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Mr. KASTEN MEIER. Do you not understand those who have thus far designed the copyright bill to specifically exclude State unfair competition laws for a reason?

Mr. TEGTMEYER. I mentioned in the testimony that we agree with the preemption of the State laws as to copyright-type protection but feel that the bill should not upset the present protection that is available under State statutes and the common law of unfair competition. We specifically mentioned the International News case in this connection. That case represents an example of one area which we particularly feel should not be preempted by the copyright law because the copyright law does not provide the same nature of protection that the International News case decision does.

That is, the content of the news was protected in that case as opposed to the wording or manner of expression of the news.

Mr. KASTENMEIER. On that point, have you conferred with the Copyright Office or any other Federal agencies? Do you find them in agreement with your position?

Mr. TEGTMEYER. We have been in contact with some other Federal agencies and in contact with the Copyright Office, as well. We have not found agreement with our position on all points.

Mr. KASTEN MEIER. Thank you. I yield to the gentleman from Illinois. Mr. Railsback.

Mr. RAILSBACK. Mr. Tegtmever, I find myself in somewhat of a dilemma; who actually speaks for the administration?

There seem to be disagreements with virtually everybody. We have the Department of State disagreeing with everybody except on the manufacturing clause and now we have the Department of Commerce that takes a different view. Does anyone purport to speak for the administration?

Vr. TEGTMEYER. Our testimony only purports to speak for the Department of Commerce.

Mr. RAILSBACK. The Justice Department testified with respect to title II that they were concerned that this title would afford some new protection, but it would not include a finding of novelty or obviousness; what do you think of that?

Mr. TEGTMEYER. Copyright law presently, and as proposed in title I, does not require a test of novelty or unobviousness for protection. The test applied in the design legislation is one of originality. Infringement is accomplished by copying the design literally rather than by separate origination. So the protection provided by title II is more in the nature of copyright protection rather than patent.

Mr. RAILSBACK. So, you would disagree that a finding by the Gov. ernment of unobviousness is needed ?

Mr. TEGTMEYER. Yes; we do. The bill provides protection in one area that would not be protected by the present patent laws and where there is design piracy occurring. Protection under title II is desirable because of the requirement of novelty and unobviousness in the patent law and because of the fact that the copyright laws as they exist today have not been extended to cover all of the designs that are covered in the proposed legislation in title II.

Vr. RAILSBACK. You are not, I presume, suggesting that your Department favors section 601? I think Mr. Kastenmeier asked you and

you appeared to indicate primary concern, about the inclusion of Canada but, you don't favor a manufacturing clause, or do you!

Jir. TEGTMEYER. We do not favor a manufacturing clause aside from the question as to whether or not Canada should be exempted.

Wr. RAILSBACK. So in that respect your testimony is not at variance with the other agencies?


Jr. RAILSBACK. If you can keep track of all of that differing testimony.

Vr. TEGTMEYER. We did make the additional point of saying that if Canada was to be included as an exception in the manufacturing clause that it be done by the use of its exception in negotiations with other comtries as leverage to get something in return.

Mr. RAILSBACK. You do favor, do you not, the prepared expansion of the duration of a copyright!

Mr. TEGTMEYER. Yes; we do. In that respect, I might point out that we have reviewed the reasons for extending the copyright term that were set forth in one of the earlier reports on copyright revision legislation. I might note, in particular, Report No. 83 from the 90th Congress first session. It is a report of the chairman, Mr. Kastenmeier, for the Committee on the Judiciary. On pages 100 through 103 there are a number of what we feel are well-justified reasons for extending the term of copyright to life of the author plus 50 years. In the report, there are some seven such reasons listed. The committee at that time stated, and I quote from page 102 of the report, “The committee concluded that the need for a longer total term of copyright had been conclusively demonstrated."

Later in the report it stated, “The committee has concluded that an author's copyright should extend beyond his lifetime and, judged by this standard, the present term of 56 years is too short." There are some seven reasons set forth which we feel are consistent with the q'urpose of the copyright law, that is to further creativity in writings and so forth under the Constitution.

Jr. RAILSBACK. I think you've been very helpful.
Vr KASTENMEIER. Mr. Danielson.

Mr. DANIELSON. Do you know whether foreign states have a comparable provision to our title II to protect original ornamental designs?

Jr. TEATWEYER. Most foreign countries have a provision similar generally, at least, to title II and there is an international convention, Tie Ilagne Agreement for the International Deposit of Industrial I migns. I am not sure of the number of countries involved.

Mr. DANIELSON. Are we a party?

Mr. TEGTMEYER. No. I am not sure whether we would want to be beciruse of certain provisions in the convention.

Mr. DANIELSON. One problem I have, one of the provision qualifiers is that it be ornamental; isn't that almost entirely subjective?

Mr. TEGTMEYER. Essentially, it is the type of test as applied under the copyright law presently with respect to designs.

Mr. DANIELSON. But beauty is still in the eye of the beholder and I have a problem with this. I don't know. I need an answer to this, I per convincing. Thank you.

Mr. TEGTMEYER. If I may add one point that may be helpful, one thing you can do is to compare the fact that it must be ornamental as opposed to functional.

Mr. DANIELSON. Yes; but it is also, as I read the Code provisions, I think it relates to prettiness or beauty; I have a problem with this.

Mr. TEGTMEYER. That's not the intent of the provision as we understand it.

Mr. DRINAN. I wonder if I might ask one question. If you would just give us an example. How many of these fundamental things you have described could or would get a copyright or patent?

Mr. TEGTJIEYER. That would be difficult to predict because you don't know whether or not they would meet the test of novelty for patent protection.

Mr. DRINAN. In your testimony you suggest only two areas and they are furniture and appliances. But, you give us a for instance on what type of things might come under title II

Mr. TEGTMEYER. Linoleum and wall coverings, which I believe are covered under the present copyright law as it is interpreted, as well as furniture designs, appliances and other household goods which would have a design, an original design.

Mr. Drinan. Do you fear any possibility of restraining trade or even monopoly?

Mr. TEGTHEYER. We feel the protection is in the nature of a copyright provision and is only against copying. If you compare it to piracy of tapes and records, we find it very similar. We are talking about someone who has pirated or copied a design, not somebody who has independently originated it himself.

Mr. DRINAN. I tend to agree with Mr. Railsback that there is too much confusion, but your testimony has been helpful. I wish we had longer. I

Mr. KAWENMEIER. On behalf of the committee, we appreciate your appearance again before us on a slightly different type of bill than you normally appear before us with and we wish to thank your colleagues. This concludes the testimony this morning on the subject of the revision of copyright laws. We shall next meet as a subcommittee on May 14, Wednesday at 10 a.m. in room 2226 for further hearings.

| Reports on H.R. 2223 were received by the subcommittee from the Department of State, the Acting Librarian of Congress, and the National Aeronautics and Space Administration, as follows:]


Washington, D.C., May 7, 1975. Ilon. PETER W. RODINO, Jr., Chairman, Committee on the Judiciary, House of Representatives, Washington, D.O.

DEAR MR. CHAIRMAN: The Secretary has asked that I respond to your letter of February 10, 1975, requesting the Department of State's views on H.R. 2223. for the general revision of the Copyright Law, Title 17 of the United States Code, and for other purposes.

The first copyright law of the United States was enacted by the First ('ongress in 1790, with comprehensive revisions being enacted at intervals of about 40 years, in 1831, 1870 and 1909. The present U.S. copyright law, title 17 of the United States Code, is basically the same as the Act of 1909. During the ensuing years tremendous strides have been made in technology and techniques for communicating printed matter, visual images, and recorded sounds. These technical advances have generated new industries and methods for the reproduction

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U.S. negotiators should obtain reciprocity for U.S. concessions when they enacted the Trade Act of 1974, at the end of the last Congress

Additionally, including Canada in this provision would raise problems in our relations with other nations, in view of the “most favord nation" obligations in the General Agreement on Tariff and Trade (GITT) 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 other. wice hamper our efforts to eliminate nontariff trade barriers in the interest of our overall international trade objectives.

If I may turn to title II of H.R. 2223, that 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 orig. inal. They cannot be staple or commonplace, or elements commonly used in the relevant trade, or dictated 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.

Title II would provide protection only against copying by others and would not give an exclusive right in the design itself. The term of protection would be for 5 years, renewable for one additional 5-year term.

Infringement would include making, importing, selling, or distributing for sale an article having a design copied from a protected design. Importantly however, an innocent seller or distributor would be an infringer only if he failed to reveal his source and then reordered the article after having received a personal written notice of the design protection.

This is a greatly reduced level of liability when compared with that contained in title I where a seller or distributor is liable as an infringir for the sale of a single unauthorized copyrighted work.

Design patent protection would continue to be available, but a des. patent and design protection under this title could not be maintained concurrently. Also, copyright protection for designs would be continued, exiept that if copyright protection and a design registration were obtained, the copyright protection would not entend to utilization of the design in the useful article protected by the design registrat on

Todav, original ornainental designs for limeful articles mar beel: ble for Federal protection under the patent laws or in some instances, under the copyright law. In recent years, however, it has been generally agreed that the design patent laws do not provide adequate protection against design piracy. Because of the relatively short-lived popularity of many designs, a patent in some cases cannot be securrd qurkir enough to provide any uvful protection.

The expene in obtaining a design patent toulav risulis primarily from the fait that the Patent and Trademark Onice must examine an application to determine whether it is new, original, and ornamental." Althie prent time it takes almont years to obtain a design patent. Until the patent is granted the designer or manufacturer markets the design at him own peril. subject to it being freely cuspied. The alterntive of withiolding the design from the market inulthe patent i les

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