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whether the use made of a work in a particular case is a fair use, a court is to consider as factors the purpose and character of the use, the nature of the copy. righted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. As to the reproduction of entire works for classroom use, the doctrine of fair use would be applied "strictly" (S. Rept. 93-983, p. 117).
Sections 108, 110, and 111 cover exemptions from liability for copyright infringement in the fields of library and archive reproduction (Section 108), the exemption of certain performances and displays, such as in classrooms in faceto-face teaching activities of a nonprofit educational institution (Section 110) and the retransmission of a primary transmission simultaneously with the primary transmission or nonsimultaneously with the primary transinission if by a “cable system" outside defined geographic areas ("secondary transmissions" of Section 111).
Section 302 establishes a new term for the duration of copyright. Generally, this is for a terin consisting of the life of the author and fifty years after his death. In the case of joint works, the period of fifty years commences upon the death of the last surviving author. For anonymous works, pseudonymous works, and works made for hire, the copyright period is for a term of seventy-five years from the year of its first publication, or a term of one hundred years from the year of its creation, whichever expires first. Where one or more authors are identified for an anonymous or pseudonymous work before the end of the copyright term, the longer period of copyright terminating fifty years after the death of the author then applies.
Section 40.5 deals with the effect of the omission of the copyright notice. Section 411 (overs infringement actions in certain situations.
Section 306 contains special provisions applying to persons who infringe willfully and for purposes of commercal advantage. With respect to (opyright in a sound recording, for the first such offense, a person is fined not more than $25,000 or imprisoned for not more than one year, or both. For any subsequent offense a person is fined not more than $50,000 or imprisoned not more than two years, or both, Section 507 provides a three-year statute of limitations for both criminal proceedings pursuant to provisions of the Bill after the cause of action arose (under the provisions of Sections 116 and 506) and for civil actions after the claim accrued.
Section 601 affords preferential protection to publishers and printers of the United States and Canada (Report 93-983, pp. 193-200).
Sections 801 809 are concerned with the Register's duties to collect royalties and make determinations concerning the adjustment of copyright royalty rates for certain uses where compulsory licenses are provided by the Bill. They also relate to his duties to determine in certain circumstances the distribution of these royalties deposited with the Register of Copyrights, Section 803 provides for selection of membership of the tribunal to make necessary determinations with respect to royalty matters, to be on the basis of a list of names furnished by the American Arbitration Association to the Register of Copyrights. Sertion 804 provides for procedures to be followed by the tribunal in making its determinations. Subsection (e) of Section 804 directs that the tribunal shall render a final decision in each proceeding within one year from the certification of the panel, certified by the Register of Copyrights on the basis of the names furnished by the American Arbitration Association. This subsection further provides that the Senate Committee on the Judiciary and the House of Representatives Committee on the Judiciary, upon a showing of good cause, may waive this require ment of the rendering of a final decision within one year from the certification of the panel in a particular proceeding. The judicial review for tribunal final determinations, provided in Section 809 (concerning the distribution of royalty fros). is limited. A court may vacate, modify or correct such a determination if it was procured by corruption, fraud or undue means, where a member of the panel was partial or corrunt, and where any member of the panel was guilty of misconduct by which the rights of any party were prejudiced.
Provisions for the protection of ornamental designs of useful articles appear in Title II of the Bill. Section 201 provides that authors or proprietors of an original ornamental design of a useful article may secure a period of protection. except for certain subject areas set ont in Section 202, for a period provided in Section 205, Section 201 contains definitions of the terms "useful article", "design of a useful article", "ornamental", and "original" as needed for purposes of
the particular protection provided by this Title. Section 204 provides that protectinn ummences on the date when the design is first made public, either by being erhibited, publicly distributed, or offered for sale or sold to the public. Section 24 provides that the term of protection extends for five years, subject to being renewed for an additional five years prior to the expiration of the initial term. Sextion 2013 provides for certain design notices to be applied to the products protertel, and Section 207 limits recovery for infringement if the design notice T rirements of Section 206 have been omitted. However, actual notice of design protection to a particular person can take the place of the design notice requiremeit of Section 206.
Section 200 of Title II provides for loss of protection if registration of the draign is not made within six months after the date on which the design was Ini made publie, who may make application for renewal registration of a design protected under the Bill, how and under what conditions and with what supporting papers a design protected under the Bill can be renewed.
Section 212 of Title II deals with the examination of the design application and provides for cancellation of registrations on application of a person who believes he is or will be diamaged by a registration under this Titie. Grounds for cancellation are that the design is not subject to protection under the provisions of the Title.
Section 220 of Title II provides remedies for infringement of a design protected under this Title. It provides for a civil action to have judicial review of a final refusal of the Administrator to register the design as for infringement if eminenced within a time period specified by the Administrator of the Title, lut not less than sixty days after the decision, and perinits simultaneous remedy for infringement by the same action if the court adjudges the design subject to protection under this Title. This would appear to mean that the infringer would have to be joined as a party defendant with the Administrator of this Title. The requirements for such an action are that the desirn proprietor las li ed and prosecuted to final refusal an application for registration of the design, # ps of the complaint in the action is delivered to the Administrator within ten days after commencement of the action, and the defendant has committed als which would constitute infringement of the design.
Suntion 221 of Title II gives courts jurisdiction of actions under this Title and authority to grant injunctions to prevent infringement, including temporary nistraining orders and preliminary injunctions.
Section 222 of Title II relates to recovery of infringement, setting maximum amounts of recovery per infringing copy by way of compensation and provides for the delirery for destruction or other disposition of any infringing articles.
Setion »23 of Title II provides for cancellation of a registration of a design by a court and certification for the court of such order to the Administrator.
Suption 227 of Title II provides that copyright protection under Title I, when utilized in an original ornamental design of a useful article, may still be a design work eligible for protection under the provisions of this Title.
The issuance of a design patent for an ornamental design for an article of manyfacture under the patent laws, Title 35 U.S.C., terminates any protection of the de-ign 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 tradeInark 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 29 U.S.C. $ 1198 (a) to provide that whenever a registered design or invention is 11sed or manufactured by or for the l'nited 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 or reasonable and entire compensation. Use or manufacture of a registered de
x or invention by a contractor, subcontractor or any person, firm or comp). ration for the government and with the authorization or consent of the government is to be construed as use or manufacture for the United States. I'se or manufacture by or for the United States of any article owned, leased, used by or in the possession of the I'nited States prior to, in the case of an invention, Jo!y 1, 1918, and for registered designs, prior to July 1. 1978, is not to be the basis of an award under this Section, Government einployees have the right to
11e the government under this Section except when in a position to order, infuence 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 one 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 reproduction 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
courages 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 cops 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 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 separate 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 prerent libraries and archives from reproducing works in machine-readable language in connection with the storage
and ude of computerized information systems. We hope that the House legislative history of the Bill will clearly support this construction, for the storage and use af data in such systems is of great importance to repositories and sources of sebularly research material. To impose copyright liability impeding the stor
P ( such data would be socially undesirable. If our interpreiation of Section U is wrong, we recommend that the Section be changed to extend the appiicable exemption to reproduction in machine-readable language for storage and U in information systems,
"he ease of transfer of computerized data is another area in which II.R. 2223 raises a problem. Universities, research agencies, government, and private industry are developing information networks using computers and other electronic
wpment to speed the transfer of information from source to user, H.R. 2223 des not provide a method by means of which information systems users can
s obtain the permission of copyright owners for use of their inxterial. The d alty and loss of time entailed in many cases in contacting owners may
inkalit users from including material in their systems. Or users may be unable to hupioy material in their systems in sufficient time in situations where speed s ential. It would appear in the public interest for the Bill to contain some kurrantee that information systems which are willing to pay royalties for mate rial used can obtain easier access to copyrighted information, at least in highPirrity areas such as scientific and technological works.
The proposed legislation also leares unclear at what point in the use of compriorized copyrighted material the liability for royalty payment attaches. Under HR 2023, it would seemn that placing copyrighted data into a computer (which In 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 rovalties should be retuired. However, just where in the process the royalty payment should be as veseel, is open to question. We believe it unwise to levy a "toll" at the "input" stare in the process, Levying on the "input" into computers conld impedle the der lopment of information systems and may render meaningless any exemption for the use of computerized information for educational purposes which may be read into H.R. 2023.
The subject of the application of copyright to community antenna television he firesented considerable dithoulty in previous drafts of proposed revisions of the (oright Code, HR 2223 attempts a compromise between the extreme baltions of complete liability for infringement of copyright by secondary transIntesjon hy CITI on one hand and almost complete freedom from liability on the other hand. While we support the imposition of a degree of liability upon ('.ITV, we believe that H.R. 2223 should provide an area of free use for such Synoms within the local service area.
The first part of subsection (c) of Section 111 provides for compulsory licen. ils of secondary transmissions of a primary transmission by an FCC licensed
vadeast station upon compliance with the notice of ownership and the pay. 11**** 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 *T*tem is, in whole or in part, within the local service area of the primary transmitier; or (C) there carriage of the signals comprising the secondary transmission is permissible under the FCC rules, regulations or authorizations. We mis ongly urge, with respect to (B), that the secondary transmittal should be Prepletely 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 utole 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 trans. misjon 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(r) (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 five sears herinning at the end of a specified time. However, Section 203 (b) (4) and parallel Section 304(c) (6) (1) (relating to transfers of copyrights subsisting after January 1, 1977) proride that an agreement to transfer rights subsequen: to the termination of a prior transfer will not be valid unless made after the effartire date of that termination or unless made to the original grantee or his
57-786-76-pt. 1- 11
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 presnt 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. United States 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. 154. 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 compositions of matter. 35 l'.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 copyright than the present United States law. This argument is presented in the Senate study. 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 copyright 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 life span 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 Con. stitution. 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 subser. tions, 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 38 years from the vear of their creation or first publication.
Our proposal would carry out the constitutional concept of promoting the progress of science and useful arts. A 5f-rear copyright term. as may be extended by the lifetime of the anthor, 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 beyond 56 years or the lifetime of the author hecause a lengthened commercial life is not necessarily consistent with the basic constitutional purpose.
The hasic question with respect to copyright duration to be answered by the Congress is whether a donbling of the present copyright 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 derices, plants, and designs, are all for periods of no more than 17 years. Copyrights in writings are already in a preferred position. We do not believe that the