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Tuesday, April 11, an amended bill was passed by the Ilouse after mild debate with the extraordinary vote of 379 yeas to 29 nays. Fairly radical changes were brade in three areas: there were drastic revisions in the provisions establishing
right liabillty for jukebox performances; the provisions dealing with community antenna transmission were dropped entirely and the exemptions for instructional 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 (ATV problem in 1966, resumed full-scale consideration of the bill, under the joint chairmanship of Senators Mel'lellan and Burdiek, on March 15, 1967. Indeed, the Senate hearings were in full swing during the crisis in the Ilouse, and for a time the general revision program re**blend a two-ring circus in more ways than one. To everyone's surprise the rurd of the Senate hearings, which lasted 10 days and ended on April 28, 1907, Fire nearly equals that of the House hearings in size and content.
Of the several areas that emerged as fullblown issues at the Senate hearings, hy far the most important is the problem of the use of copyrighted works in automated information storage and retrieval systems. This problem was addrused sparately in the context of the creation of a National Commission on
Ven Technological l'ses which Congress enacted as separate legislation only last year, and which is still a waiting stafling.
Jieunu bile, as the 1867 legislative momentum began to slow more and more, It was increasingly apparent that cable television had become the make-or-break insie for copyright revision. Although the Senate Judiciary Subcommittee worked long and hare between 1968 and 1970 to resolve controversies over a number of iestle's other than cable, and succeeded in reporting the revised bill to the full State Judiciary ('ommittee during the 9140 ('ongress, it was not able to push revisjon any further. In effort spearheaded by the Copyright Office to gain enactD.ent 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 (ATV issue, and Even the issuance of comprehensive FCC rules in 1972, governing the carriage of Simals and programming boy cable systems, failed to break the impasse.
Because of this long delay, ('ongress has passed a series of successire bills prtending the term of copyright. These now run through the end of the current Congress, and are scheduled to expire on December 31, 1970. The urgent problem 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 resumption of its active consideration in the Senate Subcommittee last year.
There may have been other reasons, but certainly the most immediate cance of the revision bill's new momentum was the Supreme ('ourt decision in CBNV. Trleprompter, holding that under the 1909 statute cable systems are not liable from copyright infringement when they import disiant 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 ('ommittee, by passage in the Senate on September 9, 1975, by a vote of 70-1. In late November your Subavmmittee held a hearing which, in one respect was a forerunner of thione hearings. I testified in an optimistic vein at that time, and I remain hopeful that at long last the entire revision measure will be enacted into law during the current ('ongress.
Ms. Rixter. The Federal copyright law now in effect in the United States was adopted in 1909 and has been amended in only a few relatively minor ways. It is essentially a 19th century copyright law, based on assumptions concerning the creation and dissemination of author's works that have been completely overturned in the past 50 years.
I 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 underway more than 30 years ago, in 1921, and produced four distinct legislative efforts before World War II. I will not go through the bills, but the period covered was 1921
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 failure of the earlier efforts at general revision of the 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 at that time 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 basie objections to U.S. acceptance of foreign principles of copyright jurisprudence, and to U.S. assumption of the international obligations involved in becoming a member of the 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 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. 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 the 1909 law. This 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 the TCC, 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 l'.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 era and the beginning of another. I think the dividing line was August 1955.
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 ('opyright 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 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 revision program by Abraham L. Kaminstein, 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 which 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 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 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, renewable for a second term of 18 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 Revisions, after the publication of the Register's report, was held between September 1961, and March 1962, at which all of the report's recommendations 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 Oflice had to reconsider its position.
In November 1962, the Register announced that the Copyright Office 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 lifeplus 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 process 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 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 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 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 consultation with any private groups or individuals involved. The introduction of the 1964 draft in July 1961, 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 1961, 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 before legislative hearings could profitably begin.
During the fall and winter of 1964-65, the Copyright Onice reviewed and analyzed the many oral and written comments on the bill and prepared another complete revision.
It the beginning of the Sath Congress, on February 4, 1963, Renresentative (eller introduced the 1965 General Revision bill and the Copyright Office spent the next 3 months preparing a supplement to the 1961 Register's Report. The supplementary report of the Rerister of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision bill which was published in Mav 1965. set forth thin reasons for changing a number of recommendations in the 1961 report and clarified the meaning of the prorisions of the 1965 bill.
Publication of the supplementary report coincided with the opening 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 objective 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 130 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 reproduction of copyrighted works for educational and research purposes, the liability of educational broadcasters and similar transmitters, and the status of community antema television systems under the copyright law.
Iside from the need to work out further accommodations on seyeral 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 basis for decision making. Let me say a personal word about those 51 days of subcommittee meetingrs, since they were very significant.
Working in close collaboration, the Copyright Office and the House Judiciary Committee counsel prepared summaries of every statement that had been made, and then divided the entire corpus of the bearings into 10 general areas: Subject matter of copyright, ownership, duration, notice and registration, manufacturing and importa. tion requirements, community antenna systems and other secondary transmissions, jukebox performances, compulsory license for phonorecords, educational copying and fair use, and educational broadeating 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 Ilouse Judiciary Subcommittee, in its deliberations of the bill, to consider each issus 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 depth and then redrafting the pertinent sec.