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of an official resolution which is adopted by the association, and this resolution does not refer to any specific clauses or sections of the bill. It was purposely drafted in terms of general principles, in order to bring before this committee the views of the American Bar Association on what we thought were the basic principles which were appropriate to underlie this proposed revision of the entire copyright statute.

Senator McCLELLAN. All right, let us reverse our positions at the moment. Just suppose that I am down there testifying what you are saying and you are up here listening as I am. Tell me what you mean now by saying opposition, when you tell me there is nothing specific. I do not quite follow that. You say that you have passed a resolution in which there is opposition, and yet you say you are not in opposition. I do not understand it. Please clarify it for us.

Mr. DIAMOND. Well, Mr. Chairman, it is unfortunate that we should fasten perhaps onto the first item on this particular one, because it is an unusual category, and I would like very much to help explain it if I may.

The bill itself is opposed to the U.S. Government's ownership of copyright, so that when the American Bar Association

Senator McCLELLAN. It says so in the first sentence:
Copyright protection under this title is not available for any work of the
United States Government * * *.

Mr. DIAMOND. That is correct.
Senator MCCLELLAN. It says that in the very first sentence.

Mr. DIAMOND. That is correct, Mr. Chairman. Therefore, when the American Bar Association resolution opposes the U.S. Government ownership of copyright, it is agreeing with the bill.

Senator McCLELLAN. Well, then, it is not in opposition. That is what confuses me, when you say you are in opposition and then you say you agree.

Mr. DIAMOND. Well, we are in opposition to this principle, with which the bill is also in opposition.

Senator McCLELLAN. Oh, well. You favor the bill, then, do you?

Mr. DIAMOND. We favor the principle of the bill on the item with respect to the U.S. Government ownership of copyright. It comes under the list of principles which we oppose, and the bill also opposes that particular principle.

Senator MCCLELLAN. Then, you agree with the bill?

Mr. DIAMOND. We do agree with the bill in general terms, Mr. Chairman. As I

As I say, the resolution is not as specific as the bill, but on the item of U.S. ownership of copyright, we do agree with the bill.

Senator McCLELLAN. You agree with those two provisions, then, in section 105 ?

Mr. DIAMOND. Well, now, to that I have to answer "No," Ir. Chairman, because as I say, we agree with the general principle. But this resolution does not refer to any specific section any place in the bill.

Senator McCLELLAN. Well, most of the time, when people come up here and testify about a bill and use the word “oppose,” they point out something to which they are opposed. I am having a little difficulty trying to find out what this opposition means.



Mr. DIAMOND. Well, Mr. Chairman, we will have to plead guilty or, at least, nolo contendere, perhaps, to the rhetorical difficulty here which I think exists.

Senator McCLELLAN. I am not trying to make it difficult. I am just trying to find out whether you are opposed and you have some constructive suggestion. If you do, let us have it. That is all.

Mr. DIAMOND. Well, Mr. Chairman, let me go back, if I may, to the first item in which there is a variation between the principles of the bill and, for instance, of this resolution.

Senator McCLELLAN. That is No. 11?

Mr. DIAMOND. Which is No. 11. Perhaps this will help illustrate the position of the American Bar Association.

I understand that fully, what you have just said, Mr. Chairman, that ordinarily when a witness appears before this committee, or any committee of this kind, he is prepared to take a specific position pro or con, and may have specific language to suggest. Well, for good or for ill, the American Bar Association is not in a position to operate in precisely that manner, because it is bound by its own constitution and bylaws to speak only with a single voice, which requires the formal adoption of the resolution. And this is our resolution of principles.

As I said before, it is deliberately phrased in terms of broad general language, deliberately in order to avoid getting into detail, some of it controversial, as between various members of the association itself.

Senator McCLELLAN. All right. I am trying to understand. You are not making any specific objection, then; you are not requesting any change of language in section 105?

Mr. DIAMOND. That is correct, Mr. Chairman.
Senator McCLELLAN. All right.

Mr. DIAMOND. Now, with regard to item 11, before the "further resolved” paragraph, that is, the first of the list which Mr. Toomey points out contains a variation in our set of principles from those on which this bill is actually based, and which deals with the protection of foreign works

Senator McCLELLAN. Where is that in the bill? Can you identify it?

Mr. DIAMOND. That is section 104.
Senator McCLELLAN. 104?
Mr. DIAMOND. Yes, sir.

Senator McCLELLAN. Now, this modification that you speak of in the

Mr. DIAMOND. The modification refers only to subparagraph (a) of section 104 in the bill. Section 104(a) of the bill would grant protection under this statute to unpublished works, without regard to the nationality or domicile of the author.

The position of the American Bar Association is that there should not be any distinction between unpublished and published works for this purpose, so that the protection of foreign works, whether published or unpublished, should be only on the basis of treaty or procla. mation.


Senator McCLELLAN. Well, then, do you want that to read, “whether published or unpublished"? Is this a modification that you are recommending?

Mr. DIAMOND. Well, in order to accomplish the purposes of this resolution

Senator McCLELLAN. In order to accomplish what you would like to have,

tell me how you would revise that subsection. Mr. DIAMOND. I am not prepared to give you the exact language, Mr. Chairman. But the idea would be to eliminate the subparagraphs (a) and (b), combine them into one paragraph, and have it applicable to both unpublished and published works.

Senator McCLELLAN. Very well.
All right, what is the next one?

Mr. DIAMOND. The next one is “United States Government ownership of copyright," which we have already discussed, where I have explained, I hope to your satisfaction by now, that although the resolu

opposes it, this is also a principle on which the bill is based, because the bill also opposes it. Senator MCCLELLAN. In other words, it was not necessary to say

it? Mr. DIAMOND. Well, we wanted to go on record, Mr. Chairman, as agreeing with the principle of the bill.

Senator McCLELLAN. All right.

Mr. DIAMOND. It happened to be a negative principle, and that is why it wound up in this list of items which we oppose.

Senator MCCLELLAN. All right. No. 2, then, under that title.

Mr. DIAMOND. Yes. "Limitation of copyright by way of a manufacturing clause." This relates to section 601 of the bill.

Senator McCLELLAN. 601 ?
Mr. DIAMOND. Yes, Mr. Chairman.
The American Bar Association opposes this provision in toto.

Senator McCLELLAN. Now we have something here that we can really put our finger on, have we not?

Mr. DIAMOND. I think that is correct.
Senator McCLELLAN. 601. All right.
Do I understand this means that you oppose all of section 601 ?

Mr. DIAMOND. We certainly oppose the principle of section 601. In order to answer your specific question, Mr. Chairman, I would have to go through it word by word.

Senator McCLELLAN. I see.
Mr. DIAMOND. But we do oppose the principle.

Senator McCLELLAN. You not only oppose the principle, you oppose the whole section because it deals with the principle?

Mr. DIAMOND. That is correct.

Senator McCLELLAN. But if you were going to pass legislation, you would have to indicate what should be taken out and suggest the changes you would like to have made.

Mr. DIAMOND. Yes, Mr. Chairman.

Senator McCLELLAN. But generally, you oppose it and would like to have it stricken from the bill.

Mr. DIAMOND. That is correct, Mr. Chairman.
Senator McCLELLAN. Very well.

Mr. DIAMOND. The only reservation in my answer was that there may be a subporagraph in here which is not directly related to limitation of copyright.



Senator McCLALLAN. Yes.

Mr. DAIMOND. And it is the limitation of copyright which is the principle we oppose.

Senator MCCLELLAN. The principle which is observed here and enacted in section 601, you oppose.

Mr. DIAMOND. That is correct, Mr. Chairman.
Senator McCLELLAN. All right, now. Let us see about the next

Mr. DIAMOND. The next one is "recognition of a certificate of registration as constituting prima facie evidence of the validity of the copyright.”

This relates to section 409 (c) of the bill, Mr. Chairman. This would require, if it were to be followed by your committee, a relatively minor change.

Senator McCLELLAN. In that, you are sugegsting just a minor change?

Mr. DIAMOND. Yes. And in this case I could be very specific if you wished.

Senator McCLELLAN. Very well.
Mr. DIAMOND. Because in 409 (c), it says:

In an judicial proceedings the certificate of a registration made before or within five years after the first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.

The effect of the American Bar association opposition is simply to eliminate the words“of the copyright and”, so that the certificate would be prima facie evidence of the facts stated in the certificate but would no be prima facie evidence of the validity of the copyright itself.

In that regard may I say, Mr. Chairman, that our resolution is in acocrdance with the provisions of the present statute, the one which is now in effect.

Senator McCLELLAN. That is really technical, and therefore that is a matter that can be waived very easily!

Mr. DIAMOND. Yes. I think you will hear pros and cons on this later in the course of these hearings, Mr. Chairman.

Senator McCLELLAN. What you would want is just prima facie evidence of the facts stated in the certificate, and nothing else?

Mr. DIAMOND. That is correct, Mr. Chairman. Senator McCLELLAN. But not of the validity of the copyright. Mr. DIAMOND. That is exactly right, Mr. Chairman. Senator McCLELLAN. All right. Is there anything further that you would wish to suggest, either of you?

Mr. DIAMOND. Not unless you have additional questions, Mr. Chairman.

Senator McCLELLAN. I do not believe I have now.
Has the other gentleman you spoke of arrived yet?

Mr. TOOMEY. Apparently not, Mr. Chairman. He should be here at any time.

Senator McCLELLAN. When he arrives, we shall be glad to hear his statement.

Gentlemen, we thank you very much.
Mr. DIAMOND. Thank you very much, Mr. Chairman.

May I just add one word by way of explanation. I know Mr. Schulman was scheduled with your permission to appear in his personal behalf and to submit a statement. I trust that you will arrange either to hear him or at least to receive his prepared statement when he does arrive.

Senator McCLELLAN. We will do one or the other.
Mr. DIAMOND. Thank you very much, Mr. Chairman.
Senator McCLELLAN. Are Mr. Wigren and Mr. Rosenfield here!



Senator McCLELLAN. Mr. Wigren, would you identify yourself, please.

Mr. WIGREN. Yes, sir.

Senator McCLELLAN. And then Mr. Rosenfield, would you identify yourself.

Mr. WIGREN. Mr. Chairman, I am Harold E. Wigren. A panel of educational witnesses appears before you this morning and, I suppose, this afternoon, since some of them are not here. We had expected to be heard from at 2 o'clock today, so two or three of them are not here yet, but I shall be glad to identify those who are at the table.

Senator McCLELLAN. Off the record. (Discussion off the record.)

Senator McCLELLAN. All right, would you all identify yourselves. I think there are four witnesses before me here.

Mr. WIGREN. We are four of some six whom we had planned to have with us.

I am Harold E. Wigren, the chairman of the ad hoc committee on copyright law revision, a committee of educational organizations and institutions. I have been a teacher in the classroom in the public schools and also at the university level. I have been a librarian in the Houston public schools; mathematics instructor in the U.S. Air Force; training aids officer for the San Antonio Aviation Cadet Center; director of audiovisual education for the Houston, Tex., Independent School District for 14 years, during 3 of which I served also as supervisor of school libraries and 11 of which I served also as director of educational television and radio. For the past 4 years I have been serving as the educational television consultant for the National Education Association and as the associate director of the NEA's Division of Audiovisual Instructional Service.

Today I appear before you in my capacity as the elected chairman of the ad hoc committee on copyright law revision to present the committee's views on S. 1006.

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