 (b) If, in his judgment, the application for registration relates to 

34 a design which on its face is not subject to protection under this title, 

35 the Administrator shall send the applicant a notice of his refusal to 

36 register and the grounds therefor. Within three months from the date 

37 the notice of refusal is sent, the applicant may request, in writing, re- 

38 consideration of his application. After consideration of such a request, 

39 the Administrator shall either register the design or send the applicant 

40 a notice of his final refusal to register. 



73 



71 

1 (c) Any person who believes he is or will be damaged by a registra- 

2 tion under this title may, upon payment of the prescribed fee, apply 

3 to the Administrator at any time to cancel the registration on the 

4 ground that the design is not subject to protection under the provisions 

5 of this title, stating the reasons therefor. Upon receipt of an applica- 

6 tion for cancellation, the Administrator shall send the proprietor of 

7 the design, as shown in the records of the Office of the Administrator, a 

8 notice of said application, and the pix>prietor shall have a period of 

9 three months from the date such notice was mailed in which to present 

10 arguments in support of the validity of the registration. It shall also 

11 be within the authority of the Administrator to establish, by regula- 

12 tion, conditions under which the opposing parties may appear and be 

13 heard in support of their arguments. If, after the periods provided for 

14 the presentation of arguments have expired, the Administrator deter- 

15 mines that the ai^plicant for cancellation has established that the de- 

16 sign is not subject to protection under the provisions of this title, he 

17 shall order the registration stricken from the record. Cancellation 

18 under this subsection shall be announced by publication, and notice of 

19 the Administrator's final determination with respect to any application 

20 for cancellation shall be sent to the applicant and to the proprietor 

21 of record. 

22 (d) Remedy against a final adverse determination under subpara- 

23 graphs (b) and (c) above may be had by means of a civil action 

24 against the Administrator pursuant to the provision of section 1361 of 

25 title 28, United States Code, if commenced within such time after such 

26 decision, not less than 60 days, as the Administrator appoints. 

27 (e) When a design has been registered under this section, the lack 

28 of utility of any article in which it has been embodied shall be no 

29 defense to an infringement action under section 220, and no ground 

30 for cancellation under subsection (c) of this section or under sec- 

31 tion 223. 

32 CERTIFICATION OF REGISTILVHOX 

33 Sec. 213. Certificates of registration shall be issued in the name of 

34 the United States under the seal of the Office of the Administrator and 

35 shall be recorded in the official records of that Office The certificate 

36 shall state the name of the useful article, the date of filing of the appli- 

37 cation, the date on which the design was first made public as pro\ided 
in section 204(b) or any earlier date as set forth in section 205(b), and 
shall contain a reproduction of the drawing or other pictorial repre- 



38 
39 



40 sentation showing the design. Where a description of the salient fea- 



57-786 O - 76 - pt. 1 



74 



72 

1 tures of the desifrr^ appears in the application, this description shall 

2 also appear in the certificate. A renewal certificate sliall contain the 

3 date of renewal registration in addition to the foi-egoing. A certificate 

4 of initial or renewal registration shall be admitted in any court as 

5 prima facie evidence of the facts stated therein. 

6 PUBLICATION OF ANNOUNCEMENTS AND INDEXES 

7 Sec. 214. (a) The Administrator shall publish lists and indexes of 

8 registered designs and cancellations thereof and may also publish the 

9 drawing or other pictorial representations of registered designs for 

10 sale or other distribution. 

11 (b) The Administrator shall establish and maintain a file of the 

12 drawings or other pictorial representations of registered designs, 

13 which file shall be available for use by the public under such condi- 
14; tions as the Administrator may prescribe. 

15 FEES 

16 Sec. 215. (a) There shall be paid to the Administrator the follow- 

17 ing fees : 

18 (1) On filing each application for registration or for renewal of 

19 registration of a design, $15. 

20 (2) For each additional related article included in one application, 

21 $10. 

22 (3) For recording assignment, $3 for the first six pages, and for 

23 each additional two pages or less, $1. 

24 (4) For a certificate of correction of an error not the fault of the 

25 Office, $10. 

26 ( 5 ) For certification of copies or records, $1 . 

27 (6) On filing each a^jplication for cancellation of a registration, 

28 $15. 

29 (b) The Administrator may establish charges for materials or serv- 

30 ices furnished by the Office, not specified above, reasonably related to 

31 the cost thereof. 

32 REGULATIONS 

33 Sec. 216. The Administrator may establisli regulations not incon- 

34 sistent with law for the administration of this title. 

35 COPIES OF RECORDS 

36 Sec. 217. Upon payment of the prescribed fee, any person may 

37 obtain a certified copy of any official record of the Office of the Admin- 

38 istrator, which copy shall be admissible in evidence with the same effect 

39 as the original. 



75 



73 

1 CORRECTION OF ERRORS IN CERTIFICATES 

2 Sec. -218. The Administratoi' may correct any error in a registration 

3 incurred through the fault of the Office, or, upon payment of the re- 

4 quired fee, any error of a clerical or typographical nature not the fault 

5 of the Office occurring in good faith, by a certificate of correction under 

6 seal. Such registration, together with the certificate, shall thereafter 

7 have the same effect as if the same had been originally issued in such 

8 corrected form. 

9 OWNERSHIP AND TRANSFER 

10 Sec. 219. (a) The property right in a design subject to protection 

11 under this title shall vest in the author, the legal representatives of a 

12 deceased author or of one under legal incapacity, the employer for 

13 whom the author created the design in the case of a design made 

14 within the regular scope of the author's employment, or a person to 

15 whom the rights of the author or of such employer have been trans- 

16 ferred. Tlie person or persons in whom the property right is vested 

17 shall be considered the proprietor of the design. 

18 (b) The property right in a registered design, or a design for which 

19 an application for registration has been or may be filed, may be as- 

20 signed, granted, conveyed, or mortgaged by an instrument in writing, 

21 signed by the proprietor, or may be bequeathed by will. 

22 (c) An acknowledgement as provided in section 311 shall be prima 

23 facie evidence of the execution of an assignment, grant, conveyance, 

24 or mortgage. 

25 (d) An assignment, grant, conveyance, or mortgage shall be void 

26 as against any subsequent purchaser or mortgage for a valuable con- 

27 sideration, without notice, unless it is recorded in the Office of the 

28 Administrator within three months from its date of execution or prior 

29 to the date of such subsequent purchase or mortgage. 

30 REMEDY FOR INFRINGEMENT 

31 Sec. 220. (a) The proprietor of a design shall have remedy for in- 

32 fringement by civil action instituted after issuance of a certificate of 

33 registration of the design. 

34 (b) The proprietor of a design may have judicial review of a final 

35 refusal of the Administrator to register the design, by a civil action 

36 brought as for infringement if commenced within the time specified 

37 in section 212 (d) , and shall have remedy for infringement by the same 

38 action if the court adjudges the design subject to protection under this 

39 title: Provided, That (1) lie has previously duly filed and duly pros- 



76 



74 

1 edited to such final refusal an application in proper form for reg^is- 

2 tration of the designs, and (2) he causes a copy of the complaint in 

3 action to be delivered to the Administrator within ten days after the 

4 commencement of the action, and (3) the defendant has committed acts 

5 in respect to the design which would constitute infringement with 

6 respect to a design protected under this title. 

7 INJUNCTION 

8 Sec. 221. The several courts having jurisdiction of actions under 

9 this title may grant injunctions in accordance with the principles of 

10 equity to prevent infringement, including in their discretion, prompt 

11 relief by temporary restraining orders and preliminary injunctions. 

12 RECOVERY FOR INFRINGEMENT, AND SO FORTH 

13 Sec. 222. (a) Upon finding for the claimant the court shall award 

14 him damages adequate to compensate for the infringement, but in 

15 no event less than the reasonable value the court shall assess them. 

16 In either event the court may increase the damages to such amount, 

17 not exceeding $5,000 or $1 per copy, whichever is greater, as to the 

18 court shall appear to be just. The damages awarded in any of the 

19 above circumstances shall constitute compensation and not a penalty. 

20 The court may receive expert testimony as an aid to the determination 

21 of damages. 

22 (b) No recovery under paragraph (a) shall be had for any infringe- 

23 ment committed more than three years prior to the filing of the 

24 complaint. 

25 (c) The court may award reasonable attorney's fees to the prevail- 

26 ing party. The court may also award other expenses of suit to a 

27 defendant prevailing in an action brought under section 220(b). 

28 (d) The court may order that all infringing articles, and any plates, 

29 molds, patterns, models, or other means specifically adapted for mak- 

30 ing the same be delivered up for destruction or other disposition as 

31 the court may direct. 

32 POWER OF COURT OVER REGISTRATION 

33 Sec. 223. In any action involving a design for which protection is 

34 sought under this title, the court when appropriate may order registra- 

35 tion of a design or the cancellation of a registration. Any such order 

36 shall be certified by the court to the Administrator, who shall make 

37 appropriate entry upon the records of his Office. 

38 LIABILITY FOR ACTION ON REGISTRATION FRAUDULENTLY OBTAINED 

39 Sec 224. Any person who shall bring an action for infringement 

40 knowing that registration of the design was obtained by a false or 



77 



75 

1 fraudulent representation materially affecting the rights under this 

2 title, shall be liable in the sum of $1,000, or such part thereof as the 

3 court may determine, as compensation to the defendant, to be charged 

4 against the plaintiff and paid to the defendant, in addition to such 

5 costs and attorney's fees of the defendant as may be assessed by the 

6 court. 

7 PENALTY FOR FALSE MARKING 

8 Sec. 225. (a) Whoever, for the purpose of deceiving tlie public, 

9 marks upon, or applies to, or uses in advertising in connection with any 

10 article made, used, distributed, or sold by him, the design of which 

11 is not protected under this title, a design notice as specified in section 

12 306 or any other words or symbols importing that the design is pro- 

13 tected mider this title, knowing that the design is not so protected, 

14 shall be fined not more than $500 for every such offense. 

15 (b) Any person may sue for the penalty, in which event, one-half 

16 shall go to the person suing and the other to the use of the United 

17 States. 

\g PENALTY FOR FALSE REPRESENTATION 

19 Sec. 226. Whoever knowingly makes a false representation mate- 

20 rially affecting the rights obtainable under this title for the purpose 

21 of obtaining registration of a design under this title shall be fined 

22 not less than $500 and not more than $1,000, and any rights or privi- 

23 leges he may have in the design under this title shall be forfeited. 

24 RELATION TO COPYRIGHT LAW 

25 Sec. 227. (a) Nothing in this title shall affect any right or remedy 

26 now or hereafter held by any person under title I of this Act. 

27 (b) When a pictorial, graphic, or sculptural work in which copy- 

28 right subsists under title I of this Act is utilized in an original oma- 

29 mental design of a useful article, by the copyright proprietor or under 

30 an express license from him, the design shall be eligible for protection 

31 under the provisions of this title. 

32 RELATION TO PATENT LAW 

33 Sec. 228. (a) Nothing in this title shall affect any right or remedy 

34 available to or held by any person under title 35 of the United States 

35 Code. 

36 (b) The issuance of a design patent for an ornamental design for 

37 an article of manufacture under said title 35 shall terminate any pro- 

38 tection of the design under this title. 

39 COMMON LAW AND OTHER RIGHTS UNAFFECTED 

40 Sec. 229. Nothing in this title shall annul or limit (1) common law 

41 or other rights or remedies, if any, available to or held by any person 



78 



76 

1 with respect to a design which has not been made public as provided 

2 in section 304(b), or (2) any trademark right or right to be protected 

3 against unfair competition. 

4 ADMINISTRATOR 

5 Sec. 230. The Administrator and Office of the Administrator re- 

6 ferred to in this title shall be such officer and office as the President 

7 may designate. 

8 SEVERABILiry CLAUSE 

9 Sec. 231. If any provision of this title or the application of such 

10 provision to any person or circumstance is held invalid, the remainder 

11 of the title or the application to other persons or circumstances shall 

12 not be affected thereby. 

13 AMENDMENT OF OTHER STATUTES 

14 Sec. 232. (a) Subdivision a (2) of section 70 of the Bankruptcy 

15 Act of July 1, 1898, as amended (11 U.S.C. 110(a)), is amended 

16 by inserting "designs," after "patent rights". 

17 ( b ) Title 28 of the United States Code is amended — 

18 (1) by inserting "designs," after "patents," in the first sentence 

19 of section 1338(a) ; 

20 (2) by inserting ", design," after "patent" in the second sen- 

21 tence of section 1338 ( a) ; 

22 (3) by inserting "design," after "copyright," in section 1338 

23 (b) ; 

24 (4) by inserting "and registered designs" after "copyrights" in 

25 section 1400; and 

26 (5) by revising section 1498 (a) to read as follows : 

27 "(a) Whenever a registered design or invention is used or manu- 

28 factured by or for the United States without license of the owner 

29 thereof or lawful right to use or manufacture the same, the owner's 

30 remedy shall be by action against the United States in the Court of 

31 Claims for the recovery of his reasonable and entire compensation 

32 for such use and manufacture. 

33 "For the purposes of this section, the use or manufacture of a 

34 registered design or an invention described in and covered by a patent 

35 of the United States by a contractor, a subcontractor, or any person, 

36 firm, or corporation for the Grovernment and with the authorization 

37 or consent of the Government, shall be construed as use or manufac- 

38 ture for the United States. 

39 "The court shall not award compensation under this section if 

40 the claim is based on the use or manufacture by or for the United 

41 States of any article owned, leased, used by, or in the possession of 



79 



77 

1 the United States, prior to, in the case of an invention, July 1, 1918, 

2 and in the case of a registered design, July 1, 1978. 

3 "A Government employee shall have the right to bring suit against 

4 the Government under this section except where he was in a position 

5 to order, influence, or induce use of the registered design or invention 

6 by the Government. This section shall not confer a right of action on 

7 any registrant or patentee or any assignee of such registrant or pat- 

8 entee with respect to any design created by or invention discovered or 

9 invented by a person while in the employment or service of the United 

10 States, where the design or invention was related to the official func- 

11 tions of the employee, in cases in which such functions included 

12 reseaiTh and development, or in the making of which Government 

13 time, materials, or facilities were used." 

14 TIME OF TAKING EFFECT 

15 Sec. 233. This title shall take effect one year after enactment of this 

16 Act. 

17 NO RETROACTIVE EFFECT 

18 Sec. 234. Protection under this title shall not be available for any 

19 design that has been made public as provided in section 204(b) prior 

20 to the effective date of this title. 

21 SHORT TIIXE 

22 Sec. 235. This title may be cited as ''The Design Protection Act of 

23 1975". 



80 



94tu congress 

1st Session 



H. R. 5345 



IN THE HOUSE OF REPKESENTATIVES 

Makcii 21,1975 

Mr. Danif.lson introduced the following bill ; which was referred to the Com- 
mittee on the Judiciary 



To amend the Copyright Act of 1909, and for other purposes. 

1 Be it enacted by the Senate and House of Representa- 

2 fives of the United States of America in Congress assembled, 

3 That til is Act may be cited as the "Performance Iliglits 

4 Amendment of 1975". 

5 Sec. 2. The first section of title 17, United States Code, 

6 is amended — 

* 

7 (1) l)y striking out "and" where it appears at the 

8 end of suhsections (c) and (d) ; 

9 (2) by striking out the period at the end of sub- 

10 section (e) and inserting in lieu thereof a semicolon and 

11 "and"; 



81 



2 

1 (3) by striking out subsection (f) and inserting in 

2 lieu thereof the following : 

3 "(f)(1) To perform publicly for profit and to reproduce 

4 and distribute to the public by sale or other transfer of owner- 

5 ship, or by rental, lease, or lending, any reproduction of a 

6 copyrighted work which is a sound recording: Provided, 

7 That the exclusive rights of the owner of a copyright in a 

8 sound recording to reproduce and perform it are limited to 

9 the rights to duplicate the sound recording in a tangible 

10 form that directly or indirectly recaptures the actual sounds 

11 fixed in the recording, and to perform those actual sounds: 

12 Provided further, That these rights do not extend to the 

13 making or duplication of another sound recording that is an 

14 independent fixation of other sounds, or to the perfomiance 

15 of other sounds, even though such sounds imitate or simulate 

16 those in the copyrighted sound recording; or to reproduc- 

17 tions made by broadcasting organizations exclusively for 

18 their own use. 

19 " (2) Where the copyrighted sound recording has been 

20 distributed to the public under the authority of the copyright 

21 owner, the public performance of the sound recording shall 

22 be subject to compulsory licensing in accordance with the 

23 provisions of section 33 of this title." ; and 

24 (4) by inserting immediately before the period at 

25 the end of the last sentence of such section (relating to 



82 



o 
O 



1 coin-operated machines) a comma and the following: 

2 "except that the provisions of this sentence shall not 

3 apply to the public performance of a sound recording 

4 under subsection (f ) of this section". 

5 Sec. 3. (a) Chapter 1 of title 17, United States Code, 

6 is amended by adding at the end thereof the following new 

7 section: 

8 "§33. Compulsory licensing; royalties 

9 "(a) The annual royalt}^ fees for the compulsory li- 

10 cense provided for in section 1 (f) (2) of this title may, 

11 at the user's option, be computed on either a blanket or a 

12 prorated basis. x\lthough a negotiated license may be substi- 

13 tuted for the compulsory license prescribed by this subsec- 
11 tion, in no case shall the negotiated rate amount to less than 

15 the following apphcable rate or payment : 

16 " (1) For a radio broadcast station hcensed by the 

17 Tederal Communications Commission, the royalty rate 

18 or payment shall be as follows : 

19 "(A) in the case of a broadcast station with 

20 gross receipts from its advertising sponsors of more 

21 than $25,000 but less than $100,000 a year, the 

22 yearly performance royalty payment shall be $250 ; 

23 or 

24 "(B) in the case of a broadcast station with 

25 gross receipts from its advertising sponsors of more 



83 



4 

1 than $100,000 hut less tlian $200,000 a year, the 

2 yearly performance royalty payment shall he $750 ; 

3 or 

4 " (C) in the case of a hroadcast station with 

5 gross receipts from its advertising sponsors of more 

6 than $200,000 a year, the yearly hlanket rate shall 

7 he 1 per centum of the net receipts from the adver- 

8 tising sponsors during the applicahle period, and the 

9 alternative prorated rate is a fraction of 1 per centum 

10 of such net receipts, taking into account the amount 

11 of the station's commercial time devoted to play- 

12 ing copyrighted sound recordings, 

13 "(2) For a television broadcast station licensed hy 

14 the Federal Communications Commission, the royalty 

15 rate or payment shall be as follows : 

16 _ " (A) in the case of a broadcast station with 

17 gross receipts from its advertising sponsors of more 

18 than $1,000,000 but less than $4,000,000 a year, 

19 the yearly performance royalty payment shall be 

20 $750 ; or 

21 "(B) in the case of a broadcast station with 

22 gross receipts from its advertising sponsors of more 

23 than $4,000,000 a year, the yearly performance 

24 i"oyalty payment shall be $1,500. 

25 "(3) For background music services and other 



84 



5 

1 transmitters of performances of sound recordings, the 

2 yt^arly blanket rate is 2 per centum of the gross receipts 

3 from subscribers or others who pay to receive the trans- 

4 mission during the applicable period, and the alternative 

5 prorated rate is a fraction of 2 per centum of such gross 

6 receipts, taking into account the proportion of time 

7 devoted to musical performances by the transmitter dur- 

8 ing the applicable period. 

9 " (4) For an operator of coin-operated phonorecord 

10 players, the yearly performance royalty payment shall 

11 be $1 for each phonorecord player. 

12 "(5) For all other users not otherwise exempted, 

13 the blanket rate is $25 per year for each location at 

14 which copyrighted sound recordings are performed, 

15 and the alternative prorated rate shall be based on the 
1^ number of separate performances of such works during 
1''' the year and shall not exceed $5 per day of use. 

■^^ " (6) No royalty fees need be paid for a compulsory 

19 license for the public performance of copyrighted sound 

20 recordings by a radio broadcast station where its annual 

21 gross receipts from advertising sponsors were less than 

22 $25,000, by a television broadcast station where its an- 

23 nual gross receipts from advertising sponsors were less 

24 than $1,000,000, or by a background music service or 
2^ other transmitter of performances of somid recordings 



85 



6 

1 where its annual gross receipts from subscribers or others 

2 who pay to receive the transmission were less than 

3 $10,000. 

4 "(b) The annual royalty fees provided in subsection (a) 

5 shall be applicable until such time as the royalty rate is 

6 agreed upon by negotiation between the copyright owner and 

7 the hcensee, or their designated representatives: Provided, 

8 That the annual royalty fees provided for in subsection (a) 

9 shall be applicable for a period of not less than two years 

10 following the date of enactment of the Performance Rights 

11 Amendment of 1975. In the event that the parties or their 

12 representatives are unable to agree upon a royalty rate pur- 

13 suant to negotiation, the public performance of the sound 

14 recording shall be subject to compulsory licensing at a royalty 

15 rate and under terms which shall be set by an arbitration 

16 panel composed of three members of the American Arbitra- 

17 tion Association, of which one member of the panel shall be 

18 selected separately by each of the parties in disagreement, 
]^9 and one member shall be selected jointly by the parties in 

20 disagreement. 

21 "(c) The royalty fees collected pursuant to this section 

22 shall be divided equally between the performers of the 

23 sound recording and the copyright owners of the sound 

24 recording. Neither a performer nor a copyright owner may 

25 assign his right to the royalties provided for in this section 



86 



7 

1 to the copyright owner or performer of tlie sound recording, 

2 respectively. 

3 " (cl) -^s used in this section, the term — 

4 "(1) 'performers' means musicians, singers, con- 

5 ductors, actors, naiTators, and others whose performance 

6 of a liteiary, musical, or dramatic work is embodied in a 

7 sound recording ; and 

8 " (2) 'net receipts from advertising sponsors' means 

9 gross receipts from advertising sponsors less any com- 

10 missions paid ])y a broadcast station to advertising 

11 agencies.". 

12 (b) The analysis of such chapter is amended by add- 

13 ing at the end thereof the following new item : 

"33. Compulsory licensing; royalties.". 



87 



94th congress 
IsT Session 



H. It 4965 



IN THE HOUSE OF REPRESENTATIVES 

March 14,1975 

Mr. Won Pat introduced the following bill ; which was referred to the Com- 
mittee on the Judiciary 



A BILL 

For the amendment of the Copyright Law, title 17 of the 

United States Code. 

1 Be it enacted by the Senate and House of Representa- 

2 fives of the United States of America in Congress assembled, 

3 That title 17 of the United States Code, entitled "Copy- 

4 rights", is hereby amended by adding new section 101 (f) 

5 to read as follows : 

6 " (f ) For all the purposes of the provisions of this 

7 title deaUng with infringements of copyright, including crimi- 

8 nal prosecution pursuant to section 104 of this title, a 

9 person shall not infringe or have infringed the copyright in 

10 any work protected under the copyright laws of the United 

11 States who, 



88 



2 

1 " ( 1 ) f or the pui-pose of transmission on a noncon- 

2 tiguous area cable television system, has made or 

3 shall cause to be made, or has transmitted or shall 

4 cause to be transmitted, a videotape of a television pro- 

5 gram or programs broadcast by one or more television 

6 stations hcensed by the Federal Conomunications 

7 Commission; and when after the enactment of this 

8 subsection : 

9 " (i) the videotape is transmitted no more 

10 than one time, without deletion of any material 

11 including commercials, on any such system; and 

12 " (ii) an owner or oflScer of such facility erases 

13 or destroys, or causes the erasure or destruction of 
1^ such videotape; and 

1''^ " (iii) subject to the provisions of subparagraph 

^C (2) of this subsection, on or before the end of each 

l'^ calendar quarter, an owner or officer of such system 

18 executes an aflSdavit attesting to the erasure or 

19 destruction of all such videotapes made or used dur- 

20 ing the 'preceding quarter; and 

21 "(iv) said owner or officer places or causes said 

22 affidavit, or the affidavit received pursuant to section 

23 101 (f) (2) (ii) of this title, to be placed in a file, 

24 open to public inspection, at such system's main 

25 oflSce in the community where the transmission is 



89 

3 

;j' made or in the nearest community where such sys- 

2 ' tern maintains an office. 

3- *'(2) Nothing herein shall prevent any such system, 

4 pursuant to written contract, from transferring the video- 

5 tapes to another such system provided that: 

•6 " (i) said Vv-ritten contract is placed in the file, 

7 open to public inspection, required hereunder; and 

Q- " (ii) the last such facility transmitting the pro- 

9 grams shall comply with the provisions of section 

10 101 (f) (1) (ii) through (iv) of this title, and shall 

11 " (iii) provide a copy of the affidavit required 
12r hereunder to each such system making a previous 

13 'transmission of the same \ideotape. 

14 " (3) As used in this subsection, the following terms 

15 and their variant forms mean the following: 

16 "(i) a 'transmission' is the distribution by a 

17 noncontiguous area cable television system of a 

18 videotape to its subscribers and is the equivalent of 

19 the carriage of broadcast signals for all the purposes 

20 of the rules and regulations of the Federal Oom- 

21 munications Commission. 

22 "(ii) a 'noncontiguous area cable television* is 

23 a facility located in any State, territor}^ trust ter- 

24 ritory, or possession not within the boundary of 

25 the fortj^-eight contiguous continental States, that 

57-786—76 7 



90 

4 

1 receives signals transmitted or makes or obtains 

2 videotapes of programs broadcast by one or more 

3 'television broadcast stations licensed by the Federal 

4 Communications Commission and delivere such, sig- 

5 nals or programs by wires, cables, or other commu- 

6 nications channels to subscribing members of the 

7 public who pay for such service. 

8 "(iii) A. 'videotape' is the reproduction of the 

9 images and sounds of a program or programs, in- 
10 eluding commercials, broadcast by a television sta- 
ll tion licensed by the Federal Communications Com- 
^2 mission, regardless of the nature of the material 
13 objects, such as tapes or motion pictures, in which 
•^^ the reproduction is embodied. 



91 

TESTIMONY OF JOHN G. LORENZ, ACTING LIBRARIAN OF CON- 
GRESS, ACCOMPANIED BY ABRAHAM L. KAMINSTEIN, FORMER 
REGISTER OF COPYRIGHTS AND HONORARY CONSULTANT IN 
COPYRIGHT AT THE LIBRARY OF CONGRESS, AND BARBARA 
RINGER, REGISTER OF COPYRIGHTS, THE LIBRARY OF CONGRESS 

Mr. LoREXz. Mr. Chairman, T am Jolin Lorenz, the Acting Librarian 
of Congress. It is an honor for me to appear as the opening wit- 
ness at these historic hearings, and to urge your favorable considera- 
tion of H.R. 22'23, the bill for general revision of the copyright huv. 

In 1905, President Theodore Roosevelt called upon Congress to' 
bring together and completely revise the copyright laws of the United 
States, After long hearings and several years of controversy Congress 
responded by enacting a new statute on the last day of President 
Roosevelt's administration. The act of March 4, 1909 remains, 66 years 
later, the governing American copyright law. 

President Theodore Roosevelt's message of 1905 is still valid for us 
today. He wrote : 

Our copyright laws urgently need revision. They are imperfect in definition, 
confused and inconsistent in expression; they omit provision for many articles 
which, under modern reproductive processes, are entitled to protection ; they 
impose hardships upon the copyright proprietor which are not essential to the 
fair practices of the public ; they are difficult for the courts to interpret and 
impossible for the Copyright Office to administer with satisfaction to the public. 

The aptness of Roosevelt's message today is not as ironic as it might 
seem. Legislation is often specific. It grows out of individual circum- 
stances and relates to definite purposes at definite times and conse- 
Cj[uently is subject to change. 

As time passes, the ability of courts to adapt the letter of the law 
to each change diminishes. Cardozo put it well : ""The law tends to 
expand to the limits of its logic." The logical limits of the present 
copyright laws have long since been reached and exceeded. 

In recent years there have been several important Supreme Court 
decisions illustrating the inadequacy of the 1909 act. At the same 
time, administrative regulations cannot cure the law's inequities and 
private understandings or agreements cannot settle the crucial issues 
of copyright. 

Everyone affected by copyright or concerned with its administra- 
tion is looking to Congress for action. New legislation, a new order- 
ing of the relationships that depend upon copyright, is required, and 
only Congress can do the job. 

As Acting Librarian of Congress I am proud of the role that the 
Copyright Office has played for many years in the efforts to reform 
the existing copyright system. I am particularly pleased to see Abra- 
ham L. Kaminstein here, who as Register of Copja-ights from 1960 to 
1971 was largely instrumental in planning the present revision effoit. 
But beyond these efforts the basic responsibility, with its broad social 
and indeed philosophical implications, continues to fall upon your 
subcommittee. 

Mr. Chairman, you have been involved in this work for well over 
a decade, and more than most, you appreciate the infinite complexity 
of many of the issues treated in H.R. 2223. Ten years ago the former 



92 

Librarian of Congress, L. Quincy Mumford, sat before this subcom- 
mittee and said : 

Copyright law is by nature a diflScult and complex subject, and my under- 
standing of its details is imperfect, to say the least. But, like any other intricate 
field of knowledge, there are certain simple and fundamental principles under- 
lying our copyright system, and their importance cannot be overemphasized. 

As Dr. Mumford said, one simple principle underlying copyright 
is the encouragement and reward of individual creativity. This princi- 
ple is, I would suggest, a basic corollary of the principle of freedom 
of speech and press. It is a recognition that those parts of our civil- 
ization that have endured are the product of individual creators, and 
the principle of copyright is basic to civilization itself. 

But the principle of copyright is also rooted in the present, and the 
practical concerns of authors and all those who disseminate and use 
their works. Since 1909, the pace of technological innovation, espe- 
cially in commimicationSj has been breathtaking. 

In these hearings you will hear those who argue, forcefully and in 
good faith, that technology threatens to strip copyright of its meaning 
and value. Others, in equally good faith, will stress that copyright is 
impeding the application of technology to the growing informa- 
tional needs of society. 

Congress must chart the way, and, difficult as that task is, it can be 
made easier, I believe, by keeping always in mind the underlying 
social premises of copyright in a free society. 

Kecognizing the equities on both sides of the arguments you will be 
hearing, the Library of Congress urges favorable consideration of 
H.R. 2223. This legislation is the culmination of 15 years of pains- 
taking negotiation and compromise. 

It does not provide all of the answers, but it does provide a modern 
framew^ork for growth and change: New tools for the courts, the 
Copyright Office, for the authors and the users of copyrighted mate- 
rials, to meet the challenges of the future. 

This is the kind of effort that involves little widespread recognition 
and a great deal of difficulty and toil. But I am convinced that, when 
all is said and done, your work will have a significant impact on the 
lives of all Americans — those who create and those w^hose lives are 
shaped and changed by their creations. 

As the present administrator of the world's greatest collection of 
those creative works, I believe that your success in this endeavor will 
be one of your greatest legislative achievements. 
Thank you very much. 
Mr. Kastenmeier. Thank you, Mr. Lorenz. 
Mr. Kaminstein ? 

Ms. Ringer. If I may, Mr. Chairman, I would like to ask the privi- 
lege of introducing Mr. Kaminstein. 

Mr. Kastenmeier. Yes, of course, Ms. Ringer. 

Ms. Rtn(;er. The current program for general revision of the 
copyright law started in the fifties under Arthur Fisher, who was a 
great Register of Copyrights. He charted a course which we en- 
deavored to follow, and he put his personal stamp on the revision 
program. 

Arthur Fisher died in 1960, at a crucial point in the revision pro- 
gram, and was succeeded by Abraham L. Kaminstein. It is hard to 



93 

realize how difficult it was for Kami to take over an ongoing pro- 
gram of that sort, one that had as much of a personal stamp on it 
as the revision program had in 1960, and to make the changes that 
were necessary to make it go, and eventually to chart a cliiferent 
course— because tliere were many things in the original planning 
that had to be changed. 

All of these Mr. Kaminstein did. He made a number of personal 
sacrifices, including sacrifices in his health. The revision program cer- 
tainly would have gone nowhere without his disinterested optimism 
and his willingness to explore every possibility, his spirit of good 
will, and his personal integrity. He earned everyone's respect. 

As a personal note, he hired me out of law school, and everything 
I know about copyright I either owe to him directly or to the oppor- 
tunities he gave me to learn. He is a loyal friend and a noble human 
being, and it is a great honor for me to introduce him. 

Mr. Kastenmeier. Mr. Kaminstein ? 

Mr. Kaminstein. Mr. Chairman and members of the subcommittee, 
my name is Abraham Kaminstein, and I hold the position of 
Honorary Consultant in Copyright at the Library of Congress. De- 
spite this fancy title, I must state that I appear before you representing 
only myself and without any brief except for my own profound belief 
in the value of the legislation you are considering. 

I am privileged and pleased to appear before you in support of 
H.R. 2223 for the general revision of the copyright law. This legisla- 
tion, which many of you are now involved with for the first time, has 
been for me almost a life's work. 

Before my retirement in 1971 I spent 23 years in the Copyright 
Office, the last 11 of them as the Register of Copyrights. Interestingly 
enough, it is almost exactly 20 years since my immediate predecessor, 
Arthur Fisher, asked for and was granted funds by Congress to ini- 
tiate studies leading to the overall revision of the copyright laws. 

Published between 1956 and 1960, 35 major studies examined cur- 
rent interpretations of the 1909 Copyright Act, analyzed its short- 
comings and inequities and set out alternative measures for reform. 
Well over a decade later, they still remain vital and enduring con- 
tributions to our law. 

In the early 1960's the Copyright Office sponsored a series of round- 
table discussions based on recommendations made in the 1961 Reg- 
ister's Report on Copyright Revision and the preliminary legislative 
drafts that began to emerge. The talks filled four volumes ; they were 
sometimes difficult, but they did succeed in identifying areas of agree- 
ment and dispute, thus sharpening the issues. 

By 1964, it was possible to submit a bill for the general revision of 
the law, and to participate in hearings in 1965 before your subcom- 
mittee and under your dedicated chairmanship. Looking back to 1965. 
I am startled by the scope of our achievements and I have become a bit 
philosophical about the problems we failed to recognize at the tinie. 
As incredible as it may seem now, our first proposals said nothing 
about cal)le television, and photocopying was not regarded as an issue 
which required special legislatiA^e provisions. Some of these problems 
were aired in the extensive hearings which you conducted. Mr. Chair- 
man, and new provisions were added, and when, in 1967, the House 
passed the bill, we seemed well on our way to success. 



94 

We all know that the entire bill reached an impasse in the Senate 
because of the inability to solve the issue of cable television. I must 
confess that in 1968, recognizing that nothing was going to move 
unless somehow the CATV issue could be solved or dealt with 
separately, I gave in to some despair. 

Testifying before the Senate Subcommittee on Patents, Trademarks 
and Copyrights, I said that I had been musing on Yeats' poem, "To a 
Friend Whose Work Has Come to Nothing." Nothing much to encour- 
age me happened for a long time. 

Certainly I feci no such despair today. 

At the last session of Congress, the Senate passed the revision bill 
by a margin of 70-1, and every indication seems to point to a consensus 
in that body that this is a measure whose time, at long last, has come. 
Although insufficient time remained in the last session for House 
consideration, the status of the general revision legislation was one of 
the points covered in your subcommittee's hearings on November 26, 
1974, on S. 3976, a short bill whose enactment effective December 31, 
1974, appears to pave the way for favorable action in both Houses 
during the current Congress. 

I should like to close my statement by offering some personal obser- 
vations based on years of involvement with copyright revision. I should 
like to recall the constructive spirit of the 1965 hearings for I fer- 
vently hope that they will be repeated in the work you begin today. 
Nine j^ears ago. Mr. Chairman, your subcommittee met for 51 execu- 
tive sessions, over a 7-month period, to prepare a bill for the full 
Judiciary Committee. 

Congressmen, members of a busy subcommittee, wei-e willing and 
glad to spend an extraordinary amount of time and effort on a bill 
that could not have meant much to them politically, that could not 
gain them any votes. What made this extraoi'dinary effort possible, and 
indeed successfid. was the prevailing spirit of compromise — construc- 
tive and reasonable, rather than destructive and extreme. I called it 
"An Experiment in Legislative Technique." It was the most exhilarat- 
ing expei'ionce of my legal careei". 

All of us are special pleaders, no matter how moral we feel our case 
to be. For my part, I make no bones about favoring authors, com- 
posers, and ai'tists. But I know, nevertlieless, that everyone must make 
some compromise. My experience convinces me that there are no easy 
sl)()rtcnts in cojjyriglit, and no side can afford the luxury of a com- 
plete victory. Neither can we embrace categorical solutions; what they 
possess in simplicity, they sacrifice in ordinar}' justice. What is needed 
is a responsible and considered compromise, for only such a compromise 
will best serve the interests of nil. 

Tliis will require statesmanship of the highest order, and I hope you 
will feel the personal satisfaction that comes with a job well done. 
Thaiik you, jNIr. (^hairman. 

]Mi'. Kastkn'meier. Thank you, Mr. Kaminstein, for a most eloquent 
and personal statem.ent on a subject many regard as impersonal. 

I am almost sorry, however, to mention that in 1966 we had 51 
executive sessions over a 7-month period. You will detect some trepida- 
tion among my subcommittee members who have not been through that 
experience. [Laughter.] 

j\Iuch of that work will not have to be redone, I expect. Perhaps 
this is not the time, as I introduce the next witness, to conmiend people 



95 

before our task is completed for indeed historically one day I am sure 
that the names of Fisher, Kaminstein, and Ringer will, in terms of 
copyi'ight and its history of this country, liave an extraordinary place. 

For my part, legislatively, I would like to recall that the chairman 
of the full committee, Mr. Celler, who served Congress so well for so 
many years, has always felt so deeply about and has been a very great 
patron of copyriglit. 

From the legislative standpoint I think he also deserves very special 
recognition. 

In any event, I would like to call on the person on whom we are going 
to have to lean heavily, not only this morning but in days to come, in 
resolving whatever of the issues still remain. 

We would be very pleased to hear from our Register of Copyrights, 
Ms. Barbara Ringer. 

Ms. Ringer. Thank you very much, ]\fr. Chairman. I am accom- 
panied by Dorothy Schrader, general counsel of the Copyright Office, 
who I hope will get me out of trouble if I get into it. 

The Copyright Office has prepared portfolios consisting of 19 fold- 
ers. 18 of which deal with separate issues or chapters of sections of the 
bill. Some are much more important than others. On the left side of 
each folder we have put the relevant sections on the particular issue, 
and on the right side we have tried to summarize the contents of the 
bill, give some of the background of the provisions and analyze the 
contents of the bill in a rather simple, brief way. 

Some of the provisions of the bill, as you well know, Mr. Chairman, 
do not yield their meaning readily on a first, or second, or even third 
reading. 

In any case T hope that they will be useful to the committee. They 
are intended for reference and not as fundamental legislative history. 

But I hope the material on the right side can l)e considered, in effect, 
my statement on the issues that are involved at this point and be made 
a part of the record of the hearings. I have also a prepared statement 
which is for the record and I don't think I need to go into it in vast 
detail because both you, Mr. Chaii'man, and Mr. Kaminstein, have 
referred to the comments I have made in it. 

I would, however, like to make a few points from it and then go on 
to a summary of the principal issues speaking more or less from these 
briefing papers. 

[The material referred to appears in app. 2.] 

As I see them now but without in any way trying to predict what 
other witnesses will say during the course of these hearings because I 
don't think anyone, no matter how close they are to the subject, can 
do that 

Mr. Kastenmeier. I urge you not to oversummarize. "We do hope 
that — we regard your testimony as very important at the outset to 
get certain frames of reference for the committee. Some of it may 
be lost to us if it is confined exclusively to the record. 

Ms. RiXGER. I take your point, Mr. Chairman. Then I will read 
at least a major part of this statement. 

[The prepared statement of Ms. Ringer follows :] 

Statement of Barbara Ringer, Register of Copyrights 

Mr. Chairman, I am Barbara Ringer, Register of Copyrights in the Copyright 
Office of the Library of Congress. I appear today in support of H.R. 2223, to 
review its long and difficult legislative history, and to try to answer any questions 
you have about its contents, its status, and the issues remaining to be settled. 

The Federal copyright law now in effect in the United States was adopted in 



96 

1909 and has been amended in only a few relatively minor ways. It is essen- 
tially a Nineteenth Century copyright law, based on assumptions concerning tJie 
creation and dissemination of author's works that have been completely over- 
turned in the past fifty years. A Twentieth-Century copyright statute is long 
overdue in the United States, and the present need for a revised law that will 
anticipate the Twenty-First Century is so obvious as to be undeniable. 

It is startling to realize that the program for general revision of the copyright 
law actually got underway more than 50 years ago, in 1924, and produced four dis- 
tinct legislative efforts before World War II : The Dallinger, Perkins, and Vestal 
Bills in 1924-1931, the Sirovich Bill in 1932, the Duffy Bill in 1934-1936, and the 
"Shotwell" Bill in 1939. One of these measures passed the House, and a later 
one passed the Senate, but in every case the revision program ultimately failed 
of enactment because of fierce opposition to particular provisions by certain 
groups. The history of U.S. copyright law revision in the 1920's and 1930's 
teaches a basic lesson : the need to work out accommodations on the critical issues 
in an atmosphere of good will and give and take. It is a great deal easier to 
recognize the validity of this i)roiK)silit)n than to i)ut it into practice. 

The failure of the earlier efforts at general revision of tlie copyright law has 
been blamed on one group or another, and on the face of it there does appear to 
be quite a bit of blame to go around. At the same time it is important not to 
forget that the main purpose behind some of the revision bills was to permit 
U.S. adherence to the International Convention of Berne. There can be little 
doubt that some of the Congressional opposition to copyright law revision stemmed 
from basic objections to U.S. acceptance of foreign principles of copyright juris- 
prudence and to U.S. assumption of the international obligations involved in 
becoming a member of the Berne Union. 

After World War II the proponents of copyright law reform adopted a new 
approach. It was assumed, on the basis of past experience, that efforts to revise 
the copyright law in a way that would permit adherence to the Berne Convention 
would continue to be futile. It was also recognized that the emergence of the 
United States as a major exporter of cultural materials made our adherence to 
a multilateral convention essential. Thiis. efforts to secure general revision of the 
copyright law were temporarily deferred in favor of a major program aimed at 
developing and implementing a new international copyright convention to which 
the United States could adhere without major changes in our law. These efforts, 
under the leadership of Ileglster of Copyrights, Arthur Fisher, achieved success 
in 1952 with the signing at Geneva of the Universal Copyright Convention, fol- 
lowed in 1954 by the enactment of revisions to the 1909 statute permitting U.S. 
adherence to the UCC, and by the coming into force of the Convention in 1955. 

Noteworthy as it was, the achievement of bringing the United States into the 
international copyright community also served to dramatize once more how 
archaic and inadequate the U.S. copyright statute of 1909 had become. The autumn 
of 1955, which saw the coming into force of the Universal Copyright Convention 
and the inauguration of the current program for general revision of the copyright 
law, marked the end of one epoch and the beginning of another. In August 1955, 
Congress authorized the formation of a Panel of Consultants on General Revision 
of the Copyright Law under the chairmanship of the Register of Copyrights, and 
the Copyright Office undertook a series of basic studies of the major substantive 
issues involved in revision. At the same time began what has become a seemingly 
endless series of meetings and discussions with representatives of virtually every 
interest group affected by the copyright law. By now these discussions, which have 
been as valuable as they have been time-consuming, must literally run into the 
thousands. 

The study phase of the current revision program began almost exactly 20 years 
ago, in 1955. It was supposed to take three years, but it took about six. It pro- 
duced 35 studies covering most of what we thought at the time were the sub- 
stantive issues in copyright revision. These were published, together with a large 
body of comments from the Panel of Consultants, and I am proud to say that they 
are all still in print. 

The culmination of this effort was the publication, in 1961. of the 1961 Report 
of the Register of Copyrights on General Revision of the Copyright Law. The 
Register's Report was the first of many major contributions to the general revi- 
sion program by Abraham L. Kaminstein. INIr. Fisher's successor as Register of 
Copyrights. The purpose of the Reports, as Mr. Kaminstein said in his 1962 Annual 
Report, "was to furnish a tangible core around which opinions and conclusions 
could crystalize — to achieve the widest possible agreement on basic principles 



97 

before proceeding to draft a revised copyright law." The Report attempted to pin- 
point the major issues in revision, summarize the present hiw with respect to each 
of tliem, analyze alternative solutions, and present specific recommendations. 

The Register's Report succeeded very well in clarifying the issues and in 
focusing the discussions on them, but some of its most fundamental recommenda- 
tions proved more controversial than anyone in the Copyright Office had expected. 
In particular, the Register's proposal for copyright to begin with "public dis- 
semination" and to last for a first term of 28 years, renewable for a .second term 
of 48 years, provoked a flood of opposition ; there was strong support for a single 
Federal copyright system with protection commencing upon the creation of a work 
and ending 50 years after the author's death. A series of meetings of the Panel 
of Consultants on General Revision was held between September 1961, and March 
1962, at which all of the Report's recommendations were discussed in an increas- 
ingly tense atmosphere. The heated arguments at these and other meetings actu- 
ally'stalled the revision program for several months and brought it to a genuine 
crisis in the later summer and fall of 1962. It became apparent that, if the entire 
project was not to flounder, some method for advancing and considering alterna- 
tive recommendations would have to be found. 

In November 1962, the Register announced that the Copyright Offiee was pre- 
pared to change its position on some debatable questions and to draft alternative 
language on others. He indicated that the Office was prepared to revise its recom- 
mendations concerning "public dissemination" and the retention of common law 
protection, and that "at least one alternative version of our draft bill will adopt 
the life-plus basis for computing the term — in conjunction with a system of notice, 
deposit, and registration that we consider essential." The Register also announced 
that he would send preliminary drafts of .statutory language to the members of an 
expanded Panel of Consultants on General Revision for their comments, and that 
he would -convene another series of meetings on the preliminary draft. The proc- 
ess of preparing draft language for circulation occupied practically all of 1963, and 
included a total of eight meetings of the Panel of Consultants. 

The development of this preliminary draft proved to l)e a difficult but enor- 
mously productive phase of the program. The procedure adopted provided a motive 
and a forum for detailing, critical scrutiny of the language and substance of a new 
copyright statute by representatives of nearly all of the groups affected. It also 
created an atmosphere of cooperative effort that has survived various stresses and 
strains and has continued to grow in breadth and depth. 

The preliminary draft of the general revision bill that had reached completion 
at the beginning of 1964 was never intended to l)e a final report. The next six 
months were devoted to compiling, analyzing, and synthesizing all of the com- 
ments received on the draft, to making substantive decisions and changes on 
the basis of these comments, and to preparing a complete, section-by-section 
revision of the bill. The draft of the bill that emerged from this process was 
prepared entirely within the Copyright Office without collaboration or consulta- 
tion with any private groups or individuals. The introduction of the 1964 draft 
in July 1964 'marked the end of the drafting phase of the revision program and 
the opening of the legislative phase. 

Like the preliminary draft on which it was based, the 1964 bill was not intended 
as a finished product, but as a focal point for further comments and suggestions. 
In August 1964, a full week of detailed discussions of the bill showed that a 
great deal of progress had been made, but that still further revisions would be 
necessary l)efore legislative hearings could profitably begin. During the fall and 
winter of 1964-1965 the Copyright Office reviewed and analyzed the many oral 
and written comments on the bill and prepared another complete revision. 

At the beginning of the 89th Congress, on February 4, 1965, Representative 
Celler introduced the 1965 general revision bill and the Copyright Office six>nt 
the next three months preparing a supplement to the 1961 Register's Report. 
The Supplementary Report of the Register of Copyrights on the General Revision 
of the U.S. Copyright Law : 1965 Revision Bill which was published in May 1965, 
set forth the reasons for changing a number of recommendations in the 1961 
report and clarified the meaning of the provisions of the 1965 bill. 

Publication of the Supplementary Report coincided with the oi)ening of Con- 
gressional hearings on the bill. Over a period of more than three months, between 
May 26, 1965 and September 2, 1965, 22 days of public hearings were held before 
your subcommittee, under the objective and dedicated chairmanship of the man 
who is still your chairman, Robert W. Kastenmeier. A total of 163 mtnesses, 
representing an extraordinarily wide range of public and private interests, 



98 

appeared to testify. The record of those 1965 hearings oomprises nearly 2,000 
pages of printed text, including not only the oral transcript but also more than 
150 written statements. The Senate Judiciary Subcommittee under the chair- 
manship of Senator John McClellan of Arkansas, held brief hearings on the 
revi-sion bill in August 11*65, but delayed a full series pending the conclusion 
of the inten.se activity in the House subcommittee. 

Several significant factors with respect to the general revision program emerged 
from the 11)65 hearings. Most obvious were the sharp controversies remaining 
to be settled on some old issues (such as the jukebox exemption, the royalty rate 
to be paid under the compulsory license for recording music, and the manufac- 
turing requirements with respect to English-language books and periodicals), 
and on some relatively new issues (such as fair use, and the reproduction of 
copyrighted works for educational and research purposes, the liability of educa- 
tional broadcaster.s and similar transmitter;?, and the status of community 
antenna television systems under the copyright law). 

Aside from the need to work out further accommodations on several critical 
issues, the most serious problem arising from the 1965 hearings was now to orga- 
nize the massive contents of the record in a way that would overlook no signifi- 
cant comment or suggestion but that still would form a comprehensive basis for 
decision-making. Working in close collaboration, the Copyright Oflice and the 
House Judiciary Committee counsel prepared summaries of every statement that 
had been made, and then divided the entire corpus of the hearings into ten gen- 
eral areas: subject matter of copyright, ownership, duration, notice and regis- 
tration, manufacturing and importation requirements, community antenna sy.s- 
tems and other secondary transmissions, jukebox performances, compulsory 
license for phonorecords, educational copying and fair use, and educational broad- 
casting and other i>erforming rights. Each subject was then divided into sub- 
topics, under which were listed every issue raised at the hearings. 

This "experiment in legislative technique," as it has been called, proved effec- 
tive. It enabled the House Judiciary Subcommittee, in its deliberations of the 
bill, to consider each issue In context, to weigh the arguments for and against 
it, and to arrive at reasoned decisions. Meeting regularly, usually twice a week, 
from February through September 1966, the subcommittee held 51 executive 
sessions, all of which were attended by representatives of the Copyright Office. 
Examining each issue in deptli and then redrafting the pertinent section of the 
bill as they went along, the subcommittee produced an entirely revised bill in 
an atmosphere of informal, bipartisan discussions that could well serve as a 
model for similar legislative projects. 

The bill, as revised by the subcommittee, was reported Tinanimously to the full 
House Judiciary Committee on September 21, 1966. and was reported without 
amendment by the full Judiciary Committee on October 12, 1960. The House Re- 
port still remains the basic legislative explanation of the content of the bill, and 
the rei)orts succeeding it in both Houses have all been drawn from it. 

The bill was reported too late in the 89th Congress for further legislative 
action, and indeed none had been expected in 1966. In the revised form reported 
by the House, it was introduced by Representative Celler in the 90th Congress, 
and Avas considered by the newly-constituted membership of Subcommittee 3, 
again chaired by Representative Kastenmeier on Feliruary 20. 24 and 27, 1967. 
It was reiwrted to the full Committee on the last of these dates and, after ratlier 
heated debates in the full committee on February 28 and March 2, 1967, was 
again reported to the House. This time, however, the report included minority 
views by Representatives Byron G. Rogers of Colorado and Basil L. Whitener 
of North Carolina, devoted to the jukebox issue, and additional dissent by Mr. 
Whitener on the bilFs treatment of CATV. 

It was becoming increasingly apparent, as the bill moved toward the House 
floor, that extremely sharp and unreconciled conflicts on the issues of jukel)ox 
performance and CATV transmissions remained, and that there was a serious 
danger that one or both of these issues could defeat the bill. The bill was con- 
sidered by the House Rules Committee on March 8, 1967. and tlie rather acrimo- 
nious arguments in the Committee before it took action authorizing full debate 
on the House floor were another danger signal. 

The debates of the bill in the House of Representatives on April 6. 1967. were 
difficult and protracted. When the House finally recessed after 7 :00 p.m., it was 
apparent that a rescue ox)eration was essential. Over the next four days, in an 
atmosphere of intense crisis, several crucial compromises were achieved, and on 



99 

Tuesday, April 11, an amended bill was passed by the House after mild del)ate 
witli the e.vtraurdinary vote of 379 yeas to 29 nays. Fairly radical changes were 
made in three areas : there were drastic revisions in the provisions es-tablishing 
copyri;?ht liability for jukebox performances ; the provisions dealing with com- 
munity antenna transmission were dropped entirely and the exemptions for in- 
s'truetional broadcasting were considerably broadened. On the other hand, the 
structure and content of the bill itself has remained substantially intact. 

The Senate Judiciary Committee, which had opened hearings in 1965 and had 
had a short series of hearings on the CATV problem in 1966, resumed full-scale 
consideration of the bill, under the joint chairmanship of Senators McClellan 
and Burdick. on March 15, 1967. Indeed, tlie Senate hearings were in full swing 
during the crisis in the House, and for a time the general revision program re- 
sembled a two-ring circus in more ways than one. To everyone's surprise the 
record of the Senate hearings, which lasted 10 days and ended on April 2S, 1967, 
very nearly equals that of the House hearings in size and content. 

Of the several areas that emerged as fullblown issues at the Senate hearings, 
by far the most important is the iiroblem of the use of copyrighted works in 
automated information storage and retrieval systems. This prolilem was ad- 
dressed separately in the context of the creation of a National Commission on 
New Technological Uses which Congress enacted as separate legislation only last 
year, and which is still awaiting staffing. 

Meanwhile, as the 1967 legislative momentum began to slow more and more, 
it was increasingly apparent that cable television had become the make-or-break 
issue for copyright revision. Although the Senate Judiciary Subcommittee worked 
long and hard between 1968 and 1970 to resolve controversies over a number of 
issues other than cable, and succeeded in reporting the revised bill to the full 
Senate Judiciary Committee during the 91.s't Congress, it was not able to push 
revision any further. An effort .spearheaded by the Copyright Office to gain enact- 
ment of a "barebones"' bill, containing everything except the cable section and 
other controversial provisions dealing with economic rights, also failed. By 1971 
it was apparent that the bill was completely stymied over the CATV issue, and 
even the issuance of comprehensive FCC rules in 1972, governing the carriage of 
.signals and programming by cable systems, failed to break the impa.sse. 

Because of this long delay. Congress has passed a series of succe.ssive bills 
ex*tending the term of coi)yright. The.'^e now run through the end of the current 
CVmgress, and are scheduled to expire on December 31, 1976. Tlie urgent proVt- 
lem of tape piracy was also taken care of through separate legislation. A total 
of seven years passed between House passage of the bill in 1967 and the resumi)- 
tion of its active consideration in the Senate Subcommittee last year. 

There may have been other reasons, but certainly the most immediate cause of 
the revision bill's new momentum was the Supreme Court decision in CBS v. 
Teleprotnpter, holding that under the 1909 statute cable systems are not lialde 
for copyright infringement when they import distant signals. The decision wa.^ 
followed quickly by favorable actions in the Senate Judiciary Subcommittee and 
full Committee and, after a brief referral to the Commerce Committee, by passage 
in the Senate on September 9, 1975, by a vote of 70-1. In late November your 
Subcommittee held a hearing which, in one respect was a forerunner of these 
hearings. I testified in an optimistic vein at that time, and I remain hopeful 
that at long la.st the entire revision measure will be enacted into law during the 
current Congress. 

Ms. Ringer. The Federal copyright law now in effect in the United 
States was adopted in 1909 and has been amended in only a few rela- 
tively minor ways. It is essentially a 19th ccntnry copyright law, based 
on assumptions concerning the creation and dissemination of author's 
works that have been completely overturned in the past 50 years. 

A 20th-century copyright statute is long overdue in the United 
States, and the present need for a revised law that will anticipate the 
21st century is so obvious as to be undeniable. , 

. It is startling to realize that the program for general revision of 
the copyright law actually got miderway more than 50 years ago. in 
1924, and produced four distinct legislative efforts before World "War 
II. I will not go through the bills, but the period covered was 1924 



100 

to 1939. One bill was produced just on the eve of World War II after 
extensive consideration. That bill died because of the war. 

One of these measures passed the House, and a later one passed the 
Senate, but in every case the revision program ultimately failed of 
enactment because of fierce opposition to particular provisions by 
certain groups. 

The history of the U.S. copyright law revision in the 1920's and 1930's 
teaches a basic lesson : The need to work out accommodations on the 
critical issues in an atmosphere of good will and give and take. It 
is a great deal easier to recognize the validity of this proposition than 
to put it into practice. 

The failui'e of the earlier efforts at general revision of the copy- 
right law has been blamed on one group or another, and on the face 
of it there does appear to be quite a bit of blame to go around. At 
the same time, it is important not to forget that the main purpose at 
that time behind some of the revision bills was to permit U.S. adher- 
ence to the International Convention of Berne. 

There can be little doubt that some of the congressional opposition 
to copyright law i-evision stemmed from basic objections to U.S. 
acceptance of foreign principles of copyright jurisprudence, and to 
V.S. assumption of the international obligations involved in becoming 
a member of tlie Berne Union. 

If it had not been for that issue, the copyright law would have 
been revised during that period, in my opinion. 

After World War II the proponents of copyright law reform 
adopted a new approach. It was assumed, on the basis of past experi- 
ence, that efforts to revise the copyright law in a way that would 
permit adherence to the Berne Convention would continue to be futile. 

It was also recognized that the emergence of the United States as a 
major exporter of cultural materials made our adherence to a multi- 
lateral convention essential. Thus, efforts to secure general revision 
of the copyright law were temporarily deferred in favor of a major 
program aimed at developing and implementing a new international 
copyright convention to which the United States could adhere without 
major changes in our law. 

it was essential to develop and get implemented a new international 
convention aimed at bringing the United States into a multilateral 
copyright arrangement without requiring us to make major changes 
in tiie 1909 law. Tliis was done under the leadership of Arthur Fisher, 
then register of copyrights. They succeeded in 1952 with the signing 
of the Universal Copyright Convention, followed in 1954 by the 
enactment of revisions to the 1909 statute permitting U.S. adherence 
to tlie UCC, and by the coming into force of the convention in 1955. 

Noteworthy as "it was, the achievement of bringing the United 
States into the international copyright community also served to 
dr-amatize once more how archaic and inadequate the U.S copyright 
statute of 1909 had become. 

The autumn of 1955, which saw the coming into force of the Uni- 
versal Copyright Convention and the inauguration of the current pro- 
gram for general revision of the copyright law, marked the end of 
one era and the beginnins: of another. I think the dividing line was 
August 1955. 



101 

In August 1955, Congress authorized the formation of a Panel of 
Consultants on General Eevision of the Copyright Law under the 
chairmanship of the register of copyrights, and the Copyright Office 
undertook a series of basic studies of the major substantive issues 
involved in revision. 

At the same time began what has become a seemingly endless series 
of meetings and discussions with representatives of virtually every 
interest group affected by the copyright law. 

By now these discussions, which have been as valuable as they have 
been time consuming, must literally run into the thousands, and they 
are still going on. 

The study phase of the current revision program began almost 
exactly 20 years ago, in 1955. It was supposed to take 3 years, but it 
took about 6. It produced 35 fairly comprehensive studies covering 
most of what we thought at the time were the substantive issues in 
copyright revision. 

These were published, together with a large body of comments from 
the Panel of Consultants, and I am proud to say that tliey are all still 
in print. 

The culmination of this effort was the publication, in 1961, of the 
1961 Report of the Register of Copyrights on General Revision of the 
Copyright Law. The Register's report was the first of many major 
contributions to the general revision program by Abraham L. Kamin- 
stein, Mr. Fisher's successor as Register of Copyrights. The purpose 
of the reports, as Mr. Kaminstein said in his 1962 annual report: 

"Was to furnish a tangible core around wliich opinions and conclusions could 
crystalize — to achieve the widest possible agreement on basic principles before 
proceeding to draft a revised copyright law." 

The report attempted to pinpoint the major issues in revision, 
summarize the present law with respect to each of them, analyze alter- 
native solutions, and present specific recommendations. 

The Register's report succeeded very well in clarifying the issues 
and in focusing the discussions on them, but some of its most funda- 
mental recommendations proved more controversial than anyone in 
the Copyright Office had expected. 

In particular, the Register's proposal for copyright to begin with 
"public dissemination'' and to last for a first term of 28 years, renew- 
able for a second term of 48 years, provoked a flood of opposition; 
there was strong support for a single Federal copyright system with 
protection commencing upon the creation of a work and ending 50 
years after the author's death. 

A series of meetings of the Panel of Consultants on General Revi- 
sions, after the publication of the Register's report, was held between 
September 1961, and March 1962, at which all of the report's recom- 
mendations were discussed in an increasingly tense atmosphere. 

The heated arguments at these and other meetings actually stalled 
the revision program for several months and brought it to a genuine 
crisis in the late summer and fall of 1962. It became apparent that, if 
the entire project were not to founder, some method for advancing 
and considering alternative recommendations would have to be found. 
In other words, the Copyright Office had to reconsider its position. 



102 

In November 1962, the Register announced that the Coi)yright Of- 
fice was prepared to change its position on some debatable questions 
and to draft alternative language on others. He indicated that the 
Office was prepared to revise its recommendations concerning "public 
dissemination" and the retention of common law protection, and that, 
'*at least one alternative version of our draft bill will adopt the life- 
plus basis for computing the term — in conjunction with a system of 
notice, deposit, and registration that we consider essential." 

The Register also announced that he would send preliminary. drafts 
of statutory language to the members of an expanded Panel of Con- 
sultants on General Revision for their comments, and that he would 
convene another series of meetings on the preliminary draft. 

The process of preparing draft language for circulation occupied, 
jDractically all of 1963, and included a total of eight meetings of the 
Panel of Consultants. 

The development of this preliminary draft proved to be a difficult 
but enormously productive phase of the program. The procedure 
adopted provided a motive and a forum for detailed, critical scrutiny 
of the language and substance of a new copyright statute by repre- 
sentatives of nearly all of the groups affected. 

It also created an atmosphere of cooperative effort that has survived 
various stresses and strains and has continued to grow in breadth 
and depth. 

The preliminary draft of the general revision bill, tliat had readied 
completion at the beginning of 1964, was never intended to be a final 
product. The next 6 months were devoted to compiling, analyzing, 
and synthesizing all of the comments received on the draft, to making 
substantive decisions and changes on the basis of these comments, 
and to preparing a complete, section-by-section revision of the bill. 

The draft of the bill that emerged from this process was prepared 
entirely within the Copyright Office without collaboration or con- 
sultation with any private groups or individuals involved. The intro- 
duction of the 1964 draft in July 1964, marked the end of the draft- 
ing phase of the revision program and the opening of the legislative 
phase. 

Like the preliminary draft on which it was based, the 1964 bill 
was not intended as a finished product, but as a focal point for further 
comments and suggestions. In August 1964, a full Aveek of detailed 
discussions of the bill showed that a great deal of progress had been 
made, but that still further revisions would be necessary befoi-e legis- 
lative hearings could profitably begin. 

Durino; the fall and winter of 1964-65, the Copyright Office reviewed 
and analyzed the many oral and written comments on the bill and 
pi'epared another complete revision. 

At the beginning of the 89th Congress, on February 4, 1965, Rep- 
resentative Celler introduced the 1965 General Revision bill and the 
Copvriffht Office spent the noxt 3 months preparing a supplement to 
tho 1961 Recfister's Report. The '^ui^plementary roport of the Remster 
of Copyri2"hts on the General Revision of the TT.S. Copyright Law: 
1965 Revision bill which was pu])lished in INfav 1965. s^t forth ^'^'f' 
I'pasons for chanjnnp- n number of recommendations in the 19fi1 
To^^ort nnd clarified the meaning of the provisions of the 1965 bill. 

Publication of the supplementary report coincided with the open- 



103 

ing of congressional hearings on the bill. Over a period of more than 
3 months, between May 26, 1965 and September 2, 1965, 22 days of 
public hearings were held before your subcommittee, under the ob- 
jective and dedicated chairmanship of the man who is still your 
chairman, Robert W. Kastenmeier. 

A total of 163 witnesses, representing an extraordinarily wide range 
of public and private interests, appeared to testify. The record of 
those 1965 hearings comprises nearly 2,000 pages of printed text, 
including not only the oral transcript but also more than 150 written 
statements. 

The Senate Judiciary Subcommittee under the chairmanship of 
John McClellan of Arkansas, held brief hearings on the Revision 
bill in August 1965, but delayed a full series pending the conclusion 
of the intense activity in the House subcommittee. 

Several significant factors with respect to the general revision 
program emerged from the 1965 hearings. Most obvious were the 
sharp controversies remaining to be settled on some old issues — 
such as the jukebox exemption, the royalty rate to be paid under the 
compulsory license for recording music, and the manufacturing 
requirements with respect to English-language books and periodicals— 
and on some relatively new issues — such as fair use, and the reproduc- 
tion of copyrighted works for educational and research purposes, 
the liability of educational broadcasters and similar transmitters, 
and the status of community antenna television systems under the 
copyright law. 

Aside from the need to work out further accommodations on sev- 
eral critical issues, the most serious problem arising from the 1965 
hearing was how to organize the massive contents of the record 
in a way that would overlook no significant comment or suggestion 
but that still would form a comprehensible l^asis for decisionmaking. 
Let me say a personal word about those 51 days of subcommittee meet- 
ings, since they were very significant. 

Working in close collaboration, the Copyright Office and the House 
Judiciary Committee counsel prepared summaries of every state- 
ment that had been made, and then divided the entire corpus of the 
hearings into 10 general areas: Subject matter of copyright, owner- 
ship, duration, notice and registration, manufacturing and importa- 
tion requirements, community antenna systems and other secondary 
transmissions, jukebox performances, compulsory license for phono- 
records, educational copying and fair use, and educational broad- 
casting and other performing rights. 

Each subject was then divided into subtopics, under which were 
listed every issue raised at the hearings. 

The "experiment in legislative technique,'' as it has been called, 
proved effective. I think the effectiveness will become more and more 
apparent as you progress in 1975. It enabled the House Judiciary 
Subcommittee, in its deliberations of the bill, to consider each issue 
in context, to weigh the arguments for and against it, and to arrive at 
reasoned decisions. 

Meeting regularly, usually twice a week, from February through 
September 1966, the subcommittee held 51 executive sessions, all of 
which were attended by representatives of the Copyright Office. 
Examining each issue indepth and then redrafting the pertinent sec- 



104 

tion of the bill as they went alon*;, the subcommittee produced an en- 
tirely revised bill in an atmosphere of informal, bipartisan discus- 
sions that could well serve as a model for similar legislative projects. 

The bill, as revised by the subcommittee, was reported unanimously 
to the full House Judiciary Committee on September 21, 1966, and 
was reported without amendment by the full Judiciary Committee on 
October 12, 1966. 

The House report still remains the basic leo-islative explanation of 
the content of the bill, and the reports succeeding it in both Houses 
have all been drawn from it. 

The bill was reported too late in the 89th Congress for further 
legislative action, and indeed, none had been expected in 1966. In 
the revised form reported by the House, it was introduced by Repre- 
sentative Celler in the 90th Congress, and was considered by the newly 
constituted membership of Subcommittee No. 3, again chaired by 
Representative Kastenmeier, on February 20, 24, and 27, 1967. 

It was reported to the full committee on the last of these dates, and, 
after rather heated debates in the full committee on February 28 and 
March 2, 1967, was again reported to the House. 

This time, however, the report included minority views by Rep- 
resentatives Byron G. Rogers of Colorado and Basil L. Whitener of 
North Carolina, devoted to the jukebox issue, and additional dissent 
by Mr. Whitener on the bill's treatment of C ATV. 

It was becoming increasingly apparent, as the bill moved toward the 
House floor, that extremely sharp and unreconciled conflicts on the 
issues of jukebox performance and CATV transmissions remained, 
and that there was a serious danger that one or both of these issues 
could defeat the bill. 

The bill was considered by tlie Plouse Rules Committee on March 
8, 1967, and the rather acrimonious arguments in the committee be- 
fore it took action authorizing full debate on the House floor were 
another danger signal. 

The debates of the bill in the House of Representatives on April 6, 
1967, were difficult and protracted, to say the least. When the House 
finally recessed after 7 p.m., it was apparent that a rescue operation 
was essential. Over the next 4 days, in an atmosphere of intense crisis, 
several crucial compromises were achieved, and on Tuesday, iVpril 11, 
1967, an amended bill was passed by the House after mild debate with 
the extraordinary vote of 379 yeas to 29 nays. 

Fairly radical changes were made in three areas: There were dras- 
tic revisions in the provisions establishing copyright liability for juke- 
box performances; the provisions dealing with community antenna 
transmission were dropped entirely and the exemptions for instruc- 
tional broadcasting were considernbh/ broadened. On the other hand, 
the structure and content of the bill itself has remained substantially 
intact. 

The Senate Judiciary Subcommittee, which had opened hearings 
in 196.5, and had had a short, series of hearinirs on the CATV problem 
in 1966, resumed full-scale consideration of the bill, under the joint 
chairmanship of Senators McClellan and Burdick, on March 15, 
1967. 

Indeed, the Senate hearings were in full swing during the crisis in 
the House, and for a time the general revision program resembled a> 



105 

two-ring circus in more Avays than one. To everyone's surprise the 
record of the Senate hearings, which lasted 10 days and ended on. 
April 28, 1967, very nearly equals that of the House hearings in size 
and content. 

Of the several areas that emerged as fullblown issues at the Senate 
hearings, by far the most important is the problem of the use of 
copyrighted works in automated information storage and retrieval 
systems. This problem was addressed separately in the context of 
the creation of a National Commission on New Technological Uses 
which Congress enacted as separate legislation only last year, and 
which is still awaiting statnng from the White House. 

Meanwhile, as the 1967 legislative momentum began to slow more 
and more, it was increasingly apparent that cable television had be- 
come the make-or-break issue for copyright revision. Although the- 
Senate Judiciary Subcommittee worked long and hard between 1968 
and 1970 to resolve controversies over a number of issues other than 
cable, and succeeded in reporting the revised bill to the full Senate 
Judiciary Committee during the 91st Congress, it was not able to push 
revision any further. 

An effort spearheaded by the Copyright Office to gain enactment 
of a "barebones"' bill, containing everything except the cable section 
and other controversial provisions dealing with economic rights, also 
failed for tactical reasons. 

By 1971, it was apparent that the bill was completely stymied over 
the CATV issue, and even the issuance of comprehensive FCC rules 
in 1972, governing the carriage of signals and programing by cable 
systems, failed to break the impasse. 

Because of this long delay, Congress has passed a series of succes- 
sive bills extending the term of expiring copyrights. These now run 
through the end of the current Congress, and are scheduled to expire 
on December 31, 1976. The urgent problem of tape piracy was also 
taken care of through separate legislation. 

A total of 7 years passed between House passage of the bill in 1967 
and the resumption of its active consideration in the Senate subcom- 
mittee last year. 

There niay have been other reasons, but certainly the most im- 
mediate cause of the Revision bill's new momentum was the Supreme 
Court's decision in CBt^ v. Teleprompter^ in March 1974, holding 
that under the 1909 statute, cablp svstems are not liable for copyright 
infringement when they import distant signals. 

The decision was followed quickly by favorable actions in the 
Senate Judiciary Subcommittee and full committee and, after a brief 
referral to the Commerce Committee, by passage in the Senate on 
September 9, 1975, by a vote of 70 to 1. 

In late November, your subcommittee held a hearing which, in one 
respect, was a forenmner of these hearings. I testified in an optimistic 
vein at that time, find I remain hopeful that at long last the entire 
revision measure will be enacted into law during the current Conjrress. 

Mr. Chnirman, this is the end of my prepared statement, but I 
would also like to identifv seven or perhaps eifrht issues which will cer- 
tainly com.e before you. I am preparing what I hone will be a spr>ond 
supplementary report of thf- register of copvrijrhts which w^ll \\& 

j.^ „o- — 7n — pt. 1 8 



106 

available to you and also to the subcommittee by the time you need to 
consider the bill in a markup sense. 

This would not be something that would be part of the record of 
this hearing, but I would hope that I might have a chance to speak 
to it again later toward the end of these hearings or perhaps during 
the markup sessions. 

I have no intention now in trying to guess what the other witnesses 
are going to say or in arguing anyone's case. 

My feeling as the head of the Copyright Office is that my respon- 
sibility is to one group and one group only, and that is the group 
that is identified as the sole and only beneficiary of the copyright law 
of the United States under the Constitution, the authors of the 
so-called writings. In other words, the creators of copyrighted works 
as we now know them. 

I am profoundly of the belief that authors in this country have 
been treated shabbily and stingily from the very beginning of our 
copyright system. 

And, whatever I say will be with the thought that the situation 
of authors, not only as the creators of works of economic value, but 
as something that is infinitely precious to our country, needs to be 
promoted. 

I don't think this has been done effectively under previous legisla- 
tion. I will return to this point later. I am also conscious that everyone 
else besides the author is a user of the author's work, and as between 
users there may be arguments which are extremely persuasive for rea- 
sons unrelated to protection of the author but in some respects are 
irrelevant to the essential purpose of the copyright law. 

In these areas I think compromises liave been reached. I think com- 
promises have been necessary and I think further compromises will 
be made. But it is vitally important that you consider the effect of a 
])articular provision on the individual author and not primarily of 
its effect on an economic group using th& author's work for good 
or for ill. 

- Turning to H.R. 2223, as it now stands, I will try to give you an 
idea of its framework and its approach and pinpoint a few of the 
major issues that you will be hearing debated in the weeks to come. 

In the long, I am afraid, and rather boring statement that I made 
on the history of this project, I did want to make a point. Obviously, 
there is a long history behind the provisions in this bill, and aside from 
the chairman, all the members of your subcommittee are coming on it 
as new legislation, and you should not take it on faith. 

No one in their right mind would ask you to. Wliat I am trying to 
say, though, is that your predecessor members on tlie subcommittee 
went over most of these provisions in vast and searching detail. And, 
to a remarkable degree, aside from a few of the widely-publicized 
issues like cable, your subcommittee did its work so well that the 
basic legislation and its wording have become generally accepted. 

A lot of things are not issues that once were, because what you did 
has been accepted. I think you will realize this as you go along. 

Very simply, the present law is outdated, it is vague, it is ambiguous, 
it is arbitrary, and results in a great deal of unproductive work both 
on the part of those who have to operate under it and on the part of 
the Copyright Office. 



107 

It is comijletely unlike any other copyright law in the world and, in 
some cases, is simply a historic vestige. We have in this country a dual 
system of copyright. We are the only country that has this. We have a 
system that consists of common law copj'right in a work up to the 
point of first publication. At that point the work either falls into 
the public domain or it becomes subject to statutory copyright. Pub- 
lication is the dividing line between common law protection and 
either the public domain or the limited statutory protection of the 
1909 law. 

I don't think I need to stress that the concept of publication has 
now become outdated and slightly ridiculous. We are now in an 
era in wliich there are very few works that are not capable of being 
disseminated by media other than print, and many works never see 
print and are disseminated entirely through various electronic media. 

Tliis system has resulted in peculiarities and injustices, none of 
these less than the monsti'ous formalities that were retained and added 
to in the 1909 law. The fact is that if you publish a work, publish in the 
print sense, without a coj:)yright notice in the correct form and posi- 
tion, you throw your work into the public domain regardless of what 
your intentions were. 

The revision bill attempts to deal with the entire copyright situ- 
ation as it now exists and, to the extent that it is possible to predict it, 
into the next century. 

It provides essentially a simple system which is nothing novel. This 
system exists everywhere in the world. It is a system of a term based 
on the creation of the work. In other words, when the author figura- 
tivelv lifts his pen from his paper, he has a copyright under the Fed- 
eral law and under the Constitution, and he has it for his lifetime. 

There is no possibility that it would expire during his life, which 
is possible and in fact likely, under the present law. The international 
norm for the term of copyright is the life of the author plus 50 years. 
This is now in effect in a large majority of countries that have copy- 
right laws. 

Mr. DA>nLELS0N. Mr. Chairman, I should like to inquire. 

Mr. Kastexmeier. The gentleman from California. 

]Mr. Daxielsox. Ms. Ringer, you just mentioned that automatically 
under the bill the creator has a lifetime copyright. Perhaps as we go 
along as a new member of this subcommittee, I will have my present 
question resolved. 

As I read the Constitution it authorizes to secure for limited times 
and in the absence of compelling evidence I am going to assume we 
have the right to make that less than a lifetime. 

Can vou explain that difference, please ? 

Ms. Rix'GER. There is nothing unconstitutional about the present 
law which provides a first term of 28 years with a second term under 
a renewal system of 28 yeare ; and as I mentioned this second term has 
been extended by recent enactments of Congress. 

There is nothing unconstitutional about that. At the same time, I 
would find mvself unable to agree with any argument that a term 
based on the life of the author and a finite number of years after his 
death was not a limited term. 

Obviously people die. Evervone dies and that in itself is a limited 
term. If you add 50 years after that, you are definitely creating a 
limited term. 



108 

I think a better argument could be made that, under the present 
law, when you lift the pen from the paper you have an automatic 
common law copyright that is perpetual as long as the work is not 
"published." 

And I believe there might be some question as to whether or not 
this is constitutional. That there are many, many manuscripts sitting 
over in the Library of Congress Mhich may well be subject to protec- 
tion for generations, centuries, perhaps even eons. 

This seems against the public interest. One of the arguments for a 
life-plus-50 term is that not only does it provide a clearcut cutoff date 
but the date is the same for eveiy work that an author writes. 

In other words, for all of an author's works under a life-plus-50 
system, every work falls into the public domain at the same time 
and you don't have tliis syst^^m that we have now where you have to 
do a lot of research to determine when a work falls into the public 
domain. 

Mr, Dantelson. Suppose Congress would enact a law which would 
limit this to 10 years, which might very well be less than a lifetime? 

]Ms. Ringer. I am not suggesting that the system in the bill is some- 
thing dictated by the Constitution or anything other than interna- 
tional norms that have been established and accepted throughout the 
rest of the world. 

Whfit I am sayinr;: is that 10 years might be sufficient 

Mr. Danielson. I am only talking about constitutionality. If we 
limited a copyright to 10 years, I can see no reason why that would 
not be constitutional. 

j\Is. Rtnger. Nor can I. 

Mr. Kastenmeier. You may continue. 

Ms. Ringer. Thank you. The present 'bill, the bill we are now con- 
sidering, H.R. 2223, in addition retains the formalities that have been 
bugaboos under the present law, but liberalizes them to the extent that 
they are not the all-or-nothing disasters that authors face now. 

In other words, if you publish your work without a notice or with 
an incorrect notice, the bill allows you to correct your mistake. This is 
true of other formalities. You would do something because there is 
a reason for it and not just because the law says you have to. 

There is another provision which I am doubtful anyone will raise 
as an issue, but I might mention in the context of the general content 
of the bill. There are reforms that are of benefit to authors and artists 
with respect to ownership, in addition to the longer term, and one of 
the m.ost notable of these is in section 203 of the bill. 

Instead of the present complex and rather arbitrary and ca- 
pricious renewal provisions, it allows an author or his beneficiaries 
to re-do a bad deal. In effect, the present law was intended to accom- 
plish that result but has been most imperfect in doing this. 

Section 203 is the reversion provision which basically allows an au- 
thor, if he is still living or his widow and children and grandchildren 
to terminate a transfer after 35 years under certain circumstances. 

If they don't do that, then the contract continues. If they do do it, 
then tliev have nn absolute right to call the deal to a halt. In my 
opinion, despite the complexity of the provisions, it is a real plus for 
authors. 



109 

Let me say that most of the real issues that you are going to be con- 
sidering are not going to be before you in the testimony. The real issues 
are the reform of the copyright law and the things that I have been 
talking about. 

The issues that you will be hearing about are very, very important 
to authors, among other groups, but they are almost all outside the 
basic guts, if you will, of the bill itself. 

The most important of these separate issues still remains, cable tele- 
vision. There were some hopeful signs in the early seventies that an 
agreement might be reached on this issue, but they turned out to be 
somewhat premature. 

Let me say that your subcommittee in the middle sixties was a 
pioneer on this issue. It hit your predecessors cold. There had been 
some consideration of this in the context of FCC regulations and 
Senator Pastore had sponsored a bill in the communications area. 
But in terms of the major issues raised by copyright liability for 
cable operators, no one before you, in my opinion, had come to grips 
with the ultimate problems, the question of division of markets, and 
the importation of local as against distant signals and how the whole 
thing might be wcrked out in a way that will benefit authors. 

Your first essay on this, your bill that was put before the House 
in 1967, was a pioneering effort, and no one should be ashamed of it. 

I think it is recognized today as more sophisticated than anyone 
could have expected for a bill at that time. You recognized complex 
truths about this important public issue before others did and in fact 
up until the end of the sixties, people were still asking, what is cable 
television ? 

This issue, I believe, is finally approaching a resolution, although 
there will be sharply conflicting testimony. You cannot blame people 
for wanting to get the best deal they can, and nothing is black, white, 
or even gray on this issue. 

I will answer any questions that you have. The bill itself establishes 
a compulsoiy licensing system which in effect is based on this prin- 
ciple, that if the FCC says that a system can carry a signal, then the 
system automatically has a compulsory license to cairy that signal 
and the copyrighted i)rogram, on the signal, and there is an 
elaborate compulsory licensing procedure and a complex schedule of 
fees that cable systems would have to follow and pay in order to 
insulate themselves from liability for copyright infringement. 

Essentially, the thing is basically a complete compulsory license. 
The bill that you reported in 1967 did not have a compulsory license 
for CATV, although you considered it. It did have exemptions and 
complete liability. It was black and white and no gray. 

What has emerged is quite different and yet I think that the prin- 
ciples underlying it are still the same principles and I think the result 
is probably an acceptable one. 

The testimony you hear, I hope, will be largely over the details of 
the systein and not whether or not cable ought to pay. There will be 
some testimony to this effect, but it seems to me that maybe we are 
beyond that point. As things stand now, it is mainly a question of 
how they pay and how much. 

Another issue which was not dealt with by your committee at all, 
although you heard testimony on it, was that of library photo- 



no 

copying and I AYOuld rank this as tlie second most important issue in 
the bill. 

It is now dealt with in section 108 of H.R. 222.3. The reason that you 
did not report a provision on this subject was that the parties re- 
spectively, and for absolutely opposite reasons, agreed that the bill 
should not address the problem. 

At that time, and it was before the full impact of library photo- 
copying and photocopying machines generally had been felt, the feel- 
ing on the part of the copyright owners was that a provision specify- 
ing explicitly what the liability of libraries would be would have dele- 
terious effects, since the owners felt that they had complete rights and 
libraries should not photocopy at all without paying. The library 
community felt just the opposite. 

I think it was a mistake for the bill to say nothing. Looking back, 
I think that some provision on this was essential. What has emerged 
in section 108 has been fought over in a friendly way for a number 
of years in the Senate context. Essentially, section 108 insulates 
libraries from liability for the operation of coin-operated machines 
on their premises and allows them to photocopy single copies of 
articles and excerpts from journals and books, and so forth, in their 
collections. If it is clear that a work is out of print, they can make 
a single complete copy for a user. Some of this activity can be carried 
out for inter-library loan purposes. 

The big issue in section 108 is found in subsection (g) , and the brief- 
ing paper in the folder that I will give you goes into this in some 
detail. 

Under the final version that emerged in the Senate, after saying 
what libraries can do, the bill says that this does not apply to multiple 
copying, including making multiple copies one at a time and it does 
not apply to single copying when it is done systematically. 

It is still not altogether clear in anyone's mind what systematic 
copying means, but there is a good deal of concern on the part of 
librarians as to the chilling effect this would have on their interlibrary 
loan and network activities which are ongoing and very important as 
a public issue. 

This is something that badly needs resolution. You passed and the 
President did sign on December 81 of last year, a bill setting up a 
national commission that has as part of its mandate, a study of this 
problem. 

At the same time you yourselves, will have to decide what section 108 
and specifically section 108(g), says on this particular subject. There 
are other activities going on in the library photocopying arena and 
you will hear more about them as your hearings proceed. 

An issue of great immediate importance in the subcommittee level 
right now is the liability of public broadcasting. In 1967 your subcom- 
mittee agreed that instructional television should be given an ex- 
emption to a certain extent from copyright liability and during the 
House debates, this exemption was expanded. 

But at the same time the exemption was limited to instructional 
television. Public broadcasting which to some extent enjoys an exemp- 
tion today would be liable under H.R. 2228. The public broadcasters 
and their representatives have been seeking a very broad and far- 



Ill 

reaching compulsory license with respect to the use of copyrighted 
material other than motion pictures, audiovisual works and dramatic 
works. 

Their concern is with the high cost and difficulty in getting clear- 
ances and the fact tliat their budget does not permit them to do the 
clerical work or to pay extensive royalties. 

The Senate subcommittee staff is now engaged in a series of meet- 
ings trying to resolve this issue. The signs are relatively hopeful and 
perhaps with certain amounts of good will and cooperation, you will 
not have to face what is known generally as the Mathias amendment, 
which would be the proposal for a compulsory license covering public 
broadcasting. 

Related to this is another amendment put forward in the last Con- 
gress by Senator Bayli which would extend to an unlimited amount 
the number of recordings, tapes, that an instructional broadcaster 
could make of broadcasts for use in delayed broadcasts or throughout 
the whole complex of instructional broadcasting. 

In my opinion, this is an important issue but it is not as important as 
the Mathias amendment, and I expect the two will be considered 
together whenever they get to you. 

In the area of jukeboxes, a very difficult compromise was achieved 
in 1967 and, astonishingly, it has held up. This involved a compulsory 
license for jukebox performances with a payment of $8 by jukebox 
operators per box per year, the payments being made into the Copy- 
right Office and then disbursed under the procedure provided. 

"As a result of the cable wars in the Senate, an amendment was added 
w^hich establishes a copyright tribunal, chapter 8 of the bill, and gives 
it a double mandate. First, in certain cases, the tribunal would settle 
disputes with respect to the disbursement of fees. This does not seem 
objectionable to most people. 

But in addition the tribunal would be called upon, through what in 
effect is a compulsory arbitration system, to review the rates of the 
compulsory licenses "that are set under the bill, and recommended 
changes which would become effective unless Congress chose to wipe 
them out. 

The jukebox operators objected to $8 being subjected to a review, 
and in the Senate consideration last Septeml^er, Senator Hollincrs put 
forvrard an amenrlment that took the jukebox rate out from under the 
tribunal review. This is the form in which the bill now appears. 

The jukebox rate is frozen at $8 and it is not subject to review. I 
am reasonabl}^ sure you will hear testimony on this issue in the davs 
to come. 

I believe that this is the only real issue remaining with respect to the 
jukebox problem which, without any question, was our biggest head- 
ache in the early sixties. 

The other economic issue that you will hear testiTuony on is the 
amovuit of the rate for the old traditional compulsory license covering 
the making of sound recordings of musical compositions. 

The 1909 law was a pioneer. It adopted the first compulsory license 
in any field. It established a system which is still in efTect today that 
allows a record producer to make a record of a copyrighted musical 
composition without permission if he follows a compulsory licensing 
procedure and pays 2 cents per record per song. 



112 

One can wonder how 2 cents in 1909 could possibly still be viable 
today. The answer is probably that the LP resulted in the unit price 
going from 2 cents to about 20 cents or in some cases 24 cents as a 
ceiling. 

But at the same time it has been argued very forcefully that the 2- 
cent rate is infinitely too low, even considering the LP and the other 
structural changes that have occurred in that industry. In the 1965 
hearings, there was massive testimony of a statistical nature dealing 
with the validity of the 2-cent rate. 

Your committee agreed to 21/^ cents as a reasonable rate at which to 
peg the royalty. 

The Senate, facing an inflationary curve which had only just started 
in 1965, raised the fee to 3 cents after considering at one point a 3V^- 
cent rate. This is still a very, very sharp controversy and I think you 
better prepare yourself for quite a lot of statistics within tlie coming 
weeks. 

Finally, and the seventh issue that I will mention, is the performance 
right for records which has the — as the chairman mentioned 



'^f~' 



Mr. Kastenmeier. May I interrupt ? I have five : Cable TV, library 
photocopying, liability of public broadcasting, jukeboxes, public 
recording. 

Ms. Ringer. I am sorry. I accidentally skipped one, the question of 
educational use other than broadcasting and it will be the subject of 
one of your days of testimony, if not more. In the 1965 hearings, you 
heard a good deal of testimony on the issue of classroom photocopy- 
ing and other copying by teachers of copyrighted material. 

This was put forward in the context of the fair use provision which 
is now section 107 of the bill and is a rather general statement of the 
doctrine of fair use. 

The question was whether or not a vague provision of this was suf- 
ficient to give teachers guidance as to what they could and could not 
do with respect to copyrighted material, except when they had at their 
fingertips a good deal of electronic and other machinery for using copy- 
righted materials and making them available to their students and 
pupils. At the time, you sought to solve this problem by considering 
all of the arguments that had been made and attempting in the report 
to lay out what the committee regarded as fair use in this context. 

There are about four closely packed pages still in the report, in the 
Senate version, that reflect your committee's actual drafting of what 
you considered the scope of fair use to be in this context of classroom 
teaching. 

This has not, I think it is fair to say, satisfied the educational rep- 
resentatives. I believe you will hear proposals on this issue and I would 
list this as one of the seven major issues. 

An adjunct to the seven is the copyright royalty tribunal which is 
an issue in itself but arises in the context of three of the other issues 
and also of a fourth, wliich is the seventh of the major issues, the per- 
formance right in records. 

The testimony in 1965 on this issue was very interesting. The 
record producers put forward a very strong case for anti-piracy legis- 
lation and during the hearing, after testimony by performers and per- 
formers' representatives, they added to that a proposal for a per- 
forming right in recordings. That would mean payment under some 



113 

sort of system for playing records on disc jockey programs, for playing 
records on iukeboxesj and for playing records on cable television and 
music systems. 

I draw a distinction at this point between the music on the record 
and the recording itself. The music is already protected against all of 
these uses except cable and jukebox and would be protected against all 
of them under the bill. 

The stopgap legislation that you passed in 1971 effective in 1972, 
created a copyright in a sound recording that would extend to any 
creative elements present in the recording but limited it to the particu- 
lar situation of so-called piracy, unauthorized duplication, usually on 
8-track cartridges. 

This legislation which was temporary in its 1971 form was stand- 
ardized as permanent legislation in 1974 and is now part of the copy- 
right law. I don't regard "piracy" as an issue. It may become one. 

What is an issue, and the major issue in the Senate consideration of 
the bill in 1974, was the proposal that a performing right be added 
to the law that would allow the collection of royalties for the playing- 
of records as such on radio, television, cable, jukeboxes, and so forth. 

The sponsor of this legislation in the Senate was Senator Scott. The 
bill contained this provision when it went to the floor of the Senate 
and was knocked out in a rather heated debate during that con- 
sideration. 

Senator Scott has reintroduced the proposal as a separate bill and. 
Kepresentative Danielson has introduced the same bill. In the Senate 
subcommittee I gather there will be hearings on the Scott bill and there 
is a possibility that it might be joined with the revision bill. 

In any case it is not a piece of separate legislation in its real effect. 
I think it is something your subcommittee should consider as part of 
the overall picture of general revision. 

I repeat, however, that the Danielson bill is a revision of the 1909 
law, which is the approach that is being taken in the Senate by Senator 
Scott. I am not sure I have made that clear. 

I should say on this point that I believe very strongly that sound 
recordings and the performances incorporated in them are creative 
works, that they are the writings of an author, and that they are sub- 
ject to copyright protection under the Constitution. 

There is no doubt about this in my mind and I believe that your ac- 
tion in passing legislation that recognizes sound recordings as copy- 
rightable and protects them against piracy is consistent with that 
view. It is not whether they should be protected but how they should 
be protected, whether protection should go beyond piracy to inchido 
tlie payment of royalty for performances by various media. In prin- 
ciple, I support that, too. 

I think that the ways of working it out need to be carefully con- 
sidered. The proposal in the old section 114 in the Senate version in 
1974 had problems of a practical nature, but I am not sure that they 
are insuperable. 

These are the seven major issues and much of the testimony you will 
hear will be centered around them and will be economic in nature. In 
addition to this you will hear discussion at various points of the manu- 
facturing clause, section 601 of the bill, and which is a disgraceful 
vestige, in my opinion, of 19th century protectionist thinking. 



114 

The manufacturing clause was added in the 1891 Copyright Act as 
the price the printers exacted for allowing copyright to be extended 
to foreign authors. They had been getting a free ride up to that point 
and they insisted that, as a price for allowing Dickens and Tolstoy to 
be protected in this country, the works could not be copyrighted un- 
less they were printed here. 

This'provision, which was bad legislation to begin with, has become 
eroded over the years and in 1965 it was eroded some more. The Reg- 
ister's initial recommendation was that it be done away with. It became 
apparent that it could not be knocked out of the bill without a major 
fight. 

As a result, it has been retained with a considerably narrowed scope. 
I believe that the principal arguments you will hear, perhaps tomorrow 
and in succeeding days, involve the fact that we are now equating 
Canada with the United States in terms of the place of manufacture, 
and this raises a host of technical questions which I won't go into. I 
think there has been accommodation among the parties and there- 
fore it is unlikely you will find people attacking the manufacturing 
clause out of hand, as I have just done. 

Yet personally I find it very, very bad legislation and would like to 
see it gone. It may not be practical to do that. 

I believe you will also hear testimony from artists and their repre- 
sentatives with respect to the unsatisfactory situation of artists under 
the present law. 

I think this is a valid argument. The revision bill would help artists 
but probably would not go as far as they would like it to. 

Mr. Kastenmeier. When you say '"artists,"' whom do you have in 
mind ? 

Ms. liiNOER. Painters, sculptors, graphic artists, and designers. I 
wanted to mention the design bill. Title II of the bill is a completely 
separate piece of legislation which was conjoined with the revision; 
bill in the Senate more or less as legislative expediency at the time. 

The two prol)lems are related and I have no objection to them being 
addressed together. I think this is probably a good idea. 

But you will find differences in approach between them, and a bridge 
provision in section 118 deserves your attention. I think the design bill 
is a good l)ill and it deserves to be passed whether as a title II of this 
overall omnibus revision or separately. 

It is then unclear whether there wnll be a debate over it. There has 
not been in the Senate. 

There are other issues. There is a proposal that would exempt a 
proprietor of a ballroom or similar place of entertainment from 
liability and place the liability on the performing organization. 

There are undoubtedly dozens of other little or perhaps not so little 
issues that will arise during these hearings. But I have tried to 
give vou the overall framework of what you will be hearing, and in my 
opiiiion you do not need to go back to ground zero. 

I don't thin]<: you need to start at the beginning. I think you can 
consider many issues settled, thanks to your efforts in the sixties. Your 
prol^lem is not a simple one but I think it is something that is solvable 
and I am extremely encouraged by the scheduling of hearings and the 
general atmosphere that I find here today. 

Thank you, Mr. Chairman. 



115 

]Mi-. Kastenmkieu. Tliank you. Ms. Ringer, for a very comprehensive 
review historically of the issues involved in copyright law revision. 

The Chair will state, that at our next hearing, we will have Govern- 
ment represented by three other entities, the Justice Department, the 
Commerce Department, and the State Department, and to some extent, 
other aspects will be more deeply explored with reference to the bill in 
terms of its administration from the governmental point of view. 

I haA^e at this point just a couple of questions and then I would like 
to yield to my colleagues. From time to time there have been argu- 
ments made that we could leave something out of the bill. 

Indeed, from time to time, certain areas have not been covered in the 
bill. But is it not the case, this being a unitied code, that the operation 
of the bill does apply whether or not we specifically deal with a subject 
or not? That is to say, all we have done in a sense is by our nonstate- 
ment, to leave the matter somewhat unresolved in terms of potential 
litigation? 

Therefore, we can really not fail to deal with an issue. It will be 
dealt with one way or the other. The code, title 17, will cover it. So we 
have made a conscientious decision even by omission. Do you agree ? 

Ms. PiiNGEK. I would agree. In 1909 there was probably no intention 
to protect sound recordings. I think the legislative history would bear 
this out although it is ambiguous. In the early 1970's there was an in- 
crease in record piracy because of the increasing popularity of 8-track 
cartridges. As a result, there was a major effort to g>et States to pass 
legislation or to enforce common law protection of what were clearly, 
in a layman's sense, published works because of the lacuna in the 1909 
statute. There was no explicit protection. This issue went all the way to 
the Supreme Court and the Supreme Court upheld the validity of a 
State criminal statute against record piracy on the ground that Con- 
gress had not preempted that protection since it had failed to act. 

You may not even be refraining deliberately from giving protection, 
which I think was the thrust of your question. You may, in fact, be 
handing them State protection which is variable and inconsistent in 
many cases and has a lot of imdesirable features. These were the very 
imdesirable features that INIadison mentioned in the "P'ederalist 
Papers'' when he was defending the copyright clause in the 
Constitution. 

Mr. Kastenmeier. By virtue of passing this bill, we will deal with 
every issue. Whethei" we deal with it completely or not for the purpose 
of resolving the issues involved is the only question, not whether it has 
dealt with the four corners of the bill because the four corners of the 
bill will presume to deal with everything in copyright. 

"Ms. Ringer. I quite agree, Mr. Chairman. 

]Mr. Kastexmeier. One of the apprehensions that, as we develop 
this bill and probably future amendments to it, is that by creating 
rights and extending rights, we might make the law very compli- 
cated given the present state and future state of society, that the 
business of getting clearances and knowing what levels of rights are 
really being accorded may get extraordinarily difficult, particularly 
for users. 

What is your comment to that ? 

Ms. RixGER. This has been a concern to us in the Copyright Office, 
too. There are some situations — and I think cable is one of the best 
examples I have ever seen — that are so intrinsically complicated that 
you cannot deal with them in a broad-brush way. 



116 

I think that your efforts to deal with the CATV problem in 1965 
which were attacked as being terribly complicated are extraordi- 
narily clear and simple compared to the FCC regulations which in 
effect did the same thing. 

At the same time, I am very disturbed about the increasing reliance 
on compulsory licensing to resolve difficult conflicts. The law is so out 
of date that tliere are now areas in which authors are simply not being 
protected at all. In these areas there have built up user interests that 
are so strong and so deeply embedded that to impose outright copy- 
right liability, with no if s, and's or but's, would create very serious 
problems. 

Because the 1909 law has been allowed to become hopelessly out of 
date, you have to compromise, and the obvious compromise in many 
of these cases is compulsory licensing. 

When you begin this game in areas now protected under copyright, 
where the protection already exists and licensing arrangements have 
already been made, then I think you are doing something very drastic, 
and the ultimate result could be substantial changes in the character of 
copyrights that might actually make it harmful to the author rather 
than helpful. 

Mr. Kastenmeier. Now, I would like to yield to the gentleman from 
California, Mr. Wiggins. 

Mr. Wiggins. Following you will be many witnesses who will reflect 
their economic interests and you may be one of the few witnesses who 
do not have an obvious economic stake in this bill. 

Can you help me with some of the problem policy issues which may 
pervade all of these sections of the bill ? I think I can understand a 
person's economic ax. I respect their points of view. But, I am not 
sure I really understand the public policy issues involved and I would 
like your assistance. 

Ms. Ringer. The 1909 Joint Congressional Committee, in its report 
No. 2223, made a statement which has been quoted many times and 
which I agreed with at one time, but which I have ceased to agree with. 

I will paraphrase it. It was that copyright is not for the protection 
of the author, but for the public and that where the author's interests 
and the public's interests conflict, the author must yield. 

This sounds great and for a long time, I felt that this was probably 
correct. But, the more I have looked upon the status of authors in this 
country and the fact that the public interest is badly served when 
authors are badly served, I have felt that too often the'public interest 
has been identified with economic users rather than with authors. 

In recent years, partly as a result of this whole revision exercise, I 
have been trying to gage individual issues in terms of their impact 
upon creativity and authorship, which I consider the ultimate public 
interest. 

The Constitution speaks of the desirability of promoting the prog- 
ress of science and useful arts, science in the broad sense of learning or 
knowledge, by offering protection for limited times to authors and 
inventors. 

It seems to me that it is this protection, tlie exclusive rights that are 
supposed to be granted to authors, that is the ultimate public interest 
that the Constitution and its drafters were thinking about. 



117 

I do not think that this has ever been fully or even partly realized 
in any copyright law we have had in our entire history. 

Mr. Wiggins. I was wondering if you would place the dissemination 
for the benefit of the public — and I might add for the profit of the 
disseminators — on an equal plane with the protection of the authors 
and inventors ? 

Ms. Ringer. Yes. I think that the system that we have had has been 
based on the desire to induce dissemination, make works available 
to the public by offering protection to authors. 

I think that this system is now subject to some difficulty because of 
the fact that the new technology has made it an absolute detriment to 
disseminate. In other words, an author in certain situations who lets 
the bird out of the cage, finds that there is no way to regain it, that 
once he has made a tape and it has been played over the radio or tele- 
vision, he finds suddenly it is being pirated or made in duplicates all 
over the country. 

It is very, very difficult in that situation for him to realize any 
economic gain or reward for his creation and there may be situations 
in which he would prefer to keep his biid in its cage, so to speak. 

I am speaking in terms of music, but I think the example is better 
in some areas where there is a more realistic possibility of exercising 
complete control. 

The task of your committee, as I see it, is to try in some way to 
evaluate the impact of the new dissemination media on the basic task 
of giving authors a reasonable return and inducing them to let the work 
go out to the public. 

We are in really big trouble on this, in my opinion, at the moment. 

Mr. Wiggins. Thank you. 

Thank you, Mr. Chairman. 

Mr. Kastenmeier. The gentleman from California, Mr. Danielson ? 

Mr. Danielson. I wish to thank Ms. Ringer, JNIr. Lorenz, and 
IMr. Kaminstein for their contribution this morning. It was most 
helpful. 

Will iVIs. Ringer be back again ? I have a couple of questions. 

Mr. Kastenmeier. As a matter of fact, yes. We will have Ms. Ringer 
back perhaps at an earlier time than later because it is obvious today 
we will not have time for extended examination on a number of issues 
which have been raised. 

Mr. Danielson. All right. 

Beyond that, I want to thank my colleague, Mr. Wiggins, for raising 
the point he just did raise and for your response to it. It was directly 
responsive to one question in my mind. As I read the Constitution, the 
justification for copyright in the first place — and the only one in the 
Constitution — is to promote the progress of science and useful arts. 

So far as I am concerned, any legislation which I will support will 
have to be calculated to achieve that end, to promote the progress of 
science and useful arts. 

The copyright is the means through which that end is accomplished 
and that will be, I believe, the general rule that I am going to follow 
hei'e. 

I wish to thank Mr. Kaminstein and commend him for the magnifi- 
cent perception of the legislative process which is set forth in the next 



lis 

to the last paragraph of his statement, and of the responsibility of the 
Congress in meeting that process. 

I wish every legisLator would include that as part of his morning 
devotions or ablutions. 

Mr. Kastenmeier. The gentleman from Massachusetts, Mr. Drinan ? 

Mr. Drinan. I want to welcome Ms. Ringer back. I am sorry I had 
another subcommittee. That subcommittee was about bankruptcy, and 
the Congress has been even more apathetic about bankruptcy than 
about copyright laws. 

I thank you for your appearance here today and I wish to thank the 
other two witnesses. 

Thank you. 

Mr. Kastenmeier. The gentleman from New York, Mr. Pattison? 

Mr. Pattison. I have no questions. 

Mr. Kastenmeier. I am astounded. [Laughter.] 

Probably it is the better pait of wisdom, since the House is in ses- 
sion, to terminate at this period and to thank all three witnesses, 
Mr. Lorenz, Mr. Kaminstein, and Ms. Ringer, for ilhuninating the 
subcommittee and updating it on the subject of copyright. 

Particularly what Ms. Ringer has contributed this morning will 
raise a number of other issues, other questions, with which I am in 
entire agreement with the gentleman from California, Mr. Danielson, 
on and suggest further colloquy. 

Rather than get into those thickets at this hour, T think we will let 
the morning testimony stand. It does sound not only hopeful, but gives 
us the frame of reference for now proceeding hopefully to a success- 
ful end. 

In conclusion the Chair desires to again thank our witnesses this 
morning. 

Mr. Danielson. Is there any chance of getting a larger room for 
tomorrow ? There are a lot of people standing up back there that would 
rather sit. 

Mr. Kastenmeier. We will do what we can do in that regard. The 
committee is very impressed by the public interest. We will try to bring 
additional chairs in and accommodate those standing today. 

Tomorrow we wnll have representatives of the Justice Department, 
Commerce Department, and the State Department on the question of 
general copyright revision. Until then, the subcommittee stands 
adjourned. 

[Whereupon, at 12 :10 p.m., the subcommittee adjourned, to recon- 
vene at 10 a.m., Thursday, May 8, 1975.] 



COPYRIGHT LAW REVISION 



THURSDAY, MAY 8, 1975 

House of Represextatives, 
Subcommittee on Courts, Civil Liberties, 

AND the Administration of Justice 
OF the Committee on the Judiciary, 

Washington^ D.C. 

The subcommittee met, pursuant to call, at 10 :10 a.m. in room 2226, 
Rayburn House Office Building, Hon. Robert W. Kastenmeier [chair- 
man of the subcommittee] presiding. 

Present : RepresentatiA'es Kastenmeier, Danielson, Drinan, Badillo, 
Pattison, and Railsback. 

Also present : Herbert Fuchs, counsel ; Bruce A. Lehman, counsel ; 
and Thomas E. Mooney, associate counsel. 

jNIr. Ivastenmeier. The committee will come to order. This morning 
is the second morning devoted to hearings on the subject of H.R. 2223 
and other bills relating to the general revision of the copyright law. 

"We are pleased to have as our first witness this morning, represent- 
ing the State Department, Deputy Assistant Secretary for Commercial 
Affairs and Business Activities, the Honorable Joel W. Biller. Mr. 
Biller is accompanied by Philip R. Trimble, Assistant Legal Adviser 
for Economic and Business Affairs. 

Is Mr. Biller here ? 

Mr. Biller. Yes. 

Mr. Kastenmeier. We will be happy to hear what you have to say. 

TESTIMONY OF JOEL W. BILLER, SECRETARY FOR COMMERCIAL 
AFFAIRS AND BUSINESS ACTIVITIES, DEPARTMENT OF STATE 

Mr. Biller. Thank you, ]Mr. Chairman. Mr. Trimble is sitting on 
my right and Mr. Bushnell is on my left. 

I greatly appreciate having the opportunity to present the views 
of the State Department on H.R. 2223, for the General Revision of 
the Copyright Law, title 17 of the United States Code, and for other 
purposes. Although we take exception to one section in this bill, the 
Department otherwise supports the enactment of this important 
legislation. 

As the committee knows, the present U.S. copyright law is essen- 
tially the same as the act of 1909. Since that date, great advances have 
been made in teclinology and techniques for communicating printed 
matter, visual images, and recorded sounds. These advances have 
created new industries and methods for the reproduction and dissemi- 
nation of copyrighted works. 

(119) 



120 

The State Department believes that a modernization of the copy- 
right law to take into account the important technical advances in 
the copyright field is in the interest of both the authors and the users. 

My comment will be directed to those sections of H.R. 2223 which 
relate to the conduct of our foreign relations and therefore are of 
special interest to the Department of State. Tliese sections are the 
following: Section 104 regarding subject matters of copyright and 
national origin ; section 302 on the duration of protection ; and section 
601 on restrictions against importation of certain copyrighted mate- 
rials from other countries. 

Section 104 is relevant to our international interests in that it speci- 
fies the occasions when foreign works, that is, works produced by 
nationals of countries other than the United States, will be granted 
U.S. copyright protection. Essentially, section 104 continues the reci- 
procity approach contained in the present law with respect to pub- 
lished works; that is, the United States gives foreign citizens 
protection equal to that given by the foreign countiy to U.S. citizens. 
It is tlius consistent with generally accepted international practice in 
most countries and has the support of the Department. 

Of particular relevance to the Department's interests is section 104 
(c) ("Subject Matter of Copyright: National Origin") which deals 
with the possibility that a foreign government might take action in 
the U.S. courts to divest its citizens or authors of rights to their works 
or to block publication of their works within the United States. We 
do not have any evidence that an action of this nature is likely to occur. 
But if it did, it would represent undesirable official interference with 
the freedom of individual expression, and we therefore believe that it 
should be guarded against. 

It is important to note that the international copyright system 
embodied in the I^niversal Copyright Convention is intended to 
"insure the respect for the rights of the individual and encourage the 
development of literature, the sciences, and the arts." These convention 
obligations should be kept in mind with respect to any action to 
suppress free communication in the United States of ideas and litera- 
ture unacceptable to authorities of another member state of the 
convention. 

We understand that other U.S. Government agencies are drafting 
language to accomplish the purpose of section 104(c) in a technically 
different manner. We have not reviewed these proposals and there- 
fore are unable to express our opinion on them. However, we sup- 
port the aim of appropriately drafted legislation that would deny 
effect in U.S. courts of a foreign nation's laws or practices designed 
to deprive the authors of that country of the rights to publish and 
protect their literary and artistic works in the United States. , 

Section 302 deals with the duration of copyright, that is, term of 
protection. It is one of the most important, if not the most im]:)ortant 
provision in the copyright revision bill. Essentially, section 302(a) 
provides for a copyright term of the life of the author plus 50 years 
after his death. Such a term of protection would be more in line 
with the practice of most countries of the international copyright 
community and would also remove a major obstacle to the possible 
adherence of the United States to the Berne Convention for the Pro- 
tection of Literary and Artistic Works. Our membership in the 



121 

Berne Convention would facilitate and simplify international copy- 
right protection for U.S. nationals. Therefore, we strongly support 
the term of copyright protection proposed in section 302. 

Section 601 concerns the so-called "manufacturing clause" which is 
designed basically to protect the U.S. printing industry. As you know, 
this section prohibits the importation into or the distribution within 
the United States of English language books authored by U.S. na- 
tionals living in the United States, or domiciliaries, unless the copies 
are produced in, or are made from type set in, or plates made in, the 
United States or Canada. 

We are pleased that section 601 would, on the whole, move in the 
direction of liberalizing the present manufacturing clause. For ex- 
ample, a violation of the manufacturing clause as regards a book 
would not ailect tlie right of the copyright proprietor to authorize a 
motion picture version or other use of the book. It would merely 
affect enforcement of copyrights with respect to publication as a 
book. Further, the number of copies manufactured abroad that may be 
imported has been increased from 1,500 to 2,000. 

Despite this liberalization, however, section 601 would continue 
the protectionist features of the manufacturing clause. This kind of 
protection is fundamentally inconsistent with basic U.S. policy in 
international trade. For several decades we have pursued a policy of 
reducing tariffs and nontariff barriers in the interest of promoting an 
open international economic system. We believe that the broad trading 
interests of tlie United States and its people continue to be the best 
serv^ed by a general reduction of trade barriers including nontariff 
barriers. This is the policy we are carrying forward in the current 
multilateral trade negotiations being undertaken in Geneva under 
the authority of the recently enacted Trade Act. 

During this round of negotiations attention will be focused par- 
ticularly on nontariff barriers, and one of our major negotiating 
objectives will be to reduce or eliminate nontariff barriers of other 
countries which restrict U.S. trade. We believe that it is important 
to note this inconsistency in considering the continuation of the manu- 
facturing clause. 

Furthermore, the exception for Canada introduced by tliis bill into 
the manufacturing clause would violate our obligations under the 
GATT and various bilateral treaties. The United Kingdom has pro- 
tested and we expect that other foreign countries which are being 
discriminated against by this measure will protest, thereby intro- 
ducing an element of discord and potential retaliation into our rela- 
tions with those countries. 

Specifically, Mr. Chairman, the exception would violate our obli- 
gations under article XIII of the GATT which requires nondiscrim- 
inatory application of quantitative restrictions, and the United States 
would be obligated to seek a special waiver from the GATT contract- 
ing parties to permit this exception. This procedure would be particu- 
larly undesirable at this time in view of the opening of the new 
round of multilateral trade negotiations at Geneva. The exception 
would also violate commitments in various FCN treaties, which we 
have concluded with most of the other industrialized nations. 

These treaties normally impose obligations on the United States to 
notify and consult before it introduces nontariff barriers on important 

57-786— 76— pt. 1 9 



122 

products of the other country, and forbids the prohibition of the 
other country's products unless the product of third countries are 
similarly prohibited. 

In conclusion, the Department of State believes that the updating 
of the U.S. copyright law is most desirable, and we support the enact- 
ment of H.Ii. 2223. A modernization of the copyright law to take 
into account the important technological advances in the copyright 
field is in the interest of all members of the copj^right community. It 
is also important in bringing the United States in step in copyright 
•with the other principal countries of the world. We hope, Mr. Chair- 
man, that the objections to the bill that I have noted will be given 
serious consideration by your committee. 

Thank you, Mr. Chairman. 

Mr. Kastenmeier. Thank you, Mr. Biller. I appreciate your state- 
ment and your appearance. In the past, we have had ]Mr. Harvey Win- 
ter from time to time representing the De|)artment and we know him 
well. 

May I ask as to what extent does your Department coordinate its 
view with respect to the legislation under consideration with either 
the Copyright Office, the Department of Commerce or the Department 
of Justice ? 

Is there any particular coordination of views with respect to, say, 
representing the view of the Administration on the bill? 

Mr. BiLT.ER. Yes, Mr. Chairman, I think there is. We maintain daily 
contact Avith other agencies on the international aspects of the bill. 
We are aware of the views of the other agencies and certainly on an 
informal basis there is a great deal of consultation. 

Mr. Kastenmeier. You indicated you opposed one section, referring 
to the manuf actuiing clause section. 

]\fr. Biller. Yes, sir. 

Mr. Kastenmeier. But, you indicated a reservation about section 
104(c). I wonder whether you could, by using a hypothetical, demon- 
strate precisely the effect of that in terms that we would understand. 

For example, if country x would insist that copyrights within 
its nation were, in fact, state held or state owned it could move in our 
forums to represent that state as the holder of a copyright, notwith- 
standing the fact that the author we would normally recognize him to 
be a different entity than the state. Is that what you're driving at? 

Mr. Biller. No ; our position is that we favor the enactment of that 
section in order to promote to the maximum the individual freedom 
of authors. If a particular author lived in a country whose domes- 
tic system required that the government of that country hold the cop}- 
right and that author managed to publish his work in the United 
States, even though the government of his country was the legal holder 
of the copyright, we would favor the enactment of this legislation to 
prevent that government from suing in the U.S. courts to prevent the 
publication. 

Mr. Kastenmeier. I can understand the policy reasons on both sides 
of that one. It would be very difficult. I understand the basic motiva- 
tion. 

How could you expect to have some continued comity with that gov- 
ernment with respect to the field of its endeavor ? 

Mr. Biller. Well, there are two points I would like to make. First, 
we believe that the importance of promoting freedom of thought and 



123 

the importance of communication across international borders is moi-e 
important than some of the other considerations involved. Second, 
with regard to some of the countries which have this kind of system, we 
have no indication whatsoever that they have any intention of bringing 
suit in American courts. 

So, we don't believe it is a real problem that we would have. In the 
case of the government of the Soviet Union, for example, which has 
such a system, we have no indication that they will bring suit in 
American courts to prevent the publication in the United States of 
works of dissident Soviet authors. 

Mr. K.\STENMEiER. I See. It is the policy of the State Department, 
notwithstanding the success of the Universal Copyright Convention 
and its membership, that we should be in a position to adhere to the 
Berne Convention nonetheless ; is that correct ? 

Mr. BiLLER. Yes. 

Mr. Kastenmeier. In your view, does the passage of this bill, in its 
present form, qualify us for entry, for adherence to the Berne 
Convention ? 

Mr. BiLLER. What it would do, Mr. Chairman, is remove one of the 
principal obstacles that noAv exists to our adherence, that being the 
term of protection, by extending the term of protection to the lifetime 
of the author plus 50 years. That would remove that ob-;tacle because 
that is the term provided for in the Berne Convention. There are some 
other obstacles which would have to be overcome, but I think it would 
be quite possible to work them out. 

Mr. Kastenmeeer. Are those obstacles outside of the perimeter of 
what the statutes provide for? 

IMr. BiLLER. Yes, sir. 

Mr. Kastenmeier. You have discussed the term in that connection ? 
Is it not the fact that there are one or more countries moving away 
from life plus 50 ; is there not at least one major European comitry 
that has moved to a longer term than that ? 

Mr. BiLLER. I am not aware of it, Mr. Chairman. 

Mr. Kastenmeier. As far as you are aware, all the Western Euro- 
pean countries have life plus 50 ? 

Mr. BiLLER. I believe so. 

Mr. Kastenisieier. Perhaps I ought to put it this way, what coun- 
tries in the world other than ourselves have a term other than life plus 
50? 

Mr. BiLLER. I don't have a list of them with me. If you would like, 
I can submit such a list for the record. 

Mr. Kastenmeier. Thank jou. We would appreciate that. 

Thank you very much, for your testimony. 

[The material referred to follows :] 

A Compilation op National Copyright Duration Standards for Literary, 

Musical, and Artistic Works 

background 

The copyright duration of life of the author plus 50 years was first advanced 
as an international standard in the 1908 revision of the Berne Union. Although 
this term was not made obligatory at that time, in 1948 the Berne Convention 
was amended to make life of the author plus 50 years the minimum term of 
duration for members of the Convention. Today the "life plus fifty" standard is 
the most widely accepted standard for the duration of copyright protection. 

The following list of national copyright durations was compiled from Copv- 
right Laws and Treaties of the World or from other more recent sources. 



124 

Life of the Author plus 50 years (7^ countries) 

Argentina ; Australia ; Austria ; Belgium ; Bulgaria ; Burundi ; Cameroon ; 
Canada; Central African Republic; Ceylon (Sri Lanka) ; Chad; China, Republic 
of; Congo (Brazzaville) ; Costa Rica; Cyprus; Czechoslovakia; Dahomey; Den- 
mark ; Ecuador ; Egypt, Arab Republic of ; El Salvador, Republic of ; Ethiopia, 
Empire of ; Fiji ; Finland ; France ; Gabon ; German Democratic Republic ; 
Greece ; Guatemala ; Holy See ; Hungary ; Iceland ; India ; Indonesia ; Republic 
of Ireland; Israel; Italy; Ivory Coast; Japan; Laos; Lebanon; Liechtenstein; 
Luxembourg; Madagascar; Mali; Monaco; Morocco; Nepal; Netherlands; New 
Zealand ; Niger ; Norway ; Pakistan ; Paraguay ; Peru ; Philippines ; Portugal ; 
Rwanda ; San Marino ; Senegal ; Sierra Leone ; Singapore ; South Africa, Repub- 
lic of; Sweden; Switzerland; Syrian Arab Republic; Togo; Tunisia; Turkey; 
Uganda ; United Kingdom ; Venezuela ; Yugoslavia ; and Zaire. 

Xdfe of Author plus 20 years 

Poland. 
Xife of the Author plus 25 years (IS countries) 

Ghana ; Iraq ; Kenya ; Liberia ; Libya ; Malawi ; Malaysia ; Malta ; Mauritius ; 
Nigeria; Tanzania, United Republic of; Union of Soviet Socialist Republics; 
and Zambia. 
-Life of the Author plus 30 years (9 countries) 

Bolivia ; Chile ; Dominican Republic ; Iran ; Jordan, Hashemite Kingdom of ; 
Korea ; Mexico ; Nicaragua ; and Thailand. 

'Life of the Author plus ^0 years 

Uruguay. 
hife of the Author plus GO years 

Brazil. 
Life of the Author plus 70 years 

Germany, Federal Republic of. 
Life of the Author plus 80 years (4 countries) 

Colombia ; Cuba ; Panama ; and Spain. 

Vai-iable Copyright Term 

In the following countries the duration will vary depending on the category 
of the author's heirs. In all the countries listed below, an author enjoys copy- 
right protection during his lifetime. The term beyond the author's life, however, 
is controlled by the nature of the author's heirs. (3 countries) — Albania; Haiti; 
and Romania. 

Miscellaneous Categories (Unrelated to life of the Author) 

Afghanistan — 20 years ; Burma, Union of — 10 years ; Honduras — 10, 15 or 20 
years ; and United States — 28 years, renewable for 28 years. 

Countries without copyright laws, or for ichich accurate information is unavail- 
able 
Algeria ; Andorra ; Bahrain ; Barbados ; Botswana ; Cambodia ; China, Peoples 
Republic of; Equatorial Guinea; Gambia; Guinea, Republic of: Guyana; Ja- 
maica ; Kuwait ; Lesotho ; Maldive Islands ; Mauritania ; Mongolia ; Nauru, Re- 
public of ; Saudi Arabia ; Somalia ; Southern Yemen ; Sudan ; Swaziland ; Trinidad 
and Tobago ; Upper Volta ; Viet-Nam, Republic of ; Western Samoa ; and Yemen. 

Mr. Kastenmeier. I would like to yield to the gentleman from 
Illinois. 

Mr. Railsback. How serious is the Canadian exception you have 
alluded to on page G ; what effect could that have as far as preventing 
us from joining the Berne Convention ? 

]Mr. BiLLEK. I think the effect on our general trade policy and the 
negotiations we are engaged in in Geneva are more serious than the 
effect on our joining the Berne Convention. 

What the provision does, Mr. Congressman, is introduce a new 
element of discrimination, which is quite clear and is patently dis- 
criminatory, in our legislation. 



125 

Mr. Eailsback. The Canadian exception? 

Mr. BiLLEK. Yes, sir. This would occur at a period in time where 
we are engaged in major initiatives to have other countries reduce or, 
hopefully, eliminate their discrimination and nontariff barriers. This 
would be adding a discriminatory character to a continuing nontariff 
barrier. 

Mr. Eailsback. So, now your authors publish not only in this coun- 
try, but also in Canada within a 30-day period in order to derive some, 
benefits that they otherwise would not have? 

Mr. BiLLER. The Canadian exception does not exist now. 

Mr. Eailsback. The exception does not exist now? 

Mr. BiLLER. It would be introduced by the legislation. 

Mr. Eailsback. I guess I am referring to something else ; I am. a 
novice in this. 

Mr. BiLLER. The 30-day provision is, if a work is published within 
30 days of its first publication in the United States, it is deemed to 
be published simultaneously in other countries. 

Mr. Eailsback. Thank you. I yield my time. 

Mr. IvASTENMEiER. The gentleman from* California, Mr. Danielson. 

Mr. Danielson. In your statement you used the acronym GATT ; 
what does that mean? 

Mr. BiLLER. Tliat is the General Agreement on Tariffs and Trade. 

Mr. Danielson. I assume that is a treaty of some sort, is that 
correct ? 

Mr. BiLLER. The General Agreement on Tariffs and Trade, Mr. 
Danielson, is a multilateral treaty which we entered into with most 
of the major trading comitries of the world in late 1948 by which we 
established the rules that establish international trade. 

Mr. Danielson. It is a treaty? 

Mr. BiLLER. It is an executive agreement, Mr. Danielson, I am told. 

Mr. Danielson. What is an FCN? 

Mr. BiLLER. FCN stands for Friendship, Commerce, and Naviga- 
tion. Treaties of Friendship, Commerce, and Navigation and the stand- 
ard types of bilateral treaties which we enter into with other countries 
to assure them we will not discriminate against them or their nationals. 

Mr. Danielson. Are they uniformly a two-party agreement? 

Mr. BiLLER. Yes, they are always bilateral, and they follow the same 
nondiscriminatory pattern. 

Mr. Danielson. Thank you. 

Mr. Kastenmeier. The gentleman from Massachusetts. 

Mr. Drinan. I have no questions but I want to thank Mr. Biller. I 
would just like to say that I commend him for his testimony and it is 
nice to be in agreement with the Department of State from time to 
time. 

Mr. Kastenmeier. The gentleman from New York. 

Mr. Badillo. I just wonder what is the Department's feeling about 
other U.S. agencies that are drafting language of their own. Who is 
drafting language; I understand there are other agencies drafting 
their own language ? 

Mr. Biller. The Copyright Office, I believe, has some language of 
its own. It is not our intent to cause bureaucratic problems. We want 
to make clear that we agree with the language. 

Mr. Drinan. But the present language is not acceptable ? 



126 

]\Ir. BiLLER. No; it is acceptable. But, we would support any alter- 
native language if it were to achieve the same objective. 

Mr. Kastenisieier. The gentleman from New York, JNIr. Pattison. 

Mr. Pattison. I liave no questions. 

Mr. Kastenmeier. I have just one. You devoted quite a bit of your 
statement to the manufacturing clause. Really, 8 to 10 years ago we 
tried to limit tlie effect of it on the theory that eventually it might 
well be phased out consistent with national policy. 

I am not sanguine about how it presently appears in H.R. 2223. I 
rather agree with the thrust of your statement and wonder it if might 
be useful for our purposes intermitionally to place a further restric- 
tion on that section which would limit the effect of, actually limit the 
effect of the manufacturing clause to a term certain, for example, 6 
years from date or some other such specific period of time wherein- 
after it would no longer have any force or effect'^ Would that not be 
helpful to the State Department with respect to its dealings with 
Great Britain and otlier countries? 

]Mr. BiLLER. Yes. sir. I think it would. AYe fully realize that there 
could be a difficulty posed for some American manufacturers if pro- 
tection like this, which has existed in legislation for many years, were 
suddenly terminated. 

If the Congress should decide that in oider to achieve a desirable 
transition that some sort of phaseout period is necessary, we would 
support such a position. 

Mr. Kastenmeier. I thank you, Mr. Biller and your colleagues this 
morning. 

]Mr. Danielson. May I ask an additional question ? 

Mr. Kastenmeier. Certainly. 

]Mr. Danieeson. Concerning section 101: (c) I have been puzzling 
here. Maybe you can give me a short cut. Does a foreign state have 
standing in the U.S. courts to bring the kind of an action contem- 
pl ated, on the communities referred to in 101: (c) ? 

Mr. Biller. At the present time ? 

Mr. Danielson. Yes. 

Mr. Biller. Yes, sir. 

Mr. Danielson. In another sub of this committee — Mr. Eailsback 
was on it, I believe — we have been considering the advisability or the 
lack thereof permitting foreign states to bring action in the United 
States and you feel it does have that? 

Mr. Biller. I don't know, I just wanted to try and clarify it for you. 

Mr. Kastenmeier. We appreciate your appearance here this morning 
and that of your colleagues. Thank you. 

[Witness excused.] 

Mr. Kastenmeier. The Chair would like to call upon Deputy Assist- 
ant Attorney General Irwin Goldbloom of the Civil Division of the 
Department of Justice. Would 3'ou please identify your colleagues for 
the committee. 

Mr. Goldbloom. On my left is John Murphy and on his left is JMiles 
Ryan. On my right is Michael Werth. All of these gentlemen are from 
the Justice Department. 

Mr. ICastenmeier. I notice that you have a 36-page statement which 
you may deliver in its entirety or if you care to, you may summarize. 

Mr. Goijjbloom. Thank you. 



127 

TESTIMONY OF IRWIN GOIDBLOOM, DEPUTY ASSISTANT ATTOR- 
NEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE 

Mr. GoLDBLooM. Mr. Chairman, I am pleased to respond to the 
conmiittees invitation to present the views of the Department of 
Justice on H.K. 2223, a bill for the general revision of the copyright 
law, title 17 of the United States Code, and for other purposes. 

We are in sympathy with the general purpose of title I of the bill, to 
provide a thorough revision and updating of the copyright law, title 
17, United States Code. However, as set out below, we reconmiend 
certain modifications in the proposed revision. We oppose title II 
of the bill which creates a new type of intellectual property, a hybrid 
between a copyright and a design patent. 

H.R. 2223 and its companion bill, S. 22, are nearly identical with 
S. 1361 as passed by the Senate in tlie 93d Congress on September 0, 
1974. There are, however, technical and perfecting amenchnents and 
changes required by the enactment of Public Law 93-573, providing 
for interim copyright extension and increased penalties for tape piracy. 

A section-by-section analysis of S. 13G1 is part of Senate Ileport Xo. 
93-983, 93d Congress, at pages 102 to 228. Further details as to the 
history of this copyright revision bill appear in the same report at 
pages 101 to 103. The summary below is specifically directed to fea- 
tures of the Bill of particular concern to this Dei>artment. 

Section 107 relates to the "fair use" doctrine. This is fully dis- 
cussed in Senate Report No. 93-983, pages 115 to 120. The scope of fair 
use in copying is illustrated to include reproduction by a teacher 
or a student of a small part of work to illustrate a lesson (S. Report 
93-983, p. 115). 

This example, therefore, does not include reproduction of the 
entire work to illustrate a lesson. In determining whether the use made 
of a work in a particular case is a fair use, a court is to consider as 
factors the purpose and character of the use, the nature of the copy- 
righted work, the amount and substantiality of the portion used in re- 
lation to the co])yrighted work as a whole, and the effect of the use 
upon the potential market for or value of the copyrighted work. 

As to the reproduction of entire works for classroom use, the doc- 
trine of fair use would be applied "strictly" (S. Report, 93-983. p. 117) . 

Sections 108, 110, and 111 cover exemption from liability for copy- 
right infringement in the fields of library and archive reproduction 
(sertion 108V the exemption of certain performances and displays, 
such as in classrooms in face-to-face teaching activities of a_ non- 
profit educatioual institution (section 110) and the retransmission 
of a primary transmission simultaneously with the primary trans- 
mission or nonsimultaneously with the -primary transmission if by 
a "cable system" outside defined geographic areas ("secondary trans- 
missions" of section 111) . 

Section 302 establishes a new term for the duration of roDyright. 
Crenerally, this is for a term consisting of the life of the author and 
50 years after his death. In the case of joint works, the period of 50 
years commences upon the death of the last surviving author. For 
finonymous works, pseudonymous works, and works made for hire, 
the copyright period is for a term of 75 years from the year of its 



128 

first publication, or a term of 100 years from the year of its creation, 
whichever expires first. 

Where one or more authors are identified for an anonymous or 
pseudonymous work before the end of the copyright term, the longer 
period of copyright terminating 50 years after the death of the author 
then applies. 

Section 405 deals with the effect of the omission of the copyright 
notice. Section 411 covers infringement actions in certain situations. 

Section 506 contains special provisions applying to persons who 
infringe willfully and for purposes of commercial advantage. With 
respect to copyright in a sound recording, for the first such offense, a 
person is fined not more than $25,000 or imprisoned not more than 
1 5'ear, or both. 

For any subsequent offense, a person is fined not more than $50,000 
or imprisoned not more than 2 years, or both. Section 507 provides a 
3-year statute of limitations for both criminal proceeding-s pursuant 
to provisions of the bill after the cause of action arose, under the 
provisions of Section 116 and 506 and for civil actions after the claim 
accrued. 

Section 601 affords preferential protection to publishers and print- 
ers of the United States and Canada, Report 93-983, pp. 195-200. 

Sections 801-809 are concerned with the Register's duties to col- 
lect royalties and make determinations concerning the adjustment 
of copyright royalty rates for certain uses where compulsory licenses 
are provided by the bill. 

They also relate to his duties to determine in certain circumstances 
the distribution of these royalties deposited with the Register of Copy- 
rights. Section 803 provides for selection of membership of the tri- 
bunal to make necessary detenninations with respect to royalty mat- 
ters, to be on the basis of a list of names furnished by the American 
Arbitration Association to the Register of Copyrights. Section 804 
provides for procedures to be followed by the tribunal in making its 
determinations. Subsection (e) of section 804 directs that the tri- 
bunal shall render a final decision in each proceeding within 1 year 
from the certification of the panel, certified by the Register of Copy- 
rights on the basis of the names furnished by the American Arbitra- 
tion Association. This subsection further provides that the Senate 
Committee on the Judiciary and the House of Representatives Com- 
mittee on the Judiciary, upon showing of good cause, inay waive this 
requirement of the rendering of a final decision within 1 j^ear from the 
certification of the panel in a particular proceeding. 

The judicial review for tribunal final determinations, provided in 
section 809 (concerning the distribution of royalty fees), is limited. 
A court may vacate, modify or correct such a determination if it was 
procured by corruption, fraud or undue means, where a member of the 
panel was guilty of misconduct by which the rights of anj^ party were 
prejudiced. 

Provisions for the protection of ornamental designs of useful articles 
appear in title II of the bill. Section 201 provides that authors or 
proprietors of an original ornamental design of a useful article may 
secure a period of protection, except for certain subject areas set out 
in section 202, for a period provided in section 205. Section 201 con- 



129 

tains definitions of the terms "useful article", "design of a useful 
article", "ornamental" and "original" as needed for purposes of the 
particular protection provided by this title. Section 204 provides that 
protection commences on the date when the design is first made pub- 
lic, either by being exhibited, publicly distributed, or offered for sale 
or sold to the public. Section 205 provides that the term of protection 
extends for 5 years, subject to being renewed for an additional 5 years 
prior to the expiration of the initial term. Section 206 provides for cer- 
tain design notices to be applied to the products protected, and section 
207 limits recovery for infringement if the design notice requirement 
of section 206 have been omitted- 

However, actual notice of design protection to a particular per- 
son can take the place of the design notice requirement of section 206. 

Section 209 of title II provides for loss of protection if registration 
of the design is not macle within 6 months after the date on which 
the design was first made public, who may make application for re- 
newal registration of a design protected imder the bill, how and under 
what conditions and with what supporting papers a design protected 
under the bill can be renewed. 

Section 212 of title II deals with the examination of the design 
application and provides for cancellation of registrations on applica- 
tion of a person who believes he is or will be damaged by a registra- 
tion under this title. Grounds for cancellation are that the design 
is not subject to protection under the provisions of the title. 

Section 220 of title II provides remedies for infringement of a de- 
sign protected under this title. It provides for a civil action to have 
judicial review of a final refusal of the Administrator to register the 
design as for infringement if commenced within a time period speci- 
fied by the Administrator of the title, but not less than 60 days after 
the decision, and permits simultaneous remedy for infringement by 
the same action if the court adjudges the design subject to protection 
under this title. This would appear to mean that the infringer would 
liave to be joined as a party defendant with the Administrator of 
this title. The requirements for such an action are that the design 
proprietor has filed and prosecuted to final refusal an application 
for registration of the design, a copy of the complaint in the action 
is delivered to the Administrator within 10 days after commencement 
of the action, and the defendant has committed acts which would con- 
stitute infringement of the design. 

Section 221 of title II gives courts jurisdiction of actions under this 
title and authority to grant injunctions to prevent infringement, in- 
cluding temporary restraining orders and preliminary injunctions. 

Section 222 of title II relates to recover}^ of infringement, setting 
maxunum amounts of recovery per infringing copy by way of com- 
pensation and provides for the delivery for destruction or other dis- 
position of any infringing articles. 

Section 223 of title II provides for cancellation of a registration of a 
design by a court and certification by the court of such order to the 
Administrator. 

Section 227 of title II provides that copyright protection under title 
I, when utilized in an original ornamental design of a useful article, 
may still be a design work eligible for protection under the provisions 
of this title. 



130 

The issnance of a design patent for an ornamental desi^'n for an ar- 
ticle of manufacture under the patent laws, title 35 United States 
Code, terminates any protection of the desian under this title. 

Section 229 of title II provides that nothing in this title amiuls or 
limits common law or other rights or remedies available to a person 
with respect to a design which has not been made public as provided 
in this title or any trademark right or right to be protected against 
unfair competition. 

Section 232 of title II amends various other statutes. Of particular 
importance to the Departuicnt is the revision proposed for title 28. 
United States Code, § 1498 (a) to provide that whenever a registered 
design or invention is used or manufactured by or for the United 
States without license of the owner thereof, the owner's remedy shall 
be by action against the United States in the Court of Claims for recov- 
ery of reasonable and entire compensation. Use or manufacture of 
a registered design or invention by a conti-actor, subcontractor or any 
person, firm or corporation for the Government and with the author- 
ization or consent of the Government is to be construed as use or manu- 
facture by or for the United States. 

Use or manufacture by or for the United States of any article owned, 
leased, used by or in the possession of the United States prior to, in the 
case of an invention, July 1, 1918, and for registered designs, prior 
to July 1, 1978, is not to be the basis of an award under this section. 
Government employees have the right to sue the Government under 
this section except when in the position to order, influence or induce use 
of the registered design or invention by the Govermnent. 

Further excluded as a basis for claim under this section are claims by 
a registrant or patentee or assignee thereof when the design or inven- 
tion was related to the official functions of the employee, in cases in 
which such functions included research and development, or in mak- 
ing of which Government time, materials or facilities were used. 

Section 233 provides that title II of the bill shall take effect 1 year 
after enactment of this act. 

Section 234 precludes a retroactive effect for the provisions of the 
design protection of the bill. 

Section 106 states generally the basic rights of copyright owners. 
Following sections of the same chapter set forth limitations and excep- 
tions to those rights. The public interest in the promotion of education 
and scholarly pursuits calls for a careful consideration of such circum- 
stances as may impede the dissemination of knowledge. In this regard, 
section 107 of the bill, dealing with "fair use" of copyrighted informa- 
tion, leaves unclear the extent to which librarians can reproduce works 
for use in libraries. 

It would seem in the public interest to work an accommodation be- 
tween the copyright and such reproduction. But, as a doctrine applied 
on a case-by-case basis, "fair use" renders it uncertain whether, with- 
out infringement, librarians or library patrons can make copies of 
library materials for the patrons' use. Because of the advantages of the 
economical and speedy means of reproduction now available in li- 
braries, it would be socially desirable not to discourage use thereof 
by uncertainty over the extent of the "fair use" doctrine. 

Thus, we strongly believe that a definition in the bill of the doc- 
trine as applied to such reproduction in libraries is definitely needed. 



131 

Moreover, defining the meaning of "fair use" in tliis connection also 
could serve to reduce uncompensated infringement. To carry out our 
suggestion to give maximum certainty as to "what is a fair use," and 
give more meaningful scope to the exemptions from copyright liability 
of section 108 discussed below, we suggest the following changes : Sec- 
tion 107, last line, p. 9, line 9, change "work" to 

"work; provided that nothing contained in this section shall be con- 
strued to limit the use by reproduction in whole or in part in copies 
or phonorecords or by other means specified in section 106 whenever 
used in nonprofit educational activities." 

Eeason : Clarity of scope of fair use for educational activities. 

Section 108(d), lines 5-6, p. 10, lines 1, 2, delete "of a small part". 

Reason: Libraries should be able to reproduce entire work for 
scholarship. 

Section 108(e). lines 4-7, p. 10, lines 13-16, delete "if the library or 
archives has * * * at a fair price," 

Reason : Too difficult and cumbersome to make purchase investiga- 
tion ; discourages use. 

Section 108, in subsection (a), provides that it shall not infringe a 
copyright for a library or archives to reproduce or distribute no more 
than one copy or phonorecord of a work under conditions specified in 
subsequent parts of the section. These conditions require, among other 
things, that the reproduction or distribution be made without any 
purpose of commercial advantage and that the collections of the li- 
brary or archives involved be open to the public or available to spe- 
cialized researchers, whether or not affiliated with the libraiy or ar- 
chives involved or with the institution of which the libraiy or archives 
is a part. Under subsection (b), the rights of reproduction and dis- 
tribution free from liability would apply to a copy or phonorecord of 
an unpublished work duplicated in facsimile solely for preservation 
and security or for deposit for research use in a library or archives 
of the type covered by the section. 

Under subsection (c), the exemption from infringement would ap- 
ply to a duplication in facsimile of a published work solely for re- 
placement of a copy or phonorecord that is damaged, deteriorating, 
lost or stolen, if after reasonable eifort it has been determined that an 
unused replacement cannot be obtained at a fair price. 

The rights of reproduction and distriJxition under section 108 ex- 
tend to the isolated and unrelated reproduction or distribution of a 
single cop3'^ or phonorecord of either a published or unpublished work 
on separate occasions unless the library or archives is aware or has 
substantial reason to believe that it is engaging in a related or con- 
certed reproductioji or distribution or engages in a systematic repro- 
duction or distribution of a copy of an item forming part of a copy- 
righted collection or periodical issue or of a copy or phonorecord of a 
small part of any other copyrighted work. 

As we read this provision, it will not prevent libraries and archives 
from reproducing works in machine-readalDle language in connection 
with the storage and use of computerized information systems. "VVe 
hope that the House legislative history of the bill will clearly support 
this construction, for the storage and use of data in such systems is of 
great importance to repositories and sources of scholarly research ma- 
terial. To impose copyright liability impeding the storage of such 



132 

'data would be socially undesirable. If our interpretation of section 
108 is wrong, we recommend that the section be changed to extend the 
applicable exemption to reproduction in machine-readable language 
for storage and use in information systems. 

The ease of transfer of computerized data is another area in which 
H.R. 2223 raises a problem. Universities, research agencies, govern- 
ment, and private industry are developing information networks using 
computers and other electronic equipment to speed the transfer of 
information from source to user. 

H.R. 2223 does not provide a method by means of which informa- 
tion systems users can easily obtain the permission of copyright own- 
ers for use of their material. The difficulty and loss of time entailed in 
many cases in contacting owners may inliibit users from including 
material in their systems. Or users may be unable to employ material 
in their systems in sufficient time in situations where speed is essen- 
tial. It would appear in the public interest for the bill to contain some 
guarantee that information systems which are willing to pay royalties 
for material used can obtain easier access to copyrighted information, 
at least in high-priority areas such as scientific and technological 
works. 

The proposed legislation also leaves unclear at what point in the 
use of computerized copyrighted material the liability for royalty 
payment attaches. Under H.R. 2223, it would seem that placing copy- 
righted data into a computer (which may form part of an information 
system) might infringe the copyright. Since the use of computers for 
storage and retrieval of information to some extent may replace the 
sale of books, in most cases the payment of royalties should be re- 
quired. However, just where in the process the royalty payment should 
be assessed, is open to question. We believe it unwise to levy a "toll" 
at the "input" stage in the process. Levying on the "input" into com- 
puters could impede the development of information systems and may 
render meaningless any exemption for the use of computerized in- 
formation for educational purposes which may be read into H.R. 2223. 

The subject of the application of copyright to commimity antenna 
television has presented considerable difficulty in previous drafts of 
proposed revisions of the Copyright Code. H.R. 2223 attempts a com- 
promise between the extreme positions of complete liability for in- 
fringement of copyright by secondary transmission by CATV on one 
hand, and almost complete freedom from liability on the other hand. 
While we support the imposition of a degree of liability upon CATV, 
we believe that H.R. 2223 should provide an area of free use for such 
systems within tlie local service area. 

The first part of subsection (c) of section 111 provides for compul- 
sory licensing of secondarj'^ transmissions of a primary transmission 
by an FCC-licensed broadcast station upon compliance witli the notice 
of ownership and the payment provisions of subsection (d), and (A) 
the signals of the primary transmission are exclusively aural and the 
secondary transmission is permissible under the rules, regulations, or 
authorizations of the FCC; (B) where the CxlTV system is, in whole 
or in part, within the local service area of the primary transmitter ; or 
(C) where carriage of the signals comprising the secondary transmis- 
sion is permissible under the FCC rules, regulations, or authoriza- 
tions. We strongly urge, with respect to (B), that the secondai-y 



133 

transmittal should be completely free of liability ; hence, royalty-free 
or no licensing would be in order. The secondary transmission in such 
a situation, where the CATV system is, in whole, or in part, within the 
local service area of the primary transmitter, finds the cable system 
only filling gaps or improving reception in the service area of the 
primary transmitter, supplementing the primary transmission. Such 
transmission does not impair the primary transmitter's market; in 
fact, it enhances it. The copyright holder is helped and not hurt by such 
activity. 

Section 203 and section 304(c) (6) (D) concern the termination of 
transfei*s and licenses. These sections would permit the author or his 
heirs to terminate the original transfer of his rights at any time 
during a period of 5 years beginning at the end of a specified time. 
However, section 203(b) (4) and parallel section 304(0) (6) (D), relat- 
ing to transfers of copyrights subsisting after January 1, 1977, 
provide that an agreement to transfer rights subsequent to the termina- 
tion of a prior transfer will not be valid vmless made after the effective 
date of that termination or miless made to the original grantee or his 
successor in title. 

We do not believe that the grantee or his successor should be in a 
preferred position to enter into an agreement for transfer prior to 
termination of the original transfer. We see no reason why all poten- 
tial transferees should not have an equal opportunity to enter into 
such an agreement. It is therefore suggested that subparagraph (4) of 
section 203(b) and subparagraph (D) of section 304(c) (6) be deleted. 

Section 302 substantially lengthens the time of copyright protec- 
tion Avhen compared with the duration of copyright in works under 
the present copyright law. At the present time, protection is granted 
for 28 years from the date of publication and may be renewed for a 
second 28 years, making a total potential term of 56 years in all cases. 
U.S. patents for any new and useful process, machine, manufacture or 
composition of matter or improvement thereof, are granted for a term 
of 17 years (35 U.S-C. 154). Patents for new, original, and ornamental 
designs of articles of manufacture are granted for a period up to 
14 years (35U.S.C. 173). 

Patents for plants are granted for the same length of term as for 
new and useful processes, machines, manufacture or composition of 
matter (35 U.S.C, 161). Under the proposed bill, an author would 
receive a copyright for his life and 50 years after his death. Consider- 
ing the average life expectancy of people today, this will double the 
length of copyright when compared with the present one for many 
works. 

For anonymous works, pseudonymous works, and works made for 
hire, the term is somewhat less, but still significantly greater than 
provided by the present statute. 

Senate report No. 93-983, pages 167-173, discusses various con- 
siderations for the duration of copyright in works. A major argument 
for increasing the term of copyright appears to be that the extension 
conforms with foreign laws which provide for longer terms of copy- 
right than the present U.S. law. This argument is presented in the 
Senate today. 

However, we do not believe that this should be the criterion for the 
proper length of copyright protection in the United States. 



134 

Under the Constitution, article 1, section 8, the purpose of a copy- 
right is to promote the progress of science and useful arts by securing, 
for limited times, to authors and inventors the exclusive riglit to their 
respective writings and discoveries .While it may be urged that a copy- 
right term of 28 years plus an additional 28 years might be insufficient 
to protect the interests of an author in his writings in view of the 
lengthening of the ordinary lifespan in modern times, the proposed 
bill, by its extended duration of the copyright term, appears to carry 
the protection far beyond the contemplation of the framers of the 
Constitution. 

As an alternative, we propose to proxdde for the lengthening of the 
term of the copyright duration to be at least coextensive with the life- 
time of the author. In this way, the author will be insured protection 
of his work for at least as long as he may live. Thus, we propose the 
substitution of an alternative provision to section 302(a), as follows: 
(a) In general, copyright in a work created on or after January 1, 
1977, subsists from its creation, and except as provided by the follow- 
ing subsections, endures for a term consisting of 56 yeare or the life 
of the author, whichever is greater. 

A conforming amendment should also be made in section 302(b). 
The provisions of section 302(c) should be modified to limit the dura- 
tion of anonymous works, pseudonymous works, and works made for 
hire, to a period of 56 years from the year of their creation or first 
publication. 

Our proposal would carry out the constitutional concept of 
promoting the progress of science and useful arts. A 56-year copy- 
right term, as may be extended by the lifetime of the author, is 
believed more than adequate to promote this constitutional purpose. 
It has also been urged that growth in communications m.edia has 
lengthened the commercial life of many works. This does not justify 
lengthening the term of a copyright beyond 56 vears or the lifetime 
of the author because a lengthened commercial life is not necessarily 
consistent with the basic constitutional purpose. 

The basic question with respect to copyright duration to be an- 
swered by the Congress is whether a doubling of the present copvriglit 
term for many works is desirable to promote the progress of science 
and useful arts. Other forms of Federal protection for creative works, 
such as patents for useful devices, plants, and designs, are all for pe- 
riods of no more than 17 years. Copyrights in writings are already in a 
preferred position. We do not believe that the promotion of the prog- 
ress of science and useful arts requires a doubling of the possible 56- 
year copyright period. Our alternative proposal would accommodate 
such valid concerns as may exist regarding the present law and, at 
the same time, carry out constitutional goals. 

Section 405 deals with the effect of omission of the copyright notice. 
Under the present act, omission of notice on published copies of a 
work ordinarily^ places the work in the public domain (17 U.S.C. 
§ 21) . However, if such notice is accidentally omitted from a particular 
copy or copies, copyright is not lost; but innocent infrinirei-s who are 
misled by the accidental omission are not liable for infringement. 
Under section 405 of the bill, omission of notice from "a relatively 
smallnumber" of copies or phonorecords publicly distributed will not 
invalidate the copyright whether or not such omission was accidental. 



135 

IVIoreover, the omission of notice will not invalidate the copyright 
in a work if registration for the work is made within 5 years after 
the publication without notice and a reasonable effort is made to add 
notice to all copies or phonorecords distributed to the public in the 
United States after the omission is discovered. 

As under the present law, innocent infringers who are misled by 
the omission of notice woidd not be liable in actual or statutory dam- 
ages for infringement. But under H.R. 2223, they might have to sur- 
render profits gained through the infringement and be subject to 
injunction or payment of a reasonable license fee for continuing their 
activity (section 405 (b)). These provisions would delete from 17 
U.S.C. § 21 the provision that no permanent injunction shall be had 
unless the proprietor of the copyright shall reimburse the innocent 
infringer his reasonable outlay innocently incurred if the court, in 
its discretion, shall so direct. 

A copyright should be protected from invalidation only when the 
failure to provide notice was tlie result of an accident or mistake or in 
violation of the copyright owner's written requirement that, as a 
condition of authorization of public distribution, the copies or phono- 
records bear the prescribed notice, and distribution of only a small 
number of such items has been made to the public. To permit, as 
proposed in section 405, a copyright owner to issue an entire publication 
of his work without notice and yet enforce the copyright tends to negate 
tlie purpose of notice. Although iniiocent infringers would incur no 
liability, they would still have to establish their innocence even where 
the omission was deliberate in many cases. We suggest that the sec- 
tion specifically be limited to the eliect of omission of the copyright 
notice by accident or mistake. 

We also believe it advisable that the words "particular copy or 
copies," contained in the present statute, be used instead of the broader 
and more general words "a relatively small number," found in section 
405, to designate the limits within which notice may be omitted with- 
out loss of copyright. And we think the discretion in the court to 
order reimbursement to the innocent infringer should be retained. 

Subject to specified exceptions, section 601 provides that the impor- 
tation into or public distribution in the United States of more than 
2,000 copies of a work consisting preponderantly of nondramatic 
literary material in English by an American or i-esident alien author 
and protected under the Copyright Code is prohibited, unless the por- 
tions consisting of such material have been manufactured in the 
United States or Canada. 

This section would reenact in modified form a previous, highly pro- 
tectionist nontariff trade barrier (17 U.S.C. §§ 16, 197). We do not be- 
lieve that there is either a necessity or desirability for such a provision 
which creates an absolute bar to certain books published abroad. 

Section 601 is entirelv uni-elated to questions of copvright. It does 
not protect authors at all. On the contrary, section 601 decreases the 
value of copvrights hy preventing an American author from grant- 
ing worldwide publication rights to an English publisher who offei's 
more favorable compensation than an American publisher. WhAtever 
the merits of the original "infant industry" justificaton for the manu- 
facturing clause, the restriction is clearlv unnecessary and inappropri- 
ate today in light of the strength and success of our industry and in 



136 

light of our Nation's coinniitment to eliminate nontariff barriers to 
international trade and insure vigorous competition. 

For these reasons, section 601 should be stricken from the bill, and 
the manufacturing clause should be elmiinated from our copyright 
law. 

With respect to the Department's antipiracy program in the sound 
recording field, we note the following as areas where amendments are 
desirable : 

Section 506 should be amended to provide for forfeiture of infring- 
ing articles in criminal cases resulting in convictions, and a new sec- 
tion should be added to provide for summary and judicial forfeitures 
in criminal cases. 

At present, the Government has no clear-cut authority to destroy 
infringing articles which have been seized or otherwise obtained in 
the investigation or prosecution of a tape piracy case or, for that mat- 
ter, any criminal copyright infringement case. This lack of specific 
authority has resulted in critical storage problems for many FBI 
and U.S. marshals' offices throughout the country and poses the em- 
barrassing possibility that the Government may be ordered to return 
known infringing articles tt) a convicted defendant. 

With proper amendments, H.R. 2223 could eliminate this most seri- 
ous problem. ^Ye strongly urge the following revisions : 

1. There should be abided to section 506 a new subsection which 
should be designated as : 

(b) When any person is convicted of any violation of subsection (a), the court 
in its judgment of conviction shall, in addition to the penalty therein prescribed, 
order the forfeiture and destruction or other disposition of all infringing copies 
or phonorecords and all implements, devices, equipment or other articles of what- 
ever kind used or intended to be used in the manufacture, use, or sale of such 
infringing copies or phonorecords. 

Present subsections (b), (c), and (d) need to be redesignated as 
subsections (c), (d),and (e), respectively. 

A conforming amendment should be made to title 18, United States 
Code, section 2318, so that it reads as follows : 

2318. 

(a) (present section 2318) 

(b) When any person is convicted of any violation of subsection (a) , 
the court in its judgment of conviction shall, in addition to the penalty 
therein prescribed, order the forfeiture and destruction or other dis- 
position of all counterfeit labels and all articles to which counterfeit 
labels have been affixed or which were intended to have had such labels 
affixed. 

(c) Except to the extent they are inconsistent with the provisions of 
this title, all provisions of section (new forfeiture section decribed be- 
low), title 17, United States Code, are applicable to violations of sub- 
section (a). 

2. A new section should be added reading as follows : 

(a) All copies or phonorecords manufactured, reproduced, distrib- 
uted, sold, or otherwise used, intended for use, or possessed with in- 
tent to use in violation of section 506(a), and all plates, molds, mat- 
rices, masters, tapes, film negatives, or other articles by means of wliich 
such copies or phonorecords may be reproduced, and all electronic, me- 
chanical, or other devices for manufacturing, reproducing, assemblings 



137 

using, transporting, distributing, or selling such copies or phono- 
records may be seized and forfeited to the United States. 

(b) All provisions of law relating to (1) the seizure, summary and 
judicial forfeiture, and condemnation of vessels, vehicles, merchandise, 
and baggage for violations of the customs laws contained in title 19, 
United States Code, (2) the disposition of such vessels, vehicles, 
merchandise, and baggage or the proceeds from the sale thereof, (3) 
the remission or mitigation of such forfeiture, (4) the compromise of 
claims, and (5) the award of compensation to informers in respect 
of such forfeitures, shall apply to seizures and forfeitures incurred, 
or alleged to have been incurred, under the provisions of this section, 
insofar as applicable and not inconsistent with the provisions of this 
section; except that such duties as are imposed upon the collector of 
customs or any other person with respect to the seizure and forfeiture 
of vessels, vehicles, merchandise, and baggage under the provisions 
of the customs laws contained in title 19 of the United States Code 
shall be performed with respect to seizure and forfeiture of all articles 
described in subsection (a) by such officers, agents, or other persons as 
may be authorized or designated for that purpose by the Attorney 
General. 

Proposed section 114 should be amended to provide for the copy- 
right owner of a sound recording to have the right to make derivative 
works or it should be amended to clarify that persons other than the 
copyright owner do not have such a right absent consent of the copy- 
right owner, notwithstanding the fact that the sound recording 
copyright owner would have no such right. 

Section 114 limits the specific rights of a sound recording copyright 

owner to those granted to copyright owners by parts (1) and (3) of 

section 106. That is, sound recording copyright owners have the right : 

( 1 ) To reproduce the copyrighted work in copies or phonorecords ; 

and 

(3) To distribute copies, et cetera. 

The right to prepare derivative works based on the copyrighted 
work (part (2) of section 106) is withheld from a soimd recording 
copyright owner despite section 103 which states that such works are 
copyrightable and despite the fact that sound recording copyright 
owners are entitled to make and copyright derivative works under 
present law, 17 U.S.C. § 7. There is a real possibility that an unauthor- 
ized duplicator who made a "derivative" work by slightly altering 
the original copyrighted sound recording would claim that he did so 
legally since the copyright owner is given no exclusive right to make 
derivative works. 

This potential legal problem could be eliminated by including part 
(2) of section 106 in the list in section 114 of exclusive rights granted 
to a sound recording copyright owner — an action which would grant 
to sound recording copyright owners no more rights than they 
presently possess. 

Section 506 should be amended accordingly to include part (2) of 
section 106. 

A third area for concern is proposed section 301 (pages 32-33), 
subparagraph (b) , which states : 

Nothing in this title annuls or limits any rights or remedies under 
the common law or statutes of any State with respect to : 

57-786— 76— pt. 1 10 



138 

(3) Activities violating rights that are not equivalent to any of the 
exclusive rights within the general scope of copyright * * * includ- 
ing breaches of contract, breaches of trust, invasion of privacy, defa- 
mation, and deceptive trade practices * * * 

We believe this langTiage could be read as abrogating the antipiracy 
laws now existing in 29 States relating to pre-February 15, 1972, 
sound recordings on the grounds that these statutes proscribe activities 
violating rights "equivalent to * * * the exclusive rights within the 
general scope of copyright * * *." . 

Certainly such a result cannot have been intended for it would 
likely affect the immediate resurgence of piracy of pre-February 15, 
1972, sound recordings. [Note : In any event, there would be no effect 
on sound recordings produced after February 15, 1972, since it would 
appear that the States cannot constitutionally enforce their antipiracy 
laws against the unauthorized duplication of these later recordings.] 

We therefore urge that section 301 (b) be amended to include a new 
subsection (4) as follows: 

(4) Sound recordings fixed prior to February 15. 1972. 

Proposed section 506(a) should be amended to correct the disparity 
of sanctions between second-time infringers of sound recording and 
motion picture copyrights and second-time infringers of other 
copyrights. ^ 

As written, section 506(a) provides for a maximum $10,000 fine and 
3 years imprisonment for second-time infringers of all copyrights but 
sound recording and motion picture copyrights. Infringers of these 
latter two categories are subject, upon conviction of a seco]id offense, 
to a maximum fine of $50,000 and 2 years imprisonment. We suggest 
that these latter infringements are sufficiently serious to warrant at 
least the same maximum imprisonment for second offenders as is ap- 
plicable to second-time infringers of other copyrights, as well as the 
larger fine. The term of imprisonment prescribed should therefore be 
at least 3 years. 

We siTpport the substitution of "for purposes of commercial advan- 
tage or private financial gain" for the present recjuirement in 17 
U.S.C. 104 that, to be criminal, infringements must be done "for 
profit." The provision in present section 104 for aiders and abettors 
kas been removed, but these individuals will be liable to prosecution 
under 18 U.S.C. 2. 

From the standpoint of making deterrents meaningful beyond the 
financial deterrent and provide a penalty for those who can "take" 
financial losses as a cost of business, it is recommended that a maxi- 
mum 1-year term of imprisonment be included in the sanctions under 
proposed sections 116(d) and 506(b), (c), and (d), all of which 
are provisions the Department supports. 

We also note that section 115, subparagraph (a) (1) , states explicitly 
and with clarity what four courts of appeals have ruled is the scope 
of compulsory licensing under present law, namely, that absent au- 
thorization by the owner of a composition copyright, the duplication of 
a sound recording embodying a copyrighted musical composition is an 
infringement of the composition copyright even though the duplicator 
tenders royalty payments and otherwise attempts to comply with 
present compulsory licensing provisions. This is contained in the final 
sentence of subparagraph (a)(1), which reads : 



139 

A person may not obtain a compulsory license for nse of the (non- 
dramatic musical) work in the duplication of a sound recording made 
by another. 

Since this prohibition is not limited to copyrighted sound recordings, 
the etlect is to prevent the operation of the compulsory license mecha- 
nism for making copies of any sound recordings embodying copy- 
righted musical compositions. The Department wholeheartedly 
supports this provision. 

Section 804 deals with procedures before the tribunal which deter- 
mine adjustment of copyright royalties and their distribution under 
specifiecl sections of the bill. We object to the provision in subsection 
(e) of this section that the Senate Committee on the Judiciary and 
the House of Representatives Committee on the Judiciary may waive a 
requirement tliat a final decision in each proceeding be rendered by 
the tribunal within 1 year from the certification of the panel by the 
Register of Copyrights. 

The constitutional division of duties among the three principal 
branches of the Governm.ent places in the Congress the legislative re- 
sponsibilities. However, once a law has been enacted, it is for the execu- 
tive branch to carry out the intents and purposes of the law as directed 
by the Congress. In our view, legislation, once enacted, should not be 
modified or waived by actions of a committee of the Congress. It is 
suggested that if waiver of the 1-year requirement is desirable under 
particular circumstances, these circumstances be generally outlined in 
the bill and that the tribunal be given authority upon good cause 
shown to extend the period of time for rendering decisions. 

Of particular concern to this Department is the new form of copy- 
right protection provided by title II of the bill. 

This new form of protection is a hybrid between design patents, 35 
U.S.C. 171-173, issued for a period of up to 14 years by the Patent 
Office for new, original and ornamental designs of articles of manu- 
facture and the copj-right laws which provide for registration and 
issuance of certificates of copyrights for the writings of authors. The 
new protection that is provided under the bill is not presently avail- 
able under the copyright laws and can only be obtained through a de- 
sign patent after an examination procedure which determines whether 
the ornamental design meets the criteria of patentability, including 
unobviousness in view of the prior art, as provided by 35 U.S.C. 102, 
103. 

While the protection period as proposed for the new type of orna- 
mental design protection is only a maximum of 10 years as compared 
with the maximum of 14 years available for a design patent, it is 
granted without the need of meeting the novelty and unobviousness 
requirements of the patent statute. 

A threshold consideration before finding that the needs are such 
that this new type of protection should be available is whether the 
benefits to the public of such protection outweigh the burdens. We 
believe that insufficient need has been shown to date to justify removing 
from the public domain and possible use by others of the rioflits and 
lienefits proposed under the present bill for such ornamental designs. 
We beliove that design patents, as are granted today, are as far as 
the public should .q-o to grant exclusive rights for ornamental designs 
of useful articles in the absence of an adequate showing that the new 



140 

protection will provide substantial benefits to the general public 
which outweigh removing such designs from free public use. 

While it has been said that the examination procedure in the Patent 
Office results in serious delays in the issuance of a design patent so as to 
be a significant problem and damaging to "inventors'' of ornamental 
designs of useful articles, the desirable free use of designs which do not 
rise to patentable invention of ornamental designs of useful articles 
are believed to be paramount. 

If the contribution made to the public by the creation of an orna- 
mental design of a useful article is insufficient to rise to patentable 
novelty, the design should not be protected by the law. The Depart- 
ment of Justice has consistently opposed legislation of this character. 

To omit Federal statutory protection for the form of a useful object 
is not to deny the originator of that form any remedy whatsoever. If 
he can prove that competitors are passing off their goods as the 
originator's by copying the product's design, he may bring an unfair 
competition action against such copyists. Crescent Tool Go. v. KWborn 
& Bishop Co., 247 Fed. 299 (C. A. 2 1917). See, also. Sears, Roehuch 
(£' Go. V. Stiff el Co., 376 U.S. 225 (1964), and Gompco Corp. v. Day- 
Brite Lighting, Inc., 376 U.S. 234 ( 1964) . 

Quite apart from our opposition to the merits of title II, we also 
oppose enactment of the design protection provisions of this bill which 
would provide a new class of actions against the United States since the 
bill proposes to amend section 1498(a) to add the new type of design 
copyrights to the remedies available to inventors against the United 
States who have been issued U.S. patents when they are used by the 
United States without authorization of the owner. 

For example, by amending section 1498 (a) in this waj^, the Congress 
will be creating a completely new problem area fraught with difficulties 
for Government procurement. 

Government contractors who "reverse engineer" alleged trade secrets 
in bidding competitively for Government contracts would now b& 
faced with the necessity of designing around the "packaging looks" of 
a product covered by a design copyright which may not rise to the 
stature of patentable novelty under the patent laws. Thus, the "non- 
utilitarian looks" of a vehicle which may not be protectable as a design 
patent would be given copyright-type protection under the bill. 

We, therefore, strongly oppose the new type of protection proposed 
by title II of the bill. 

Section 1498(a) is also amended to provide for the first time for 
suits against the United States for unauthorized use of inventions,, 
whether patented or unpatented. 

Thus, it would appear to permit a suit based on a trade secret con- 
taining an unpatented invention. This also, we strongly oppose as 
inconsistent with limiting claims against the United States in 28 
U.S.C. 1498 to those recognized by the patent and copyright laNvs. No 
adequate showing has been made that this type of protection, on 
balance, is in the public interest. 

The provision in section 220 whereby simultaneous suit can be filed 
against the Administrator who carries out the provisions of title II, 
section 230, and an alleged infringer of the design in that it subjects 
an alleged infringer to suit in the same action even though the thresh- 
old question whether a certificate can issue under the provisions of 



141 

the law lias not been decided as between the Administrator and the 
applicant for registration is believed undesirable. While it is not 
likely that the issuance of certificates of registration will be frequently- 
refused if certain basic requisites of applications are met, neverthe- 
less, if a situation should arise of a refusal of issuance of a certif- 
icate of registration by an Administrator, this should require a 
separate and distinctive action to secure issuance thereof, especially 
since governmental functions should not normally be mixed with 
the proprietary enforcement functions of courts in adjudicating pri- 
vate rights and remedies. 

Certain technical corrections appear indicated in title II as follows : 

Page 66, lines 22 and 23 appear reversed. 

Page 73, line 22, "Section 311" should read "Section 211." 

Page 73, line 26, "mortgage" should read "mortgagee." 

Mr. Kastenmeiek. Thank you. I had difficulty understanding this. 
What you are referring to by using the term fair use is a proposal 
that we remove the uncertainty in connection with the present lan- 
guage in the bill; your suggestion does not substantively change the 
construction of the bill, bu^ is more or less a clarification of it, in an 
attempt to remove the uncertainty ? 

Mr. GoLDBLOOM. I believe that is right. 

Mr. Kastenmeier. With respect to the term, of course, you clearly 
opposed the term proposed in the legislation. Why did the Department 
of Justice propose to change the term of 50 years to 56 or life ? In other 
words, you perceive that there was an inequity on the part of authors 
who might seek terms for life or some other terms other than what is 
present in the law ? 

ISlr. GoLDBLOOM. To the extent that it may be urged that the present 
term does not fully protect an author who may live a long life and 
lias created a copyrighter's work in his early years. We believe that in 
constitutional concept, furnishing this protection to authors for their 
creations, that the present law may very well not be sufficient to pro- 
tect that interest. We feel, however, that the bill as drafted goes far 
beyond the requirement or the need to protect authors or their crea- 
tions. For that reason we would lengthen the 56-year term to the ex- 
tent that it may last during the duration of the lifetime of the par- 
ticular author, 

Mr. Kastenmeier. Had you wondered or determined why the rest of 
the world had gone to a life plus 50 at some point during the codifica- 
tion of their copyright laws ? 

Mr. GoLDBLOOM. We laiow they have gone that way. They have, we 
believe, different considerations that they pursue in furnishing this 
type of protection. 

Mr. Kastenmeier. How would theirs be different from our own ? It is 
a very important point. 

Mr. GoLDBLOOM. Well, we think that our own considerations flow 
from constitutional provisions of the concept of thereby protecting 
authors and to promote and advance science and useful arts for a 
limited time under the concept as expressed in the constitution. 

In our view a term which extends for 56 years or the lifetime of the 
autlior, whichever is greater, would serve those constitutional goals 
of a limited time, which is a very clear constitutional concept. Cer- 
tainly, 150 years in our view is an extended period of time considerably 
above the authority granted. 



142 

Mr. Kastenmeier. Do you have any jurisdiction or a single authority 
that says the contemplation of the franiers of the Constitution is con- 
trary to what the bill proposes ? 

Mr, GoLDBLOOM. It is only our reading of the Constitution. 

Mr. IvASTEXMEiER. Would you answer the question of whether you 
found or looked for an authority ? 

Mr. Goi.DKLooM. We have looked, but haven't foimd any. 

Mr. Kastenmeier. It's all on the other side ? 

]\Ir. G0LDBL003I. I don't know that it's there either. 

Mr. Kastenmeier. We have concluded that the State Department 
and most nations of the Earth are out of tmie with the contempla- 
tion of the Founding Fathers? 

Mr, GoEDBLooir. I don't believe that most nations of the world are 
enacting legislation on the basis of the Constitution of the United 
States, 

Mr. Kastenmeier. In describing the effect of the term, I think you 
said it has the effect of doubling the present term, the present term 
being 50 years. It would make it 112 if you subtract the 50. It means 
that you are suggesting that after creation, the average author lives 
62 years ; is that correct ? 

]\Ir. GoLDBLOO]\r, I don't believe we intended to be precise in mathe- 
matics ; it was an appi-oximate figiire that we were trying to get. 

Mr. Kastenmeier. To me it doesn't even seem approximate. I don't 
mean to nitpick, but I think the effect is somewhat overdescribed in 
saying that it doubled the term. Perhaps it might increase it by a 
probable figure of 50 percent but it scarcely doubles it. 

I think you are entitled to take whate\'er point of view the Depart- 
ment desires to in that connection and I would say that the burden is 
on those proposing to change, to justify the change. I think that is the 
case and to that extent you are probably not to be criticized. 

In title II, which covers ornamental design, is it your point of view 
that what is doiie is appropriate or is it your point of view that 
nothing should be done with respect to that which is proposed to be 
covered in title II ? 

Mr. Goldbloom. It is our point of view that nothing should be done. 

Mr. Kastenmeier. I'm going to yield to the gentleman from New 
York, Mr, Pattison. I caught you bv surprise that time, didn't I? 

Mr. Pattison. You surely did. I am interested also in his opinion 
on the term and I also respect your opinion that it should be some- 
thing other than life plus 50, but I do wonder if you are serious about 
that, being that we are somehow constitutionally constrained for some 
period of time ? 

It is limited as opposed to unlimited. Certainly, it could be life plus 
50 or 1.000. Constitutionally, couldn't we do anything we want? 

Mr. Goldbloom. Sure. My statement is not to say that there is any 
limitation but the provision is to promote and advance science and the 
useful arts and for the protection of authors. 

Mr. Paitison. You can protect them. We generally operate with 
notions against having rights fixed in perpetuity. Property rights cer- 
tainly are not fixed that way. In other words, after our death we can 
enjoy still those rights in essence. 

Mr. Goldbloom. There are limitations on that generally in the law 
but we have here other considerations. Those considerations are, as 
I say, the promotion of science and the useful arts and the protection 



143 

of authors. If we focus on these, we find in the Constitution a sense of 
not having it for a very extensive term. 

Mr. Pattisox. But, is there not any kind of definitional problem ; 
you don't think it defines anything else than what is proposed in this 
bill? 

Mr. GOLDBLOOM. No. 

[Mr. Pattison. I'm interested in the fair-use provision that you have 
remarked on. It seems to me you are proposing as to nonprofit institu- 
tions that there be limited use of reproduction. In other words, schools, 
libra^ries, and things like that can reproduce without any considera- 
tion; If you want 50 copies for your class, then without having to buy 
50 copies of the journal, you can go ahead and reproduce it and that is 

OK? 

Mr. GoLDBLOOM. Yes. 

Mr. PArnsoN. And that is related to nonprofit organizations? 

Mr. GoLDBLOOM. Yes, educational activities. 

Mr. Pattison. AYlien I think in terms of the fact that many things 
are written for that market, how do you respond to that; in other 
words, if something is designed to be used in an educational institu- 
tion which is normally nonprofit, how do you protect that author? 

Mr. GoLDBLOOM. This is not designed to make unlimited reproduc- 
tions of copyrighted material, but it is designed to expand and 
broaden. 

Mr. Pattison. Doesn't it make it unlimited when it is used in non- 
profit institutions ? 

Suppose I am writing a school book and they are the only people 
that are going to use it. I am not going to sell my book in the local 
drugstore. The book I am writing is for the use of schools which are 
almost always theoretically nonprofit. How do I protect that author? 

Isn't it true that under your remarks you would eliminate that pro- 
tection ? 

Mr. GoLDBLOOM. Well, we think it could be protected perhaps by 
contractual rights between the publisher and the user. It is not our 
purpose to support unlimited copying of textl^ooks. 

]\fr. Pattison. But, I think your remarks would do that; I think 
your suggestion would actually do that, wouldn't it? You exempt the- 
fair-use provisions for educational use by nonprofit institutions. 
Therefore, if somebody reproduces a textbook and distributes it to 
their class, even 1,000 copies, that would not be prohibited under the 
act as changed by your suggestion ? 

Mr. GoLDBLOOM. I do not believe that we would want this construed 
to allow unlimited reproduction of textbooks where textbooks are 
written for purposes of education. 

Mr. Pattison. On the area of CATV, I take it your suggestion as 
to the CATV system within the normal grade B or normal viewing 
area where the signal reaches users, th.at the system would not have 
to pay anybody for that. As for importation of signals fi'om outside 
that contour you would approve of them paying something? 

Mr. GoLDBLOOM. Yes. It is only where there is reproduction of the 
signal within the local service area. 

Mr. Pattison. They then would not have to pay for that. 

Mr. GoLDBLOOM. Yes, the importation into that area or exportation 
outside of that area would have to be compensated for. 



144 

Mr. PATTisoisr. Thank you. 

Mr, lO.STENMEiER. The gentleman from New York, Mr. Badillo. 

Mr. Badillo. No questions. 

Mr. IvASTENMEiER. The gentleman from Massachusetts. 

Mr. Drinan. Thank you, Mr. Chairman. 

May I ask you, sir, by what process does the Department of Justice 
come to these conclusions and, who is the "we" you keep referring to ? 

Mr. GoLDBLOOM. In our statement, broadly, we consulted various 
segments of the Department's divisions that have interests concerning 

this bill. 

Mr. Drinan. From what premise did you operate ; why are you m- 
f erring something that is all within a legislative judgment? Is it your 
premise that the first amendment of the Constitution will provide 
that protection, or what ? 

Mr. GoLDBLOOM. We have different divisions within the Department 
that have an interest in this. The Antitrust Division has broad in- 
terests in the administration of the antitrust laws. The Criminal Divi- 
sion has an interest in the bill to the extent that there are criminal 
provisions. 

Mr. Drinax. An interest; what do you mean by that? From what 
premise do you operate; why are you here? In other words, do you 
want a law that is easy to execute or what is your major premise? 

Mr. GoLDBLOOM. The Antitrust Division administers the antitrust 
laws and, to the extent they feel that the provisions in the copyright 
law have an effect upon their broad interest in the economy of our 
country, they have set forth their interests in this. 

Mr. JDrixan. Did you testify in the Senate ? 

Mr. GoLDBLOOM. I personally did not testify. 

Mr. Drinan. On page 24 of your statement, I have been very inter- 
ested in the fact that you mentioned here that : 

At present, the government has no clear-cut authority to destroy infringing 
articles which have been seized or otherwise obtained in the investigation or 
prosecution of a tape piracy case or, for that matter, any criminal copyright 
infringement case. This lack of specific authority has resulted in critical storage 
problems for many FBI and U.S. Marshal's oflSces throughout the country and 
poses the embarrassing possibility that the government may be ordered to 
return known infringing articles to a convicted defendant. 

Do you have the power to seize them ? 

Mr. Mtjrphy. We have the power to seize them as evidence for ^do- 
lations of the law pursuant to a warrant, either pursuant to a warrant 
of arrest or to a search warrant. The problem arises when we seize 
substantial quantities of these things that are possessed with the in- 
tent to violate the law, and what to do with them. There is no clear- 
cut authority, and we stress the clear cut because there is provision 
m the copyright law for the destruction of materials that are infringe- 
ment oriented. 

Frankly, of course, until the enactment of Public Law 92-140, the 
privilege of seeking the destruction of those materials alluded only 
to the copyright owner. We think by the enactment of Public Law 92- 
140 the Federal Government has been vested with the authority for for- 
feiture and destruction of such infringing materials. But, in order to 
make it absolutely clear that that right exists in the Federal Govern- 
ment, we propose this forfeiture provision. 



;145 

Mr. Drixan. You suggest on page 24 that the FBI and U.S. mar- 
shal's office are posed with the embarrassing possibility that the Gov- 
ernment may be ordered to return known infringing articles to a con- 
victed defendant. Tell me more about that; can anyone sue? 

Mr. MuRrHY. Yes, sir, some have sought orders from the court. 

Mr. Drinan. Why would that be embarrassing if you are just doing 
what the law gives you authority to do ? 

Mr. Murphy. We don't say it is embarrassing to do what the law 
provides for, but that there are erroneous judgments on the part of 
courts that have resulted in the return of materials to the violator. 

Mr. Drinan. But you want the authority over all of the equipment 
to be able to destroy it and never return it and not give any compensa- 
tion for it when some of that could be used 

Mr. JNIuRPHY. May I point out that the copyright owner has that 
authority right now, to seize the infringing materials. 

]VIr. Drinan. That is an entirely different question. 

Mr. Murphy. Well, it is similar, it seems to me. These are mate- 
rials that are used and possessed with the intent to violate the law. 

Mr. Drinan. Once again you are telling me, you are stating that 
the Government is continuing to possess these things when the owners 
may well come under the law, have the right to take possession of the 
infringing articles. 

Is there anything here, sir, any policy position you take on the 
question of performance royalties ? 

As you know, the Senate is deeply divided on this. Is there anything 
in your statement as to any position that the Department of Justice 
takes on that? 

Mr. GOLDBLOOM. No. 

Mr. Drinan. You have taken a position on other questions here. 
How come you missed this very fundamental one that this committee 
has to decide ? 

Mr. GoLDBLOOM. We attempted to limit our position to those areas 
of interest that the Department of Justice administers or represents, 
insofar as it represents other Federal agencies and departments. 

Mr. Drinan. I yield back. 

Mr. Kastenmeier. The gentleman from California, Mr. Danielson. 

Mr. Danielson. Could you tell me, sir, what is the nature of the 
property rights in copyrighting, in this context. Is my copyright and 
my property right subject to execution and sale under a valid judg- 
ment of a court ? 

Mr. GoLDBLOOM. I believe it is. 

Mr. Danielson. Could it be pledged as security and subsequently 
my security interest be foreclosed ? 

Mr. GoLDBiiOOM. I believe it could be. 

Mr. Danielson. In other words, it could be taken from me by law ? 

Mr. GoLDBLOOM. Yes ; depending on the State law. 

Mr. Danielson. Under section 104(c) the State Department repre- 
sentative pointed out that it favored section 104(c) which would tend 
to prohibit the enforcement of the valid judgment of a foreign court 
as to the copyright of one of its nationals within the United States ; 
are you willing to comment on that ? 

Mr. GoLDBLOOM. I would prefer, if I might, to supplement the record 
on that. We have not had an opportunity before today to see the State 



146 

Department's position on that and the Department of State may very 
well have a position on that. 

Mr. Danielson. I only make a request. I don't know some of the 
answers, but I am seeking them and any help that you could provide 
I would appreciate. I personally have a problem; 1 don't see how we 
•can hang on to our comity with other nations if we refuse to recognize 
the judgment of their courts whether we agree or not. That poses a 
problem for me and I would appreciate any information you can get 
for me. 

Mr. GoLDBLOOM. I will try. 

Mr. Danielson. On the subject of cable television, you stated on 
page 16 that you feel that secondary transmission should be com- 
pletely royalty free and free of liability so long as it is within the local 
service actually, because they are just filling in blind spots and miprov- 
ing transmission? 

Mr. GoLDBLOOM. Yes. 

Mr. Danielson. And then you conclude that such transmission does 
not impair the primary transmitter's market and, in talking about 
the broadcasting stations, in fact you say it enhances it and I concur. 

Then you say the copyright holder is helped and not hurt by such 
activity. What is the rationale for that '^ 

ISIr. GoLDBLooM. To the extent that there might be an agreement 
between a copyright holder and the broadcaster concerning the use 
■of the material, that the ability to enhance the viewing and the num- 
bers of viewers within the local service area, would seem to be some 
consideration between the parties. If it is demonstrable, more people 
would have access to this. 

Mr. Danielson. Are you saying in effect that when a copyright 
owner enters into a royalty agreement with a broadcaster, usually a 
TV broadcaster, that the amount of royalty which is paid is based 
at least in part upon the number of viewers which the station can 
demonstrate watch the program at time 7 p.m., for example? 

Mr. GoLDBLOOM. It may be something other than royalties for the 
copyright; it may just be advertising ability, the possibility of adver- 
tising a copyrighted work. 

Mr. Danielson. It is something of value to the copyright owner 
whether it is money or prestige or whatever, his sense of value is 
entirely subjective. I understand that, but the point is that the com- 
pensation in my money or money's worth to the copyright owner is 
based in part on the numbers of viewers? 

]VTr. GoLDBLOOM. That is correct. 

Mr. Danielson. That is my understanding. All right, for that rea- 
son T will once ajrain state your conclusion in the last sentence of para- 
graph 1 on pap-e 17 of your statement, "the copj'^right holder is helped 
anrl not hurt bv such activity." 

"WHiat thp- copvrio;ht owner <Tets at this consideration is greater or 
less depending upon the rated viewing of the program at the time 
of the nublication? 

l^^r. GoLDBLOo:\r. Tos. 

Mr. Danielson. We are talking about a secondary transmission 
"vrithin the primarv viewing area. Let us take for an example southern 
rnli^ornia which has our laro-est metronolitan area, Los Angeles. That 
area is a hasin surrounded by a wall of mountains. It is a lovely area, 



147 

.'but you cannot get a primary transmission from Los Angeles because 
of the mountains. Suppose I have a cable system and I pick up the 
Los Angeles broadcast and take it by cable into the valley and the 
desert and distribute it. I'm going to call that, for our purposes a 
primary transmission to dispose of the secondary transmission you 
are talking about. Do you feel there should be an additional fee there ? 

Mr. GoLDBLooM. Yes. 

Mr. Danielson. Why? 

Mr. GoLDBLOOM. Of course, the whole subject of these copyright 
laws has been debated long and hard to the extent that the Congress 
has attempted through this bill to accommodate those various inter- 
ests. We feel that it has accomplished Ijeneficially a great deal because 
there are competing interests here. Cable television does have the 
ability to extend beyond the m.ountainous area that you described, 
something which other systems are not naturally or not normally 
able to do. 

JNIr. Danielsgn-. Is there anything natural or normal about the 
primary transmission: it is a mechanical device, an electronic device, 
-a creation of man which has been out in these areas. Seriously, your 
rationale to support your statement that the copyright holder is helped 
and not hurt by such activity within the primary viewing area, does 
it not apply equally to the viewing over the mountains ? 

Mr. Goi'dbloom." Well, it does, but in the context of the world of 
communications there is a need we feel to accommodate the interests 
of both the cable as well as the copyriglit owners. 

]Mr. Daxtelson. How would they not be accommodated ? Is it not a 
fact that the royalty agreement between the copyright holder and 
the broadcasting station is based in part on the number of viewers 
and, in calculating the number of them, the broadcasting station 
includes those who ai'e reached through the cable transmission on the 
other side of the mountain? 

Mr. Goldbloom. I don't know that that is necessarily correct. 

INIr. Danielson". Do you have anv documentation or authority for 
that? 

Mr. Goldbloom. I would have to look into that. 

Mr. Danielsox. I don't expect you to know answers on a multitude 
of problems, but I think you are going to find in the advertising busi- 
ness the rates that the broadcaster receives for advertisements— and 
that is what keeps him alive — are based on the viewers; the rate he 
pays the copyright holder is based on the viewers. 

So. if you expand the number of viewers, you are going to expand 
the advertising rates and the amount he pays for his royalties. I think 
you will find that to be the case. Assuming that is true, then would not 
that be your rationale on secondary transmission whether it be over 
the mountain or inside the mountain, if you are applying that 
rationale ? 

Mr. Goldbloom. I think it would. 

Mr. Danielsox. On fair use, Mr. Pattison has brought out the 
analogy of making textbooks for a school. This poses a real problem 
in my mind yet, I am hoping it will be cleared up. I am sure we agree 
that if the school were to go through a first-class printing operation 
and reprint, set plates, and type, print and bind a copy of a book, you 
would have an infringement and there would be royalties. 



148 

Then back down one step instead of doing the traditional photo- 
offset job, but it be otherwise the same, I think you wouhT agree you 
still have a copyright violation. So, if you back down to a mimeograph 
and suppose you typed on a stencil and then bound it with a nice, 
hardboard cover, et cetera, I think you would still contend, and many 
of us would, that you would still have a violation. 

You take the same mimeograph, but you don't bind it and have just 
loose sheets now you are confronted with whether or not it is a 
copyright violation and, if you go to Xerox, now you have two 
questions ; what do you do with that ? 

I have gone through this step by step on purpose. I wonder if we 
are coming to grips with the real issue ? Should we basically copyright 
on the type of mechanical reproduction used or upon the number of 
copies; is it valid to say it is the use to which they are put, whetlier 
they go to a nonprofit school ? I don't know if there is a valid way of 
determining this and I am seeking help because I don't understand it. 

Are we saying when we talk about schools and churches, are we 
saying we must be good to the nonprofit organizations? There cer- 
tainly isn't this consideration on brooms and buckets and typewriters 
and the people who sell printed books to the schools make a profit. I 
don't know the answer and I want to find out. Thank you. 

Mr. Kastenmeier. The gentleman from Illinois, Mr. Railsback. 

Mr. Railsback. On page 16 of your statement, you indicate that 
secondary transmission within the local service area of the primary 
transmitter finds the cable system only filling gaps or improving 
reception in the service area of the primary transmitter and supple- 
menting the primar}^ transmission. Of course, the primary transmitter 
has sponsors; when the secondary transmitter within this area picks 
up the program does he not also run the commercials and wouldn't 
that have an adverse effect on possibly discouraging a prospective 
sponsor ? 

In other words, I don't see how that wouldn't really dilute the 
effectiveness of a sponsored program. 

Mr. GoLDBLooM. I am not certain specifically how the FCC rules 
operate, but I believe they would have to reproduce the program in its 
entirety with the sponsored portions. 

Mr. DANiELSOisr. I am willing to be corrected, but it is my under- 
standing that when a cable system is picked up by a broadcaster that 
it is transmitted in its entirety and they do not excise the commercials. 
Therefore, the sponsor gets the advertising over the mountain as 
well as inside of the mountain. 

Mr. Eailsback. I see. First of all in respect to Father Drinan's 
question, and comments, I certainly do welcome you; we invited you 
to testify. Secondly, with respect to forfeiture, aren't we talking 
about record pirates who have actually stolen somebody's work ? 

Mr. GoLDBLOOM. Yes. 

Mr. Railsback. I just want to conclude by saying that I do not 
find that particular recommendation draconian. I disagree with some 
others, but I thank you. 

Mr. Kastenmeier. The Chair will state that indeed you were invited 
along with the Justice Department, along with the Departments of 
Commerce, and State. As a matter of fact, your predecessor appeared 



149 

in this room 10 years ago on a similar bill and you are aware of that 
lam sure. 

Mr. GoLDBLOoM. Yes. 

Mr. Kastenmeier. In that connection, what was being considered 
was a similar bill and any of the issues you spoke to this morning 
were expressed then. Had the views of the Department of Justice, 
the Antitrust Division and any other parts of that, changed or are 
they the same as they were 10 years ago with respect to this bill? 

Mr. GoLDBLOOM. I believe to the extent that issues were then in 
existence, our position is close to what they were then. I don't know 
because we have not examined each position we took then in light of 
the position we have taken today, but I think there is a similarity 
and identity. 

Mr. Kastenmeier. Do I understand that you regard as the most 
important issues, the issue of ornamental design in title II, term 
and the manufacturing clause ; those are among the more important 
positions, issues as far as the Department of Justice is concerned? 

Mr. GoLDBLOOM. Yes. Mr. Chairman, and CATV. 

Mr. Kastenmeier. If the bill is reported in its present form, will it 
be the disposition of the Justice Department to oppose it, to recom- 
mend that the President veto the bill ? 

Mr. GoLDBLOOM. I cannot really speak to that at the moment. I 
think there is a different function when one is recommending to the 
President, what he should do with legislation from when one appears 
before the Congress while it is contemplating. 

]Mr. Kastenmeier. It is your stance then that you are making certain 
recommendations and stating your positions on whether the bill 
should be passed or not passed ; that is your reason for being here ? 

Mr. GoLDBLOOM. Yes. 

Mr. Kastenmeier. Thank you for your appearance. 
[The prepared statement of Mr. Goldbloom follows :] 

Statement of Irwin Goldbloom, Deputy Assistant Attorney General, Civil 

Division, Department of Justic?e 

Mr. Chairman: I am pleased to respond to the Committee's invitation to 
present the views of the Department of Justice on H.R. 2223, A Bill for the 
General Revision of the Copyright Law, Title 17 of the United States Code, 
and for other purposes. 

We are in sympathy with the general purpose of Title I of the Bill, to provide 
a thorough revision and updating of the Copyright Law, Title 17, United States 
Code. However, as set out below, we recommend certain modifications in the 
proposed revision. We oppose Title II of the Bill which creates a new type of 
intellectual property, a hybrid between a copyright and a design patent. 

H.R. 2223 and its companion bill, S. 22, are nearly identical with S. 1361 as 
passed by the Senate in the 93d Congress on September 9, 1974. There are, 
however, technical and perfecting amendments and changes required by the 
enactment of Public Law 93-573, providing for interim copyright extension and 
increased penalties for tape piracy. A section-by-section analysis of S. 1361 
is part of Senate Report No. 93-983, 93d Cong., at pages 102-228. Further details 
as to the history of this copyright revision bill appear in the same Report 
at pages 101-103. The summary below is specificially directed to features of the 
Bill of particular concern to this Department. 

Section 107 relates to the "fair use" doctrine. This is fully discussed in Senate 
Report No. 93-983, pages 115-120. The scope of fair use in copying is illustrated 
to include reproduction by a teacher or a student of a small part of a work to 
illustrate a lesson (S. Report 93-983, p. 115). This example, therefore, does not 
include reproduction of the entire work to illustrate a lesson. In determining 



150 

whether the use made of a work in a particular case is a fair use, a court is to. 
consider as factors the purpose and character of the use, the nature of the copy- 
righted work, the amount and substantiality of tlie portion used in relation, 
to the copyrighted work as a whole, and the effect of the use upon the potential 
market for or value of the copyrighted work. As to the reproduction of entire 
works for classroom use, the doctrine of fair use would be applied "strictly" 
(S. Kept. 93-983, p. 117). 

Sections lOS, 110, and 111 cover exemptions from liability for copyright 
infringement in the fields of library and archive reproduction (Section 108). the- 
exemption of certain performances and displays, such as in classrooms in face- 
to-face teaching activities of a nonprofit educational institution (Section 110) 
and the retransmission of a primary transmission simultaneously with the 
primar.v transmission or nonsimultaneously with the primary transmission if 
by a "cable system" outside defined geographic areas ("secondary transmissions" 
of Section 111). 

Section 302 establishes a new term for the duration of copyright. Generally, 
this is for a term consisting of the life of the author and fifty years after his 
death. In the case of joint works, the period of fifty years commences upon the 
death of the last surviving author. For anonymous works, pseudonymous works,, 
and works made for hire, the copyright period is for a term of seventy-five years 
from the year of its first i)ublication, or a term of one hundred years from the 
year of its creation, whichever expires first. Where one or more authors are- 
identified for an anonymous or pseudonymou.s work before the end of the copy- 
right term, the longer period of copyright terminating fifty years after the death 
of the author then applies. 

Secti<m 405 deals with the effect of the omission of the copyright notice. Section- 
411 covers infringement actions in certain situations. 

Section 506 contains special provisions applying to persons who infringe will- 
fully and for purposes of commercal advantage. Witli respect to copyright in a 
.sound recording, for the first such offense, a person is fined not more than. 
$25,000 or imprisoned for not more than one year, or both. For any subsequent 
offense a person is fined not more than $50,000 or imprisoned not more than 
two years, or both. Section 507 provides a three-year statute of limitations for 
both criminal proceedings pursuant to provisions of the Bill after the cause of 
action arose (under the provisions of Sections 116 and 506) and for civil actions 
after the claim accrued. 

Section 601 affords preferential protection to pulilishers and printers of the 
United States and Canada (Report 93-983, pp. 195-200). 

Sections 801-809 are concerned with the Register's duties to collect royalties 
and make determinations concerning the adjustment of copyright royalty rates 
for certain uses where compulsory licenses are provided by the Bill. They also 
relate to his duties to determine in certain circumstances the distribution of 
these royalties deposited with the Register of Copyrights. Section 803 provides 
for selection of membership of the tribunal to make necessary determinations 
with respect to royalty matters, to be on the basis of a list of names furnished: 
by the American Arbitration Association to the Register of Copyrights. Section 
804 provides for procedures to be followed by the tribunal in making its deter- 
minations. Subsection (e) of Section 804 directs that the tribunal shall render a 
final decision in each proceeding within one year from the certification of the 
panel, certified by the Register of Copyrights on the basis of the names furnished 
by the American Arbitration Association. This subsection further provides that 
the Senate Committee on the Judiciary and the House of Representatives Com- 
mittee on the Judiciary, upon a showing of good cause, may waive this require- 
ment of the rendering of a final decision within one year from the certification 
of the panel in a particular proceeding. The judicial review for tribunal final 
determinations, provided in Section 809 (concerning the distribution of royalty 
fecy). is limited. A court may vacate, modify or correct such a determination 
if it was procured by corruption, fraud or undue means, where a member of 
the j>aTiel was partial or corruT)t, and where any member of the panel was guilty 
of misconduct by which the rights of any party were prejudiced. 

Provisions for th*^ protection of ornamental designs of useful articles appear 
in Title II of the Bill. Section 201 provides that authors or proprietors of an 
original ornamental design of a useful article may secure a period of protection, 
except for certain subject areas set out in Section 202, for a period provided in 
Section 205. Section 20'! contains d^^finitions of the terms "useful article". "desigTi 
of a useful article", "ornamental", and "original" as needed for purposes of 



151 

the particular protection provided by this Title. Section 204 provides that protec- 
tion commences on the date when the design is first made public, either by beinff- 
exhibited, publicly distributed, or offered for sale or sold to the public. Section 
205 provides that the term of protection extends for five years, subject to being- 
renewed for an additional five years prior to the expiration of the initial term. 
Section 206 provides for certain design notices to be applied ro the products pro- 
tected, and Section 207 limits recovery for infringement if the design notice 
requirements of Section 206 have been omitted. However, actual notice of design- 
protection to a particular person can take the place of the design notice require- 
ment of Section 206. 

Section 209 of Title II provides for loss of protection if registration of the 
design is not made within six months after the date on which the design was 
first made public, who may make application for renewal registration of a 
design protected under the Bill, how and under what conditions and with what 
supporting papers a design protected under the Bill can be renewed. 

Section 212 of Title II deals with the examination of the design application 
and provides for cancellation of registrations on application of a person who 
believes he is or will be damaged by a registration under this Title. Grounds 
for cancellation are that the design is not subject to protection under the provi- 
sions of the Title. 

Section 220 of Title II provides remedies for infringement of a design pro- 
tected under this Title. It provides for a civil action to have judicial review of 
a final refusal of the Administrator to register the design as for infringement 
if commenced within a time period specified by the Administrator of the Title, 
but not less than sixty days after the decision, and permits simultaneous remedy 
for infringement by the same action if the court adjudges the design su))ject 
to protection under this Title. This would appear to mean that the infringer 
would have to be joined as a party defendant with the Administrator of this 
Title. The requirements for such an action are that the design proprietor has 
filed and prosecuted to final refusal an application for registration of the design, 
a copy of the complaint in the action is delivered to the Administrator within 
ten days after commencement of the action, and the defendant has committed 
acts which would constitute infringement of the design. 

Section 221 of Title II gives courts jurisdiction of actions under this Title 
and authority to grant injunctions to prevent infringement, including temporary 
restraining orders and preliminary injunctions. 

Section 222 of Title II relates to recovery of infringement, setting maximum 

amounts of recovery per infringing copy by way of compensation and provides 

for the delivery for destruction or other disposition of any infringing articles. 

Section 223 of Title II provides for cancellation of a registration of a design 

by a court and certification by the court of such order to the Administrator. 

Section 227 of Title II provides that copyright protection under Title I, when 
utilized in an original ornamental design of a useful article, may still be a design- 
work eligible for protection under the provisions of this Title. , 
The issuance of a design patent for an ornamental design for an article of manu- 
facture under the patent laws. Title 35 U.S.C, terminates any protection of the 
design under this Title. 

Section 229 of Title II provides that nothing in this Title annuls or limits 
common law or other rights or remedies available to a person with respect to- 
a design which has not been made public as provided in this Title or any trade- 
mark right or right to be protected against unfair competition. 

Section 232 of Title II amends various other stalutes. Of particular importance 
to the Department is the revision proposed for Title 28 U.S.C. § 1498(a) to pro- 
vide that whenever a registered design or invention is used or manufactured by 
or for the United States without license of the owner thereof, the owner's i-emedy 
shall be by action against the United States in the Court of Claims for recovery 
of reasonable and entire compensation. Use or manufacture of a registered de- 
sign or invention by a contractor, subcontractor or any person, firm or corpo- 
ration for the government and with the authorization or consent of the govern- 
ment is to be construed as use or manufacture for the United States. Use or 
manufacture by or for the United States of any article owned, leased, used by- 
or in the possession of the ITnited States prior to, in the case of an invention, 
July 1, 1918, and for registered designs, prior to July 1, 1978. is not to be the 
basis of an award under this Section. Government employees have the right tO' 
sue the government under this Section except when in a position to order, in- 
fluence or induce use of the registered design or invention by the government. 
Further excluded as a basis for claim under this Section are claims by a regis^ 



152 

traut or patentee or assignee thereof when the design or invention was related 
to the oflScial functions of the employee, in cases in which such functions in- 
cluded research and development, or in making of which government time, 
materials or facilities were used. 

Section 233 provides that Title II of the Bill shall take effect one year after 
enactment of this Act. 

Section 234 precludes a retroactive effect for the provisions of the design 
protection of the Bill. 

Section 106 states generally the basic rights of copyright owners. Following 
sections of the same chapter set forth limitations and exceptions to those rights. 
The public interest in the promotion of education and scholarly pursuits calls 
for a careful consideration of such circumstances as may impede the dissemina- 
tion of knowledge. In this regard. Section 107 of the Bill, dealing with "fair use" 
of copyrighted information, leaves unclear the extent to which librarians can 
reproduce works for use in libraries. It would seem in the public interest to 
work an accommodation between the copyright and such reproduction. But, as 
a doctrine applied on a case-by-case basis, "fair use" renders it uncertain whether, 
without infringement, librarians or library patrons can make copies of library 
materials for the patrons' use. Because of the advantages of the economical 
and speedy means of reproduction now available in libraries, it would be socially 
desirable not to discourage use thereof by uncertainty over the extent of the 
"fair use" doctrine. Thus, Ave strongly believe that a definition in tlie Bill of 
the doctrine as applied to such reproduction in libraries is definitely needed. 
Moreover, defining the meaning of "fair use" in this connection also could serve 
to reduce uncompensated infringement. To carry out our suggestion to give maxi- 
mum certainty as to "what is a fair use," and give more meaningful scope to 
the exemptions from copyright liability of Section 108 discussed below, we 
suggest the following changes : Section 107, last line (p. 9, line 9), change "work." 
to— 

"work ; provided that nothing contained in this Section shall be construed 
to limit the use by reproduction in whole or in part in copies or phonorecords 
or by other means specified in Section 106 whenever used in nonprofit edu- 
cational activities." 

Reason : Clarity of scope of fair use for educational activities. 

^Section 108(d), lines 5-6 (p. 10, lines 1, 2), delete "of a small part". 

Reason : Libraries should be able to reproduce entire work for scholarship. 

Section 108(e), lines 4-7 (p. 10, lines 13-16), delete "if the library or archive 
has * * * at a fair price," 

Reason : Too diflScult and cumbersome to make purchase investigation ; dis- 
courages use. 

Section 108, in subsection (a), provides that it shall not Infringe a copyright 
for a library or archives to reproduce or distribute no more than one copy or 
phonorecord of a work under conditions specified in subsequent parts of the 
Section. These conditions require, among other things, that the reproduction 
or distribution be made without any purpose of commercial advantage and that 
the collections of the library or archives be open to the public or available to 
specialized researchers, whether or not affiliated with the library or archives 
involved or with the institution of which the library or archives is a part. Under 
subsection (b), the rights of reproduction and distribution free from liability 
would apply to a copy or phonorecord of an unpublished work duplicated in fac- 
simile solely for preservation and security or for deposit for research use in a 
library or archives of the type covered by the Section. Under subsection (c), 
the exemption from infringement would apply to a duplication in facsimile of a 
published work solely for replacement of a copy or phonorecord that is damaged, 
deteriorating, lost or stolen, if after reasonable effort it has been determined 
that an unused replacement cannot be obtained at a fair price. 

The rights of reproduction and distribution under Section 108 extend to the 
isolated and unrelated reproduction or distribution of a single copy or phono- 
record of either a publislied or unpublished work on separate occasions unless 
the lil)rary or archives is aware or has substantial reason to believe that it is 
engajring in a related or concerted reproduction or distribution or engages in a 
systematic reproduction or distribution of a copy of an item forming part of a 
copyriglited collection or periodical issue or of a copy or phonorecord of a small 
part of any other copyrighted work. 

As we read this provision, it will not prevent libraries and archives from 
reproducing works in machine-readable language in connection with the storage 



153 

and me of computerized information systems. We hope that the House legislative 
history of the Bill will clearly support this construction, for the storage and use 
of data in such systems is of great importance to repositories and sources of 
scholarly research material. To impose copyright liability impeding the stor- 
age of such data would be socially undesirable. If our interpretation of Section 
108 is wrong, we recommend that the Section be changed to extend the appli- 
cable exemption to reproduction in machine-readable language for storage and 
use in information systems. 

The ease of transfer of computerized data is another area in which H.R. 2223 
raises a problem. Universities, research agencies, government, and private indus- 
try are developing information networks using computers and other electronic 
efpiipment to speed the transfer of information from source to user. H.R. 2223 
does not provide a method by means of which information systems users can 
ea^iiy obtain the permission of copyright owners for use of their material. The 
difficulty and loss of time entailed in many cases in contacting owners may 
inhibit users from including material in their systems. Or users may be unable 
to employ material in their systems in sufficient time in situations where speed 
is essential. It would appear in the puJilic interest for the Bill to contain some 
guarantee that information systems which are willing to pay royalties for mate- 
rial used can obtain easier access to copyrighted information, at least in high- 
prifrity areas such as scientific and technological works. 

The proposed legislation also leaves unclear at what point in the use of com- 
puterized copyrighted material the liability for royalty payment attaches. Under 
H.R. 2223, it would seem that placing copyrighted data into a computer (which 
may form part of an information system) might infringe the copyright. Since 
the use of computers for storage and retrieval of information to some extent may 
replace the sale of books, in most cases the payment of royalties should be 
required. However, just where in the process the royalty payment should be 
assessed, is open to question. We believe it unwise to levy a "toll" at the "input" 
stage in the process. Levying on the "input" into computers could impede the 
development of information systems and may render meaningless any exemption 
for tlie use of computerized information for educational purposes which may be 
read into H.R. 2223. 

The subject of the application of copyright to community antenna television 
has presented considerable difficulty in previous drafts of proposed revisions of 
the Copyright Code. H.R. 2223 attempts a compromise between the extreme 
positions of complete liability for infringement of copyright by secondary trans- 
mission by CATV on one hand and almost complete freedom from liability on 
tlip other hand. While we support the imposition of a degree of liability upon 
CATV, we believe that H.R. 2223 should provide an area of free use for such 
systems within the local service area. 

The first part of subsection (c) of Section 111 provides for compulsory licen- 
sing of secondary transmissions of a primary transmission by an FCC licensed 
broadcast station upon comj)]iance with the notice of ownership and the pay- 
ment provisions of siibsection (d), and (A) the signals of the primary trans- 
mission are exclusively aural and the secondary ti*ansmission is permissible 
under the rules, regulations or authorizations of the FCC; (B) where the CATV 
.c;ystem is, in whole or in part, within the local service area of the primary trans- 
mitter; or (C) where carriage of the signals comprising the secondary trans- 
mission is permissible under the FCC rules, regulations or authorizations. We 
strongly urge, with respect to (B), that the secondary transmittal should be 
completely free of liability ; hence, royalty-free or no licensing would be in order. 
The secondary transmission in such a situation, where the CATV system is, in 
whole or in part, within the local service area of the primary transmitter, finds 
the cable system only filling gaps or improving reception in the service area of 
the primary transmitter, supplementing the primary transmission. Such trans- 
mission does not impair the primary transmitter's market : in fact, it enhanceg 
it. The copyright holder is helped and not hurt by such activity. 

Section 203 and Section 304Cc) (fi) (D) concern the termination of trans- 
fers and licenses. These Sections would permit the author or his heirs to terminate 
the original transfer of his rights at any time during a period of five years 
beginning at the end of a specified time. However, Section 203(b)(4) and 
parallel Section 304(c) (6) (D) (relating to transfers of copyrights subsisting 
after .January 1. 1977) provide that an agreement to transfer rights subsequen: 
to the termination of a prior transfer will not be valid unless made after the 
effective date of that termination or unless made to the original grantee or his 

57-786— 7 G—pt. 1 11 



154 

successor in title. We do not believe that the grantee or his successor should 
be in a preferred position to enter into an agreement for transfer prior to termina- 
tion of the original transfer. We see no reason why all potential transferees 
should not have an equal opportunity to enter into such an agreement. It is 
therefore suggested that subparagraph (4) of Section 203 (b) and subparagraph 
(D) of Section 304(c) (6) be deleted. 

Section 302 substantially lengthens the time of copyright protection when 
compared with the duration of copyright in works under the present copyright 
law. At the presnt time, protection is granted for 28 years from the date of 
publication and may be renewed for a second 28 years, making a total potential 
term of 56 years in all cases. United States patents for any new and useful 
process, machine, manufacture or composition of matter or improvement thereof, 
are granted for a term of 17 years. 35 U.S.C. 154. Patents for new, original, and 
ornamental designs of articles of manufacture are granted for a period up to 
14 years. 35 U.S.C. 173. 

Patents for plants are granted for the same length of term as for new and 
useful processes, machines, manufacture or compositions of matter. 35 U.S.C. 
161. Under the proposed Bill, an author would receive a copyright for his life 
and 50 years after his death. Considering the average life expectancy of people 
today, this will double the length of copyright when compared with the present 
one for many works. For anonymous works, pseudonymous works, and works 
made for hire, the term is somewhat less but still significantly greater than 
provided by the present statute. 

Senate Report No. 93-983, pages 167-173, discusses various considerations 
for the duration of copyriglit in works. A major argument for increa.sing the 
term of copyright appears to be that the extension conforms with foreign laws 
which provide for longer terms of copyright than the present United States 
law. This argument is presented in the Senate study. However, we do not 
believe that this should be the criterion for the proper length of copyriglit 
protection in the United States. 

Under the Constitution. Article 1, Section 8, the purpose of a copyright is 
to promote the progress of science and useful arts by securing for limited times 
to authors and inventors the exclusive right to their respective writings and dis- 
coveries. While it may be urged that a copyright term of 28 years plus an addi- 
tional 28 years might be insufficient to protect the interests of an author in his 
writings in view of the lengthening of the ordinary life span in modern times, 
the proposed Bill, by its extended duration of the copyright term, appears to 
carry the protection far beyond the contemplation of the framers of the Con- 
stitution. As an alternative, we propose to provide for the lengthening of the 
term of the copyright duration to be at least coextensive with the lifetime of 
the author. In this way, the author will be insured protection of liis work for 
at least as long as he may live. Thus, we propose the substitution of an alter- 
native provision to Section 302(a) as follows : 

(i\) In General.— Copyright in a work created on or after January 1. 1977, 
subsists from its creation and, except as provided by the following subsec- 
tions, endures for a term consisting of 56 years or the life of the author, 
whichever is greater. 
A conforming amendment should also be made in Section 302(b). The provi- 
sions of Section 302(c) should be modified to limit the duration of anonymous 
works, pseudonymous works, and works made for hire, to a period of 56 years 
from the year of their ci-eation or first publication. 

Our proposal would carry out the constitutional concept of promoting the 
progress of science and useful arts. A ufV^enr roDviiglit term, as may be 
extended by the lifetime of the author, is believed more than adequate to pro- 
mote this constitutional purpose. 

It has also been urged that growth in communications media has lengthened 
the commercial life of manv works. This does not .ins<^ify lengthening the term 
of a copyright beyond .56 years or the lifetime of the author because a lengthened 
commercial life is not necessarily consistent with the basic constitutional 
purnose. 

The basic question with respect to copyright duration to be answered by the 
Congress is whether a doubling of the present copyright term for manv works 
is desirable to promote the progress of science and useful arts. Other forms 
of federal protection for creative works, such as pa*-ents for useful devices, 
plants, and designs, are all for periods of no more than 17 years. Copvrights 
in writings are already in a preferred position. We do not" believe that the 



155 

promotion of the progress of science and useful arts requires a doubling of the 
possible 56-jear copyright period. Our alternative proposal would accommodate 
such valid concerns as may exist regarding the present law and, at the same 
time, carry out constitutional goals. 

Section 405 deals with the effect of omission of the copyright notice. Under the 
present Act, omission of notice on published copies of a work ordinarily places the 
work in the public domain (17 IJ.S.C. §21). However, if such notice is acci- 
dentally omitted from a particular copy or copies, copyright is not lost; but in- 
nocent infringers who are misled by the accidental omission are not liable for 
infringement. Under Section 405 of the Bill, omission of notice from "a relatively 
small number" of copies or phonorecords publicly distributed will not invalidate 
the copyright whether or not such omission was accidental. Moreover, the omis- 
sion of notice will not invalidate the copyright in a work if registration for the 
work is made within five years after the publication without notice and a rea- 
sonable effort is made to add notice to all copies or phonorecords distributed to 
the public in the United States after the omission is discovered. As under the 
present law, innocent infringers who are misled by the omission of notice would 
not be liable in actual or statutory damages for infringement. But under H.R. 
2223, they might have to surrender profits gained through the infringement and 
be subject to injunction or payment of a reasonable license fee for continuing 
their activity (Section 405(b)). These provisions would delete from 17 U.S.C. 
§ 21 the provision that no permanent injunction shall be had unless the proprietor 
of the copyright shall reimburse the innocent infringer his reasonable outlay in- 
nocently incurred if the court, in its discretion, shall so direct. 

A copyright should be protected from invalidation only when the failure to pro- 
vide notice was the result of an accident or mistake or in violation of the copy- 
right owner's written requirement that, as a condition of authorization of public 
distribution, the copies or phonorecords bear the prescribed notice, and distribu- 
tion of only a small number of such items has been made to the public. To permit, 
as proposed in Section 405, a copyright owner to issue an entire publication of his 
worli: without notice and yet enforce the copyright tends to negate the purpose 
of notice. Although innocent infringers would incur no liability, they would still 
have to establish their innocence even where the omission was deliberate in many 
cases. We suggest that the Section specifically be limited to the effect of omission 
of the copyright notice by accident or mistake. We also believe it advisable that 
the words "particular copy or copies", contained in the present statute, be used 
instead of the broader and more general words "a relatively small number," 
found in Section 405, to designate the limits within which notice may be omitted 
without loss of copyright. And we think the discretion in the court to order reim- 
bursement to the innocent infringer should be retained. 

Subject to specified exceptions, Section 601 provides that the importation into 
or public distribution in the United States of more than 2,000 copies of a work 
consisting preponderantly of nondramatic literary material in English by an 
American or resident alien author and protected under the Copyright Code is pro- 
hibited, unless the portions consisting of such material have been manufactured 
in the United States or Canada. This Section would reenact in modified form a 
previous, highly protectionist nontariff trade barrier (17 U.S.C. 16, 107). We do 
not believe that there is either a necessity or desirability for such a provision 
which creates an absolute bar to certain books published abroad. 

Section 601 is entirely unrelated to questions of copyright. It does not protect 
authors at all. On the contrary, Section 601 decreases the value of copyrights by 
preventing an American author from granting worldwide publication rights to 
an English publisher who offers more favorable compensation than an American 
publisher. Whatever the merits of the original "infant industry" justification for 
the manufacturing clause, the restriction is clearly unnecessary and inappro- 
priate today in light of the strength and success of our industry "and in light of 
our nation's commitment to eliminate nontariff barriers to international trade 
and ensure vigorous competition. 

For these reasons. Section 601 should be stricken from the Bill, and the "manu- 
faotiiring clause" should be eliminated from our copyright law. 

With respect to the Department's anti-piracy program in the sound recording 
field, we note the following as areas where amendments are desirable : 

Section 506 should be amended to provide for forfeiture of infringing articles 
in criminal cases resulting in convictions, and a new section should be added to 
provide for summary and judicial forfeitures in criminal cases. 



156 

At present, the government has no clear-cut authority to destroy infringing ar- 
ticles which have been seized or otherwise obtained in the investigation or pros- 
ecution of a tape piracy case or, for that matter, any criminal copyright infringe- 
ment case. This laclv of specific authority has resulted in critical storage problems 
for many F.B.I, and U.S. Marshals' offices throughout the country and poses the 
embarrassing possibility that the government may be ordered to return known 
infringing articles to a convicted defendant. 

With proper amendments, H.R. 2223 could eliminate this most serious problem. 
We strongly urge the following revisions : 

1. There should be added to Section 506 a new subsection which should be 
designated as : 

(b) When any person is convicted of any violation of subsection (a), the 
court in its judgment of conviction shall, in addition to the penalty therein 
prescribed, order the forfeiture and destruction or other disposition of all in- 
fringing copies or phonorecords and all implements, devices, equipment or 
other articles of whatever kind used or intended to be used in the manufac- 
ture, use, or sale of such infringing copies or phonorecords. 
Present subsections (b), (c), and (d) need to be redesignated as subsections (c), 
(d), and (e), respectively. 

A conforming amendment should be made to Title 18, United States Code, Sec- 
tion 2318, so that it reads as follows : 
Section 2318 : 

{a) ( present Section 2318 ) . 

(b) When any person is convicted of any violation of subsection (a), 
the court in its judgment of conviction shall, in addition to the penalty 
therein prescribed, order the forfeitui-e and destruction or other disposition 
of all counterfeit labels and all articles to wliich counterfeit labels have been 
affixed or wliicii were intended to have had such labels affixed. 

(c) Except to the extent they are inconsistent with the provisions of 
tliis title, all provisions of section [new forfeiture section described below] 
Title 17, United States Code, are applicable to violations of subsection (a). 

2. A new section should be added reading as follows : 

(a) All copies or phonorecords manufactured, reproduced, distributed, 
sold, or otherwise used, intended for use, or possessed with intent to use in 
violation of section 506(a), and all plates, molds, matrices, masters, tapes, 
film negatives, or other articles by means of which such copies or phono- 
records may be reproduced, and all electronic, mechanical, or other devices 
for manufacturing, reproducing, assembling, using, transporting, distribut- 
ing, or selling such copies or phonorecords may be seized and forfeited to the 
United States. 

(b) All provisions of law relating to (1) the seizure, summary and judi- 
cial forfeiture, and condemnation of vessels, vehicles, merchandise, and bag- 
gage for violations of the customs laws contained in Title 19, United States 
Code, (2) the disposition of such vessels, vehicles, merchandise, and bag- 
gage or the proceeds from the sale thereof, (3) the remission or mitigation 
of such forfeiture, (4) the compromise of claims, and (5) the award of 
compensation to informers in respect of such forfeitures, shall apply to 
seizures and forfeitures incurred, or alleged to have been incurred, under 
the provisions of this section, insofar as applicable and not inconsistent with 
the provisions of this section ; except that such duties as are imposed upon 
the collector of customs or any other person with respect to the seizure and 
forfeiture of vessels, vehicles, merchandise, and baggage under the provi- 
sions of the customs laws contained in Title 19 of the United States Code 
shall he performed with respect to seizure and forfeiture of all articles 
described in subsection (a) by such officers, agents, or other persons as may 
he authorized or designated for that purpose by the Attorney General. 

Proposed Section 114 should be amended to provide for the copyright owner 
of a sound recording to have the right to make derivative works or it should be 
amended to clarify that persons other than the copyright owner do not have such 
a right absent consent of the copyright owner, notwithstanding the fact that 
the sound recording copyright owner would have no such right. 

Section 114 limits the specific rights of a sound recording copyright owner to 
those granted to copyright owners by parts (1) and (3) of Section 106. That is, 
sound recording copyright owners have the right : 

(1) to reproduce the copyrighted work in copies or phonorecords; and 

******* 



157 

(3) to distribute copies, etc. 
The right to prepare derivative works based on the copyrighted work (part 2 
of Section 106) is withheld from a sound recording copyright owner despite Sec- 
tion 103 which states that such works are copyrightable and despite the fact 
that sound recording copyright owners are entitled to make and copyright 
derivative works under present law, 17 U.S.C. § 7. There is a real possibility that 
an unauthorized duplicator who made a "derivative" work by slightly altering 
the original copyrighted sound recording would claim that he did so legally since 
the copyright owner is given no exclusive right to make derivative works. 

This "potential legal problem could be eliminated by including part (2) of Sec- 
tion 106 in the list in Section 114 of exclusive rights granted to a sound recording 
copyright owner — an action which would grant to sound recording copyright 
owners no more rights than they presently possess. Section 506 should be 
amended accordingly to include part (2) of Section 106. 

A third area for concern is proposed Section 301 (pages 32-33), subparagraph 
(b), which states : 

Nothing in this title annuls or limits any rights or remedies under the 
common law or statutes of any state with respect to : 
******* 

(3) activities violating rights that are not equivalent to any of the 
exclusive i-ights within the general scope of copyright . . . including breaches 
of contract, breaches of trust, invasion of privacy, defamation, and decep- 
tive trade practices. . . . 

We believe this language could be read as abrogating the anti-piracy laws 
now existing in 29 states relating to pre-February 15, 1972, sound recordings on 
the grounds that these statutes proscribe activities violating rights "equivalent 
to . . . the exclusive rights within the general scope of copyright. , . ." Certainly 
such a result cannot have been intended for it would likely effect the immediate 
resurgence of piracy of pre-February 15, 1972 sound recordings. (Note: in any 
event, there would be no effect on sound recordings produced after February 15, 
1972. since it would appear that the .states cannot constitutionally enforce their 
anti-piracy laws against the unauthorized duplication of these later recordings.) 
We therefore urge that Section 301(b) be amended to include a new subsection 
(4) as follows: 

(4) Sound recordings fixed prior to February 15, 1972. 

Proposed Section .506(a) should be amended to correct the disparity of sanc- 
tions between second-time infringers of sound recording and motion picture copy- 
rights and .second-time infringers of other copyrights. As written. Section 506(a) 
I>rovides for a maximum $10,000 fine and three years imprisonment for second- 
time infringers of all copyrights but sound recording and motion picture copy- 
rights. Infringers of these latter two categories are subject, upon conviction of a 
second offense, to a maximum fine of $50,000 and two years impi-isonment. We 
suggest that these latter infringements are sufficiently serious to warrant at 
least the same maximum imprisonment for second offenders as is applicable to 
second-time infringers of other copyright's, as well as the larger fine. The term 
of imprisonment prescribed should therefore he at least three years. 

We support the substitution of "for purposes of commercial advantage or 
private financial gain" for the present requirement in 17 U.S.C. § 104 that, to be 
criminal, infringements must be done "for profit". The provision in present Sec- 
tion 104 for aiders and abettors has been removed, but these individuals will 
be liable to prosecution under 18 U.S.C. § 2. 

From the standpoint of making deterrents meaningful beyond the financial de- 
terrent and provide a penalty for those who can "take" financial losses as a cost 
of business, it is recommended that a maximum one-year term of imprisonment l>e 
included in the sanctions under proposed Sections 116(d) and 506 (b), (c), and 
(d). all of which are provisions the Department suoports. 

We also note that Section 115. subparagraph (a) (1). states explicitly and with 
clarity what four courts of appeals ^ have ruled is the scope of compulsory licens- 
ing under present law. namelv. that absent authorization by the owner of a 
composition copyright, the duplication of a sound recording embodying a copy- 



T^.TotuJora Mufn'c PuMixhivQ Co. T. Melodi/ Recorrlin (;■<>, Inc., 506 F. 2d .39.^ (T.A. ?,. 
r»o(>ember 27. 1974) ; Fame PuMishina Co., Tnc. v, Alahnmn Cnstom Tape. Inc.. 507 F. 2(1 
667 (C.A. 5. .Tanuarv 31. 1975) : Duchei<.<? Music Corp. v. Stern 4.5S F. 2d 1305 fC.A. 9>, 
certiorari denied, sub nom. Rosner v. Duchess Mii-fic Corp., 409 U.S. S47 ; and Edward B. 
Mnrlcs Ulnsic Corp. v. Colorado Magnetics, Inc.. 497 F. 2d 2S9 (C.A. 10). certiorari denied, 
stth nom. Colorado Magnetics, Inc. v. Edward Marks Music Corp., 419 F.S. 1120. 



158 

righted musical composition is an infringement of tlie composition copyright oven 
though the duplicator tenders royalty payments and otherwise attempts to com- 
ply with present compulsory licensing provisions. This is contained in the linal 
sentence of suhpargraph ( a ) ( 1 ) , which reads : 

A person may not obtain a compulsory license for use of the [nondramatie 
musical] work in the duplication of a sound recording made by another. 
Since this prohibition is not limited to copyrighted sound recordings, the effect is 
to prevent the operation of the cominilsory license mechanism for making copies 
of any sound recordings embodying copyrighted musical compositions. The De- 
partment wholeheartedly supports this pro\ision. 

Section 804 deals with procedures before the tribunal which determines 
adjustment of copyright royalties and their distribution under specified sections 
of the Bill. We object to the provision in subsection (e) of this ^Section that 
the Senate Committee on the Judiciary and the House of Representatives 
^Committee on the Judiciary may waive a requirement that a final decision in 
■each proceeding be rendered by the tribunal witiiin one year from tlie certification 
of the panel by the Register of Copyrights. The constitutional division of duties 
among the three principal branches of the government places in the Congress the 
legislative responsibilities. However, once a law lias been enacted, it is for the 
Executive Branch to carry out the intents and purposes of the law as directed 
by the Congress. In our view, legislation, once enacted, should not be modified 
or waived by actions of a committee of the Congress. It is suggested that if 
waiver of the one-year requii-ement is desirable under particular circumstances, 
tliese circumstances be generally outlined in tlie Bill and that the tribunal be 
given authority upon good cause shown to extend the period of time for 
rendering decisions. 

Of particular concern to this Department is the new form of copyright protec- 
tion provided by Title II of the Bill. This new form of protection is a hybrid 
between design patents (35 U.S.C. § 171-173) issued for a period of up to 14 
years by the Patent OfHce for new, original and ornamental designs of articles 
of manufacture and the copyriglit laws which provide for registration and issu- 
ance of certificates of copyrights for the writings of authors. The new protection 
that is provided under the Bill is not presently available under the copyright 
laws and can only be obtained through a design patent after an examinati(jn 
procedure which dtr^termiues whether the ornamental design meets the criteria 
of patentability, including unobviousness in view of the prior art, as provided 
by 35 U.S.C. 102, 103. While the protection period as proposed for the new type 
of ornamental design protection is only a maximum of ten years as compared 
with the maximum of 14 years available for a design patent, it is granted without 
the need of meeting the novelty and unobviousness requirements of the patent 
statute. 

A threshold consideration before finding that the needs are such that this new 
type of protection should be available is whether the benefits to the public of 
such protection outweigh the burdens. We believe that insufficient need has 
been shown to date to justify removing from the public domain and possible 
use by others of the rights and benefits proposed under the present Bill for such 
ornamental designs. We believe that design patents, as are granted today, are 
as far as the public should go to grant exclusive rights for ornamental designs 
of useful articles in the absence of an adequate showing that the new protection 
will provide substantial benefits to the general public whicJi outweigh removing 
such designs from free public use. While it has been said that the examination 
procedure in the Patent Office results in serious delays in the issuance of a design 
patent so as to be a significant problem and damaging to "inventors" of orna- 
mental designs of useful articles, the desirable free use of designs which do not 
rise to patentable invention of ornamental designs of useful artir-Ies are believed 
to be paramount. If the contribution made to the public by the creation of an 
ornamental design of a useful article is insufficient to rise to patentable novelty, 
the design should not be protected by law. The Department of Justice has con- 
sistently opposed legislation of this character. 

To omit federal statutory protection for the form of a useful object is not to 
deny the originator of that form any remedy whatsoever. If he can prove that 
competitors are passing off their goods as the originator's by copying the prod- 
uct's design, he may bring an unfair competition action against such copyists. 
Crescent Tool Co. v. Eilborn d Bishop Co., 247 Fed. 299 (C.A. 2 1917). See, also, 
Sears, RoeMck & Co. v. Stiffel Co., 376 U.S. 225 (1964), and Compco Corp. v. 
Day-Brite Ughting, Inc., 376 U.S. 234 (1964). 



159 

Quite apart from our opposition to the merits of Title II, we also oppose 
enactment of the design protection provisions of this Bill which would provide 
a new class of actions against the United States since the Bill proposes to amend 
Section 1498(a) to add the new type of design copyrights to the remedies avail- 
able to inventors against the United States who have been issued United States 
patents when they are used by the United States without authorization of tlie 
owner. For example, by amending Section 1498 ( a ) in this way, the Congress will 
he creating a completely new problem area fraught with difficulties for govern- 
ment procurement. Government contractors who "reverse engineer" alleged 
trade secrets in bidding competitively for government contracts would now be 
faced with the necessity of designing around the "packaging looks" of a product 
covered by a design copyright which may not rise to the stature of patentable 
novelty under the patent iaws. Thus, the "non-utilitarian looks" of a vehicle 
which'may not be protecta5)le as a design patent would be given copyright-type 
protection under the Bill. We, therefore, strongly oppose the new type of protec- 
tion proposed by Title II of the Bill. 

Section 1498(a) is also amended to provide for the first time for suits against 
the United States for unauthorized use of inventions, whether patented or 
unpatented. Thus, it would appear to permit a suit based on a trade secret con- 
taining an unpatented invention. This, also, we strongly oppose as inconsistent 
with limiting claims against the United States in 28 U.S.C. 1498 to those recog- 
nized by the patent and copyright laws. No adequate showing has been made 
that this type of protection, on balance, is in the public interest. 

The provision in Section 220 whereby simultaneous suit can be filed against 
the Administrator who carries out the provisions of Title II (§230) and an 
alleged infringer of the design in that it subjects an alleged infringer to suit in 
the same action even though the threshold question whether a certificate can 
issue under the provisions of the law has not been decided as between the Admin- 
istrator and the applicant for registration is believed undesirable. While it is 
not likely that the issuance of certificates of registration will be frequently 
refused if certain basic requisites of applications are met, nevertheless, if a 
situation should arise of a refusal of issuance of a certificate of registration by 
an Administrator; this should require a separate and distinctive action to 
secure issuance thereof, especially since governmental functions should not 
normally be mixed with the proprietary enforcement functions of courts in 
adjudicating private rights and remedies. 

Certain technical corrections appear indicated in Title II as follows : 

P. 66. lines 22 and 23 appear reversed. 

P. 73, line 22, "Section 311" should read— "Section 211". 

P. 73, line 26, "mortgage" should read — "mortgagee". 

Mr. Kastenmeier. We would next like to call Mr. Rene D. Tegtmeyer, 
an Assistant Commissioner for Patents, representing the U.S. Depart- 
ment of Commerce. Would you please identify your colleagues. 

Mr. Tegtmeyer. Thank you, Mr. Chairman. With me today are 
David Allen and Rosemary Bowie, both of whom are from the Com- 
merce Department and in particular from Patents. 

Mr. Kastenmeier. I notice you have a prepared statement. You may 
proceed. 

[The prepared statement of Mr. Tegtmeyer follows :] 

Statement of Rene D. Tegtmeyer, Assistant Commissioner for Patents, 

U.S. Department of Commerce 

Mr. Chairman : I appreciate this opportunity to appear before your subcom- 
mittee to express the views of the Department of Commerce and its support 
for H.R. 2223 with certain modifications which I shall explain. 

H.R. 2223 is the result of 20 years of extensive eftort by the Copyright Office 
of the Library of Congress and the Congress to revise the copyright law. I 
understand that the testimony of the Register of Copyrights included a discus- 
sion of the background concerning this effort and an outline of the principal 
provisions of the bill. I will not attempt to be repetitive in this respect. 



160 

H.R. 2223 is divided into two titles ; Title I. General Revision of the Copyriglit 
Law and Title II. Protection of Original Ornamental Designs. As the Depart- 
ment views each title from a slightly different perspective, I would like to com- 
ment on them separately this morning. 

The Department of Commerce would like to highlight three specific areas in 
our comments on Title I : 

1. The lack of protection in U.S. government works, 

2. Preemption of state law with respect to unfair competition, and 

3. The inclusion of Canada in the manufacturing requirement. 

PBOTECTION OF GOVERNMENT WORKS 

Fii'st, proposed section 105, in prohibiting copyright protection for govern- 
ment works, creates a special problem for the Department of Commerce. Under 
Title 15, United States Code, Chapter 23. the Secretary is required to establish 
and maintain a clearinghouse for the collection and dissemination of scientific, 
technical and engineering information. This is done through the Department's 
National Technical Information Service, called NTIS. 

As a matter of policy. Chapter 23 requires that each of the services and func- 
tions provided be self-sustaining and self-liquidating, as much as possible, con- 
sistent witli its objectives. The Chapter specifically states its policy that the 
general public shall not bear the cost of pulillcations and other services which 
are for the special use and benefit of private groups and individuals. 

With the increased use of reprography, the difficulty of meeting the require- 
ment to disseminate technical information on a ba.sis that pays its own way has 
increased. It is cheaper for a purchaser to buy one copy of an expensive techno- 
logical publication and photocopy it rather than to buy the number of copies 
that are actually needed. The lack of copyright protection for most periodicals 
made available by NTIS makes this practice legal. However, if NTIS cannot 
recoup the cost of preparing and handling its publications, the dissemination, 
of this material cannot be maintained on a self-sustaining and .self-liquidating 
basis. 

An example of the potential harm which could arise from this lack of copy- 
right can be seen in the publication. "Directory of Computerized Data Files and 
Related Software Available from Federal Agencies— 1974". This doctiment v.-as 
prepared in response to the large number of requests received for this informa- 
tion. It was prepared at NTIS expense. The approximately $150,000 cost of sur- 
veyiiig Federal agencies to gather the information and publishing the directory 
was not reimbursed from appropriations. In order to recoup NTIS expenses, a 
price of .$60 per copy was set for this 150-page directory. Anyone choosing to 
make and sell competing photocopies could do so for a fraction of this price. 
Thus, it was necessary for NTIS to risk substantial moneys to produce such 
a pi-oduct in the absence of copyriglit protection. 

Unauthorized photocopying is especially serious in connection with foreign 
sales ; out of the eight largest customers of NTIS, seven are foreign entities 
which engage in such cop.ving practices. It has also caused NTIS to be limited 
in pricing its periodicals due to the much lower costs of duplication done by 
resale marketers and potential customers of government works which are not 
copyrighted. 

For these reasons, we believe that copyright protection should be provided 
works distributed imder Chapter 23, Title 15 of tlie United States Code, similar 
to that provided under § 290(e), Chapter 7(a), Title 15, for standard reference 
data prepared by the Department of Commerce under the provisions of thnt 
Chapter, or in the alternative that the Congress reconsider the statutory 
requirement that the services and functions provided under Chapter 23 be 
self-sustaining and self-liquidating. 

PKEEMPTION 

Second, we agree with the preemption of State copyright laws pursuant to 
section ,301 (a), and with the principle embodied in tliat section that there should 
be a single, federal system for copyright. However, the language of subsection 
(b) (8) of section 301 should, in our view, be modified to make it clear that the 
phrase "all rights in the iwinre of copyriglit" (italics added) will not be 
construed to preempt parts of the Stnte law of unfair competition which 
are now codified in statute or established by Federal and State Court decisions 
applying the common law. 



161 

Section 301(b) (3) is intended to exempt State unfair competition law from 
the preemptive effect of section 301(a). Among tlie rights and remedies not 
l)reempted are those arising from the violation of rights "not equivalent to any 
exclusive rights within the general scope of copyright". These "not equivalent" 
rights are said to include "breaches of contract, breaches of trust, invasion of 
privacy, defamation, and deceptive trade practices such as passing off and false 
representation." The problem we have is that the listing is incomplete and the 
language is more limited than that which would describe the present scope 
of established State unfair competition law. 

As a solution, we propose a more comprehensive and inclusive listing of unfair 
competition torts in subsection (b) (3). The proposed amendment : 

"(3) Activities violating rights that are not equivalent to any of the exclusive 
rights within the general scope of copyright as specified by section 106, including 
breaches of contract, breaches of trust, invasion of privacy, defamation, and 
Cdeceptive trade practices such as passing off and false representation] acts, 
trade practices, or courses of conduct which cause or are likely to cause confusion, 
mistake or deception, or which are likely to result in passing off, false or tnislead- 
ing representations, disparagement, ivrongful disclosure or misappropriation of 
<?. trade secret or confidential information, or activities ivhich othertvise con- 
stitute unfair competition hy misrepresentation or misappropriation.'" (Deletions 
bracketed ; additions italicized ) 

In our opinion, this proposed amendment would more accurately state the 
range of unfair competition torts which are now regulated by the states, so that 
the examples listed will not be limiting. 

It should be noted that the phrase "unfair competition by . . . misappropria- 
tion" is included in our amendment. Obviously, the "misappropriation" of all 
of the words of a literary work would be in the nature of copyright and State 
laws in this area should be preempted. However, we do not believe that the 
entire body of State unfair competition law based upon the landmark Supreme 
Court decision in International News Service v. Associated Press (248 US 215 
(1918)) should be preempted. While some State decisions relying on the INS 
vane may be held inapplicable under section 301(a), we believe that such a remedy 
should continue to be available for the type of conduct proscribed in the INS 
case. 

MANUFACTtTRING CLAUSE 

Third, proposed section 601, kno^'u as the "manufacturing clause", essentially 
requires that English language, nondramatic literary works by Ametricau 
domiciled authors must be printed in the United States or Canada. The present 
copyright statute does not include such a reference to Canada. The rationale for 
including Canada appears to be that wage standards in the U.S. and Canada are 
comparable. 

We are opposed to the inclusion of Canada in this provision. Such an inchision 
would be a unilateral concession which we believe should be withheld for possible 
use by the United States as negotiating leverage in seeing compensating benefits 
during multilateral trade negotiations. We note that both houses of Congress 
indicated forcibly that United States negotiators should obtain reciprocity for 
United States concessions when they enacted the Trade Act of 1974. 

Additionally, including Canada in this provision would raise problems in our 
relations with other nations, in view of the "most favored nation" obligations in 
the General Agreement on Tariff and Trade (GATT) and other treaties. Thus, 
enactment of the bill containing this provision might bring about the possibility 
of retaliation against the United States from countries other than Canada and 
might otherwise hamper our efforts to eliminate non-tariff trade barriers in the 
interest of our overall international trade objectives. 

TITLE II 

Title IT of H.R. 2223 would provide a new system for the protection of origi- 
nal ornamental designs of useful articles. 

Designs eligible for protection under this title would have to be original. They 
cannot be staple or commonplace, or elements commonly used in the relevant 
trade, or dictated solely by utilitarian functions, or three dimensional features 
of wearing apparel. However, there would be no requirements that the design be 
new, and therefore no search of prior designs would be necessary in order to 
grant protection. 



162 

Title II would provide pi-otection only against copying by others and would 
not give an exclusive right in the design itself. The term of protection would be 
for five years, renewable for one additional five-year term. 

Infringement would include making, importing, selling or distributing for sale 
an article having a design copied from a protected design. Importantly however, 
an Innocent seller or distributor would be an infringer only if he failed to reveal 
his source and then reordered the article after having received a personal written 
notice of the design protection. This is a greatly reduced level of liability when 
compared with that contained in Title I where a seller or distributor is liable as 
an infringer for the sale of a single unauthorized copyrighted work. 

Design patent protection would continue to be available but a design patent 
and design protection under this title could not be maintained concurrently. Also, 
copyright protection for designs would be continued, except that if copyright pro- 
tection and a design registration were obtained, the copyright protection would 
not extend to utilization of the design in the useful article protected by the 
design registration. 

Today, original ornamental designs for useful articles may be eligible for fed- 
eral protection under the patent laws or in some instances, under the copyrigiit 
law. In recent years, however, it has been generally agreed that the design 
patent laws do not provide adequate protection against design piracy. Because of 
the relatively short-lived popularity of many designs, a patent in some cases 
cannot be secured quickly enough to provide any useful protection. 

The expense in obtaining a design patent today results primarily from the 
fact that the Patent and Trademark Office must examine an application to deter- 
mine whether it is "new, original, and ornamental". At the present time it takes 
almost two years to obtain a design patent. Until the patent is granted, the 
designer or manufacturer markets the designs at his own peril, subject to it 
being freely copied. The alternative of withholding the design from the market 
until the patent issues is impractical in many industries where styles change 
rapidly and may even be seasonal. 

Since the Supreme Court decision in Mazer v. Stein in 1954, the Copyright OflSce 
has accepted an increasing variety of registrations for designs embodied in useful 
articles so long as they meet the criteria of being artistic. However, there are 
still many types of designs for which copyright protection is unavailable, for 
instance, furniture and appliances. Moreover, the term of protection in the 
proposed copyright law, life of the author plus fifty years, is much too long for 
industrial designs which have a relatively short commercial life. 

To exemplify the problems that exist under current practice we note complaints 
from domestic manufacturers that their designs have been copied in certain 
foreign ureas, particularly in the far east. The imitations are then imported 
into and sold in the United States where they often enjoy a considerable price 
advantage over the article produced in the United States. We believe that Title 
II fills the need for more effective protection for design originators from this type 
of unfair competition because it provides quick, inexpensive and short term 
protection for original designs. 

The Department of Commerce favors this legislation. However, we would like 
to highlight some of our specific recommendations which will bring title II of 
the bill more in line with other intellectual property protection both nationally 
and internationally and will generally improve the protection offered. 

Section 204(a) provides that protection for a design shall begin on the date 
when the design is first made public. In subsequent sections it is made clear 
that the design must be made public before an application for protection can 
be filed. This provision will put U.S. residents at a disadvantage if they desire 
to obtain protection of their design in foreign countries, many of which, for 
example Japan, refuse protection for a design which has been made public 
prior to the filing of an application for registration. 

In order to prevent the possible loss of protection in foreign countries, it should 
not be required that the design be made public prior to registration. Instead, pro- 
tection should commence on the date that the registration is published in the 
United States as provided for in section 212(a) of the bill. Protection which 
begins when the registration is published would provide notice to the public 
and would not penalize the person desiring to protect his design outside of the 
United States. This would also make Title II consistent with Title I which has 
eliminated the prior publication requirement for copyright protection. 

Specific statutory language to effect this change will be submitted to the 
Congress at a later date. 



163 

Section 209 appears to limit an application to a single desijjn. This limitation 
appears to be unnecessary. An application containing ten or twenty designs 
would be no more difficult to process than an application containing one design 
because no search of prior desig-ns is necessary. A multiple design application 
would save the applicant paperwork, thus, save him time and uiouty. It would 
also save the Administrator processing time over an equal number of single 
applications. This might result in a lower fee per design. As long as a separate 
fee is paid for each design contained in the application there would be no loss 
of revenue and both the applicant and the Administrator would beneHt. We have 
therefore recommended that multiple design applications be permitted under 
this title. 

Title II requires that the application be accompanied by a statement setting 
forth facts about the design, and that such statement must be under oath. Similar 
requirements in Title 35. United States Code, covering patent and trademark 
practices permit such required statements to be submitted with a written declara- 
tion in accordance with IS U.S.C. 1001 making a false statement punishable by a 
fine or imprisonment and jeopardizing the validity of the document. We believe 
that such a provision should be applicable to the application for design registra- 
tion. Therefore, such declaration should be permitted in lieu of an oath. 

Tlie present fee provisions of section 215 of this title are unacceptable to the 
Department of Commerce. In our opinion, the design registration system should 
be completely self-supporting because the benefits of the design registration 
system only accrue to the individual recipient of the registration. Thus, the 
public should not be expected to bear any portion of the expense of a design 
registration system. 

In a study done in 1964, the $15 fee for the design registration under a bill 
similar to the present one, was found to be inadequate to provide 100% cost 
recovery. The $15 application fee would be even more inadequate today. 

Rather than propose different fee levels for each of the functions specified in 
section 215 ( a ) , the Department of Commerce proposes that section 215 be amended 
in its entirety to give the Administrator the discretion to establish charges suffi- 
cient to recover 100% of the cost of operation of the design registration system. 
A similar approach is currently being considered by Congress in various bills ta 
revise the patent laws. 

TESTIMONY OF RENE D. TEGTMEYER, ASSISTANT COMMISSIONER 
FOR PATENTS, DEPARTMENT OF COMMERCE 

Mr. Tegtmeyer. ISIr. Chairman, I appreciate this opportunity to 
appear before your subcommittee to express the views of the Depart- 
ment of Commerce and its support for H.R. 2223 with certain modifica- 
tions w^hich I shall explain. 

TI.R. 2223 is the result of 20 years of extensive effort b}' the Copyright 
Office of the Library of Congress and the Congress itself to revise 
the copyright law. I understand that the testimony of the Register 
of Copyrights included a discussion of the background concerning 
this effort and an outline of the principal provisions of the bill. I will 
attempt not to be repetitive in this respect. 

H.R. 2223 is divided into two titles : Title I, General Revision of the 
Copyright Law; and Title II, Protection of Original Ornamental 
Designs. As the Department views each title from a slightly different 
perspective, I would like to comment on them sepaiately. 

The Department of Commerce would like to highlight three specific 
areas in our comments on title I : 

1. The lack of protection in U.S. Government works and the effect 
on one function of the Department of Commei'ce, 

2. Preemption of State law with respect to unfair competition, and 

3. The inclusion of an exemption for Canada in the manufacturing 
requirements. 



164 

First, proposed section 105, in prohibiting: copyright protection for 
Government works, creates a special problem for the Department 
of Conmierce. Under title 15, United States Code, chapter 23, the 
Secretary is required to establish and maintain a clearinghouse for the 
collection and dissemination of scientific, technical, and engineering 
information. This is done through the Department's National Tech- 
nical Information Service, called NTIS. 

As a matter of policy, chapter 23 in section 1153 requires that each 
of the services and functions provided be self-sustaining and self- 
liquidating, as much as possible, consistent with its objectives. The 
chapter specifically states its policy that the general public shall not 
bear the cost of publications and other services which are for the special 
use and benefit of private groups and individuals. 

With the increased use of reprogi'aphy, the difficulty of meeting the 
requirement to disseminate technical information on a basis that pays 
its own way has also increased. It is cheaper for a purchaser to buy 
one copy of an expensive technological publication and photocopy 
it rather than to buy the number of copies that are actuallj^ needed. 
The lack of copyright protection for most periodicals made available 
by NTIS makes this practice legal. If NTIS cannot recoup the cost 
of lu-eparing and handling its publications, the dissemination of this 
material cannot be maintained on a self-sustaining and self-liquidating 
basis. 

An example of the potential harm which could arise from this lack 
of copyright can be seen in the publication, "Directory of Computer- 
ized Data Files and Related Software Available from Federal Agen- 
cies— 1974." 

This document was prepared in response to the large number of 
requests received for this information. It was prepared at NTIS 
expense. The approximately $150,000 cost of surveying Federal agen- 
cies to gather the information and publishing the directory was not 
reimbursed from appropriations. In order to recoup NTIS expenses, a 
price of $80 per copy was set for this 150-page directory. Anyone 
choosinrr to make aiid sell competing photocopies could do so for a frac- 
tion of this price. Thus, it was necessary for NTIS to risk substantial 
moneys to produce such a product in the absence of copyright 
protection. 

I^nauthorized photoco):>3^ino: is especially serious in connection with 
foreign sales; out of the eight largest customers of NTIS, seven are 
foreign entities which engage in such copving practices. It has also 
caused NTIS to be limited in pricing periodicals due to the much lower 
cost of duplication done by resale marketers and potential customers of 
Go^-emment works which are not copyriglited. 

For these reasons, we believe that copyright protection should be 
provided for M^orks distri]>uted under chai)ter 23, title 15, similar to 
that provided under ^ 290(e), chapter 7(a), title 15, for standard 
reference data prepared by the Departmen.t of Commerce under the 
provisions of that chapter, or in the alternative that the Congress 
reconsidpr the statutory requirement that the services and functions 
provided under chapter 23 by NTIS be self-sustaining and self- 
liquidating. 

Turning to the question of preemption, we agree with the preemp- 
tion of State copyright laws pursuant to section 301(a), and with 



165 

the principle embodied in that section that there shoiikl be a single, 
Federal system for copyright. However, the language of subsection 
(b) (3) of section 301 should, in our view, be modified to make it clear 
that the phrase "all rights in the nature of copyright" will not b© 
construed to preem})t parts of the State law of unfair competition 
which are now codified in statute or established by Federal and State 
court decisions applying the common law. _ . 

Section 301(b) (3) is intended to exempt State unfair competition 
law from the preemptive effect of section 301(a). Among the rights 
and remedies not preempted are those arising from the violation of 
rights "not equivalent to any exclusive rights within the general scope 
of copyright." These "not equivalent" rights are said by the bill to 
include "breaches of contract, breaches of trust, invasion of privacy, 
defamation, and deceptive trade practices such as passing off and false 
representation." The problem we have is that this listing is incom- 
plete, and the language is more limited than that which would de- 
scribe the present scope of established State unfair competition law. 

As a solution, we propose a more comprehensive and inclusive listing 
of unfair competition torts in subsection (b) (3) . The proposed amend- 
ment : 

(3) Activities violating rights that are not equivalent to any of the exclusive 
rights within the general scope of copyright as specified by section 106, including 
breaches of contract, breaches of trust, invasion of privacy, defamation, and 
acts, trade practices, or courses of conduct which cause or are likely to cause 
confusion, mistake or deception, or which are likely to result in passing off, false 
or misleading representations, disparagement, wrongful disclosure or misappro- 
priation of a trade secret or confidential information, or activities which otherwise 
constitute unfair competition by misrepresentation or misappropriation. 

In our opinion, this proposed amendment would more accurately 
stat*^- the range of unfair competition torts which are now regulated 
by the States, so that the examples listed will not be limiting. 

It should be noted that the phrase "unfair competition by * * * 
misappropriation" is included in our amendment. Obviously, the 
"misappropriation" of all of the words of a literary work would be 
in the nature of copyright, and State laws in this area should be pre- 
empted. However, we do not believe that the entire body of State 
unfair competition law based upon the landmark Supreme Court deci- 
sion in rnfernat'/onal Neivs Service v. Associated Press (248 U.S. 215 
(1918) ) should be preempted. While some State decisions relying on 
the lA^iS case may be held inapplicable under section 801(a), we be- 
lieve that such a remedy should continue to be available for the type 
of conduct proscribed in the IiVS case. 

Turning to the third point in title I, the proposed section 601. known 
as the "manufacturing clause," essentially requires that English lan- 
guage, nondramatic literary works by American domiciled authors 
must be pi'inted in tlie United States or Canada. The present copyright 
statute does not include such a reference to Canada. The rationale for 
including Canada appears to be that wage standards in the United 
States and Canada are comparable. 

We are opposed to the inclusion of Canada in this provision. Such 
an inclusion would be a unilateral concession which we believe should 
be withheld for possible use by the United States as negotiating lever- 
age in seeking compensating benefits during multilateral trade nego- 
tiations. We note that both Houses of Congress indicated forcibly that 



166 

U.S. negotiators should obtain reciprocity for U.S. concessions when 
they enacted the Trade Act of 1974, at the end of the last Congress. 
Additionally, including Canada in this provision would raise prob- 
lems in our relations with other nations, in view of the "most favored 
nation" obliirations in the General Agreement on Tariff and Trade 
(GATT) and other treaties. Thus, enactment of the bill containing 
this provision might bring about the possibility of retaliation against 
the United States from countries other than Canada and might other- 
Avise hamper our efforts to eliminate nontariff trade barriers in the 
interest of our overall international trade objectives. 

If I may turn to title II of H.R. '2223, that would provide a new 
system for the protection of original ornamental designs of useful 
articles. 

Designs eligible for protection under this title would have to be orig- 
inal. They cannot be staple or commonplace, or elements commonly 
used in the relevant trade, or dictated by utilitarian functions, or three 
dimensional features of wearing apparel. However, there would be no 
requirements that the design be new, and therefore no search of prior 
designs would be necessary in order to grant protection. 

Title II would provide protection only against copying by others 
and Mould not give an exclusive right in the design itself. The term of 
protection would be for 5 years, renewable for one additional 5-year 
lenn. 

Infringement would include making, importing, selling, or distrib- 
nting for sale an article having a design copied from a protected 
design. Importantly however, an innocent seller or distributor would 
be an infringer only if he failed to reveal his source and then reordered 
the article after having received a personal written notice of the design 
protection. 

This is a greatly reduced level of liability when compared with that 
contained in title I where a seller or distributor is liable as an infringer 
for the sale of a single unauthorized copyrighted work. 

Design patent protection would continue to be available, but a design 
patent and design protection under this title could not be maintained 
concurrently. Also, copyright protection for designs would be con- 
tinued, except that if copyright protection and a design registration 
were obtained, the copyright protection would not extend to utilization 
of the design in the useful article protected by the design registration. 
Today, original ornamental designs for useful articles may be eligi- 
ble for Federal protection under the patent laws or in som.e instances, 
under the copyright law. In recent years, however, it has been gen- 
erally agreed that the design patent laws do not provide adequate pro- 
tection against design piracy. Because of the relatively short-lived 
popularity of many designs, a patent in some cases cannot be secured 
quickly enough to provide any useful protection. 

The" expense in obtaining a design patent today results primarily 
from the fact that the Patent and Trademark Office must examine an 
application to determine whether it is "new, original, and ornamental." 
At tlie present time it takes almost 2 years to obtain a design patent. 
Until the patent is granted, the designer or manufacturer markets the 
design at liis own peril, subject to it being freely copied. The alterna- 
tive of withholding the design from the market until the patent issues 



167 

is impractical in many industries where styles change rapidly and may 
even be seasonal. 

Since the Supreme Court decision in Mazer v. Stein in 1954, the 
Copyright Office has accepted an increasing variety of registrations 
for designs embodied in useful articles so long as they meet the criteria 
of being artistic. However, there are still many types of designs for 
which copyright protection is unavailable, for instance, furniture and 
appliances. Moreover, the term of protection in the proposed copy- 
right law, life of the author plus 50 years, or even the present law, 28 
years, is much too long for industrial designs which have a relatively 
short commercial life. 

To exemplify the problems that exist under current practice we 
note complaints from domestic manufacturers that their designs have 
been copied m certain foreign areas, particularly in the Far East, The 
imitations are then imported into and sold in the United States 
where they often enjoy a considerable price advantage over the article 
produced here. We believe that title II fills the need for more effective 
protection for design originators from this type of unfair competition 
because it provides quick, inexpensive, and short-term protection for 
original designs. 

The Department of Commerce favors this legislation. However, we 
would like to highlight some of our specific recommendations which 
will bring title II of the bill more in line with other intellectual prop- 
erty protection botli nationally and internationally and will generally 
improve the protection offered. 

Section 204(a) provides that protection for a design shall begin 
on the date when the design is first made public. In subsequent sections 
it is made clear that the design must be made public before an applica- 
tion for protection can be filed. This provision will put U.S. residents 
at a disadvantage if they desire to obtain protection of their design in 
foreign countries, many of which, for example, Japan, refuse protec- 
tion for a design which has been made public prior to the filing of an 
application for registration. 

In order to prevent the possible loss of protection in foreign coun- 
tries, it should not be required that the design be made public prior to 
registration. Instead, protection should commence on the date that the 
registration is published in the United States as provided for in sec- 
tion 212(a) of the bill. Protection which begins when the registra- 
tion is published would provide notice to the public and would not 
penalize the person desiring to protect his design outside of the United 
States. This would also make title II consistent with title I which has 
eliminated the prior publication requirement for copyright protection. 

Specific statutory language to effect this change will be submitted to 
the Congress at a later date. 

Section 20D appears to limit an application to a single design. This 
limitation appears to be unnecessary. An application containing 10 or 
20 designs would be no more difficult to process than an application con- 
taining 1 design because no search of prior designs is necessary. A 
multiple design application would save the applicant paperwork, 
thus, save him time and money. It would also save the Administrator 
processing time over an equal number of single applications. This 
might result in a lower fee per design. As long as a separate fee is paid 



168 

ior each design contained in the application there would be no loss of 
revenue and both the applicant and the Administrator would benefit. 
We have therefore recommended that multiple design applications be 
p-^iTnitted under this title. 

Title II requires that the application be accompanied by a statement 
setting forth facts about the design, and that such statement be un- 
der oath. Similar requirements in title 35, United States Code, cover- 
ing patent and trademark practices, permit such required statements 
to be submitted with a written declaration in accordance with 18 U.S.C. 
1001 making a false statement punishable by a fine or imprisonment 
and jeopardizing the validity of the document. We believe that such 
a provision should be applicable to the application for design registra- 
tion. Therefore, such declaration should be permitted in lieu of an 
oath. 

The present fee provisions of section 215 of this title are unaccept- 
able to the Department of Commerce. In our opinion, the design i"eg- 
istration system should be completely self-supporting because the bene- 
fits of the design registration system only accrue to the individual 
I'ecipient of the registration. Thus, the public should not be expected 
to bear any portion of the expense of a design registration system. 
Their benefits are too remote. 

In a study done in 1964, the $15 fee for the design registration under 
a bill similar to the present one, was found to be inadequate to provide 
100-percent cost recovery. The $15 application fee would be even more 
inadequate today. 

Rather than propose different fee levels for each of the functions 
specified, the Department of Commerce proposes that section 215 be 
amended in its entirety to give the Administrator the discretion to 
establish charges sufficient to recover 100 percent of the cost of opera- 
tion of the design registration system. A similar approach is currently 
being considered by Congress in various bills to revise the ])atent laws. 
Mr. Kastenmeier. Thank you, Mr. Tegtmeyer. Who is the adminis- 
trator under this particular pi'O vision ? 

Mr. Tegtmeyer. The administrator would be designated by the 
President if the bill were passed in the form it is. 

Mr. Kastenmeier. Is it presumed that such an administrator would 
be separate or part of the Copyright Office or the Patent Office or 
what? 

Mr. Tegtmeyer. The assumption is that the administrator would he 
with the Patent and Trademark Office in the Department of 
Commerce. 

Mr. Kastenmeier. Why are we unable to modify the patent laws to 
otherwise effect more reasonable treatment of design applications so 
that this whole title would be unnecessary, so it could be handled under 
the present law ? 

Mr. Tegtmeyer. We presently have that objective, to reduce that 
pendency for utility and design patents to 18 months. Even though that 
time is lagging a little bit we expect that that wait will be reduced to 
18 months in the very near future. The reason for requiring that length 
of time is the fact that we must examine the application to determine if 
it meets the criteria set forth in the ]n-esent statute and this cannot be 
done during the short period in vv'hich you can register a design. 

Mr. Kastenmeier. Would the administrator be under the Commis- 
sioner of Trademarks and Patents for the j^urpose of direction? 



169 

Mr. Tegtmeyer. I'm not attempting to presume that the President 
would in fact designate the Patent and Trademark Office as admin- 
istrator but it would presumably be placed there, under the Com- 
missioner of Patents and Trademarks, if it was placed there at all. 

Mr, Kastenmeier. Are you satisfied that title II is to be considered a 
part of the general revision of the copyright law or do you think it 
more appro])riate that it ought to be considered by itself ? 

Mr. Tegtjueyer. We are satisfied that it is to be considered as a gen- 
eral part of the copyright laws. 

Mr„ Kastenmeier. Do I understand that the revisions that you sug- 
gest are unlike patents in that you would go by first to file criteria 
rather than a first to invent ? 

Mr. Tegtmeyer. We're talking about a requirement in order to ob- 
tain protection as to origination, the party that originates the design 
and filed and application therefore could obtain the protection; noth- 
ing would prevent someone else from initiating the same design and 
also obtaining the same protection. 

Mr. Kastenmeier. I read your statement which says that instead pro- 
tection should commence on the day that the registration is published 
as a deviation from the theoiy that a copyright patent protection is 
other than the rest of the world, it is in essence a first to file protec- 
tion or, in this situation, publication rather than the first use of a 
design ? 

Mr. Tegtmeyer. Yes, in some respects. 

Mr. Kastenmeier. This is a matter of understanding, I guess. You 
state that the designs to be eligible would have to be original, however, 
there are no requirements that the desigii be new. What is the distinc- 
tion, the practical distinction, for our purposes? 

Mr. Tegtmeyer. The distinction would be that if you originated a 
design that somebody else originated in the past or created in the past., 
then you may still obtain protection so long as you were not copying 
the former individual's design and you developed it totally inde- 
pendently through your own originality. 

Mr. Kastenmeier. I see. The other part of your testimony, do I 
understand, that unlike others who have testified, you support reten- 
tion of the manufacturing clause basically so it can be used essentially 
as a negotiating factor ? 

Mr, Tegtinieyer. I think our views are very similar to those of the 
Department of State. There is an opportunity here to use exceptions 
to the manufacturing clause for the purposes of negotiation in multi- 
lateral trade negotiations when they take place. Such negotiations are 
beginning to take place now and will begin on a more formal basis 
later in the year. 

Mr. Kastenmeier. Maybe I misunderstood. I understood them to sug- 
gest that the existence of the manufacturing clause causes us a great 
deal of difficulty. I did not understand that they wanted it retained to 
use as leverage for future negotiations. 

Mr. Tegtmeyer. We would agree with the elimination of the manu- 
facturing clause over possibly a period of time as they indicated in 
response to your question. Our point about negotiations was pri- 
marily that, if the manufacturing clause was to stay and if Canada 
was to be placed in it, we ought to obtain some compensation for add- 
ing the exemption for Canada in multilateral trade negotiations. 

57-786 — 76 — pt. 1 12 



170 

Mr. Kastexmeier. Do you not understand those who have thus far 
designed the copyright bill to specifically exclude State unfair com- 
petition laws for a reason ? 

Mr. Tegtmeyer. I mentioned in the testimony that we agree with 
the preemption of the State laws as to copyright-type protection but 
feel that the bill should not upset the present protection that is avail- 
able under State statutes and the common law of unfair competition. 
We specifically mentioned the International News case in this comiec- 
tion. That case represents an example of one area wliich we partic- 
ularly feel should not be preempted by the copyright law because the 
copyright law does not provide the same nature of protection that the 
International Netos case decision does. 

That is, the content of the news was protected in that case as opposed 
to the wording or manner of expression of the news. 

Mr. Kastenmeier, On that point, have you conferred with the Copy- 
right Office or any other Federal agencies ? Do you find them in agree- 
ment with your position? 

Mr. Tegtmeyer. We have been in contact with some other Federal 
agencies and in contact with the Copyright Office, as well. We have 
not found agreement with our position on all points. 

]Mr. Kastenmeier. Thank you. I yield to the gentleman from Il- 
linois. Mr, Kailsback. 

Mr. Railsback. Mr. Tegtmeyer, I find myself in somewhat of a 
dilemma ; who actually speaks for the administration ? 

There seem to be disagreements with virtually everybody. We have 
the Department of State disagreeing with evervbody except on the 
manufacturing clause and now we have the Department of Commerce 
that takes a different view. Does anyone purport to speak for the 
administration? 

Mr. Tegtmeyer. Our testimony only purports to speak for the De-^ 
partment of Commerce. 

jNIr. Railsback. The Justice Department testified with respect to 
title II that they were concerned that this title would afford some new 
protection, but it would not include a finding of novelty or obvious- 
ness ; wliat do you think of that ? 

]Mr. Tegtmeyer. Copyriglit law presently, and as proposed in title 
I. does not require a test of novelty or unobviousness for protection. 
The test applied in the design legislation is one of originality. In- 
fringement is accomplished by copying the desigTi literally rather 
than by separate origination. So the protection provided by title II 
is more in the nature of copyright j^rotection rather than patent. 

Mr. Railsback. So, you would disagree that a finding by the Gov- 
ernment of unobviousness is needed ? 

]\Ir. Tegtimeyer. Yes; we do. The bill provides protection in one 
area that would not be protected by the present patent laws and 
where there is design piracy occurring. Protection under title II is 
desirable because of the requirement of novelty and unobviousness 
in the patent law and because of the fact that the copyright laws 
as they exist today have not been extended to cover all of the designs 
that are covered in the proposed legislation in title II. 

]\rr. Railsback. You are not, I presume, suggesting that your De- 
partment favors section 601 ? I think Mr. Kastenmeier asked you and 



171 

you appeared to indicate primary concern, about the inclusion of 
Canada but, you don t favor a munuiacturing clause, or do you ^ 

Mr. Tegtmeyer. V\ e do not favor a numufacturintr clause aside from 
the question as to whether or not Canada should be exempted. 

Mr. Kau.sback. So in that respect your testimony is not at variance 
with the other agencies ? 

Mr. Tegtmeyer. No. 

]Mr. Kailsback. If you can keep track of all of that differing 
testimony. 

Mr. Tegtmeyer. AVe did make the additional point of saying that if 
Canada was to be included as an exception in the manufacturing clause 
that it be done by the use of its exception in negotiations with other 
countries as leverage to get something in return. 

Mr. Railsback. You do favor, do you not, the prepared expansion 
of the duration of a copj'right ? 

]\Ir. Tegtmeyer. Yes; we do. In that respect, I might point out that 
we have reviewed the reasons for extending the copyright term that 
were set forth in one of the earlier reports on copyright revision legis- 
lation. I might note, in particular, Eeport No. 83 from the 90th Con- 
gress first session. It is a report of the chairman, Mr. Kastenmeier, 
for the Committee on the Judiciary. On pages 100 through 103 there 
are a num.ber of what we feel are well- justified reasons for extending 
the term of copyright to life of the author plus 50 years. In the report, 
there are some seven such reasons listed. The committee at that time 
stated, and I quote from page 102 of the report, "The committee 
concluded that the need for a longer total term of copyright had been 
conclusively demonstrated." 

Later in the report it stated, "The committee has concluded that 
an author's copyright should extend beyond his lifetime and, judged by 
this standard, the present term of 5G years is too short." There are 
some seven reasons set forth which we feel are consistent with the 
purpose of the copyright law, that is to further creativity in writings 
and so forth under the Constitution. 

Mr. Railsback. I think you've been very helpful. 

jSIr. Kastenmeier. Mr. Danielson. 

'Sir. Daxielsox. Do you know whether foreign states have a com- 
parable provision to our title II to protect original ornamental designs ? 

Mr. Tegtmeyer. Most foreign countries have a provision similar 
generally, at lefist, to title II and there is an international convention. 
The Hague Agreement for the International Deposit of Industrial 
Designs. I am not sure of the number of countries involved. 

Mr. Daxielsox. Are we a party ? 

Mr. Tegt3Ieyer. No. I am not sure whether we would want to be be- 
cause of certain provisions in the convention. 

Mr. Daxielson. One problem I have, one of the provision qualifiers 
is that it be ornamental ; isn't that almost entirely subjective ? 

Mr. Tegtmeyer. Essentially, it is the type of test as applied under 
the copyright law presently with respect to desigrns. 

Mr. Daxielson. But beauty is still in the eye of the beholder and I 
have a problem with this. I don't know. I need an answer to this, I 
need convincing. Thank vou. 



172 

Mr. Tegtmeyer. If I may add one point that may be helpful, one 
thing you can do is to compare the fact that it must be ornamental as 
opposed to functional. 

Mr. Daxielson. Yes ; but it is also, as I read the Code provisions, I 
think it relates to prettiness or beauty ; I have a problem with this. 

Mr. Tegtmeyer. That's not the intent of the provision as we under- 
stand it. 

Mr. Drinan. I wonder if I might ask one question. If you would 
just give us an example. How many of these fundamental things you 
have described could or would get a copyright or patent I 

Mr. Tegtmeyi:r. That would be difficult to predict because you don't 
laiow whether or not they would meet the test of novelty for patent 
protection. 

Mr. Drinan. In your testimony you suggest only two areas and they 
are furniture and appliances. But, you give us a for instance on what 
type of tilings might come under title II ? 

Mr. Tegtmeyer. Linoleum and wall coverings, which I believe are 
covered under the present copyright law as it is interpreted, as well 
as furniture designs, appliances and other household goods which 
would have a design, an original design. 

Mr. Drinan. Do you fear any possibility of restraining trade or 
even monopoly ? 

Mr. Tegtmeyer. We feel the protection is in the nature of a copy- 
right provision and is only against copying. If you compare it to 
piracy of tapes and records, we find it very similar. We are talking 
about someone who has pirated or copied a design, not somebody who 
has independently originated it himself. 

Mr. Drinan. I tend to agree with ISIr. Eailsback that there is too 
much confusion, but your testimony has been helpful. I wish we had 
longer. 

Mr. Kaskenmeier. On behalf of the committee, we appreciate your 
appearance again before us on a slightly diif erent type of bill than you 
normally appear before us with and we wish to thank your col- 
leagues. This concludes the testimony this morni)ig on the subject of 
the revision of copyright laws. We shall next meet as a subcommit- 
tee on ]May 14, Wednesday at 10 a.m. in room 2226 for further hear- 
ings. 

[Reports on H.R. 2223 were received by the subcommittee from the 
Department of State, the Acting Librarian of Congress, and the Na- 
tional Aeronautics and Space Administration, as follov/s:] 

Department of State, 
Washington, D.C., May 7, 19'75. 
ITon. Peter W. Rodino, Jr., 
Chairman, Committee on the Judiciary, 
House of Representatives, Washington, D.C. 

Dear Mr. Chairman : The Secretary has asked that I respond to your letter of 
February 10, 1975, requestin.e: the Department of State's views on H.R. 2223, 
for the general revision of the Copyright Law, Title 17 of the United States 
Code, and for other purjjoses. 

The first copyright law of the United States was enacted by the Fir.st Congress 
in 17f)0, with comprehensive revisions being enacted at intervals of about 40 
years, in 1S31. 1870 and 1909. The present U.S. copyright law, title 17 of the 
United States Code, is basically the same as the Act of 1909. During the ensuing 
yeai's tremendous strides have been made in technology and te<.'hni(iues for 
communicating printed matter, vi.sual images, and recorded sounds. The.se te<"h- 
nical advances have generated new industries and methods for the reprotluetioa 



173 

tind dissemination of copyriglited works and new business relationships have 
developed between authors and users. Although these two groups have differed 
on various issues, both recognize the 1909 statute does not stimulate authors to 
create or reward them for their efforts and fails to consider present or future 
technological developments in communications. 

Although we tali;e exception to one section of H.R. 2223, the Department other- 
wise supports the enactment of this important legislation. Our comments on 
H.R. 2223 are directed to those sections which relate to the conduct of our foreign 
relations and therefore are of interest to the Department. These sections are the 
following: Section 104 concerning subject matter of copyright and national 
origin ; Section 302 on the duration of protection, and Section 601 relative to 
restrictions against importation of certain copyrighted materials from other 
countries. 

ISectlon 10^. Subject Matter of Copyright: National Origin — (c) . 

Tlie Department supports the aim of tliis section which is to deal with the 
possibility that action may be instituted in L-uited States courts by a foreign 
government to divest its citizens or autliors of rights to their works or block 
publication of their works within the United States. We do not have any evidence 
tliat an action of this nature is likely to occur. If it did, however, it would rep- 
resent undesirable official interference with the freedom of expression, and we 
therefore believe that it should be guarded against. The international copyriglit 
system embodied in the Universal Copyi'ight Convention is intended to '"insure 
the respect for the rights of the individual and encourage the development of 
literature, the sciences and tlie arts". The obligations contained in the Convention 
.shouUl not become the vehicle to suppress free communication in tlie United 
States of ideas and literature unacceptable to authorities of some signatories 
to the Convention. 

Were such a provision to be enacted, it would be necessary to avoid language 
which might inadvertently interfere with legitimate governmental acquisition 
of copyright. We understand tliat otlier U.S. Government agencies are drafting 
language to meet the purpose of Section 104(c) in a technically different manner. 
We have not reviewed these proposals and are unable to express our opinion 
as to their merits. However, we support the aim of appropriately drafted legisla- 
tion that would deny effect in United States courts of a foreign nation's laws or 
practices desigiied to deprive the authors of that country of the rights to publish 
and protect their literary and artistic works in the United States. 

Section 302. Duration of Copyright: TTorfcs Created on or after January 1, 1915. 
Section 302 concerns the duration of copyright (i.e. term of protection) and is 
one of the most important provisions, if not the most important in the revision 
bill. Basically, Section 302(a) provides for a copyright term consisting of the 
life of the author and 50 years after his death. The importance of the provision 
is borne out l)y the fact that the Register of Copyrights regards a "life-plus-.iiO 
term" as the "foundation of the entire bill". Such a term of protection would be 
more consistent with the practice of a very large ma.iority of other countries 
that are members of the international copyright community. This provision would 
also remove a major obstacle to the possible adherence to the Berne Convention 
for the Protection of Literary and Artistic Works by the T'nited States, Article 
7 of which requires states party to the convention to provide such a term of 
protection. Such a change would facilitate and simplify international copy- 
right protection for U.S. nationals. Therefore, the Department of State strongly 
supports the duration of copyright protection as proposed in Section 302. 

Section 601. Manufacture, Importation and Puilic Distriltution of Certain 

Copies. 

Section 601 relates to the so-called "manufacturing clau.se" which is designed 
essentially to protect the U.S. printing industry. ITnder Section 601 the importa- 
tion into or the distribution within the U.S. of English language copies of cer- 
tain works whose authors are U.S. nationals (living in the United States) or 
domiciliaries would be prohibited unless the copies are produced in, or made 
from type set in, or plates made in, the United States or Canada. Also com- 
pliance with the manufacturing requirements no longer would constitute a 
condition of copyright protection ; the effects of noncompliance would be limited 
to rights with respect to reproduction and distribution of copies. Section 601(d) 
provides a complete defense in any civil action or criminal proceeding for in- 
fringement of the exclusive rights of reproduction or distribution of copies where^ 



174 

Tinder certain circumstances, the defendant proves Tiolatiou of the manufactur- 
ing requirements. 

The Department notes with satisfaction that, on the whole, there has been 
a liberalization of the manufacturing clause as it exists today. For example, a 
violation of the manufacturing clause as regards a book would not affect the right 
of the copyright proprietor to authorize a motion picture version or other use 
of the book. It would merely affect enforcement of copyright with respect to 
publication as a book. Further, the number of copies manufactured abroad that 
may be imported has been increased from 1,500 to 2,000. 

Despite this liberalization, Section 601 would continue the protectionist fea- 
tures of the manufacturing clause. This kind of protection is fundamentally 
inconsistent with basic U.S. policy in international trade. For several decades 
we have pursued a policy of reducing tariffs and other trade barriers in the 
interest of promoting an open international economic system. We believe that 
the broad trading interests of the U.S. and its people continue to be best served 
by a general reduction of trade barriers including non-tariff barriers. This is 
the policy we are carrying forward in the current multilateral trade negotiations 
being undertaken in Geneva under the authority of the recently enacted Trade 
Act. During this round of negotiations attention will be focused particularly 
on non-tariff barriers, and one of our major negotiating objectives will be to 
reduce or eliminate non-tariff barriers of other countries which restrict U.S. 
trade. We believe that it is important to note this inconsistency in consider- 
ing the continuation of the manufacturing clause. 

Furthermore, the exception for Canada introduced by this bill into the manu- 
facturing clause would violate our obligations under the GATT and various 
bilateral treaties. The United Kingdom has protested and we expect that other 
foreign countries which are being discriminated against by this measure will 
protest, thereby introducing another element of discord and potential retaliation 
into our relations with those coimtries. Specifically, the exception would violate 
our obligation under Article XIII of the GATT which requires non-discrimina- 
tory application of quantitative restrictions. Although the U.S. could seek a 
special waiver from the GATT Contracting Parties to permit this exception, 
this procedure would be particularly undesirable at this time in view of the 
opening of the new round of multilateral trade negotiations at Geneva. The 
exception would also violate commitments in various Friendship, Commerce and 
Navigation treaties, which we have concluded with most of the other industrial- 
ized nations. 

These treaties normally impose obligations on the U.S. before it introduces 
non-tariff barriers on important products of the other country, and forbids the 
prohibition of the other country's products unless the product of third countries 
are similarly prohibited. 

In conclusion, the Department of State believes that the updating of the U.S. 
copyright law is most desirable and supports the enactment of H.R. 2223. A 
modernization of the copyright law to take into account the important technologi- 
cal advances in the copyright field is in the interest of all members of the copy- 
right commimity. It is also important in bringing the United States in step in 
copyright with the other principal countries of the world. 

The Oflice of Management and Budget advises that there is no objection to 
the submission of this report. 
Sincerely yours, 

Robert J. McClosket, 
Assistant Secretary for 
Congressional Relations. 

The Librarian of Congress. 
Washington, D.C., August 26, 1975. 
Hon. Peter W. Rodino, 
Chairman, Committee on the Judiciary, 
U.S. House of Representatives, Washington, B.C. 

Dear Mr. Rodino: This refers to your reque.st for llie views of the Library of 
Congress and the Copyright Office on H.R. 2223, a bill for the general revision 
of the Copyright Code, title 17 U.S.C, for the establishment of protection of 
ornamental designs of useful articles in the form of the Design Protection Act, 
and for other purposes. 

The current bill is the latest in a series of bills pending in Congress since 1905 
to effect a general revision of the Copyright Code. H.R. 2223, except for technical 



175 

amendments, is tlie same as the bill that passed the Senate in the 93rd Congress, 
S 1361 93rd Congress, 2d Session (1974), by a vote of 70 to 1. The Kastenmeier 
bill (HR 2223) is also substantially identical, except for Chapter 1, to the bill 
passed by the House of Representatives in 1967, H.R. 2512, 90th Congress, 1st 

Session. , x ^ ^.-^ j ^r - m— 

The Register of Copyrights, Barbara Ringer, and I testified on May <, 19(o 
before the House Subcommittee on Courts. Civil Liberties, and the Administration 
of Justice and urged enactment of the revision bill in this Congress. We reiterate 
the strong support of the Library of Congress and the Copyright Office for this 
bill. As Ms. Ringer remarked in her testimony before the Subcommittee: "A 
Twentieth-Century copyright statute is long overdue in the United States, and 
the present need for a revised law that will anticipate the Twenty-First Century 
is so obvious as to be undeniable." 

The Register of Copyrights has submitted to the House Subcommittee chaired 
by Mr. Kastenmeier a series of brief, objective analyses of the key provisions of 
the bill. She is also preparing a supplemental report on the revision bill and plans 
to submit this to the Committee on the Judiciary in early fall. I shall therefore 
confine my comments to general support of the copyright revision bill, reference 
to the recent changes by the Senate Subcommittee on Patents, Trademarks, and 
Copyrights, specific mention of a few recommended changes in title I, and general 
support for title II. 

1. GENERAL COMMENTS ON TITLE I 

The current copyright revision effort began twenty years ago. The basic bill 
has been under legislative consideration for more than ten years. However, active 
consideration of the bill has peaked at different times in each house, and the 
House of Representatives has not considered the bill thoroughly since LI.R. 2.512 
passed the House in 1967. The exceedingly careful preparation of the study and 
drafting phases of the revision program is reflected in the strength of the "basic 
bill," which has remained intact since the House last considered it. For example, 
the following fundamental provisions of the bill have stood the test of time : a 
single national system for copyright protection under the Federal copyright 
statute; provisions governing the term of new works and subsisting copyrights; 
limitations on the assignment of an author's right ; copyright formalities, includ- 
ing notice, deposit, and registration : copyright infringement provisions ; and 
housekeeping provisions affecting the Copyright Office and the registration 
system. 

Enactment has been delayed because of a few issues concerning the scope of the 
exclusive rights granted under the bill and limitations to those rights. For many 
years, the key issue was the limitations on the exclusive rights affecting secondary 
transmissions, principally cable television. Other issues, such as library photo- 
copying, computer uses of copyrighted works, public broadcasting, and educa- 
tional uses of copyrighted works in general have waxed and waned. 

Now that cable television litigation seems to have run its course, this issue is 
ripe for a legislative solution. The Williams & Wilkins v. United States, 487 F.2d 
1315 (Ct. of Claims 1973 aff'd by equally divided court, 420 U.S. 376 (1975) ) litiga- 
tion over library photocopying has ended inconclusively. In both instances, the 
courts have urged legislative solutions for the complex problems caused by the 
impact of new technology on an antiquated copyright law. 

The Libraiy of Congress and the Copyright Office are ready to provide what- 
ever assistance the Committees or Members of Congress wish in presenting bal- 
anced explanations of the provisions of the bill or of additional proposals. With- 
out endorsing particular solutions, we do endorse wholeheartedly the general 
concept of reasoned discourse and debate on the issues and good faith attempts 
to reach compromise positions, followed by a Congressional decision on the 
particular proposals. We genuinely believe that these problems are capable of 
solution. We also believe that an effective copyright system is not likely to survive 
further delay in enacting a revision of the 1909 law. 

2. SENATE ACTION ON S. 22 

The Senate Subcommittee on Patents, Trademarks and Copyrights reported 
a companion bill. S. 22, to the Senate Judiciary Committee on June 13. 1975. We 
should like to bring to your attention the substantive changes in the Senate bill. 

Royalty Tri'bvnal. — ^The Senate Subcommittee has restored the provision in 
sections 801 and 802 for periodic review of the royalty rate for jukebox uses of 
copyrighted works. 



176 

Federal pre-emption. — The Subcommittee has accepted an amendment to sec- 
tion 301 specifically reserving state law protection for misappropriation of copy- 
riirht subject matter provided the relief is not equivalent to any of the exclusive 
rights within the general scope of copyright. 

ProhiMtion against involuntary transfers. — The Subcommittee has replaced 
the provision prohibiting expropriation of copyrighted works in section 104(c) 
with a new provision in section 201(e) prohibiting involuntary transfere. 

HingJe registration for several contributions to periodicals. — Two new sub- 
paragraphs have been added to section 408(c) authorizing a single registration 
for contributions to a periodical by the same individual author under certain 
conditions. 

Fee schedule. — A new schedule of fees has been added to section 708. 

Voluntary licenses for use of copyrighted works by the blind and physically 
handicapped. — A new section 710 has been added directing the Register of Copy- 
rights to establish by regulation standardized procedures under which the copy- 
right owner grants voluntary licenses to the Library of Congress for the repro- 
duction of certain nondramatic literary works for use by the blind and physically 
handicapped. 

Noncommercial broadcasts to handicapped audience. — A new clause (8) has 
been added to section 110 exempting the performance of a literary work on non- 
commercial radio and television stations to a "print or aural handicapped 
audience." 

Derivative work right for sound recordings. — Section 114 has been amended to 
include among the rights granted to the copyright owner of a sound recording the 
right to prepare derivative works. 

Criminal penalties. — Several amendments proposed by the Justice Department 
were adopted. The punishment for criminal infringement of a sound recording or 
motion picture copyright has been increased from one year to 3 years for tlie 
first offense, and from two years to seven years for subsequent offenses, section 
506(a). A new subsection has been added to section 506 adding forfeiture and 
destruction of copies as possible penalties for conviction of copyright infringe- 
ment, -R-ithin the discretion of the court. A new section 50f» has been added pro- 
viding for possible seizure and forfeiture by the United States Government of 
infringing copies or phonorecords, including articles or devices used to carry out 
the criminal infringement. 

Title II. — Tile Subcommittee adopted a series of changes recommended by the 
Department of Commerce with respect to sections 203-206, 209, 211-213, 227, and 
229 of the Design Protection Act. 

3. RECOMMENDED CHANGES IN TITLE I 

Several of the amendments adopted by the Senate Subcommittee on Patents, 
Trademarks, and Copyrights were either recommended by the Library of Congress 
and the Copyright Office, or have been endorsed by us. We specifically urge adop- 
tion of the following amendments. 

Prohibition against involuntary transfers. — We recommend the language 
adopted by the Senate Subcommittee in section 201(e) in lieu of the present 
section 104(c) of H.R. 2223. The new language is intended to establish on a 
statutory basis the principle that an involuntary transfer of the copyright in- 
terest will not be recognized under our law. Of course, traditional legal actions 
such as bankruptcy proceedings and mortgage foreclosures are not within the 
scope of the recommended language since the author has, in one way or another, 
consented to these legal processes by his actions. The ])rovision is no longer di- 
rected against foreigii governments since the same princii)le applies to the United 
States Government. While our courts have not addressed the precise issue of in- 
voluntary transfer, we believe the principle of the proposed section 201(e) would 
be followed by the courts in construing the present law. 

Federal pre-etnption. — We endorse the change in section 301 adopted by the 
Senate Subcommittee which is intended to clarify that misiippropriation relief 
may be provided under state law as long as the protection conferred is not equiv- 
alent to the exclusive rights granted by the copyright law. 

Single registration for several contributions to periodicals. — The basic prin- 
ciple of this provision was originally siiggested by Irwin Karp. Counsel for rhe 
Authors' League. The Library of Congress and the Copyright OflBce recommended 
it to the Senate Subcommittee, and the provision also appears in H.R. 7140 (by 
Mr. Kastenmeier), which would amend the existing title 17 U.S.C apart from the 



177 

effort to effect a general revision of the copyriglit law. Separate original and re- 
newal term registration is a substantial financial burden on individual authors 
and artists who contribute small or short works to a variety of daily newspapers 
and other periodicals. The pi-oposed amendment to section 408 (c) would specif- 
ically authorize the Register, without prejudice to her general authority, to 
establish regulations permitting grouping of contributions by the same individual 
author for registration purposes. 

Fee sehedule — section 708. — The new fee schedule adopted by the Senate Sub- 
committee also appears in H.R. 7149. introduced by Mr. Robert W. Kastenmeier 
on May 20, 1975 at tlie request of the Library of Congress and the Coiiyright 
OflBce. 'We found it necessary to propose general increases in the fee schedule iu 
view of the low ratio of recovery of the costs of the copyright registration system 
by cash receipts for services performed. We strongly urge inclusion of the new 
fee schedule i\i H.R. 2223. We also take this opportunity to urge separate enact- 
ment of H.R. 7149 without awaiting general revision of the copyright law. The 
revision bill cannot become effective immediately upon enactment because of the 
administrative preparation required to implement its provisions. Hence, we favor 
enactment of H.R. 7149 as soon as possible. 

Voluntary licenses for use of eoiryriglited works hy the hlind and physically 
handicapmd — new section 710. — This provision also originated with the Library 
of Congress and the Copyright Otiice, and we urge its addition to the revision 
bill. It has tlie support of the American Association of Publishers. 

Universal Copyright Convention. — We propose a technical amendment to sec- 
tion 104(b) (2) in view of the 1971 revision of the Universal Copyright Conven- 
tion. Line 25 of page 7 should read "1952 or 1971 Universal Copyright Convention ; 
or". 

4. GENERAL COMMENTS ON TITLE II 

Design legislation has been pending before Congress even longer than the 
current efforts at omnibus copyright revision. Title II of H.R. 2223, the Design 
Protection Act, represents the current version of design legislation. The pro- 
posal has been refined through years of study, debate, consideration, and amend- 
ment. The Library of Congress and the Copyright Office have supported this 
le.idslation in the past, and we reiterate our strong endorsement of the present 
bill, esi)ecially since the present version appears to resolve many issues that de- 
layed enactment of separate design legislation. 

The Design Protection Act would create a new form of protection for designs 
based' upon modified copyright principles and would bridge the gap between 
existing design patent and copyright protection for ornamental designs of useful 
articles. This new form of protection is needed to correct deficiencies in tlie 
protection accorded by existing law. For example, although the Copyright Office 
registers certain ornamental designs of useful articles which qualify as "works 
ofart," it must refuse registration for numerous equally actractive or meritorious 
designs, because they do not display separate work of art authorship apart from 
the utilitarian aspects of the article. On the other hand, design patents are .iudged 
by the high patent standards of novelty and non-obviousness. The patent is 
difllcult and expensive to obtain, and most designs do not survive a court t^st. 

The Design Protection Act avoids these pitfalls. It is specifically tailored to 
meet the demonstrated need for protection of ornamental designs of useful 
articles with due regard for the interests of consumers and their reiiresentatives. 
the product retailers. The bill adopts the copyright standard of originality, but 
the term of protection is short in consideration of the public interest in free com- 
petition among product designs. 

We accept in general the amendments adopted by the Senate Subcommittee 
with respect to title IT. However, we have some hesitation about the amendment 
to section 203. adding the requirement that protection may be accorded to a- 
revision, adaptation, or rearrangement of design subject matter only if tlie 
changes are substantial. We agree with the amendment provided the substantiality 
of the revision is judged by traditional copyright standards of originality. We 
would not support the change if there is any possibility that it would be con- 
strued to establish a stricter standard of originality than that establislied in 
section. 201 (b) (4). If the House .Tudiciary Ccmimittee adopts this language, we 
recommend a clarification in the report that the amendment in no way derogates 
from the section 201 (b) (4) standard of originality. 

Finally, we point out that the bill presently doe? not indicate which agency will 
administer the Design Protection Act. Under section 230, the Administrator will 



178 

be desigTiated by the President. In order to assure administrative preparation 
for implementation of the Design Protection Act, the Congress may wish to 
designate the Administrator directly in the bill. The Copyright Office would be 
willing to assume this responsibility, as the Congress or, under the present bill, 
the President directs. 
Sincerely, 

John G. Lorenz. 
Acting Librarian of Congress. 



National Aeronautics and Space Administration, 

Washington, D.C., September o, 1973. 
Hon. Peter W. Rodino, Jr., 
Chairman, Committee on the Judiciary, 
House of Representatives, Washington, D.C. 

Dear Mr. Chairman : This is in further reply to your request for the views of 
the National Aeronautics and Space Administration on the bill H.R. 2223, '"For 
the general revision of the Copyright Law, title 17 of the United States Code, and 
for other purposes." 

Title I of the bill provides for a general revision of the United States Copyright 
Law. title 17 of the United States Code. Title II establishes a new type of protec- 
tion for original ornamental designs of useful articles. Set forth below are com- 
ments on specific provisions of the bill which would have a direct impact on 
NASA's activities and liability. 

TITLE I 

Government Works 

The proposed legislation obviates some of the ambiguities present in the current 
coi)yright law with respect to Govei-nment works. Sec. 105 of the bill prohibits 
copyright in any "work of the United States Government," which is defined in 
Sec. 101 as "a work prepared by an officer or employee of the United States Gov- 
ernment as part of his official duties." The present law prohibits copyright in a 
"publication of the United States Government" (Sec. 8), but does not define the 
latter term. The proposed legislation adequately reflects case law and customary 
practice within the executive branch, which have established that works prepared 
by Government officers or employees as part of their official duties are "Govern- 
ment publications" within the copyright prohibition. 

Some previous copyright revision Inlls have defined a Government work as one 
prepared by an officer or employee "within the scope of his official duties or em- 
ployment." The latter was considered ob.iectionable because it was ambiguous and 
subject to a much broader interpretation. For example, it could be construed as 
prohibiting copyright even where an officer or employee voluntarily wrote a book 
on his own time which was somehow related to his employment. 

Sec. 105 also clarifies the right of the Government to receive and hold copy- 
rights transferred to it by assignment, bequest, or otherwise, thus obviating an- 
other uncertainty in the current law. 

Since H.R. 2223 abolishes common law copyright protection and extends statu- 
tory copyright protection to published and unpublished works ( Sec. 104 and Sec. 
301), in our view the copyright prohibition of Sec. 105 would apply to both pub- 
lished and unpublished Government works as this term is defined in Sec. 101. 

NASA is still of the view, expressed in comments submitted to the Committee 
on previou,sly proposed legislation (e.g., H.R. 43^7, SOth Congress. 1st Session, 
1965), that copyright protection should be available for Government works in 
exceptional circumstances. This would give NASA the opportunity to enter into 
competitive negotiations with private publishing firms in exceptional cases so that 
selec-ted NASA publications could receive the widest possible distribution as re- 
quired by Section 203(a) of the National Aeronautics and Space Act of 1958. The 
negotiating position of the Government depends on its ability to provide copyright 
protection for a period of time to the publisher in exchange for distribution and 
related services. If necessary, the rights of the Government to copyright in such 
exceptional eases can be limited to a shorter period of time ; for example, 5 years 
(rather than the full term), which may be sufficient time for the publisher to 
regain his initial publishing costs. Accordingly, it is recommended that the fol- 
lowing subsection be inserted in Sec. 105 : 

"In exceptional cases, copyright may be secured in a published work of the 
United States Government where, because of the special nature of the work or the 
circumstances of its preparation, it is determined that copyright protection would 
result in more effective dissemination of the work or for other reasons would be 
in the public interest. The head of the Government agency for which the work was 



179 

prepared shall make the determination in each case in accordance with regula- 
tions established by an administrative officer designated by the President, and 
shall publish a statement of the basis for its determination in each case in the 
manner specified by such regulations." 

It is strongly urged that Sec. 105 be amended to specify that the copyright 
prohibition for Government works apply only to domestic copyright protection. 
This could be done by inserting the phrase "within the United States'' after 
the word "available" in line 1 of Sec. 105. It is a commonly held opinion, al- 
though not established by case law, that the prohibition .against obtaining copy- 
right hx the Government applies to domestic copyrights only. Thus, in this 
view, the Government may copyright abroad when that serves its best interests. 
While we feel that many foreign signatories to the Universal Copyright Con- 
vention would honor the copyright of the U.S. Government in their respective 
countries under the Convention, some nations might take the position that a 
U.S. Government work cannot receive copyright protection anywhere. 

Thf basic rationale for prohibiting copyi'ight protection for U.S. Government 
works is that American taxpayers have paid for these works through tax assess- 
ments and should have access to them free of copyright restrictions. This ra- 
tionale does not require a giveaway of U.S. Government works to foreign 
nationals and foreign governments. Most foreign countries provide domestic copy- 
right protection for publications of their governments, and publications of 
foreign governments are accepted for copyright registration in the United States, 
except for statutes, court opinions, and similar official dociiments which are con- 
sidered inherently uncopyrightable. Among the benefits which would accrue 
from asserting copyright abroad in selected U.S. Government works are: (a) 
improvements of our negotiating position with certain countries; (b) royalties 
could be collected, thereby .aiding our balance of payments; (c) protection 
of the integrity of U.S. Government works; and (d) greater dissemination if 
American publishers were licensed to distribute U.S. Government works through 
ertablis^hed distribution outlets abroad. 

It is also recommended that a subsection similar to that appearing in the 
current law, 17 U.S.C. 8, be inserted in Sec. 105 of H.R. 2223. that is : 

"Publication or other use by the United States Government of any material 
ill which copyright is existing does not impair the copyright or authorize any 
further use or appropriation of the material without the consent of the copy- 
right owner." 

It is believed desirable to retain such a provision in the statute to provide 
assurances to authors and to preclude the argument th,at deletion of this pro- 
vision from the present statute implies that such protection is no longer available. 

Pre-emption With Respect to Other Laws 

A key provision of Title I of H.R. 2223 is Sec. 301, which would establish a 
single system of statutory protection for virtually all copyrightable works 
whether published or unpublished. Under Sec. 301, a work would obtain statu- 
t^fry protection as soon as it is "created" or. as the term is defined in Sec. 101, 
when ir is "fixed in a copy or phonorecord for the first time." 

Sec. 301(b) provides that nothing in the title annuls or limits any rights or 
remedies under the common law or statutes of any state that are not equivalent 
to any of the exclusive rights within the general scope of copyright, such as 
breaches of contract. No mention is made of Federal statiites such as the Tucker 
Act, 28 U.S.C. 1491, which permits suit against the Government for breach of an 
express or implied contract. Undoubtedly, it was not intended that such a 
Federal statute be preempted by the copyright revision. It is recommended, 
thei-pfore, for clarification purposes, that Sec. 301(b) be amended by inserting 
the phrase "under Federal statutes or" after the woi'd "remedies'" on line 1. 

A similar omission occurs in Sec. 117 and it is suggested that the phrase 
"title 17" be replaced by "this or other title of the United States Code." 

Sec. 502'^ a) provides that any court having .iurisdiction of a civil action 
arising under the title may, su'bject to the prorhions of section 1498 (b) of title 
28. grant in.iunctions to prevent or restrain infringement (emphasis added). It 
is recommended that the phrase "subject to the provisions of" be replaced by 
"except in actions against the Government under" to clailfy the exclusive 
jnri.«diction of the Court of Claims under 28 U.S.C. 1498(b) . 

Unpnhlished Works 

28 U.S.C. 1498 (b) provides for a cause of action against the Government for 
infringement of "copyright in any work protected under the copyright laws of 
the United States." This waiver of sovereign immunity has been construed not 



180 

to embrace common law copyright, i.e., iiupnhlished works. See e.g.. Porter et al. 
V. United States, 473 F 2d 1329, 117 USPQ 238 (CA 5 1973). Since H.R. 2223 
protects unpuhli.shed as well as published works, the Governments liability will 
be extended. It is urged that 28 U.S.C. 1498(h) be amended so that it continues 
to restrict the Government's liability for copyright infringement to "published" 
works only. Government agencies receive a voluminous amount of material from 
private sources which does not bear a copyriglit notice and whicli is reproduced, 
distributed, etc. in its day-to-day business activities, for example, under the 
Freedom of Information Act. It would be extremely difficult, if not impossible, 
to ascertain whether the material sulmiitted has been published with no intent 
to claim copyriglit, or whether it is unpublished and the owner intends to claim 
copyright protection. 

Tlie effect of compliance with the Freedom of Information Act (FOIA) on 
the Government's lialiility for copyright infringement also needs clariticatiou. 
If a document requested under the FOIA bears a copyright notice, the requester 
can be so advised and will usually be able to secure a copy elsewhere. Where 
the document requested contains no copyright notice, it may be an unpublished 
work sul)ject to protection under the i)roposed copyright revision ; and providing 
access or a copy may very well frustrate the copyright owner's de.-;ires and 
subject the Government to liability. We are concerned whether the furnishing 
of a copy of a document by the Government under the FOIA will be considered 
excusable, or a form of fair use. Of course, if a document is released under 
FOIA, the Government may not itself restrict its use by otiiers. For clarification 
purposes, it is recommended that language l>e inserted in H.R. 2223 explaining 
the fair use doctrine's applicability to unpublished works and the Government's 
release of documents under the FOIA. 

Innocent Infringers 

Under Sec. 405(b) an innocent infringer who acts in reliance upon an 
authorized copy or phonorecord from which the copyright notice has been omitted, 
and who proves that he was mi^;led by the omission, is shielded from liability 
for actual or statutory damages with respect to any infringing acts committed 
before receiving actual notice of registration. No protection is spelled out in the 
proposed legislation for an innocent infringer wlio relies on an unaiithrirized 
copy or plionorecord of a published work from which tlie copyriglit notice has 
been omitted ; or for an innocent infringer of an unpublished work, i.e., one 
who relies on a copy or phonorecord which has been published without authority 
of tlie owner. 

Publications Incorporating Works in the Puhlic Domain 

Sec. 403 of U.K. 2223 provides that when a work is published in copies or 
phcnorecords consisting preponderantly of one or more Government works, the 
notice of copyright shall also include a statement identifying the portions embody- 
ing work protected under Title 17. It is NASA's opinion that Sec. 403 is too 
limited and that it would be in tlie public interest to recpiire such a statement 
also where a work consists preponderantly of any material that is in the public 
domain. We recommend that Sec. 403 be amended by adding the phrase "or works 
in the public domain" after the word '"works" in the heading and before the 
words "the notice" in line 3 of the body of the section. 

TITLE II 

Our remaining comments are directed to Title II of II.R. 2223. It is assumed: 
that the word "title" in the various sections refers only to Title II dealing with 
ornamental designs. It is not apparent where Title TI will appear in the United 
States Code. If Title II is pl.iced under Title 17. difficulties in construction may 
ensue. For example, the definitions set forth in Title I of II.R. 2223 dealing with 
copyrights might be construed as being applicable to Title II also. 

It is suggested that paragraph (b) of 28 U.S.C. 1-J98 be amended to include 
registered designs rather thon paragrnph (a). (See Sec. 232.) The process for 
cr<'ating rights in registered designs is more closely analogous to copyrights. 
Furthermore, tlie specific authorization for the administrative settlement of 
copyright infringement claims set forth in paragraph (b) [and not present in 
paragraph (a)l would be made applicable to registered designs, which in our 
opinion is highly desirable. 



ISl 

In the event 28 F.S.C. 1-J98fa) is amended as set forth in Sec. 232, it is recom- 
mended that the phrase "descrilied In and covered by a patent of the United 
.States" be inserted after the word -invention" in the first line. This will reinstate 
tlie language present in the current law with respect to patented inventions and 
whicJi was probably inadvertently omitted. Omitting this language might be 
interpreted as a broadening of the Government's liability to cover unpatented 
inventions. 

Subject to the foregoing, the National Aeronautics and Space Administration 
would have no objection to the enactment of H.R. 2223. 

The Office of Management and Budget has advised that, from the standpoint 
of the Administration's program, there is no objection to the submission of this 
report to the Congress. 
Sincerely, 

Joseph P. Allen, 
Assistant Adiii inistrator 

for Legislative Affairs. 

[Wliereupon, at 12 :20 p.m. the hearing adjourned to reconvene at 
10 a.m. on May 11, 1971.] 



COPYRIGHT LAW REVISION 



WEDNESDAY, MAY 14, 1975 

House of Kepresextatives, 
Subcommittee ox Courts, Civil Liberties, 
AND the Administration of Justice of the 

Committee on the Judiciary, 

Washington, D.C. 

The subcommittee met. pursuant to notice, at 10:10 a.m. in room 
2226, Kaj^burn House Office Building, Hon. Robert W. Kastenmeier 
[chairman of the subcommittee] presidin<j. 

Present: Representatives Kastenmeier, Danielson, Pattison. and 
Mazzoli. 

Also present: Herbert Fuchs, counsel, and Thomas E. Mooney, 
associate counsel. 

]Mr. Kastenmeier. The hearing will come to order on the third morn- 
ing of hearings on copyright law revision. The issue under discussion 
lends itself into equal division of time between those in favor and those 
opposed: each side will be invited to divide 80 minutes of testimony 
among its members, and you will be expected to stay within that time 
frame. 

This morning six national library associations have given their 
entire half-hour to Mr. Edmon Low. Thereafter four representatives 
of writers and publishers will share their 30 minutes in arguing the 
other side of the library photocopying issue. 

Furthermore, the Chair will announce that the chairman and per- 
haps another member of the committee will have to excuse themselves 
for the purpose of appearing before the Rules Committee on the ques- 
tion of the Parole Reorganization Act this morning, and the gentleman 
from California, Mr. Danielson, will preside during that period of 
absence of the Chair. 

Before introducing the first witness, T would like to yield to our Judi- 
ciary Committee colleague from Kentucky, Mr. Mazzoli, for the intro- 
duction of one of the witnesses, 

]Mr. Mazzoli. ]\Ir. Chairman, thank you very much, I appreciate 
your willingness to yield today. I would like to just take this chance to 
introduce to you and your distinguished subcommittee a lady who is 
from mv district and with whom I snend many hours on airplanes, fly- 
ing back and forth from the District of Columbia to Louisville, our 
home. 

Mrs. Joan Titley Adams, Mr. Chairman, is testifying in your first 
panel today, and without taking any more of your valuable time, I 
would just like to commend her testimony because she is a professor 
at the University of Louisville, as well as being the librarian of the 

( 183) 



184 

Sciences Library. She has been in the Medical Li})rary Association in 
virtually all of its positions, including the board of directors. She like- 
wise holds positions in the University of Louisville on its faculty sen- 
ate. And without necessarily knowino- all the nuances of the bill before 
you, which is very complicated, I would like to commend her testimony. 

Thank you very m.uch, Mr. Chairman. 

Mr. Kastenmeier. Thank you for this introduction. I say to my col- 
league I am sorry we can't introduce all our witnesses as fully in terms 
of their biographies. 

The Chair would like to welcome Mrs. Adams and Mr. Low. I under- 
stand Mr. Low this morning will make the major presentation on behalf 
of tlie liJH-aries. Mr. Low, you may want to introduce your other col- 
leagues. You may proceed as you wish. 

TESTIMONY OF EDMON LOW, REPEESENTATIVE OF SIX IIBRAHY 

ASSOCIATIONS 

Mr. Low. Thank you, Mr. Chairman. I am Edmon Low, and I will 
today present the views of the American library community as repre- 
sented through six major library associations. With me are representa- 
tives of each of the six associations. I am happy to present to you Mr. 
Julius Marke, representing the law libraries and chairman of their 
copyright committee. Mr. McDonald, at my right, is the executive 
director of the Association of Research Libraries. At my left, Mrs. 
Adams — and Mr. Mazzoli, we share your enthusiasm for Mrs. Adams 
and her work in our library community. Next is Mrs. Sommer, who is 
representing the Music Library Association, and who is the chairman 
of their copyright committee; and Mr. Frank McKenna, who is the 
executive director of the Special Libraries Association. And then with 
us we have the members of counsel, sitting behind us here, My. Sharaf, 
who represents the Harvard L^niversity Library ; Mr. William North, 
representing the American Library Association, and Mr. Philip 
Brown, representing the Association of Research Libraries. 

Mr. Kastenmeier. Thank you. 

Mr. Low. Because of our time limitation, with your permission, 
Mr. Chairman, I shall omit some of my testimony and ask that this 
statement be admitted into the record. 

Mr. Kastenmeier. Without objection, your statement in its entirety 
will he received in the record. You may proceed, sir. 

Mr. Low. Thank you. 

We are here today to talk about library copying and the provisions 
of the copyright revision bill. PI.R. 2228. I shall be presenting, so far 
as I am able, the concerns of all these various library groups. However, 
each of these organizations will also be filing a statement of its own, 
setting forth in greater detail its individual concerns about provisions 
of the bill. All of the representatives will assist me in answering 
particular questions you may have concerning our testimony and the 
issues raised. 

Although our testimony today is limited to library photocopying 
which is the subject of this hearing, there are other provisions of the 
bill which concern us, and about which we may be making further 
statements as other hearings are scheduled. 



185 

I would like first to point out tliat, although this copyright revision 
bill has been under consideration for 10 years, the library photocopy- 
ing issue is still an important unresolved subject. In brief, as we see 
it, a question which Congress and this conunittee must decide is 
wiiether libraries will be permitted — at no additional expense — to 
continue to serve the public by the long-standing practice of providing 
single copies of copyrighted material for users' research or study. It 
IS an issue with direct and widespread impact on the general public 
and involves both the right of access to library materials and the cost 
of that access. 

In the past year there have been two major developments affecting 
this question. In the fii-st case ever brought by a publisher, the 
Williams & Wilkins Co., against a library the courts have upheld the 
photocopying of single copies of copyrighted medical journal articles 
as being within the doctrine of fair use, and not constituting infringe- 
ment of copyright. It is in part because this case consumed 7 years 
and major financial outlay that libraries are concerned about the 
second major development, which is the introduction last year into the 
Senate bill, without any hearing, of a new and undefined limitation on 
the rights of libraries ; namely, the concept of "systematic reproduc- 
tion" of either single or multiple copies of copyrighted material. 

Now when we talk about library copying, we are not talking about 
something for the benefit of libraries or librarians, we are talking 
about something that is carried on for the benefit of users of libraries 
who include citizens from all walks of life throughout the coimtry. 

When we are talking about library copying practices, we are talk- 
ing about the schoolboy in California who may need a copy of an 
article in the Los Angeles Times for a project he is working on in his 
ninth-grade class ; or about a judge in the county court in Middlesex 
County, Mass., who may find he needs a copy of a law review article 
which bears directlj'^ upon a difficult question of law which has arisen 
in the course of liis work. Or about the doctor in downstate Illinois 
who has a patient with an unusual and rare disease and the only recent 
material to be found is contained in an obscure journal published in 
Sweden, and available only through the Regional Medical Library 
system, but which article may aid him in saving his patient's life. 
And we are talking about, even, a member of this committee asking 
the Congressional Eeference Service of the Library of Congress for an 
article dealing with copyright. Or, we are talking about a musician 
who is preparing a scholarly article on the music of Mozart and needs 
to take with him to study a copy of a portion of a recently edited 
score of one of Mozart's works with which he is concerned. 

The list is endless, but I wish to emphasize that we are talking about 
an issue that very broadly affects the ability of people in this country 
to make use of their libraries which are the repository and storehouse 
of man's knowledge. 

I should note here that copyright is not a constitutional right, such 
as trial by jury of one's peers. The Constitution simply authorizes 
the Congress to create such a right. It is therefore a statutory right, 
one created by law, Avhich may be changed, enlarged, narrowed or 
abolished altogether by the Congress here assembled. It is a law en- 
acted not for the benefit of an individual or a corporation, but for 

57-7SG— 7G— pt. 1 13 



186 

the public good and with the purpose, as the Constitution expresses 
it, "to promote the progress of science and useful arts." 

Consequently, in revising the copyright law the problem for Con- 
gress is to design provisions which both encourage the creation of 
original works and permit the widest possible access and dissemina- 
tion of information to the public ; and, where these goals compete, to 
strike a balance which best serves the fundamental objective of pro- 
moting learning, scholarsliip, and the arts. 

I should like to go on to the top of page 5. At present I am director 
of the New College Library at Sarasota, Fla. New College is a small, 
but very fine, private college and its problems in this connection are 
typical of the two thousand small and medium-sized colleges through- 
out the country. While our library is liberally supported and spends 
every cent it can afford on periodical subscriptions, we cannot possibly 
have the large resources of a university like the one at Gainesville 
or at Tallahassee. Yet, our faculty memljers, if they maintain a good 
quality of teaching and do the research which contributes to it, must 
have access by random photocopying at times to the larger collections 
in the State and elsewhere. 

It is the general experience of the library communit}'' that inter- 
library loan encourages the entering of additional subscriptions by 
the library, rather than reducing the number, as is often charged by 
the publishers. It is a truism that a librarian would prefer to have 
a title at hand, rather than to have to borrow, even under the most 
convenient circumstances. Consequently, when the time comes around 
each year to consider the list of periodical subscriptions, the record 
of interlibrary loans is scanned and titles are included from which 
articles have been requested with some frequency during the year. 
While the situation varies, in our library the number is two; if we 
have had two or more requests for articles from the same title during 
the year, we enter a subscription. This not only indicates how the pro- 
cedure can help the periodical publishers, but also indicates that if 
only one article, or none was copied from a title during a year, the 
journal could not have been damaged materially in the process. 

It is not only the small schools which would suffer if such photo- 
copying were eliminated, however ; the scholars at Wisconsin or Michi- 
gan would also be severely put to it to continue their research in the 
same way, and it is these scholars who account for the major writing 
for the scholarly journals. The journals tliemselves, therefore, have 
a stake in seeing this procedure continued in a reasonable way. 

The courts have long recognized that some reproduction of portions 
of a copyrighted work for purposes of criticism, teaching, scholar- 
ship or research is desirable, and this judicial concept was incor- 
porated in section 107 of the revision bill. Libraries have operated 
all these years under this principle, but it does lack the assurance of 
freedom of liability from harassing suits. This fair use concept is 
necessarily expressed in general language in section 107 of the bill. 
So a librarian is not able to feel sure until a court decides a particular 
case whether his actions, undertaken with the best of intentions, is 
or is not an infringement. 

This is pointedly illustrated by the recently decided and prior men- 
tioned case of WilUams & Wilkhis. This suit was instituted in 1968 and 
now, only now, after years of litigation and expenditures of many 



187 

thousands of dollars on eacli side, has it been determined that the 
defendant was properly obeying the law after all. 

Fair use, then, is not really a right to copy any given thing, but 
only a defense to be invoked if one is sued. This threat of suit, even if 
one is able to maintain his innocence in court, is very real because 
suits are costly in proportion to the amount for which one is sued. This 
revision bill provides not only for a demand for actual damages, but 
also one can be sued, in extreme cases, for statutory damages up to a 
limit of $50,000 for each imagined infringement. Thus, harassing but 
unjustifiable suits are really invited by this provision. 

In light of the above we librarians believe that in addition to sec- 
tion 107, delineating fair use, further protection is needed to assure 
that it is permissible to make a single copy as an aid in teaching and 
research, including a single copy as part of an interlibrary loan trans- 
action, and that such activity on behalf of the public good is not sub- 
ject to possible suit. 

Now, I want to emphasize here that in 108, the provisions that we 
want to see maintained are not additions to 107 in the sense of pro- 
viding further opportunity for copying, but simply a more precise 
explanation of what, in relation to libraries, "fair use" means. That is, 
you can be sued, regardless of whether you are guilty or not, under 107. 
We would like to see the photocopying practices involving single 
journal articles be permitted without threats of suits. 

That assurance is now being largely provided in section 108, (a) 
through (f), for which we are very appreciative. However, we are 
greatly concerned with the addition of subsections 108(g) (1) and (2) 
which take back the very right set forth in 108 (a) through (f) in 
the most part. These are provisions which came into the bill in the 
Senate after hearings were concluded in 1973, without the oppor- 
tunity for discussions by library representatives with Senator Mc- 
Clellan's committee. Today's hearings are the first opportunity we 
have to express publicly our very deep concern. 

Before discussing subsections (g) and (h), I would like to note 
there is also a particular problem in the interpretation of section 108 
(a) which can affect the specialized libraries in business, industry, 
and commerce. This is discussed in Mr. McKenna's individual state- 
ment for the Special Library Association, and he can also answer 
questions in this regard. 

Subsection (g) (1) gives us concern because often there is no basis — 
this is one that says if an assignment was made and then people came 
in, you would have to recognize whether it was isolated, or essentially 
multiple copies. This gives us concern because there is no way for a 
library employee to judge whether a request for a copy represents an 
isolated, unrelated reproduction, as specified in 108(g)(1). For ex- 
ample, if a college instructor in a graduate seminar in English were 
to recommend to his students, some 10 men and women sitting around 
a table, that they read an article on Milton's poetry that appeared 10 
years ago in publications of the Modem LangTiage Association, and if 
two of them over the next week were to go to that college's library and 
look at that article and decide that they wanted to take copies back to 
their dormitory for further study, we don't see how there is any prac- 
tical way in which a library can prevent that kind of reproduction of 
a single copy on separate occasions, and we don't think they should 



188 

have to. Also, we do not think that the publication will be damaged 
in such a process. And yet, the Senate committee in its report on S. 
1361 cites such a particular instance. 

Section 108(g)(2) says that the rights of reproduction and dis- 
tribution do not extend to a library which "engages in the systematic 
reproduction or distribution of single or multiple copies or phono- 
records of material described in subsection (d)." The materials re- 
ferred to in (d) are journal articles or small portions of other copy- 
righted works. 

This gives us a great deal of concern because the question immedi- 
ately arises as to what constitutes "systematic reproduction." To the 
extent that we are able to puzzle it out, it appears to have been aimed 
at practices of the kind which were upheld as fair use by the Court 
of Claims in the Williams (& Wilkins case. In listening to my pub- 
lisher and author friends, the preemment example which they give 
of systematic reproduction has always been the regional medical li- 
brary system, with the National Library of Medicine at its apex. 
Those practices of the National Library of Medicine were, of course, 
upheld by the Court of Claims in Williams <& Wilhins in a decision 
which was affirmed this year by the U.S. Supreme Court. 

Now, the rest of this page goes on describing how the regional 
medical library system works, and in the interest of time I will omit 
reading that. But Mrs. Adams works with this all the time and is sure 
to answer any questions you may have concerning this, and also talks 
about it in the particular statement she filed. 

Going to the top of page 9. Another large and highly important 
type of system for which this systematic reproduction poses problems 
is that of the county and multicounty library systems throughout 
the whole country. These libraries came into being largely through 
the opportunity provided by the Federal Library Services and Con- 
struction Act. This was, and still is, an effort to bring books and other 
library materials to the millions of people, often in rural areas, w^ho 
had not heretofore had library services available. 

To get counties to join together, vote the necessary taxes, agree on 
a coinmon governing board, and gain consensus on the sites for a 
central library and for the smaller satellite libraries in the system 
is a difficult task. It is often made possible only by the promise to the 
citizens of much broader areas of information which w^ll be made 
available to them not only from their small but growing collection 
in each neighborhood, but also through loans from the central library 
and through it from larger collections elsewhere. In this, some copying 
of periodical articles is occasionally involved, but it does not result 
in fewer subscriptions — in fact, before the founding of many of these 
libraries, there were no periodical subscriptions at all in the area. 
Because interlibrary loan is one of the vital elements in this concept 
which has been so mutually beneficial to all, it is urged that no restric- 
tions be imposed which would diminish the effectiveness of the pro- 
gram. Such a diminution, if it occurred, would be as much against 
the interest of the publishers as against the citizens the libraries serve. 
I should like to give you an illustration from my home State of 
Oklahoma, which I know well. I am in Florida now, but Oklahoma is 
my native State. A few years ago, the Western Plains library system 
was established consisting of four counties in western Oklahoma. At 



189 

the time of its organization, tliere was a single library in each of two 
counties. The other two had no libraries. Now there are seven libraries 
in the four counties and tAvo bookmobiles are operating regularly. At 
the beginning, the 2 original libraries subscribed to 20 periodicals 
between them. The 7 libraries now subscribe to over 300. The combined 
annual book budget of the two original libraries was under $2,500; 
the annual book budget for the seven is now $42,000. 

In addition, they have encouraged school libraries to develop collec- 
tions of periodicals and books and are now promoting with success 
the creation of home collections of books and periodicals. This tre- 
mendous increase in acquisition of materials has obviously benefited 
the publishers of materials as well as the citizens the libraries serve. 
This kind of multicounty library is now found in every State in 
the Union, and over the 2 decades the Library Services and Construc- 
tion Act has been in existence millions of dollars of Federal money 
and matching local funds have been expended for this kind of service. 
The importance of this activity was recognized in the Senate report 
last summer, accompanying S. 1361, in the portion discussing sys- 
tematic reproduction by saying, "The photocopying needs of such 
operations as multicounty regional systems must be met," but no pro- 
vision was made in the law to specifically provide for these needs. 
Section 108(g) (2) would prohibit their copying activity, and I believe 
would do much mischief indeed. 

If I may drop to tlie last paragraph on the page. We are also con- 
cerned with section 108 (li) which would limit the rights otherwise 
granted under section 108 b}^ excluding a musical work, pictorial, 
graphic, and other audiovisual works. These exclusions are illogical. 
The need of the scholar doing research in music for a copy of a portion 
of a score is as legitimate and proper as that of the scholar doing any 
other kind of research. Likewise, the copying of one map from an 
atlas or a page of diagrams and plans from a technical journal may 
be just as important as any other kind of material for research. I will 
skip the next paragraph. 

Mrs. Susan Sommer of the Music Library Association is with us 
today and can provide further information about the problems posed 
by this section of the bill in relation to music. Dr. Frank McKenna, 
of the Special Libraries Association, is also here and can discuss the 
problems in relation to atlas or other graphic materials in books and 
periodicals. 

If I may go to the top of page 12. The paragraphs following what 
I was reading describe the formation of a study group between the 
libraries and the publishers to see if there were agreements we could 
reach in this area of photocopying ; and we have had several meetings 
in this regard. 

There are, of course, different views of the significance of the work 
performed to date by the conference and its working group. The work 
has focused upon the mechanics and the feasibility of possible mecha- 
nisms for collecting payments for photocopying of copyrighted ma- 
terials. But I should like to emphasize here that there has been no 
agreement as to whether such a payment mechanism is accei^table 
to libraries even if it is workable, and also, I m.ay say, no seemingly 
Avorkable mechanism has yet been advanced in that it still appears it 
would take dollars to collect dimes. There has also been no agreement 



190 

as to the categories of publications to which sucli a meclianism should 
be applied and no change in the position of libraries that their cur- 
rent photocopying practices are entirely lawful and within the fair 
use holding of the Williams & Wilkins case, and should not in any 
respect be treated as infringing rights of the copyright proprietor in 
the provisions of any new legislation. 

I should like to point out some reasons why we think licensing and 
payment of royalties by libraries for the photocopying they do is not 
justified. First, many publishers already have variable pricing for 
journals; that is, they charge a considerably higher price for the same 
journal for a library subscription than for an individual subscription. 
These prices to libraries often run quite high, subscriptions of $100 to 
$300 a year are not uncormnon; a few run $1,000 or more; and the 
$50 to $100 price is quite commonplace in the scientific field. These 
higher subscription prices to libraries presumably are designed in 
many cases to include charges for anticipated copying. Some journal 
publishers have also received substantial Federal assistance in mod- 
ernizing their editorial and manufacturing procedures. Other jour- 
nals, and also some of those just mentioned, have already had major 
contributions of public funds in the nature of per-page charges, usualh'- 
in the range of $50 to $100 per printed page paid by the author or by a 
Federal grant which is financing his work. 

The author, on the other hand, is usually not paid by the publisher 
for his work in writing the article, but the library or the institution 
where tlie author is located often spends a sizable amount for inter- 
library loan postage and handling to aid him in preparation of his 
article which the periodical then receives without cost. As an example, 
my own small library spent during this past year over $100 on inter- 
library loan expense for books to enable a professor to write an article 
for a historical journal, but the journal did not pay him an}' thing 
for the article. 

In the light of these contributions which the libraries and the 
public already make to the publication of these works, it seems to us 
unreasonable for journal publishers to demand still further payment 
from libraries, and eventually the public, for the occasional photo- 
copying of individual articles for library users. It seems even more 
unreasonable in view of the fact that by making the information con- 
cerned available to those with current, specific needs for it, library 
photocopying fosters the basic purpose of the authors of such articles. 
But when it also is noted that there is no evidence that the libraries' 
policies have caused publishers any harm whatsoever, and ma;/ actually 
increase their subscriptions, it is clear that such demands are completely 
unjustified and the public interest requires that they be rejected by 
Congress. 

For the reasons we have advanced, we urge that sections 108(g) 
(1), and (2), and (h) be deleted from the bill, since these sections are 
taking away the advantao:es for the most part granted in 108 (a) 
through (f ). This would also be in accord with the WUlimns & WiU^ins 
case decision and would permit libraries to continue the long estab- 
lished library service of providing a single photocopy of a single article 
or excerpt from a copyrighted periodical or book for a patron's use 
without incurring liability for copyright royalties. 

It has been a pleasure to appear before you today, Mr. Chairman, 
and I assure you that we are ready to be of assistance in any way we 



191 

can toward a satisfactory resolution of this very difficult but im- 
portant problem to us. 

Mr. Kastexmeier. Thank you, Mr. Low, for a very informative 
statement, a very useful statement. 

Off the record. 

[Discussion off the record.] 

Mr. Kastenmeier. Mr. Low, you indicated this morning that you 
and your colleagues would address the question of photocopying, but 
that there were a number of other provisions in the bill with which 
librarians were concerned, and you would hope to testify later on those 
areas; is that correct? 

Mr. Low. Yes. 

Mr. Kastenmeier. Will it be your panel, or will it be a different set 
of witnesses wo might have with respect to other questions? 

]Mr. Lev/. I think it would be this panel, but since their judgment 
may have been in question for selecting me, I can't be sure that I 
v.dll be speaking again. 

Mr. Kastexmeier. At what point in time did the photocopying 
that takes place in libraries, really originate, 10 years ago, 15 years 
ago ; can you place that point in time for us ? 

Mr. Low. The electrostatic photocopying — Xeroxing, as it is often 
called — really came to the fore about 1960, and became widely used 
in the ensuing years thereafter. However, it has not become a matter 
of enough concern, apparently — I wasn't working with the committee 
at that time — when testimony was taken before your committee in 
1965 and 1966, along there, to have been a major problem. 

It has come to the fore in recent years, particularly because there 
has been a considerable amount of photocopying because of the in- 
crease in the amount of recorded knowledge, and the impossibility 
of any library being able to have a major portion of it ; and also because 
of the information of library systems, so-called, many of which were 
not desigTied for or concerned with photocopying, but were con- 
cerned with promoting better library arrangements in the area of cen- 
tralized cataloging, and so on. 

But the creation of systems seems to have concerned particularly 
our publisher friends — and we would consider the publishers our 
friends because we have many things in common, much m.ore than our 
differences, in spite of those differences that appear before you today. 
So, we believe that these systems as yet do not pose any threats of 
damage to the publishers because they were not primarily created for 
the purpose of promoting photocopying in the sense of trying to get 
one periodical here, and let it serve for a large group in the surround- 
ing area, and discourage subscriptions by the surrounding libraries. 

Mr. IC^STEisTMEiER. I take it the provisions of the bill passed by the 
House in 1967, they also would not have been adequate, or at least ac- 
ceptable, for libraries in terms of photocopying; is that correct? 

Mr. Low. Yes. In regard to prior use, you made the statement that 
you are not attempting to encourage or narrow, but simply put in legal 
form, the judicial concept of fair use. 

Now, particularly with the suit of Williams & WilJdns — and I don't 
want to belabor that too much — where they think that some copying 
is damaging their livelihood, they can bring a suit — ^that's the weak- 
ness of 107 that we have been greatly concerned with since that time. 
This cannot be controlled if you have a periodical publisher that felt 



192 

that, well, his subscriptions were diminishino; and the reason why is 
very hard to determine; photocopying is often singled out and he 
becomes convinced that, if it weren't for photocopying, he would be 
in much better shape, so, the only thing to do is to use tlie library. 
And that may not be the reason for diminishing subscriptions at all. 
It may be a reduction in funds, and the library cannot afford to sub- 
scribe to all the journals as in the past; and that becomes an increas- 
ing problem as money for higher education is becoming more limited 
these days than it was in the late 1960-s and the last few years, and 
periodical subscriptions have to be discontinued. 

Mr. Kastenmeier. Is it your position that photocopying does not 
affect in the final analysis, in neutral terms, the number of copies that 
could be sold by the publisher of a given periodical or magazine? 

Mr. Low. We believe that, and in my experience over quite a long 
time, I found no evidence otherwise. I would like to have Mr. INIc- 
Donald, who is the director of the Association of Kesearch Libraries, 
and represents the large research libraries who do more copying than 
the smaller libraries, but often in response to requests that come in 
from them, to comment on that, too. 

Mr. McDoxALD. I would be happy to. What evidence there is sug- 
gests that subscriptions are not diminished. That the practice of inter- 
library loans in fact tends to advertise journals and to increase sales. 
Wo know less about this than we would like to know, but we look to 
Britain for a model. As you may know, the British Government has 
established a national library service. The British Library Lending 
Division has evidence that its loans of periodicals and photocopies of 
journals promote subscriptions. Very often from the field the}- get a 
request for any issue of a given journal. The obvious intent of that 
request is to inspect that issue with the thought of entering a sub- 
scription. They have done a little checking on this and have deter- 
mined that this advertising effect has, in fact, resulted in subscriptions. 

I would go on to say that our friends on the publishing side have 
never really entered any evidence of economic damage. Certainly in 
the Williams <& Wilkins case, no such evidence was presented. 

Many libraries feel that interlibrary loan practice is a stimulus to 
publication and research, and that rather than resulting in damage, 
quite the opposite is true. 

]\Ir. Kastenmeier. Of course, I think it could be predicted that 
many publishers w-ould be sensitive because there are many publica- 
tions which are, in terms of interest and specialty, very narrow in- 
deed — medical publications, for example — and therefore there is a lim- 
ited opportunity to develop subscriptions. And if that is in any way 
diminished, it w-ould probably be terribly harmful to that publication. 
But, it is difficult to judge, as you say, what the cause may be. 

Now, in terms of your working group, I take it you are considering 
this is an ongoing enterprise, and you are considering a number of 
alternatives; one would be what the language should be in terms of 
limitation of the construction of "fair use," or whether copying should 
be permitted with some sort of royalty which you suggested, talking 
about dollars and dimes. "Wliich would you prefer? Would you prefer a 
wider, a broader availability in terms of photocopjdng with smaller 
fees attached, or a somewhat more restricted statutory permission 
to copy ? 



193 

Mr. Low. As I indicated, we feel at the present time that no fee 
should be charged. Wien we started out in the working group, the 
first thing we attacked was the systematic copying; that is, what con- 
stituted systematic copying. And we were totally una,ble to reach 
agreement on that. Some of our publishers insisted that the existence of 
a union list of serials and State and regional list of periodicals that 
shows where the periodicals can be located, the existence of these lists 
constituted a system in itself, and consequently all interlibrary loans 
became systematic and prohibited. 

Others felt that at least the large research libraries which did 
much copying, simply by the amount of copying they did it must be 
systematic automatically'^ because of the amount they did. 

I tried to point out that often this amount done by the large re- 
search libraries was smaller libraries like mine turning to them for 
copies of articles, and so on, which seemed that it would be acceptable 
in a way. So, we were not able to reach any consensus on systematic 
copying. 

The work we have done on the mechanism was simply to see whether 
there was any mechanism that was feasible, in case it was desirable. 
IVe didn't agree that any mechanism that involved royalty payments 
was desirable at this time. But we have been investigating as to whether 
or not it was feasible; if Jiot, there wasn't much point in considering 
further whether it was desirable or not. 

We have not yet come up with a feasible mechanism that seems at 
least to me Avorkable. 

jNIr. Kastenmeier. One last question. In terms of the bill before 
this committee, H.E. 2223, the recommendation that you make in the 
language on behalf of the library users with respect to photocopying is 
that sections 108(g) (1), (2), and subsection (h) be deleted from 
the bill. This is the only recommendation you would make with refer- 
ence to 108 ? 

Mr. Low. Yes; well, we have a little concern with 108(a) (2), which 
affects the Special Libraries Association in which Mr. McKenna 

Mr. McKenxa. May I correct that? That is section 108(a) (1). 

Mr. Low. Yes. 

]\Ir. McKenna. The present language is, "The reproduction or dis- 
tribution is made without any purpose of direct or indirect commercial 
advantage." 

Now, the question arises, what is the interpretation to be placed on 
"direct or indirect commercial advantage"? The majority of the spe- 
cialized libraries exist in business and commerce, and their parent orga- 
nizations have a direct or indirect commercial interest and commercial 
advantage, profit, or lower prices, hopefully. 

It has occurred to us that the existing language of section 108 (a) (1) 
may have been intended to proliibit a commercial advantage to an 
unauthorized reprinter, or republisher, without thinking, or realizing 
that special libraries existed in American business. 

So that in the statement of the Special Libraries Association we 
have recommended two possible alternatives. One is to add to the 
existing words so that it will read, "Without any purpose of direct 
or indirect commercial advantage to a reprinter, or republisher." 



194 

The alternate suggestion is that, through appropriate commen- 
tary in the legislative history, it indicates that the provision is not in- 
tended for special libraries. 

Mr. Kastenmeier. I will now yield to the gentleman from Cali- 
fornia, Mr. Danielson. 

Mr. Danielson. Will you tell me, please, what procedures the li- 
braries used for copying prior to the advent of the quick copying 
machines ? 

Mr. Low. The photographic method had been used for a long time, 
dating back even prior to the first Copyright Act. It was a diifferent 
photographic process, photographing the page instead of Xeroxing. 

Mr. Danielson. You are talking about a large, somewhat cumber- 
some photostat machine, and it made usually a white copy on black 
paper. 

Mr. Low. That is correct. 

Mr. Danielson. And that was fairly expensive to operate, was it 
not? 

Mr. Low. Yes ; it was. 

Mr. Danielson. And per page the product was maybe something 
like 50 cents, something like that ? 

Mr. Low\ Yes. And also, as a result of that and the inconvenience, 
we shipped much more material, sent the whole volume. 

Mr. Danielson. Just sent them the book, let them look at it, and 
send it back. 

Mr. Low. That's right. 

Mr. Danielson. Now, under those circumstances, did you have many 
complaints — I'm going to use the word in the very broad sense — from 
the publishers of the journals and books ? 

Mr. Low. Not that I know of. Of course, sending the material was 
completely legal. 

Mr. Danielson. I have a very narrow area of inquiry. You did not 
have complaints at that time. 

Mr. Low. No ; we did not ; I believe that's correct. 

Mr. Danielson. In other words, it was the advent of the quick copy- 
ing, and low-cost copying that brought on that problem. 

Mr. Low. That's correct. 

Mr. Danielson. You mentioned in your statement that with some 
technical journals, at least, there is a different subscription rate for the 
library than for, I guess you would call it, the individual subscriber. 

Mr. Low. Yes. 

Mr. Danielson. Would you give me some examples of that, please? 

Mr. Low. I have a list of examples, but when I looked in my 
folder 

Mr. Danielson. Just a few off the top of your head. 

Mr. Low. Well, the American Behavioral Sciences is one, I remem- 
ber making the list. 

]Mr. Danielson. Sir, I'm not that interested in the title, but do you 
mean it's $1 for the private citizen, and $100 for the library? Give 
me some examples of the difference, please. 

Mr. Low. Not that spread. I went through my own libraiy, went 
through the A's, and found about 40 just in the A's alone, and that is 
a small collection. It is a going practice. 

Mr. Danielson. Would you give me an example, please ? 



195 

Mr, Low. Of the price ? 

Mr. Danielson. Yes, please. 

Mr. Low. The price will run from $12 for the individual and $30 
for the library. It's often double the individual price, to the library ; 
sometimes the spread is much wider than that. 

Mr. Danielson. Is that a published practice ? By that I mean, does 
it appear within the publication that the subscription for a library is 
three x dollars, and for the individual one and a half a?, maybe. 

Mr. Low. That is correct. 

Mr. Danielson. You are confident that is a prevailing practice. I see 
five heads nodding affirmatively, and one is rather umnoving, here. 
[Laughter.] 

Mr. Low. Yes, that is an established practice. 

Mr. Danielson. All right, that's good enough. 

Last, on these technical journals, what is the practice in the trade 
as to this one respect, are they sold by subscription exclusively, or are 
they sold by subscription and also sold through retail outlets, as we 
pick up a magazine at a newsstand, for example ? 

;Mr. Low. Most of these are not sold, you do not find them in the 
newsstand ; I believe I'm correct on that. 

Mr. Danielson. Well, I used the words "retail outlets" to differen- 
tiate from newsstand, because I imagine there is some place besides 
newsstands where you can buy them. 

Mr. Low. I don't believe you can buy them — of course you have 
subscription agents where you can place your subscription, most li- 
braries do in order to get the list all on one bill. But not the retail 
outlets, in any way, shape, or form. 

Mr. Danielson. You don't run out and get one like you get last 
month's copy of — whatever. 

Mr. Low. No ; you do not. 

Mr. Danielson. You subscribe for a year, or a period of time. 

Mr. Low. Yes. 

Mr. Danielson. The gentleman on the end has a comment, please. 

Mr. Marke. ;My name is ;Marke. I think it should be recognized that 
many of these publications are out of print within a period of 2 
months, or 3 months after the issue has been made available to the 
public. So, it is not even possible to buy it through any source. 

Mr. Danielson. Well, that's my third question. Once they are out 
of print, the subscriptions have all been sent out through the mail, 
suppose you want to pick up a copy of, let us say. May 1970 — that's 
5 years ago — issue of Journal XYZ, a technical journal, where do you 
get it? 

Mr. Marke. It's a rare occasion when this is available through the 
publisher. 

Mr. Danielson. In other words, you write to the publisher, you in- 
quire of the publisher, does he have a spare copy ; is that the way it 
is done ? 

Mr. Marke. Yes. 

Mr. Danielson. The second gentleman has an answer for us. Wliat 
is your name, please ? 

Mr. McDonald. McDonald. Mr. Danielson, people subscribe to the 
periodicals, but they have neither the space nor the money to keep and 



196 

bind these periodicals, except the large libraries, such as represented 
by the Association of Research Libraries, which are the libraries of 
record. They do assume the responsibility of keeping and binding back 
jfiles of periodicals. 

So, when a request comes to us, it may well come from an individual 
xyr library wliich once subscribed to that periodical, paid the subscrip- 
tion price, but did not choose to keep and bind it. 

Mr. Danielson. Well, suppose I'm doing some research and I find 
through the Library of Congress there is an article in a 4- or 5-year- 
old issue of a technical journal — forget that I have access to the Li- 
brary of Congress — where would I get it ? 

Mr. IMarke. Well, on occasion some libraries might have accumu- 
lated some extra copies in what is called the "dup. list," and librarians 
very carefully go through these dup. lists — duplicate lists — to see 
whether any of these issues are available through that list. But other- 
wise there is no formal structure. 

]Mr. Danielson. I, an individual citizen, how would I find it? I 
didn't know there was a dup. list, how would I find it ? 

Mr. Marke. You couldn't. 

Mr. Danielson. That's the question. 

I have no further questions, I yield to the gentleman from New York, 
Mr. Pattison. 

Mr. Pattison. Thank you, Mr. Chairman. 

I might just as an aside say of the use of the word "Xeroxing," that 
if the general counsel of Xerox reads that in the testimony, he will 
lose whatever little hair he has left. 

]Mr. Danielson. That's a real hazard. [Laughter.] 

Mr. Pattison. To you, maybe. [Laughter.] 

Mr. Pattison. I would like to point out a few things. You refer to the 
Williams c& WiJkhu case as being "affirmed" by the Supreme Court. 
In fact, the Supreme Court's was a 4-to-4 decision, I believe. I don't 
believe it can be said it was "affirmed." I think then it was a 4-to-3 
decision in the Circuit Court of Claims. I think that kind of indicates 
the problem that we will be having, that you have. Yes, sir? 

Mr. McDonald. With all respect, Mr. Pattison, I believe that the 
language of the decision passed down by the court says, "By reason of 
a divided court the decision of i^ao, lower court is affirmed" ; those are 
the words that the Supreme Court used. 

]Mr. Pattison. OK. I was trying to point out that was not one of 
those decisions where reasonable men would not disagree. [Laughter.] 
Like yourself, some of my best friends are publishers also. [Laughter.] 

Mr. McDonald. We are trying to be very scrupulous about this and 
resisted the temptation to say that the decision was "upheld" because 
the Supreme Court avoided using that word itself. 

]\Tr. Pattison. The thing that I see here, this whole dispute, is not 
so different from that, for instance, with the CATV dispute. Every- 
l)ody seems to say, we are helping the other guy more than he has been 
hurt. The CATV peo]:)le said the same thing about broadcasting. 
Broadcasting was delighted to have CATV out there when there was 
nobody competing with them; it increased their market. Then, all of 
a sudden when you get the overlapping signals, and duplication, you've 
got a different thing. That kind of competing interest, I think, is well 
pointed out in your statement that, indeed, there must be some sort of 



197 

a reasonable compromise that will probably be acceptable to no one. but 
will probably be arrived at somewhere along the line, or we won't get a 
bill passed at all. 

I just have one minor question about your statement on page 12. You 
referred to something that I'm not familiar with, and I'm just curious 
about it, where it says, "Some journal publishers have received sub- 
stantial Federal assistance in modernizing their editorial and manu- 
facturing procedures," and I don't know what you are referring to 
there ; I'm just curious as to what that is. 

]\Ir. Low. John, would you care to comment on that ? 

Mr. ]McDoNALD. I'll try, but I believe Mr. McKenna knows more 
about it than I. Many of the scholarly societies, the American Chemical 
Society, have had assistance from Federal agencies, such as the Xa- 
tional Science Foundation, in one or another of their pursuits. The 
nature and extent of these subsidies is not something I am an expert 
on by any means, but there are further subsidies that might be cited. 

Often the authors who publish in these journals have conducted 
their research with Federal support. As ]Mr. Low's testimony points 
out. the publishers are paid page charges to get this information dis- 
tributed through these periodicals. The subscription prices themselves 
liave risen, I believe, in excess of the cost of living. So, it seems that 
these subscriptions have been bought and paid for quite adequately, 
and the notion of some further charge, or surcharge in the form of a 
royalty or licensing payment, I think, would be excessive. 

Mr. Low. I believe Mr. McKenna has some additional examples. 

Mr. McKenna. Mr. McDonald mentioned professional societies. I am 
aware of subsidies that have been paid by the National Science Founda- 
tion to a commercial publisher to acquire cold typesetting equipment, 
so that he has been able to establish a relatively large printing plant, on 
the basis that his publications were of national interest, covered 
translations of Soviet periodicals. 

Mr. Pattison. I see. The other item that I think will be examined 
by us further is that by other testimony I know that in the Willia7ns 
& WilMns case, that firm has developed statistics, demonstrating — 
to the extent it can be demonstrated, it is obviously so full of other 
factors that it is difficult to demonstrate — demonstrating a loss of 
subscriptions. 

That is a point of dispute, whether they lose, or don't lose. But if 
in fact the publishers were convinced that they didn't lose, and if 
in fact they were convinced that they increased their subscriptions, 
we wouldn't be having this discussion right now. So, I think that 
probably is a point of dispute and something I would like to hear 
some more about. 

Mrs. Adams. May I speak to that, sir ? 

Mr. Pattison. Certainly. 

Mrs. Adams. I am a medical librarian. We were very much in- 
volved in this suit. If you notice the rate of increased numbers of 
subcriptions from the early 1960's up to, say, 1969 or 1970, this is 
during the period, as was mentioned, when the rapid, efficient repro- 
duction of materials became available, you will see that there was a 
constant rise in the number of subscriptions that were taken by pub- 
lishers, including Williams & Wilkins. 



198 

So, from the period, say, of the late 1960's to now, there has been 
a definite decline. My own library has had to cut back on subscrip- 
tions, and that has nothmg to do with the photocopies, it is simply 
a reality of frozen budgets within universities, and having to examine 
highly specialized journals ; it has nothing to do with photocopying. 

Our i3liotocopying has increased because of our involvement with 
the regional medical library program. That supplies copies of highly 
specialized articles to physicians and health professionals in rural 
areas, some 50 to 150 miles from us, and we supplied over 600 items 
in just 1 year. There is no way that they could, in their small hos- 
pital libraries, have such collections. 

But the answer goes back to, there is a correlation between decreas- 
ing amounts of money available to education and research, and the 
decrease in number of subscriptions. We don't find that relates to 
photocopies. 

Mr. Danielson. Which of course demonstrates the difficulty of the 
problem. If you convince the publishers of that, we will have no 
I)roblem. 

Mrs. Adams. We have been trying. 

Mr. Marke. You may recall that the Court of Claims actually stated 
in its opinion that there was inadequate reason to believe that it — ^the 
publisher — was being harmed specifically 

Mr. Pattison. I'm aware of that holding. The figures that have been 
developed by Williams & Wilkins are quite extensive, since that time. 

Mr. Low. I wanted to say, in regard to saying the publishers felt 
they would be for the copying if they felt it would increase their 
publications, I feel that the copying now is not affecting the number 
of subscriptions, and I think they pretty much realize that too. 

I think they are concerned about what may come in the future —  
without putting words in their mouths — ^but we found that in discus- 
sion with them. Here it has been now over 60 years since we have had 
a copyright law; they see systems increasing, networks being estab- 
lished 

Mr. Danielson. I would like to urge that we conclude expedi- 
tiously, we have four more witnesses. I don't want to cut you off, but 
could you make your answers as precise as possible ? 

Mr.' Pattison. I think I miderstand that problem. I think I can 
understand, and I am sure you can, too, some of the concerns the 
publishers may have. If in fact people do decide that there is no pro* 
tection at all, then all the lawyers in the town can get together, for 
instance, and subscribe to the lejral journals and iust send them around. 
I'm not saying that lawyers could ever agree to that, they can't 
agree on anything, but that kind of thing could happen. I suppose 
that is the answer, the prospective problem is worse than the current 
one. 

Mr. Marke. I'm sorry, just in this context, there is also an obliga- 
tion on the publishers, perhaps, to change their practices, they haven't 
been changed since Gutenberg. They ought to look into this area and 
see what they can provide in the way of services, which would increase 
their profit as well. We want to cooperate with them, we want to give 
them every opportunity to make a profit. 

Mr. Pattisoist. That is a very good point. 



199 

Mr. Danielson. Will someone give me a very concise definition of 
"page charges", what are they, and who pays them to whom ? 

Mrs. Adams. Authors pay publishers of scientific and technical jour- 
nals. These charges are based on the length of the article. 

Mr. Daneelson. In other words, if I have written a scintillating 
article on something I must pay the publisher to have it published. 

Mrs. Adams. That's right. 

Mr. Danielson. Thank you. 

Thank you, ladies and gentlemen for a very informative discussion 
here. We will move along rather quickly because we have four more 
witnesses who will, I know, help us solve tliis simple little problem. 

[The prepared statement of Edmon Low is as follows :] 

Statement of Edmon Low, Representing American Association of Law Li- 
braries, American Library Association, Association of Research Libraries, 
Medical Library Association, Music Library Association, Special Libraries 
Association 

I am Edmon Low, Director of the Library of New College, Sarasota, Florida. 
Today I will present the views of the American library community as represented 
through six major library associations. With me are representatives of each 
of the six associations, and three attorneys. These individuals are here to 
answer questions of particular concern to the members of their associations, 
if Members of the Subcommittee so desire. 

I am happy to introduce them to the Subcommittee at this time. The in- 
dividuals at the witness table are from my right (the Committee's left), 
American Association of Law Librarians, Julius J. Marke, Chairman of the 
AALL Copyright Committee; Association of Research Libraries, John P. Mc- 
Donald, Executive Director. Sitting behind Mr. McDonald is the ARL counsel, 
Philip B. Brown of the law firm Cox, Langford, and Brown, Washington, D.C. ; 
American Library Association — I am representing ALA as Chairman of its Copy- 
right Subcommittee, as well as presenting the unified testimony. Sitting behind 
me is the ALA counsel, William D. North of Kirkland and Ellis law firm in 
Chicago ; Medical Library Association — Mrs. Joan Titley Adams, Chairman of the 
MLA Copyright Committee; Music Library Association, Mrs. Susan Sommer, a 
member of the Association's Board of Directors and Chairman of its Copyright 
Subcommittee ; Special Libraries Association — Dr. Frank E. McKenna, Execu- 
tive Director. Sitting behind Dr. McKenna is James A. Sharaf, Counsel of the 
Harvard University Library. 

We are here today to talk about library copying and the provisions of the 
copyright revision bill (H.R. 2223). Because our time for presentation of testi- 
mony is very limited, I shall be presenting so far as I am able in the time allotted 
the concerns of all these various groups. However, each of these organizations 
will also be filing a statement of its own setting forth in greater detail its indi- 
vidual concerns about provisions of the bill, and all of these representatives will 
assist me in answering particular questions you may have concerning our tes- 
timony and the issues raised. Although our testimony today is limited to library 
photocopying which is the subject of this hearing, there are other provisions of 
the bill which concern us and about which we may be making further statements 
as other hearings are scheduled. 

I would like first to point out that, although this copyright revision bill has 
been under consideration for ten years, the library photocopying issue is still r.n 
important unresolved subject. In brief, the question which Congress must decide 
is whether libraries wiU be permitted — at no additional expense — to continue 
to serve the public by the long-standing practice of providing single copies of 
copyrighted material for a user's research or study. It is an issue with direct and 
widespread impact on the general public. It involves both the right of access to 
library materials and the cost of that access. 

In the past year there have been two major developments affecting this ques- 
tion. In the first case ever brought by a publisher, the Williams & Wilkins Com- 
pany, the courts have upheld the photocopying of single copies of copyrighted 
medical journal articles as being within the doctrine of fair use and not consti- 



200 

tuting infringement of copyriglit. It is in part because this case consumed seven 
years and major financial outlay that libraries are concerned about the second 
major development, which is the introduction last year into the Senate bill, 
without any hearing, of a new and undefined limitation on the rights of libraries, 
namely, the concept of "systematic reproduction" of either single or multiple 
copies of copyrighted material. 

Now, when we talk about library copying we are not talking about something 
for the benefit of libraries or librarians, we are talking about something that 
is carried on for the benefit of users of libraries who include citizens from all 
walks of life throughout the country. When we talk about library copying prac- 
tices, we are talking about the schoolboy in Caliiornia who may need a copy 
of an article in the Los Angeles Times for a project he is working on in his 
ninth-grade class ; we are talking about a judge in a county court in Middlesex 
County, Massachusetts, who may find he needs a copy of a law review article 
which" bears directly upon a difficult question of law which has arisen in the 
course of his work ; we are talking about a doctor in downstate Illinois who 
has a patient with an unusual and rare disease and the only recent material to 
be found is contained in an obscure journal published in Sweden and available 
only through the Regional Medical Library System, but which article may aid 
hiiu in saving his patient's life ; we are talking about a Member of this Com- 
mittee asking the Congressional Reference Service of the Library of Congress 
for an article dealing with copyright ; and we are talking about a musician who 
is preparing a scholarly article on the music of Mozart and needs to take with 
him to his study a copy of a portion of a recently edited score of one of Mozart's 
works with which he is concerned. The list is endless, but I wish to emphasize 
that we are talking about an issue that very broadly afiiects the ability of people 
in this country to make use of their libraries which are the repository and store- 
house of man's knowledge. 

It should be noted here that copyright is not a constitutional right, such as 
trial by jury of one's peers. The Constitution simply authorizes Congi-ess to 
create the right. It is therefore a statutory right — one created by law- — and may 
be changed, enlai'ged, narrowed, or abolished altogether by the Congress here 
assembled. It is a law enacted not for the benefit of an individual or a corpor- 
ation but for the public good and with the purpose, as the Constitution expresses 
it, "to promote the progress of science and useful arts." Consequently, in revis- 
ing the copyright law the problem for Congress is to design provisions which 
both encourage the creation of original works and permit the widest possible 
access to and dissemination of information to the public ; and, where these goals 
compete, to strike a balance which best serves the fundamental objective of 
promoting learning, scholarship, and the arts. 

It is now generally understood that a single collection of books or other re- 
corded forms of thought as represented by any library can contain only a fraction 
of the total amount of material in existence. Even the Library of Congress, pos- 
sibly the largest single collection of materials in the world, does not have many 
thousands of titles which exist in the United States, to say nothing of those else- 
where in the world, while on the other hand even a relatively small library will 
often have titles not found anywhere else in the country. The location and cata- 
loging of these titles, and of articles and journals, and the making of some avail- 
able readily through photocopying or loan — the dissemination of knowledge — is 
indispensable to education and research and often involves the re])rodnction by 
photocopying of a portion of a monograph or a journal article protected by copy- 
right. 

Library photocopying may be roughly divided into two groups, the first being 
that done either by a member of a library staff or by the user himself from 
material in the library for immediate use on the premises or nearby ; the second. 
th.Tt done by one library for and at the request of another library, often some 
distance away, for use by one of its patrons there. The first is oft^n designated 
"in-bouse'' copying, while the second we usually refer to as "'interlibrary loan." 
The first is often necessary if a patron is to compare and study several'articles 
from large bound reference volumes as for instance a student writins a term 
paper in the lilu-ary. The second is of vital impoi-tance in that the scholar or 
other user does not have the document in hand and therefore it is his only prac- 
tical access to what may be highly important material for information or re- 
search. 

At present I am Director of the New College Library at Sarasota, Florida. New 
College is a small, but very fine, frivate college and its problems in this con- 



201 

nectioD are typical of the two thousand small and medium-sized colleges through- 
out the country. While our library is liberally supported and spends every cent 
it can afford on periodical subscriptions, we cannot possibly have the large re- 
sources of a university like the one at Gainesville or at Tallahassee. Yet our 
faculty members, if they maintain a good quality of teaching and do the research 
which contributes to it, must have access by random photocopying at times to 
the larger collections in the state and elsewhere. 

It is usually not known that the interlibrary loan arrangement often encour- 
ages the entering of additional subscriptions by the library rather than reducing 
the number as is often charged. It is a truism that a librarian would prefer to 
have a title at hand rather than to have to borrow even under the most con- 
venient circumstances. Consequently, when the time comes around each year to 
consider the list of periodical subscriptions, the record of interlibrary loans is 
scanned and titles are included from v.-hich articles have been requested with 
some frequency during the year. While the situation varies, in our library the 
number is two ; if we have had two or more requests for articles from the same 
title during the year, we enter a subscription. This not only indicates how the 
procedure can help the periodical publishers, but also indicates that if only one 
article or none was copied from a title during a year, the joiirnal could not have 
been damaged materially in the process. It is not only the small schools which 
would suffer if such photocopying were eliminated, however; the scholars at 
Wisconsin or Michigan would also be severely put to it to continue their research 
in the same way, and it is these scholars who account for the major writing for 
the scholarly journals. The journals themselves, therefore, have a stake in seeing 
tliis procedure continued in a i*easonable way. 

Courts have long recognized that some reproduction of portions of a copyrighted 
work for purposes of criticism, teaching, scholarship or research is desir- 
able and this judicial concept, known as "fair use," is incorporated in sec- 
tion 107 of the revision bill. Libraries have operated all these years under this 
principle, but it does lack the assurance of freedom of liability from harassing 
suits which the librarian needs in his work. This fair use concept is necessarily 
expressed in general language in tJie bill, so a librarian will not be able to be sure, 
until a court decides a particular case, whether his action, undertaken with the 
best of intentions to aid a patron, is or is not an infringement. This is pointedly 
illustrated by the recently decided, previously mentioned case of Williams «& 
Wilkins vs. the National Library of Medicine and the National Institutes of 
Health for photocopying. This suit was instituted in 1968 and only now after years 
of litigation and expenditures of many thousands of dollars on each side has 
it been determined that the defendants were properly obeying the law after all. 
Fair use, then, is not really a right to copy any given thing, but only a defense 
to be invoked if one is sued. This threat of suit, even if one is able to maintain 
his innocence in court, is very real because suits are costly in proportion to the 
amount for which one is sued. This revision bill provides not only for demand for 
actual damages, but also one can be sued for statutory damages up to limit of 
$50,000 for each imagined infringement. Thus, harassing but unjustifiable suits 
are really invited by this bill. 

In light of the above, we librarians believe that In addition to Section 107 
delineating fair use, further protection is needed to assure that it is permissible 
to make a single copy as an aid in teaching and research, including a single copy 
as part of an interlibrary loan transaction, and that such activity, in behalf of 
the public good, is not subject to possible suit. This assurance has now been 
largely provided in parts of section 108 (a) through (f), for which we are very 
appreciative. However, we are greatly concerned with the addition of subsections 
108 (g) (1) and (2), and (h), which take back the very rights set forth in 108 
(a) through (f). These are provisions which came into the bill in the Senate 
after hearings were concluded in 1973, without the opportunity for discussion by 
library representatives with Senator McClellan's Subcommittee. Today's hearings 
are the first opportunity we have had to express publicly our very deep concern. 
Before discussing subsections (g) and (h), I would like to note tliere is also a 
particular problem in the interpretation of section 108(a) which can affect 
specialized libraries in business, industry, and commerce. This is discussed in the 
individual statement of the Special Libraries Association. 

Subsection (g) (1) gives us concern because often there is no basis for a library 
employee to judge whether a request for a copy represents "isolated and unrelated 
reproduction" as specified in sec. 108(g)(1). For example, if a college in- 
structor in a graduate seminar in Englisli were to recommend to his students, 

57-786— 76— pt. 1 14 



202 

some ten men and women sitting around a table, that they read an article on 
Milton's poetry that appeared ten years ago in Publications of the Modern 
Language Association, and if two of them over the next week were to go to that 
college's library and look at that article and decide that they wanted to take 
copies back to their dormitory for further study, we don't see how there is any 
practical way in which a library can prevent that kind of reproduction of a single 
copy on separate occasions, and we don't think they should have to. And yet, the 
Senate Committee report on S. 1361 (S. Rept. 93-983) cites such an instance. 

Section 108(g) (2) says that the rights of reproduction and distribution do not 
extend to a library which "engages in the systematic reproduction or distribution 
of single or multiple copies or phonorecords of material described in subsection 
(d)." The materials referred to in (d) are journal articles or small portions of 
other copyrighted works. 

The question immediately arises as to what constitutes systematic reproduc- 
tion. To the extent that we are able to puzzle it out, it appears to have been 
aimed at practices of the kind which were upheld as fair use by the Court of 
Claims in the Williams d Wilkins case. In listening to my publisher and author 
friends, the preeminent example which they give of systematic reproduction has 
always been the Regional Medical Library System, with the National Library of 
Medicine at its apex. Those practices of the National Library of Medicine were, 
of course, upheld by the Court of Claims in Williams d Wilkins in a decision 
which was affirmed this year by the United States Supreme Court. 

Now, how does the Regional Medical Library system really work? Well, it 
starts oft with the user, who discovers that he needs access to some particular 
information, often found in an article in a professional journal in the biomedical 
field. He usually starts off by going to the library in the hospital with which his 
practice is affiliated, and may find it there. If it is one of the most important 
journals, the hospital may well have it. But, since there are thousands of journals 
in the medical and health sciences field, the chances are that the hospital library 
may not have this, particularly if it is older material. The request would then go 
to one of the eleven Regional Medical Libraries over the country which are sup- 
ported by Congress, and from there as a last resort to the top of the pyramid 
which is the National Library of Medicine and which now has over 25,000 differ- 
ent journals, the biggest medical collection in the world. It is obviously not pos- 
sible for the smaller hospital library, or sometimes even the Regional Medical 
Library, to have a sizable portion of this vast amount of material, so some kind of 
access, such as photocopying, must be relied upon to get the information to the 
doctor or the other health professional when urgently needed. This kind of orga- 
nization of access to scientific and technical knowledge seems to us to be the 
intelligent way of doing things. It should be noted also that the Regional Medi- 
cal Libraries are not only striving to augment their collections as rapidly as 
possible but likewise are urging the smaller hospital libraries to upgrade theirs, 
thus providing all along the line an ever-increasing number of subscriptions 
with accompanying increased financial gain for the publishers. Mrs. Joan Titley 
Adams, of the Medical Library Association, who is with us here today, can pro- 
vide for any of the Committee members who are interested further details about 
this highly significant work in the medical and health fields. 

Another large and highly important type of system for which this systematic 
reproduction poses problems is that of the county and multi-county library sys- 
tems throughout the whole country. These libraries came into being largely 
through the opportunity provided by the federal Library Services and Construc- 
tion Act. This was and still is an effort to bring books and other library materials 
to the millions of people, often in rural areas, who had not heretofore had library 
service available. To get counties to join together, vote the necessary taxes, agree 
on a common governing board, and gain consensus on the sites for a central li- 
brary and for the smaller satellite libraries in the system is a diflScult task. It is 
often made possible only by the promise to the citizens of much broader areas of 
information which will be made available to them not only from their small but 
growing collection in each neighborhood, but also through loans from the central 
library and through it from larger collections elsewhere. In this, some copying of 
periodical articles is occasionally involved, but it does not result in fewer sub- 
scriptions — in fact, before the founding of many of these libraries there were no 
periodical subscriptions at all in the area. 

Because interlibrary loan is one of the vital elements in this concept which 
has been so mutually beneficial to all, it is urgent that no restrictions be imposed 



203 

which would diminish the effectiveness of the program. Such a diminution, if 
it occurred, would be as much against the interest of the publishers as against the 
citizens the libraries serve. Let me give you an illustration from my home state of 
Oklahoma which I know well. A few years ago, the Western Plains Library 
System was established consisting of four counties in Western Oklahoma. At the 
time of its organization, there was a single library in each of two counties. The 
other two had no libraries. Now there are seven libraries in the four counties 
and two bookmobiles are operating regularly. At the beginning the two original 
libraries subscribed to 20 periodicals between them. The seven libraries now 
subscribe to over 300. The combined annual book budget of the two original 
libraries was under $2500. The annual book budget for the seven is now $42,000. 
In addition, they have encouraged school libraries to develop collections of peri- 
odicals and books and are now promoting with success the creation of home col- 
lections of books and periodicals. This tremendous increase in acquisition of 
materials has obviously benefited the publishers of materials as well as the 
citizens the libraries serve. 

This kind of multi-county library is now found in every State in the Union, 
and over the two decades the Library Services and Construction Act has been in 
existence millions of dollars of federal money and matching local funds have 
been expended for this kind of service. The importance of this activity was 
recognized in the Senate report last summer accompanying S. 1361 (S. Rept. 
93-9S3) in the portion discussing systematic reproduction by saying, "The photo- 
copying needs of such operations as multi-county regional systems must be met," 
but' no provision was made in the law to specifically provide for these needs. 
Section 108(g) (2) would prohibit their copying activity and do much mischief 
indeed. 

It was also pointed out to our publisher friends that many systems are not 
organized for the purpose of copying materials of any kind. For example, one of 
the large "systems" is SOLINET, an acronym for Southeastern Library Net- 
work. This is a group of about 100 libraries in the Southeastern States devoted 
solely to providing centralized cataloging and catalog card preparation and dis- 
tribution to member libraries. Other systems have the purpose of encouraging 
the building of better library collections and the bringing to the area more jour- 
nals, sets and bibliographies not now represented in the areas. To say that a 
library merely because it happens to belong to such a "system" is prohibited 
from photocopying where if it did not belong, it would be permitted to do so, 
seems to us farfetched indeed. 

We are also concerned with section 108(h) which would limit the rights other- 
wise granted under section 108 by excluding a musical work, pictorial, graphic 
and other audiovisual works. These exclusions are illogical. The need of the 
scholar doing research in music for a copy of a portion of a score is as legitimate 
and proper as that of the scholar doing any other kind of research. Likewise, the 
copying of one map from an atlas or a page of diagrams and plans from a tech- 
nical journal may be just as important as any other kind of material for 
research. 

It seems to us that libraries ought to be encouraged to collect and preserve all 
of the forms in which knowledge is published and distributed, and that it should 
be possible for users of libraries to have access for their study and scholarship 
to all of these forms, not just some of them. If a student of the cinema asks a 
library to make a copy for him of a few selected frames of some famous motion 
picture which is being studied, so that he may consider at his leisure a certain 
key point which is made in an article he is reading, we think the library ought to 
be able to do that. 

Mrs. Susan Sommer of the Music Library Association is with us today and 
can provide further information about the problems posed by this section of the 
bill in relation to music. Dr. Frank McKenna, of the Special Libraries Associa- 
tion, is also here and can discuss the problems in relation to atlas or other graphic 
materials in books and periodicals. 

In reporting S. 1361 last July, the Senate Judiciary Committee recommended 
that "representatives of authors, book, and periodical publishers and other owners 
of coprighted material meet with the library community to formulate photo- 
copying guidelines to assist library patrons and employees." And concerning 
library photocopying practices not authorized by the reported bill, the Committee 
recommended "that workable clearance and licensing procedures be developed." 

In response to this request by the Senate Judiciary Committee, representatives 



204 

of the different views on this subject were convened in November 1974 by invita- 
tion of the Register of Coyprights and the Chairman of the National Commission 
on Libraries and Information Science. The resulting "Conference on Resolution of 
Copyright Issues" established a smaller working group to carry out preliminary 
discussions. The working group and several subcommittees have since met on 
frequent occasions to consider and prepare papers on a variety of technical and 
procedural matters. 

There are, of course, different views of the significance of the work performed 
to date by the Conference and its working group. The work has focused upon the 
mechanics and the feasibility of possible mechanisms for collecting payments 
for photocopying of copyrighted materials. It must be emphasized, however, that 
there has been no agreement as to whether such a payment mechanism is accepta- 
ble to libraries even if it is workable, and also I may say no seemingly workable 
mechanism has yet been advanced in that it still appears it would take dollars 
to collect dimes. There has also been no agreement as to the categories of pub- 
lications to which such a mechanism should be applied and no change in the posi- 
tion of libraries that their current photocopying practices are entirely lawful and 
within the fair use holding of the Williams & Wilkins case, and should not in any 
respect be treated as infringing rights of the copyright proprietor in the provisions 
of any new legislation. 

The publishers will probably tell you that they, too, are for photocopying but 
they want money for it without any outlay or trouble on their part. I should like 
to point out some reasons why licensing and payment of royalties by libraries for 
the photocopying they do is not justified. First, many publishers already have 
variable pricing for journals ; that is, they charge a considerably higher price 
for the same journal for a library subscription than for an individual subscription. 
These prices to libraries often run quite high — subscriptions of $100 to $300 per 
year are not uncommon ; a few run $1,000 or more ; and the $50 to $100 price is 
quite commonplace in the scientific field. These higher subscription prices to 
libraries presumably are designed in many cases to include charges for antici- 
pated copying. ,Some journal publishers have received substantial federal assist- 
ance in modernizing their editorial and manufacturing procedures. Other journals, 
and also some of those just mentioned, have already had major contributions of 
public funds in the nature of per-page charges, usually in the range of $50 to 
$100 per printed page paid by the author or by a federal grant which is financing 
his work. The author is usually not paid by the publisher for his work in writing 
the article but the library or the institution where the author is located often 
spends a sizable amount for interlibrary loan postage and handling to aid him in 
preparation of his article which the periodical then receives without cost. As an 
example, my own small library spent during this past year over $100 on inter- 
library loan expense for books to enable a professor to write an article for an 
historical journal, but the journal did not pay him anything for the article. 

In light of these contributions which the libraries and the public already 
make to the publication of these works, it seems unreasonable for journal 
publishers to demand still further payment from libraries, and eventually the 
public, for the occasional photocopying of individual articles for library users. 
It seems even more unreasonable in view of the fact that by making the infor- 
mation concerned available to those with current, specific needs for it. library 
photocopying fosters the basic purpose of the authors of such articles. But when 
it is also noted that there is no evidence that the libraries' policies have caused 
publishers any harm whatsoever and may actually increase their subscriptions, 
it is clear that such demands are completely unjustified and the public interest 
requires that they be rejected by Congress. 

For the reasons we have advanced above, we urge that sections 108(g) (1) 
and (2) and (h) be deleted from the bill. This would also be in accord with the 
Williams & Wilkins decision and would permit libraries to continue the long 
established library service of providing a single photocopy of a single article 
or excerpt from a copyrighted periodical or book for a patron's use without 
incurring liability for copyright royalties. 

It has been a pleasure to appear before you today, Mr. Chairman, and I assure 
you that we are ready to be of assistance in any way we can toward a satisfactory 
resolution of this very difficult but important problem. 

[The following prepared statements and correspondence were re- 
ceived for the record :] 



205 

Statemea^t of John P. McDonald, Executive Director, Association of 

Research Libraries 

The Association of Research Libraries, an organization of the principal uni- 
versity and research libraries in the country, believes that the copyright revision 
liill ultimately approved by the Courts, Civil Liberties and the Administration 
of Justice Subcommittee must include provisions which will ensure that the 
customary, long-established library service of providing a single photocopy of a 
single article or excerpt from a copyrighted periodical or book for a patron's 
private use may be continued without incurring liability for copyright royalties. 

The bill adopted by the Senate last year, and reintroduced in the 94th Con- 
gress as H.R. 2223, gives explicit recognition to and protection for library photo- 
copying. However, that bill also incorporates provisions in Section 108 (g) which 
encumber and confuse the expressly recognized right to an extent that would 
severely hamper libraries' service to the public and exclude practices which are 
presently lawful. It is imperative that the bill be amended to restore to libraries 
and the public the rights which they presently enjoy to make limited photocopies 
of copyrighted works. Section 108(g) (2) should be removed from the bill because : 
1. It restricts practices which are reasonable, customary and lawful under the 
decision in the Williams & Wilkins case. 2. Copyright owners {e.g., publishers) 
have advanced no evidence showing that such practices in any way injure their 
economic interests, much less evidence that it is in the public interest to forbid 
them. 3. The cost of the libraries and ultimately the public of prohibiting or 
imposing a royalty requirement upon such practices will be extremely high. 
4. The primary purpose of the authors of the sorts of articles most frequently 
copied is to disseminate the results of their research, not to earn royalties. 

At issue is the making, whether at the request of a patron or at the request 
of another library, of single copies of copyrighted matter for the private use of 
a scholar or other reader. Such copies may be of articles from law reviews, medi- 
cal journals or scientific or technical periodicals, or they may be passages from 
other published works. They are made in response to individual requests for 
single copies, although more than one individual may request a copy of a par- 
ticular part of a work in a library's collection. In providing this service, a library 
may make a copy from a work located on its premises, or in the case of a work 
not in its own collection, it may request the copy from another library, just as 
it might obtain the original work itself on an inter-library loan for a patron who 
wished to borrow it. The right to make a single copy for personal use is im- 
portant to a wide variety of scholars and other library users, from the high 
school student who wants a copy of an article in a issue of a magazine for a 
debate or science project to the physician requiring the material for research 
work or patient care. In the overwhelming number of cases it is the only way in 
which a researcher can obtain a copy of an article from a issue of a periodical 
for reference. 

Both libraries and the public have traditionally considered the making of 
such copies to be a natural and necessary part of libraries' services to their 
users. It is simply one way in which published material is made accessible. Such 
copies have been "made by photographic and other reprographic techniques since 
before the enactment of the 1909 Copyright Act. No court has ever held that 
these traditional practices result in liability under the copyright law, and in 
the test case brought by publishers, WilUatns d Wilkins v. United States, the 
U.S. Court of Claims held that the libraries' practices were a fair use of the 
pul)lished materials. That holding was recently affirmed by the United States 
Supreme Court. 

It is vital that the copyright revision bill recognize the right of libraries to 
make single photocopies of works for the private use of patrons without incur- 
ring liability under the copyright law. Although Williams & Wilkins is authority 
that traditional library photocopying is within the doctrine of "fair use", express 
statutory treatment is necessary to remove the threat of suit against libraries 
ari.sing from varying judicial interpretations of what is or is not "fair use". 
Failure to include such provisions would abandon this area of major public inter- 
est to judicial "legislation", and could lead to further costly litigation. 

Section 108 of H.R. 2223 extends the necessary recognition, but limitations writ- 
fen into its provisions, principally in Subsection 108(g) — and particularly clause 
(2) of that subsection — seriously erode the rights which it intends to recognize. 

Claiiise (g)(2) excludes from the library photocopying permitted under Sec- 
tion 108 any instance of "systematic reproduction and distribution". Because this 
restriction was written into the bill by the Senate Patents, Trademarks and 



206 

Copyrights Subcommittee at the last minute (after public hearings had been held) 
and is only vaguely and confusingly explained in the committee report, it is impos- 
sible to determine exactly what it means. Such cursory explanation of the limita- 
tion as was offered by publishing interests before this Subcommittee seems to 
confuse it with "related or concerted" reproduction — which is separately treated 
by Section 108(g) (1) of the bill — and merely disguises the real import of the 
restriction. It appears, however, to be potentially applicable whenever a library 
makes a photocopy of an article or other portion of a published work in the con- 
text of a "system". There are, of course, many such systems of libraries, from 
city or county branch library systems to the university with branch campuses 
to regional library consortia. When it applies. Section 108(g)(2) would reach 
the making of a single copy for a single requester, of any part, however small, of 
a copyrighted work. It is precisely the right to make such copies which Section 
108 was intended to confirm. 

The Senate Judiciary Committee report states that systematic reproduction or 
distribution within the intent of Subsection 108(g) (2) occurs "when a library 
makes copies of such materials available to other libraries or groups of users 
under formal or informal arrangements whose purpose or effect is to have the 
reproducing library serve as their source of such material." An example which 
seems to fit this description would be arrangements under which the Legislative 
Research Service of the Library of Congress provides copies of materials, such 
as articles from economic or business periodicals, at the request of Members of 
Congress. An example listed by the Senate committee's report is the case in which 
a branch of a library system obtains at a user's request a copy of an article which 
it does not carry in its own collection. The example most frequently cited by 
publishers is the regional medical library system, by which local hospital and 
medical school libraries have access upon request to seldom-read and highly 
specialized periodicals carried by regional medical libraries or the National Li- 
brary of Medicine. Each of these examples involves practices which are tradi- 
tional and obviously reasonable. Just such photocopying practices of the NLM 
were at issue in the Williams & Wilkins case and were held to be lawful. 

The sole rationale offered for the new restrictions is an assertion that they are 
necessary in order to prevent present and potential subscribers from relying on 
library photocopying machines in the place of journal subscriptions. That asser- 
tion is simply and clearly not valid. The argument has a certain surface plausibil- 
ity, but in spite of the many opportunities presented to them, notably in the 
Williams & Wilkins case and most recently at the hearings before this Subcom- 
mittee, publishing interests have never offered any evidence to substantiate their 
claims of damage or to show that their fears for the future have any basis in 
fact within the context of the limited library photocopying which would be recog- 
nized under subsections (a) through (f) of Section 108. In Williams & Wilkins 
such an inference of injury mistakenly indulged in by the presiding Commissioner 
was overruled by the Court of Claims which held instead that "this record . . . 
fails to show a significant detriment to plaintiff but does demonstrate injury to 
medical and scientific research if photocopying of this kind is held unlawful." 
The publishers' reference to practices by the University Microfilms subsidiary of 
the Xerox Corporation has no relevance to library photocopying, and the firm's 
profit-making (and royalty-paying) enterprise geared to the reprinting of multiple 
copies of articles and entire journal issues would clearly be outside the provisions 
of Section 108 in the absence of Subsection 108(g). 

What evidence is available strongly suggests that traditional library photo- 
copying does not injure publishers, and in many instances may actually increase 
subscriptions. It is reasonable to suppose that libraries which have frequent 
requests for particular works will purchase those works, if they are available, 
to better serve their users and avoid the delay and administrative expense neces- 
sarily involved in inter-library loan transactions. Results of ARL's examination 
of one inter-library loan network showed a very low rate of coincidence among 
requests. Rarely was the same article requested by the libraries. It also revealed 
that 54 percent of all requests were for foreign periodicals and domestic pub- 



207 

lications not covered by copyright, and that of the remaining 46 percent, 29 per- 
cent of the requests were for publications more than 5 years old, and only 17 
percent of all requests were for materials five years old or less. In view of the 
facts that the overwhelming volume of photocopying involved neither current 
publications nor multiple copying of the same publications, it is manifest that 
the photocopying by the libraries was not taking the place of subscriptions. 
Indeed, library photocopying services may actually help to increase subscriptions, 
by providing a kind of advertising for the periodicals in which requesters find 
articles of value. 

"While there is no evidence that prohibiting traditional library photocopying, 
or compelling libraries — and ultimately the public — to pay copyright royalties 
for such photocopying will make any contribution to the promotion of science or 
the arts, or that there would be any other benefit to the public, it is manifest that 
the direct and indirect costs of the prohibition will be great. Simply to ascertain 
that a royalty is payable and to collect, account for and remit the royalty will 
involve heavy administrative costs. If these accounting charges are passed on to 
library patrons, they will magnify the direct cost impact on the public, and 
discourage use. If the cost is charged to the libraries' periodicals budget, it will 
mean reduced subscriptions, resulting in a decrease in the periodicals available 
to library users and loss of subscription income to publishers. Another cost 
will be increased theft and mutilation of publications ; and the more libraries 
have to spend for repair and replacement of mutilated material, the less they 
will have to spend on new books and journals. But perhaps the heaviest cost 
of all will be the intangible cost to scholarship, research and education resulting 
from the deterrent effect which imposition of a royalty fee will presumably have 
on students and other researchers whose work is assisted and simplified by 
ready access to photocopies for reference. 

The question which this Subcommittee is called upon to answer may be simply 
put. Should a library be prohibited from making, at a user's request, a single 
copy of a journal article or of an excerpt from another published work, or liable 
for a royalty fee simply because it obtains the copy from, or supplies it to a 
branch library, a library member of a county or regional library system, or 
other consortium of libraries? Because it is clear that such customary copying 
by libraries is responsive to specific, specialized needs of library users provides 
the public access to materials which would otherwise be unavailable and does 
not in fact serve as a substitute for svibscription to the publications concerned, 
the answer must be that libraries should not be so prohibited or so liable. It is 
clear that the publishers' insistence on a provision which would limit libraries in 
this regard has little or nothing to do with concerns over actual or potential 
subscription losses. For the most part subscriptions have increased, with tem- 
porary reductions being due to heavy competition from other publishers or to 
increases in subscription rates which in recent years have outpaced consumer 
price indexes. The real reason for the conflict over library photocopying lies in 
its apparent potential as a lucrative new source of royalty income. Indeed it is 
the publishers' insistence that the libraries agree to pay royalties on their fair 
use copying which has been responsible for the breakdown of the many attempts 
to bring the parties together to resolve photocopying issues. 

The Association of Research Libraries submits that the direct and indirect 
cost to the public of imposing the restrictions on traditional library photocopy- 
ing contemplated by Subsection 108(g) (2) far outweigh any foreseeable benefit. 
We submit that Subsection (g) (2) is totally inconsistent with the constitu- 
tionally-mandated objective of copyright legislation — to promote the Progress 
of Science and useful Arts — and should be deleted from H.R. 2223. 



Statement of Claka Steuermann, Peesident, Music Libeaby Association 

On behalf of the Music Library Association, I should like to offer a statement 
on the proposed bill for the revision of copyright (H.R. 2223) and request that 



208 

this statement be included in the record of the hearings held May 14, 1975 by 
Representative Robert W. Kastenmeier. 

The Music Library Association, on behalf of the public which its members serve, 
wishes to take exception to the exclusion of music from the library copying 
privileges specified in section 108 of H.R. 2223. We feel that patrons of music 
libraries should be granted the same rights of access to information as are 
extended to library users in other fields. We maintain that failure to recognize 
this equal right of access is discrimiuatoi-y and contrary to the public interest. 

Although music may occupy a special position in the concert hall or on the air, 
music in the library is not substantially different from any other subject collec- 
tion in the library. Music is widely studied in schools and uni^•ersities not only 
as a performing art but as a humanistic discipline equivalent to English literature 
or history, and music libraries are constituted to serve these studies. 

Most music libraries are located in large universities, liberal arts colleges, 
conservatories and large public libraries with extensive research collections. 
Music libraries are the repository for one thousand years of Western culture, the 
period for which we have notated readable records of our musical heritage. 
Scholars and students come to music libraries to examine and study these works. 
Such study is a demanding discipline and serious students need to study, analyze, 
and compare portions of complex musical scores in the same way that advanced 
students of medieval history, French, or biology need access to data in their 
respective fields. Just as the plays of Shakespeare represent more than a vehicle 
for actors to a specialist in English literature, so the symphonies of Beethoven 
are of intellectual and aesthetic concern to students and scholars of music. 

Perhaps the committee is unaware that the exclusion of music in clause (h) 
of section 108 would restrict the works of Bach, Beethoven and Mozart as well as 
those of living composers. Edited versions of music from any century may be 
registered for Class E (musical composition) copyright. It is, in fact, almost im- 
possible to find a score of any kind published in this century which does not bear 
a copyright notice, and this notice makes no distinction between editorial and 
authorship copyright. Thus the exclusion of music works in clause (h) will 
affect study not only of the music of Bela Bartok who died in 1945 but of works 
by Wolfgang Amadeus Mozart (d. 1791) and Guillaume de Machaut (d. 1377). 
Such restriction may not be the intent of the legislature, but it wall be the effect 
of the statute as it now stands. 

Another characterization of music is the practice of issuing scholarly editions 
in large multi-volume anthologies and collected works. Such sets are customarily 
found only in libraries. Many of them have been out of print for years. Because 
of their value, volumes of such sets are rarely available for circulation. Restric- 
tion of photocopying from such editions as included in 108 (h) would relegate 
their contents to library shelves where only those with time and the ability to 
use the scores in the reading room could benefit from them. 

By way of contrast, most music libraries are not concerned with ephemera. 
For instance, the multitudinous lead sheets and guitar arrangements which 
constitute the bulk of copyright registrations do not find their way into the 
regular collection of the Library of Congress, much less into smaller libraries. 
Economics alone makes it impractical for libraries to house and care for material 
which does not have some social significance or enduring aesthetic value. Music 
publishers are apparently most concerned about the protection of current, salable, 
comparatively simple compositions. Restriction of library copying is not a very 
practical way to go about this. First, as we have pointed out, such works are 
not necessarily likely to be found in libraries. Secondly, any musician bound on 
infringement of such work, a popular song for example, could certainly take a 
melod.v and harmony down by ear from a recording or the radio more easily than 
he could locate a copy in a library. 

Evon j^irofessional performers of serious music do not use library copies to study 
and perform from. A pianist or a singer would rather have his own score if 
possible, one he can mark for his personal use and one he can keep forever. Even 



209 

photocopies do not have the convenience of the publisher's binding which is vital to 
the life of a well used score. Of course serious performers use libraries but it is 
chiefly to enlarge their horizons and understanding that they do so. 

In any case we would like to remind the committee that the privileges granted 
in section 108 only apply to material which cannot be obtained through current 
trade sources. Presumably publishers will respond to popular demand by supply- 
ing materials to fill this need. On the other hand the library is frequently the 
only source for obscure, the out of print, the archaic work which is not in great 
demand but access to which is urgently needed by a very few. 

Apparently the words "a musical work" were included in the exclusions to 
section 108 at the instigation of the Music Publishers Association, an organiza- 
tion of comparatively narrow economic interest whose chief function is the 
management of copyright royalties. We feel that we, not they, represent the public 
interest. The copying privileges extended in section 108 are not in the personal 
interest of librarians except insofar as the librarians are concerned for the 
public whom they serve. Photocopying certainly means more wear and tear on 
the books, and probably means more work for the librarian. The Music Ijibrary 
Association here speaks not for its members' convenience, but on behalf of the 
students and scholars who use our collections. 

The existence of section 108 in H.R. 2223 recognizes the enrichment to our 
culture which scholarly study and its encouragement through libraries provide. 
Music is a vital part of our cultural heritage and its study as such is recognized 
as a legitimate scholarly discipline. There is no valid distinction between the 
scholarly use of music in a library and the similar use of scholarly materials 
in other disciplines. The exclusion of music from the privileges granted in section 
108 would unfairly cripple musical scholarship, including researcli on music of 
the past as well as that of the present. Such an action would discriminate against 
musical scholars and would be coxitrary to the best interest of tlie public who are 
the ultimate beneficiaries of scholarship in general. Therefore, we respectfully 
request that the House Subcommittee on Patents, Trademarks, and Copyrights 
eliminate the words "a musical work" from section 108(h) of II. R. 2223. 



Statement op Frank McKenna, Executive Directoe, Special Libraries 

Association, May 14 1975 

Special Libraries Association wishes to record its substantial agreement with 
the provisions of §§ 106, 107 & 108 relating to library photocopying in H.R. 2223 
(Revision of the Copyright Law). We wish, however, to make two specific 
comments and to urge that two siiecific changes be made : 

(a) To comment on one item in § 107. Fair use; 

(6) To comment on one item in § 108(a) (1) ; and 

(c) To urge vigorously for changes in two items, in § lOS(g) (1) and (ff) (2). 
Reproduction hij libraries and archives. 

Our comments are presented in the sequence : 

1. Identification of Special Libraries Association and Its Interests. 

2. Comments on § 107. Fair Use. 

3. Comments on §108. Reproduction bv Libraries and Archives: 3.1 § 109(a) 
(1) ; 3.2 § 108(g) (1) & (g) (2) ; 3.3 § 108(h). 

4. Conclusion. 

1. Identification of Special Libraries Association and Its Interests. — Special 
Libraries Association, with 9,000 members, is the second largest library- and 
information-oriented organization in the United States, and the third largest 
in the world. It is estimated that there are more than 10.000 special libraries 
in the U.S. The concept of special libraries — or in better words — the concept of 
specialized libraries is not well known among the general public or even in some 
segments of the library community itself. The interests and activities of special- 
ized libraries are described briefly in this document and in the annexed bro- 
chure.^ SLA is an association of individuals and organizations with educational, 

1 Annex. Special Library Sketchbook. S.L.A., N.Y. 1972. 45 p. 



210 

scientific and technical interests in library and information science and tech- 
nology — especially as these are applied in the selection, recording, retrieval and 
effective utilization of man's knowledge for the general vpelfare and the advance- 
ment of mankind. 

Special Libraries Association was organized in 1909 to develop library and 
information resources for special segments of our communities which were not 
adequately served by public libraries or by libraries in educational institutions. 
At first the emphasis was on special sub.iect coverage in each special library 
as it related to the interests and business of its parent organization, for example : 
sources of statistical data for both corporations and the agencies of the national 
government and state governments ; business data for banks and investment 
firms : chemical information for the then developing chemical industry ; engi- 
neering information for the emerging complexes of engineering and construction 
companies, etc. 

During the past 66 years — and with particular growing needs for rapid informa- 
tion delivery since World War II — specialized libraries and information centers 
have been established in all segments of our nation's affairs. They exist in for- 
profit enterprises and not-for-profit organizations, as well as in government agen- 
cies. Some are open to public use, and others have restricted access (because of 
security classified materials) or are part of a for-profit organization (because of 
proprietary information). During this period of accelerated growth, the original 
emphasis on special subjects has been replaced more and more by the concept of 
specialized information services for a specialized clientele. An example of such a 
specialized information service for a specialized clientele is the Legislative Refer- 
ence Service of the Library of Congress. Although the Library of Congress (as a 
whole) is often called a "national library," the entire Library of Congress itself is, 
perhaps, an outstanding example of a definition of service to a specialized clien- 
tele : The Congress of the United States of America. 

The specialized clients are normally the employees of the parent organization. 
The specialized information services are based on the speedy availability of infor- 
mation, both for current projects and for management determination of decisions 
regarding future efforts of the parent organization. To these ends, the members of 
SLA include not only librarians, but also persons who are subject specialists — so 
that they can evaluate and screen out the irrelevant, the redundant and the too 
often useless portions of the voluminous published literature. The totality of the 
literature includes not only the publications of commercial publishers of copy- 
righted books and periodicals, but also the avalanche output of government agen- 
cies (often with security handling requirements) plus the parent organization's 
own internal corporate documents (with the obvious need to protect proprietary 
or competitive information) . 

As a parenthetical observation, it should be noted that the pioneering work in 
machine use for information storage and retrieval (now computerized) took place 
in specialized libraries and information centers in the 1940's and 1950's. Similarly, 
the need for miniaturization of the bulk of the literature in microforms occurred 
through the influence of S.L.A.'s liaison with designers and manufacturers of 
microreading equipment. 

Last, but not least, S.L.A. pioneered the concept of information networks — long 
before computers and other communication devices had been developed. S.L.A. 
has facilitated communications among its members through the Association's 
unique information network of Chapters and Divisions. Initiated more than 60 
years ago, the network has been frequently updated in response to the needs of 
new informational requirements. 

S.L.A. is organized in 26 Divisions which represent broad fields of specializa- 
tion or information-handling techniques. These fields range alphabetically from 
Advertising, Aerospace, and Biological Sciences through Military Librarians^ 
Museums, and Natural Resources, and on to Transportation, and Urban Affairs. 

S.L.A. is also organized in 47 regional Chapters which range geographically 
from Hawaii across the continental United States (plus two Chapters in Canada) 
and on to a European Chapter (which encompasses geographically all the non- 
Socialist countries of Europe) . 

Special Libraries Association in its own right is a publisher of three periodicals 
and an average of six books per year. Therefore the Association has its own 
interests as a publisher to conserve its sales income and royalty income. The 
Association's publications are needed by special groups, but they are in such 
areas of specialization that commercial publishers (or even vanity presses) 
would not touch them because of the small sales potential. Our subscription lists 
range from 12,000 as a high to 1,000 as a low. Our book sales average about 1,000 



211 

copies for each title with a range from 500 to our top category of "best sellers" 
at a level of about 3,000 copies sold per title. 

2. Gotnments on § 107. Fair Use. — The Association is in agreement with the 
delineation of "fair use" as stated in § 107. We feel, however, that it is necessary 
to comment specifically on one phrase in Item (4) : 

(4) the effect of the use upon the potential market for or value of the copy- 
righted work. [Emphasis indicated.] 

We recognize that there may be some validity in tlie claims of some publishers 
of periodicals that they may have some loss of income due to multiple photo- 
copying of a single article from an issue of the periodical that is still avallaUe 
in-print. If the issue is out-of-print (that is, if the publisher has not maintained 
his stock in-print or in-stock), it is difficult to conceive how a photocopy of 
out-of-print material can cause any loss of income to the publisher. 

Further, the slow delivery by publishers to fulfill an order for a single in-print 
issue is totally unacceptable to the needs of our specialized users who are 
responsible for fast management decisions. There is little question that it is an 
administrative impossibility to secure publisher permissions to permit inter- 
library response within any reasonable time. Moreover, the costs and delays in 
seeking such permissions would be prohibitive. 

It is also necessary to note that the preparation of photocopies of periodical 
articles in libraries can not cause a loss of income to the authors. Authors are 
rarely paid by publishers of learned or trade periodicals (either as a one-time 
payment or as royalty payments). Indeed, the opposite direction of payment has 
become prevalent in recent years : a "page charge" is to be paid by the author 
or his employer to the publisher. These page charges are usually in the range of 
$50-$100 per printed page. 

3. Comments on § lOS. Reproduction ty Libraries and ArcJiives. — 

o.l Section 108(a) (1). — The Association is concerned with a possible inter- 
pretation of § 108(a) (1) : 

(1) The reproduction or distribution is made without any purpose of direct 
or indirect commercial advantage; [Emphasis added.] 

Clarification of the meaning of the existing language is necessary because a 
majority of special library operations are conducted for purposes of "indirect 
commercial advantage" when the library's parent organization is in the business, 
industrial, or financial communities thru its products and services. It occurs to 
us that the existing language of § 108(a) (1) may have been intended to prohibit 
a "commercial advantage" to an authorized or unauthorized reprinter or re- 
publisher of copyrighted materials. 
We feel that our concerns can be alleviated by either of two actions : 

( a ) by adding to § 108 (a)(1) a phrase such as 

The reproduction or distribution is made without any purpose of 
direct or indirect commercial advantage to a reprinter or a repuhlishcr 
[Suggested addition italicized.] ; or 

(b) through appropriate commentary in the legislative history of H.R. 
2223 without any change in § 108(a) (1) as now written. 

Legislation to he enacted must not prevent or penalize the preparation of photo- 
copies by any library. S.L.A. is, of course, particularly concerned about the status 
of specialized libraries — especially those in for-profit organizations. There will 
be immeasurable damage to the total economy and welfare of the nation if such 
intent were to be contained in the enacted version of H.R. 2223, or if such inter- 
pretation is possible after enactment of the law. The rapid transmission of man's 
knowledge — either to not-for-profit or to for-profit organizations — must not be 
impeded by law. 

■Whether libraries request or produce photocopies, the libraries are acting solely 
as the agents for the individual and distinct users of libraries who in their totality 
represent all strata of our American society. 

3.2 Sections 108(g) (1) and 108 (g) (2). — Major concerns are raised by § 108(g) 
which was inserted after Senate hearings on § 1361 (93rd Congress). We wish to 
submit emphatic comments first on § 108(g) (2) and then to return to § 108 (g) (1). 

(2) Engages in the systematic reproduction or distribution of single or 
multiple copies or phonorecords of material described in subsection (d). 
[Emphasis added.] 

The Report accompanying § 1361 (93rd Congress) indicated that it had not 
been possible to formulate specific positive examples of "systematic copying." If 



212 

only negative examples can be developed, can there be any logical basis for the 
insertion of § 108(g) (2) ? 

Tlie Association urges that § 108(g) (2) be : 

(a) Deleted entirely, or 

( b ) That it be amended by adding a concluding clause to read : 

". . . of matei-ial described in subsection (d) so as to impair the potential market 
for a copyrighted work." [Suggested addition italicized.] 

The Association is concerned that the inclusion of § 108(g) (2) — as now stated — 
in any final Act will seriously impede the spontaneity of research and the research 
capability of organizations that maintain special libraries and information cen- 
ters whose purpose is to provide access to learned, technical, or specialized 
publications. 

We are particularly concerned about any future construction that could be 
placed on allegations of "systematic reproduction or distribution" in § 108(g) (2^ 
The single word "systematic" has been shown to have an almost endless number 
of interpretations during the discussions of the "Conference on the Resolution of 
Copyright Issues" (Nov 1974- Apr 1975). The Conference was jointly convened 
by the Register of Copyrights and the chairman of the National Commission on 
Libraries and Information Science. 

It is important to recognize that all libraries act only as agents for their 
clients who request and receive the photocopies. Inclusion of the word "sys- 
tematic" does not seem to comprehend the operations of libraries- — or the na- 
ture of the requests from clients of libraries. Libraries provide photocopies of 
current or past publications in response to single, spontaneous requests from 
the library's clients. Research workers are often thought to be isolated individ- 
uals, but research itself is not an isolated activity. Therefore, spontaneous, iso- 
lated — yet single — requests for photocopies of the same article or segment in 
a copyrighted pul)lication may be received from more than one requestor — each 
acting independently and spontaneously. 

The word "systematic" has also been suggested to mean "within a library 
system." Library systems have been in existence for many years ; public library 
systems in cities or in counties or multiple special libraries within a corporation 
or within a government agency. In more recent years, the concept of broader 
library systems (regional or statewide) has grown. Such .systems have many 
other meaningful functions other than the preparation of photocopies so as to 
achieve economies in library functions (for example, shared cataloging, the 
acquisition of foreign publications or of rare and unusual materials, and the 
improved access of all citizens to informational materials of all kinds). Al- 
though publisher representatives have made claims that the number of sub- 
scribers has been diminished because of the existence of library systems, no 
evidence has been presented that any loss of subscription income has occurred. 
The above comments regarding § 108 (g) (2) are also applicable to §108 (g) (1) : 
(1) is aware or has substantial reason to believe that it is engaging in tlie 
related or concerted reproduction or distribution of multiple copies . . . 
whether made on one occasion or over a period of time, and [whcthir 
intended for aggregate use by one or more individuals or for separate nsc hy 
the individual members of a group ; . . .] [Emphasis added.] 
If a number of single, isolated, spontaneous requests are received over a pe- 
riod of time (italic emphasis above), a library cannot become aware of sucli a 
series of events without instituting an extensive and costly system of records of 
past transactions. 

In the case of multiple copy requests (bracketed italic emphasis above), pay- 
ment of a per page copying fee to the publisher may be thought to provide an 
equitable solution provided that the costs to libraries for such reporting and 
payment mechanisms not be disproportionately great in relation to tlie copying 
fees to be paid. However, the two possible mechanisms proposed for payment of 
such copying fees completely negate the concept of "fair use" as stated in §107. 
The two mechanisms proposed are : 

(a) A variable subscription pricing structure with a higher cost to libraries 
than to individuals. Thus the library would have paid a fee even if no photo- 
copy is requested. 

(ft) A transaction fee per page would result in the payment of a fee even for 
the first photocopy of an item prepared unless the library were to set up a 
costly record keeping operation of all past photocopy requests. 



213 

Discussions in past years had sug:gested a range of fees from $0.01 to $0.10 per 
page. In the immediate past months, publisher representatives at meetings of 
the Conference (referred to above) have indicated that they wish to receive 
a liigher fee which they will determine individually for each article in each 
periodical rather than a per page charge. It must be noted that many photocopy 
requests are for only one page or a few pages of an article. Thus, this proposal 
also would be unduly costly to libraries and their users. 

Should the final result of the proposed legislation be a copying fee payment, 
the price level of the copying fee must be subject to determination by legislative 
or regulatory action. Otherwise it is conceivable that a publisher might choose 
to set the level of a copying fee — ^whether for multiple copies or single copies — 
at such a high level that access to some areas of published information could be 
effectively prevented. 

3.3 Section 108 (h).— The Association feels that there is a real need to dis- 
tinguish between two formats of '•musical works" : 
{a) Printed musical work.s, and 
(&) Sound reproductions of musical works. 

To achieve this distinction, we suggest two possible amendments to §108(h) : 

(1) Delete the words "a musical work" becau.se performances are in- 
cluded in the subsequent phrase, '"or other audio-visual work," or 

(2) Add a modifying statement so that § 108(h) will read : 

"The rights of reproduction and distribution under this section do not apply 
to a musical work other than a printed copy . . ." [Suggested words are 
italicized.] 

It is important that research workers and students of musicology be allowed 
"fair use" access to portions of printed music just as § 108(a) (2) permits "fair 
use" access to textual materials. In § 108(h) a clear distinction must be made 
between performances or sound recordings and music in printed form. 

Jf. Conclusion. — Public libraries have been historically a fundamental develop- 
ment by and for the people of the United States. The initiation and growth of 
specialized libraries represent a unique development in the United States begin- 
ning with the Library of the Carpenters' Company of Philadelphia before the 
American Revolution ; and also a concept which has spread throughout the 
world. 

Whether the main function of a library is public, school, university or special- 
ized, all libraries strive to improve and increase ready access by the library'.s 
clients to information that will enrich the personal aspirations of the library 
users, the quality of our communities (whether urban, suburban or rural), and 
the improvement of the economic standards of all segments of our nation's 
citizens (minority groups and the disadvantaged as well as the advantaged). 

We recognize the imiwrtance of the legislative protection of copyright for 
publishers to prevent improper or unfair diversions from their rightful prolits. 
We also recognize the importance of copyright protection for creative authors to 
prevent diversions from their rightful earnings. 

Apparently, publishers feel that their profit patterns will be improved by re- 
ceiving photocopying fees. However, the establishment of library photocopying 
fees will result in the subsidization of the publishing community at the expense 
of all taxpayers. Public libraries and those in tax-supported schools and uni- 
versities would have to seek increased public funds annually. Special libraries 
in business and industry would have to seek increased budget allotments within 
their corporation. As the expenses of a corporation increase, such expenses can 
lead only to increased costs to the ultimate consumers of new products or of im- 
proved old products. 

We ask that the Subcommittee consider the distinction between the photo- 
copying practices in and bij libraries on behalf of library users, which we deem 
to be proper, and the practices outside of libraries which are improper and 
wiiich preempt the legitimate property rights of copyright owners. 

Special Libraries Association is grateful to the Subcommittee for the oppor- 
tunity to present our views. The Association will be pleased to submit addi- 
tional comments if the Subcommittee desires so to assist the Congress in reach- 
ing an ultimate and equitable solution to an issue that has values for all 
citizens. 



214 

congeess of the united states, 

House of Repeesentatives, 
Washington, D.C., October 2, 1915. 
Hon. Robert W. Kastenmeieb, 

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of 

Justice, Committee on the Judiciary, Rayburn House Office Building, House 

of Representatives, Washington, D.C. 

Deab Bob: I am concerned over current legislation in your Subcommittee, 

H.R. 2223, to revise the copyright law. If Section 108(g) (2) is retained in this 

bill, the only major biomedical source library in the State of Alaska will be in 

violation of the United States Copyright Law. 

The Alaska Health Sciences Information Center serves as the source library 
for most of the material required by institutions and over 4,000 health-related 
personnel in the entire State of Alaska. This service makes it possible for 
doctors, nurses and physician assistants in the most remote Alaskan villages 
to receive the information they need to provide optimum health care. Because 
of poor communications, lack of transportation and other related problems 
common to rural areas in which a small number of people are scattered over 
vast distances, community health aides, private practicing physicians, Public 
Health Service personnel, hospitals and universities depend heavily upon the 
freedom to copy medical journals and texts for use in the bush areas. 

Section lOS(g) (2) will affect not only Alaska, but other sparsely populated 
areas of the United States as well. I urge you to consider the elimination of 
this Section of H.R. 2223, so that the current efforts of Congress to upgrade 
existing health facilities in these remote areas of the country will not be 
further hindered. 

I have received over one hundred letters from physicians, nurses, hospitals, 
clinics, universities and state health personnel who protest inclusion of this 
Section of the bill. I have chosen a number of letters from each group of health 
personnel for your perusal. I request that these letters, as well as my own, be 
included in the testimony of the hearings on H.R 2223. 
Sincerely, 

Don Young, 
Congressman for all Alaska. 

Alaska Methodist University, 

College of Nursing, 

August 12, 1975. 
Representative Don Young, 
U.S. House of Representatives, 
Washington D.C. 

Dear Representative Don Young : I am writing to express opposition to the 
section on photocopying in H.R. 2223, section 108(g) (2) regarding Revision of 
the Copyright Law. 

Photocopying of books and articles is extremely helpful to both students and 
ffsculty. It provides an inexpensive and rapid way to acquire, read and synthe- 
size new materials, thus greatly enhancing the quality of education in schools 
and universities. 

Regarding the need of nurses and other health professionals, I feel sure that 
you know it is impossible for nurses and health facilities to subscribe to all the 
journals they need to keep abreast of the vast volume of current information. 

Therefore, I believe that health care of patients in Alaska may be compromised 
if the Alaska Health Sciences Information Center is no longer permitted to 
photocopy valuable articles for nurses and other health professionals. 

Very truly yours, 

MoNA Ravin, R.N., MSN, 
Instructor Coordinator of R.N. Programs and Outreach. 



215 

Providence Hospital, 
Anchorage, Alaska, July 9, 1913. 
Hon. Peter W. Rodino, Jr., 

Chairman, Judiciary Cotnmittee, House of Representatives, Rooin 2462, Rayiurn 
House Building, Washington, D.G. 
Dear Congressman Rodino : I am writing to express my opposition to HR 2223 
(A Bill For the General Revision of the Copyright Law Title 17 of the United 
States). 

If this takes effect, the effect upon quality medical care nationwide will be 
adverse, and in Alaska will be even more significant, due to our relative isolation, 
there being no nearby university centers. 
To pass this resolution would be a significant step backward in medical care. 
Sincerely, 

Maurice J. Coyle, M.D., 
Department of Radiology. 

Wrangell General Hospital, 

Wrangell, Alaska, July 22, 1975. 
Hon. Donald Young, 

House of Representatives, 1210 Longworth House Office Building, 
Washington, B.C. 

Dear Congressman Young: I am writing to you regarding HR 2223. (A Bill 
for the General Revision of the Copyright Law Title 17 of the United States.) 
The passing of this bill would terminate all major medical library services 
presently provided by the Alaska Health Sciences Information Center in 
Anchorage. This library is the only biomedical source in Alaska and without this 
service to help small hospitals like ours, the quality of health care will surely 
suffer. 

Your help regarding this bill would be greatly appreciated. 
Sincerely, 

(Mrs.) Emma G. Ivy, R.N., 

Administrator. 



The Wisconsin Interlibrary Loan Service, 

Madison, Wis., May 6, 1915. 

Re Deletion of Section 108(g) (2) of the copyright revision bill (H.R. 2223). 
To: Robert W. Kastenmeier (D-Wis.), Chairman, Subcommittee on Courts, Civil 

Liberties, and the Administration of Justice. 
From : Nancy H. Marshall, Director of WILS. 

As one of your constituents, I have always been grateful for your support 
of libraries and federal library programs, including your recent positive vote 
on the Roybal-Obey-Stokes amendment to the Education Appropriations Bill 
(HR5901). 

I have written to you several times in the past on what I believed to be im- 
portant issues and was gratified that you, also, shared my concerns. The issue 
in question is of such immediate importance that as a citizen of Madison, Wis- 
consin, and the nation, as well as a librarian, I must speak out. 

Your concern over the past fifteen years or more with copyright revision makes 
you a recognized expert in Congress on this complex issue. You have heard the 
pros and cons and have had before you voluminous written arguments and 
testimony, with more to come. HR 2223 is a "good" bill, much needed and long 
overdue. My concern, however, is whether it is the intent of the Congress to 
severely limit or restrict altogether the public's access to library and information 
resources via library photocopying. I cannot believe this is the intent of the 
public's elected representatives. The nation's library collections are one of its 
greatest resources, and libraries maintain as a constant goal the voidest possible 
access to those collections by the nation's citizens. 

Although I am aware of the fact that national library organizations, and the 
publishing industry will be giving testimony to the Subcommittee on May 14, I 
am deeply concerned that the interests of the consumers of library and informa- 
tion resources be represented. Too often the user is overshadowed and not heard 
and remains the silent majority, even though s/he is the ultimate recipient for 
good or ill in many legislative actions. Thus, it may be in this case, and on 
behalf of the users I submit the following for your consideration. 



216 

Specifically, my greatest concern is with the language of Section 108(g) (2) of 
HR 2223. This Section prohibits ". . . systematic reproduction or distribution 
of single or multiple copies or phonorecords of material . . ." by libraries. Section 
107 appears to appropriately define "fair use", an historical privilege of libraries, 
and then effectively snatches it away under 108 (g) (2). 

Of particular concern is the fact that systematic reproduction is not defined, 
and is, therefore, dangerously ambiguous, but if retained in the Bill could be 
interpreted to effectively discontinue the traditional right of libraries of making 
a single copy of a copyrighted journal for a single user, even when the number 
of users and the volume of single copies is substantial. Again, I cannot believe 
that the Congress wishes to deny, under the new copyright revision, this his- 
torically proper access to library resources. 

On behalf of the Wisconsin Interlibrary Loan Service, its member libraries 
and, most importantly, its patrons, I urge the Subcommittee to delete Section 
108(g) (2) from the Bill. As the Director of the WILS Network, which serves 
all of the citizens of the state of Wisconsin in providing access to library materials 
for research and other educational purposes, it is inconceivable that this access 
will be cut off and that the taxpayers of this state will be prohibited from 
obtaining materials by photocopy, materials which their tax dollars have been 
instrumental in purchasing. Wisconsin is not alone in this concern. It is im- 
portant to note, also, that the National Cktmmission on Libraries and Information 
Science, in its final draft issued on March 10, 1975, restates its philosophy of 
greater, not less, access to library and information resources by all the citizens 
of the United States. 

I have witnessed your concern for the citizens of Wisconsin and the nation, 
and the concern of the other respected members of the Subcommittee for their 
constituencies. Because of your collective past commitments, I respectfully 
request that you give serious consideration to the deletion of Section 108(g) (2) 
when you report HR 2223 out of committee. 

Mr. Danielson. First of all, I will call Mr. Irwin Karp, who 
is counsel for the Authors League of America, Inc. You gentlemen 
make yourselves comfortable, and ladies. I note you are all here 
together, which is fine. 

Our little schedule calls for Mr. Karp first, then Mr. Lieb, Dr. 
Cairns, and Mr. Hoopes. Mr. Karp, it's yours for 7 minutes. 

TESTIMONY OF IRWIN KARP, COUNSEL FOR THE AUTHORS 
LEAGUE OF AMERICA, INC. 

jNIr. Karp. Thank you, Mr. Chairman. My prepared statement re- 
flects that we are here by prearrangement at the table together. Unlike 
the librarians I am not one to say that publishers are my best friends 
because I represent professional authors, and publishers are not our 
best friends ; and that's true of librarians, too. 

I would like to introduce Dr. Robert Cairns — on my right — execu- 
tive director of the American Chemical Society. On my left, Mr. 
Charles Lieb. counsel, and Mr. Townsend Hoopes, president of the 
Association of American Publishers. They will discuss the issue of 
library photocopying in relation to sections 107 and 108 of the bill. 

Let me set, if T may, the stage for their discussions. The Xerox and 
other reprographic machines have established a new method of 
reprint publisliing sometimes called "on-demand publishing," "one- 
at-a-time reprinting," or "single-copying." Perhaps it's most starkly 
reflected in the statement of the Special Libraries Association, which 
wants to increase the library copying exemption to cover the "re- 
printer" and "republisher," and they are correct in characterizing 
libraries as such. This is a new medium for disseminating articles, 
chapters from books, or entire works for individual users by reproduc- 



217 

ins; a single reprint to fill each order, as it is received. One-at-a-time 
reprinting is well established, it has been used for several 3^ears by 
reprint publishers such as University Microfilms to supply books, 
journals, articles, and doctoral theses to individual customers. 

Here, for example, is a copy of a 429-page book, entitled Teaching 
Primary Eeading, produced on a Xerox Copy-flo machine by Uni- 
versity Microfilms. The label reads, "Published on demand by Univer- 
sity Microfilms," and that means very simply that each time an 
order is received for this book, one copy is reproduced separately on 
that machine to fill that order. I would like to leave a copy with the 
committee. 

Mr. Danielson. Without objection, we will accept it in our files, 
though it will not be included in the record. 

^Ir. Karp. I understand that. 

Mr. Danielson. We don't want to be violating any rules on printing 
copies. [Laughter.] 

Mr. Karp. We are prepared to secure a license for you to use the 
book. [Laughter.] 

In fact, that is one of the points. This book was produced under 
a license granted by the author and publisher. I know it because 
I approved the license, which is on a simple form, for a client of mine 
whose late husband wrote the book, and a royalty is x^aid each time one 
copy of that book is produced. 

The process of one-at-a-time reproduction also is used to reproduce 
journa,l articles; and here is, for example, a journal article that was 
produced by the Xerox Corp., by permission of the copyright owner. 
I would like to leave that, too, not to include in the record, but for 
study by the committee. 

]Mr. Danielson. I want to point out, I do appreciate having the 
material so that we know what you are talking about. 

Mr. IvAPtP. And last, to complete the demonstrative evidence, this 
volume — which is quite heavy — covers a listing of 10,000 separate 
journals which are placed on microfilm by the Xerox Corp. under 
license from the copyright owner, within the system of copyright, and 
sold to libraries. From those microfilms are produced copies like this 
(indicating). We are not talking about the old-fashioned 50-cents-a- 
page photostat, as you pointed out in your question; we are talking 
aljout new technology, and methods of reproducing copyrighted ma- 
terials that are still in various stages of technological development. 

I have one more item, this is called a microfiche card. This is even 
more sophisticated, and at the same time more simple to use, and much 
less costly, than microfilm. From this little card a library can repro- 
duce copies of pages of an article in this form (indicating). I will 
leave this for the committee's study as well. 

The process of one-at-a-time reproduction is employed by several 
libraries, some of which serve as reprint centers for the patrons of other 
libraries, as well as their own users. There have been studies which indi- 
cate that at the present time American libraries may be filling as many 
as 7 or 8 million requests a year for this type of copying. And we would 
like to, at the conclusion of this hearing, submit to you a compendium 
of reports, as well as statements directed to the specific proposals of 
the American Library Association, which unfortunately were not 
available to us in advance to respond to as concretely as we would have 
liked. 

57-786— 76— pt. 1 15 



218 

Mr. Danielson. Without objection, we will receive your referred 
to comments. 

Mr. Karp. Much of this library-copying activity is devoted to 
articles from essential, copyrighted scientific and technical journals. 
Copies produced of these on demand of individual readers are given 
to them in lieu of the journal itself, which is published to serve this 
very audience. In Williams & Wilkins the chief judge in the Court of 
Claims pointed this out in his three-man dissenting opinion, support- 
ing the opinion of the trial judge. Actually, if you add up the figures 
you have a complete Mexican standoff, you have four Court of Claims 
judges going one way, and four the other. 

Mr. Danielson. That's what we call a congressional standoff, and 
when you have that, nothing passes. 

Mr. Karp. He pointed out the argument that damage was not 
proven was utterly without basis in the record because the majority 
hadn't disproved the damages, they simply ignored the trial judge '^s 
findings. 

The chief judge also pointed out in his opinion that the National 
Institutes of Health at the present time purchased only two subscrip- 
tions to the plaintiff's journals, and if nothing else, it certainly needs 
more than the two copies to meet the requests of the large in-house 
staff. And that the whole purpose of what everybody really concedes 
was wholesale systematic reprinting, was to do away with the neces- 
sity of paying for any more subscription copies of these journals. The 
literature of the library community is full of predictions of the state 
of the future which may resolve itself into a few libraries that in 
some instances, for certain types of publications, serve, as what Mr. 
]McKenna quite accurately referred to as "reprinters" and "repub- 
lishers." 

I should point out that librarians' semantics have been a problem 
with us throughout this discussion. They like to talk about "inter- 
library loans." When they make a copy of something like this (indi- 
cating an article) they don't lend it to anybody. At the Government's, 
or the local comm.unity's considerable expense — the figures sometimes 
estimated at $5 to $12 a copy to do this— do all the work involved. 
They produce a copy which is delivered to a patron of their own, or 
another library, and it's his, not a loan. 

I should at this time clarify — on the top of page 3 I should not over- 
look one distinction. I pointed out when University JNIicrofilms re- 
produces a copy of copyrighted work it pays a royalty. When the 
librarians reproduce it, they do not pay a royalty, and that's the crux 
of the issue, reasonable compensation for systematic library repro- 
duction. 

Most of the examples that Professor Low ^ave you are examples of 
"fair use" and that's not what we are quarrelmg about. Fair use is not 
paid for, it is not charged for ; that is preserved very clearly in the 
revision bill. 

As my colleagues will demonstrate, section 108 of this bill also gives 
the libraries broad copying privileges that we don't think they had 
under the present law. Moreover, authors and publishers do not seek to 
halt systematic library reproduction. We simply say tliat reasonable 
payment should be made when copying goes to this extent, and that 
workable systems can be established. 



219 

Tlie discussions which have been described to you, on the one hand, 
have a wonderful Rashomon flavor. I can't believe I was there,' 
when I hear Professor Low and his colleagues describing w^iat trans- 
pired. To say that we, any of us, have a position that the mere existence 
of a union list of serials in a library system establishes "systematic 
copying" is simply not the case. In fact, asked twice, I twice an- 
swered that, "No, we were not saying that." We were merely pointing 
out the various characteristics of certain library systems in whose op- 
erations one of the functions was to eliminate what they euphemistical- 
ly called duplication of periodicals. That means, why should all six 
or seven libraries subscribe to a journal when one can subscribe and 
make copies for the others ? 

The uncompensated reproduction, uncompensated reproduction of 
copyrighted woi'k is bound to have a damaging effect on American 
publishers and authors. 

I would just like to talk briefly about the purposes of copyright. 
The economic purpose of copyriglit is, in the Supreme Court's quota- 
tion — on top of my page 5 — "to give valuable, enforceable riohts to 
authors and publishers, to afford greater encouragement to the pro- 
duction of literary works of lasti]ig benefit to the world." 

And the economic philosophy underlying the copyright clause, as 
the Supreme Court explains it "is the conviction that the encourage- 
ment of individual efforts by personal gain is the best way to advance 
public welfare through the talents of autliors." 

Thus, the instrument chosen by tlie Constitution to serve the public 
interest — that interest is the securing of ''iterary and scientific works of 
lasting value — is an independent, entrepreneurial property-rights 
system of writing and publishing. The Copyright Act establishes the 
rights which prevent others from depriving authors and publishers 
of the fruits of their labor. But, it guarantees no reward at all. The 
reward must come, as in any private, profit-motivated operation, from 
the income that the author and publisher can derive from the uses 
of their books and journals. They have to take the risk that every 
entrepreneur does, that the books and journals may fail financially, 
although they make a valuable intellectual contribution — and journals 
have failed 

Mr. Danielson. Let me interrupt just briefly. I don't like to inter- 
rupt you, I have practiced law for a long time'^myself, but you've got 
to share time here with three more of you gentlemen. If they want you 
to speak for them, I'm delighted, but otherwise I am going to have 
to let No. 2 go ahead. 

Mr. Karp. I'm at the end of my statement. 

]Mr. Danielson. With the permission of Mv. Pattison we will hear 
from all the witnesses, and then commence with the questioning; 
thereby we will enhance the opportunity to hear you. 

Mr. Karp. I simply want to conclude with the statement, Mr. Daniel- 
son, that we urge Congress not to disrupt the delicate balance of this 
system. ^Nlany compromises have been made by us already in order tO' 
accommodate librarians. We don't think any more are possible with- 
out inflicting very serious damage on those who create those journals. 

I have also included in my statement responses to Professor Low's- 
almost ritualistic attack on copyright, It is not a monopoly, not a 
special privilege: it doesn't restrict the dissemination of informa- 



220 

tion. I submit to you the only provision in the U.S. Constitution which 
implements the freedoms of the first amendment is the copyright law 
because that is the only provision that establishes a legal, economic 
foundation under which people can actually go about exercising those 
rights, by setting up publishing enterprises, or engaging in writing. 
Destroy the copyright clause — and the librarians are asking for 
partial destruction — and you are also threatening seriously that private 
enterprise system of exercising freedom of expression. 

Thank you. 

[The prepared statement of Irwin Karp follows :] 

Statement of Irwin Karp, Counsel, The Authors League of America 

Mr. Chairman, my name is Irwin Karp. I am counsel for The Authors League 
of America, the national society of professional writers and dramatists. I 
would like to introduce Dr. Robert W. Cairns, Executive Director of The 
American Chemical Society ; and Mr. Townsend Hoopes and Mr. Charles Lieb, 
President and Copyright Counsel of the Association of American Publishers, 
They will discuss sections 107 and 108 of the Copyright Revision Bill and 
the issue of "library photocopying". 

The Xerox and other reprographic machines have established a new method 
of reprint publishing sometimes called "on-demand publishing," "one-at-a-time 
reprinting", or "single-copying" (the blander phrase favored by library si)okes- 
meu). However labelled, the process disseminates articles, chapters from books 
or entire works to individual users — by reproducing a single reprint to fill 
each order, as it is received. Each copy, made by Xerox or other machine, is 
an exact reprint of the original — letter by letter, line by line as initially set in 
type. One-at-a-time reprinting is well established. It has been used for several 
years by reprint publishers such as University Microfilms to supply books, 
journals, articles and doctoral theses to individual customers, "on demand". 
Here, for example, is a copy of a 429 page book, entitled Teacliing Primary 
Reading, produced on a Xerox Copy-flo machine by University Microfilms, The 
label reads "Published on demand from University Microfilms." — ^i.e., when 
an order is received, one copy is reproduced separately on the Xerox machine 
to fill it. 

The process of one-at-a-time reproduction is employed by several libraries 
to make copies of journal articles or portions of books ; some of these institutions 
serve as reprint centers for patrons of other libraries as well as their own 
users. Much of this activity is devoted to articles from essential, copyrighted 
scientific and technical journals, many of which have modest circulations and 
are published by nonprofit learned societies. Copies of these articles, produced 
on demand of individual readers, are given to tJiem in lieu of lending the journal, 
which is published to serve this very audience. My colleagues will explain the 
serious injury to publishers from this uncompensated, systematic reproduction ; 
and from its increasing use by groups and networks of libraries, in which one 
institution reproduces copies of articles from journals it subscribes to, for 
patrons of other libraries which do not subscribe to them. 

With one-at-a-time reproduction ("single-copying", in library parlance), a 
library could make many copies of the same article or work. It produces a "single" 
copy for each order ; but it produces as many copies of the article as there are 
orders for it. Under the exemption previously sought by library organizations 
in the Senate, any library could thus make many copies of the same article, so 
long as it produced one copy per order. (In the peculiar semantics of library 
organizations, copies produced for patrons of other libraries are called "inter- 
library loans." Actually, no "loan" is made. The copy is delivered to the patron 
and becomes his property. 

There is one significant difference I should not overlook. When University 
Microfilms reproduces a single copy of a copyrighted work, it pays the owner a 
Yoyalty — liaving previously obtained a license. However, libraries claim, and 
demand Congress give them, the privilege of systematically reproducing copy- 
righted journal articles and other works without payment of compensation. 
[As this Committee and the Copyright Office have stressed, the copyright owner's 
right to reproduce copies of his work is not subject to a "non-profit" exemption]. 
Reasonable compensation for systematic library reproduction is the real 



221 

issue. Library photocopying which is "fair use" (Sec. 107) does not require 
payment. And as my colleagues will explain, Sees. 108 (d) and (e) give libraries 
broad copying privileges, without charge. Moreover, authors and publishers do 
not seek to halt systematic library reproduction, i.e. that which exceeds 
these sections. They are willing to authorize such uses. But they believe that 
when libraries systematically reproduce copyrighted articles or other works, 
reasonable compensation should be paid, as Sec. 108(g) contemplates. They 
also believe that "workable clearance and licensing conditions" can be developed 
mutually by librarians and copyright owners, the solution prescribed by this 
Committee. My colleagues will relate the continuing efforts to accomplish that 
result. It is a result that must be achieved. For imcompensated systematic 
reproduction of copyrighted works by libraries will inflict heavy damage on 
publishers of scientific and technical journals, authors (see App. I) and other 
publishers ; on the copyright system ; and on the public interest it was designed 
to serve. 

THE PURPOSES OF COPYKIGHT 

The library photocopying issue should be considered in the appropriate con- 
text — in the context of copyright's constitutional purposes and the manner in 
which it was designed to serve the public interest. I will address that subject 
before Mr. Lieb, Dr. Cairns and Mr. Hoopes speak to the specific photocopying 
issues. 

As the Supreme Court has explained, the Copyright Clause of the Constitution 
was intended to establish independent, entrepreneurial, self-sustaining author- 
ship and publishing as the means of serving the public interest in securing the 
production of valuable literary and scientific works. In so doing, the Copyright 
Clause serves a second purpose — it implements the First Amendment's freedoms 
to express and publish ideas, information, opinions and all manner of literary, 
scientific and artistic works. The First Amendment protects against restraints on 
these freedoms. But the Copyright Clause is the only constitutional provision 
which establishes a legal-economic foundation for exercising them. The Copy- 
right Clause thus frees authors from the need for subsidization by the state or 
other powerful, institutional "patrons", and from the restraints such support 
often imposes. And it was intended to sustain the existence of a diversity of 
independent publishers, who would give a wide range of viewpoints access to the 
market place of ideas. 

THE 

The Supreme Court has emphasized that the Copyright Clause of the Con- 
stitution 

"was intended to grant valuable, enforceable rights to authors, publishers, etc. 
without burdensome requirements ; 'to afford greater encouragement to the pro- 
duction of literary [or artistic] works of lasting benefit to the world.' " 

The Court said that the "economic philosophy" underlying the Copyright Clause 

"is the conviction that the encouragement of individual efforts by personal gain 
is the best way to advance public welfare through the talents of authors . . ." 

{Mazer v. Stein, 347 U.S. 201, 219) 

Thus, the instrument chosen by the Constitution to serve the public interest^ 
i.e., the securing of literary and scientific works of lasting value — is an inde- 
pendent, entrepreneurial property-rights system of writing and publishing. The 
Copyright Act establishes the rights which prevent others from depriving authors 
and publishers of the fruits of their labor. But it does not guarantee a fair 
reward, or any reward. For authors and publishers, both commercial and non- 
profit, must depend on income derived from uses of their books and journals to 
compensate for the talent, labor and money expended in creating them, and pro- 
vide working capital for further publications. And as entrepreneurs, they must 
assume the ever-present risk that books and journals produced by substantial 
labor and cash outlays will fail financially although they make valuable intel- 
lectual contributions to the public interest. 

We urge that Congress should not disrupt the delicate balance of this essential 
system. Carving exemptions out of the "enforceable rights" of authors and pub- 
lishers does not serve the public interest. For although the resulting uncompen- 
sated uses may further the convenience or ambitious plans of some "user" group, 



222 

they diminish or destroy the ability of authors and publishers to serve the ulti- 
mate public interest — to continue producing new works of lasting benefit. The 
publication of scientific and technical journals, for example, richly serves the 
public interest — but it is at best a marginal economic operation. Learned societies 
and others who publish them do not grow fat on their profits. Squeezed by ever- 
increasing costs and static circulations, publishers will be forced to close down 
some journals or not start new ones if they are denied reasonable compensation 
for uses of their articles in the new medium of systematic, library one-at-a-time 
reproduction. Periodicals and journals are neither immortal nor immune from the 
laws of economics. The process of attrition may not be apparent to library spokes- 
men, but it is nonetheless inevitable. Yet, while they are willing to make substan- 
tial payments to the Xerox Corporation, suppliers and library employees to pro- 
vide users with hundreds of thousands of copies of copyrighted articles, they 
•demand of Congress the privilege of denying the journal's publishers any com- 
pensation. [Ironically, libraries jiay the Xerox Corporation a per-page fee — a 
royalty, if you will — for each page of each article they reproduce]. 

THE ANTI-COPYEIGHT ARGUMENTS 

It has become ritual for library organization and Ad Hoc Committee spokes- 
men to accompany their demands for new exemptions with a series of attacks on 
copyright, calculated to suggest that the author has no legitimate claim to rea- 
sonable protection for the work he creates. 

THE "antitrust ARGUMENT" 

Library and Ad Hoc Committee spokesmen charge that a copyright is a "monop- 
oly", suggesting it offends the Sherman Act. This is not so. The copyright in a book 
is not a "monopoly" in the antitrust sense. It does not give the author control 
over the market in books, or tlie business of publishing them. His book must com- 
pete in the market place with the 40,000 other titles published that year and the 
hundreds of thousands still in print from prior years, including many that deal 
with the same subject. His copyriglit only gives him certain rights to use the 
book he created. The owner of a copyright only has a "monopoly" in the innocuous 
sense that all property owners do — each owns a collection of rights, granted by 
law, to use that which he has created, purchased or inherited. 

THE "restraint OP INFORMATION" ARGUMENT 

Library and Ad Hoc Committee spokesmen charge that a copyright places a 
restraint on infonuation. This is not so. A patent prevents others from using the 
ideas it protects. A copyright does not impose such restraints. Anyone is free to 
use the ideas, facts or information presented in a copyrighted book or article. The 
copyright only protects the author's expression, not the ideas, facts or infor- 
mation. Other writers can draw on them. Other writers are free to independently 
create similar (indeed closely similar) woi-ks; the copyright only prevents sub- 
stantial copying of the author's expression. 

In Progress and Poverty, Henry George made this trenchant observation about 
copyright : 

"Copyright . . . does not prevent any one from using for himself the facts, the 
knowledge, the laws or combinations for a similar production, but only from using 
the identical form of the particular book or other production — the actual labor 
which has in short been expended in producing it. It rests therefore upon the 
natural, moral right of each one to enjoy the products of his own exertion, and 
involves no interference Avith the similar right of any one else to do likewise . . ." 

The Copyright is therefore in accordance with the moral law — (p. 411) 

THE "MERE PRIVILEGE" ARGUMENT 

To Library and Ad Hoc Committee spokesmen, it smacks of immorality to sug- 
gest that the author has a moral claim to copyright protection in a work that he 
created, that would not have existed but for his talent, labor and creative efforts. 
They charge that copyright is not "property" because the rights are created by 
statute, and that Congress is not required to pass copyright laws since Art. I, Sec. 8 
"merely" says that it "shall have the power" to do so. But the phrase "Congress 
shall have the power" does not precede the copyright clause of Sec. 8 — it prefaces 
the enumeration of all powers granted to Congress, including the powers to collect 



223 

taxes, borrow money, raise armies and regulate commerce. Obviously Sec. 8 in- 
tended that Congress would enact copyright laws as well as exercise these other 
vital functions. 

Of course a copyright is property. Like all other property, it is "a creature and 
creation of law . . ." (73 C.J.S. Sec. 1, p. 145). Like all property, it is a bundle of 
rights granted by the state, through legislation or court decision Copyright is 
hardly the only form of property created by statute. Property rights in billions of 
dollars worth of land, minerals and other natural resources have been created by 
acts of Congress. 

But there is one basic distinction. These other statutes grant individuals per- 
petual, exclusive rights in resources that belonged to the Nation ; they take prop- 
erty from the public domain and give it to private citizens. The Copyright Act 
grants the author rights in something he created and that already belonged to him 
at common law ; and within a short time, the Act takes his creation from him or 
his heirs and places it in the public domain. Henry George was right in saying 
the author's claim to adequate copyright protection rests on "natural, moral 
right". The common law recognized that right, holding that an author "has an 
absolute property right in his production which he could not be deprived of so 
long as it remained unpublished, nor could he be compelled to publish it." (Ferris 
v. Frohman). And as the Register noted, these exclusive common law rights "con- 
tinue with no limit even though the work is used commercially and widely 
disseminated." 

Library and Ad Hoc Committee spokesmen have not asked Congress to grant 
them an exemption from the property rights of the Xerox Corporation which 
would permit them to use its machines without charge to reproduce "single copies" 
of journal articles or other copyrighted works. Property rights in machinery is 
something that appai-ently wins their respect. But the copyright owner's right to 
compensation for systematic library reproduction stands on equally firm moral 
and legal footing. And his contribution to the libraries' copying operations is indis- 
pensable. Unless the American Chemical Society and other publishers can afford 
to continue producing their journals, the Xei-ox machines and libraries will not 
have articles to reproduce. 

"WORKABLE CLEARANCE AND LICENSING CONDITIONS" CAN BE ESTABLISHED 

The Xerox machine, oue-at-a-time reprinting and other reprographic processes 
are not the first technological changes to confront authors, publishers and the 
copyright system. Motion pictures, radio, long-^playing records, television, and the 
inexpensive mass-market paperback book all produced enormous transformations 
in disseminating copyrighted works. Some new media destroyed prior ones. Others, 
such as the mass-market paperback, reached millions who do not use its still- 
surviving predecessor, the traditional "hard-cover" book. Motion pictures, radio 
and television were not even mentioned in the 1909 Act. Yet it has protected the 
rights of authors and publishers to these new uses, and they are entitled to receive 
compensation when their works are reproduced or disseminated in these recently 
ari'ived media. 

Moreover, the concept of copyright has enabled authors and publishers, and 
usei-s, to evolve workable licensing arrangements. "Workable clearance and licens- 
ing conditions" also can be established for systematic library photocopying, 
through the joint efforts of librarians and copyright owners. But that solution 
will be aborted if Congress revises Sec. 108 to deprive authors and publishers of 
the right to compensation when libraries systematically reproduce copies of jour- 
nal articles and other copyrighted works. Destruction of that right would be 
totally unfair to those who produce these works ; it would frustrate the purpose 
of the copyright clause : and it soon would be harmful to the public interest and 
to those very patrons the libraries wish to serve by systematic reproduction. 

APPENDIX I 

Uncompensated systematic library reproduction would also damage authors of 
poetry, fiction, and books and articles on political and social problems, biography, 
history and a wide range of other subjects. After these works first appear in a book 



224 

or periodical, they are often reprinted — with tlie author's permission — in an- 
thologies, text books, periodicals, collections of the author's work, etc. 

Many authors earn a substantial part of their income from such reprinting of 
their works. Indeed, many earn the major part of their compensation in this man- 
ner. Poets, essayists and short story writers, for example, receive very little when 
a work is first published in a hard-cover book or periodical. But over the years 
that follow, they may license several different publishers to reprint the poem, 
short story or essay in anthologies or collections or textbooks. Although each fee 
is small, the accumulation of fees produces a modest compensation for work oi 
substantial literary and educational value. As testimony before your Subcommit- 
tee indicated, many of these writers earn from 50% to 75% of their income from 
these reprint fees. 

Authors of books also earn a significant part of their compensation, in many 
instances, from authorizing the reprinting of portions of a work— of similar size 
to periodical articles — in anthologies, textbooks and other collections. Testifying 
before the Senate Subcommittee, John Dos Passos noted that a considerable part 
of his income from writing, in recent yeai's, consisted of royalties from licenses to 
reprint portions of his books in this way. And the Xerox machine has developed 
a new, authorized method of reprinting poetry, articles, etc. Certain reprint puli- 
lishers now prepare customized anthologies, on demand, for college and univerr-iity 
classes. Articles or other works are selected by the professor, the reprint pxiblisher 
obtains permission from the copyriglit owupr, and produces just enough copies of 
each piece, bound together, to serve the needs of the class or classes. Royalties are 
paid to the author. 

If libraries — including college and university librarie"=! — were given the power 
to systematically reproduce single copies of poems, articles and sections of books 
without compensation, authors would be severely damaged. The process of supply- 
ing these copies — e.g. one to each student in a college class in litei-ature or political 
science — can replace several copies of an anthology or book in the library or sev- 
eral copies of a paperback collection or text in the college book store. It is not 
necessary for the copies to be bound, so long as they are provided, they replace the 
authorized copies for which the author woukl have been paid — the anthology, cus- 
tomized anthology, textbook, etc. Unless authors are compensated for uses of their 
works by audiences reached by the medium of systematic library one-at-a-time 
reprinting, they will be deprived of a substantial part of their income. 

Various reports have documented the enormous increase in imautliorized sys- 
tematic library one-at-a-time reprinting of journal articles and other copyrighted 
works (e.g. the Sophar & Heilprin Report for Office of Education, in 1987). 
And it is common knowledge that the amount of copying in large libraries, library 
groups and networks, and in university and coMege libraries has incrpased tremen- 
dously since the report made by Sophar and Heilprin 9 years ago. Moreover, the 
provisions of the Revision Bill must deal Mitli the amount of such copying that 
will occur next year, 10 years from now, and 20 years from now. 

Library spokesmen could hardly guarantee that an exemption permitting thpm 
to engage in systematic reproduction would not seriously injure authors, journal 
publishers and other publishers. Furthermore, an exemption for systematic library 
reproduction could not draw a line — specifying that if an author or publisher 
suffered a prescribpd degree of injury from library reproduction of his articV';, 
poems or stories, libraries must cease one-at-a-time reprinting of his works. The 
only rational solution is that proposed by this Subcommittee, workable licensing 
arrangements which would provide authorization for libraries to copy, and pro- 
vide reasonable compensation for authors and publishers. 

In the light of copyright history, it would be dangerous to assume that uncom- 
pensated systematic library reproduction will not inflict substantial damagp. 
Starting with the phonograph record, every new process of dissemination has 
been greeted with the same "it's not a threat" attitude the library spokesmen have 
expressed toward systematic one-at-a-tinip rpprinting. Had authors been deprived 
of compensation for uses of their works in motion pictures, radio, television and 
mass-market paperbacks, few could today earn any reasonable compensation from 
their writing. 

It should be emphasized that library reproduction of articles is not "note tak- 
ing" or a substitute for copying by individual readers. Persons who obtain copies 
of articles from a library or publisher are not receiving handwritten notes —  
they are acquiring reprints of printed articles or other work.s, several pages long — 
just as they buy or acquire other printed materials to avoid the dozens of hours it 
would take to copy that much by hand. Each copy costs money to produce. Nor 
could users reproduce the copies themselves. Many patronize libraries that do not 



225 

have the journals. The copies are reproduced for them in libraries dozens or 
hundreds of miles away. And where the user's library subscribes to the journal, 
it will produce and give him a reprint of the article he wants, rather than lend 
the journal — so that it can keep the journal itself available to reproduce copies of 
articles for other patrons, and avoid losing this reprint master through wear and 
tear, a user's negligence or theft. 

Mr Danielson. INIr. Lieb, counsel for the Association of American 
Publishers. 

TESTIMONY OF CHAHLES H. LIEB, COUNSEL FOE THE ASSOCIATION 

OP AMERICAN PUBLISHERS 

Mr. Lieb. I would like to preface the reading of excerpts from my 
statement to remark that, judging from the testimony this morning 
from our friends representing the libraries, I think that today, sadly, 
we are further from a reasonable compromise on the photocopying 
problem than we have been for the last 4 or 5 years. 

Today, for the first time in recent years the libraries say that they 
oppose the provision against multiple copying, a section with which 
thev have been in agreement since it appeared in the 1969 Senate bill. 
Today, also, for the first time they say they want the elimination of 
the inhibition against reproduction of audiovisual, musical, and other 
materials. 

Similarly, for the first time in recent years this kind of hard-line 
position is taken not by some but by all the libraries, and that is a 
regressive, not a compromising position. 

They say today in answer to the question that was asked them 
about damage to the publishers, that they don't think the publishers 
are being damaged. The publishers, of course, have no way of knowing 
how much library copying is being done, but their own operating 
statements tell them that their results are not what they expected. 

But, Mr. Anthony Ottinger from Harvard Universitv, from which 
my friend, Mr. Sharaf, operates as well, submitted on February 26 of 
this year a report under contract of the National Commission on 
Libraries and Information Sciences, a report entitled "Elements of 
Information Resources Policy," which had this to say, at page 105 : 

The practice of photocopying by interlibrary loans adds another dimension to 
the problem. Sisznificant proportions of interlibrary loans are met by what are 
called non-returnable items. Unfortunately trend data on this score are not 
available. Data on this .score disappear altogether from the 19fi9 report on 
library statistics of colleges and universities, and reappear in the 1971 data only 
by number of participating institutions, without transaction volume being 
given. 

And Professor Ottinger from Harvard finishes this paragraph with 
the following, "It is hard to avoid the suspicion that these important 
data were suppressed as sensitive intelligence in the war over the 
Convright Revision Bill." 

The position of the Publishers Association in brief is that we sup- 
port the provisions of section 107 of H.R. 222o with respect to fair use 
and we support the pT-ovisions of section 108 Cf) (8) , which make clear 
that libraries are entitled to the benefit of this doctrine. We support, 
also, the additional copying pi-ivileges extended to libraries in section 
108, but we are opposed to any further limitations on the rights of 
authors and other copyright owners; and we are opposed in particular 
to the elimination of what we thought was being challenged today 



228 

namely, the section with respect to systematic copying. And we are also 
opposed to modification of what we learned this morning is being 
challenged, namely the preceding subsection, which inhibits multiple 
copying. 

Much of the copying that Professor Low spoke about this morning, 
his poor boy in Arkansas who wants to copy a page, is permitted 
under the principles of fair use. In addition, much duplication over 
and above these permissible limits would be permitted under lOS. And 
the American Library Association's Subcommittee on Copyright, of 
which Professor Low, I believe, was chairman, was more candid in its 
committee report wliich was submitted last July to the Library 
Association than, I think, he was with you this morning. 

He said in that report — and I'm quoting — "We now have provisions 
under section 108 permitting photocopying of archival material; 
copying for preservation; freedom of liability for copying done by 
users on coin-operated machines on library premises, and the highly 
important provision permitting the making of single copies for normal 
interlibrary loan work." 

"On the other hand," the report continues, "we have not been able 
as yet to reach agreement on 'systematic copying' a term used to de- 
scribe copying in a system or network where one library agrees to dis- 
continue its subscription to a journal and depend on another library in 
the network to make photocopies of articles from this journal when 
needed." 

"Copyright proprietors, rightly or wrongly, believe that such sys- 
tems or networks constitute a potential threat to their rights and want 
to prohibit such copying without license. We, of course, would like to 
see as few restrictions as possible," 

Agreement has not been reached on systematic copying. It has not 
been reached, because the libraries, as Professor Low intimated to you 
this morning, walked away three times from us — and Mr. Hoopes 
will elaborate on that — in our efforts to put flesh on a statutory 
design which by a series of guidelines would establish what kind of 
copying is permissible, and wliat is not permissible. 

We stand ready to work out agreements with respect to these 
guidelines. We stand ready to establish a clearance and payment 
system at our expense — not the libraries'. But so far the libraries have 
not been forthcoming in this regard. 

Mr. DANiELSOisr. Well, you actually have a minute left. [Laughter]. 

Mr. LiEB. My friend was rushing me. I think he'd rather hear from 
Dr. Cairns. I will yield to him. Thank you. 

[The prepared statement of Charles H. Lieb follows :] 

Statement of Charles H. Lieb, Copyright Counsel for the Association 

OF American Publishers, Inc. 

I am Charles H. Lieb. I am a member of the law firm of Paskus, Gordon and 
Hyman of New York City. I appear in behalf of the Association of American 
Publishers, Inc. for whom I am copyright counsel. Appearing with me are 
Townsend Hoopes, President of the Association, from whom you will hear later ; 
Alexander C. Hoffman of Doubleday and Company, Inc., who is chairman of the 
Association's Copyright Committee; and Susan Engelhart, the Association's 
staff director for copyright. 

The Association of American Publishers is a trade association of book pub- 
lishers in the United States. Its 265 member companies and subsidiaries are 
believed to produce 85 per cent or more of the dollar volume of books published 



227 

in the United States. Among its members are publishers of scientific and tech- 
nical journals ; some of its members are religious or educational not-for-profit 
organizations. We are grateful for the opportunity to testify at the hearing 
today which, we understand, is limited to the issue of library photocopying, and 
we request permission to file at a later date our formal statement as part of the 
record of today's proceedings. 

The following, in brief, is our position : 

1. We believe that section 107 of H.R. 2223 is a helpful statement of the 
principles of fair use. and we support section 108(f) (3) which makes it clear 
that libraries receive the benefit of that doctrine. 

2. Although in some respects harmful to the interests of copyright proprietors, 
we support the copying privileges extended to libraries by Section 108. 

3. We are opposed, however, to any further limitations on the rights of authors 
and other copyright owners, and we are opposed in particular to the eliminatioti 
of section lOS(g) (2) with respect to "systematic copying.' 

Much of the copying done by libraries would be permitted under the prin- 
ciples of fair use which would be clarified by Section 107. In addition, much 
library duplication over and above the permissible limits of fair use would be 
permitted under the provisions of section 108. This freedom to conduct normal 
library operations was candidly described in a July 1974 report of the American 
Library Association copyright subcommittee, a copy of which we offer as an 
exhibit. It reads in part : 

"We now have provisions [under Sec. 108] permitting photocopying of 
archival material, copying of material for preservation, freedom of liability for 
copying done by users on coin-operated machines on library premises, and the 
highly important provision permitting the making of single copies for normal 
interlibrary loan work. [Underscoring and bracketed material supplied.] On the 
other hand, we have not been able as yet to reach agreement on "systematic 
copying," a term used to describe copying in a system or network where one 
library agrees to discontinue its subscription to a journal and depend on another 
library in the network to supply photocopies of articles from this journal when 
needed. Copyright proprietors, rightly or wrongly, believe such systems or net- 
works constitute a potential threat to their rights and want to proliibit such 
copying by them without some sort of license. We, of course, would like to see 
as few restrictions as possible placed on dissemination of information through 
cooperative effort." 

Agreement has not been reached on systematic copying ; instead, librarians 
are now urging the elimination of section 108(g) (2) so that they will he free 
to make copies not only for normal use but for library system and network 
operations as well. 

"Systematic copying" as the term is used in section 108 should be distinguished 
from copying done pursuant to "isolated single spontaneous requests" such 
as takes place in normal library procedures. Systematic copying occurs when 
a libi'ary makes copies of materials available to users, either directly or 
through other libraries, under formal or informal arrangements "whose pur- 
pose or effect" is to have the reproducing library serve as the prime source of such 
material. (Senate Report 93-983, 122) 

Systematic copying, in other words, substitutes the copying for the original 
which otherwise would have been purchased from the publisher. The library 
world appears to be divided on whether or not licensing procedures should be 
worked out for systematic copying. Some insist that no distinction should be 
admitted between unauthorized systematic copying and copying pursuant to 
isolated requests, and that payment should be made for neither. Others con- 
cede the difference in principle, but say that the kind of copying that should 
be paid for is too imprecisely defined in section 108, and that no practicable 
procedures have been established by which clearance can be obtained and pay- 
ments made. 

We think it unnecessary to belabor the point that unauthorized systematic 
copying — the kind of copying that is done at a research center, or at a central 
resource point for use in a li}>rary network — is the functional equivalent of 
piratical reprint publication. Certainly, this kind of copying must be paid for if, 
as the National Commission on Libraries and Information Science puts it, "the 
economic viability and continuing creativity of authorship and publishing" are 
to be protected. ( Synopsis of second draft proposal, June 1974. ) 



228 

It is equally meretricious to complain that the "systematic copying" that is 
to be paid for is too imprecisely defined, or that payment cannot be made because 
payment systems have not been established. 

Section 108(g) excludes from library copying privileges not only "systematic 
copying" but also the related or concerted reproduction or distribution of "mul- 
tiple" copies. Systematic copying and multiple copying are general concepts ; both 
are illustrated by examples in the Senate committee report (which closely follows 
the discussion of fair use in your 1967 committee report), and neither is more 
Imprecise than many other statutory or common law doctrines with which we 
are all familiar. The libraries do not claim an inability to understand the multiple 
copying concept; the systematic copying concept is no less viable or under- 
standable. 

What is missing of course is agreement among the parties to flesh out the 
statute — not only to formulate photocopying guidelines for the assistance of 
library patrons and employees, but to establish workable clearance and licensing 
procedures as well. 

This is what your committee recommended in 1967 and this is what the Senate 
committee recommended in 1974. Had this been accomplished, we would not be 
here today. It has not been accomplished, and Mr. Hoopes in his testimony will 
place the blame squarely where it belongs. 



Report to the Council of the American Library Association Prom the 

Copyright Subcommittee 

The Copyright Revision bill, S. 1361, which, due chiefly to the cable TV con- 
troversy, has resided in the Senate Judiciary Subcommittee during all of last 
year and up to this date in this year, now gives evidence of beginning to move. 
The full Senate Judiciary Committee reported it out on July 3 and this last 
Monday issued the accompanying Senate Report (S. Rept. 93-983) explaining the 
legislative intent in its passage. It will now probably come to the floor of the 
Senate and be passed within the next month to six weeks. 

We have had many conversations with the members of the Senate Subcommittee 
in the past several months about provisions in the bill affecting photocopying in 
libraries. We now have provisions permitting photocopying of archival material, 
copying of material for preservation, freedom of liability for copying done by 
users on coin-operated machines on library premises, and the highly important 
provision permitting the making of single copies for normal interlibrary loan 
work. On the other hand, we have not been able as yet to reach agreement on 
"systematic copying," a term used to describe copying In a system or network 
where one library agrees to discontinue its subscription to a journal and depend 
on another library in the network to supply photocopies of articles from this 
journal when needed. Copyright proprietors, rightly or wrongly, believe siich 
systems or networks constitute a potential threat to their rights and want to 
proliibit such copying by them without some sort of license. We. of course, would 
like to see as few restrictions as possible placed on dissemination of information 
through cooperative effort. 

In its report, the Judiciary Committee, in an effort to remove this impasse, 
recommended that "representatives of authors, book and periodical publishers 
and other owners of copyrighted material meet vtith the library community to 
formulate photocopying guidelines to assist library patrons and employees." 
We believe that such conferences can be promoted best through the office of some 
interested but impartial individual and believe that Miss Barbara Ringer, as 
Register of Copyrights, would be an ideal person for this. Not only does she have 
the confidence of both librarians and publishers in her fairness and impartiality, 
but she is also far and away the most experienced of anyone in the country in 
the area of both domestic and foreign copyright. 

In trying thus to meet the recommendations of the Senate Committee in this 
regard and to accomplish what we hope will be of benefit to all, we ask Council 
to transmit the following request to the Register of C^opyrights. 

The American Library Association urges the Register of Copyrights to arrange 
In such ways as deemed feasible and appropriate conferences between representa- 
tives of authors and book and periodical piiblishers and of the library community 
to resolve so far as possible the different interests in copyright legislation, to 



229 

Institute studies of related problems, and to promote understanding on the part 
of the general public of the many complexities inherent in the copyright problem. 
Presented to American Library Association Council, July 12, 1974. 

TESTIMONY OP ROBERT W. CAIRNS, EXECUTIVE DIRECTOR, 
AMERICAN CHEMICAL SOCIETY 

Dr. Cairns. I'm Robert Cairns, and I have a very lengthy state- 
ment, which I will obviously not have time to present; I would like 
to submit it for the record. 

Mr. Danielson. Without objection, it will be received in the record, 
I would appreciate it if you would give us a "once over lightly," I am 
sure you know the contents. 

Dr. Cairns. I will do so. I have a summary, and I'll even have to 
summarize the summary. 

Mr. Danielson. Fine. 

Dr. Cairns. First of all, I would like to introduce my colleagues here, 
on my right, Dr. Richard Kenyon, who is director of our division of 
communications. And behind me is Dr. Stephen Quigley, who is direc- 
tor of our department of chemistry and public affairs, and Mr. William 
Butler, representing Mr. Arthur Hanson, general comisel of our 
society. 

Perhaps the main objective of the American Chemical Society is 
the increase and diffusion of chemical knowledge 

Mr. Danielson. Your objection ? 

Dr. Cairns. Our principal objective. 

Mr. Danielson. Thank goodness. 

[Laughter.] 

Dr. Cairns [continuing]. That lays emphasis on the fact that we 
are interested very strongly in the dissemination of scientific knowl- 
edge. 

Mr. Danielson. That is the only basis under which we can have 
a copyright law, as I read the Constitution. 

Dr. Cairns. Throughout the past 99 years, the American Chemical 
Society approach to achieving this objective has been to gather, to 
evaluate, to organize, and to control new scientific information into 
a form useful for publication, then to publish journals — 16 in num- 
ber, I believe — and deliver it to the scientific world, that is our position. 

In providing a record of new scientific knowledge and maintaining 
the basis upon which it is gathered, evaluated, and organized for pub- 
lication, the journals provide a constantly updated authoritative con- 
sensus of universally accepted knowledge in the fields concerned. We 
can speak, I think, on this theme for a great many scientific societies, 
although we are one of the largest. 

The integi-al pait played by scientific journals and scientific re- 
search renders them indispensible for our way of life. These jour- 
nals provide the knowledge base for technical development, for answers 
to urgent problems faced in the United States and the rest of the 
world, such as the energy crisis, the world food problem, the delivery 
of adequate health service, and pollution abatement. 

It is critically important that this system of organizing, evaluatiufr, 
and providing scientific infomiation remain healthy, that is our maia 
contention. 



230 

JiTow, the central argument focusing on photocopying is essentially 
an economic one. I wish to call your attention particularly to the 
critical problem provided by the cost of bringing the research journal 
tlirough the process of editing, collecting and evaluation, composition, 
and other production steps, up to the point of being ready to print 
the first copy. These costs are what we call "first-copy costs." In our 
system in making scientific information broadly available is to con- 
tinue, we must continue to find ways to support these first-copy costs, 
as well as to pay the costs of the journals actually printed and 
delivered. 

We are finding that subscriptions to our journals are decreasing. 
Since 1969, subscriptions have decreased from 12 to 18 percent. For 
example, the Journal of the American Chemical Society, which is 
our prestige journal, has dropped from almost 20,000 down to a 
little below 16,000 subscribers as of the end of 1974. 

The Journal of Organic Chemistry has dropped from 10,500 to 
9,500 ; the Journal of Physical Chemistry from 6,500 to 5,500 ; others 
have declined comparably. 

If users are allowed, without paying for the journal, to receive 
copies of the journal papers, it is not likely that they will subscribe 
to the journal. Under such conditions, paid subscriptions can be 
expected to continue to drop rapidly. 

While replacement of actual printed copies of the journal by photo- 
copies would reduce the cost to the user, the large costs referred to 
as "first-copy costs" would remain uncompensated, it would have 
to be distributed over a decreasing number of journal subscriptions, 
and the result would be very expensive journals. This would mean 
that the cost would fall on the relatively small number of individual 
organizations which would continue to subscribe to the journal. Ob- 
viously, a continuous trend in that direction would threaten the eco- 
nomic stability of the journal system. 

If, on the other hand, the copyright law is designed to require pay- 
ment for photocopying of papers from journals of an adequate and 
equitable charge for the copy, this would distribute the cost of the sys- 
tem more equitably over those who benefit from it. The objective ig 
not to prevent such photocopying, but, rather, to provide support for 
the basic costs of developing scientific information for distribution, 
thus keeping the journal system viable as a base from which the im- 
proving technologies for improved dissemination can draw ; the result 
would be a more effective and more lasting total information system. 
Mow, there are a couple of studies to which I make reference in 
my main report. One, that the interlibrary loan requests — by their 
own studies — grew from 859,000 requests in 1965 to double that figure 
in 1969, with projections as high as 2.6 million in 1974—75. So, we 
are getting up into millions, and millions, and millions of interlibrary 
loans, to give you an order of magnitude; and that is from their own 
data. 

In another study the author discussed service by possibly a national 
periodical resources center. They estimated that from the collection 
of 10,000 titles the demand will start growing in the range of 58,000 
to 75.000 in the 1st year, to a range from 2% to 5 million in the 10th 
year. Yet, 90 percent of these would be filled by pliotocopies. These 
figures give you some indication of the increase in capacity of the 



231 

network and system of improving the dissemination of scientific 
information. 

However, it is reasonable to expect that the number of journal 
subscriptions from which those will be provided will be much smaller 
than at the present. 

There have been objections that any system of licensing or fees 
for photocopies would encourage excessive administrative costs. How- 
ever, a study of the elements and possible systems for licensing and 
collection of fees for photocopies has been developed by a working 
group of librarians and publishers of the Conference on the Resolu- 
tion of Copyright Issues under the chairmanship of the National 
Commission on Libraries and Information Science — plans are now 
being developed for testing such proposed systems as a means of 
learning just how the process may be carried out in an economically 
sound fashion. 

I have here Dr. Kenyon who is a member of that working group 
and he will be glad to answer specific questions on that system. 

Despite reservations on some segments of this bill, the American 
Chemical Society recommends passage of the sections of H.R. 2223 
related to library photocopying. This recommendation is made with 
the belief, based on work with the Conference on the Resolution of 
Copyright Issues, that a practicable system for licensing and fee col- 
lection for photocopies of copyrighted works can be developed, which 
will render fair and equitable charges for systematic photocopying in 
the interest of an improved and economically viable system for the dis- 
semination of scientific information. 

Mr. DANrELSOx. Thank you very much. You have 21^ minutes left. 
I'm watching the clock in the back of the room. Would you like to yield 
to your associate ? 

i)r. Cairns. Yes. 

Mr. Danielson. Your name, sir ? 

Dr. Kenyon. Richard Kenyon. I would like to make a comment on 
the working group of the Conference on the Resolution of Copyright 
Issues, which has been mentioned in earlier testimony here. The 
w^ork of this group now has been announced in a release by the Library 
of Congress, and in our most recent meeting on April 24, we agreed the 
documents were public documents. In the interest of providing infor- 
mation to the record I would like to offer the report of our working 
group for the record. 

]Mr. Dantelson. "Without objection we can receive it in our files. I 
think we will withhold just how much we want to print in the record 
until the staff and members have had a chance to go over it. I do thank 
you for making it available, though. [See app. 3.] 

Dr. Cairns. I think I can summarize by saying that I think we can 
work out a system which is economically viatle, and continue to sup- 
port authors, users, editors, and members of the scientific community at 
large. 

'Slv. Dantelson. Thank you very much, Dr. Cairns. 

[The prepared statement of Dr. Robert W. Cairns follows :] 

Statement of De. Robeet W. Cairns, Executive Directoe, American Chemical 

SOCIETT 

Mr. Chairman and members of the Subcommittee: My name is Robert W. 
Cairns. I am the Executive Director of the American Chemical Society and, with 
the authorization of its Board of Directors, I appear before you today to present 



232 

the Society's statement. I have spent 37 years in industry and retired as Vice 
President of Hercules Incorporated on July 1, 1971, to accept the position of 
Deputy Assistant Secretary of Commerce for Science and Technology. I re- 
signed from that position on December 1, 1972, on acceptance of my present ap- 
pointment. Accompanying me today are Dr. Richard L. Kenyon, Director of the 
Public, Professional and International Communication Division, Dr. Stephen T. 
Quigley, Director of the Department of Chemistry and Public Affairs, and JMr. 
William B. Butler, representing Mr. Arthur B. Hanson, General Counsel of the 
Society. 

We appreciate being given this opportunity to comment on certain features 
of the Copyright Revision Bill, H.R. 2223. The issues addressed by this legislation 
are both fundamental to the formulation of national science policy, and of vital 
significance with respect to the ability of our Society to resolve many of the prob-. 
lems vphich confront it. These issues have been under discussion for some time 
now by the Committee on Copyrights of the Board of Directors and Council of the 
American Chemical Society, as well as by other similar scientific societies, and a 
general consensus on them has been under development. This consensus has been 
developed in the context that the protection of copyrighted material will "pro- 
mote the Progress of Science and Useful Arts", as specified in Article I, Section 
8, Clause S of the Constitution of the United States. The viewpoint which we at- 
tempt to express is that of the chemical, scientific and technological commu- 
nity, as represented by the American Chemical Society. 

The American Chemical Society is incorporated by the Federal Congress as a 
non-profit, membership, scientific, educational society composed of chemists and 
chemical engineers, and is exempt from the payment of Federal income taxes 
under section 501(c) (3) of the Internal Revenue Code of 1954, as amended. 

The American Chemical Society consists of more than 107,000 such above 
described members. Its Federal Charter was granted by an Act of the Congress 
in Public Law 358, 75th Congress, 1st Session, Chapter 762, H.R. 7709, signed 
into law by President Franklin D. Roosevelt on August 25, 1937, to become 
efl'ective from the first day of January, 1938. 

Section 2 of the Act is as follows : 

"Sec. 2. That the objects of the incorporation shall be to encourage in the 
broadest and most liberal manner the advancement of chemistry in all its 
branches ; the promotion of research in chemical science and industry ; the 
improvement of the qualifications and usefulness of chemists through high 
standards of professional ethics, education, and attainments ; the increase and 
diffusion of chemical knowledge; and by its meetings, professional contacts, 
reports, papers, discussions, and publications, to promote scientific interests and 
inquiry, thereby fostering public welfare and education, aiding the development 
of our country's industries, and adding to the material prosperity and happiness 
of our people." 

Its Federal incorporation replaced a New York State Charter, which had been 
effective since November 9, 1877. 

One of the principal objects of the Society, as set forth in its Charter, is the 
dissemination of chemical knowledge through its publications program. The 
budget for the Society for the year 1975 exceeds $39,000,000 of which more than 
$30,000,000 is devoted to its publications program. 

The Society's publication program now includes three magazines and seven- 
teen journals, largely scholarly journals that contain reports of original research 
from such fields as medicinal chemistry, biochemistry, and agricultural and food 
chemistry, as well as a weekly newsmagazine designed to keep chemists and 
chemical engineers abreast of the latest developments affecting their science and 
related industries. In addition, the Society is the publisher of Chemical Abstracts, 
one of the world's most comprehensive abstracting and indexing services. The 
funds to support these publications are derived chiefly from subscriptions. 

The journals and other published writings of the Society serve a very im- 
portant function, namely : they accomplish the increase and diffusion of chem- 
ical knowledge from basic science to applied technology. In so doing, they 
must generate revenue, without which the Society could n,ot support and con- 
tinue its publications program in furtherance of its Congressional Charter to 
sei've the science and technology of chemistry. The protection of copyright has 
proved an essential factor in the growth and development of the scientific-. 
publishing program of the Society. 

The twenty periodical publications of the Society produce more than 40,000 
pages a year and subscriptions in 1974 totalled 323,000. Chemical Abstracts 
annually produces more than 140,000 pages which go to 5,500 subscribers. Its. 



233 

abstracts number in excess of 361,000 yearly and its documents indexed in excess 
of 425,000. The single greatest source of income for all ACS publications is sub- 
scription revenue. 

As is indicated by the objectives of the American Chemical Society, we believfr 
that the effective dissemination of scientific and technical information is critical 
to the development, not only of the society and economy of the U.S.A., but also 
of modern society worldwide. 

These journals provide the knowledge base for technical development of 
answers to urgent problems facing the United States and the rest of the world, 
such as the energy crisis, the world food problem, the delivery of adequate- 
health services, and pollution abatement. It is critically important that this 
system for organizing, evaluating, and providing scientific information remain 
healthy. 

Scholarly journals are the major instruments for dissemination and recording 
of scientific and technical information. These journals are expensive to produce. 
If the costs are not supported financially by those who make use of them they 
cannot continue. There is no adequate substitute in sight. 

The scholarly scientific or technical journal is more than merely a repository 
of information. The scientific paper is the block with which is built our under- 
standing of the workings of the world around us. In his papers, each scientist 
records his important findings for the permanent record. His successors then have 
that knowledge precisely recorded and readily available as a base from which 
they may start. So the process continues in a step-by-step fashion from scientific 
generation to scientific generation, each worker having available to him or her 
the totality of the knowledge developed up to that time. Each scientist stands 
upon the shoulders of his predecessors. 

But this analogy of simple physical structure is inadequate, for at least of 
equal importance is the continuous refinement that takes place. Before new 
knowledge is added to the record, it is reviewed, criticized and edited by authj)ri- 
tative scholars ; then, once published, it is available in the record for continued 
use, criticism, and refinement. New findings make possible the revelation of 
weaknesses in the earlier arguments and conclusions, so that as the structure 
of scientific knowledge is built higher it is also made stronger by the elimination 
of flaws. While it has been said that mankind is doomed to repeat its mistakes, 
the system of scientific recording in journals is designed to prevent the repetition 
of such mistakes and to avoid building upon erroneous conclusions. The scholarly 
journal record is the instrument for insuring this refining process. 

In addition, journal papers form an important part of the basis upon which a 
scientist's standing among his peers is judged. For this reason, scientific scholars 
are willing to give their time and effort to help produce these evaluated records 
and are also willing to leave the management of the copyright on their papers in 
the hands of the scientific societies. These sckolars are rarely concerned with 
private income from their published papers, but they are vitally concerned 
with the preservation of the intrinsic value of the scientific publishing system. 

Publishing costs have risen and are rising continuously, making the con- 
tinuation of the scientific-journal system increasingly difficult. This has been 
recognized by the U.S. Government in acknowledging the philosophy that 
scientific-research work is not complete until its results are published, and in 
establishing a policy which makes it proper that money may be used from federal 
support of research projects to help to pay the cost of journal publication. It is 
this policy which provides most of the funds for paying page charges, charges 
originally designed to pay the cost of bringing the research journal through the 
editing, composition, and other production steps, up to the point of being ready 
to print. However, publishing costs are now so high that these page charges no 
longer pay even for these initial parts of the publishing process. American 
Chemical Society records in 1974 show that page charges supported one-third or 
more of those costs for fewer than 30% of ACS journals. 

Publishing costs must be shared by the users. If these users are allowed, with- 
out payment to the journal, to make or to receive from others copies of the jour- 
nal pajiers they may wish to read, it is not likely they will be willing to pay for 
subscriptions to these journals. If and as free photocopying of journals proceeds, 
the number of subscribers will shrink, and subscription prices will have to rise. 
The reduction of subscription income may continue to the point of financial 
destruction of these journals. 

57-786— 76— pt. 1 16 



234 

The problems of the commercial publishers of many good scientific journals 
are even more severe, because these publishers do not have the moderate as- 
sistance of page charges. , . , , 

The doctrine of fair use, developed judicially but not legislatively, has long 
been useful to the scholar, for it has allov^^ed him to make excerpts to a limited 
extent for purposes of the files used in his research. However, the modern tech- 
nology of reprography has offered such mechanical efficiency and capacity for 
copying that it is presently endangering the protection given the foundations 
of the scholarly journal by copyright. "Excerpts," instead of being notes, sen- 
tences, or paragraphs, are being interpreted to mean full scientific papers, the 
aforementioned building blocks. 

As the copyrighted journal system developed, it was agreed long ago that the 
scholar should be allowed to hand-copy excerpts for use as background informa- 
tion. As a further step, authors became accustomed to ordering the reprints of 
their papers to send to their colleagues as a means of assuring a good record 
of the progress of work in the field concerned. This was followed, 20-80 years 
ago. by some minor use of the old "Photostat" machine. While that process 
stra'ined a little the proprieties of copyright, it was fairly generally agreed 
that the mechanics of the practice were such as to help the research scientist 
while difficult and costly enough not to undermine the basic structure of the 
journal system. 

We hold no objection to a scholar himself occasionally making a single copy 
in a non-systematic fashion for use in his own research. However, in the past 
decade the techniques of reprography have advanced to such an extent that 
third parties, human and mechanical, are beginning to be involved in a sub- 
stantial way. It now is practical to build what amounts to a private library 
through rapid copying of virtually anything the scholar thinks he might like 
to hnve at hand. While this process has obviously personal advantages, it is now 
being done extensively and increasingly, without any contribution from these 
scholars — or the libraries which copy for them — to the cost of developing and 
maintaining the basic information system that makes it possible. Even con- 
servative projections of the development of reprographic techniques within the 
next decade make it clear that the economic self-destruction of the system within 
the next decade is a real possibility. Overly permissive legislation could make 
this destruction a certainty. 

Use of a journal by an individual for extracting from it with his own hands, 
by hand-copying the material specifically needed and directly applicable to hia 
research, is one thing. A practice in which an agent, human or mechanical, acts 
as copier for an individual or group of individuals wishing to have readily 
available, without cost, copies of extensive material more or less directly related 
to his or their studies and research, is quite a different matter. The latter is 
certainly beyond justification on the mere grounds that technology has made 
it convenient, or that the purposes are socially beneficial. 

Documented evidence of the increase in photocopying is found in "A Study 
of the Characteristics, Costs, and Magnitude of Inter Library Loans in Academic 
Libraries," published in 1972 by the Association of Research Libraries. There 
we find that in 1969-70 the material from periodicals sent out in response to 
requests for "interlibrary loans" filled by the academic libraries surveyed was 
S3.2 percent in photocopy form as compared with 15.2 percent in original form 
and 1.4 percent in microform. 

In that same report the volume of interlibrary loan activities from academic 
libraries is traced. It grew from 859,000 requests received by academic lending 
libraries in 1965-66 to 1,754,000 in 1969-70. and is projected to reach 2,646.000 in 
1974-75, 

Much thinking and study are being devoted to systems for improving access 
to periodicals resources through networks. These networks would make the 
scientific information available widely and rapidly from a relatively small 
number of original journal copies. In "Access to Periodical Resources : A Na- 
tional Plan", by Vernon E. Palmour. Marcia C, Bellassai, and Lucy M, Gray, a 
report prepared at the request of the Association of Research Libraries, it is 
stated that a number of advantages accrue to the provision of photocopies in- 
stead of originals. "Supnly of photocopies." the report states, "is more es- 
sentially a 'mail order' or merchandising rather than a lending operations." It 



235 

is also noted tbat "A single copy, or in some cases a few copies, at a center can 
meet, without undue delay, the needs of a large number of users." 

In viewing the possible growth of service by a National Periodical Resources 
Center, the authors estimated that from a collection of ten thousand titles, the 
demand would grow starting in the range of 58,000 to 75,000 in the first year to 
a range of 2,281,000 to 5,462,000 in the tenth year, with 90 percent of the request 
being filled by photocopies. 

Such estimates as these show expectations of a great growth in use of photo- 
copied material. Obviously the direct uses of the printed journal would be very 
small. 

These data give some indication of the trends in use made of the published 
literature without contribution of any share of the very considerable cost of 
evaluating, organizing, and publishing it. 

In another report, "Methods of Financing Interlibrary Loan Services," by 
Vernon E. Palmour, Edwin E. Olson, and Nancy K. Roderer, a fee system is sug- 
gested as a practical possibility with the fee initially set at $3.50, about half 
the full cost recovery, and gradually increasing toward providing the full cost. 
No consideration is given in this suggestion to payment of a fee to the publishers 
from whose periodicals the copies are made. An adequate additional fee, paid 
into a clearinghouse and distributed to the appropriate publishers, could spread 
the full cost of support of a journals system equitably over the users. 

It is desirable that use he made of modern technology in developing optimum 
dissemination. This technology includes the use of modern reprography, but 
as technology inherently includes economics the means of financial support of 
the system must be a part of its design. Therefore, photocopying systems must 
include an adequate means of control and payment to compensate publishers 
for their basic editorial and composition costs. Otherwise, "fair use" or library- 
photocopying loopholes, or any other exemptions from the copyright control 
for either profit or non-profit use, will ultimately destroy the viability of scien- 
tific and technical publications or other elements of information dissemination 
systems. 

The copyright law is directed to the interest of the public welfare. It is not 
in the interest of the public welfare to modify the copyright laws so as to allow 
the economic destruction of the scientific and technical information system. 

The American Chemical Society is properly concerned with the clarity and 
vitality of the copyright laws of the United States and of the world. These 
laws have provided a sound basis for the continuity of scientific communica- 
tion programs, including at present the primary and secondary journals, micro- 
forms, and computerized information systems. 

The Society recognizes that its members and others concerned with its pub- 
lications are both "authors" and "users" of information, and that it is the So- 
ciety's objective to serve their needs as fully as possible. It recognizes the 
functions and problems of such vital information channels as libraries, infor- 
mation centers, and information systems and networks. It further recognizes 
the challenges offered by technological advances in communication techniques. 

However, scientific communication programs cannot continue without proper 
funding, and in the immediate future this funding must continue to come from 
"authors" and "users." "Page charges" are an acceptance of the philosophy 
that "authors" (or their employers) must share in the funding of the communica- 
tion process, and that publication of findings is the final step in the completion 
of a significant study. "Users" have traditionally paid their share through per- 
sonal and employer (library) subscriptions to printed publications, but "tech- 
nology" and "networks" are changing the need for multiple or even local copies, 
making it all the more vital that revenue be obtained in relation to direct use, 
wherever and however provided. 

Because law is the basis for order among individuals, organizations, and na- 
tions, the Society believes that the laws which affect communicaton — informa- 
tion transfer — must be equitable and clear, and that they must be periodically 
reviewed to maintain these qualities. The copyright law of the United States 
has not been seriously updated since 1009, and it is badly in need of revision. 
Its antiquity is the direct cause for present ethical and judicial arguments over 
what is "fair" or "free" as regards communication — arguments which obscure 
the basic rights of authorship : the "value added" factors in reviewing, editing, 
publishing, and information-base creation ; and the fact that the real problem 



236 

is inadequate funding at most stages of the communication process (including 
libraries). 

Tlie Society has repeatedly and clearly stated its need for copyright pro- 
tection against continuation and growth of "uncontrolled dissemination of scien- 
tific information" — the unauthorized regular or systematic or concerted single- 
copy republishing of Society papers by libraries or networks of libraries. The 
Society is opiwsed to copyright-law revisions relating to "copying" that would 
destroy the copyright protection for its publication programs. 

Until communication issues can be further clarified, the Society would prefer 
that "fair use" remain a judicial rather than a legislative concept. The So- 
ciety is specifically opposed to any definition of "fair use" that could be further 
interpreted as permitting unauthorized, concerted "single copying'' (photo- 
copying, electronic copying, etc. ) . 

The Society recognizes the need to develop total systems for information 
transfer ; therefore, it specifically opposes any broadening or interpretation of 
the definition of or the right to prepare a "derivative work" that would reserve 
to "authors" (primary publications) the right to control the writing of original 
informative abstracts that are not complete "abridgments" or "condensations." 
However, the latter are accepted as being fully protected derivative works ; 
they are of significance to the Society's future primary publication of "short 
papers." 

The Society advocates immediate copyright-law revisions that will more com- 
pletely and explicitly define and continue to protect such technological develop- 
ments as computerized information bases, computerized data bases, computer 
programs, and microforms, i.e., that will define and specify these as "Exclusive 
Riglits in Copyriglited Works." Because the scope and importance of these tech- 
nological developments are already extensive, the Society no longer advocates 
deferring related copyright-law revisions until after the studies and recommen- 
dations of the National Commission on New Technological Uses of Copyrighted 
Works. In particiilar, the Society firmly advocates revisions which clarify and 
continue the protection of copyrighted computer bases at time of input, on the 
basis that copyright control at output only might be limited severely by broad 
interpretations of "fair use." 

The Society opposes most of the specific additional limitations on the exclu- 
sive rights of authors and their publishers to provide copies of copyrighted pub- 
lications that are contained in recent legislative bills. As proposed, these limita- 
tions do not really meet the needs of "users" and libraries for uncomplicated 
copying. 

The Society recognizes that these and other limitations on exclusive rights 
to provide copies are based on the very real desire of "users," and libraries in 
their behalf, to avail themselves of such "new technology" as photocopying to 
prepare or obtain copies of copyrighted documents quickly and easily. The So- 
ciety has repeatedly declared its readiness to cooperate in the developm_ent of a 
clearinghouse that can grant such permissions in an equitable and simple man- 
ner and is presently working actively tow^ard this goal through the Conference 
on the Resolution of Copyright Issues under the chairmanship of Barbara 
Ilinger, Register of Copyrights, and Fred Burkhardt. Chairman of the National 
Commission on Libraries and Information Science. The Society also advocates 
the development of "document-access networks" that will quickly supply actual 
copies in an equitable maimer. The Society therefore advocates coiiyright-law 
provisions that will equitably authorize and regulate such important services to 
"users." 

Despite reservations on some segments of this bill, the American Chemical 
Society recommends passage of the sections of H.R. 2223 related to the library 
pliotocopying. This recommendation is made with the belief, based on work witii 
the Conference on the Resolution of Copyright Issues, that a practicable system 
for licensing and fee collection for photocopies of copyrighted works can be de- 
veloped wliich will render fair and equitable charges for systematic photoc^p.v- 
ing in the interest of an improved and economically viable system for the dis- 
semination of scientific information. Plans now are being developed for testing 
such a mechanism. 

Mr. Danielson. I believe the next gentleman is Mr. Hoopes, presi- 
dent of the Association of American Publishers. 



237 

TESTIMONY OF TOWNSEND HOOPES, PRESIDENT, ASSOCIATION OF 

AMERICAN PUBLISHERS 

Mr. HooPES. Thank you, ]\Ir. Chairman. I am the president of an 
association of 265 members who are responsible for the publication 
of perhaps 85 percent of all the books published in this country. 

On behalf of our association and speaking to some extent for the 
other copyright owners, my purpose is to reinforce support for the 
present sections 107 and 108, which INIr. Lieb has addressed in some 
detail. Mainly I will summarize our recent experience with the library 
community in seeking to be responsive to jwinted suggestions from 
both the House and Senate Judiciary Committees. 

The Senate report accompanying S. 18G1, which passed the Senate 
last September, expressed the belief that section 108 provides "an 
appropriate balancing of the rights of creators and the needs of 
users." At the same time, recognizing the complexities, the report urged 
the parties — in this instance authors, publishers, and librarians— to 
meet together directly in order to develop more precise photocopying 
guidelines for fair use; and also to develop workable clearance and 
license arrangements for copying beyond fair use. 

This urging by the Senate committee repeated a similar proposal by 
the House Judiciary Committee in 1967. Responsive to that earlier 
proposal, publishers and authors met with librarians in 1972 and again 
in 1973 for discussions that became known, somewhat grandiloquently, 
as the "Cosmos Club and Dumbarton Oaks talks." 

The formula evolved at the Cosmos Club was that, if reprints of 
journal articles were readily available from the publisher or his agent, 
then the library would refrain from photocopying of its own. The 
formula evolved at Dumbarton Oaks was that a journal publisher 
would encode the front page of each journal article with a serial num- 
ber and a reprint price, and that a librar}^ making a copy thereof would 
so advise a clearinghouse operated by the publislier. At quarterly, or 
semi-annual intervals the clearinghouse would bill the library for the 
aggregate royalty charges, and would then distribute the proceeds to 
individual publishers. Wliile both the Cosmos and Dumbarton efforts 
were deemed feasible by the library participants, they were later both 
shot down by officials of the various associations. 

Since November, 1974, publishers have again been negotiating with 
the librarians under the joint sponsorship of the Register of Copy- 
rights and the Chairman of the National Commission on Libraries and 
Information Science. Eight meetings of a 12-man working group were 
held between early December 1974 and mid-April of this year. 

I regret to say, Mr. Chairman, that there has not been much progress 
to date, chiefly because the librarians have refused to accept either 
the Senate bill, or the guidances suggested by the Library Commission 
chairman and Miss Ringer, as in any way a limiting frame of refer- 
ence. We have asked them, for example, to join with us in defining 
typical situations of two kinds : (a) Those which would clearly involve 
fair use copying, and (b) those which would clearly involve systematic 
copying beyond fair use, thereby requiring permission and royalty 
payment. 

Their consistent reply has been that they know of no copying done 
by libraries which extends beyond fair use. JNIr. Low in his statement 



238 

this morning complained about the practical difficulties of distin- 
guishing single copying from S3^stematic copying, but it is a matter of 
record that his group has refused even to discuss guidelines designed 
to establish just such practical distinctions. 

Having thus failed to come to grips with the substantive issue here 
involved, the two sides have recently agreed to conduct a survey of 
actual photocopying practices in libraries, and a test of a payments 
mechanism modeled along the lines of the Dumbarton Oaks proposal. 
But the library community has made clear tliat its participation in this 
exercise in no way implies an obligation to pay royalties under any 
circumstances. 

I suggest, Mr. Chairman, two possible explanations for this unfor<^h- 
coming attitude. Either the library community as a whole is still 
attempting to secure total exemption from copyrights and expects to 
get its way with the Congress ; or the attitude here expressed reflects a 
minority view of the library conmiunity and is not, therefore, repre- 
sentative of the whole. In this latter connection, I must say that we 
are struck by the difference in the attitude we have found among local 
librarians, and those expressed by the official spokesman of the library 
associations in Washington. In the field, we have encountered wide- 
spread sympathy for and understanding of the basic conce]:)t of copy- 
right, and of the need for copyright protection, accompanied hy a felt 
need for guidelines that will more precisely determine the dividing 
line between fair use and infringement. 

I would like to make brief mention in this same context of the Com- 
mission on New Technological Uses of Copyrighted Works which was 
established by law on December ol, 1974. Our association has sup- 
ported and does support this commission. But we believe it would be a 
serious mistake if Congress should seek to avoid coming to its own finite 
conclusions on key copyright issues on the grounds that such questions 
ought logically to be referred to the new commission. In our judgment 
such a course would represent a serious abdication of congressional 
responsibilit}^, and would increase rather tlian decrease the ensuing 
confusion. In a true sense it would merely shift the debate to another 
forum, and one not nearly so well placed as the Congress for bringing 
the controversial questions to clear resolution. 

In the nature of things, Mr. Chairman, the ramifications of the copy- 
right issue in the context of rapid technological change will assure that 
the new commission has a great many questions to debate and resolve. 
But the commission's work will proceed on a far more liopeful basis 
if the Congress accepts its own responsibility for setting workable 
guidelines in the new law. In our judgment congressional endorsement 
of the existing language of sections 107 and 108 would constitute the 
necessary guidelines for print media. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Hoopes follows :] 

Statement op Townsend Hoopes. President, The Association of American 

Publishers 

Mr. Chairman. My name is Townsend Hoopes. I am President of tlie Association 
of American Publishers, the extent and influence of whose membership Mr. Lieb 
has described. I should add parenthetically that, in addition to representing 
publishers, I have written two books and intend to write more, so that my con- 
victions about the need for copyright protection are based on authorship as well 
as publishing, I agree with Ms. Ringer that protection of authors' rights is at the 



239 

very core of the Constitutional provision for copyright protection, and that the 
need for such protection is a direct consequence of the need to assure continuance 
of intellectual creativity, a function which cannot be performed by a committee 
but only by an individual. 

On behalf of the Association, and also speaking to some extent for the other 
proprietary owners here assembled, my purpose is to reinforce support for the 
present language of Sections 107 and 108 of H.R. 2223, which Mr. Lieb has ad- 
dressed in some detail. Mainly I will summarize our recent experience with the 
library community in seeking to be responsive to pointed suggestions from both 
the House and Senate Judiciary Committees. 

The Senate report accompanying S. 1361 expressed the belief that Section lOS 
provides "an appropriate balancing of the rights of creators and the needs of 
users" ; at the same time, recognizing the complexities, the report urged the 
partie.s — in this instance authors, publishers and librarians — to meet together 
directly in order to develop more precise photocopying guidelines for "fair use"', 
and also to develop workable clearance and license arrangements for copying 
beyond f:iiv use. This urging by the Senate Committee repeated a similar proposal 
by the House Judiciary Committee in 1967. Responsive to that earlier prop(i.*;al, 
publishers and authors met with librarians in 1972 and again in 1973 for discus- 
sions that became known, somewhat grandiloquently, as the Cosmos Club and 
Dumbarton Oaks talks. The formula evolved at the Cosmos Club was that, if re- 
prints of a journal article were readily available from the publisher or his agent, 
the library would refrain from photocopying of its own. The formula evolved at 
Duii'barton Oaks was that a journal imblisber would encode the front page of each 
journal article with a serial number and a reprint price, and that a library making 
a copy thereof would so advise a clearinghouse operated by the publishers. At 
quarterly or semiannual intervals, the clearinghouse would bill the library for the 
aggregate royalty charges and would then distribute the proceeds to individual 
publishers. While both the Cosmos and Dumbarton efforts were deemed feasible by 
the library participants, they were later both shot down by othcials of the several 
library associations. 

Since November 1974, the publishers have again been negotiating witJi the 
librarians under the joint sponsorship of the Register of Copyrights and tlie 
Chairman of the National Commission on Libraries and Information Science. 
Eight meetings of a twelve-man working grovip were held between early Decem- 
ber 1974 and mid-April of this year. I regret to say, Mr. Chairman, that there has 
not been much progress to date, chiefly because the librarians have refused to 
accept either the Senate bill or the guidances suggested by NCLIS and Ms. 
Ringer as in any way a limiting frame of reference. We have asked them, for 
example, to join with us in defining typical situations of two kinds : ( a ) those 
that would clearly involve fair use copying, and (b) those that would clearly 
involve systematic copying beyond fair use thereby requiring permission and 
royalty payment. Their consistent reply has been that they know of no copying 
done by libraries which extends beyond fair use. 

I suggest. Mr. Chairman, there are two possible explanations for this unforth- 
coming attitude. Either the library community as a whole is still attempting to 
secure total exemption from copyright, and expects to get its way with the 
Congress; or the attitude here expressed reflects a minority view within the 
library community and is not therefore representative of the whole. In this latter 
connection. I must say that we are struck by the difference in the attitudes we 
have found among local librarians and those expressed by the oflicial spokesmen 
of library associations in Washington. In the field, we have encountered wide- 
spread sympathy for and understanding of the basic concept of copyright and of 
the need for copyright protection, accompanied by a felt need for guidelines 
that will more precisely determine the dividing line between fair use and infringe- 
ment. 

I would like to make brief mention in this same context of the Commission on 
New Technological Uses of Copyrighted Works which was established by law on 
December 31, 1974. Our Association has supported and does support this Com- 
mission, but we believe it would be a serious mistake if the Congress should 
seek to avoid coming to its own finite conclusions on key copyright issues, on the 
ground that such questions could logically be deferred for consideration ])y the 
new Commission. In our judgment, such a course would represent a serious 
abdication of Congressional responsibility, and would increase rather than 
decrease the ensuing confusion. In a true sense, it would merely shift the debate 



240 

to another forum and one not so well placed as the Congress for bringing the 
controversial questions to clear resolution. 

In the nature of things, the ramifications of the copyright issue in the context 
of rapid technological change will assure that the new Commission has a great 
many questions to debate and resolve. But the Commission's work will proceed 
on a far more hopeful basis if the Congress accepts its own responsibility for 
setting workable guidelines in the new law. In our judgment, Congressional 
endorsement of the existing language of Sections 107 and 108 constitutes the 
necessary guidelines for the print media. 

Mr. Danielson. You have some more time, if you like — Mr. Lieb 
h«s a comment to make. 

Mv. Lieb. May I respond as one of the many lawyers who was in- 
volved in the wonderful case of Williams c& Wilkins, in view of the 
questions that were raised this morning about it ? 

First of all, Mr. Pattison, although it is true that the Supreme Court 
decision said the judgment of the Court of Claims is affirmed on a 
four to four vote, the established law is that such a decision by the 
Supreme Court lacks any precedential value whatsoever as far as the 
Supreme Court is concerned. 

Second, I would like to point out to those who are not intimately 
familiar with the bi-iefing in the case, that the Solicitor General in his 
l^rief to the Supreme Court defended the practices as shown by the 
record on appeal, and there was a very limited, narrow record of only 
copying of eight articles of at most three times of one, the other twice 
of one. 

The Solicitor General defended the practices that appeared in the 
record as not systematic and said in two places in his argument that 
had the case had before it facts involving a library consortium, such 
as vras recently established by New York Public Library, and Har- 
rard, and others ; had it had before it a case of true systematic copying 
the argument would not be made. 

So, the WiUiams cC' Wilhins decision, such as it is, resting on a four 
to three decision of the Court of Claims, is to be read most narrowly 
not only because of the narrow facts in the record, but because of 
the reservation and doubts of the Solicitor General with respect to 
the principle involved. 

Air. Danielson. Thank you. Mr. Pattison ? I think we can safely say 
we have about 10 minutes between us, you take the first 5. 

Mr. Pattison. I guess I'm just primarily concerned in terms of the 
mechanical problems once some satisfactory or otherwise agreement 
is worked out by Congress, and the mechanical problems of preclear- 
ance, what is an adequate charge, how the proceeds are distributed, 
recordkeeping with all the varieties of libraries that we have — ^tiny 
onf's and great big ones— I would like to have some of your comments. 
I tliink Mr. Hoopes has been very helpful on that, but it seems to me 
some kind of agreement has to be worked out, some complicated mecha- 
nism undoubtedly will have to be worked out to resolve those questions. 

]SIr. PIoopES. If I may, INIr. Pattison, I would like to refer that ques- 
tion to one of the gentlemen who participated in the working group. 

Mr. Karp. Mr. Pattison, may I start by pointing out, the papers that 
Dr. Kenyon submitted contain a description of a prototype, a proto- 
type in which the mechanics are described. They start in part from the 
device of a code printed on the first page of every article, indicating 
the price, the identification of the publisher, and so forth. 



241 

The next step would be tlie Xeroxing of an extra copy of that page. 
In other words, when the article is Xeroxed, the first X)age will be 
Xeroxed tvv-ice. Those first pages will then be shipped in bulk to the 
clearance center which would process them. The processing could be 
done in various ways in wliich I don't want to get bogged down, 
including optical scanning. 

Beyond that, I also should point out, that is only one possibility. The 
study group was involved, and hopefully will continue to be involved 
in developing that system. And, as Mr. Hoopes pointed out, one of the 
purposes of the study to be undertaken by the National Connnission on 
Libraries and Information Science is to test the system and refine it. 

One more thing, and I will turn it over to Dr. Kenyon. The history 
of cop3^right is full of technological revolutions, this is not the first one 
by far. Phonographs, motion pictures, television, radio ail developed 
during the 1909 act ; and frankly, some of them are much more com- 
plicated and more devastating in their impact on prior methods of 
distribution. The jump from printing journals to photocopying, 
quantitatively, is nothing compared to the jump from publishing sheet 
music to performing music on long-playing phonographs and radio and 
television. That was a tremendous jump, economically. Yet, copyright 
owners and users were able to work out systems for licensing, facing- 
problems much more comj^lex than what we have here. It's poppycock 
to talk about the complexity of these problems, compared to the com- 
plexities that face the performing rights societies. 

And our problems can be handled much more easih% I think, in the 
long run. But the important thing is to at least try, and not come up 
to the author and back away ; and come up to the author and back away 
in the manner Mv. Low described. If you go through the process of 
trying you don't take away other people's property just by lightly 
saying, "I, a librarian who has worked in the public field and public 
funds for 40 years know that you businessmen can't cope with this 
problem, so our solution is to take your rights away from you", that 
just isn't something we can lightly accept. 

I think that if the attempt is made to work it out — that may also 
eliminate other complications. Here are 10,000 journals placed on mico- 
film by copyright owners' permission. Other journals would be in here 
if their proprietors were not fearful of the fact that once the journals 
were photocopied by University Microfilms and sold to libraries, the 
consequences on a photocopying exemption would be devastating. 

Mr. Danielson. I think that the gentleman is referring to the rather 
large catalog of microfilm work that is put out by Xerox. 

Mr. Karp. University Microfilms, which is a subsidiary of Xerox 
Co. Thank you, I have" taken too much time. I'll turn it over to Dr. 
Kenyon. 

Dr. Kenyon. I don't think you have gone into a detailed description 
of the mefihanisms. The elements of such mechanism are included in our 
report here. It is our view that the publishers said they believed that a 
kind of system could be developed with the elements of this mecha- 
nism, could be effective in receiving payment for photocopies. Library 
people have said they doubt it. 

But at least we have developed elements for such a system which have 
been presented to the Conference on the Resolution of Copyright 
Issues. And in the press release from the Library of Congress that was 
issued in very recent days, it states that the National Commission on 



242 

Libraries and Information Sciences is prepared to assume responsibil- 
ity for financing and to cosponsor with the Conference a project to 
compile library statistics on photocopying, including testing a pay- 
ment mechanism. As had been indicated, the interlibrary loan is a 
very important instrument in providing information, and the added 
matter of recording the photocopying that is done, and fitting that 
information into a central clearinghouse, we believe, can be developed 
in a relatively low-cost system, especially in view of the existing elec- 
tronic mechanisms and continuing advancement with such mechanism. 

2ih\ Pattison. I just have one more question. On page 6, Mv. Ivarp, 
you referred to a Xerox per page fee as a royalty, and I am wondering 
if that is accurate. In other words, is that the charge Xerox makes 
when they lend a machine to you, whether you are taking pictures of 
your hand, or some copyrighted material, there is still a fee. 

Mr. IvARr. You copy a page, the library copies a page on the Xerox 
machine— I think this is useful to illustrate that point — and Xerox 
gets paid for every page they copy for the use of its property, 2 cents a 
page, or whatever the arrangement is. The material on the page to the 
librarians is of lesser significance, so they say it shouldn't be paid for. 

If I may, Mr. Chairman, INIrs. Linden who has been prominent in 
the deliberations on photocopying and represents several publishers 
wishes to make a comment. 

Mr. Danielson. Go right ahead, ma'am. You know we are on bor- 
rowed time because the House is in session. 

Mrs. Linden. I'll try, 2 minutes, thank you very much. The dis- 
cussion this morning, its major portion centered on the photocopying 
and duplication of scientific and technical journals. If you would be 
good enough to look at sections 107 and 108, they deal — section 107 — 
with fair use of all copyrighted material, sheet music, and the library 
photocopying issue, the most immediate one by consensus of all, re- 
lates to scientific and technical journals. But that is not to say that the 
language promulgated in section 108 relates only to scientific and tech- 
nical journals. Focusing too narrowly on the most immediate element 
expressed this morning it is my fear — and I hope unfounded — that the 
larger and fundamental issue might be overlooked, and that is a 
change in the express language of 108, and the elimination of the sub- 
sections requested by the library group would affect all intellectual 
copyright, books, scientific books, encyclopedias of all kinds, children's 
books, all literature that we are discussing. And it does so not only 
retroactively where we are dealing with legislation, but proposes to 
regulate prospective uses of all intellectual property. 

And therefore I urge strongly that we not look so closely to the 
minute of Professor Low's illustrations which we all concede are fair 
use. and forget the basic issues that sections 107 and 108 relate to. 
Thank you. 

Mr. Danielson. Thank you. ma'am. For the record, will you give 
us your name and your affiliation ? 

Mrs. Linden. My name is Bella Linden ; I'm partner in the firm of 
Linden & Deutsch and represent some of the major educational 
publishers. 

Mr. Danielson. I understand we are going to have you back 
tomorrow, so, this is sort of an advance showing, is that right ? No ; 
you are welcome back 

[Laughter.] 



243 

Thank you. "We don't have a quorum call, we are in session, but 
I have a couple of quick questions and comments I would like to make. 

Dr. Cairns, you produced some interesting figures relative to circula- 
tion. It would be helpful to me at least, and I think to the other mem- 
bers of the committee, if you could provide us with some data on 
that. And I hope you will be good enough in doing so, to be very con- 
servative in your computations, so that we will have good, hard 
figures to deal with. If you would comply with that request, we would 
appreciate it. 

Dr. CAiRisrs. We will give you those. 

[The material referred to follows :] 

American Chemical Society, 
Washington, D.C., June 25, 1975 
Hon. Robert W. Kastenmeier, 

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of 
Justice, Committee on the Judiciary, U.S. House of Representatives, Wash- 
ington, D.C. 
Dear Congressman Kastenmeier: During the hearings held in May 1975 on 
H.R. 2223, Congressman Danielson requested supplemental information of the 
American Chemical Society for inclusion in the record of those hearings. There- 
fore, I have enclosed for your information and that of the Subcommittee a chart 
comparing circulation of scholarly journals published by the American Chemical 
Society during 1969 and 1974. The request for supplemental information, which 
indicates the magnitude of the decline in circulation of these journals, was made 
during the discussion of the potential effects of continued photocopying on circu- 
lation of scientific journals. 

I have also taken the liberty of providing you with a copy of "Copyrighting 
Physics Journals" by Dr. H. William Koch, Director of the American Institute of 
Physics. Please note that the article has been reprinted from Physics Today — not 
photocopied by us. I believe you will find that the article further indicates that 
the decline in journal circulation is a result of widespread photocopying of single 
articles. 

On behalf of the Society, I wish to thank you again for the opportunity of 
presenting our views on copyright revision as it relates to the issue of photocopy- 
ina-. The Society would be pleased to cooperate in any way with you and the 
Subcommittee on Courts, Civil Liberties, and the Administration of Justice in 
resolving this issue. 

Sincerely yours, 

Robert W. Cairns. 



Enclosures. 



AMERICAN CHEMICAL SOCIETY 
SCHOLARLY JOURNALS— CIRCULATION COMPARISONS 1969 AND 1974 



1969 1974 



Accounts of Chemical Research 

Analytical Chemistry -- 

Biochemistry 

Chemical Reviews _-- 

Industrial and Engineering Chemistry, Fundamentals 

Industrial and Engineering Chemistry, Process Design and Development 

Industrial and EngineeringChemistry, Product Research and Development 

Inorganic Chemistry __ 

Journal of Agricultural and Food Chemistry - 

Journal of the American Chemical Society... 

Journal of Chemical Information and Computer Sciences 

Journal of Chemical and Engineering Data.. 

Journal of Medicinal Chemistry 

Journal of Organic Chemistry 

Journal of Physical Chemistry 

Macromolecules -. 

Total - 154,774 126,697 



18, 787 


11,430 


34, 947 


32, 367 


6,497 


6,964 


6,349 


5,709 


9,998 


6,349 


9,998 


6,428 


10,258 


6,427 


5,756 


5,074 


4, 857 


5,013 


19,419 


15, 659 


2, 063 


1,948 


2,619 


2,143 


3, 743 


4,043 


10, 557 


9,440 


6, 448 


5,271 


2, 478 


2,432 



244 



Heprinted from 



Copyr 




Unauthorized photocopying and republishing by 

other institutions threatens the v/ide dissemination of research 

results and the financial stability of our publishing program. 



H. William Koch 



Changes in the manner of publishing 
and disseminating physics information 
have been coming faster and faster 
during the last decade or so, and with 
them they have brought an increasing- 
ly urgent need for changes in copy- 
lighting procedures and practices. 
Every user of American Institute of 
Physics and its member societies' jour- 
nals is bound to be affected in sonie 
"way, as will be the authors contribut- 
ing to the journals, when journal copy- 
Tight ambiguities and inconsistencies 
are clarified. Will the individual 
physicist, or his library, be able to con- 
tinue purchasing primary journals and 
secondary-information products at fair 
market prices — or will he be subsidiz- 
ing the commercial use of these prod- 
ucts in some other form, or in some 
other country? Will the one quarter of 
all AIP society members who {accord- 
ing to one count) themselves contrib- 
ute, as authors, to the physics litera- 
ture at some time or other be com- 
pletely clear as to their rights to pro- 
tect the scientific integrity of their own 
published works? Or will they find 
that questions concerning the re-use of 
their works dissolve into a fog of inter- 
national disagreements? 

The issues involved in journal copy- 
lights have scientific as well as fin.in- 
cial significance; they are also funda- 
mental and critical at this time. Soci- 
ety officers are concerning themselves 
more and more with the issues and feel 
the heed for involving society members 
in the problems and the resolution of 
these problems. 

The scientific issues are at times 
subtle, relating to rewritten abstracts 
that attempt to duplicate authors' 
original abstracts, uncorrected pages 

H- Williani Koch is direcior ol the Ameri- 
can Institute of Physics. 



that propagate inadvertent errors, and 
inaccurate translatiuns into another 
language. But the financial implica- 
tions are clear. I shall present here 
so.Tie estimate of the substantial re- 
duction in .\IP and member-society in- 
co.me represented by subscriptions lost 
as a result of unlicensed publication of 
complete issues of our journals in for- 
eign markets, of unlicensed use of ab- 
stracts, and of incieased photocopying 
— all matters related to the copyright 
Questions. The sum could be as high 
as $1 miiiion per year; compare this to 
the total subscription income of AIP 
and its societies, in 1973, of .$4 mill'on 
(from primary journals) and $275 000 
(from secondary services), and you will 
see why AIP and its member societies 
cannot afford to ntglect copyright 
issues. In fact, if the balance becomes 
very much worse, one can see how the 
entire physics-publishing operations of 
AIP and its societies would become im- 
periled — with repercussions that would 
extend far beyond the AIP society 
membership. 

I should point out at this st.ige that 
there is no intention of attempting to 
limit the photocopying or reproduction 
of single journal articles by individual 
physicists for their own use. Indeed, 
we take a favorable attitude to the in- 
creasing use of the primary journal 
material, such as in abstract journals 
or in translations by foreign publishers. 
This is, after all, in keeping with the 
Institute's stated aim. the "advance- 
ment and diffusion of the l.r.owledge of 
physics . . ." Bui satisfactory agree- 
ments must be worked out between the 
copyright owner and the republisher to 
protect the scientific interests of the 
authors and the financial investments 
of the publisher. Unless agreements 
are completed, problems are bound to 
develop. Typical of the existing prob- 



lems are those, discussed in this arti- 
cle, that arise from wholesale cover- 
tocover copying of all, or pans of, AIP 
and member-society journals by foreign 
institutions, other publishers and li- 
braries. 

The problems 

All of the primary and secondary- 
journals of the :\\P and its member so- 
cieties are copyrighted — see figure 1 for 
the complete list. The copyright 
owTier (AIP or member society) thereby 
enjoys, according to one definition,  
"the exclusive right, granted by law for 
a certain number of years, to make and 
dispose of and otherwise to control 
copies" of the journals. But this pro- 
tection has disadvantages as well as 
advantages arising from the fundamen- 
tal limitation of statutary copyright 
gensrally to ihe "expression of ideas in 
a published work."- The copyright pro- 
tects against outright copying, or para- 
phrasing, but not against a subsequent 
original work that utilizes the same 
idea.^ 

There is a marked contrast between 
copyright and patent issuing practices. 
Patents are thoroughly researched and 
eventually granted to protect the ideas 
themselves; copyright is perfunctorily 
registered, without research, when the 
published work and its copyright no- 
tice are presented at the Copyright Of- 
fice and a $6.00 fee is paid. Also, to 
establish proof of violation of copyright 
one must prove actual copying of the 
work; proof of patent violation, on the 
other hand, may be found irrespective 
of whether the defendant's work is in- 
deed a copy or is an independent crea- 
tion. Incidentally, there is common- 
law protection against copying of. un- 
published works. 

In seeking adequate copyright pro- 
tection for the journals, AIP and its so- 



245 



cieties are naturally trying to protect 
their financial investment. Currently 
an $3 million per year enterprise, this 
physics-publishing business is worth 
more than $30 million when integrated 
ever the past five yeare. However, 
there is another aspect that must also 
be considered. AIP and society jour- 
"nals contain almost 90% of all the 
physics research and education results 
published in the US. The journals 
provide a means for establishing scien- 
tific standards; they are the public rec- 
ord of research performed by members 
of AIP societies, and they are the basic 
resource embodying the knowledge of 
physics that AIP and its member so- 
cieties are chartered to advance and 
diffuse. 

So what is wrong with copyripht as 
far as we are concerned? The three 
basic reasons for its inadequacy are: 

> The antiquated copyright lav. of 
1909, which could not anticipate new 
copying technologies such as computer- 
ized information systems, photo- 
copying and micropublishmg 

> Rapid expansion in the applications 
of these techniques, without regard tor 
copyright protection and, therefore, 
■without recompense for lost subscrip- 
tions 

> Inconsistent, uncoordinated appli- 
cation by .\IP and its societies cf the 
values and rights represented by the 
journal properties. 

Here i will be dealing with the sec- 
ond and fhi.-d of these three r;oints; the 
leader is referred elsewhere^ for several 
excellent summaries of the present 
copyright laws and attempts at their re- 
vision. 

New copying technolog'es 

Individual physicists have tradition- 
ally approved cf the rapid and v,ide 
dissemination of science information 
made possible by the photocopying cf 
journal arii.'les. Their attitude could 
be summed up as "It's great; who cares 
about the financial and legal details'" 
This kind of emphasis on easy cop ;, ing 
and dissemination may have been ap- 
propriate ten years ago before other 
significant considerations became as 
compelling as they are today. But we 
must now recognize that a means has to 
be developed for obtaining rerompei'se 
for the production costs of the journals, 
despite tile elusiveness and pervasive- 
ness of the new copying technologies. 
Otherwise society dues, member sub- 
scription rates and page charges for 
physicists will have to increase, or the 
journals and the societies will have to 
stop their ojJeraiions. 

Although AIP and its societies have 
been actively developing techniques for 
accomplishing and stimulating wide 
dissemination of physics results, * these 
developments must be coupled with an 
appropriate sharing of expenses by m- 



stltutional users, such as libraries, uni- 
versities and re.search laboratories both 
in the US and abroad. Not only docs 
inadequate sharing exist in the US to- 
day, but the situation is being aggra- 
vated by the rapid growth in the tenden- 
cies of various nations to reproduce and 
dis-ieminate, within their boundaries,' 
scientific and technical information 
• originating in other countries without 
recompense to the original publishers 
for the resulting losses in subscription 
income. Because 55% of the 300 000 
subscriptions sold by ,\IP for itself and, 
its member societies each year are to 
foreign readers and institutions, the 
significance to AIP and societies of 
these international developments is 
enormous, representing several million 
dollars per year. 

Three examp'es 

To be more specific about these de- 
velopments l:>t me give in some detail 
thjee examples; these are ca.se.s where' 
AIP and society journals ar.? repro- 
duced by others on an inclusive, cover- 
to-cover basis. They concern the pho- 
tocopying, for sale, of oor journals by 
the USSR, the copying of a'jstracts by 
the Institution of E'.ectrical Engineers 
in London foi use in Physics Abstracts, 
and the reproduction of articles 'by ths 
National Lending Library in England 
for its customers in the UK. These 
three examples ar? typical of the prob- 
lems we are beginning to face on nany 
fronts as massive operations threaten 
tc displace the roles of AiP and its so- 
cieties as pub!i.shcrs. 

Last year the USSR signed 'he Uni- 
versal Copyright Convention (eifective. 
27 May 1973), and one result has been 
that we now have some details c-i the 
extent of cover-to-cover photocopying 
of journals il) the Soviet Union The 
data in Table 1, provided by the 
USSR, show that some 15 AIP and so- 
ciety journals ase currently bemg pho- 
tocopiea and sold — every page of every 
issue— in the USSR. The number of 
copies of each issue is put at an aver- 
age oi' 400, and sales are made at artifi- 
cially set subscription prices to USSR 
and east European custo'r.ers. The 
additional income AIP would have re- 
ceived had it sold these crpies amounts 
to more than S30O0O0 per ycr.r. 

We have other data relating to com- 
plete translations of AIP .-^nd so':i».'ty 
journals made in the USSR, but no de- 
tailed information on the books of col- 
lected papers, either photocopie.:! or 
translated from our journals, that we 
know in some instances are being pro- 
duced in quantities of about 50 000 cop- 
ies each. 

'v'f'ith the signing of the Universal 
Copyright Convention by the USSR 
there is some hope tnat we can develop 
equitable a.;;reements with them cov- 
ering: 



► dollar payments to AIP for lost sub- 
scriptions for some journals 

► royalty-free permission for AIP and 
the Optical Society of America to con- 
tinue their translations from Russian 
into English of 15 Soviet physics jour- 
nals, including about half of the Soviet 
physics published in journals, in return 
for: 

^ reproduction privileges in the USSR 
for some of our journals 

► reductions in the number of com- 
plete copies of AIP and society journals 
produced in the USSR, competing with 
our own sales in Asia and both western 
and eastern Europe. 

Negotiations now in progress are ex- 
pected to set up a similar pattern of 
future agreements with China, India 
and other countries. 

My second specific example concerns 
Physics Abstracts, produced in London, 
by the Institution of Electrical Engi- 
neers. This publication uses, verba- 
tim, every abstract from every journal 
published by AIP and its societies. 
Abstracts taken from AIP and society 
journals represent a large fraction — 
more than 257c — of the total numbers 
of journal abstracts in Physics Ab- 
stracts. 

In recent times, increases in the 
amount of physics literature to be cov- 
ered and in the unit cost of including 
each abstract combined to force up the 
subscription prices tc Physics .Abstracts. 
the key lEE service (now at $380 per 
year compared to $12 per year in 1967). 
The result was the virtual elimination of 
the individual physicist subscriber from 
the market for comprehensive abstracts 
services and the concentration of lEE on 
institutional subscribers. On the other 
hand, AlP's obligation to attempt to 
serve individual members with useful 
abstract services continued. 

!n order to meet that obligation, AIP 
has negotiated with lEE to supply AIP's 
abstracts in computer-readable form 
and to be recompensed equitably for the 
substantial savings accruing to lEE as a 
result. Part of the agreement would re- 
sult in i.''jcom? to assist in the improve- 
ment in secondary services of the sort 
listed in Table 2 and supplied by AIP to 
individuals. Thus the agreement would 
have financial as well as scientific im- 
plications and would provide lES with 
licensed u.se of AIP's copyri,;hted ab- 
stracts. Abstracts written by authors 
and reviewed by editors are just as much 
a pari of the journal article as are 
figures, tables, and indi'/idual para- 
graphs, all cf which are protected by 
copyrights. 

Vve hope that negotiations with lEE 
v;;ll lead to the continued use of our 
author-produced .'.bstracts together 
wi,h some arrangements for sharing of 
the financial return from the institu- 
tional sale of physics secondary ser- 
vices. Th'js AIP could support the de- 
velopment of this kind of service for its 



246 



PUBLICATIONS OF THE 


AMERICAN INSTITUTE OF PHYSICS AtiO MEMBER SOCIETIES | 


Ownttf and published by AlP 
Prjmary Journals ana Proceeomgs 










1 = 






App),eO Physics Leiiers 










Journal ot Applied Physics 










Journal of Chemical Physrcs 










Journal ot Maihemalical Physics 






d% 




PhyS'Csof Fluids 




li 


t \ 




Physics Today 






/ 1 




Review of Scienlilic instruments 






I \ 




AlP Conference Proceedings 






1 V 




Journal of Physical and Chemical Refefence Dal 


a* 


y. 


RMP  PRLJ ^ AJ?* 




Translation Journals 






/\ Af 




Soviet Astronomy-- AJ 






/ \ Jni 




Soviet Journal Of Nuclear Physics 






^V ^s^/ 1 




Soviet Journal ol Particles and Nuclei 






/ it ft 




Soviet Journal ot Quantum E'ectronics 






/ /\ A 




Soviet Physics— Acoustics 




12 


/ / ^ \ 




Soviet Physics— Crystallography 






/ / *\ 




Soviet Physics — OoKlady 






/ AJP / A 




Soviet Phys'cs— JETP 






/ y\ Jr \ 




JETPLellers 






/ i\/^ \ 




Soviet Physics— Semiconductors 




11 


/ in \ 




Soviei Physics— Solid Siaie 






/ / /l * 




Soviel Physics— Technical Physics 






/ / V J \ 




Soviet Physics — Uspekhi 








Secondary Publications 






/ //'*• t /"^ H 




Searchable Physics information Notices (tape! 




10 


I /ik-- 1 / W 




Current Physics Microform (microfilm) 






f lr\^ i/ V^RMP 




Current Physics Advance Abstracts 


■^ 




1 IvVV V in^A \ 




Current Physics Titles 


■o 
c 




/ IH ^^/*"^i'' y\ '^'"' 




Owned by Ihe American Physical Society 


S 

3 




/ J>l ^V ^\./ \ 




Primary Journals 

Physical Review A B, C. 


c 


9 


/ u ^v\/x'°*' 




Reviews of Modern Physics 


C/l 




f ilr i^S. \I AO 




 Physical Review Letters 


O 




1 ^'t^m 1 ^\. \ 




Secondary Publications 


c 


8 


) jrm J \k 




Bulletin o( the American Physical Society 






// III / /m *" 




• Physical Review Abstracts 


in 






• Physica' Review Index 


3 




f / / II "/ / Jl^ "5' 




Owned by the American Association ot 


_i 


7 


t,^ f \i ^/ / 1 1 




Physics Teachers 
American Journal of Physics 


O 


/v 1 ^\ y ^/ 1 VAf. 




The Physics Teacher 






/ J' i \ i ]^ \^^ w 




• AAPT Announcer (bulletinlt 






// y 1 i/^ /^\ 




Owned by Ihe Optical Society ot America 








Journal ol the Optical Society of America 




t 


/I ^^ / // ,^^i \. 




Program o! the OSA (bulletin) 






/ f^^^\ f / / g jT I ^V 




• Applied Optics 






/ sf*^ ^^ / / i * --•■^ ■'^^ 




 Opiics and Spectroscopy (translation) 






f jp f y I f ^^ 




Soviet Journal ol Optical Technology (Iranslalion 






t j/i / .^/ / 1 




Owned by the Acoustical Society of America 




5 


1(1 /^^^ / X I 




Journal o' the Acousncal Society ol America 






ill /"^"^^ // 1 




Program ol ASA (bulletin) 








Owned by the Society ol Rheology 






11 j / y / / /J\. S A=L 




• Transactions of the Sociei/ of Rheology 




i 


// / X ,<^v- ^ ^ ^^ £f ^^. 




• Rheology BuMe'int 






f^S' // / f ^^ X r ^*<fc^^''*'^\ 




Owned by the American Astronomical Society 






/ lA ^y^ J1^T^~^^' 




Astronomical Journal 








BuHeiin of the AAS 




3 












Owned by the American Cry&tallographic 






^^ iy 1 ^^ y^ w /^^' ^^ 




Association 






y / jT jT / / JVST |. ^JMP 




• ACA Newsletlert 






RMP /f i / / 1 / i*\^ 




Owrted by (he American Association o( 






\„^ // / 1 / / ^^ ^^ 




Physicists In Medicine 




2 


~ ^^ ^f ^ 9^ / i^^ _M-"^\_ J 




Medical Physics 






AJP>V^/ /^ ^"^ 




Owned by the American Vacuum Society 






^^^r jf / 




(aftllialed) 






^"^^^^ AJ 




The Journal of Vacuum Science and Technology 




1 


 S^^ 










JCP 




All journals are copyr-ghied by Ihe owner 










excepl where shown otherwise 










* Jointly cooynghled by A IP and Ihe 










American Chemical Society 






L 1 1 1 [ 1 




t Not copyrighted 




1945 (950 l^.^S I960 1965 1970 
YEAR 


• Journals shown with this bull9l are published by 






the owning society, the remainder are published 


A(P 


and society puDlicalions are listed at left ariangecj accordirg io owner. The graph 


by AlP lor the society 


above shows toiai si,bscripi;ons (member plus nonmember) since ^0-3 1 Figure 1 



247 



memberships at reaaanable subscrip- 
tion prices, in analogy to the way insti- 
tutional income from the primary jour- 
nals allows AIF and its societies to pro- 
vide membc-j with primary services at 
low subscription prices. 

Other abstracting and indexing ser- 
vices, such as Chemital Abstracts Ser- 
vice, Engineering Index. Bulletin Sig- 
naietique and Referativni /'hjrnal, 
should recognize that we encourage 
them to use the ?bstracts from AlP 
and society copyrighted journals, so 
long as they do not produce English- 
language, secondary services in the 
science of physics that detract from 
Oervices AIP could produce for its own 
society memberships with its own copy- 
righted material. Therefore, we plan 
to institute procedures for licensing 
the use of our copyrighted material by 
other services, and we expect that in 
most cases these licenses will be readily 
granted. 

The services offered by the National 
landing Library, Boston Spa, l.'K, pro- 
vide me with my third example of new 
copying techniques thai affect ou.- op- 
erations here at AIP. This library has 
developed an overnight mail serv.ce 
through which copies of articles from 
any journal can be supplied to'custom- 
ers in the UK at low cost. Such an 
operation is the forerunner of future 
similar services in every major country 
of the world. The major Er.glish-lan- 
gtiage abstracting and indexing service 
in the science of biology is eagerly 
awaiting' the arrival of such services in 



tbe US. and in that same field an in- 
vestigation is in progress "to discover 
whether there is not a large number of 
journals for which one copy could ade- 
quately serve US. British and Canadi- 
an user;."' 

The position AIP and its societies 
takes on developments such as these, 
intended to provide better access ser- 
vices to the journals, is. of course, fa- 
vorable. Indeed, we are eager to see 
such services growing, and plan to sup- 
port them with the products and ser- 
vices that are their raw materials. 
However, just as with the Soviet pho- 
tocopies and the use of copyrighted r\h- 
stracts mentioned earlier, we should be 
recompensed for subscriptions lost be- 
cause of these services if we are to 
maintain financial viability. 

The financial :ilua(ion 

How much money i.= involved in lost 
subscriptions from, say, just the three 
examples cited above? 

From the information supplied by 
the USSR on their photocopied-journal 
sales, we know we have lo.= t S300 000 
each year from that category alone. 
Add another estimated SUXioOO for 
losses due to their translation journals 
and book collections made up of A!P- 
publishec art'cles, and we find a total 
lor.; to AIP from the Soviet operations 
of more than S400 000 per year. For 
the loss of income to AIP and societies 
resulting from the lack of a licensing 
agreement with ICE for Physics Ab- 
stracts we can look at the conclusions 



of lEE's negotiating team as they were 
slated during the summer of 1973. 
That team agreed with the concept of 
AIP receiving $190 000 per year for the 
use of the computer tape, and we can 
therefore assume this to be a minimum 
estimate of the annual loss in AIP in- 
come from this source. 

My third example above, cover-to- 
cover reproduction of articles from AIP 
and society journals, gives rise to a loss 
of income that is much harder to figure 
than it was for the first two examples. 
The loss of subscriptions that the AIP 
and its member societies have suffered 
over the last five years has been sub- 
stantial—see figure 1. We have lost 
about 20% of the total number of sub- 
scriptions we had in 1966. Domestic 
non-member and member subscription 
losses account for most of this decline, 
while foreign subscriptions and total 
sixiety membership have been rela- 
tively stable. We therefore make the 
assumption that the subscription loss 
is attributable largely to wholesale 
copying of single articles by institu- 
tions in the US. An estimate of the 
dollar value of the subscriptions lost 
for this reason is about $400 000 per 
year. 

The total estimated losses for these 
three effects is thus about $1 million 
per year, an estimate that is admitted- 
ly crude. If this money were available 
to AIP and the member societies, page 
charges to authors and subscription 
prices to readers could both be de- 
creased, with obvious benefits for the 



Table 1. Reproduction o^ AIP and society journals in the USSR 



Journal 

American Journal of Physics 
Applied Optics 
Applied Physics Letters 
The Journal of the Acoustical 

Society of America 
Journal of Applied Physics 
The Journal of Chemical Physics 
Journal of Mathematical Physics 
Journal of the Optical Society of 

America 
The Journal of Vacuum Science 

and Technology 
Physical Review. A, B 
Physical Review C, D 
Reviews of Modern Physics 
Physical Review Letters 
The Physics of Fluids 
Physics Today 
Bulletin of the American 

Physical Society 



Subscription 


rates 


(In rub'es) 




AIP- 


USSR 


Society 


11.76 


J7.25 


27.00 


41.25 


12.76 


21.40 


29.40 


36. CO 


53.88 


46.90 


99.35 


92.25 


24.60 


38.25 


16.08 


34.50 


5.40 


29.25 


85.20 


92.25 


127.80 


103.40 


7.48 


9.75 


31.72 


47.25 


26.16 


38.25 


12.36 


10.15 


U.60 


13.15 





No. of copies 






sold by USSR 


No. of 


No. of copies 


to eastern 


subscriptions 


produced by 


European 


purchased 


USSR 


countries 


through AIP 


425 


90 


2 


474 


71 


4 


283 


30 


19 


462 


114 


2 


695 


120 


7 


425 


91 


12 


253 


57 


2 


495 


74 


2 


276 


69 


4 


436 


57 


28 


338 


51 


72 


469 


74 


15 


424 


60 


20 


314 


60 


3 


251 


47 


15 


248 


35 


5 



41.00 = 0.74 rubies 

Data obtained from Yuri K. Mcfn'ik, Aishtonf Science AUcche, So\iet fmfaoiiy, Wathington O.C. 



248 



"advancement and diffusion of the 
knowledge rf physics." 

Copyright principles 

To protect the financial viability of 
AIP and society publishing operations, 
the appropriate principles involved in 
the copyright process need to be pre- 
sented and understood in some detcil. 
We should remember that the particu- 
lars of the copyright claimed for a 
given pliysics article will affect four 
different individuals or groups: the 
author of the articjc, his employer, the 
publisher of the journal and individual 
users and republishers._ Let us consid- 
er each in turn. 

First, the author of the article. He 
originates the material that is pub- 
lished and usually makes the decision 
on where it should first appear (with 
either active or tacit agreement of his 
employer). He decides whether the 
subject matter of the article should be 
patented, whether it should be sup- 
plied to a publisher for a fee, or to a 
publisher (such as .MP) who expects a 
fee in the form of page charges. Once 
he makes this decision, the author 
should comply with the conditions of 
the publisher — normally stated in the 
journal or by a separate letter. 

If the author decides to p-.iblish with 
AIP or one of the member societies, he 
should be asked by the publisher to as- 
sigT!, in writing, full publication and 
republication rights to the publisher. 
This request should be made at the 
time the editor accepts the manuscript 
for publication. 

Should the article be subsequently 
republished, either by itself or as part 
ct a collection of articles, the original 
publisher should give the author the 
opportunity to register errata or correc- 
tions to the material «s first published. 
Thereafter, the publisher should serve 
for the articles in his trust as the Siien- 
tilTc and financial negotiator with 
republishers. 

The author should have the right to 
make nonprofit or noncomm.ercial use 
of his work, provided he affixes to each 
copy, in the position legally required, 
the copsTight notice used by the AIP or 
society publisher when the article was 
first published. To make or authorize 
commercial use, for profit, of his work 
the author must first obtain the writ- 
ten consent of the AIP or society. 

I mentioned earlier that the copy- 
right protection is limited to the ex-- 
pression of ideas in the published work 
and protects against outright copying 
of the work but not against copying of 
the ideas. The author must be aware 
of this limitation. 

The author should be given the op- 
portunity to write his own abstract, 
and also to assign the appropriate clas- 
sification and indexing terms required 
when the article is inserted into the 



Table 2. Secondary services 



Meetirj programs o! abstracts (for exam- 
ple. BAPS, PASA, etc) 

Physical Review Abstracts 

Annual journal indexes 

Cunnulative journal indexes 

Current Physics Titles 

Current Physics Advance Abstracts 

SPIN computer tape of abstracts from 
journal articles 

Bibliographies (lists of articles) on a given 
subject 

Journal tables of contents 



data base of an information-retrieval 
system. He can thus be assured of the 
scientific validity of both abstract and 
classification. This author-written ab- 
stract then becomes as much a part of 
the copyrighted material oi" his article 
as the individual paragiaphs of the 
main text, or the figures, tables, and so 

00.' 

The second individual affected by 
copyrighting procedures is the author's 
employer. He normally helps to defray 
the cost of publication of his 
employee's manuscript, if it is to ap- 
pear in an AIP or member-society jour- 
nal, by making a page-charge contribu- 
tion; in return he may want to main 
some rights over the published materi- 
al. For example, the employer might 
give permission for first publication 
only, reserving to himself the rights for 
republication if such conditions are ac- 
cepted by the publisher, if no condi- 
tions are stated when the manuscript is 
submitied, the publishe' must assume 
that there are none — except those dic- 
tated by custom or tradition. 

When the employ".- is the US Gov- 
ernment we have a special case. Arti- 
cles ivritten by US (jyvernment 
employees as part of their official 
duties are in the public domain and 
are not covered 'oy copyright. 

The publisher is the third individual 
for whom copyright interpretation is 
important. He may elect to publish 
only that material for which he has full 
publication rights, both for initial and 
republication. AlP-owned journals op- 
f/ate under the principle that ur.'ess 
otherwise stated, submission of a man- 
uscript is a representation that it has 
not been copyrighted, published, or 
currently submitted for publication 
elsewhere. 

When a publisher such as the AIP or 
a member society copyrights an issue 
of one of its journals, the rights apply 
to the whole issue. Such a copyright 
fives the publisher, as against third 
parties, "the same rights i.s if he had 
secured a separate copyright on each 
individual piece."* This statement 
applies equally to the copyright protec- 



tion of each individual abstract of a 
copyrighted issue of Physics Abstracts, 
for example, as it does to the protec- 
tion of each individual abstract in an 
AIP or society copyright journal. For 
this reason, abstract services (such as 
Chemical Abstracts Service) have in- 
sisted that their copyright notice ap- 
pear on copies made, under license and 
for a fee, of pages and abstracts from 
their abstracts journals— even whea 
these abstracts are taken verbatim 
from copyrighted journals. 

Lastly, we should consider the rights 
of individual users and republishers. 
An individual scientist has an accept- 
ed right to copy a copyrighted article* 
for his own use under the traditional 
copyright concept of "fair use." Repu- 
blishers. as in the three examples in 
this article, will at times use the argt^- 
ment that they are operating under the 
"fair use" concept. Clearly, when la 
republisher uses every page or every 
abstract in a systematic, production 
manner, whether for commercial or" 
ncnccrnmercial purposes, he is doing 
something more than "fair use" and 
is in infringement of copyright if he 
does so without permission of the copy- 
right owner. 

What are the prospects? 

Our exam.ination of the copyright 
issues that face AIP and its member 
societies has shown how complex are 
the problems that ari.se under US copy- 
right laws; then how much more 
.complex must be the international im- 
plications! The examples quoted ear- 
lier in this article dem.onitrate in some 
degree how the AIP and member so- 
cieties' publishing program interacts 
with the programs of foreign publish- 
ers, libraries, and so on, each operating 
undci the copyright law of his own 
country. These other nations too are 
taking a hard look at copyright legisla- 
tion in the light of m.odem develop- 
m.ents, with the result that we can ex- 
pect a shifting pattern of interrelating 
national copyright laws to affect our 
physics journals for some time to come. 

One e.^ample of the kind of change 
we might expect is the licensing 
scheme, varieties of which are being 
tried out in at least three countries — 
Swiden, France and Canada. The 
Swedish scheme permits multicopying 
of works protected by Swedish copy- 
right only on payment of a small fee. 
Sii.'veys indicate that 150 million 
page-copies are made in Sweden each 
year; rough estimates for the US 
suggest that several billion page-copies 
are made here per year. Even if the 
new scheme works in Sweden (and it is 
still too new for conclusions to be 
drawn) we cannot be sure that a simi- 
lar plen would be appropriate here. 

While we are monitoring possible US 
develupments in the national copyright 



249 



laws, AIP and its member societies 
have to keep in mind the framework of 
the entire US publishing business and 
be aware of how they fit into that 
framework. We would deceive our- 
selves if we believed that new copy- 
right laws will be drawn up solely for 
the benefit of this institute and its so- 
cieties — or even for the entire scientific 
publishing effort. 

The problems of the scientific jour- 
nals are quite dissimilar from the prob- 
lems faced by the publishing industry 
as a whole; in the area of photo- 
copying, for example, where according 
to one estimate an average physics ar- 
ticle is of special interest to only six 
readers and would be copied by an 
equally small number. 

Any conceivable new copyright law 
in the US would be directed primarily 
to the larger needs of the general pub- 
lishing industry. One could imagine 
circumstances in which rules framed 
for this community would wipe out the 
. specialized scientific journals. 

Currently changes in the law are less 
important as a day-to-day threat than 
changes in reprographic technology, 
which is moving very fast in the US 
and indeed over the whole world. 
Each new advance in copying technol- 
ogy is potentially a new area where AIP 
and society copyright protection might 
be eroded yet further. 

The institute and its societies must 
establish clear and complete copyrights 
on all their publications, protect these 
rights once established, and contin- 
uously and closely monitor all develop- 
ments that could endanger their own 
financial investments and the scientific 
accuracy of their members' published 
works. 



Important contributions to this article were 
made by various members of the AIP staff 
and committees and, particularly, by Mor- 
ton Dacid Goldberg of Schwab and Gold' 
berg. New York City. Their assistance is 
gratefully acknowledged. 

References 

1. The Random House Dictibnary of the 
English Language (.Jess Stein, ed). Ran- 
dom House, New York 1 1966); page 323. 

2. Omnibus Copyright Recisian- Compara- 
tive Analysis of the Issues. Cambridge 
Research Institute {American Society for 
Information Science), Washington D.C. 
(1973); page 97. 

3. See Copyright: Current Vieupoints on 
History. Laws and Legislation (A, Kent, 
H. Lanour, eds). Bowker, New York 
(1972); and reference 2. 

4. H. W. Koch, "Support the Communica- 
tions Revolution." editorial in PHYSICS 
TODAY, February 1973, page 88. 

5. Biological Abstracts. 56(4), 15 August 
1973. 

6. Information, Part 1, 5(2), 66 (1973). 

7. Reference 2, page 90. 

8. Reference 2, page 161. □ 



,87-786 — ^76 — pt. 1 17 



250 

Mr. Danielson. Thaiik you. Now, Mr. Lieb and Mr. Hoopes, you 
both referred to an item that troubles me here, the definition of 
"systematic reproduction," what do you mean by that? And please 
give it to me kind of quickly, if you could. 

INIr. Lieb. When a library, whether it is the large central research 
library, or the mother library in the network, when by plan or effect it 
regularly produces copies — regularly as distinguished from spo- 
radically or on occasional instances — regularly produces copies 
which are provided to the user in lieu of the original, the book or the 
journal 

Mr. Danielson. You are talking about a continuing operation, as 
opposed to an intermittent or sporadic one. 

Mr. Lieb. Correct, and the Senate report makes that clear. 

Mr. Danielson. Is that what you have in mind, also ? 

Mr. IvARP. I would quickly refer you to the Senate report ; it gives 
the general definition as an example. 

Mr. Danielson. You are adopting the definition, then, in the Senate 
report. 

Mr. Karp. And I would point out that the Senate then urged the 
parties to sit down and work out more detailed guidelines. 

Mr. Danielson. Funny they should have that foresight because I'm 
on the verge of making that same request. [Laughter.] 

So, could you consider that request as having been renewed ? 

Mr. Lieb, was copying of the type we were discussing today a sig- 
nificant problem before the advent of the quick copying equipment ? 

Mr. Lieb. I don't think so, sir. 

Mr. Danielson. I am going to make an observation, then. Quick 
copying is here to stay; in fact, it is going to get quicker, and easier, 
and* better ; it is bound to. So, I think what we have to do. instead of 
fighting the inevitable like the motion pictures fought television for 
a long time — we just have to find a way where we can accommodate 
this tiling, and live with it. Copying is not going to go away. 

Mr. Hoopes. That's right, Mr. Chairman, and that is precisely our 
position. The publishers are in no way opposed to wide dissemination ; 
we would simply like a reasonable licensing arrangement to cover 
works that are g'oing to be copied in very large quantities ; that is to 
say, under systematic copying arrangements. 

Mr. Danielson. I was glad to hear that other people don't worrj^ 
about the first amendment because I find it quite a problem in this 
committee. 

One other item I had here. What about page charges, Dr. Cairns? 

Dr. Cairns. The page charge came to the fore in about 1962 and 
applied, I think, almost entirely to the publication of technical socie- 
ties, wliicli was honored by a Government policy, which was first 
enunciated in 1964 by the Federal Council on Science and Teclmolooy, 
which allowed the page charges wliich were in the order of $20 to 
$50 a page, printed page, of a publication, allowed this as a valid 
charge against reseai'ch grants of Federal agencies. It was subse- 
quently then I'oissued in slip:htly modified form by Dr. Guy Stevers 
within the past vear. That charge Avas studied by the technical socie- 
ties, and genernlly speaking it is not mandatory; in other words, pub- 
lication proceeds, even though page charges are not honored. But it 
is a source of income. 



251 

Mr. DANiELSoisr. To whom? 

Mr. LiEB. To the societies who are publishing journals, and is 
entered into the budget of the general publication. 

Mr. Danielson. What does the author of these articles derive in the 
way of monetary or other valuable considerations? 

Mr. LiEB. He gets fame and prestige. 

Mr. Danielson, That's what I thought. 

Dr. Cairns. That is the name of the game. 

Mr. Danielsox. Oh, I have written a few, and I received exactly 
the same amount. [Laughter.] 

Mr. Karp. Speaking for the authors, let me make this point. First 
of all, I should point out Mr. DeCassey who sits behind me represents 
the — association, no, page charges are not available from Govern- 
ment grants to commercial publishers, for profit. 

Mr. Danielson. By "society" you are talking about a so-called non- 
profit organization. 

Mr. Karp. The point I would make is this. First of all, the amend- 
ments and exemptions proposed by the library associations apply 
to all single copjdng, a tremendous amount of which is done of literary 
and artistic material, short stories, essays, the works; those authors 
write for money. As Dr. Cairns has pointed out, there is a very 
definite monetary motive for authors to write. 

Mr. Danielson. One last question. In the type of copying tliat we 
are talking about, technical journals and the like, as opposed to the 
ones Mrs. Linden will tell us about tomorrow, w'hich cover the whole 
gamut of intellectual products, who are the users in the sense of — 
are they something scandalous like "The Scarlet Letter" or are they 
truly technical books ? Who uses them, in the sense of what category 
of person uses those copies ? 

Dr. Cairns. I didn't hear what you said. 

Mr. Danielson. Are we talking about fiction here, or are we talk- 
ing about strictly technical types of information ? 

In the Constitution it says here, "To promote the progress of science 
and the useful arts"; now, are we talking about "Gone With the 
Wind," or are we talking only about 

Dr. Cairns. Wliat we are talking about are the general terms of 
science. I think Mrs. Linden spoke about the useful arts. 

Mr. Danielson. We have a quorum call on. Thank you very much 
for your patience. You know, by holding over for 12 minutes you got 
exactly your allocated amount of time. I appreciate your help very 
much ; I'm sorry we couldn't give you more time. 

Just winding up, tomorrow we will meet again, at 10 o'clock, and 
for the record, we have statements from the American Business Press, 
the Federal Librarians Association, the Special Libraries Association, 
the Wisconsin Interlibrary Loan Service, ]\Iusic Library Association, 
Association of Research Libraries. Williams & Wilkins Co., American 
Institute of Chemical Engineers, Advocates for the Arts, Department 
of Health, Education, and Welfare, Dr. Ray Woodriff", IMontana 
State University, and the American Association of Law Libraries. 

[The following statements were received for the record :] 



252 

Statement of American Business Pbess, Inc. 

The American Business Press, whicti is composed of some 400 specialized 
Ijiisiness publications published from coast to coast, is extremely concerned 
about the growing practice of unrestricted photocopying Avliich has been evidenced 
in recent years, and only compounded by the Williams and Wilkins decision. 

Unless a way can be found to protect the ability of periodical publishers to 
spend the money to gather, edit and produce technical and scientific informa- 
tion, and then distribute it throughout the nation, the flow of that information 
can be seriously curtailed. 

Some American Business Press member publications, like Oil and Gas Journal, 
are sent to paid subscribers. Others, like Iron Age, are sent via the controlled 
circulation route to readers who specifically request the receipt of that publica- 
tion. In the first instance, both the reader and the advertiser supply the funds, 
through the publisher, to permit the gathering and editing of technical and 
scientific articles, which are then copyrighted. In the second instance, the 
publication's primary income comes from advertisers. In both cases, necessary 
information is distributed to people employed in every phase of the technical 
and economic activity. 

If the Information and the articles gathered by editors are photocopied with- 
out the consent of the copyright owner, we will have situations arising like 
the one dramatized in the attached Exhibit A. We have deleted the name of 
the company which sent the memorandum out, but w^e present for the considera- 
tion of the Committe what is happening. 

The only effect of curtailed subscriptions or curtailed circulation which this 
practice will cause is a severe restriction upon the securing and circulation 
of important editorial information because scientific and technical publications 
will not have the wherewithall to gather and edit the information to be photo- 
copied. If this happens, the important news and scientific and technical infor- 
mation gathering function performed by the specialized business press will be 
seriously impaired, and there will be considerably less information to photo- 
copy for those who do not respect copyrights. 

We think the attached example tells the story better than we can. Hopefully 
the Committe and the Commission established in the last Congress will come 
up with solutions to this most serious problem. The American Business Press 
stands ready to be of whatever assistance it can in this effort. 

Attachment : Exhibit A. 

Exhibit A 
To : All Home office executives. Apeil 10, 1975. 

Re : Market Research Library Periodical Service. 

A service provided by the Market Research Library primarily for Market 
Research personnel is being expanded and offered to all home office executives. 

The Library presently receives the 79 publications on the attached list. Check 
off the ones that interest you and return them. You will receive the monthly tables 
of contents of your choices. 

From these tables of contents, choose the articles you want, circle the titles 
and return them to the Library. Xerox copies of the articles will be sent to you. 

Please use this service to help supplement your current reading and to elimi- 
nate or cut back on your present subscription costs. 

H.R. 
Market Research Library Periodical List 

(Table of contents service) 

1. Aspo Planning Advisory Service (Monthly). 

2. Aspo Planning Magazine (Monthly). 

3. Aspo TAB Bulletin (Semi-Monthly). 

4. Advertising Age (Weekly ) . 

5. American Book Publishing Record (Monthly). 

6. The American Statistician (5-Year). 

7. Annals of Economic and Social Measurement (Quarterly). 
S. Atlantic Monthly (Monthly). 

S. Banking (Monthly). 

10. Bank Marketing (Monthly). 



253 



11. Barrens (Weekly). 

12. Boardroom Reports ( Semi-Monthly ) . 

13. Bureau of Census Catalog (Quarterly). 

14. Business Conditions Digest (Monthly). 

15. Business Periodical Index (Monthly). 

16. Business Statistics (sheet of paper) (Weekly). 

17. Business Week ( Weekly ) . 

18. OSA-Coops and Voluntaries (Monthly). 

19. CSA-General Merchandising- Variety Executive Edition (Monthly). 

20. CSA-Supermarket Stores Edition (Monthly). 

21. Changing Times (Monthly). 

22. Conference Board Record (Monthly). 

23. Consumer News (Bi- Weekly). 

24. Consumer Reports (Monthly). 

25. Direct Marketing ( Monthly ) . 

26. Discount Merchandiser (Monthly). 

27. Discount Store News ( Bi-Monthly ) . 

28. Drug Topics ( 2xMonth ) . 

29. Dun's Review (Monthly). 

30. Editor & Publisher ( Weeklv ) . 

31. Funk & Scott Index (Weekly). 

32. Financial Trend (Weeklv). 

33. Food Advocate (Monthly). 

34. Forbes (2xMonth). 

35. Fortune (Monthly). 

36. Fund Raising Management (Monthly). 

37. Gasoline News (Monthly). 

38. Harvard Business Review (Bi-Monthly). 

39. Home and Auto (Monthly). 

40. Housewares (Monthly). 

41. Incentive Marketing (Monthly). 

42. Industrial Marketing (Monthly). 

43. Journal of Contemporary Business (Quarterly). 

44. Journal of Marketing (Quarterly). 

4^. Journal of Marketing Research (Quarterly). 

46. Journal of the American Statistical Association (Quarterly). 

47. Journal of Retailing (Quarterly). 

48. Kiplinger Wa.shington Letter (Weekly). 

49. Library Journal (2xMonth). 

50. Majors Composite Market Survey (Weekly). 

51. Marketing Information Guide (Monthly). 

52. Marketing News (2xMonth). 

53. Marketing Review (lOxTear). 

54. Mass Retailing Merchandiser (Monthly). 

55. Merchandising Week (Weekly). 

56. Modern Grocer (Weekly). 

57. Money (Monthly). 

58. Monthly Labor Review (Monthly). 

59. National Geographic (Monthly). 

60. National Mall Monitor (Monthly). 

61. National Observer (Weekly). 

62. NPN (Monthly). 

63. Nation's Business (Monthly). 

64. Newsweek (Weekly). 

65. New York Magazine (Weekly). 

66. Progressive Grocer (Monthly). 

67. Psychology Today (Monthly). 

68. Restaurant Business (Monthly). 

69. Salesman (Monthly). 

70. Sales Manager (2xMonth). 

71. Shopping Center World (Monthly) . 

72. Smithsonian (Monthly). 

73. Stores (Monthly). 

74. Supermarketing (Monthly). 

75. Supermarket News (Weekly). 



254 



76. Survey of Current Business (Monthly), 

77. Time (Weekly). 

78. Travel and Leisure (Monthly). 

79. Wall Street Transcript (Weekly). 



Statement of Julius J. Maeke, On Behalf of the Amebican Association 

OF Law Libraries 

Mr. Chairman, and members of the Committee, I am Julius J. Marke, Law 
Librarian and Professor of Law, New York University. I am Chairman of 
the Copyright Committee of the American Association of Law Libraries, and 
am appearing on its behalf. 

The American Association of Law Libraries (A.A.L.L.) was established in 
1906 and presently has a membership of approximately 2,000 law librarians 
servicing University Law School libraries, Bar Association libraries, County 
Law Libraries, Court libraries, State Law Libraries, and Practitioners Libraries 
throughout the nation. Its Headquarters is located at 53 W^est Jackson Boule- 
vard, Chicago, Illinois, 60604. 

The A.A.L.L. is established for educational and scientific purposes and is 
conducted as a non-profit corporation to promote librarianship, to develop and 
increase the usefulness of law libraries, to cultivate the science of law libra- 
rianship and to foster a spirit of cooperation among the members of the pro- 
fession. It has twelve regional chapters, known as Association of Law Libraries 
of Upstate New York, Chicago Association of Law Libraries, Greater Philadel- 
phian Law Library Association, Law Librarians of New England, Law Li- 
brarians' Society of Washington, D.G.. I^aw Library Association of Greater 
New York, Minnesota Chapter of A.A.L.L., Ohio Regional Association of Law 
Librarians, Southeastern Chapter of AALL, Southern California Association of 
Law Libraries, Southwestern Chapter of AALL and Western Pacific Chapter 
of AALL. Foreign Law Librarians, residing in the following countries, are also 
members of the American Association of Law Libraries : Canada, Australia, 
Belgium, Colombia, England, Ethiopia, West Germany, Finland, France, Israel, 
Italy, Jamaica, W.I., Japan, Korea, Netherlands, New Zealand, Nigeria, North- 
ern Ireland, Republic of the Philippines, Singapore, Sudan, Sweden, Switzerland, 
Tanzania and Turkey. 

The American Association of Law Libraries is also a publisher of scholarly 
and technical publications. It publishes The Law Library Journal, The Index 
to Foreign Legal Puhlications, the A.A.L.L. Puhlications Series, Current Pub- 
lications in Legal and Belated Fields and the A.A.L.L. Newsletter. In addition 
the hidex to Legal Publications is published by the H. W. Wilson Co. with the 
cooperation of the A.A. L.L. 

Although the A.A.L.L. has reservations about other parts of H.R. 2223. I 
shall address my comments to those sections of the bill affecting library photo- 
copying. 

The A.A.L.L. joins other national librai-y associations in recommending leg- 
islative safeguards and exemptions for those library uses of copyrighted works 
necessary to guarantee the public access to library resources for educational, 
scientific and scholarly purposes. 

The ma.1or concern of the A.A.L.L. is that sections lOS(g) (1) and 108(g) (2) 
negate the grant to libraries in section 108 to make single photocopies of copy- 
righted materials, 

I. legislative safeguards and exemptions 

Section 108(g)(1) limits the right of reproduction and distribution under 
section 108 only to "the isolated and unrelated reproduction or distribution of 
a single copy of library materials on "separate occasions". It does not extend, 
however, to cases where the library, or its employee is "aware or has substan- 
tial reason to believe that it is engaging in the related or concerted reproduc- 
tion or distribution of multiple copies . . . whether made on one occasion or 
over a period of time and whether intended for aggregate use by one or more 
individuals or for separate use by the individual members of a group." 

Section 108(g)(2) denies to libraries the "systematic reproduction or dis- 
tribution of single or multiple copies" of material described in section 108(d). 



255 

The AALL is concerned that library systems are evolving in many forms and 
as a result not even librarians have enough information on library networks all 
over the country to arrive at an acceptable understanding of the situation. 
Therefore, it is impracticable at this point of time to define "systematic" with 
reference to these "systems". Actually, librarians are only attempting to use 
available resources adequately and maximize their collections rather than 
economize at the expense of the publishers by promoting photocopying of their 
library materials. An example of one of these "systems" is multi-county libraries 
organized to support a single library system. In this context, librarians are 
concerned about foreclosing interests by definition. Legislative restrictions with 
reference to "systems" when read into the copyright revision law, could create 
problems in the future as technological developments in this area are so un- 
certain and unforseeable at present. They also are in direct conflict with the 
express Congressional intent as a matter of public policy to encourage the 
creation and promotion of such "systems" as set forth in the Higher Education 
Act referred to under 1(d) supra. 

The AALL also insists that "systematic" library photocopying restrictions 
under section 108(g) (1) and 108(g) (2) must be relaxed to reflect a recognition 
of a library's right to make single photocopies of materials in its collection 
and the applicability of the "fair use" doctrine. Librarians are concerned that 
"systematic" can be used to whipsaw them. Sections 108(g) (1) and (g) (2) de- 
part from "single" and "multiple". If "systematic" swallows up "single" and the 
applicability of the Fair Use doctrine then librarians protest. "Systematic" can 
only refer to "multiple" copying. 

The AALL also protests that the concept of library single photocopying as 
"fair use" is now limited under section 108(g) (1) to "isolated" and "unrelated" 
single photocopying. 

Then again, what is meant by words and phrases in Section 108(g) such as 
"period of time"? One day, one week, one month, one year? What is meant by 
the library or its staff "know or has reason to know", of "multiple copying"? 
At what point and under what circumstances is the library administration put 
on constructive notice of multiple photocopying? What kind of records must be 
kept by the library of these activities, or type of consultation required of staff 
members involved to prevent such "related or concerted" reproduction? W^hat is 
meant by "distribution" in the section? "What is a branch library? Is the Law 
Library on a university campus a branch library of the University Library 
System? 

Librarians cannot depend on the courts applying "rule of reason" construc- 
tion to these nebulous words and phrases in section 108(g). Librarians have 
serious reservations about this approach and must insist on specific guidelines 
to prevent "prior restraint". 

"Systematic" library photocopying as set forth in section 108(g)(2) allows 
for a construction depending on "availability" as the key factor in determining 
when a "system" exists for this purpose. Therefore, any system which provides 
the comfort of availability of a publication to a library, which therefore does 
not have to provide for it in its budget, would be "systematic". As a result, a 
listing of library holdings of serials, such as to be found in the Union List of 
Serials (which has been on the open market for more than 40 years), even 
though not prepared for commercial advantage, or for the purpose of interlibrary 
loan, still provides this availability, and therefore becomes a "system". Hence, 
any identifiable source of books in print plus knowledge of it by librarians to 
identify materials they lack for interlibrary loans would amount to a "system". 
This pervasive effect is considered intolerable by librarians as it could have 
serious adverse consequences for research and the dissemination and flow of 
information, especially as services by libraries. Then again, it must be recog- 
nized that merely because a library "system" exists, it does not necessarily 
follow that all photocopying within the system is "systematic". 

The A.A.L.L. also protests that as there is no objection to interlibrary borrow- 
ing of specific hard copy materials under these so-called "systems", why should 
librarians not be able to make a single photocopy of these materials when 
randomly requested on interlibrary loan as a substitute for hard copy, especially 
as permitted in sect. 108 (d) of the Copyright Revision Bill. 

In a sense these criticisms of section 108 of the revision bill were reflected 
and implied in the Register of Copyrights' testimony on S. 3976 before this 



256 

Committee on November 26, 1974 (93rd Cong. 2d Sess, Serial No. 59, 1975) 
when she stated : 

"Ms. Ringer." . . . Section 108 of the revision bill (dealing with the making of 
single photocopies by libraries) is by no means suflBcient to solve the larger prob- 
lems of reprography, especially in libraries . . . Neither the enactment of the 
revision bill in the form in which it passed the Senate nor a definitive decision 
of the Supreme Court in the Williams and Wilkins Case is going to settle the 
larger issues here. . . 

"Discussions are under way in the private sector, now on this subject, in recog- 
nition that nothing the Congress does ... is going to solve this issue for the fu- 
ture, and that it is an issue that very desperately needs solving. But both of these 
important issues, namely, computer uses and reprography urgently need to be 
studied in depth by recognized experts", (p. 6-7) . 

The AALL recommends that "these important issues" be submitted for solu- 
tion to the recently created National Commission on New Technological Uses 
of Copyrighted Works inasmuch as P.L. 93-573, 88 Stat. 1873, enacted into law 
on December 31, 1974 charges this Commission to study and compile data on the 
use of copyrighted works" in conjunction with automatic systems capable of 
storing, processing, retrieving, and transferring information, and ... by various 
forms of machine reproduction . . .". In the interim period sections 108 should 
be redrafted to meet the objections set forth above. 

II. LIBRAKT PHOTOCOPYING ISSUES AND THE COPYRIGHT REVISION BILL 

A. Purpose of copyright protection and the puMic interest 

Generally, the purpose of copyright protection is to encourage and reward 
authors of intellectual works and other creative artists to produce such works 
for the benefit of society, by granting them the exclusive right during a specific 
period of time to copy, or otherwise multiply, publish, sell or distribute them, 
as well as to prepare derivative works based upon the copyrighted work. They 
are also given the exclusive privilege to perform and record these works and 
to license their production or sale by others during the term of the copyright 
protection. Basically, the purpose of copyright, as is tested in Article 1, Section 
8, Clause 8 of the U.S. Constitution is "to promote the progress of science and 
the useful arts". This necessarily implies that the copyright holder's rights are 
never absolute for the monopoly granted serves the added purposes of stimulating 
the development of scientific and other types of knowledge and to encourage the 
dissemination of this knowledge to the public. 

To avoid frustrating this purpose, the courts have adopted the concept of a 
"fair use" doctrine which permits individuals and institutions, other than the 
copyright owner, to use the copyrighted material in a reasonable manner without 
the owner's consent. In essence, the "fair use" doctrine attempts to balance the 
rights of the owners of copyrighted works to their just economic rewards against 
the rights of scholars and researchers to use these works conveniently in their 
scholarly endeavors. As the "fair use" doctrine is an equitable rule, each case is 
determined on its own facts. The courts in the U.S. generally apply the following 
guidelines laid down initially by Mr. Justice Story in 1841 in Fnlsom v. Marsh, 
9 Fed. Cas. 342 (CCD Mass.) in deciding whether an infringement or fair use 
has occurred : "We must ... in deciding questions of this sort, look to the nature 
and objects of the selections made, the quantity and value of the materials used, 
and the degree in which the use may prejudice the sale, or diminish the profits, 
or supersede the objects of the original work." 

On the issue of pul)lic interest, it is relevant to note a question raised by 
Professor John C. Stedman. What are the rights of an author and those in 
privity with him? He suggests that it is a policy question of "more or less", not 
a legal question of what are his rights in the educational process. "How much 
it is necessary and desirable to give to the author in order to stimulate and 
encourage him to write and publish in the educational field !" Look at the 
"effects" of granting or denying copyright protection rather than refer gen- 
erally to the "interests" of the author. Educational activity, in practical effect 
and in terms of public interest, must be distinguished from other activities with 
reference to copyright protection. Consideration must be given to the strong 
public purpose behind educational activity. "Beware!!" he cautions authors 
and publishers, if the copyright toll becomes too onerous for educational activi- 



257 

ties to absorb, the result may be foregoing use of the material completely. (See 
AAUP Bulletin, 53 :129 (June 1967) ). 

B. Library photocopying and copyright protection 

Replication of copyright works is daily taking place in libraries as part of 
the research and educational process. At present it is primarily reflected in 
reprographic reproduction (reproduction by photographic methods or processes 
analogous to photography), and is an established and recognized practice in 
library administration, teaching and research. 

Reprography in libraries and for educational purposes should not be confused, 
however, with computerized retrieval of data and information, which in its 
present state of development is hardly a serious threat to owners of intellectual 
property but which could eventually become so. Researchers, librarians and 
educators in the future will then become involved with new techniques of elec- 
tronic document-storage and computerized information-retrieval systems just as 
they are presently learning about the tremendous potential of miniaturization 
and remote transmission of data. 

Currently, the most pressing problems facing owners and users of copyrighted 
works lie in the reprography area as distinguished from electronic systems. 

Scholars, researchers and librarians, relying on the doctine of fair use, have 
always felt free to copy by hand the works of others for their own research and 
study needs. When copying machines become available, it was a simple transi- 
tion for these scholars, etc., to extend their note-taking to photocopying from 
copyrighted material. Publishers maintain that the new machine-copiers made 
replication of their copyrighted materials so easy and inexpensive that their 
sales are being detrimentally affected to the point that if allowed to continue 
they will be forced out of business. As a result, the creator of information 
would lack the income from his ideas to maintain a degree of independence. 
Educators particularly object to any limitation of their right to make machine- 
copies on the grounds that they, like librarians, are not doing so for profit ; 
nor for any direct or indirect commercial advantage, but rather to promote 
the educational process. 

The traditional library position on reprography in libraries is to the effect 
that not only under the Fair Use doctrine, but also as a natural extension of 
customary library service, a library may make a single copy of copyrighted 
material it has purchased, for the scholarly use of any of its readers or another 
library, requesting such service, if done without profit. Such service, employing 
modern copying methods has become essential. The present demand can be 
satisfied without inflicting measurable damage on publishers and copyright 
owners. Improved copying processes will not materially affect the demand for 
single-copy library duplication for research purposes. Librarians also argue, 
no matter who is involved, whether it be the librarian, the publisher, or the 
creator of information, the main concern should be the public interest in access 
to information. Copyright protection should not be an impediment to transfer- 
ring information. 

C The economics of library photocopying and the public interest 

Publishers allege that although libraries are not in the business of photo- 
copying for profit, still by doing so, they are depriving publishers of the oppor- 
tunity to sell additional copies and even to maintain their current subscrip- 
tions. In the Williams d Wilkins case, however, involving a U.S. government 
library's unauthorized photocopying of copyrighted medical periodicals for and 
at the request of medical researchers and practitioners, the U.S. Court of 
Claims not only held this practice constituted "fair use", but that "there is 
inadequate reason to believe, that it (the publisher) is being or will be harmed 
substantially by these specific practices." Actually, this conclusion is borne 
out by the realization that if most of the users in libraries who photocopy 
copyrighted materials would be deprived of this opportunity, they would not 
purchase the original material. Then again, researchers, scholars and academi- 
cians rarely purchase all or even a few of the books and/or journals they use 
in their research. They receive complimentary copies and reprints of articles or 
they borrow library copies. Only if these sources fail to provide the materials 
sought, do they resort to photocopying. The publishers' complaint that photo- 
copying is depriving them of profits because of lost sales is therefore not a 
completely valid conclusion. Many of the potential sales the publishers envision 
are not of the type that ordinarily occur. It appears to be, that the publishers, 
despite all this library photocopying, are no worse off than before. 



258 

While libraiies and large industrial organizations are principally involved in 
replication of copyrighted materials (also there is much private and casual copy- 
ing by students, faculty and others in college and university libraries) still they 
continue to purchase many new titles and journal subscriptions, as well as main- 
taining the older subscriptions. It should be also recognized in this context that 
these institutions cannot physically shelve more than a few copies of a journal, 
etc., due to lack of space and thei-efore would never purchase a great number 
of subscriptions to a journal merely because at one time there was a demand for 
additional copies of a given article. 

In this context, we should also review the economics of publishing. It is an 
established fact that publishers of scientific and technical journals, publish 
limited editions of their issues so that they often are unable to sell additional 
copies on demand as early as two months after publication. They do not invest 
in maintaining stock of back issues of their publications, and hardly ever reprint 
them. Thus, depriving themselves of the opportunity to sell their back issues 
on demand. vStill they are insisting on the payment of fees additional to the sub- 
scription price of the publications, for photocopying rights of these back issues. 
Then again, publishers, especially in the areas of scientific and technical refer- 
ence works do market research before publishing new titles and publish them 
<mly when assured that libraries will purchase them in addition to specialists in 
the field. When they determine that the sale of a particular work will be limited, 
the list price established is increased to reflect this in order to insure a profit. 

Surveys have also established that as many as 80% of authors of scientific 
articles are more interested in dissemination of their articles than in receiving 
royalties. In the scientific field, it should also be noted, authors not only do not re- 
ceive remuneration for their articles, but often are required to pay for the cost 
of having them published or absorb the cost by purchasing a stated number of 
reprints. It has also been noted that subjects dealt with in scientific literature 
and some of the other disciplines such as law have become so specialized that most 
researchers in those fields are interested sometimes only in one article out of the 
many published in a particular journal. Reprography in libraries and documen- 
tation centers appears to be the only obvious way today for researchers to have 
access to the many scholarly resources of their field. 

Publishers complain, however, that they are bearing the economic brunt of 
this development. The hardw^are and paper used for reprography are bought and 
paid for by libraries, etc., why shouldn't publishers be given additional income 
for the right to make copies of their copyrighted works ! They also add that even 
though .scientists, etc., etc., pay for publication of their research papers, they 
should be interested in the survival of the scientific journals which give them an 
opportunity to disseminate their findings and research reports. 

Librarians respond to this copyright confrontation as follows: Non-profit li- 
brary institutions are not in business and have nothing to gain by photocopying 
for others. Their purpose is only to promote research in the sciences and human- 
ities in the public interest. They are involved with access to knowledge and its 
bibliographical control so that scholars, educators, scientists, etc., can use such 
data in their research and in the process create new information and materials. 
Why should librarians, under these circumstances be caught in the middle of 
the conflict between owners and users of copyrighted materials, and be required 
to take sides? When we become concerned with technology and economics, we 
must realize that they are not material to the library's ulterior purpose of in- 
formation dissemination. 

Library institutions do have an interest in the reproduction of copyriglited ma- 
terials for their own internal, nonprofit purposes. They have a vital concern in 
conserving copies of periodicals and of works in their collection which are out 
of print, under certain circumstances. They also have an interest in reproducing 
multilated or missing pages of works in their collection. Then again, in order 
to conserve their collection, they recognize the need to photocopy materials in 
their collection for other libraries, requesting them on inter-library loan. Ground 
rules should be negotiated for these purposes but not at the expense of limiting 
the free flow of information, and certainly not with the added cost to libraries for 
administering a system involving payment of fees, licensing, etc., for the benefit 
of owners of copyrighted works. 

D. The new technology and the copijright revision hill 

What position should this committee take with reference to computer technol- 
ogy and related copyright problems? When the integrity of a basic collection 
of materials, copyrighted and otherwise, compacted and stored in electronic 



259 

information-center computers, will be preserved by Xerographic printers provid- 
ing facsimile reproduction by remote transmission in hard-copy form, or by 
video scanning of ephemeral copy on a closed-circuit TV monitor elsewhere ; 
when the library collection will remain intact because the computer, in essence, 
will assume the role of a duplicating rather than a circulating library ; when one 
copy of a book fed into such a system will service all simultaneous demands for 
it ; when microfiche and computer print-outs will replace copyrighted hard- 
copy publication of research reports, as well as of scientific and technical ma- 
terials currently appearing in journals, monographs and books, and when audio- 
visual dial-access teaching machines, operated by remote control, will provide 
hundreds and even thousands of students with simultaneous audio and visual 
access to a journal article or excerpts from a l)Ook, it is obvious that the pub- 
lishers" traditional market will be affected by these developments and the copy- 
right laws will have to respond to this "non-book" production. 

Merely on the issue as to when an infringement will occur with reference to 
input, stoi'age and retrieval of a copyrighted work fed into a computer without 
permission of the copyright owner remains still to be resolved. Output or re- 
trieval of the copyrighted work may be in the form of abstracts, excerpts, or 
the work as a whole. It may be delivered to the user in tangible form such as a 
photo-duplication or in ephemeral form such as the temporary projection of an 
image on the screen. Should the output of an information storage and retrieval 
system be considered a copyright infringement or derivative work if such 
output is an index, abstract, limited quotation or analysis of the copyrighted 
work? "No," reply some copyright experts, except to the extent that the output 
is likely to diminish the demand for a copyrighted work, because then the doc- 
trine of fair use should govern. Some experts note that the term "copy" is a word 
of art construed by the courts in the U.S. to mean a copy which is "visually 
perceivable" and in "tangible form" and therefore when we are concerned with 
computer output of punch cards or tape, we are "copying". Thus, the experts 
cannot agree when a computer system has infringed on a copyright owner's works 
or for that matter to v>'hat extent. Professor Benjamin Kaplan, contends that 
infringement should not turn on input conversion but rather on output conver- 
sion — on what is subsequently done with the stored work. 

Tliere are other copyright problems brought out by the new technology, 
e.g., notice of copyright and deposit, whether doctrine of fair use is applicable. 
The state of the art today, however, is not sufficient to warrant the acceptance of 
rules and regulations governing the use of copyrighted materials. When "non- 
book" production will predominate, the role of the commercial publisher will 
probably change, especially in his relationship with authors and readers. Pul)- 
lishers may also decide to play a different role with reference to regional, national 
and international information networks. Libraries will also have to readjust 
their concepts of reader's services and technical operations and may even become 
eventually part of projected government information networks. Thus, it is pos- 
sible that the new technology will change the concept of author protection and 
that copyright protection will be of little help to the author of scholarly works. 
Rather than depending on royalties, these authors and/or their publishers will 
sell directly to the information-system operator either as a complete sale or upon 
an accounting based on use. The computer could easily be programmed not only 
to incorporate the new "work" into the existing data but also arrange for account- 
ability of its use in the system. Subscribers to the system will pay for its 
maintenance. 

As a result, many other problems will arise, e.g., the amount of control gov- 
ernment will have over these information systems, rates to be established and in- 
ternational agreement and treaties will have to be negotiated to reflect the needs 
of the system. 

In light of all these possibilities, it is my thought that this Committee can- 
not take a position at present affecting copyright and computer based informa- 
tion storage and retrieval systems. We must await developments in this field 
to the point where we will be aware of the implications of our decisions. 

I would respectfully recommend that this is a problem for the newly created 
National Commission on Neiv Technological Uses of Copyrighted Works to resolve. 



260 

The long range problems arising from the effects of this new technology on copy- 
right must first be identified by the Commission and then it should "make rec- 
ommendations as to such changes in copyright law or procedures that may be 
necessary to assure for such purposes access to copyrighted works and to provide 
recognition of the rights of copyrighted owners" as it has been charged by the 
U.S. Congress to do. 

Mr. Chairman, I appreciate the opportunity of appearing here to present the 
point of view of the American Association of Law Libraries. 



Statement of William M. Passano, Chairman of the Board, 
Williams & Wilkin s Co. 

I thoroughly enjoyed meeting with you on May 13, and I appreciate the oppor- 
tunity to review with you the subscription figures for the 27 .Tournals pnl»lished 
by The Williams & Wilkins Company. You may recall that a compelling reason 
given by the four judges of the Court of Claims for finding library photocopying 
of our Journals to be "fair use" was that we had not convinced them that this 
practice was doing harm to the financial condition of the Journals. It is true that 
in 1973, when the Court of Claims decision was handed down, we had no statisti- 
cal proof of damage. 

However, the figures now available, which compare 1973 with 1974 and which 
I showed you when I was in your office, do to my mind show that the library net- 
works are, in fact, doing just what they were designed to do ; namely, reducing the 
number of Journals which the libraries subscribe to, since the needs of library 
patrons can be served by obtaining photocopies of requested articles as inter- 
library loans through the network systems. 

You will notice that the individual subscriptions to the 27 Journals which we 
publish have increased nearly 17%, comparing 1974 with 1973. Foreign subscrip- 
tions of all kinds have increased approximately 13%. Furthermore, there has been 
a healthy increase in the number of hospital subscriptions, due primarily we 
believe to the ever-growing number of community hospitals. This record indi- 
cates that the Journals as a group are in demand as purveyors of scientific knowl- 
edge and are highly respected by the scientific community. Furthermore, we credit 
much of the increase to the effectiveness of the very substantial direct marketing 
efforts which we have made during the past year. 

The record of individual and foreign subscriptions, however is in sharp con- 
trast with the institutional subscriptions which in the same period of time have 
fallen off by 3%. I think it is safe to say that this decrease in institutional sub- 
scriptions, at a time when individual and foreign subscriptions have substan- 
tially increased, is not due to lack of popularity on the part of the Journals in 
question, but is becau.se of the ease with which interlibrary loans (photocopies) 
are obtained through membership in library network systems, and that these 
photocopies can and do replace the necessity for institutions subscribing to the 
Journals in question. Certainly The American Chemical Society subscription fig- 
ures confirm this with even larger declines. 

We do not quarrel with photocopying, nor do we object to the network sys- 
tems. They are effective means of eflSciently disseminating scientific knowledge. 
We do believe, however, that those who use the Journals by photocopying them 
should share in their support and not leave the entire burden on the shoulders 
of the subscribers, the authors and the advertisers, as is the case at prei^ent. It is 
for this reason that Section 108(g) (2) of the proposed Copyright Bill must be 
retained if the scientific press is to remain viable and free from governmental 
subsidy and control. 

It should be borne in mind that fully 65% of the cost of producing the typical 
scientific periodical is incurred before the first copy comes off the press. This 
means that only a comparatively small erosion of the subscription list can greatly 
affect the unit cost and therefore jeopardize the financial security of the Journal. 

Again, many thanks for permitting me as a member of the Proprietary Rights 
Committee of the Information Association to place these facts before you. 



261 



STATUS OF SUBSCRIBERS TO 27 WILLIAMS & WILKINS JOURNALS COMPARING 1973 WITH 1974 



Number of subscribers 



Type of subscriber 







Change in 


1973 


1974 


percent 


28, 405 


33, 137 


+16.8 


36, 430 


41,147 


+12.9 


8, 796 


9,562 


+8.75 


15, 369 


14, 909 


-3.0 


3, 262 


3,361 


+3.3 


5, 198 


5,149 


-.95 


489 


413 


-15.6 


1,112 


1,149 


+3.3 


3,644 


3,523 


-3.3 


1,674 


1,314 


-21.7 



Individual domestic 

Foreign individual and institutional 

Hospitals 

All other domestic institutions 

Breakdown of domestic Institutional subscribers 

Medical schools 

Universities and colleges 

Public libraries 

Corporations (drug manufacturers) 

U.S. Government libraries and departments. 
Associations, foundations, laboratories 



Statement of Hon. David Mathews, Secretary, Department of Health, 

Education, and Welfare 

There is now pending before your Committee H.R. 2223, a bill "For the 
general revision of the Copyright Law, title 17 of the United States Code, and 
for other purposes." 

In brief, the bill as presently worded contains a provision [Subsection 
lOS(g) ] which would severely hamper the flow of biomedical information between 
the National Library of Medicine and the nation's medical libraries and thereby 
reduce the information available to researchers and practitioners. Deletion of 
Subsection 108(g) would remove this restriction. However, if deletion of this 
Subsection is not possible modification of the language contained therein would 
accomplish the same goal. 

We transmit herewith a brief technical report which contains an analysis 
of select provisions of the bill under consideration and the effects which they 
might have on the programs of the National Library of Medicine, a bureau of 
the Department of Health, Education and Welfare. 

We are advised by the Office of Management and Budget that there is no 
objection to the presentation of this legislative proposal from the standpoint 
of the Administration's program : 

An Analysis of the Possible Effects of Section 108 of H.R. 2223, General 

Revision of the Copyright Law 

House of Representatives bill, H.R. 2223 "For the general revision of the 
Copyright Law, title 17 of the United States Code, and for other purposes," 
now pending before the Committee on The Judiciary in the House of Representa- 
tives, would provide for the first general revision of the copyright law since 
its passage in 1909. Section 108, "Limitations on exclusive rights : Reproduction 
by libraries and archives" provides that it is not an infringement of copyright 
for a library or archives to reproduce no more than one copy of a work for 
non-commercial purposes in order to preserve deteriorating materials, replace a 
damaged or lost copy that can not be purchased at a fair price, or provide a 
copy for the use of an individual library patron for scholarship and research. 
However, Subsection 108(g) prohibits "the related or concerted reproduction 
or distribution of multiple copies or phonorecords of the same material, whether 
made on one occasion or over a period of time" whether intended for the use 
of one individual or a group. It also prohibits "the systematic reproduction or 
distribution of single or multiple copies" of a copyrighted work. 

Subsection 108(g) in its present form, depending on the interpretation of 
"systematic reproduction," could possibly make operation of the current inter- 
library loan program of the National Library of Medicine and its Regional 
Medical Library network an infringement of copyright, thereby seriously impair- 
ing the nation's health research and scholarship. 

The NLM is a "library's library" serving as the back-up source of materials 
requested by patrons of local medical libraries but which are at that time absent 
from their collections. There are many reasons for the non-availability of litera- 
ture which necessitates that a local library request an interlibrary loan; among 
the common reasons are that the material requested are out of the local library 
on loan or at the bindery. 

To provide more rapid dissemination of biomedical information, the Library 
has developed a network arrangement through which biomedical literature 



262 

can be shared more efficiently by medical libraries throughout the nation. Eleven 
major institutions have been designated Regional Medical Libraries to provide 
iiiterlibrary loan services to other libraries in their regions. 

The interlibrai'y loan program provides to requestors photocopies of articles 
from periodicals and brief excerpts from monographs for the purposes of private 
study, scholarship and research. Single photocopies are provided in lieu of 
loaning the original literature as a means of safeguarding NLM's archival 
collection and of assuring uninterrupted availability of the literature of NLM 
and the resource libraries of the Regional Medical Library network. 

The term "systematic reproduction" as used in Section 108 (g) (2) is not 
defined in the bill, but if it is to be used to describe that reproduction carried 
out in connection with interlibrary cooperation, such as in the Biomedical 
Library Network, it will mean the end of this oi'derly and efficient medical 
literature exchange. 

Section 108 in H.R. 2223 is identical to Section 108 of S. 1361 which was passed 
by the Senate in 1974. It is important to note that the Senate report which accom- 
panied S. 1361 dealt with this issue of systematic reproduction. 

The report indicated that Subsection (g) (2) stipulates that Section 108 
does not authorize the systematic reproduction or distribution of copies of articles 
in periodicals or of small parts of other copyrighted works whether or not 
multiple copies are reproduced or distributed. Systematic reproduction or distri- 
liution occurs when a library makes copies of such materials available to other 
libraries or to groups of users under formal or informal arrangements whose 
purpose or effect is to have the reproducing library serve as their source of such 
material. The report states that such systematic reproduction and distribution 
enable the receiving libraries or users to substitute the copies reproduced by the 
source library for subscriptions or reprints or other copies which they might 
otherwise have purchased for themselves, from the publisher or the licensed 
reproducing agencies. 

The potential effects of Section 108(g) are unsure; however, as the Senate 
Subcommittee interpreted "systematic reproduction" in 1974, NLM's present 
interlibrary loan program might be found to be an infringement of the copyright 
law if amended as proposed in this legislation. 

Although Section 108(a)-(f ) appears to allow for the photocopying of journal 
articles. Subsection 108(g) (2) threatens to destroy the effectiveness of the 
biomedical library network and to seriously undermine the ability of local medi- 
cal libraries to provide medical literature and information requested and needed 
by the health community. It could in effect eliminate the present practice of 
interlibrary loans which would seriously impair the dissemination of medical 
information throughout the nation. 

Deletion of Subsection lOS(g) (2) would permit the continuation of an 
unrestricted flow of medical information among libraries. If deletion is not 
possible, another approach which might accomplish the goal would be to amend 
Subsection 108(g) (2) by adding the language underlined below: 

(2) engages in the systematic and unlimited reproduction or distri- 
bution of single or multiple copies or phonorecords of the same material 
described in Subsection (d) so as to suhstmitially impair the market for, or 
value of, the copyrighted work. 

For purposes of avoiding ambiguity the bill should include explicit definitions 
of "systematic reproduction" and "fair use." 



Statement op Kevin J. Keaney, General Counsel for the Federal Librarians 

Association 

The Federal Librarians Association, incorporated in the District of Columbia, 
is an organization of professional librarians who work in the libraries and docu- 
mentation centers of the U.S. Government throughout the world. This statement 
is submitted to express the view of the association relative to the proposed copy- 
right legislation, particularly Section 108(g) (2). 

Section 108 permits the reproduction of single copies of certain materials, in 
certain circumstances, and under certain conditions, by libraries and archives ; but 
paragraph (g) (2) withholds that permission or right in ". . . cases where the 
library or archives, or its employee : . . . engages in the systematic reproduction 
or distribution of single or multiple copies of phonorecords of materials described 
in subsection (d)." 

It is the view of this association that this paragraph will, on the one hand, 
subject the library and the librarian to a liability so serious as to inhibit the 



263 

primary puriwse of Article I, Section S, of the U.S. Constitution, and on the 
other hand, provolie by the vagueness of the term "systematic" endless and 
unprofitable litigation. 

Federal librarians and Federal libraries have the duty to serve the public 
by providing whatever documents are available. We contend that the public 
interest is best served when the documents are provided subject to the primary 
puri>ose of the constitutional provision (". . . to promote the progress of Science 
and the useful Arts. . .") and subject to no more than other parts of Sections 
107 and 108. We believe that the "fair use" provisions of Section 107 are 
.sufficient protection to the holder of copyright, buttressed by the more specific 
provisions of Section 108, but excluding paragraph (g)(2). Librarians do not 
believe that the public interest is served by unrestricted and unconditional photo- 
copying, but we do believe that the restrictions and conditions contained in 
other parts of the legislation are sufficient to safeguard the legitimate rights of 
the liolder of copyright. When Congress provided that constitutional protection 
to holders, we believe Congress intended a "quid pro quo", viz. the fair use of 
that protected material by the public. We are highly concerned that there seems 
to be no government defender of that public interest. On the contrary, the 
National Commission on Libraries and Information Science latest report indi- 
cates to us an acceptance of the inevitability of royalties or a licensing agree- 
ment. It is no comfort to us that the Register of Copyrights, and the former 
Registei', testified last week before this subcommittee that their first concern 
is for the "beneficiaries" of the Copyright Office, i.e. authors and publishers. And 
we are certainly not prepared to agree with the Register that the authors' 
interest is necessarily the public interest. 

Our apprehension about the vagueness of the term "systematic" is confirmed 
by the report on S. 1361 (no. 93-983) which said ". . . neither a statute nor 
legislative history can specify precisely which library photocopying practices 
constitute the making of 'single copies' as distinguished from "systematic i-epro- 
duction' ". The report's recommendation that meetings of opposing parties be 
held to resolve the conflict reminds us that these meetings have already been 
held many times, without success. 

But surely, one asks, "systematic" is a term on which reasonable men can 
reach an understanding? Aside from the fact that one man's reason is another's 
intransigence, there is the fact that economics is at the root of the matter. Holders 
of copyright understandably want more money, and libraries are faced with 
rising costs in serAang the public. The economic damage to holders of copyright 
is at best speculative, in regard to photocopying, and we share the view of the 
U.S. Court of Claims that, in regard to medical journals at least, the argument 
is an "untested hypothesis".^ 

Every organization, and hopefully, every liltrary, tries to operate in a "system- 
atic" manner, i.e. according to standard operating principles or uniform prin- 
ciples for each task, and must operate thus out of sheer common sense and 
business necessity. When your office rents and uses a photocopy machine, you are 
subscribing to a "system": even the production of single copies, no less multiple 
copies, are part of a "system". In this respect, all library photocpying is "sys- 
tematic" and thus subject to the restrictions of ijaragraph (g) (2), -* 

As members of a profession, and employees of government agencies, devoted 
to public service and the public interest, we ask you to strike from this proposed 
legislation paragraph (g) (2) of Section 108, on grounds that this paragraph: 

(a) contains a term so vague as lead to fruitless litigation, 

(b) is against the public interest and the primary purpose of Article I, 
Section S, of the U.S. Constitution, and 

(c) is superfluous in the light of the remaining parts of Sections 107 and 
108. 



Statement of John B. Hightower, Chairman. Advocates for the Arts/ 

Associated Councils of the Arts 

Mr. Chairman and members of the Committee : I am presenting this statement 
on behalf of Advocates for the Arts, a program of Associated Councils of the 
Arts, Inc. (ACA). ACA is a national service membership organization of state 
and community arts agencies devoted to the protection and advancement of 
the arts and artists. It represents several hundred widely diverse organizations, 
ranging from The Metropolitan Opera, to the Alaska State Council on the Arts, 

1 Annex. Special Library Sketchbook. S.L.A., N.Y. 1972. 45 p. 



264 

to the Fine Arts Council of Florida, to the Siouxland Arts Council of Sioux City, 
Iowa. Through Advocates for the Arts, ACA is concerned with all of the prob- 
lems that affect artists, art institutions, and the general public's enjoyment of 
artistic and cultural works. 

ACA acts as a service agency for its members, providing information and as- 
sistance to arts councils and arts organizations throughout the United States. ACA 
member organizations reflect all artistic disciplines and ACA speaks for the 
management and financial sides of the art world, as well as the creative and 
innovative artists themselves. Finally, ACA's Advocates program speaks for the 
arts consumers — those who enjoy art, buy art, view art, and attend the perform- 
ing arts — in short all who are concerned and affected by the cultural environment 
of this country. 

Advocates for the Arts, through factual and legal research, identifies areas 
in which action might have a material impact on the rights of arts institutions 
and individual artists, and areas in which public action might contribute to 
the enhancement of the cultural life of the community. Advocates intends to 
act with respect to these areas through public education, drafting of model 
legislation and litigation. Advocates seeks to accomplish the sharpening of pub- 
lic consciousness of the way in which law affects our cultural life and deter- 
mines the aesthetic character of our surroundings. 

Advocates have identified several areas of immediate concern. One of these 
areas relates to the economic rights of the creative artists. My statement to you 
today urges this Committee to take full cognizance of the significant adverse 
impact on the arts which would result from copyright legislation which fails 
to place reasonable restrictions on the permissible scope of photocopying copy- 
right nxaterial. 

The recent conclusion of the United States Supreme Court cas^ of Williams 
and Wilkins Company vs. The United States where the Supreme Court by a 
four to four deadlock let stand a lower court decision permitting rather wide 
spread photocopying of copyright works, makes more immediate the need for 
reasonable controls. Unfortunately, judging from the commentaries following 
the United States Supreme Court decision, institutions feel they have an ex- 
panding license to make widespread photocopy use of copyright works. While we 
do not believe such license was necessarily created by the recent court decision, 
it being limited to the specific facts presented, the climate is such that action 
by this Committee is urgent and necessary. 

We are concerned about the formulation of legislation which would formalize 
the concept of "fair use" so as to encourage wholesale library reproduction and 
distribxition of copyrighted works. 

Those who create artistic works are necessarily threatened. Without copyright 
protection against unauthorized distribution of photocopies of their created 
works, creative artists can have no assurance of being paid for their efforts. 

The language of HR 2223 (and S. 22 in the Senate) governing the "fair use" 
of copyrighted material, if adopted, would be a major step toward the economic 
protection for originators and creators of work from excessive reproduction. We 
heartily endorse the provisions of Section 108 and urge its adoption by the 94th 
Congress. Any attempt to erode or undermine the limitations on "systematic re- 
production" of copyrighted works, will, in our opinion, greatly reduce the effec- 
tiveness of the entire bill. We join the Authors League, and other intei-ested 
parties, in urging the committee to resist any efforts to delete Section 108(g) 
from HR 2223. 

Unfortunately, the potential for harm to the creative artist from an overly 
liberal photocopying provision is very real. Under the law as developed by the 
Williams and Wilkins case, it appears that complete articles may be photocopied 
from a magazine and distributed on a widespread basis without any royalty pay- 
ment to the copyright owner. However, without specific limitations, we are fear- 
ful that institutions will conclude if an article from a scientific journal can be 
reproduced and distributed, why cannot a short story or a poem from a literary 
magazine also be reproduced and distributed? Why not a musical composition 
from a workbook of musical scores? Indeed, why not a photographic magazine or 
a magazine anthology of art reproductions or lithographs? Why should the copier 
be limited to magazines? Why should it not be permitted to reproduce the same 
poem, short story, musical composition, photograph, drawing, or lithograph from 
a paperback book or a hardcover book? Further, in the mind of the photocopier, 
it might seem to be of no significance that the literary or artistic work is extracted 



265 

from a collection of works by a single poet, short story writer, composer, photog- 
raplier, painter, or lithographer, or from an anthology of works by many artists. 
In either case, an entire creative work would seem to be just as subject as an 
entire article from a scientific journal to photocopying and mailing to members of 
the general public. Instead of coming to the library personally to borrow and 
read the work, the library will give to the "borrower" a permanent personal copy. 

However, the composer, poet and short story writer are directly economically 
dependent on royalty income, based on the sale of their works to those who desire 
permanent personal copies. The photographer, the painter, and the lithographer 
jealously reserve reproduction rights to their works and expect to be paid when 
they authorize reproduction by or for those who desire permanent personal 
copies. 

If institutions will provide copies of specific works by creative artists upon 
request, why should anybody buy the entire magazine or paperback or hardcover 
book containing that specific work? Necessarily, publishers will sell fewer maga- 
zines and books, artists will receive less royalty income, and their works will be 
widely reproduced and distributed without authorization from them or compen- 
sation to them. 

Again, for emphasis, we are not saying that the Williams and Wilkins case 
created such a broad license. However, that decision was the last authoritative 
word on the subject of photocopying and has, we are fearful, created an atmos- 
phere of photocopying promiscuousness. 

In summary, we believe that an overly broad photocopying provision in the 
copyright law would be inconsistent with the philosophy of the Constitutional 
provision authorizing Congress to secure for authors copyright protection in 
order to "promote the progress of science and useful arts." We therefore recom- 
mend that adequate controls be placed on widespread photocopying of copyrighted 
works so that we retain the incentive for the creative artists to produce the 
art that is so necessary to the cultural environment of our country. 



Statement of Dr. Ray Woodkiff, Department of Chemistry, Montana State 

University 

Enclosed is a letter I received from the Mosby Publishing Company concerning 
HR 2223 and S 22, in particular sections 107 and 108, "Fair Use." and "School 
and Library Photocopying." As an author, professor, analytical chemist and user 
of duplicated copyright materials, I was very much alarmed at the effort and 
money that is being spent to get an unworkable copyright law passed. Duplicating 
machines will only become more numerous and available in the future and trying 
to prevent copying of material will serve more to create disrespect for law than 
it will to force people to buy books from publishers. If the publishers cannot 
produce books cheaper than they can be duplicated on these machines, book pro- 
ducers should improve their eflBciency, not force people to buy their books by 
working to get a new copyright law passed. 

In modern times, not to be able to duplicate a paragraph or a figure for class 
use without going through a hopelessly complicated release or remuneration 
system would stifle education and research in this country. 

In closing, I very strongly urge you to amend or discard sections 107 and 108 
of HR 2223 and S 22. 

The C. V. Mosby Co., 
St. Louis, Mo., August 8, 1975. 
Dr. Ray Alan Woodeiff, 
Department of Chemistry, 
Montana State College, Bozeman, Mon. 

Dear Dr. Woodriff : Authors and editors are creative jieople ; the manner in 
which you use knowledge and information to inform others is truly a creative 
process. It is our opinion that these creative talents deserve to be protected. 
The Copyright Law of 1909 has provided this protection, and as a consequence 
your contributions when published have essentially not been used elsewhere 
without permission. 

The advent of copying machines has made it possible to reproduce virtually 
everything in print. Because of this, and certain outmoded provisions of the 
Copyright Law of 1909, the United States House of Representatives and Senate 
Judiciary Committees are currently studying Copyright Revision Bills H.R. 2223 
and S. 22. Action on these identical bills will be taken shortly. 

57-780 — 70 — pt. 1 18 



266 

Of particular concern to us, and hopefully to you, are Sections 107 and 108, 
"Fair Use," and "School and Library Photocopying." 

It is our opinion that these sections of the proposed new law, as written, pro- 
tect your creative efforts and our investment. These sections will restrict the 
activities of those who feel that anything in print may be copied and distributed 
as the copier sees lit — without the permission of, or compensation to, author and 
publisher alike. We are strongly convinced that your creativity and our invest- 
ment must be protected. The new law will provide this protection and yet allow 
wide information dissemination. 

Well organized efforts are presently attempting to amend Sections 107 and 108. 
Such amendments will not provide safeguards against photocopying excesses as 
outlined above. I am writing to ask your assistance in protecting what I believe 
to be the correct position, one which truly serves everyone's best interests. 

Attached is a list of House and Senate Judiciary Committee members. I am 
asking you to contact these Committee members as well as your own Congress 
persons. Your message need not be lengthy, but should emphasize these two 
points : 

1. Much time and effort are expended in producing manuscripts for publica- 
tion. Sections 107 and 108 represent the result of delicate compromises worked 
out by a number of groups, and if they are not tampered with, they will meet the 
"fair use" needs of educators and librarians. If broadened to allow uncontrolled 
and unrestricted use of copyrighted materials, they will discourage authors, 
writers, and editors. 

2. It is essential that we encourage, sustain, and reward the competitive inter- 
play of ideas. If broader exemptions were to be added to Sections 107 and 108, 
creative initiative would be stifled. The ultimate sufferer would be the intellec- 
tual and imaginative life of the community. 

In short, we believe Sections 107 and 108 of H.R. 2223 and S. 22 should be 
adopted without change! 

I would appreciate receiving a copy of your letter. If you wish additional in- 
formation, I will be happy to supply it by return mail. 
With thanks and best wishes, I remain 
Cordially, 

James B. Finn, Ph. D., 

Senior Vice President, 
Research and Development. 

We Avill now stand adjourned. 

[^Vliereupon, at 12 :10 p.m., the subcommittee adjourned, to recon- 
vene at 10 a.m., Thursday, May 15, 1975.] 



COPYRIGHT LAW REVISION 



THURSDAY, MAY 15, 1975 

House of Representatives, 
Subcommittee on Courts, CI^^L Liberties, 

AND THE Administration OF Justice r 

OF the Committee on the Judiciary, 

Washington, D.O. 

The subcommittee met, pursuant to call, at 10 :10 a.m. in room 2226, 
Rayburn House Office Building, Hon. Eobert W. Kastemneier [chair- 
man of the subcommittee] presiding. 

1 Present: Representatives Kastenmeier, Danielson, Drinan, Patti- 
son, Railsback, and Wiggins. 

Also present : Herbert Fuchs and Bruce A. Lehman, counsels ; and 
Tliomas E. Mooney, associate counsel. jj 

]Mr. Kastenmeier. The committee will come to order for the pur- 
pose of continuing the hearings on H.R. 2223, on copyright law 
revision. 

The Chair wishes to express gratitude to the gentleman from Cali- 
fornia, Mr. Danielson, who presided yesterday, while Mr. Wiggins and 
I were at the Rules Committee in connection with getting a bill out of; 
the committee. 

xllso, the Chair would like to say that it continues to be amazed at 
the public interest in this question, as demonstrated by the number 
attending the hearing. I am sorry that everybody cannot be seated. 

This morning, we are interested in the question of educational uses, 
other than public broadcasting. In this connection, we have divided 
this morning's time, more or less, between advocates of educational 
uses — let us call them educators for this simple purpose — and the 
other half, by authors and publishers of materials used by educators. 

I will also suggest that the House is in session; regretfully, we may 
be interrupted for a brief period of time — 10 or 15 minutes — we may 
have to recess for the purpose of making calls to the House for votes 
or otherwise. We apologize, but this is an unusual circumstance, and 
we tnist that all present will bear with us. 

This morning I M'ould like to first greet as witnesses the following : 
Mr. Sheldon Steinbach, staff counsel, American Council on Educa- 
tion, and chairman. Ad Hoc Committee on Copyright Law Revision ; 
Mr. Leo J. Raskind, professor of law, University of Minnesota ; and 
Dr. Howard B. Hitchens, executive director, Association for Educa- 
tional Communications and Technology ; Robert F. Hogan, executive 
secretary. National Council of Teachers of English; Mr. Harry N. 
Rosenfield, counsel. Ad Hoc Committee on Copyright Law Revision — 
and vfho testified, as I recall, extensively in hearings 10 years ago ; and 
Mr. Bernard Freitag, Council Rock High School, New Town, Pa. 

( 267 ) 



268 

He is accompanied by Dr. Harold Wigren, on behalf of the National 
Education Association — and Dr. Wigren is remembered for his testi- 
mony 10 years ago, in more or less the same field. 

Gentlemen, you are all welcome. 

May I, therefore, ask Mr. Steinbach to proceed first. 

TESTIMONY OF SHELDON E. STEINBACH, STATT COUNSEL, AMERI- 
CAN COUNCIL ON EDUCATION; CHAIRMAN, AD HOC COMMITTEE 
ON COPYRIGHT LAW REVISION 

Mr. Steinbach. Mr. Chairman, members of the subcommittee, I am 
Sheldon Elliot Steinbach, staff counsel and assistant director of gov- 
ernmental relations of the American Council on Education. I appear 
before you today, however, representing the Ad Hoc Committee of 
Education Organizations on Copyright Law Revision, a consortium 
covering a wide spectrum of 39 organizations within the educational 
community with interest in the revision of the copyright law. Most 
lespecially, we represent the interests of teachers, professors, school 
and college administrators, subject matter specialists, educational 
broadcasters, librarians, and indirectly, students themselves. A list of 
our members is attached to this statement. In addition, we support the 
testimony given by the library associations yesterday. These groups 
are also members of the ad hoc committee. 

Our testimony today will be presented by four individuals repre- 
senting several organizations within the ad hoc committee. Although 
there is a fundamental ad hoc position, tlie interests of each constituent 
group varies, and as such, they will emphasize in their testimony today 
those matters of greatest concern to them. Furthermore, each group 
under the ad hoc umbrella has reserved the right to determine its own 
posture with regard to particular issues. 

[List of members follows :] 

Ad Hoc Committee on Copyright Law Revision 

Agency for Instructional Television. 
American Association of Colleges for Teacher Education. 
American Association of Community and Junior Colleges. 
American Association of Law Libraries. 
American Association of School Administators. 
American Association of School Librarians. 
American Association of University Women. 
American Council on Education. 
; American Educational Theatre Association, Inc. 
American Library Association. 
Associated Colleges of the Midwest 
Association for Childhood Education International. 
Association for Computing Machinery. 

Association for Educational Comunications and Technology. 
Association of Research Libraries. 
Baltimore County Schools. 
Corporation for Public Broadcasting. 
Council on Library Resources. 
International Reading Association. 
Joint Council on Educational Telecommumcations, Inc. 
Medical Library Association. 
Modern Language Association. 
Music Educators National Conference. 
Music Teachers National Association. 
National Art Education Association. 
National Association of Educational Broadcasters. 



2(39 

National Association of Elementary School Principals. 

National Association of Schools of Music. 

National Catholic Educational Association. 

National Catholic Welfare Conference. 

National Commission for Libraries and Information Science. 

National Contemporary Theatre Conference. 

National Council for the Social Studies, 

National Council of Teachers of English. 

National Education Association of the United States. 

National Public Radio. 

National School Boards Association. 

Public Broadcasting Service. 

Speech Communication Association. 

Observers 

American Association of University Professors. 

American Home Economics Association. 

American Personnel and Guidance Association. 

Association of American Law Schools. 

Association for Supervision and Curriculum Development. 

Federal Communications Commission. 

National Congress of Parents and Teachers. 

Mr. Steinbach. I would like to add that the ad hoc committee will 
not address itself today to the question of instructional broadcasting 
because we have been assured that this matter will be considered at a 
later date, at which time we will be given an opportunity to speak to 
those issues. 

It is my pleasure now to introduce Prof. Leo J. Kaskind, professor 
of law, University of Minnesota, representing the Association of 
American Law Schools, the American Association of University Pro- 
fessors, and the American Council on Education — the Joint Copy- 
right Committee for those three organizations. 

[The prepared statement of Leo J. Kaskind follows:] 

Statement of Leo J. Raskind, Made of Behalf of the Association of Ameri- 
can Law Schools. American Associaton of University Professors, and the 
American Council on Education 

Mr. Chairman and members of the subcommittee, I am Leo J. Raskind, pro- 
fessor of law at the University of Minnesota. I am chairman of the Special Com- 
mittee on Copyright Law of the Association of American Law Schools ; I appear 
here today on behalf of the Association of American Law Schools, the American 
Association of University Professors, and the American Council on Education. 
Among these three organizations, we account for some 6,000 law teachers and 
some 7.5,000 other university professors. The American Council on Education is 
an association of national and reg-ional education organizations and nearly 1,400 
institutions of higher education. 

We strongly urge that the doctrine of fair use be preserved and given formal 
recognition by Congress, both by express statutory provision and by appropriate 
language in the final Committee report. 

Our position is grounded on the Constitutional directive to Congress contained 
in Article I, Section 8, Clause 8, which provides : 

The Congress shall have Power to promote the Progress of Science and useful 
Arts, by securing for Limited Times to Authors and Inventors the exclusive Right 
to their respective Writings and Discoveries. 

The higher education community is the principal institution in our society 
charged with the task of transmitting and advancing knowledge. It is our concern 
with discharging this basic function of teaching and research that moves us to 
ask for an effective statutory expression of the doctrine of fair use. 

In making this proposal, I wish to emphasize that we do not seek to remove 
protected material from the ambit of the Copyright statute. We are neither 
adverse nor hostile to the basic premise that legitimate rights in intellectual 
property merit protection and compensation. Indeed, we accept this premise as 



270 

a matter of principle, as a matter of public policy, as w^ll as a matter of self- 
interest. There are among our membership authors whose works command liigli 
prices in the commercial book market; many of our authors write for technical 
journals without compensation. 

Our main concern is to stress before this Committee the soundness of the tra- 
ditional, judicially constructed doctrine of fair use and to illustrate its instru- 
mental significance in the process of higher education. 

As has been recognized throughout this extended process of revising the Copy- 
right Law, a statutory recognition of the doctrine of fair use is preferable to 
continued reliance upon case law development. As the Senate Report has recently 
put it, ". . . there are few if any judicial guidelines. . . ." bearing directly on 
the usage of teachers and libraries in the educational and research context 
which is our concern. See, S. Rept. No. 93-983, 93rd Cong., 2d Sess. 116 (1974). 
Given the paucity of decided cases in this area, it is necessary to recognize the 
difficulty of leaving the resolution of this important problem solely to the limited 
framework of existing decisions. We urge, therefore, the enactment of § 107, as it 
now appears in H. 2223, 94th Cong., 1st Sess., as supported by adequate legisla- 
tive history. 

The recent decision of the Court of Claims in Williams d Wilkins Co. v. United 
States, 487 F. 2d 1345 (Ct. CI. 1973), aff'd by an equally divided court, 43 U.S.L.W. 
4314 (1975), underscores the significance of the fair use doctrine to the educa- 
tional and research community. By its aflirmance of this Court of Claims opinion, 
the Supreme Court has left the resolution of this problem to the Congress. 

In seeking to have codified the traditional fair use doctrines, adequately sup- 
ported by legislative history, we are moved by the primary importance of the 
availability of copyrighted material to our teaching and research duties. First 
and most basic is the fact that the higher education community on whose belialf 
we appear today, consists of those institutions in our society charged with the 
ultimate task of transmitting and advancing knowledge. I emphasize both re- 
search and teaching; each function is indispensable to and supportive of the 
other. Effective instruction of the next generation of citizens and professionals, 
requires that the current generation of teachers be involved as researchers on the 
frontiers of their own individual subject areas. If the individual teacher is to 
discharge this fundamental research obligation, that teacher must be kept abreast 
of the current developments within a given discipline. This necessarily requires 
the teacher to have available the work product of allied researchers. 

The exponential rate of growth of knowledge expressed in tangible form during 
this generation, requires that this information be available to the teacher and the 
scholar. As the volume of published material has risen, the library budgets of 
colleges and universities are increasingly pressed. The typical library of a law- 
school must expend a substantial portion of its annual budget merely to keep 
current its holdings of state and federal reports as well as statutes, treatises, 
and looseleaf services. 

In its support of higher education, outside its concern with Copyright Law, the 
Congress has recognized this basic financial constraint. Thus, in its 1972 amend- 
ments to the Higher Education Act of 1965 (and related acts). Congress sup- 
ported networks for the shared use of library materials (among other facilities). 
Section 1033(a) of Title 20 U.S.C.A. (1974) provides as follows : 

The Commissioner shall carry out a program of encouraging institutions of 
higher education (including law and other graduate professional schools) to 
share, to the optimal extent through cooperative arrangements, their technical 
and other . . . resources. . . . 

Subsection (b) designates such authorized projects of shared usages as 
follows : 

(1) (A) joint use of facilities such as . . . libraries, including law li- 
braries . . . including joint use of necessary books. . . . 

Against the background of this clear, prior expression favoring shared use, 
we express our concern that § 108 (g) of H.R. 2223 is inconsistent with, and hos- 
tile to, this stated desire of Congress. 

We therefore urge this Committee to delete § 108(g) (1) and (2) from the 
present measure because we believe it improperly limits and is inconsistent with, 
the expression of the fair use doctrine contained in § 107 and the legislative his- 
tory thereto. It is our recommendation that a period be placed after the phrase, 
". . . separate occasions" in the first sentence of § 108(g) and that all language 
subsequent thereto be deleted. 



271 

We oppose the enactment of §108 (g)(1) as presently proposed, because it 
introduces an inarticulate and. troublesome concept of '•concerted reproduction" ; 
we consider the reference to "systematic reproduction" in §10S (g)(2) to be 
equally vague and troublesome. 

It is significant that the Senate Report No. 93-983, 93d Cong., id Sess. 122 
(1974), states of the identical text of § 108(g) which appeared in S. 1361: 

However, neither a statute nor legislative history can specify precisely which 
library photocopying practices constitute the making of "single copies" as dis- 
tinguished from "systematic reproduction." [At p. 122.] 

We urge that the legislative history to § 108 reflect this concern with unduly 
limiting § 107. We object to the examples of ipermissible shared library usage 
under § 108 offered in the above Senate Report, in that they are misleading. To 
the extent that they would guide a court in the interpretation of the phrase 
"systematic reproduction," this statement of legislative intent does so without 
any reflection of the interest of the teacher and scholar to have basic material 
made available. Moreover, the present expre.ssion of legislative purpose under- 
lying § 108 makes no mention of the considerations of the Higher Education Act's 
stated interest in shared usage. 

It would be our preference that the text of the present § 108 be modified as we 
have indicated above and that the legislative history of this provision reflect the 
dual concerns of the teacher and scholar's need for the availability of published 
materials as well as the Education Act's directive for shared usage. It seems 
to us that the examples in the present Senate Report give little if any weight to 
theS'e two basic considerations. 

From the standpoint of the teacher and the researcher, the doctrine of fair use 
must be enacted free of effective limitations on library practices. Availability of 
library materials remains basic both to the teaching and research functions of 
the higher education community. A teacher in a small private or public university 
located in the Southeastern part of the United States, may find that a work 
essential to a current research interest is to be found only at a univer.sity at some 
distance to the Northeast. That teacher may need to obtain only one chapter of 
a book or a faw pages of either a book or a periodical. Having such material 
available is essential to the scholar. Inter-library lending has become a means of 
making this information available. A definition of fair use which left uncertain 
the availability of such material, even if photocopied, would frustrate the pur- 
poses underlying both the fair use doctrine and the fundamental commitment to 
provide and advance knowledge by the university community. 

Accordingly we would request that the legislative history of § 108 (a) through 
(f) clearly state the importance of the availability of library and archival mate- 
rial to the teacher and the scholar. 

Turning to the teaching function, the need for reasonable availability of copy- 
righted material for classroom use is inextricably linked to the needs of the 
scholar. Often a current news item or periodical article will bear directly and 
immediately upon a topic scheduled for classroom discussion the next day. The 
quality of teaching is greatly improved by making available to the students the 
latest commentary about it while they are studying the topic. Denial of availabil- 
ity of such copyrighted material would not serve the interest of copyright pro- 
prietors. Students in the classroom situation are not potential subscribers to the 
Bureau of National Affairs, Antitrust & Trade Regulation Report, for example, 
or to the Prentice-Hall multi-volume Federal Income Tax Service, during their 
tenure as students. Indeed, it is likely that having the benefit of a brief extract 
from one of these services, complete with its full title, will advertise and acquaint 
the student with the utility of these loose-leaf services. 

To deny the classroom teacher the availability of such material will mean 
only that the students will be without such current and timely material. Denial 
of the use of this material will mean simply that the educational process will be 
less well served and the copyright proprietor will be without even the benefit of 
having the availability of this material brought to the attention of students. 

We reiterate that we do not seek the right to engage in multiple copying out 
of the context of research and teaching. We seek only the right of the scholar and 
teacher to have available, subject to the limitations of tlie statutory fair use 
doctrine, such copyrighted material as is germane to research and writing. And 
we seek this availability in the public interest in the promotion and dissemina- 
tion of education and scholarly pursuits. In taking this position, we recognize that 
the effect on the potential market for the copyrighted material, is an appropriate 
factor to be considered in the determination of fair use. We also recognize that 



272 

in the overwhelming proportion of eases, any possible adverse effect on the eco- 
nomic interest of a proprietor will be nil or virtually so. On balance, such use of 
excerpts is likely to stimulate the sales of the material in the long run. 

We should like to draw the Committee's attention to the forthcoming studies 
undertaken through the Copyright Office and the National Commission on Li- 
braries and Information Science, of the library usage of copyrighted materials 
both in the inter-library loan context as well as in meeting requests of scholarly 
and research users. The feasibility of designing a "payments mechanism" for 
such library uses is one aspect of this study. 

It is our concern that a determination of the feasibility of some means of com- 
pensation may serve to vacate the doctrine of fair use. We believe such a con- 
clusion would do great harm to the public interest in the promotion of educa- 
tion and scholarly activities. Moreover, such an outcome would inflict irreparable 
harm on the educational community without conferring a derivative benefit on 
copyright proprietors. 

We thus advocate that the House Report which accompanies this measure, 
be drafted to include an express reference to the effect that the doctrine of fair 
use would be applicable to copyrighted materials which might subsequently be 
designated as compensable, if photocopied for other uses. By clearly establishing 
that teaching and research uses are signifieaut to the doctrine of fair use, subse- 
quent uncertainty as to the treatment of library materials which might require 
compensation if copied for other puri>oses, would be avoided. 

We consider that Chapter 5 of H. 2223 sets out definitions of infringement and 
remedies therefor, which are unduly restrictive of the doctrine of fair use in the 
educational context. 

Accordingly we urge modification of the present measure, as follows. First, we 
urge that § 502(a) be modified by the addition of the following sentence, "No 
temporary or final injunction shall be available against any library or user cov- 
ered by § 108 or § 110." 

In its present form, we believe § 502 ( a ) of the proposed measure would per- 
mit the use of the injunction to undercut the effective access by teachers and 
scholars to the fair use provisions. We would point to the withdrawal by Con- 
gress of injunctive relief against collective organizational activity in the labor 
relations arena by the Norris-LaGuardia Act, 47 Stat. 70 (1932) ; 29 U.S.C.A. 
§ 101 (1973). It is our position that the parallel should carry over here. The sole 
statutory framework controlling labor relations is the Labor Relations statutes 
themselves. We urge that the fair use doctrines of the proposed measure be 
enacted as the sole framework for governing the use of copyrighted materials 
in the educational context by teachers and scholars. 

Secondly, we consider that the damages provision of § 504(c) (2) also en- 
croaches upon the fair use doctrine of § 107. We urge a change in the last sen- 
tence of this provision beginning at line 13 on page 49. In line IS, we would prefer 
that the reference to §107 be deleted in favor of the phrase, "§§107 through 
117." Then we would urge that all language on line 18 after the phrase, "§ 107", 
in the current version, be deleted. In its place we would urge the following final 
language as follows : "there shall be neither statutory damages, nor costs, nor 
attorneys fees." 

TESTIMONY OF LEO J. RASKIND, PROFESSOR OP LAW, UNIVERSITY 
OF MINNESOTA, REPRESENTING THE ASSOCIATION OF AMERI- 
CAN LAW SCHOOLS, THE AMERICAN ASSOCIATION OF UNIVER- 
SITY PROFESSORS, AND THE AMERICAN COUNCIL ON EDUCATION 

Mr. Easkind. As Mr. Steinbach has said, Mr. Chairman and mem- 
bers of the subcommittee, I am professor of law at the University 
of Minnesota. I appear before you today on behalf of these organiza- 
tions: The Association of American Law Schools, the American 
Association of University Professors, and the American Council on 
Education. We account, as a law school association, for some 6,000 law 
teachers. The American Association of University Professors com- 
prises some 75,000 other university professors. The American Council 



273 

on Education is an association of national and regional education 
organizations, and nearly 1,400 institutions of higher education. 

We appear before you because of our concern over the revision of 
the doctrine of fair use in relation to our function. May I draw to 
your attention, on page 2 of my statement, to the second paragraph: 
we note above the constitutional directive contained in article I, sec- 
tion 8, clause 8, of Congress' concern in this area of assuring to authors 
and others the rights to their writings. 

As the higher education community, we are the principal institution 
concerned in this society with the task of transmitting and advancing 
knowledge. It is for that use that we deem the problem of fair use of 
copyrighted material as crucial to the discharge of this function. 

As a classroom teacher with some 20 years' experience in law schools 
and departments of economics, I am here to assert to you that without 
the doctrine of fair use, adequately described in the statute, and 
supported by articulate legislative history, what we do would be 
greatly impeded without any derivative benefit to publishers and 
others. 

We use this material — and examples of our use suggests that the 
students, who are the ultimate consumers of our concern as teachers, 
are not, at the time that they are students, potential subscribers to 
the journals for which protection is sought. Many of the journals — 
Time magazine, for example — recognize the students' status by offer- 
ing student subscriptions. Many learned journals offer subscriptions. 
We are only asking through the doctrine of fair use, as researchers 
and scholars, to advance Imowledge by having made available to us, 
in the library context, materials which our libraries do not have, 
no matter how good they are. The University of Minnesota has a 
fine law library, but we do not have everything. On occasion it is 
necessary for me, if I am writing an article, to have information from 
other libraries. That is the main nub of our concern with the doctrine 
of fair use. We think it is crucial for the discharge of our teaching 
and research. We do not see that it infringes on the economic rights 
of others. 

I draw your attention, on page 2, in the third paragraph, that we 
expressly recognize that we do not seek to have removed from cop;^- 
right protection basic material under the statute. We accept this 
premise as a matter of principle and a matter of public policy and 
a matter of self-interest. As lawyers, we recognize case law and I draw 
your attention, now, to the ne"xt-to-the-last paragraph on page 2 — 
that the existing state of case law in this area isnot articulate, suflS- 
ciently articulate, to deal with fair use and describe it. 

Therefore, we urge that this revision process produce a statutory 
doctrine of fair use and it be described by legislative history that 
will aid the interpretation of it. 

I point out to you further— I will not read this statement; I will 
summarize it and make myself available to your questions — ^that 
Congress has, itself, as I pomt out on the bottom of page 3, enacted 
legislation suggesting such shared usaffe and recognizing that, as 
researchers, our libraries do not have adequate resources and cannot 
have adequate resources for every library to have a total collection 
of all the material that is needed for teaching and research. 



274 

I draw your attention to Congress' joint- and shared-use provisions 
in the Higher Education Act, section 1033. 

Against this background, we have reviewed the proposed H.E. 
2223 and found, as was pointed out to you yesterday, that, for example, 
section 108(g) trenches and undermines the interpretation of section 
107 that we would seek. The details of that, I leave to my statement. 

I would draw your attention now to page 6 of my statement, and 
to the second paragraph; the first and second paragraphs. 

Our position is that to deny the classroom teacher the availability 
of such copyrighted material, in the context of teaching and research, 
would be to make the teaching and research process less fruitful, less 
meaningful and less important to scholars; and to do so would not 
benefit the economic interest of copyrights. We would simply do with- 
out, if it were necessarj^, if we could not have access to this material. 

We reiterate, as I say in the second paragraph on page 6, we do 
not seek the right to engage in multiple copying outside the context 
of research and teaching. We seek only the right of the scholar and 
teacher to have available subject matter, subject to the limitations 
of the statutory doctrine of fair use. 

I will close now, and make myself available to your questions. 

]Mr. Kastexmeier. Unless members are strongly disposed to do so, 
I would urge they defer questions until each of the witnesses has 
concluded; then you may ask questions of any of the witnesses who 
have testified. 

Mr. Steinbacii. I next would like to introduce Bernard J. Freitag, 
Council Rock High School, New Town, Pa., on behalf of the National 
Education Association; accompanied by Dr. Harold E. Wigren. 

[The prepared statement of the National Education Association 
follows :] 

Statement of James A. Harris, President, National Education Association 

I am James A. Harris, President of the National Education Association. The 
NEA represents almost 1.7 million teachers in every state across the nation and 
is the largest professional association in the United States. Its members are 
active at all levels of education from early childhood through postseeondary and 
adult. Thus, our interests cover the vphole spectrum of educational programs. We 
appreciate the opportunity to present our views regarding the need to reform 
copyright law and retain certain positive aspects of the present law, and to 
comment on H.R. 2223. 

The National Education Association is in favor of reform of the U.S. Copy- 
right Law of 1009, but NEA will not support a law which deprives educators of 
rights derived through long-established practice and which denies teachers and 
students the right of reasonable access to both print and non-print materials for 
purposes of teaching, scholarship, and research. 

The NEA therefore opposes H.R. 2223 in its present form. It is a regressive bill 
that curtails or repeals existing rights for education — rights which have been 
established through the years. We object to H.R. 2223 on a number of grounds. 

(A) The language of H.R. 2223 severely curtails the appUcaMlity of the "not- 
for-profif concept in the present law and substitutes restrictive language that is 
not acceptable in meeting the needs of education consumers. Under the not-for- 
profit principle, a distinction is made between commercial and noncommercial 
uses of materials — a distinction which we feel is valid and defensible and which 
should be preserved in the new law. Educational users need special protection 
over and above that provided commercial users because they have a public 
responsibility for teaching the children entrusted to them. They work for people — 
not for profit. They do not use materials for their own gain but for the benefit of 
the children of all of our citizens, including those of authors and publishers. 



275 

Teachers therefore need the assurance that the present law's not-for-profit 
principle, granting special exemptions for nonprofit uses of copyrighted materials, 
will become part of the new law. 

Section 110(1) of H.R. 2223 limits permissible uses of copyrighted materials to 
face-to-face classroom teaching situations and would rule out closed-circuit in- 
school uses as well as uses over dial- or remote-access system in schools, all of 
which are designed to bring materials to learners rather than transport learners 
to materials. Section 110(2) would restrict the transmission of instructional 
television programs to "reception in classrooms or similar places normally de- 
voted to instruction"' and would rule out the use of such programs in open learn- 
ing situations in community store front learning centers or for high school or 
postsecondary formal viewing situations in dormitories or at home. Education is 
rapidly moving in the direction of providing many alternatives and options in 
learning wherein school is becoming a concept rather than a place. 

(B) The bill also fails to clarify the meaning of "fair use" as applied to the 
uses of instructional materials hy teachers and students. The recent Supreme 
Court decision in the Williams & Wilkins case validates our position that fair 
use is unreliable at best and is, in the words of the Court of Claims, an "amor- 
phous doctrine." The bill leaves it in that status. If eight Justices of the Supreme 
Court are unable to reach agreement on whether a given use of a work is a fair 
use. how can one expect a non-jurist to know? The language and rationale are 
just as applicable against teachers and schools as against libraries. 

The NEA does not condone "under-the-table" uses. It simply wants teachers 
to have reasonable certainty that a given use of copyrighted work is permis- 
sible so that they won't be afraid to use a wide variety of materials and 
resoufces in the classroom. 

The bill further fails to recognize custom and practice in education as a 
proper basis for "fair iise," as was decided in the Williams & Wilkins case. 
For many years teachers have been accustomed to certain classroom uses of 
materials being unchallenged or unquestioned. For example : 

A class is having difficulty undefstanding symbolism in literature, and the 
class text does not go far enough in its explanation. The teacher therefore makes 
multiple copies of a short poem or a short essay (from another book) that 
Avould help the class imderstand the concept. 

A foreign language teacher tapes a portion of a modem French poem and 
asks students to verbalize the recor'ded portion and then tape it so they can see 
the improvement of their accent. 

An economics teacher reproduces 30 copies of graphs and chart;s from the 
Wall Street Journal to study the stock market. 

They consequently have assumed that such nses were legitimate. We argue 
that custom can become law when it isn't questioned! This is particularly 
true in cases where the law is ambiguous, as in the case of the fair use doc- 
trine, where long-established and non-contested custom and practice has in 
fact established a meaning for the statutes. 

In this regard, the XEA is also concerned the bill still places the burden 
of proof on the classroom teacher to prove that he or she has not infringed 
copyright. The NEA believes strongly that this burden of proof should be 
shifted to the alleger of the infringement, who has all the data involved in 
all the criteria for fair* \ise which are specified in Section 107. 

(C) This legislation further reduces accessibility now permitted through 
the non-renewal of copyrights after 28 years. It does this by eliminating the 
renewal requirement and by providing for dui'ation of life plus 50 years. This 
is a curtailment of education's present rights of access because it unduly 
extends copyright monopoly from "28 years plus a 28-year renewal period" to 
approximately 75 years. Copyright Office records show that approximately 85 
percent of copyrighted works have not been renewed after the initial 28-year 
period, but have passed instead into the public domain. The unwarranted 
extension of copyright in H.R. 2223 would protect the author's or creator's 
Tieirs more than it would the author or creator himself or herself. We ask, 
therefore, why the principle of free access to information so essential to a 
free society should be sacrificed, especially when the author or creator him- 
self or herself has not seen fit to renew the copyright. Many teachers who are 
also authors tell us that they are as much — or even more — interested in seeing 
their works used and their ideas disseminated as they are in receiving re- 
muneration each time their works are used. The profit motive is not the only 
motive that prompts an author or other creator to pr'oduce. There is also the 



276 

satisfaction that comes from getting one's ideas into the open for discussion 
and debate, with the hope of finally seeing them adopted and thereby creating 
a better life for others who follow. 

In summary, the NEA will not be able to support a bill unless it — > 

Retains and clarifies an overall not-for-profit concept for educational, schol- 
arly, and research uses and copying, whether couched as a limited educational 
exemption or in some other suitable comprehensive form ; 

Clarifies the meaning of fair use as applied to teachers and learners ; 

Shifts the burden of proof from the teacher to the alleger of the infringement. 

NEA therefore urges the adoption of language by this committee that en- 
compasses the above-stated concepts and makes copyright reform meaningful 
for the teachers, scholars, researchers, authors, and publishers who create, 
transmit, and perpetuate our heritage for future generations. 

TESTIMONY OF BERNARD J. FREITAG, COUNCIL ROCK HIGH 
SCHOOL, NEW TOWN, PA., ACCOMPANIED BY HAROLD E. WIGREN, 
ON BEHALF OF THE NATIONAL EDUCATION ASSOCIATION 

Mr. Freitag. Mr. Chairman, members of the subcommittee, I am 
Bernard Freitag, teacher of German and foreign language department 
chairman at the Council Rock High School, New Town, Pa. 

I am appearing on behalf of President James A. Harris, President 
of the National Education Association. 

With your approval, I am skipping the fii-st two paragraphs. I now 
request that the entire statement appear in the record. 

The NEA opposes H.E. 2223 in its present form. It is a regressive 
bill that curtails or repeals existing rights for education — rights 
which have been established through the years. We object to H.R. 
2223 on a number of grounds. 

(A) The language of PI.R, 2223 severely curtails the applicability 
of the not-for-profit concept in the present law and substitutes re- 
strictive language that is not acceptable in meeting the needs of 
educational consumers. Under the not-for-profit principle, a dis- 
tinction is made between commercial and noncommercial uses of 
materials — a distinction which we feel is valid and defensible and 
which should be preserved in the new law. Educational users need 
special protection over and above that provided commercial users 
because they have a public responsibility for teaching the children 
entrusted to them. 

They work for people, not for profit. They do not use materials 
for their own gain, but for the benefit of the children of all of our 
citizens, including those of authors and publishers. Teachers there- 
fore need the assurance that the present laAv's not-for-profit principle, 
granting special exemj^tions for nonprofit uses of copyrighted ma- 
terials, will become part of the new law. 

Section 110(1) of H.R. 2223 limits permissible uses of copyrighted 
materials to face-to-face classroom teaching situations and Avould 
rule out closed-circuit in-school uses as well as uses over dial- or 
remote-access systems in schools, all of which are designed to bring 
materials to learners rather than transport learners to materials. 
Section 110(2) would restrict the transmission of instructional tele- 
vision programs to recejDtion in classrooms or similar places normally 
devoted to instruction and would rule out the use of such programs 
in open learning situations in community storefront learning centers 
or for high school or postsecondary formal viewing situations in 



277 

dormitories or at home. Education is rapidly moving in the direction 
of providing many alternatives and options to learning wherein 
school is becoming a concept rather than a place. 

(B) The bill also fails to clarify the meaning of fair use as applied 
to the uses of instructional materials by teachers and students. The 
recent Supreme Court decision in the Williams <& Wilkins case 
validates our position that fair use is unreliable at best and is, in the 
words of the Court of Claims, an amorphous doctrine. The bill leaves 
it in that status. If eight Justices of the Supreme Court are unable 
to reach agreement on whether a given use of a work is a fair use, 
how can one expect a non jurist to know? The language and rationale 
are just as applicable against teachers and schools as against libraries. 

The NEA does not condone "under the table" uses. It simply wants 
teachers to have reasonable certainty that a given use of copyrighted 
work is permissible so that they will not be afraid to use a wide variety 
of materials and resources in the classroom. 

The bill further fails to recognize custom and practice in education 
as a proper basis for fair use, as was decided in the WilliaTns c& 
Wilkins case. For many years, teachers have been accustomed to cer- 
tain classroom uses of materials being unchallenged or unquestioned. 
For example : A class is having difficulty understanding symbolism in 
literature, and the class text does not go far enough in its explanation. 
The teacher therefore makes multiple copies of a short poem or a 
short essay — from another book — ^that would help the class understand 
the concept. 

Allow me to give some personal examples : 

Teachers in my department make synchronized tape presentations 
for classroom use. The basis of those slide tape presentations are, by 
and large, their own materials : Pictures taken on their own trips. How- 
ever, some specific items may not be available to the teacher, because 
you need special permission to get access to the area, or perhaps the 
pictures taken by the teacher did not turn out quite as well as could 
be desired. In such an instance, the teacher may prefer to take a 
picture from the available magazine, make a slide of it, incorporate it 
right into the slide tape program. 

Another example, dealing with foreign exchange values, dealing 
with the currency of a given country : On the day that that topic may 
come up, the teacher would perhaps make copies, 30 copies, of the 
foreign exchange rates of the previous day in order to help the chil- 
dren make the decision on what the daily rate concerning the story at 
hand, or topic at hand, would be for, say, marks, shillings, or Swiss 
francs. 

Teachers, consequently, have assumed that such uses were legitimate. 
We argue that custom can become law when it is not questioned. This 
is particularly true in cases where the law is ambiguous, as in the case 
of the fair use doctrine, where long-established and noncontested 
custom and practice has in fact established a meaning for the statutes. 

In this regard, the NEA is also concerned that the bill still places 
the burden of proof on the classroom teacher to prove that he or she 
has not infringed copvright. The NEA believes strongly that this 
burden of proof should be shifted to the alleger of the infringement, 
who has all the data involved in all the criteria for fair use which are 
specified in section 107. 



278 

(C) This legislation further reduces accessibility now permitted 
through the nonrenewal of copyrights after 28 years. It does this by 
eliminating the renewal requirement and by providing for duration of 
life i^lus 50 years. This is a curtailment of education's present rights 
of access because it unduly extends copyright monopoly from 28 years 
plus a 28-year renewal period to approximately 75 years. Copyright 
Office records show that approximately 85 percent of copyrighted 
works have not been renewed after the initial 28-year period, but have 
passed instead into the public domain. The unwarranted extension of 
copyright in H.R. 2223 would protect the author's or creator s heirs 
more than it would the author or creator himself or herself. We ask^ 
therefore, why the principle of free access to information so essential 
to a free society should be sacrificed, especially when the author or 
creator himself or herself has not seen fit to renew the copj^right. Many 
teachers who are also authois tell us that they are as much — or even 
more — interested in seeing their works used and their ideas dissem- 
inated as they are in receiving remuneration each time their works are 
used. The profit motive is not the only motive that prompts an author 
or other creator to produce. There is also the satisfaction that comes 
from getting one's ideas into the open for discussion and debate, with 
the hope of finally seeing them adopted and thereby creating a better 
life for others who follow. 

In summary, the NEA will not be able to support a bill unless it 
(1) retains and clarifies an overall not-for-profit concept for educa- 
tional, scholarly, and research uses and copying, whether couched as a 
limited educational exemption or in some other suitable comprehen- 
sive form; (2) clarifies the meaning of fair use as applied to teachers 
and learners; and (3) shifts the burden of proof from the teacher to 
the alleger of the infringement. 

NEA therefore urges the adoption of language b}^ this committee 
that encompasses the above-stated concepts and makes copyright re- 
form meaningful for the teachers, scholars, researchers, authors, and 
publishers who create, transmit, and perpetuate our heritage for future- 
generations. 

Mr. Chairman, I would like to submit for the record the ad hoc 
committee's proposal on the exemption. 

Mr. IvASTENMEiER. Witliout objectiou, that proposal will be received 
and be made part of the record. 

[The material referred to follows :] 

Ad Hoc Committee's Proposal for Limited Edttcationai, Exemption; Limita- 
tions ON Exclusive Rights : Reproduction for Teaching, Scholarship and 
Research 

Notwithstandin;? other provisions of this Act, nonprofit use of a portion of a 
copyrighted work for noncommercial teaching, scholarship and research is not an 
infringement of copyright. 

For purposes of this section : 

(1) "Use" shall mean reproduction, copying and recording: storage and re-^ 
trieval by automatic systems capable of storing, processing, retrieving, or trans- 
ferring information or in conjunction with any similar device, machine or process ; 

(2) "Portion" shall mean brief excerpts (which are not substantial in length- 
in proportion to their source) from copyrighted works, except that it shall also 
include (a) the whole of short literary, pictorial and graphic works; (b) entire- 
M^orks reproduced for storage in automatic systems capable of storing, processing, 
retrieving, or transferring information or in conjunction with any similar device^ 
machine or process, provided that 



279 

(i) A method of recording retrieval of tlie stored information is established 
at the time of reproduction for storage, and 

(ii) The rules otherwise applicable under law to copyrighted worlis shall 
apply to informtion retrieved from such systems ; 

(c) Recording and retransmission of broadcasts within five school days after 
the recorded broadcast ; provided that such recording is immediately destroyed 
after such 5-day period and that such retransmission is limited to immediate 
viewing in schools and colleges. 

Provided that "portion" shall not include works which are 

(a) Originally consumable upon use, such as workbook exercises, problems, 
or standardized tests and the answer sheets for such tests ; 

(b) Used for the purpose of compilation within the provisions of Section 
103(a). 

Mr. Steinbacii. I would next like to introduce Dr. Howard B. 
Hitchens, executive director, Association for Educational Commu- 
nications and Technology. 

[The prepared statement of Howard B. Hitchens follows :] 

Statement of Howard B. Hitchens, Executive Director, Association for 
Educational Communications & Technology 

The Association for Educational Communications and Technology represents 
eight thousand educators whose professional commitment is directed at finding 
technological solutions for the wide range of educational problems. It is im- 
portant to note here that we regard technology as far more than a collection 
of educational machines and materials. Technology represents a systematic 
approach to practical problems that emphasize the application of relevant 
researcli. Professionals in my field occupy any number of roles — whether 
ifs directing media programs ; developing specific instructional materials for 
classroom or individual use; assisting teachers or others in selecting mate- 
rials to meet a specific educational objective ; evaluating materials ; identify- 
ing long-range educational objectives and developing long-range plans to meet 
these objectives. Our members with this wide variety of jobs are employed in 
schools and colleges; in the Armed Forces and industry, and in museums, 
libraries aiid hospitals throughout the country. 

Because they are so involved in the use of technology and modern commu- 
nications, AECT members have run head-on into the 1909 copyright law which 
provides few answers for them in liow they can use copyrighted materials. 
And the problem becomes more difficult as media professionals find themselves 
placed increasingly in the role of "copyright expert" for their institution. Be- 
cause media professionals play such a vital role in education planning and 
materials selection, school administrators are turning to them to answer the 
complex copyright questions that arise daily in modern educational settings. 

So AECT, as an association, is vitally concerned with the future of the bill 
you are considering today. We have spent much time and energy trying to 
determine the needs of education in relation to a new copyright law, but have 
come to realize that we cannot look at the needs of education in isolation. 
Since we are dependent to a great extent on the output of producers of edu- 
cation materials, we must take their needs into consideration. 

There is little doubt that the success of each group — educators and pro- 
ducers — depends upon the support of the other. If the educators do not utilize 
instructional materials, the producers surely cannot remain in business. Tlie 
teacher, media professional, and the librarian create markets for an author's 
work and give them visibility. Likewise, in this day of individualized instruc- 
tion, the open classroom, ungraded schools, and student self-evaluation, the 
successful educator— teacher, librarian, curriculum developer — wants to utilize 
a wide range of learning resources. Certainly, when producers and users can 
act in concert, the student reaps tlie benefits. 

In considei-iug the needs of both sides — educators and producers — AECT 
has adopted a position relative to copyright that we feel serves both groups. 
AECT endorses with one exception the fair use provisions outlined in Section 
107 and the accompanying legislative history. The full text of our position 
paper follows. Particular attention should be paid to the third and fourth 
paragraphs, which deal with the issue of "fair use." 



280 

[H.R. 2223] 

Copyright Law Revision : A Position Paper by The Association fob 
Educational Communications and Technology 

The members of the Association for Educational Communications and Tech- 
nology (AECT) believe that technology is an integral part of the teaching- 
learning process and helps to maximize the outcomes of interaction between 
teacher and pupil. 

Regulations governing United States Copyright were originally developed 
to promote the public welfare and encourage authorship by giving authors 
certain controls over theii' work. It follows that revisions in Title 17 of the 
United States Code (Copyrights) should maintain the balance between pro- 
viding for the compensation of authors and insuring that information remains 
available to the public. Some of the revisions proposed in S. 22 and H.R. 2223 
lose sight of this balance between user and producer. 

AECT endorses the criteria to be used in the determination of "fair use" 
as contained in Section 107 of the proposed bill : 

Section 107. Limitations on exclusive rights : Fair use 

* * * the fair use of a copyrighted work, including such use by repro- 
duction in copies or phonorecords, or by any other means specified by 
(Section 106), for purposes such as criticism, comment, news reporting, 
scholarship, or research, is not an infringement of copyright. In deter- 
mining whether the use made of a work in any particular case is fair use 
the factors to be considered shall include : 

(1) The purpose and character of the use ; 

(2) The nature of the copyrighted work ; 

(3) The amount and substantiality of the portion used in relation to 
the copyrighted work as a whole ; and 

(4) The effect of the use upon the potential market for or value of the 
copyrighted work. 

However, we propose that the concept of "fair use" should apply equally to the 
classroom teacher and media professional — including specialists in audiovisual 
and library resources. Media personnel are becoming increasingly important mem- 
bers of educational planning teams and must have the assurance that they may 
assist classroom teachers in the selection of daily instructional materials as well 
as with long range curriculum development. Classroom teachers do not always 
operate "individually and at (their) own volition." The fact that the media pro- 
fessional makes use of advance planning and has knowledge aforethought of the 
materials he prepares for the teacher should not invalidate the application of the 
"fair use" principle. 

Concerning the use of copyrighted works in conjunction with television, AECT 
proposes that "fair use," as it has been outlined above, should apply to educa- 
tional/instructional broadcast or closed-circuit transmission in a non-profit edu- 
cational institution, but not to commercial broadcasting. 

Once the doctrine of "fair use" has been established in the revised law, negotia- 
tions should be conducted between the proprietor and user prior to any use of 
copyrighted materials that goes beyond that doctrine. We believe that the enact- 
ment of the "fair use" concept into law prior to negotiations will guard against the 
erosion of the concept. Generally, a reasonable fee should be paid for uses that 
go beyond "fair use," but such fee arrangement should not delay or impede the 
use of the materials. Producers are urged to give free access (no-cost contracts) 
whenever possible. 

We agree with the Ad Hoc Committee of Educational Organizations and Insti- 
tutions on Copyright Law Revision that duration of copyright should provide 
for an initial period of twenty-eight years, followed by a renewal period of 
forty-eight years, whereas the proposed bill sets duration at the "life of the 
author plus fifty years." It seems reasonable that provisions should be made to 
permit those materials which the copyright holder has no interest in protecting 
after the initial period to pass into the public domain. 

Regarding the input of copyrighted materials into computers or other storage 
devices by non-profit educational institutions, we agree with the Ad Hoc Com- 
mittee that the bill should clearly state that until the proposed National Commis- 
sion on New Technological Uses of Copyrighted Works has completed its study, 
such input should not be considered infringement. The proposed bill states only 
that ". . . (Section 117) does not afford to the owner of copyright in a work any 



281 

greater or lesser rights with respect to the use of the work in conjunction ^Yith 
automatic systems . . ." 

A new copyright law that both users and producers can view as equitable 
depends upon the mutual understanding of each other's needs and the ability to 
effectively work out the differences. We will participate in the continuing dialogue 
with the Educational Media Producers Council and similar interest groups to 
establish mutually acceptable guidelines regarding the boundaries of "fair use," 
and reasonable fees to be paid for uses beyond "fair use." This dialogue will be 
especially important in the area of storage, retrieval, and/or transmission of 
materials during the time period prior to the issuance of the report of the 
National Commission on New Technological Uses of Copyrighted Works. 

We feel that the above modifications of S. 22 and H.R. 2223 are needed to insure 
that the revised law assists rather than hinders teachers and media specialists 
in their v,"ork. 

Our major concern with fair use is that in studying the legislative history of 
the doctrine, fair use does not seem to apply equally to media professionals as 
to teachers. The previous House and Senate reports identify '•spontaneity" of the 
use as an important determinant as to whether a use is fair or not. Fair use 
is extended to a classroom teacher who "acting individually and at his own- voli- 
tion makes one or more copies for temporary use by himself or his pupils in the 
classroom." However, classroom teachers do not always act individually or at 
their own volition. They are frequently assisted by media professionals with the 
selection of daily instructional materials as well as long range curriculum de- 
velopment. The fact that a media professional is frequently not classified as a 
"classroom teacher" and is sometimes even classified as "administration" should 
not prevent him from continuing his role in the instructional process. We are not 
siif/ocsting that any rights beyond "fair use" te extended to media professionals, 
(inhj that they be alloived as much freedom as other education professionals. 
We are currently working with others interested in this problem and will present 
alternative language to this subcommittee in the near future. 

Even though wesupport the enactment of Section 107 with suggested changes, 
we realize that it will not solve the daily dilemmas faced by media professionals, 
teachers, and librarians. AUDIOVISUAL INSTRUCTION, a magazine published 
by my association, features a monthly column entitled "Copyright Today" that 
demonstrates the confusion over the bounds of fair use. The column (several 
reprints are attached) features copyright questions posed by readers with answers 
suggested by copyright exi^erts, usually including at least one educator and one 
producer. As you can see from the examples, there are frequently as many answers 
to a given question as there are copyright experts. 

Take the following question from the November 1974 issue of Audiovisual 
Instruction : 

Question. Two teachers in this district are preparing audio tutorial packages 
for the fifth grade botany unit. They found five pictures they need in a color 
film owned by the district. They want to make slide copies of the five frames. 
Two copies of each slide is required. Would this be a violation of the copyright 
law? 

There are two opinions as to the legality of this action provided in the article — 
one by an educator, the other by a representative of the producers. The educator 
felt the situation cited may be beyond fair use because more than one copy 
would be made and the copying would be done by someone (the media profes- 
sional) other than a classroom teacher. The producers' representative states 
that the situation would fall within "fair use." 

As I said we realize the enactment of Section 107 will not solve our problems. 
Even with the guidelines provided in that Section it is still diflicult to deter- 
mine what is fair use and what is not. And if an educator is not able to deter- 
mine if the proposed use is fair and feels that permission to copy should be 
obtained in order to remain safely within the bounds of the law, how does he 
or she get permission from a publisher or producer to use the material? 

Requesting permission to use copyrighted materials is currently a long and 
frequently tedious process for educators. An attached article entitled "Copy- 
right As It Affects Instructional Development" (Audiovisual Instruc- 
tion. December 1974) demonstrates the problems of contacting numerous 
producers with no predetermined procedures. Perhaps this problem could be 
solved by establishment of a clearinghouse either governmental or privately 
operated. Certainly this would make it easier for an educator if he or she 
has to contact only one source for permission rather than trying to deal with 

57-786— 76— pt. 1 19 



282 

numerous producers all Avith different procedures. But even a clearinghouse 
arrangement will still result in much time spent in waiting for reply. 

We feel this delay, even if it is only (ideally) a week or so, might be detri- 
mental to the teaching/learning process. It doesn't allow the education profes- 
sional to take advantage of the "teachable moment." For example, on the day 
following a speech by a noted individual, a teacher may want to use the copy 
of the speech that appears in the local paper for reproduction and distribution 
to a speech class for critique. Clearly, if the teacher had to wait several weeks 
for permission to use the text, the impact of involving students in current 
events would be lost. So in many instances, some means other than a clearing- 
house must be used. 

AECT has spent many hours working with producers in an attempt to work 
out guidelines that would assist educators in upholding the copyright law. 
We have come increasingly to the conclusion that the best means of solving 
the problem is by developing voluntary licensing agreements between educators 
and producers. Such agreements would allow a pre-determined amount of copy- 
ing, kind of copying, or maybe even unlimited copying either for no charge or 
for a pre-determined fee. Such an agreement would set the bounds of fair 
use in advance and would also allow educators to take advantage of the "teach- 
able moment." 

We are not asking you, the Congress, to legislate a licensing agreement. It 
would be almost impossible to include every possible type of necessary agree- 
ment in legislation. We think we as educators must take the responsibility to 
work with producers of materials to develop such agreement. AECT has had 
and will continue to have dialogue with producers of materials in an attempt 
to satisfy the needs of both groups. We are asking only support and encourage- 
ment from the Congress to both sides to sit down and develop licensing 
agreements. 

The AECT position which has been presented in this testimony has been well 
received by both educators and materials producers. Representatives of both 
these communities viewed the position as a realistic step toward resolving the 
issue of defining the limits of fair use. The statement is viewed by members 
of each group as offering protection to educators that is not offensive to the 
producers. 

We think the incorporation of the AECT position into H.R. 2223 and its 
legislative history is essential to the development of a new copyright law 
that is equitable to educators and creators of materials alike. 

I wish to thank the Subcommittee for this opportunity to present our views. 
I only hope we can impress upon you that we are as concerned as you are with 
the necessity for a new copyright law that will allow us as education profes- 
sionals to continue the improvement of education through the application of 
new technology and communications. 

[Reprinted from Audiovisual Instruction, published by the Association for Educational 
Communications and Technology, November 1974] 

Copyright Today 
(By Jerome K. Miller*) 

This column is open to all readers of Audiovisual Instruction. News items 
and questions about copyright which are of general interest will be included 
as space permits. The identity of individuals submitting questions to this 
column will be held in the strictest confidence. Please send all news items 
and questions to Jerome K. Miller, Chairman, AECT Copyright Committee, 
1025 Adams Circle, No. 2B, Boulder, Colorado 80303. It is impossible for the 
editor to respond directly to questions about copyright. 

COPYEIGHT BILL IN THE SENATE 

Preceding consideration of the Copyright Revision Bill (S. 1361) by the full 
Senate, it was considered and approved by the Senate Judiciary and Commerce 
Committees. The reports from these Committees (S. Rpt. #93-983 from the 
Judiciary Committee, and S. Rept. #93-1035 from the Commerce Committee) 

♦Jerome K. Miller is assistant professor of Instructional media, Central Washington 
State College, Ellensburg. He is currently on leave to pursue doctoral studies at the 
University of Colorado. 



283 

are lielpful in uuderstanding the Congressional intent behind the bill. Copies 
of the reports are available, free of charge, from the Senate Documents Room, 
U.S. Capitol, Washington, D.C. 20510. Please include a self-addressed label with 
your request. Your Senator can also assist you in obtaining copies of the report. 
The text of the Senate bill is included in the report. 

Educators will be especially interested in the bill's definition of "fair use" 
copying. The bill defines it to include: 1) the purpose and character of the use; 
2) the nature of the copyrighted work; 3) the amount and substantiality of 
the portion used in relation to the copyrighted work as a whole; and 4) the 
effect of the use upon the potential market for or value of the copyrighted 
work. The accompanying Judiciary Committee report states : "The fair use 
doctrine in the case of classroom copying would apply primarily to the 
situation of a teacher who, acting individually and at his own volition, makes 
one or more copies for temporary iise by himself and his pupils in the class- 
room. A different result is indicated where the copying was done by the edu- 
cational institution, school system or larger unit or where copying was 
required or suggested by the school administration, either in special instances 
or as part of a general plan." 

AECT has opposed this interpretation and proposes that "fair use" should 
apply equally to the classroom teacher and media professional. AECT has also 
urged that the "fair use" principle should apply both to the selection and prep- 
aration of daily instructional materials as well as with long-range curriculum 
development. 

Even if S. 13G1 is approved by the Senate in the near future, there is little 
chance that the House will begin consideration of copyright revision until next 
year. However, any bill approved by one House of Congress this year could carry 
considerable weight in future consideration of the subject. 

QUESTIONS & ANSWERS 

Question. Two teachers in this district are preparing audio tutorial packages 
for a fifth grade botany unit. They found five pictures they need in a color film 
owned by the district. They want to make slide copies of the five frames, two 
copies of each slide are required. Would this be a violation of the copyright law? 

Answer 1 : If the "color film owned by the district" is a commercial copy- 
righted product, this could be interpreted as a violation unless permission were 
sought in advance from the copyright holder. Ownership of the prints by the 
district does not automatically include duplication rights. The danger points 
in this case which could be interpreted as a violation of fair use are: 1) the 
creation of more than one copy, and 2) by someone other than the classroom 
teacher. 

Eugene H. White, 
Director of Audio-Visual Services, Los Angeles City Scliools. 

Answer 2 : In this situation there is illustrated a fairly good example of a 
practice falling within the doctrine of fair use. Taking into consideration the 
particular use to be made of the individual film frames, and the number of 
frames actually being copied. EMPC feels that this ought to be defined as fair 
use. The danger in this practice, however, could result if multiple copies of 
the frames are then reproduced for use in the classroom which will utilize the 
materials. 

Ivan R. Bender, 
Chairman, Copyright Committee, Educational Media Producers Council. 

Question. One of our teachers recently asked the district IMC staff to make 
30 copies of a chapter of a book in the school library. The chapter describes 
the impeachment of President Andrew Johnson and was needed for a current 
events class. We were assured that the materials would only be used once. Is this 
a violation of the copyright law, and would it be a violation under the pro- 
posed law? 

Answer 1 : In this situation fair use would not apply because of the fact that 
30 copies are being made of the chapter from this book. Multiple copying, even 
if it involves only excerpts from a work, is generally regarded as falling outside 
the scope of fair use. The question of the number of times that these copies would 
be used would relate only to the question of the amount of damages which might 
be granted to the copyright holder. 

Ivan R. Bender, 
Chairman, Copyright Committee, Educational Media Producers Council. 



284 

Answer 2 : This should not be considered fair use, and thus ^YOuld be a viohition 




not be considered a precedent in this case, since the decision there favored gov- 
ernmental libraries making large numbers of copies of copyrighted material. 
Under Sec. 108 of the proposed legislation, it is legal for a library (which would 
be interpreted as to include IMCs) "to produce no more than one copy ... of a 
work , . ." ; therefore, such reproduction would be illegal under the proposed law 

as well. „ 

Harold E. Hill, 

Professor of Communication, Head, Radio-TV -Film, University of Colorado. 

Answer 3 : The length of the copied chapter in relation to the entire book is an 
important criterion in determining fair use. But basically, the making of multiple 
copies of any length without permission of the copyright owner exceeds fair use 
and is thus a violation. If the teacher had computed the real cost of making 
photocopies, including the administrative time involved and the cost of paper, 
he (or she) probably would have concluded that it was cheaper to order reprints 
from the publishers. 

Susan Engelhaet, 
Staff Director, Copyright & International Trade, 

Association of American Publishers, Inc. 

[Reprinted from Audiovisual Instruction, published by the Association for Educational 
Communications and Teclinology, December 1974] 

Copyright Today — Copyright As It Affects Instructional Development 

(Jeanne Masson Douglas*) 

{Ms. Douglas' article appears here this month because of its appropriateness 
to the December theme, "Instructional Developmeiit." The regular "Copyright 
Today" column will resume icith the January issue.) 

One of the major responsibilities of the instructional developer is that of mak- 
ing instructional materials available in an appropriate medium. Materials are 
often not useful in their existing forms ; they may have to be altered to fit 
specific course objectives, to accommodate a preferred instructional mode such 
as independent study or inter-active instruction, or simply to provide multiple 
copies. Whatever the reasons for wanting to modify commercial instructional 
media, the copyright issue is unavoidable, and obtaining copyright clearances 
often becomes the responsibility of the instructional developer. 

Having been involved for the last five years in instructional development ac- 
tivities, either in a management role or as a consultant. I have accumulated 
considerable data related to acquiring copyright clearances. During this time, 
I have communicated with several publishers, producers, chairmen of national 
associations and organizations, and even with pi-esidents of private corporations 
in attempts to obtain permissions to reproduce their materials. The results have 
been interesting, and at times, surprising. 

In my early attempts as a copyright agent, I made use of a form letter. I soon 
learned that this technique was getting only delayed responses or no response 
at all. An original letter for each transaction was found to be much more success- 
ful. Every letter had two things in common, however : the specification that the 
media we produced would be used only within our own institution, and that the 
materials would be used by our students only. (Sometimes phone calls have been 
necessary to prompt a response but, since I never make a duplication permission 
agreement except in writing, a written document is ultimately needed.) To dem- 
onstrate good faith in complying with the "fair use" principle, I always explain 
the purpose and effect of the use of the reproduced material, the quantity needed, 
and the nature of the reproduction. 

My respondents have been of an amazing variety. At times, I have been fortu- 
nate to deal with someone known as the Rights and Permissions Officer or the 
Contract and Copyright Officer, or even the Product Development Director. On 
other occasio ns, I have been directed to the Public Relations Officer or the 

n«^i^^"?f^ Masson Douglas is director. Educational Resources Center, Reading Area 
Community College, Reading, Pennsylvania. 



285 

Editor-in-Cliief. Often, it has been necessary to negotiate with the Vice-President, 
Executive vice-president, or the President of a firm. On one occasion, the pro- 
ducer concerned would not communicate except through his lawyer. .,, . 

Vnother variation which keeps things interesting is what I have decided to 
call pasSng-the-buck''. For example, a New Jersey distributor referred me t.> a 
Salifonita producer who referred me to a New York photographer. And a mid- 
westei" publisher referred me to the copyright holder, who happened to be based 
Tn Japan (Actually, this latter transaction took less time, in terms of number 
of mail davs. than manv more localized arrangements.) 

"s vaded as the respondents are the responses themselves. These have ranged 
fror^ he law firm's "no . . . and furthermore . . ." to the following: "I am happy 
ti gmnt vou permission ... I will also be pleased to supply lists of other materials 
that you may wish to consider for y(mr programs . . ." and "I appreciate your 
courtesy in i^equesting permission. Thank you for asking. I ^^''^^ ,T'%lTVn^]?cl^ 
in designing and developing improvements in your curriculum. One Producer 
scoldedt via telephone, '"Why did y.ui ask? Why didn't you just go down be^hind 
the barn and do it?" In extreme contrast to this attitude, however, is that of the 
publisher who sends along a printed copy of the company's policy statement re- 
lated to copyright. One New York film producer responded to my letter with a 
telephone call, explaining that he was willing to grant permission verbally but 
Avould not "put it in writing because of possible complications. Again in contrast, 
a New Jersev publisher responded with a Permission to Reprint form which 1 
had to complete in triplicate. An Illinois media producer responded. Enclosed 
is our duplication policy statement to accommodate those making legitimate re- 
quests and to inform those duplicating illegally that a policy does exist. Dealers 
are asked to make positive identification of known illegal duplicators. 

A review of some specific examples of clearance policies is helpful, lor the 
sake of clarity, I will categorize by media type. 

PRINT MATERIALS 

Print > Print 

A New York publisher granted permission to make 500 copies of a short story 
for a $12 fee and use of a credit line on each copy. 

A New Jersey publisher granted permission to reproduce a series of tests. 

A Colorado publisher would not grant permission to duplicate an article because 
reprints were available at 50^ each. 

Print '> Is: on-Print 

An 'Ohio publisher granted permission to copy pages from a dictionary and a 

thesaurus as slides. , , .„ . i.- t 

A New York pulilisher granted permission to convert all the illustrations ot a 

hook to slides and the text to tape. 

An Illinois manufacturer granted permission to copy as slides all the illustra- 
tions in a textbook. 

A New Jersey manufacturer granted permission to copy all the illustrations 

of three of their books. 

A California manufacturer provided permission, or sources of permission, by 
chapter and page of every illustration in their book, a listing consisting of five 
pages of single-spaced typing. 

A national organization granted permission to convert all the illustrations in 
their book to slides. 

NON-PRINT MATERIALS — AUDIO 

DiKc > Cassette 

A New York producer's vice-president would not grant permission. In response 
to a later inquiry, the company's vice-president for copyright granted permission. 

A California producer permitted six copies each of 10 recordings. 

A New York producer would not grant permission for reasons of "deprivation 
of royalty." 

An Illinois producer allowed two copies only for independent study use. 

A Colorado producer allowed one copy only, and that only to protect the origiiial. 

Reel > Cassette 

A New Y'^ork producer granted permission for a fir.st copy, and charged 40 per- 
cent of the initial cost for each additional copy. 

A Massachusetts producer of language tapes granted permission to convert an 
entire course from reel to cassette. 



286 

Cassette > Cassette 

A New York scieuce materials producer and a New York language materials 
producer allowed the making of one copy to protect the master tape. 

An Illinois producer refused permission to duplicate, but agreed to replace 
damaged tapes for $1.00 

A university's audiovisual production facility allowed one copy of each cas- 
sette purchased. 

NON-PKINT MATERIALS — VISUAL 

Filmstrip > Slides 

A New York producer granted permission to cut filmstrip and mount the 
frames as slides, but would not grant permission to duplicate photographically. 

A New York producer would not grant permission to duplicate, but offered to 
produce slides from their filmstrips for $20 per set above the cost of the film- 
strips. 

A California producer replied that they could not grant permission because the 
material (regretfully) was in the public domain. 

A California college audiovisual production facility would not grant permission, 

A Massachusetts producer granted permission to make two slides only from 
each frame in a filmstrip. 

Slides > Slides 

Illinois, New York, New Jersey, and California producers would not grant 
permission. One producer did offer to provide multiple copies of sets at reduced 
cost. 

A New York producer agreed to grant permission at 40 percent of the list price 
of the sets. 

NON-PRINT MATERIALS — PROGRAMS 

Filmstrip /Record > Slide/Cassette 

A New York producer replied, "Since it is not for commercial use, do what is 
best for your purpose." 

Slide/ Cassette "> Slide/ Cassette 

A California producer said "yes," no conditions. 

NON-PRINT MATERIALS — TELEVISION 

CBS Affiliate Station 

Program Director replied, "Go ahead (videotaping off-the-tube, prime-time) 
since it is for one-time use and erase the tape after that use." 

PBS Affiliate Station 

Program Director replied, "Yes. We can't give you permission, but neither can 
we deny you the right to do it (!) O.K., for one-time use." 

In many cases, I have found that permission depends on the type of media 
being converted. A New York producer, for example, would not allow the dupli- 
cation of slides, but agreed to converting disc recordings and text to cassette 
recordings. In other cases, permission would be granted if you were willing to 
pay the price. In one case, the fee was equal to the cost of the material itself ; in 
another, fees were set at $100 per tape, $100 per filmstrip, and $50 per booklet. 
Sometimes, on the other hand, agreements seemed to be more reasonable, such as 
granting permission to convert transparencies to slides and text to cassette for 
an entire program, the only condition being that you adopt their text and cite 
publication information in your reproduction. 

It is not easy to draw simple conclusions from these many experiences. Every 
situation has its unique set of circumstances, and constraints, and will differ as 
the educational institutions and the commercial suppliers differ. Every transac- 
tion must be worked out formallv and diplomatically. It often becomes the 
responsibilitv of the instructional developer to assure that this is done. Faculty 
who do not fully understand the complexities of the problem should be provided 
with inservice programs or other means of becoming aware: the instructional 
develoner will need all the sympathy he can £ret from his colleagues. Meantime, 
more publishers and producers are mnking their media available in a variety 
of formats. This fnct, and new copyright legislation, should result in a less 
complicated and more sntisfying task for the instructional developer charged 
with acquiring copyright clearances. 



287 

[Reprinted from Audiovisual Instruction, published by tbe Association for Educational 
Communications and Technology, February 1975] 

CoPYKiGHT Today 

(Jerome K. Miller) 

Authors have become increasingly concerned about the large-scale copying of 
*:heir works, prompting them to place conspicuous copyright warnings in their 
books. Author-illustrator Jan Adkins recently added the following warning to 
one of his books : 

We have gone to considerable diflBculty and expense to assemble a staff of 
necromancers, sorcerers, shamans, conjurers, and lawyers to visit nettlesome 
and mystifying discomforts on any ninny who endeavors to reproduce or trans- 
mit this book in any form or by any means, electronic or mechanical, including 
information storage and retrieval systems without permission from the pub- 
lisher. Watch yourself ! 

Toolchcst. (Walker, 1973). 

QUESTIONS AND ANSWERS 

Question: Our school has some old sound filmstrips with the soundtrack on 
phonograph records. We would like to copy the sound onto cassettes and destroy 
the records. Is it necessary to seek permission from each producer to do this? 
If so, how can we get permission from producers who have gone out of business? 

Answer 1 : This situation frequently arises in discussions relative to copyright. 
The fact that filmstrips are "old" does not mean that the copyrights on those old 
filmstrips have expired. The present term of copyright is for an initial period 
of 28 years, and if renewed in the 28th year, copyright can be extended for an 
additional 28 years. The fact that a producer allows the filmstrips to go out of 
print does not detract from the copyright protection afforded them. It must be 
kept in mind that even if a producer allows materials to go out of print it does 
not mean that the producer has no need for those materials. For instance, pic- 
tures from an old filmstrip which are no longer being distributed might be 
utilized in a revision of that work. It would be advisable to contact the pro- 
ducer and seek permission to transfer the sound recordings from discs to tapes. 
Of course, if the producer has gone out of business, such an attempt would be 
quite difficult unless Ihe copyrights have been assigned to another organization. 
Even then, that particular information might not be readily available. If an 
honest attempt is made to contact the producer and nothing results from it, 
it would seem as though the school has done all which could reasonably be 
expected of it. 

Ivan R. Bendeb, 
Chairman, Copyright Committee. 
Educational Media Producers Council. 

Answer 2 : Many of the producers of sound filmstrips have been very coopera- 
tive in permitting their customers to convert filmstrip soundtracks from phono- 
graph records to cassettes. If the producer has an established policy on this 
matter, his or her sales representative should be able to answer your question. 
If there is any doubt about this matter, though, be sure to write for permission 
before copying. 

JKM. 

Question: A few years ago the faculty of this vocational-technical school 
developed an unusual course for our advanced students. We delayed introducing 
it until we found a suitable textbook. Last winter a new text was published 
which we considered appropriate to the course. We ordered 60 copies in March 
for August delivery ; the publisher confirmed the order. Two weeks before school 
started, the publisher advised that the text was out of stock and would be ready 
in several months. 

Since a textbook is essential for this course and no other was available, we 
either had to drop the course after 55 students had enrolled, or reproduce the 
book in the school print shop. We chose to honor our commitment to our students. 
We made offset plates from a sample copy of the book and several teachers 
worked over the Labor Day weekend to print and bind 60 copies. They were sold 
through the school bookstore for the cost of the materials. 



288 

When the publisher's representative learned of our action, he purchased a <?opy 
of the book we printed and advised that we might be sued for copyright viola- 
tion. We aren't sure where we stand in relation to the law, but we feel morally 
justified in our action. Please comment on this case. 

Answer 1 : Because of potential litigation in this matter, the only conclusive 
decision would have to be a legal decision. However, using the doctrine of "fair 
use" as a guide, an informal opinion would be that an illegal act has taken 
place for these reasons: 1) The publisher's (proprietor's) permission was not 
obtained in advance. 2) Multiple copies were made. 3) The concept of "amount 
and substantiality" was clearly violated in that the entire work was reproduced. 
4) The sales market for the work was somewhat affected. 

Eugene H. White, 
Director of Audio-Visual Services, 

Los Angeles City Schools. 

Answer 2 : The action taken by this school was clearly in violation of copy- 
right law, both existing and proposed. While the concern over the late delivery 
of the textbooks was undex-standable, there was another approach that might 
have satisfied both the need for the materials and the observance of the law. 
A phone call to the publisher, giving an explanation of the circumstances, would 
probably have resulted in permission to duplicate either the first few chapters 
or the entire work for a moderate fee. Publishers generally are anxious to rectify 
any inconvenience caused by late deliveries or out-of-stock orders. The problem 
is that no one thinks to ask tbem. The paper shortage, energy crisis, and slow 
delivery schedules will probably cause more problems of this type in the months 
to come. It would be well for educators to remember that there is an alternative 
to unauthorized duplication — ask for permission. 

Susan Engelhart, 
Staff Director, Copyright and International Trade, 

Association of American Publishers, Inc. 

QUESTIONS NEEDED 

The editor needs additional questions to be answered in this column. The 
identity of individuals submitting questions will be held in the strictest con- 
fidence. Please send all correspondence to Jerome K. Miller, Chairman, AECT 
Copyright Committee, 1025 Adams Circle, Apt, 2B, Boulder, Colorado 80303 

TESTIMONY OF HOWARD B. HITCHENS, EXECUTIVE DIRECTOR, 
ASSOCIATION FOR EDUCATIONAL COMMUNICATIONS AND 
TECHNOLOGY 

Mr. Kitchens. Thank you for the opportunity, Mr. Chairman. 

I represent a relatively small organization but, we think, a key one 
in our concern with the copyright law that is under consideration. We 
are about 8,000 strong, and we are technologists, if you will. We are 
people who are concerned at all levels of education with the intro- 
duction of technology into the educational and instructional process. 
We regard technology, however, as something more than a collection 
of educational machines and materials. We believe it represents a 
systematic approach to practical problems that emphasize the appli- 
cation of relevant research in order to seek problem solutions. 

The professional in our field can be foimd in the elementary and 
secondary schools, in the colleges and universities, in training insti- 
tutions of all kinds. He is a guy who is perhaps developing instruc- 
tional materials for accomplishing specific educational objectives for 
use by teachers in classroom settings or other settings. He may be 
producing instructional programs over, you might call it, a mass com- 
munications medium : Television production, this type of thing. He 
may be found assisting teachers in selecting materials to meet objec- 



289 

tives or evaluating materials or even identifying the long-range ob- 
jectives, tliemselves. 

Our people are quite concerned with two points in the copyright 
legislation. First, we have been dealing a great deal with the issue 
of fair use and how we can take the needs of both the producer of 
instructional materials and the consumer or user of instructional 
materials into account. 

"We feel that we find ourselves in the role of copyright experts quite 
frequently, in the institutional setting, because we are either a cus- 
todian of, or have responsibilities for, the logistical management of 
instructional materials. 

We think that the teachers and media professionals and the librar- 
ians create markets for an author's work and give them visibility. 
Also, in this day of individualized instruction, the so-called open 
classroom, ungraded schools, and student self-evaluation, the success- 
ful educator has to have available a wide range of learning resources 
in order to be effective. 

Therefore, we haA'e adopted a position on what can be considered 
a relatively small point, which we think serves both groups, the pro- 
ducers and the users. That, in regard to section 107, is that we are 
concerned with spontaneity. We feel that the preAdous House and 
Senate reports which identified spontaneity as an important deter- 
minant as to whether or not a use is fair is unfortunate. We feel that 
the classroom teachers do not — we know they do not — always act 
individually or at their own volition. We are in an age of specializa- 
tion now in education and in instruction management just as we are 
in other segments of our society. Frequently, a media professional 
is called upon to assist in that decisionmaking process. A teacher does 
not make the decision alone. A media professional is not classified as 
a classroom teacher, and sometimes is classified as an administrator. 
We feel this should not prevent him from playing his role in the 
effective management of instruction. We are not suggesting a different 
fair use to be extended to media professionals; we are suggesting that 
they be allowed at least as much freedom as the teachers and other 
edur'ational professionals. 

We are currently working with other interested groups on this 
problem and will be happy to try to come up with some language to 
substitute for that which is currently in the legislation. 

The other issue I would like to address is the general question of 
how we resolve tlie argument between producers and consumers. 

We have spent many hours working witli producers in an attempt 
to work out guidelines that would assist educators in holding up the 
current copyright law and looking at the laws that are pending. We 
have come to the conclusion tliat the best means to solve the problem 
is developing voluntary licensing agreements between educators and 
producers. Such agreements would allow a predetermined amount of 
copying, a kind of copying, or maybe unlimited copying, either for 
no charge or a predetermined fee. Such an agreement would set the 
bounds of fair use in advance and would also allow educators to take 
advantage of the so-called teachable moment. 

We are not asking you to establish in legislation a licensing agree- 
ment. We think that should be voluntary. We are asking for your 



290 

support and encouragement to both sides to sit down and develop 
licensing agreements. 

The remainder of my testimony is submitted, of course, for the 
record. I hope it would be entered into the record, Mr. Chairman. 

Mr. Steinbach. Mr. Chairman, I next would like to introduce our 
final witness, Eobert F. Hogan, executive secretary of the National 
Council of Teachers of English. 

[The prepared statement of JVIr. Hogan follows :] 

Statement of Robert F. Hogan, Executive Seceetary, National Council 

OF Teachers of English 

Mr. Chairman and members of the subcommittee: I am Robert F. Hogan, 
Executive Secretary of the National Council of Teachers of English. The National 
Council is the world's largest independent organization for teachers of one sub- 
ject. Its 115 thousand individual, associate, and institutional members and sub- 
scribers are drawn from all levels of education, elementary through graduate 
school. For them, I express our appreciation for this opportunity to submit 
written and oral testimony to the subcommittee. 

Although a substantial majority of this membership consists of classroom 
teachers, it also includes authors, editors, and publishers. The Council itself is a 
publisher of seven periodicals and about fifteen books and monographs each year, 
all protected by copyright. I stress those two facts, on the chance that someone 
might construe the remarks that follow as threatening to the interests of authors, 
publishers, and others who have a genuine stake in reasonable protection through 
copyright. The Council sliares that stake. 

What chiefly concerns us is, while ensuring the maintenance of reasonable 
copyright protection, to recognize fully the needs of more than a million ele- 
mentary classroom teachers who spend up to half their teaching time and effort 
on language arts and reading, 175 thousand secondary school teachers of English, 
and, most of all, the 60 million children they teach. 

I must confess that I prepared these remarks with a sense of deja vu. I've 
been here before ; we've all been here before — teachers, publishers, authors, legis- 
lators, and legal coimsels for all four groups. We have been locked into this con- 
frontation for nearly as long as the United States was involved in Indochina. I 
can't be alone in thinking it's time we brought it to conclusion and in hoping 
we can. 

But deja vu isn't quite an appropriate phrase. It captures the feeling but fails 
to describe the situation. It seems as though we've been here before, but wliere 
we are now is not, on close inspection, where we were in 1963, when the Ad Hoe 
Committee first gathered its strength. 

Tlie feeling of deja vu began with the first three paragraphs — lifted from my 
statement in 1973 before the Subcommittee on Patents, Trademarks, and Copy- 
rights of the Senate Judiciary Committee. There was no need to alter them. 
Nothing substantive had changed. Their substance is not greatly different from 
introductory statements by NCTE representatives at hearings of the Subcom- 
mittee of the House Committee on the Judiciary at hearings in late spring and 
summer, 1965. 

Nevertheless, since 1965 we've gained ground and we've lost ground. Among 
the gains I would count the reduction in minimal statutory damages for an 
innocent infringement ; and the impulse in the proposed statute, as well as in 
the accompanying report, to clarify the meaning of "fair use." The 1965 House 
Bill was tlie first effort to provide legislative sanction to that judicial principle, 
but it was in such skeletal oiiMine as to scare anyone who trembles before 
skeletons : "Notwithstanding the provisions of section 106, the fair use of a copy- 
righted work is not an infringement of copyright" is the entire bone structure 
of that skeleton. I'm aware of how much the writers of that House Bill felt 
they were doing ; Init how little they actually did is revealed in their summar.v 
statement of "Highlights of the 1965 Bill for General Revision of the U.S. Copy- 
right Law." Of fair use they say, "The bill would add a provision to the statute 
specifically recognizing the doctrine of fair use, but without any attempt to 
indicate the application or define the scope of the doctrine." 

Granting the landmark nature of this step, I still had the feeling of the World 
War II Navy enlisted men v\'ho heard this announcement : "There will be liberty 



291 

for the liberty sections, but no liberty boat." To paraphrase for those who may 
have missed the "enlisted" experience of World War II, "those who are entitled 
to, may go ashore on liberty ; but there is no way to get there." The present bill 
goes considerably farther : 

§ 107. Limitations on exclusive rights : Fair use 

Notwithstanding the provisions of section 106, the fair use of a copyrighted 
work, including such use by reproduction in copies or phonorecords or by 
any other means specified by that section, for purposes such as criticism, 
comment, news reporting, teaching, scholarship, or research, is not an in- 
fringement of copyright. In determining whether the use made of a work 
in any particular case is a fair use the factoi-s to be considered shall include : 

( 1 ) The purpose and character of the use ; 

(2) The nature of the copyrighted work ; 

(3) The amount and substantiality of the portion used in relation to the 
copyrighted work as a whole ; and 

(4) The effect of the use upon the potential market for or value of the 
copyrighted work. 

But while we were gaining ground in the statute, we were losing ground in the 
accompanying report. During the 1965 hearings, among those who testified on 
behalf of authors and publishers were two witnesses who presented interlocking 
testimony : John Hersey, on behalf of the Authors League of America, and Dan 
Lacy, managing director of the American Book Publishers Council. 

Mr. Hersey referred to a hypothetical teacher in a small town in "Montana 
or Maine or Georgia" who wanted to share with her students Robert Frost's 
"Stopping By Woods on a Snowy Evening." Since copies were not otherwise 
available, she made a set for her class. Mr. Hersey went on to say that this was 
nothing new and that he saw nothing wrong with it. He added, "If there is a 
suit in the future, I can also assert to you that it will not be because of violation 
of what we would consider to be fair use, but only because of some abuse." 
Obviously, Mr. Hersey thought the actions of that teacher were not an abuse. 

Later, Mr. Lacy stated, 

"In the whole history of copyright law, in all the undoubtedly hundreds of 
millions of uses of copyrighted material by hundreds of thousands of teachers 
over many decades, I think it is true, and this is based on rather careful study, 
that no teacher has ever been sued by a publisher for copyright infringement. 
'Fair use' covers an enormous area. Beyond fair use, there has existed a broad 
margin of safety in which the common good sense of publishers and good faith 
and good will of teachers have prevented copyright from being any limiting or 
oppressive factor. 

"Teachers would continue under the new law to enjoy all the freedom under 
the old and have that freedom buttressed and reinforced by the specific au- 
thorization by statute of the doctrine of 'fair use' * * *. The present doctrine 
of fair use is, let the Montana school teacher go unimpeded without opening the 
door to the major abuse." 

Mr. Lacy's concern was that to include in the legislation anything more would 
either restrict some teachers from making legitimate uses of materials or open 
the doors for others to make illegitimate uses. However, in the House report to 
accompany H.R. 4347 under the discussion of "Multiple copies of excerpts" the 
following statement appears : 

"In general, and assuming the other necessary factors are present, the com- 
mittee agrees that the copying for classroom purposes of extracts or portions, 
which are not self-contained and which are relatively 'not substantial in length' 
when compared to the larger, self-contained work from which they are taken, 
should be considered fair use. Depending on the circumstances, the same may 
also be true of very short self-contained works such as a four-line poem, a map 
in a newspaper. * * *" 

This statement seems to be much more restrictive than the spirit of the 
remarks by Mr. Hersey and Mr. Lacy. I refer specifically to the word very and 
the phrase four-line. Even the example that Mr. Hersey offered and that Mr, 
Lacy picked up, Frost's poem, contained sixteen lines. 

NCTB strongly urges that the following wording be substituted : 

"Depending on the circumstances and in order to protect spontaneous, creative 
teaching, the same would also be true for temporary use of short self-contained 
works such as poems, maps in a newspaper, vocabulary builders from a monthly 
magazine, essays, and short stories. This should not be constnied as permitting 



292 

a teacher to make multiple copies of the same work on a repetitive basis or for 
continued use." 

Please understand that this is not a request for an unlimited hunting license 
for English teachers. Nor is it to say that everything every teacher has done till 
now with copyrighted materials would be adjudged fair use if it came to trial. 
We know there have been abuses and have listed examples in previous testimony. 
If, for example, a school or an entire school system were to manufacture collec- 
tions of poetry for repeated use without securing permission and paying fees, 
I would deemthat not fair and therefore illegal. Similarly, if schools duplicate 
consumable materials specifically intended for classroom use and protected by 
copyright (e.g., answer sheets for published tests or workbook drills), I would 
deem that not fair and therefore illegal. If either such practice came to suit, and 
if I were asked to testify because of my position in NCTE and the expertise 
some might attribute to it, my testimony would be on behalf of the copyright 
holder. 

What we do seek and need is a clearer statement, either in the statute or 
in the accompanying report, reassuring us that in a spontaneous teaching situa- 
tion, we may make for one-time use by our students in our classrooms, multiple 
copies of self-contained short works of literature. 

In the absence of that assurance, we must either be less creative than we'd 
like to be or depend on the "good will, good sense, and good faith" that Mr. Lacy 
referred to and on the fact that no copyright holder has sued a teacher, so far. 
However, in 1961 the standard copyright notice for one major publisher was, 
"All rights reserved— no part of this book, may be reproduced in any form 
witliout permission in writing from the publisher, except by a reviewer who 
wishes to quote brief passages in connection with a review written for inclusion 
in magazine or newspaper." In 1975 the notice for the same publisher reads, 
"All rights reserved. No part of this book may be reproduced or transmitted in 
any form by any means, electronic or mechanical, including photocopying, record- 
ing, or any information storage and retrieval system, without permission in 
writing from the Publisher." 

Apart from pointing out a much harder line on the part of at least this pub- 
lisher, I am compelled to ask what has happened to even the narrowest con- 
struction of fair use? Beyond that, what happened to "good will, good sense, 
and good faith"? 

I don't mean here to take unfair advantage of Mr. Hersey or Mr. Lacy. I 
don't know of any writers or publishers I respect more. I think my references to 
their statements are accurate and fair to the contexts which suri-ound them. 

But as all those parties with a stake in a new copyright law have expanded 
in number and grouped and regrouped, as lines of special interest have been 
drawn and redrawn, English teachers and, even more, their students, have lo.st — 
particularly if they're restricted to one-time copying of four-line poems, which 
is to say one line less than a single limerick, ten lines less than one sonnet. 

The ironic thing in all this is that ten years of argument over the content and 
substance of a new copyright law may have moved us no closer to a satisfying 
law, but may also have made adversaries of three interdependent groups : 
teachers of language and literature, those who use language best, and those who 
publish the users of language for the teachers. Despite soothing reassurances 
that we are all still friends, English teachers cannot escape observing the erosion 
of relationships, the erosion of the earlier concepts of "good will, good sense, and 
good faith." AVe seek assurance in the statute or in the accompanying report that 
the best and most imaginative among us are not outlaws or bootleggers. 

TESTIMONY OF ROBERT F. HOGAN, EXECUTIVE SECRETARY, 
NATIONAL COUNCIL OF TEACHERS OF ENGLISH 

Mr. HoGAN. Mr. Chairman, members of the subcommittee, my name 
is Robert F, Ho^an, executive secretary of tlie National Council of 
Teachers of English. There is an ironic justice in that, because in my 
written testimony on page 3, it is that the egregious typographical 
error occurs. I would be grateful if you would compensate for my fail- 
ure and make substantially read substantiality; that is what I meant. 

The focus of my attention is fair use, this moniing. We are, of course, 



293 

interested in the entire statute and are pleased to have a seat on the 
ad hoc committee. We think, as classroom teachers of English, we have 
a particular stake in fair use. 

And in my Avritten remarks, I note an erosion of where we were 10 
3'ears ago, from both Mr. Hersey, on behalf of the Authors League, and 
Mr. Lacy, on behalf of the American Book Publishers Council—they 
told us we could do what we were doing all the time ; it was all right. 
They used the example of a teacher who wanted to make a copy of 
Frost's Stopping By Woods on a Snowy Evening. 

Mr. Kastexmeier. I regret very much doing so; I am going to ask 
you to withhold making the balance of your statement. We do have a 
vote on at this very moment. 

Accordingly, the subcommittee will recess for a period of about 10 
to 15 minutes, at which time we will return to Mr. Hogan's statement, 
and then be able to have a colloquy with the rest of the witnesses. We 
will recess until approximately 10 minutes to 11. 

[A brief recess is taken.] 

Mr. Kastenmeier. The commmittee will come to order. 

When we recessed we were about to hear Mr. Robert F. Hogan, exec- 
utive secretary, National Council of Teachers of English. 

Mr. Hogan, have you had an opportunity to reconsider your state- 
ment ? 

Mr. Hogan. Perhaps to shorten it. The nub of it I think is on page 
5, and I am citing there the wording from the 1966 House report. The 
concluding sentence at the top — depending on the circumstances, the 
same may also be true of very short self-contained works, such 
as a four line poem, et cetera. It is the term very short, and the illustra- 
tion of four lines that troubled me — one line less than a limerick ; 10 
lines less than a sonnet. The word "may" is interesting, too. As far as I 
know, based upon Mr. Lacy's testimony, no teacher has ever been tried 
under fair use. What it means I do not know. 

We offered to substitute something like the longer paragraph, about 
a third of the way down the page. 

If I could depart from these remarks entirely. I think through an 
anecdote I probably could tell you more than the prepared remarks 
tell you — I recall a meeting when we were going to Athens, Ga. 
8 years ago. A friend of mine and a stranger got into a cab together, 
and driving into town, after introductions all around, "What do j'ou do 
and where do you do it," there was a lull in the conversation. I said to 
the cab driver, "Tell me about the liquor laws in Athens." He said, 
"This is a dry county. You cannot get a drink any place." Tlien the 
stranger got out of the car. Then he said, "Of course, there are beer 
and wine places around. They are hard to find, but you can get to 
them." The second person got out and I was left alone in the cab. As we 
were pulling up to my motel, he said, "Of course there are bootleggers 
around here to." I said, "Really?" He said, "Yes." I said, "Who would 
know where they are." He said, "Any of the bellhops in the hotel would 
know." As we came to a full stop, he said, "or a cab driver would 
know." 

It seems to me it was remarkable, the balance of forces in Athens, 
Ga.; the fundamentalists wanted a dry county, and they had one. 
The libertarians wanted a drink, and they could get one. Nobody both- 
ered the bootleggers. 



294 

I guess what I would like under statutory protection is more pro- 
tection and higher status than the bootlegger in Athens, Ga. And 
it ought to be statutory protection. 

I dislike disagreeing with the previous speaker. I do not have a great 
deal of faith in voluntary agreements. What we would like is protec- 
tion under the law. 

Thank you. 

Mr. Steinbach. We would be happy to entertain any questions that 
you might have. 

Mr. Kastenmeier. In connection with the remarks just made by Mr. 
Hogan, I think as we had tried to do years ago, we should, whatever 
we finally want the law to state, the statutory language should presume 
enforcement, and resort to what is offered therein. We should not 
write a law which it is anticipated will not be enforced, and which part 
of the defense for it is that there will be forebearance on the part of 
those entitled to the i-ights under the law. 

Rather, we should presume that the law, to the extent that it con- 
tains rights and rights of enforcement will be so enforced. 

I have just a few questions, then I will yield to my colleagues. 

My first question is addressed to Mr. Raskind. I appreciate why you 
oppose the law, at least the bill as it is proposed in your statement. 

In terms of your understanding of what the present law is, case law 
or present statute, do you find that it is acceptable to the educational 
user of copyrighted material, granted the many parts of the law in 
terms of its effect has not been obviously codified or made clear through 
case law ? As you presently understand it, is it acceptable prior to con- 
sidertion of this bill ? 

Mr. Raskind. Mr. Chairman, my answer to that would be as follows. 
My understanding does not comport with much of the understanding 
of peo])le in this room. That is the difficulty. So what I would say, 
the WiUiams <& Wilkms- opinion as affirmed Ijy an equally divided Su- 
preme Court is a starting point. It is the recognition that fair use ex- 
ists in this context. That should be the base line. 

We ought to have a statute that would take away the pressure of this 
varying understanding among the various people in this room. So I, 
as a teacher, if something comes up in the classroom discussion, I might 
find that day or the next day that there is an article in a contemporary 
news magazine, as a colleague of mine did a month ago — he asked me, 
and I said to try to get permission from them. They wrote back and 
said $150. He was going to use it a month away, and it ended up he did 
not use it. The upshot of that is the educational classroom hour then 
was deprived of that material. 

The publisher got zero revenue. If the classroom use had been per- 
mitted, the students would have gotten a photocopy showing that jour- 
nal. They would then have known that the journal contains that mate- 
rial. For students, when they are students of law, materials are expen- 
sive. They would not be able to subscribe to a $200 or a $300 a year serv- 
ice. They do not need it. 

We ask for a statutory definition of fair use that permits what ex- 
ists. It is recognized — WiUiams (& Wilkins — in 1909 it was recognized 
that scho