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to embrace common law copyright, i.e., unpublished works. Seee.g., Porter et al. v. United States, 473 F 20 13:9, 117 USPQ 235 (CA 5 1973). Since H.R. 221 protects unpublished as well as published works, the Government s liabusw. be extended. It is urged that 28 T.S.C. 1498 (b) be amended so that it tilator to restriit the Government's liability for copyright infringement to "pulianel works only. Government agencies receive a roluminous amount of material tre private siurces which does bot bear a copyright notice and which is reprodukte distributed, ete, in its day-to-day business activities, for example, under the Freedomu of Information Art. It would be extremely ditħcult, if not inadmil.com, to ascertain whether the material submitted has been published with no intent to rlaim copyright, or whether it is unpublished and the owner intends to clai copyright protection,

The effect of compliance with the Freeciom of Information Act (FUJAI the Government's liability for copyright infringement also nerds clarinqo the If a document requested under the FOLA bears a copyrigbt notice, the ", can be so advised and will ually be able to secure a copy where I pu*** the document requested contains no copsrigat notice, it may be an unbied work subject to protection under the pripwont il copyright revision; and portid apps or a copy my very Hr!! frustiate the copyright owner - denimit xulijeet the Government to liability. We are concerned whether the furi, of a cops of a document by the Governolit u..lor the FOA till lei Pabile, or a form of fair u**. Of course, if a duculent is releasi un FOLI. the Government may not itself restrict its used by others. For cierit , # prirjainers, it is recommended tant language le incastri in H R. 1.3 exului, their wwe dewtrine's applicabilitr to unpublished works and the Governal.eu releave of decuments under the FOLI. Innorant Infringers

lünder Sec. 4056b) an innent infrings who acts in rilance upan authorised grips or phonorecord from w!, popright notjie has won 44.}***, 810 10 1 rols that I • W 1 lít 1 • y t' ? - 11. js sit 1: 1 tr : 1 . " for actual or statutory damaging with ***** to any infringing sets (4!.." before receiving actual notice of registration Nos priorition is led on: 11 propund lass-lation for an 1111}****nt infrin op who relies on an unarii copy or pion record of a published work for alle tre penik't D... " been omittedor for an inu *** inf. uger of an unpublished work. 1,5 who relies on a copy or photorecord white bax lwen published without a 1.51 of the owner, Publications Incorporating Works in the Publin Domain

Sec. 403 of ILR 23 proride that we work is published in cople or phonorecords consisting preponderantis of one or more Government with them

** of copyright stall also include a t itell-111 identifying the portion (wall ing work protected under Title 11. !t is ISA's opinion that sec. 463 is tim litunted and that it would be in tlie putzu lie limfent furnire rich anstre of Pla Wiere a work eonimin preponderantis nauy material that is in the publie domnia. We recommrad that mere. #013 te quiereberi oy asking the phrasp or with in the public domain" after the word "**'in in the trading and before (Les words “tlie notice" in line 3 of the body of the section.

TITIE II

Our retaining commente a me d!rreto to Title II of II R. **3It i* 9***1!12! that the word "title in the variune spre ropu proformly to Ti'l II dea!.0 *' poruan.toppesi dealer. It is not opene alppp To I will aj mir iu the l'ui'ral Sintens de 17 Tile Il in pelancond wisdor T.: le 17 d. ption in the truck stuur enne. For etarripile, the delineens met forth in T: 1 of IR3 deal.us ** Copyright might be construed as tinkamas to Title 11 al.,

It In Line!« that barnkapih obiit 19 boven miler de to inelude riristend dem rat?:er pan piram!;li Gai No Souto Ionto pravu for creating richen in minderd de los in mo. Clems suaus torm', Furthermore, the wļota idir authorization for the 1.1. menite spelesetet op cungsiz!! Infringement claims et Pored in a remarkab, kuid net prauit in parterapih all old toe tiddle abilibule iu ir inicial de len, wie in our (pinion is higl.ly desirable,

1ere esat* '. 147.81 ls amendalas w forth in Spr 232. It is sproti E. 1. . tiselt the piramo desetiled in and served fly a fent of the lutad Widos lw it.sproel fer the word 'Intention" in the first line. This will reiati , ! mal'. s** bist in de current law with respect to patented inventions all!

.. 1 was got 1 ly 11.1111 ereutly olit - 0 it 11: tits li U21 5 lít, 14" .: maripoind as a lovade thai 5 (of the Guierlineu* liability to wier unpatented

t to the fore Bullik, the Vatlonal Aeronaner* and 8448 Administratif !1!are au option toon to listen t, *11.7.st of IR". Titre of 1'11 agitant and Bidst has noted that, from the standijwilaat per la lll....... Br is * proglalu, ibere is no obojer 300 to the subuni son of this I;15 *1t.pinte istirly.

Joh • PH PArrx. .
Anstant Administrator

Tir legislatie Agaire, Weron, at 12") p.m. the hearing a journed to reconvene at 1. a 1.0 M 11,1:.)

Federal pre-emption, --The Subcommittee has accepted an amendment to tion 301 specitically reserving state law protection for misappropriation of any su right subject matter provided the relief is not equivalent to any of the excusit nights within the general seape of copyright.

Prohibition against involuntary transfer8.—The Subcommittee has replaced the provision prohibiting expropriation of copyrighted works in se ti o lote, with a new provision in section 201(e) prohibiting involuntary transien

Ningle registration for several contributions to periodicals.-Two Dee fb paragraphs have been added to section 408 (c) authorizing a single reelne for contributions to a periodical by the same individual author under artana conditions.

Fre schedule.-A new schedule of fees has been added to sertion 70k

Voluntary licenses for use of copyrighted works by the blind and phones ay handicapped.--A new section 710 has been added directing the Register of taso rights to pptablinh by regulation standardized procedures under which the 45right owner grants voluntary licenses to the Library of Congress for the tous duction of certain nondramatic literary works for use by the blind and physical handienpped.

Annumurcial broadrasts to handicapped audience.--A new claume has pwen added to sertion 110 exempting the performance of a literary work + commercial radio and television stations to a "print or aural banknagel audience."

ja mugtire uork right for sound recordings.- Section 114 has been amended to incinde among the rights granted to the copyright owner of a sound recording ** right to prepare derivative Works.

t'riminal penalties devernl amendments proposal hy the Justice Department were ampteil

. Tle pnininkment for criminal inirincement of a wound peripetingie Inution pesure con right bus len inurrased from one year to 3 years for the first offence, and from two sears to seven years for rulisequent offenps, *** 5#1), A new substion has been added to sertion i adding forfetture 2014 (struction of coprire # pwwwible posities for convirtion opsriht infringe ment, within the discretion of the cont. A new section 509 has twen addetto wwing for posibles motszure and forfeiture by the United States traces! infringing aptes or phonorecords, including articles or devices used to carry east tim isimial infringent.

Title 11.-The Subsmitter adopted a series of changes separan manded hr ohne Dwarmthit of Commerte with rep*** to sixtions 203 273, 43, 211 212, 27, and

of the 1)psiga Protection Art.

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

John G. LORENZ Acting Librarian of Cungre

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,

Washington, D.C.. September 3, 1985, Hon. PETEK W. Rodixo, Jr., (hairman, Committee on the Judiciary, House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: This is in further reply to your request for the riess of the National Aeronautics and Space Administration on the bill H R. 2-3, *.* the general revision of the Copyright law, title 17 of the l'nited States (ade, and for other purposes."

Title I of the bill provides for a general revision of the t'nited States (print Law, ritle 17 of the United States Code. Title II establishes a new type of private tion for original ornamental designs of useful articles, Set forth below are ments on specific provisions of the bill which would have a direct impact NASA's activities and liability.

TITLE 1

Gorrrnment Works

The proposed legislation obviates some of the ambiguities present in the current copis right law with respect to Government works, Sec. 105 of the bill prui. opyright in any work of the (nited States Garernment," which is comment in Se joj as "a work prepared by an officer or employee of the United Starter ernment as part of his uffcial duties." The present law probibits copyrime it. ! **}*ication of the United States Government" (ser »), but does not dealne type latter term. The proposed legination adequately reflects case law and costLLIT practice within the executive branch, which have eniablished that work programme bis Gvernment officers or employers as part vf their oficial duties are Gone? ment publications" witnin the copyright prohibition.

Siren previous topsright revision bills hare detined a Gorernment work as 1:1 prejaradi by an officer or employee "within the scope of his off.ial dutiv* *pes plus ment." The latter was eritridered objectionable because it was ambiguoju and 233ext to a much broader interpretation. For example, it could be construel 15 prostbiting copyrighe even where an officer or employee soluntarily write a los on his own time which was somehow related to his employment,

She', 105 also c'arifies the right of the Government to receive and held rights transferred to it box avuignment, bequest, or otherwise, thus obsisting 32otermnertaints in the current law

S.1H HLR 3 abolishes an law copyright protection and extende statutots psright protention to published and unpublished work Sec, 104 and see 3011. in our view the copyright prohibition of Spr. 100 would apply to build dinhoud and unpublished Government works as this term is defined in Sec. 101

NASA is still of the view, expressed in comments sulmitted to the Committee on personuly proved legumlation 16%. HR. 1317. S fingre. 104 S. She 19h, that copyright proteinastould be arailable for Gorernment work 10 erreptional cireimutancex This would give NASA the opportunity to enter 11.** pompoe!!!!!e negotiations with private pub}whing firms in errepilfonal ca***nt at

tre! VANA polleatiin vuld replre the widot pamas be diuerfitation de re quired by Win 2036 al of the National Arronautics and Space Act o! 115* The neulatins posthus of the camernment depends on its ability to provide export pruttoon lip a *pod istime to the punisher in exchange for at atribution and mes ground prices If nexpears the rights of the Government to copyright in such erryptional care con la limited to a shorter perlux of time; for example 5 ans inalier than the fall term), which may luthient time for the pubfaljer to regain his initial publish'n 141**. Artwrding's, it is recommended that the ful\*. * 1}}wtion fe fumeriert in der 105 :

"In exceptional cases, cupright may be afraid in a published work of the l'ne (insement sure, beat*suap of Bir werial nature of the work of the circumstances of !* preparation, it is determined that copyright protection would rewrit in more effertire di swamination of the work or for other reasons would be in the public interest. The bead of the Gorernment agency for which the work was

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