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account methods of duplication of information which are now in existence, or may later be developed. In order to be able to service the needs of the scientific community by providing information from, and copies of, articles from scientific journals with dispatch, we have recommended the inclusion of language to enable libraries to “store” such articles on tapes in computers and to make available such tapes to other libraries.
We favor the inclusion in the bill of a section on fair use. We agree with the statement in the Report of the Register that it would be "anomalous to have the statute specify the rights of copyright owners in absolute terms without indicating that those rights are subject to the limitation of fair use" (p. 25). Because it would be impracticable to spell out the precise rules for the application of the doctrine of fair use, we favor the approach taken in Section 107 of the bill merely to state that the fair use of a copyrighted work is not an infringement of copyright. Fair use is an equitable doctrine, and the courts should have sufficient margin to apply it as the circumstances of a given case warrant.
We believe that the abstracting or digesting of articles from scientific journals to the extent reasonably necessary to meet the needs of researchers, scientists or scholars would be a fair use. Similarly, reproduction by a teacher of a work to the extent reasonably necessary to illustrate a lesson would also appear to be a fair use. However, because of the generality of the language of Section 107, we believe it desirable that the Committee report accompanying the bill make it clear that such abstracting or digesting of scientific articles, and such reproduction of materials by teachers, would be permissible fair uses. We have singled out abstracting and digesting, and reproduction for classroom lessons as examples of fair use because of the vital importance of the former to scientists and researchers, and of the latter to the education process, and because of the need to dispel any doubts that such uses are fair uses.
With regard to the provisions of the bill on exclusive rights in copyrighted works, we recommend that the so-called “for profit" limitation of the present law be retained. The present law (17 U.S.C. 1 (c), (e)), limits the copyright owner's performance right in nondramatic literary and musical works to public performance “for profit.” The bill, however, would delete the "for profit" limitation, and would declare the performance of a nondramatic literary or musical work, or the exhibition of a work not to constitute an infringement only in the instances set forth in Section 109. The two principal exceptions in Section 109 for educational purposes would authorize such performances and exhibitions in the course of face-to-face teaching activities in a classroom, and in the course of a transmission, if the transmission is made primarily for reception in classrooms and is a regular part of the systematic instructional activities of a nonprofit educational institution. The exception for performances in the course of face-to-face teaching activities would also be applicable to the performance of dramatic works.
In our judgment, deletion of the “for profit” limitation would be injurious both to the development of educational radio and television in communities throughout the country, and to the use of radio and television as pedagogical tools. Instructional programs over educational radio and television are not limited to those transmitted primarily for reception in classrooms. Such programs are frequently designed for reception by students, adults, and shut-ins in homes, places of work, and community centers, as well as in classrooms. The exception in Section 109 (2) would not be applicable to a number of instructional programs which appear on educational radio and television but are not made primarily for classroom reception, such as pre-school children's programs, adult education courses, post-graduate training programs for various professions, vocational training programs, and health education. The bill would also deny the benefits of the “for profit” limitation currently available to programs of a cultural nature which appear on educational radio and television. The value of both the instructional and cultural programs would appear to be beyond question.
Congress has recognized the significance of educational television, both to the community as a whole and as an important new method of teaching. Thus, Title VII of the National Defense Education Act, as amended (20 U.S.C. 541 et seq.) directs the Commissioner of Education to conduct, assist, and foster research and experimentation in the more effective utilization of television and radio for educational purposes, and to disseminate information concerning these new educational media to educational agencies and institutions. Congress also recently enacted a program of Federal matching grants for the construction
of educational television facilities (P.L. 87–447; 47 U.S.C. 390 et seq.). In reporting out S. 205 (which was later enacted as P.L. 87-447), the Conference Report stated :
"Only through the establishment of educational television broadcasting facilities and the activation of noncommercial educational television broadcasting stations can the goal of creating an adequate television system to serve the needs of all the people in the United States be accomplished.” (Rept. No. 1609, 87th Cong., 2d Sess., p. 6.)
The importance of educational radio and television was also recognized in the recently enacted Elementary and Secondary Education Act of 1965 (P.L. 89–10). Section 303(b) (6) of Title III of that Act authorizes grants for “de-. veloping, producing, and transmitting radio and television programs for classrooms and other educational use” as supplementary educational services and activities.
We understand that the deletion of the “for profit” limitation would be particularly burdensome to educational radio and television broadcasters because of the added expense and staff needed to obtain the necessary clearances from copyright owners. Where this burden could not be met, the quality of the programs offered by educational radio and television would necessarily be reduced.
The Register of Copyrights has departed from his original recommendation that the "for profit" limitation be retained (Register's Report, p. 27) because of his belief that retention of this limitation in the light of the growing importance of nonprofit performances, particularly nonprofit broadcasts, would "involve serious dangers to the author's rights" (Supplementary Report, p. 21), We believe, however, that because of the vital role of educational radio and television, the benefit to the public from the retention of the "for profit" limitation would outweigh any danger to the rights of an author. To the extent that there is any conflict between an author's interests and the public interest, we believe that the latter should prevail.
Section 110 of the bill provides that an organization entitled to transmit a performance or exhibition of a copyrighted work to the public may make no more than one copy of the work solely for purposes of the organization's own lawful transmissions or for archival preservation, if the copy is not used for transmission after six months from the date it was first made. The restrictions in this section on the making of “ephemeral recordings” would work a hardship on educational radio and television stations which frequently have occasion to make delayed broadcasts and rebroadcasts. The six month limitation on the transmission of such recordings is unrealistic since educational radio and television stations often rebroadcast previously taped programs for periods beyond six months from the date of recording. The provision limiting an organization to making ephemeral recordings solely for its own transmissions would prevent the exchange of such recordings among educational radio and television stations unless the necessary clearances are obtained from the owners of copyrighted works which appear in such recordings. It is our understanding that many educational radio and television stations rely heavily upon the exchange of such recordings in scheduling programs.
We suggest, therefore, that Section 110 of the bill be amended by deleting the time limitation in which an ephemeral recording may be used for transmission by educational radio and television stations, and by permitting the exchange of such recordings among educational radio and television stations.
In summary, we believe that S. 1006 provides a long overdue revision of the Copyright Law. We recommend the enactment of the bill with the modifications suggested herein.
U.S. DEPARTMENT OF JUSTICE,
Washington, D.C., June 3, 1965.
DEAR SENATOR: This is in response to your request for the views of the Department of Justice on S. 1006 "For the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes."
The bill constitutes a complete rewriting of the Copyright Act of 1909, as amended, title 17, United States Code. Among the more notable revisions which would be effected in existing law, is the change in the present dual systen of protecting works 'under the common law before publication (17 U.S.C. 2), and under the Act after publication (17 U.S.C. 10), in favor of a single Federal statutory system for the protection of all works whether published or unpublished (section 301).
Also, there would be a change in the duration of the copyright period which is now 28 years from the date of first publication with notice, and renewal for an additional 28 years, or a total of 56 years (17 U.S.C. 24). The bill (section 302) would substantially increase the duration of the copyright by providing for a term consisting of the life of the author and 50 years after his death, and for anonymous works and works for hire, a term of 75 years from publication or a term of 100 years from creation, whichever expires first.
Although the bill does not provide for renewal of copyrights, as authorized under existing law, it does provide (section 203) for the termination, by the author or his heirs, of the original transfer of rights at the end of 35 years (or up to 40 years in certain situations).
Another important change which the bill would make in existing law would be the repeal of the present “juke box” exemption. Under existing law (17 U.S.C. 1(e)), the rendition of a musical composition by a coin-operated machine, sometimes called a "juke box,” is not deemed a public performance for profit subjecting the performance to the payment of a royalty, unless an admission fee is charged in the place where such rendition occurs. The bill (section 114) would repeal this exemption and make the owners of such machines subject to the payment of royalties whenever musical compositions are played on the machines.
An additional change which the legislation would make in existing law would be to include sound recordings within the categories of copyrightable works (section 102).
In general, the Department of Justice favors the revision of the Copyright Act as proposed in the bill. Whether the provisions extending copyright protection to sound recordings, increasing the duration of copyrights, and repealing the “juke box” exemption should be enacted, involve questions of policy concerning which the Department prefers to make no recommendation. There are certain provisions of the legislation, however, which we consider objectionable.
Section 4 of the present law (17 U.S.C. 4) uses the language of Article I, section 8, clause 8 of the Constitution by providing that "works for which copyright may be secured * * * shall include all the writings of an author.” Section 5 of the present law (17 U.S.C. 5), which sets forth thirteen classes of copyrightable works, provides that those specified classes "shall not be held to limit the subject matter of copyright as defined in section 4.” In spite of these provisions the courts have held that certain works are not copyrightable even though they would appear to be a "writing of an author" because they are not specifically set forth in one of the classes of section 5.
It is understood that the drafters of the legislation determined to omit the omnibus provision of section 4 in the general revision and to reformulate the categories of copyrightable works in sufficiently broad terms to include all the classes specifically set forth in the present statute. While the language of section 4 of the present law is omitted, section 102 of the bill does not limit coverage to the enumerated categories. Rather, this section in exemplifying works of authorship prefaces the categories set forth by the word "include" which is defined in section 101 as “illustrative and not limitative.” Thus, section 102 of the bill, like the present law; provides an omnibus provision plus a list of classes of copyrightable works. To modify the language of the present act without changing it in substance will in all likelihood cause confusion rather than clarify the situation. It is recommended that the present omnibus provision in section 102—“Works of authorship include the following categories * * *”—be deleted and that if an omnibus provision is found to be necessary, the language of the Constitution—"all writings of an author”—be used.
Section 201 (d) (2) of the bill provides for transfer of a portion of the exclusive rights in a copyright and provides further that the owner of such portion of the rights shall be entitled to all of the protection and remedies accorded to the copyright owner. This would represent a change in case law regarding transfers since the courts have held that a copyright is an indivisible unit and a partial transferee or licensee cannot sue for an infringement of a right transferred to him without joining the owner of the residual rights as a party to the suit.
It is believed that section 201 (d) (2), as presently worded, would create many problems under 28 U.S.C. 1498(b), which provides for suits by copyright owner against the United States in the Court of Claims for the recovery of reasonable and entire compensation for the “eminent domain taking” of the copyright by the United States. This right is similar to that accorded to patent owners under 28 U.S.C. 1498(a). To date, no suit has been filed under 28 U.S.C. 1498 (b).
By analogy to patents, which gives the exclusive right to prevent others from making, using and selling, it has been held that suits against the United States under 28 U.S.C. 1498(a) must be by "the owner” and a mere licensee is not an “owner.” In the leading case of Waterman v. MacKenzie, 138 U.S. 252, 255– 257, the Court listed only three types of owners : namely, the person who, at the time of the alleged infringement, held legal title to the entire patent, or an undivided share of the entire patent, or the entire patent for a specified part of the United States. The transfer of anything less was held to be a license and the licensee could sue only through the licensor.
In the Congressional proceedings on the original Act of June 25, 1910 which became 28 U.S.C. 1498, it was stated that the measure was intended to waive sovereign immunity as to, and provide a remedy for, only the owners of patents, and also that the bill was not intended to permit suits by licensees under the patents (H. Rept. No. 1288, 61st Cong. ; Cong. Rec., June 22, 1910, pp. 8755–8785).
In contrast, if section 201(d) (2) should be enacted in its present form, a transferee of only one of the rights provided by the copyright law could sue the United States in the Court of Claims while a licensee of only one of the rights under a patent could not. It is therefore suggested that section 201(d) (2) be modified by deleting the last sentence of said subsection and substituting the following:
"Except in suits against the United States, the owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title. Suits against the United States can be brought only by the owner of the entire copyright, the owner of an undivided share of the entire copyright, or the owner of the exclusive right under the entire copyright for a specified part of the United States."
Section 203 of the bill 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 35 years from the date of execution of the transfer (up to 40 years in certain situations). Termination is effected by serving a written notice on the transferee at last 2 years but not more than 10 years before the effective date of termination. However, section 203 (b) (2) and parallel section 304 (c) (5) (B), (relating to transfers of copyrights subsisting on the effective date of the legislation), provide that an agreement to transfer rights subsequent to the termination of a prior transfer will not be effective unless made after the effective date of that termination or unless made to the original transferee. We believe the transferee should not be in a preferred position to enter into an agreement for transfer prior to termination of the original transfer. We feel that all potential transferees should have an equal opportunity to enter into such an agreement. It is therefore suggested that subparagraph (2) of section 203(b) and subparagraph (B) of section 304(c) (5) be deleted.
Under the present Act (17 U.S.C. 21) omission of notice on published copies of a work ordinarily places the work in the public domain. However, if such notice is accidentally omitted from a particular copy or copies, copyright is not lost; but innocent infringers who are misled by the accidental omission are not liable for infringement. Under section 404(a) of the bill omission of notice from a relatively small number of copies of a work will not invalidate the copyright whether or not such omission was accidental. Moreover, 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 distributed to the public. As under the present law, innocent infringers who are misled by the omission of notice would not be liable for infringement (section 404 (b)).
We feel that, in the public interest, a copyright should be protected from invalidation only when the failure to provide notice was the result of an accident or mistake, and a small number of copies were distributed to the public. To permit, as proposed in section 404(a) (2), a copyright owner to publish an entire printing of his work without notice and still enforce the copyright would tend to negate the purpose of notice. The fact that innocent infringers would incur no liability would still subject such persons to proving their innocence even where the act of omission regarding notice was deliberate. We also feel that it would be advisable that the words “particular copy or copies”, contained
in the present statute, be used instead of the words “relatively small number" to designate the limits within which notice may be omitted without loss of copyright. It is therefore suggested that section 404(a) be deleted and the following substituted therefor:
“(a) THE EFFECT OF OMISSION ON COPYRIGHT.—The omission of the copyright notice prescribed in sections 401 and 402 from copies or phonorecords publicly distributed by the authority of the copyright owner by accident or mistake shall not invalidate the copyright where the accidental or mistaken omission is from a particular copy or copies or a particular phonorecord or phonorecords distributed to the public."
The first sentence of section 410 of the bill is in accord with section 13 of the Act, (17 U.S.C. 13) in that it provides that no action for infringement of a copyright shall be instituted until registration of the copyright claim is made. The balance of section 410, however, differs from existing law in that it provides that if the required papers for registration have been filed in the Copyright Office and registration has been refused, the applicant may institute an action for infringement. In such case, the Register may, at his option, become a party to the action with respect to the issue of registerability of the copyright claimed.
We question the advisability of permitting an infringement suit where no registration has occurred. To do so would, in all likelihood, lead to many baseless suits brought for harassment purposes. Moreover, the Register of Copyrights need not intervene under the provisions of this section, leaving the defendant to carry the burden. Also, the time, effort and possible costs that the defendant would have to expend would not be outweighed by the remote possibility that in isolated instances a work should have been registered. The judicious actions by the Register of Copyrights in the past have been buttressed by court decisions and little need is seen for change. In addition, it is questionable whether it is a desirable policy to permit the Register of Copyrights to become a party to a copyright infringement suit between private litigants. Accordingly, the Department recommends the deletion of all of section 410 after the first sentence.
The Bureau of the Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration's program. Sincerely,
RAMSEY CLARK, Deputy Attorney General.
DEPARTMENT OF STATE,
Washington, May 20, 1965. Hon. JAMES 0. EASTLAND, Chairman, Committee on the Judiciary, U.S. Senate.
DEAR MR. CHAIRMAN : Thank you for your letter of February 26, 1965 asking for the comments of the Department of State on S. 1006 providing for the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes. The Department appreciates the opportunity to express its views on certain aspects of the proposed legislation. Section 104. Subject matter of copyright: National origin
Section 104 pertains directly to the foreign relations interests of the Department. This section specifies the occasions when foreign works, that is, works produced by authors who are not nationals of the United States, will be given United States copyright protection. This section makes several changes in the present law. The following changes are of primary interest to the Department:
(1) Subsection (b) (1) grants protection not only to nationals, but also to domiciliaries of foreign countries with which the United States has copyright treaty relations. The Department believes this is a reasonable extension of the protection afforded under the present law, because persons domiciled in a foreign country, and hence carrying on their basic economic activities in that country, are closely analogous to nationals of that country with respect to certain aspects of copyright protection. Our existing Copyright Law in Section 9(a) provides for the assimilation of domiciliaries to nationals for domestic purposes, that is, domiciliaries of the United States are treated on the same basis as nationals of the United States as regards copyright protection. Further, Article II (3) of the Universal Copyright Convention (UCC) embodies the same principle. It appears logical, therefore, to extend such assimilation to the domiciliaries of foreign countries with which the United States has copyright treaty re