Section 301(b) (3) is intended to exempt State unfair competition law from the preemptive effect of section 301(a). Among the rights and remedies not preempted are those arising from the violation of rights “not equivalent to any exclusive rights within the general scope of copyright". These "not equivalent" rights are said to include "breaches of contract, breaches of trust, invasion of privacy, defamation, and deceptive trade practices such as passing off and false representation." The problem we have is that the listing is incomplete and the language is more limited than that which would describe the present scope of established State unfair competition law. As a solution, we propose a more comprehensive and inclusive listing of unfair competition torts in subsection (b) (3). The proposed amendment: "(3) Activities violating rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106, including breaches of contract, breaches of trust, invasion of privacy, defamation, and [deceptive trade practices such as passing off and false representation] acts, trade practices, or courses of conduct which cause or are likely to cause confusion, mistake or deception, or which are likely to result in passing off, false or misicading representations, disparagement, wrongful disclosure or misappropriation of a trade secret or confidential information, or activities which otherwise constitute unfair competition by misrepresentation or misappropriation." (Deletions bracketed; additions italicized) In our opinion, this proposed amendment would more accurately state the range of unfair competition torts which are now regulated by the states, so that the examples listed will not be limiting. It should be noted that the phrase "unfair competition by . . . misappropriation" is included in our amendment. Obviously, the "misappropriation" of all of the words of a literary work would be in the nature of copyright and State laws in this area should be preempted. However, we do not believe that the entire body of State unfair competition law based upon the landmark Supreme Court decision in International News Service v. Associated Press (248 US 215 (1918)) should be preempted. While some State decisions relying on the INS case may be held inapplicable under section 301 (a), we believe that such a remedy should continue to be available for the type of conduct proscribed in the INS case. MANUFACTURING CLAUSE Third, proposed section 601, known as the "manufacturing clause", essentially requires that English language, nondramatic literary works by American domiciled authors must be printed in the United States or Canada. The present Copyright statute does not include such a reference to Canada. The rationale for fncluding Canada appears to be that wage standards in the U.S. and Canada are comparable. We are opposed to the inclusion of Canada in this provision. Such an inclusion would be a unilateral concession which we believe should be withheld for possible use by the United States as negotiating leverage in seeing compensating benefits during multilateral trade negotiations. We note that both houses of Congress indicated forcibly that United States negotiators should obtain reciprocity for United States concessions when they enacted the Trade Act of 1974. Additionally, including Canada in this provision would raise problems in our relations with other nations, in view of the "most favored nation” obligations in the General Agreement on Tariff and Trade (GATT) and other treaties. Thus, enactment of the bill containing this provision might bring about the possibility of retaliation against the United States from countries other than Canada and might otherwise hamper our efforts to eliminate non-tariff trade barriers in the interest of our overall international trade objectives. TITLE II Title II of HR. 2223 would provide a new system for the protection of original ornamental designs of useful articles. Designs eligible for protection under this title would have to be original. They cannot be staple or commonplace, or elements commonly used in the relevant trade, or dictated solely by utilitarian functions, or three dimensional features of wearing apparel. However, there would be no requirements that the design be new, and therefore no search of prior designs would be necessary in order to grant protection. trant 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 calla for a careful consideration of such circumstances as may impede the dissemina tion 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 max!. mum 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. 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 în 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 fac simile 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 (2), 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 determed that an mused replacement cannot be obtained at a fair price. The rights of reproduction and distribution under Section 10% extend to the folated and unrelated reproduction or distribution of a single copy or phonos record of either a published or unpublished work on separate occasions unit s the brary or archives is aware or has substantial reason to believe that it is enging in a re'ited or conce,ted reproduction or distribution or engages in a ay s'emale 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 jurt of any other copyrighted work, As we bond thaw provision, it will not prevent libraries and archives from reproducing works in machine-readable language in connection with the storage and uæ of computerized information systems, We hope that the House legislative cry of the Bid wili clearly support täis construction, for the storage and u e og d. “a în măci systems is of great importance to repositories and soures of wrly research material. To impose copyright liability impeding the storair of such data wou'd be socially undesirable. If our interpre ́ation of Section * W* 12 we recommend "bat the Section be charged to existud the appirate exemption to reproduction in machine-readable innguage for storage and km in liv,mation systems. be ease of transfer of computerized data is another area in which II R. 2223 ema problesa Universides, research ag neues, government, and private indusfre are developni g information networks using computers and other electron c --} %%#tit to speed the transfer of information from source to user, H R. 2213 dex at provide a method by means of which informuation systems users cati vdan the permission of egyright owners for use of their meterial. Tue ty and toss of time entațied in many cases in contacting owners may .t us r« from including material in their systems, Or users may be unable » un «ial in their systeras in sufficient time in situations where speed vakettal. It would appear in the phone interest for the Bill to contain some ce that information systems wijch are wihng to pay rovaities for mates msec) can oltiin easier access to copyrighted information, at least in highnity are key dj vw scientife and technological works Pa je posed legislat on also leaves unclear at what point in the use of comd'expyrighted material the hability for royalty payment attaches Under 12221 It would seem that placing copyrighted data into a computer (which foru part of an information system) might infringe the copyright Spee se of computers for storage and retrieval of information to some extent may ve the wie of hocks In most cases the payment of rovalties should be ted Hwever, just where in the process the royalty payment should be pressed is open to question. We be leve it unwise to levy a "toil" at the " nprit” to the prowess. Levying on the "input" into computers could impede the f information systems and may render meaningless any eximation puterized information for educational purposes which may be P ! C wicf! བསྟུP ! བླངས 1t#wjozt ཛ tsqon het { "} Ph a @ རཱཛྫཏི owfe libalfy four icoft vorgot tit of csity r་རི་དྲུག?jz ཟིན་y མཐོང་ལུ ག རྔོགm on ore Find and almost con pilete freedom from Hability on • the in po n of a degree of haben nem Prema HN 2221 shon d provide an area of free pse for wich ཨ་བurlewསྐྱ་ w*༞£ ¥s {!? ve date -f that term oratioh of unless made to the original grantee of 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 transferves 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 USC. 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 fies to authors and inventors the exclusive right to their respective writings and dis coveries. 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 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 subsecs 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 provislous of Section 302(e) should be modified to limit the duration of anonyшrons 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 scieros and n'eful arts. A 5 tear copyright term, as my 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 11% of many works. This does not justify lengthening the term of a copyright hevond 56 years or the lifetime of the author because a lengthened commeri al life is not necessarily consistent with the basic constitutional The busde question with respect to copyright duration to be answered by the Cor grows is Whether a don lng of the present copyright term for many works is desira'le to promote the progress of science and useful arts. Other forms je fidem) nimitéerion for creative works, such as patents for useful devices, 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 þeim tion of the progress of science and useful arts requires a doubling of the e 56 year copyright period Our alternative proposal wonid accommodate *** vald concerns as may exist regarding the present law and, at the same * empty out our stitutional genis, Bection 406 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 k in the public domain (17 U.8.C. §21). However, if such notice is accidetaily omitted from a particular copy or copies, copyright is not lost; but inbwent infringers who are misled by the accidental omission are not liable for Is "ringement. Under Section 405 of the Bill, omission of notice from “a relatively #tial number” of copies or phonorecords publicly distributed will not invalidate the expyright, 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 five years after the publication without notice and a reastarle effort is made to add notice to all copies or phonorecords distributed to the priblie in the United States after the omission is discovered. As under the present law innocent infringers who are misled by the omission of notice would not be liable in actual or statutory damages for infringement. But under H R. Z they might have to surrender profits gained through the infringement and be subject to injunction or payment of a reasonable license fee for continuing teir activity (Section 405(b)). These provisions would delete from 17 USC. 121 the provision that no permanent injunction shall be had unless the proprietor of the expyright shall reimburse the innocent infringer his reasonable outiny inbrently incurred if the court, in its discretion, shall so direct. A repyright should be prote ted from invalidation only when the failure to proVie before was the result of an accident or mistake or in violation of the copy. right owners written requirement that, as a condition of authorization of publie detribution, the copies or phonorecords bear the prescribed notice, and distribu15 a forly a small number of such items has been made to the pulle. To permit, âs pr prœed in Section 405, a copy right owner to issue an entire publication of his ♥ ** without notice and yet enforce the copyright tends to negate the purpose L Athoub innocent infringers would incur no liability they would still Bare to establish their innocence even where the omission was deliberate in many #pies. We suggest that the be- tion specifically be 1 mited to the effect of omission of the expyright notice by accident or mistake. We also belleve it advisable that the words “particular copy or copies", contained in the present statute, be used fitead of the broader and more general words "a relatively small nun ber," -a în Nection 406, to designate the limits within which notice may be omitted t? 1 mm of copyright. And we think the discretion in the court to order reim b. went to the ir nocent infringer should be retained. • jeet to specified exceptiotis, Section 601 provides that the importation into Le distribution in the United States of more than 2000 copies of a work einalating preponderantly of nondramatic WP'erary material in English by ma eel an or resident alien author and protected under the Copyright Code in pria tens fiam pertions consisting of such material have been manufactured In the United States or Canada. This Section would reenact in modified form a kibat protection of portar f trade barrier 477 USC 16 107) Wedi Vi ove that there is either a necessity or desirabell'y for wich a provonin vestim an aber Onte har to certain books published abroad Berti a 901 is entirely unrelated to questions of copyright. It does not pritmet 19 ** at all On the contrary Merlon 601 decrensen fie valse of espor 27 tw by *g an American author from granting worldwide pollention rights to zul publ sher who offers more favorable compensati n than an At eri an ater. Whatever the merits of the original ́infant indret v "tust:9 o nfr 1:"fa-turing clause, the restriction is clearly unreconngry ħd Itap ro ...19 in het of the strength and success of our it bistry and in light of in a commitment to eliminate non'ariff barriers to international trade ཚུམ་ རྩརརཱམན་སྙa 粉絲 : Lene feasts. Section 001 should be striken from the B 11, and the "mai Pu{em! to»tte Thetino1etits attltilraiyཇཱ་ 'am in ''en ordre 1 wing as areas where amer toets are destry) je » so a #5 ml cer, jei be attended to provide for ffe es resting in evinrief rs, and a Lew section wl, and be a-1 1-1 tə ***,de for summary and judicial forfeitures in criminal cases, |