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Federal pre-emption. The Subcommittee has accepted an amendment to section 301 specifically reserving state law protection for misappropriation of copy. right subject matter provided the relief is not equivalent to any of the exclusive rights within the general scope of copyright.

Prohibition against involuntary transfer8.-The Subcommittee has replaced the provision prohibiting expropriation of copyrighted works in section 1041C) with a new provision in section 201 (e) prohibiting involuntary transfers.

Ningle registration for several contributions to periodicals.-Two new subparagraphs have been added to section 408 (C) authorizing a single registration for contributions to a periodical by the same individual author under certain conditions.

Fee schedule.- A new schedule of fees has been added to section 708

Voluntary licenses for use of copyrighted works by the blind and physically handicapped.- A new section 710 has been added directing the Register of Cops. rights to establish by regulation standardized procedures under which the copyright owner grants voluntary licenses to the Library of Congress for the report duction of certain nondramatic literary works for use by the blind and physically handicapped.

Noncommercial broadcasts to handicapped audience.--A new clause (8) has been added to section 110 exempting the performance of a literary work on noncommercial radio and television stations to a “print or aural handicapped

audience.'

Derivative work right for sound recordings.--Section 114 has been amended to include among the rights granted to the copyright owner of a sound recording the right to prepare derivative works.

Criminal penalties.--Several amendments proposed by the Justice Department were adopted. The punishment for criminal infringement of a sound recording or motion picture copyright has been increased from one year to 3 years for the first offense, and from two years to seven years for subsequent offenses, section 50(a). A new subsection has been added to section 50/6 adding forfeiture and destruction of copies as possible penalties for conviction of copyright infringe ment, within the discretion of the court. A new section 509 has been added providling for possible seizure and forfeiture by the United States Government of infringing copies or phonorecords, including articles or devices used to carry out the criminal infringement.

Title II.--The Subcommittee adopted a series of changes recommended by the Department of Commerce with respect to sections 203-206, 209, 211-213, 227, and 229 of the Design Protection Act.

3. RECOMMENDED CHANGES IN TITLE I

Several of the amendments adopted by the Senate Subcommittee on Patents, Trademarks, and copyrights were either recommended by the Library of Congress and the Copyright Office, or have been endorsed by us. We specifically urge adoption of the following amendments.

Prohibition against involuntary transfers. We recommend the language adopted by the Senate Sul:committee in section 201(e) in lieu of the present section 104(c) of H.R. 2223. The new language is intended to establish on a statutory basis the principle that an involuntary transfer of the copyright interest will not be recognized under our law. Of course, traditional legal actions such as bankruptcy proceedings and mortgage foreclosures are not within the scope of the recommended language since the author has, in one way or another, consented to these legal processes by his actions. The provision is no longer di. rected against foreign governments since the same principle applies to the United States Government. While our courts have not addressed the precise issue of involuntary transfer, we believe the principle of the proposed section 201 (e) would be followed by the courts in construing the present law.

Federal pre-emption.--We endorse the change in section 301 adopted by the Senate Subcommittee which is intended to clarify that misappropriation relief may be provided under state law as long as the protection conferred is not equis. alent to the exclusive rights granted by the copyright law.

Single registration for sereral contributions to periodicals.--The basic principle ot this provision was originally suggested by Irwin Karp. (ounsel for the Anthors' League. The Library of Congress and the Copyright Office recommended it to the Senate Subcommittee, and the provision also appears in IR. 7149 (by Mr. Kastenmeier), which would amend the existing title 17 U.S.O. apart from the effort to effect a general revision of the copyright law. Separate original and renewal term registration is a substantial financial burden on individual authors and artists who contribute small or short works to a variety of daily newspapers and other periodicals. The proposed amendment to section 408 (C) would specifically authorize the Register, without prejudice to her general authority, to establish regulations permitting grouping of contributions by the same individual author for registration purposes.

Pre scherule-section 708.--The new fee schedule adopted by the Senate Subcommittee also appears in II.R. 7119, introduced by Mr. Robert W. Kastenmeier on May 20, 1975 at the request of the Library of Congress and the Copyright atlice. We found it necessary to propose general increases in the fee sche lule in view of the low ratio of recovery of the costs of the copyright registration system by car reeipts for services performed. We strongly urge inclusion of the new fre schedule in 11.R. 2223. We also take this opportunity to urge separate enactInrint of HR. 71 19 without a waiting general revision of the copyright law. The Tirision hill cannot become effective immediately upon enactment because of the ««lmaistrative preparation required to implement its provisions. Hence, we favor eanctuent of II.R. 7149 as soon as possible.

Voluntary license8 for use of copyrighted works by the blind and physically handing pued-aru sertion 10.-This provision also originated with the Library of (ongress and the Copyright Office, and we urge its addition to the revision bill It has the support of the American Association of l'uilishers.

I'nit'ersal ('opyright Comrention.--We propose a terhnical amendment to see tion 1041b) (2) in view of the 1971 revision of the Universal Copyright Conven1101, Line 25 of page 7 should read "1952 or 1971 Universal Copyright Convention; or".

4. GENERAL COMMENTS ON TITLE II

Tresign legislation has been pending before Congress even longer than the current efiorts at omnibus copyright revision. Title II of II. R. 9-3, the pain I'roteciion Act, represents the current version of design legislation. The proposal has been retined through years of study, debate, consideration, and amenda rent. The Library of Congress and the Copyright Office have supporto this legislation in the past, and we reiterate our strong endorsement of the presint

!), especially since the present version appears to resolve many issues that diIn sorl enactment of separate design legislation.

The Design Protection Act would create a new form of protection for designs basert upon modified copyright principles and would bridge the gap between existing design patent and copyright protection for ornamental designs of useful articles. This new form of protection is needed to correct deficiencies in the protection accorded by existing law. For example, although the ('oppright Office registers certain ornamental designs of useful articles which qualify as "works of art," it must refuse registration for numerous equally attractive or meritorions designs, because they do not display separate work of art authorship apart from tlie utilitarian aspects of the article. On the other hand, design patents are judred by the high patent standards of novelty and non-obviousness. The patent is dithcult and expensive to obtain, and most designs do not survive a court test,

The Design Protection Act avoids these pitfalls. It is specifically tailored to meet the demonstrated need for protection of ornamental designs of useful articles with due regard for the interests of consumers and their representatives, the product retailers. The bill adopts the copyright standard of originality. but the term of protection is short in consideration of the public interest in free coinpetition among product designs.

We accept in general the amendments adopted by the Senate Subcommittee with respect to title II. However, we have some hesitation about the amemuiment to section 203. adding the requirement that protection may be accorded to a revision, adaptation, or rearrangement of design subject matter only if the changes are substantial. We agree with the amendment provided the substantiality of the revision is judged hy traditional copyright standards of originality. We wonid not support the change if there is any possibility that it would be construed to establish a stricter standard of originality than that established in

Action 201 (b) (4). If the House Judiciary Committee adopts this language. We recommend a clarification in the report that the amendment in no way derogates from the section 201 (b) (4) standard of originality.

Finally, we point out that the bill presently does not indicate which agency will administer the Design Protection Act. Under section 230, the Administrator will

be designated by the President. In order to assure administrative preparation for implementation of the Design Protection Act, the Congress may wish to designate the Administrator directly in the bill. The Copyright Office would be willing to assume this responsibility, as the Congress or, under the present bill, the President directs. Sincerely,

JOAN G. LORENZ. Acting Librarian of Congress.

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,

Washington, D.C., September 5, 1975. Hon. PETER W. Rodino, Jr., Chairman, Committee on the Judiciary, House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: This is in further reply to your request for the views of the National Aeronautics and Space Administration on the bill H.R. 2223, "For the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes."

Title I of the bill provides for a general revision of the United States Copyright Law, title 17 of the United States Code. Title II establishes a new type of protec tion for original ornamental designs of useful articles. Set forth below are comments on specific provisions of the bill which would have a direct impact on NASA's activities and liability.

TITLE 1 Gorernment Works

The proposed legislation obviates some of the ambiguities present in the current copyright law with respect to Government works. Sec. 105 of the bill prohibits copyright in any "work of the United States Government," which is defined in Sec. 101 as "a work prepared by an officer or employee of the United States Goyernment as part of his official duties." The present law prohibits copyright in a "publication of the United States Government" (Sec. 8), but does not define the latter term. The proposed legislation adequately reflects case law and customary practice within the executive branch, which have established that works prepared by Government officers or employees as part of their official duties are "Government publications" within the copyright prohibition.

Some previous copyright revision bills have defined a Government work as one prepared by an officer or employee "within the scope of his official duties or employment." The latter was considered objectionable because it was ambiguous and subject to a much broader interpretation. For example, it could be construed as prohibiting copyright even where an officer or employee voluntarily wrote a book on his own time which was somehow related to his employment.

Sec. 105 also clarifies the right of the Government to receive and hold copy. rights transferred to it by assignment, bequest, or otherwise, thus obviating an. other uncertainty in the current law.

Since H.R. 2223 abolishes common law copyright protection and extends statutory copyright protection to published and unpublished works (Sec. 104 and Sec. 301), in our view the copyright prohibition of Sec. 105 would apply to both published and unpublished Government works as this term is defined in Sec, 101.

VASA is still of the view, expressed in comments submitted to the Committee on previously proposed legislation (e.g., H.R. 4317, A9th Congress, 1st Session, 1965), that copyright protection should be available for Government works in exceptional circumstances. This would give NASA the opportunity to enter into competitive negotiations with private publishing firms in exceptional cases so that selected NASA publications could receive the widest possible distribution as required by Section 203(a) of the National Aeronautics and Space Act of 1958. The negotiating position of the Government depends on its ability to provide copyright protection for a period of time to the publisher in exchange for distribution and related services. If necessary, the rights of the Government to copyright in such exceptional cases can be limited to a shorter period of time; for example, 5 years (rather than the full term), which may be sufficient time for the publisher to regain his initial publishing costs. Accordingly, it is recommended that the following subsection be inserted in Sec. 105:

"In exceptional cases, copyright may be secured in a published work of the United States Government where, because of the special nature of the work or the circumstances of its preparation, it is determined that copyright protection would result in more effective dissemination of the work or for other reasons would be in the public interest. The head of the Government agency for which the work was prepared shall make the determination in each case in accordance with regulations established by an administrative officer designated by the President, and aliall publish a statement of the basis for its determination in each case in the ma aner specified by such regulations."

It is strongly urged that Sec, 105 be amended to specify that the copyright prohibition for Government works apply only to domestic copyright protection. This would be done by inserting the phrase "within the United States" after the word "available" in line 1 of Sec. 105. It is a commonly held opinion, although not established by case law, that the prohibition against obtaining copyright in the Government applies to domestic copyrights only. Thus, in this Tie, the Government may copyright abroad when that serves its best interests. Woile we feel that many foreign signatories to the Universal Copyright ConFention would bonor the copyright of the U.S. Government in their respective (untries under the Convention, some nations might take the position that a Is Gorernment work cannot receive copyright protection anywhere.

The inasic rationale for prohibiting copyright protection for C.S. Government works is that American taxpayers have paid for these works through tax assessments and should bave access to them free of copyright restrictions. This rationale does not require a giveaway of U.S. Government works to foreign nacionals and foreign governments. Most foreign countries provide domestic copyright protection for publications of their governments, and publications of foreign governments are accepted for copyright registration in the United States, Prept for statutes, court opinions, and similar official documents which are considered inherently uncopyrightable. Among the benefits which would accrue from asserting copyright abroad in selected U.S. Government works are: (a) imprirements of our negotiating position with certain countries; (b) royalties Culd be collected, thereby aiding our balance of payments; (c) protection of the integrity of U.S. Government works; and (d) greater dissemination it American publishers were licensed to distribute C.S. Government works through p alli hed distribution outlets abroad.

It is also recommended that a subsection similar to that appearing in the curr nt law, 17 U.S.C. 8. be inserted in Sec. 105 of H.R. 2223, that is:

*i'uilication or other use by the United States Government of any material 19 which copyright is existing does not impair the copyright or authorize any f'irt her use or appropriation of the material without the consent of the copynicht other."

It is believed desirable to retain such a provision in the statute to provide a runces to authors and to preclude the argument that deletion of this pro

Fision from the present statute implies that such protection is no longer available. Pre-emption With Respect to Other Laros

key provision of Title I of H.R. 22:23 is Sec. 301, which would establish a single system of statutory protection for virtually all copyrightable works whether published or unpublished. Under Sec. 301, a work would obtain statlla tort protection as soon as it is "created" or, as the term is defined in Sec. 101, When it is "fixed in a copy or phonorecord for the first time."

Sec. 301 (b) provides that nothing in the title annuls or limits any rights or relies under the common law or statutes of any state that are not equivalent to ans of the exclusive rights within the general scope of copyright, such as breaches of contract. No mention is made of Federal statutes such as the Tucker Act, 2 G.S.C. 1491, which permits suit against the Government for breach of an express or implied contract. Undoubtedly, it was not intended that such a Frederal statute be preempted by the copyright revision. It is recomiended, therefore, for clarification purposes, that Sec. 301 (1) he amended by inserting the phrase "under Federal statutes or" after the word "remedies" on line 1.

similar omission occurs in Sec. 117 and it is suggested that the phrase *title 17" be replaced by "this or other title of the (nited States Code."

Sec. 502(a) provides that any court having jurisdiction of a civil action arising under the title may, subject to the provisions of section 1498 (b) of title 29, grant injunctions to prevent or restrain infringement (emphasis added). It is repommended that the phrase "subject to the provisions of*' be replaced by "**xcept in actions against the Government under" to clarify the exclusive Jurisdiction of the Court of Claims under 28 U.S.C. 1498 (b). Inpublished Works

28 U.S.C. 1498(b) provides for a cause of action against the Government for infringement of “copyright in any work protected under the copyright laws of the t'nited States." This waiver of sovereign immunity has been construed not to embrace common law copyright, i.e., unpublished works. See e.g., Porter et al. v. United States, 473 F 20 1329, 117 USPQ 238 (CA 5 1973). Since H.R. 22:23 protects unpublished as well as published works, the Government's liabilits will be extended. It is urged that 28 U.S.C. 1498 (b) be amended so that it continues to restrict the Government's liability for copyright iufringement to "published" works only. Government agencies receive a voluminous amount of material from private sources which does not bear a copyright notice and which is reproduceri, distributed, etc. in its day-to-day business activities, for example, under the Freedom of Information Act. It would be extremely difficult, if not impossible, to ascertain whether the material submitted has been published with no intent to claim copyright, or whether it is unpublished and the owner intends to claim copyright protection.

The effect of compliance with the Freedom of Information Act (FOIA) on the Government's liability for copyright infringement also needs clarification. If a document requested under the FOIA bears a copyright notice, the requestes can be so advised and will usually be able to secure a copy elsewhere. Where the document requested contains no copyright notice, it may be an unpublished work subject to protection under the proposed copyright revision, and providing access or a copy may very well frustrate the copyright owner's desi.es and subject the Government to liability. We are concerned whether the furnishing of a copy of a document by the Government under the FOIA will be coaxidered excusable, or a form of fair use. Of course, if a document is released under FOIA, the Government may not itself restrict its use by others. For clarification purposes, it is recommended that language be inserted in H.R. 2223 explaining the fair use doctrine's applicability to unpublished works and the Government's release of documents under the FOIA. Innocent Infringers

Under Sec. 405 (b) an innocent infringer who acts in reliance upon an authorized copy or phonorecord from which the copyright notice has been omittel, and who proves that he was mi: led by the omission, is shielded from liability for actual or statutory damages with respect to any infringing acts committed before receiving actual notice of registration. No protection is spelled out in the proposed legislation for an innocent infrinzer who relies on an unauthorized copy or phonorecord of a published work from which the copyright notics has been omitted; or for an innocent infringer of an unpublished work, i.e., one who relies on a copy or phonorecord which has been published without authority of the owner. Publications Incorporating Works in the Public Domain

Sec. 403 of HI.R. 2223 provides that when a work is published in copies or phonorecords consisting preponderantly of one or more Government works, the notice of copyright shall also include a statement identifying the portions embodr. ing work protected under Title 17. It is NASA's opinion that Sec. 403 is too limited and that it would be in the public interest to require such a statement also where a work consists preponderantly of any material that is in the public domain. We recommend that Sec. 403 he amended by adding the phrase "or works in the public domain" after the word "works" in the heading and before the words "the notice" in line 3 of the body of the section.

TITLE II Our remaining comments are directed to Title II of II.R. 2923. It is assumed that the word "title" in the various sections refers only to Title II dealing with ornamental designs. It is not apparent where Title II will appear in the United States Code. If Title II is placed under Title 17, difficulties in construction may ensue. For example, the definitions set forth in Title I of H.R. 2223 dealing with copyrights might be construed as being applicable to Title II also.

It is suggested that paragraph (b) of 25 C.S.C. 1498 be amended to include registered designs rather than paragraph (a). (See Sec. 232.) The process for creating rights in registered designs is more closely analogous to copyrights, Furthermore, the specific authorization for the administrative settlement of copyright infringement claims set forth in paragraph (b) (and not present in paragraph (a)) would be made applicable to registered designs, which in our opinion is highly desirable.

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