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The issuance of a design patent for an ornamental design for an article of manufacture wider the patent laws, title 35 United States Code, 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 trademark right or right to be protected against unfair competition.
Section 232 of title II amends various other statutes. Of particular importance to the Department 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 recorery of reasonable and entire compensation. Use or manufacture of a registered design or invention by a contractor, subcontractor or any person, firm or corporation for the Government and with the authorization or consent of the Government is to be construed as use or manufacture by or for the United States. : Use or manufacture by or for the United States of any article ownell, 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 Government.
Further excluded as a basis for claim under this section are claims by a registrant or patentee or assignee thereof when the design or invention was related to the official functions of the employee, in cases in which such functions included 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 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 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 dissemination 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, we strongly believe that a definition in the bill of the doctrine as applied to such reprodluction 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 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: 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 educational activities.”
Reason: Clarity of scope of fair use for educational activities. Section 105(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 47, p. 10, lines 13-16, delete “if the library or archives has * * * at a fair price,"
Reason: Too difficult and cumbersome to make purchase investigation; 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 library or archives involved 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 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 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 phonorecord of either a published or unpublished work on parate occasions unless the library or archives is aware or has substantial reason to believe that it is engaging 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 copyrighted collection or periodical issue or of a copy or phonorecord of a small part of any other copyrighted work.
Is we read this provision, it will not prevent libraries and archives from reproducing works in machine-readable language in connection with the storage and use 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 storage 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 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, government, 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 information systems users can easily 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 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 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 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 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 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 the local service area.
The first part of subsection (c) of section 111 provides for compulsory licensing of secondary transmissions of a primary transmission by an FCC-licensed broadcast station upon compliance with 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 CATV 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 transmission 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 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 transfers 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. llowever, 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 subsequent 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 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 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 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. C.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. 15+). 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 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. 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 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.
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 right to their respective writings and discoveries. While it may be urged that a copyright 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 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 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 following subsections, 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 provisions 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 creation or first publication.
Our proposal would carry out the constitutional concept of promoting the progress of science and useful arts. A 56-year copyright 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 media has lengthened the commercial life of many works. This does not justify lengthening the term of a copyright bevond 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 answered by the Congress is whether a doubling of the present conrright 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 vears. Copyrights in writings are already in a preferred position. We do not believe that the promotion of the progress of science and useful arts requires a doubling of the possible 56. year copyright period. Our alternative proposal would accommolate 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 ('.S.C. $ 21). 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.
I'nder 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.