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

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

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

Mr. TEGTMEYER. No.

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

Mr. 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 countries 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 purpose of the copyright law, that is to further creativity in writings and so forth under the Constitution.

Mr. RAILSBACK. I think you've been very helpful.

Mr KASTENMEIER. Mr. Danielson.

Mr. DANIELSON. Do you know whether foreign states have a comparable provision to our title II to protect original ornamental designs? Mr. TEGTMEYER. Most foreign countries have a provision similar generally, at least, to title II and there is an international convention, The Hague Agreement for the International Deposit of Industrial Designs. I am not sure of the number of countries involved.

Mr. DANIFLSON. Are we a party?

Mr. TEGTMEYER. No. I am not sure whether we would want to be because 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 need 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. TEGTMEYER. 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. TEGTMEYER. 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.

Mr. KASKENMEIER. 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:]

DEPARTMENT OF STATE, Washington, D.C., May 7, 1975.

Hon. PETER W. RODINO, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, D.C.

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 Congress 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

and dissemination of copyrighted works and new business relationships have developed between authors and users. Although these two groups have differed on various issues, both recognize the 1909 statute does not stimulate authors to create or reward them for their efforts and fails to consider present or future technological developments in communications.

Although we take exception to one section of H.R. 2223, the Department otherwise supports the enactment of this important legislation. Our comments on H.R. 2223 are directed to those sections which relate to the conduct of our foreign relations and therefore are of interest to the Department. These sections are the following: Section 104 concerning subject matter of copyright and national origin: Section 302 on the duration of protection, and Section 601 relative to restrictions against importation of certain copyrighted materials from other countries.

Section 104. Subject Matter of Copyright: National Origin—(c).

The Department supports the aim of this section which is to deal with the possibility that action may be instituted in United States courts by a foreign government to divest its citizens or authors of rights to their works or block publication of their works within the United States. We do not have any evidence that an action of this nature is likely to occur. If it did, however, it would represent undesirable official interference with the freedom of expression, and we therefore believe that it should be guarded against. The international copyright system embodied in the Universal Copyright Convention is intended to "insure the respect for the rights of the individual and encourage the development of literature, the sciences and the arts". The obligations contained in the Convention should not become the vehicle to suppress free communication in the United States of ideas and literature unacceptable to authorities of some signatories to the Convention.

Were such a provision to be enacted, it would be necessary to avoid language which might inadvertently interfere with legitimate governmental acquisition of copyright. We understand that other U.S. Government agencies are drafting language to meet the purpose of Section 104 (c) in a technically different manner. We have not reviewed these proposals and are unable to express our opinion as to their merits. However, we support the aim of appropriately drafted legislation that would deny effect in United States courts of a foreign nation's laws or practices designed to deprive the authors of that country of the rights to publish and protect their literary and artistic works in the United States.

Section 302. Duration of Copyright: Works Created on or after January 1, 1975. Section 302 concerns the duration of copyright (i.e. term of protection) and is one of the most important provisions, if not the most important in the revision bill. Basically, Section 502(a) provides for a copyright term consisting of the life of the author and 50 years after his death. The importance of the provision is borne out by the fact that the Register of Copyrights regards a "life-plus-50 term" as the "foundation of the entire bill". Such a term of protection would be more consistent with the practice of a very large majority of other countries that are members of the international copyright community. This provision would also remove a major obstacle to the possible adherence to the Berne Convention for the Protection of Literary and Artistic Works by the United States, Article 7 of which requires states party to the convention to provide such a term of protection. Such a change would facilitate and simplify international copyright protection for U.S. nationals. Therefore, the Department of State strongly supports the duration of copyright protection as proposed in Section 302. Section 601. Manufacture, Importation and Public Distribution of Certain Copies.

Section 601 relates to the so-called "manufacturing clause" which is designed essentially to protect the U.S. printing industry. Under Section 601 the importation into or the distribution within the U.S. of English language copies of certain works whose authors are U.S. nationals (living in the United States) or domiciliaries would be prohibited unless the copies are produced in, or made from type set in, or plates made in, the United States or Canada. Also compliance with the manufacturing requirements no longer would constitute a condition of copyright protection; the effects of noncompliance would be limited to rights with respect to reproduction and distribution of copies. Section 601 (d) provides a complete defense in any civil action or criminal proceeding for infringement of the exclusive rights of reproduction or distribution of copies where,

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 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 other wise 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 distrib uting 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 infringer for the sale of a single unauthorized copyrighted work.

Design patent protection would continue to be available, but a design patent and design protection under this title could not be maintained concurrently. Also, copyright protection for designs would be continued, except that if copyright protection and a design registration were obtained, the copyright protection would not extend to utilization of the design in the useful article protected by the design registrat on Today, original ornamental designs for useful articles may be eligible 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 pro tection against design piracy. Because of the relatively short-lived popularity of many designs, a patent in some cases cannot be secured quickly enough to provide any useful protection.

The expense in obtaining a design patent today results primarily from the fact that the Patent and Trademark Office must examine an application to determine whether it is "new, original, and ornamental." At the present time it takes almost 2 years to obtain a design patent. Until the patent is granted, the designer or manufacturer markets the design at his own peril, subject to it being freely copied. The alterna tive of withholding the design from the market until the patent issues

is practical in many industries where styles change rapidly and may even be seasonal.

Since the Supreme Court decision in Mazer v. Stein in 1954, the Copyright Office has accepted an increasing variety of registrations for des gns embodied in useful articles so long as they meet the criteria of being artistic. However, there are still many types of designs for which copyright protection is unavailable, for instance, furniture and appi.ances. Moreover, the term of protection in the proposed copyright law, life of the author plus 50 years, or even the present law, 28 years, is much too long for industrial designs which have a relatively short commercial life.

To exemplify the problems that exist under current practice we note complaints from domestic manufacturers that their designs have twn copied in certain foreign areas, particularly in the Far East. The inutations are then imported into and sold in the United States where they often enjoy a considerable price advantage over the article produced here. We believe that title II fills the need for more effective protect on for design originators from this type of unfair competition base it provides quick, inexpensive, and short-term protection for or ginal designs.

The Department of Commerce favors this legislation. However, we

d like to highlight some of our specific recommendations which bring title H of the bill more in line with other intellectual property protection both nationally and internationally and will generally #prove the protection offered.

Section 204(a) provides that protection for a design shall begin o' tue date when the design is first made publie. In subsequent sections tis rude clear that the design must be made publie bi fore an application for protection can be filed. This provision will put U.S. residents at a disadvantage if they desire to obtain protection of their design in fogn countries, many of which, for example, Japan, refuse protec toe, for a design which has been made publie prior to the filing of an a:: at on for registration.

In order to prevent the po sible loss of prote tron in foreign co 1tritol not be required that the design be made prible prior to feg tration. Instead, protection should commence on the date that the regniration as published in the United States as provided for in see

a) of the bill Protection which begins when the registraten av pålished would provide notice to the puble and wo od rot de the person des ring to protect his des gry out-ide of the United would also make tit e II consiste it with title I which has nuated the prior publication requrement for copyrig† protect on Spes.he statutor v lar gunge to effect this el angge will be spomitted to fat gremo at a later date.

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