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not recognize federal involvement and participation in research and publication, in every area of knowledge, and that does not have some provision to protect the rights of authors employed by the federal government by permitting copyright of government publications under special and controlled conditions, will be fair neither to authors nor to our society's need for the widest dissemination of useful knowledge.
From the point of view of the scholar-author, a lack of provision for copyright protection of government publications puts a penalty upon his taking employment with the government, rather than with a university, a research institute, or a private enterprise. From the point of view of the general interest in the dissemination of knowledge, prohibition of copyright in governmental publication places a handicap on the operations of publishers, whether they are non-profit or commercial. Experience has shown that the government itself is an ineffective publisher: it can release a book, a report, or a pamphlet, but it cannot advertise, sell and promote it. Non-governmental professional publishing organizations, commercial or non-profit, are the most effective agencies for achieving proper publication and distribution. They can do so only with the protection for their publishing operations that copyright provides.
In the Association of American University Presses we are thinking primarily of works of scholarship written by government employees or by those supported by federal grant funds in line with or as a by-product of their official duties, that make recognizable contributions to their fields of study. Their authors should enjoy copyright protection for their contributions to scholarship equivalent to that of their fellow scholars outside the federal government. They can do so only if they—and their publishers can be assured copyright protection under controlled conditions.
2. FAIR USE
Sections 107 through 110 of the Bill seem satisfactory as written. These sections deal with the limitations on the exclusive rights of the copyright owner, the right of "fair use," and special privileges given educational and other nonprofit uses of copyright material. They represent a compromise between the rights of the author and the copyright proprietor to enjoy a return on their literary property, on the one hand, and the rights of educational and other nonprofit uses of copyright material. They represent a compromise between the and effort and expenditure. On the whole, the compromise put forward in these sections seems reasonable. Specifically, it is proper that the doctrine of fair use be recognized in the Bill, but that no attempt be made to define it precisely, leaving it to the courts to give it meaning in terms of rapidly changing times. The exemptions granted in Section 9 to the use of non-dramatic literary works for educational, religious and non-profit purposes seem sufficient.
In general, we would observe that it is important now to attempt to foresee the probable effect that new developments in the field of information retrieval are phrase the Bill broadly enough to allow for such developments. We do not likely to have on the distribution of books and other printed material, and to quarrel with the practice of one-copy-per-user whereby a user makes a single copy of a document or portion of a book or periodical in a non-classroom situation and in lieu of notetaking, for this is now a technological fact of life. We do oppose any wider applications of this practice, by whatever individuals or organizations, for profit or not, without the permission of the copyright proprietor. Technological advance is welcome and inevitable—but not at the sacrifice of all rights of the author and the undermining of the economics of the publishing process.
In his supplementary report, Part 6, the Register has stated, “the intention of section 107 is to give statutory affirmation to the present judicial doctrine, not to change it.” We support this view.
3. MANUFACTURING CLAUSE
Chapter 6 of the Bill, the so-called “manufacturing clause,” which denies copyright protection (with some minor exceptions) to books and other printed materials of American authorship manufactured outside the United States, should be eliminated entirely. This has been the unanimous opinion of the members of the Association of American University Presses, recorded at its annual meetings, for a number of years. Most of the associations representing publishers or authors have also gone on record against this clause, as have a number of educational organizations. The Register of Copyrights omitted such a clause in the original draft of the Bill. There is no question that it was first incorporated in copyright law, and has remained there in modified form in the face of repeated efforts to eliminate it, because of pressure from printers. In our view especially in recent years, this pressure has no economic justification and book manufacturers and the printing trades unions would be helped rather than hurt if the clause were completely eliminated. The United States is predominantly a book exporting country and has no need for protection ne field of book manufacture. Many of our university presses export 20% or more of their entire production.
As a part of the copyright law, it is rankly discriminatory against American authors. There is no provision in the copyright law denying copyright protection to films or phonograph records manufactured outside the United States. Only the authors and publishers of books are singled out to jeopardize their permanent property rights for what is essentially a matter for tariff regulation.
If you had designed and built a house for yourself, which required imported materials for its successful completion, you would not object to paying reasonable tariffs on these materials, if they were required to protect American manufacturers. But you would object-strenuously and on principle-if such foreign manufacture threw a cloud on your title to the house you had built. An author's book is the house that he designed and built. The copyright is his title to that house. It is outrageous that such title should be jeopardized for anything other than malfeasance or no feasance on his part.
The Association of American University Presses speaks with special vehemence on the manufacturing clause because its member presses publish the works of many scholars that require complex composition, as in mathematics and foreign languages, in which foreign manufacture does on occasion provide sig. nificant economies. Sometimes such economies make the difference between publication and non-publication. Publications of this character do not bulk large in the total volume of the printing trade, yet they make a significant contribution to the diffusion of knowledge. In stating our objection to the manufacturing clause, we feel that we are arguing for the scholar as well as the scholarly publisher. But above all, we are opposed in principle to the manufacturing clause because, in the field of authorship it qualifies without just cause a right of property that should be held sacred.
THE ASSOCIATION OF AMERICAN UNIVERSITY PRESSES, INC. MEMBER PRESSES
University of Alabama Press, University, Alabama.
McGill University Press, Montreal, Canada.
The first matter is that of Government copyrights. The far-reaching activities of the Federal Government touch every quarter of our lives, and the Federal presses will have a steadily increasing role in the production of knowledge. For example, the proposed National Humanities Foundation will, in its areas of activity, affect the inception and output of scholarly inquiry as the National Science Foundation has done in its field. It is of great importance that the products of Government research be given proper dissemination and a program of Government-controlled copyright is necessary if effective distribution beyond Government channels is to be achieved. Publication by the Government Printing Office is not sufficient, for that outstanding facility is not fully set up to do a publishing job. Only rarely are its publications reviewed in appropriate media or advertised to appropriate audiences. Books issued by the GPO are not listed in the weekly record of the publishing trade magazine, Publishers' Weekly, and their availability is difficult to determine through normal book purchasing channels.
Partnership of Government and the publishers of the country can be achieved if language can be established in the new copyright law permitting the copyrighting of principal Government works and per
mitting nongovernmental professional publishing organizations to achieve additional circulation for those documents, books, and pamphlets concerning those publications. One may ask whether assignment of Government copyright might not be giving monopoly on public property, but I think royalties might be paid to the Government for the right to publish. It is in the public interest that much of the material issued by the Government should be in the public domain. It is equally in the public interest that some of the material produced by the Government be controlled by copyright and made available to customary publishing channels.
I should like now to comment on the fair use section. Senator McCLELLAN. Is that what I was discussing with the previous witness, the fair use clause?
Mr. CARROLL. Yes, sir. I should like to confine my remarks to photocopying
Just as the invention of movable type in the 15th century transformed the multiplication and distribution of the products of man's mind, so does the 20th century copying machinery Transform the dissemination of knowledge. At the present rate of photocopying, it seems as though we shall all soon be ħip deep in copies of one thing or another. There can be no birth control for this kind of reproduction.
Senator McCLELLAN. How did that get into this thing? That is not copyrighted yet.
Mr. CARROLL. It is control at the source of a material,
Senator MCCLELLAN. Neither is that copyrighted, the source of birth control.
Mr. CARROLL. There can be no birth control for this kind of reproduction.
Senator McCLELLAN. OK.
Mr. CARROLL. For the copying machine should be as free as the printing press. However, the copier, as the printer, must recognize the property rights of the creator of the material being reproduced has and must not infringe on these rights or detract from them in any way. Our association supports the present wording of the bill, wherein fair use is not defined. We also recognize the principle of freedom to make one copy of a portion of a book or a periodical or a document in a nonclassroom situation as a substitute from manual notetaking. We believe that the making of multiple copies without authorization, for whatever purpose under whatever auspices, is not fair use. It is proper that the doctrine of fair use be recognized in the bill but that the burden of definition be left to the courts, as is the situation at present.
As you may know, several of the book publishing associations, the American Book Publishers Council and the American Textbook Publishers Institute, are seeking better definitions of certain phrases and statements in this general part of the bill, and we subscribe to their efforts to have a clearer understanding of what is meant by transmit, exhibit, perform, and the like.
The last section on which I should like to comment is the manufacturing clause. The Association of American University Presses has consistently opposed without qualification the inclusion of a manufacturing clause in the new copyright bill since the matter of foreign manufacture is one for tariff regulation and is not only inappropriate
for a law regulating intellectual property, but also indefensible, since it places at a disadvantage American authors whose works are manufactured abroad. I think that there should be no tinkering with the language of the chapter, no trading back and forth of the number of copies which may or may not be imported, no closing of loopholes in the language. I think that this wall, this barrier, should be completely removed. It is an artificial barrier and I think one of the things that may face us if the manufacturing clause is retained is that other countries may impose on our country, which is a major book exporting country, the same kind of manufacturing restrictions dealing with the use of American books in their own countries.
I would like to call to the committee's attention one brief section in my prepared statement dealing with the manufacturing clause.
If you had designed and built a house for yourself, which required imported materials for its successful completion, you would not object to paying reasonable tariffs on these materials, if they were required to protect American manufacturers. But you would object-strenuously and on principle—if such foreign manufacture threw a cloud on your title to the house you had built. An author's book is the house that he designed and built. The copyright is his title to that house. It is outrageous that such title should be jeopardized for anything other than malfeasance or nonfeasance on his part.
Thank you, Mr. Chairman.
With your statement, as with all others, we are going to have to review it and study it. We are kind of hurrying along here to make this record, because we work under such stress in the Congress today, there are so many things that are pressing and require attention that it is just impossible to fully appreciate and understand all of the arguments that are presented to us pro and con on the issues that are involved in some of this highly technical legislation.
Thank you very much, sir.
Senator McCLELLAN. Mr. Feist, I notice you have a prepared statement, a rather lengthy statement. Would you like to insert it in the record and highlight it, or do you want to read it?
STATEMENT OF LEONARD FEIST, CHAIRMAN, LEGISLATIVE COM
MITTEE, MUSIC PUBLISHERS ASSOCIATION OF THE UNITED STATES
Mr. FEIST. I would like to insert it in the record, Mr. Chairman, and to read certain parts and attempt to summarize other parts.
Senator McCLELLAN. The statement will be printed in full in the record, and you are at liberty to select passages from it and read that if you like and comment upon it and fill in anything you think you may have omitted in your statement, or emphasize anything therein you think of special importance and urgency for the committee's consideration.
Mr. FEIST. Thank you, Mr. Chairman.
Mr. Chairman, my name is Leonard Feist. I reside at 180 East 79th Street, New York City, and appear before this committee today as