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et to effect a general revision of the copyright law. Separate original and rerewal term registration is a substantial financial burden on individual autuors B-4 artists who contribute small or short works to a variety of daily newspapers artofter periodicals. The proposed amendment to section 40%te) wonid specifkay a thorize the Register, without prejudice to her general authority, to estand sh, regalations permitting grouping of contributions by the same indivizual author for registration purpOSER.

For ache 'ule section 70% - The new fee schedule adopted by the Senate 80% ectruiter niso appears in HR 7149, introduced by Mr Robert W Kastenmeier on May 29, 1975 at the request of the Library of Congress and the Coʻyright one We found it necessary to propose general increases in the fee sche lüle in ven of the low ratio of recovery of the costs of the copyright registration system br can receita for services performed. We strongly urge in-lusion of the n w fw wet, she te in HR-223 We also take this opportunity to urge separate eza t ***HR 7119 without awaiting general revision of the copyright law The ↑ vxon ball cat hot bet the effective immediately upon erinctment be utte of the alute tave i reparation required to implement its provistons, lience, we favor •* *2# %* of }! I 7149) Noon as posstile,

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my lo crack for use of copurghted work a bu the bỉnd and phunica is Iga vapen - new section 719 - This provision also origin tei with the Ly of Can gress aid the Copyright Office, and we urge its au lition to the revisa sk It la x 'Le supnort of the Amerman A soci ition of Publishers,

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ight Contenten Ventojas) a techn est amendment t› mone 102) 11, VIW of the 1971 revision of the Laiversal (6,91% at Cavea • lite då of jo je 7 should read 132 or 1971 Universal Copyright Conventa aka

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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 re
willing to assume this responsibility, as the Congress or, under the present bus
the President directs.
Sincerely,

JOHN 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, "Fir 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 Copyrizat Law, title 17 of the United States Code. Title II establishes a new type of protees 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 of NASA's activities and liability.

Government Works

TITLE I

The proposed legislation obviates some of the ambiguities present in the current copyright law with respect to Government works, Sec, 105 of the bill prob: 128 copyright in any "work of the United States Government," which is dented in Sec. 101 as “a work prepared by an officer or employee of the United States Gorernment 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 custoHaarf practice within the executive branch, which have established that works prepared by Government officers or employees as part of their official duties are "Govera ment 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 em ployment." The latter was considered objectionable because it was ambiguous and subject to a much broader interpretation. For example, it could be construed 18 prohibiting copyright even where an officer or employee voluntarily wrote a look on his own time which was somehow related to his employment.

Sec. 105 also c'arifies the right of the Government to receive and hold es pỹrights transferred to it by assignment, bequest, or otherwise, thus obviating another uncertainty in the current law.

Since HR. 2223 abolishes common law copyright protection and extends statutory copyright protection to published and unpublished works (Sec. 104 and See. 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. NASA is still of the view, expressed in comments submitted to the Commi"'ée on previously proposed legislation (eg, HR. 4347, 8th Congress, 14 Sovet f 1965), that copyright protection should be available for Government works in exceptional circumstances This wou'd give NASA the opportunity to enter inte 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. According'y, it is recommended that the following subsection be inserted in See 105:

"In exceptional cases, copyright may be secured in a published work of the United States Government where, because of the speelal 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 În accordance with regulaf. es established by an administrative officer designated by the President, and sono pacash a statement of the basis for its determination in each case in the manner specifled by such regulations."

It is strongly urged that Sec. 105 be amended to specify that the copyright *** on for Government works apply only to domestic copy right protection, and 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 opini ən, alta' Lot established by case law, that the prohibition against obtaining copyThe Government applies to domestic copyrights only. Thus, in this Varm the Government may copyright abroad when that serves its best interests, 11 e me feel that many foreign signatories to the Universal Copyright Cona wotad honor the copyright of the US Government in their respective tres under the Convention, some nations might take the portion that a 1% forernment work cannot receive copyright protection anywhere.

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savo rationale for prohibiting copyright protection for U 8 Government as that American taxpayers have paid for these works through tax assess » and should have access to them free of copyright restrictions. This ratite does not require a giveaway of U.S. Government works to foreign vals and foreign governments. Most foreign countries provide domestic copy » protection for publications of their governments, and publications of fotogi, governments are accepted for copy right registration in the United States, s" for statutes, court opinions and similar offcial documents which are conated inherently uncopyrightalle Among the benefits which wou'd acerne asserting copyright abroad in selected US Government works are (a) z vecante of our negotiating position with certain countries; (b) royaltieng de erected thereby aiding our balance of payments; (C) protection Party of US Government works, and (d) greater dissemiad aon f spa were licensed to distri ure 18 Government works fishgħ «f»li»tri? (ution outlets retopogui.

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milar to that appearing in the

as Use be inserted it. See 165 of HR 1223 that is
alon or other use by the Laited St tes Government of any material
vrig af in exì ting dœs not i; var the epvri ht or int.. *. any
or appropriation of the material with I the cotiseut of the ey

legroved desirable to retain such a provat în În the statute to provide es to authors and to preclude the argument that deletion of t? is pitota the prescut statute img izes that wu zi protection is no longer avalalie, mation With Respect to Other Laws

1° vision of Te I of HR 2.29 is see 501 which wond establish a
of statutory protection for vitatav all copata daje wyẪN
puttsted or unpublished Under Sec 301, n work would obtils wat je
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a) by provides that nothing in the title at 1. és or lin..d's any rig* te or
der the common law or stitutes of any sture that are 1, if eqilyotent
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A? Cli....8% of Occurs in Sec 117 and it is suggested that the phrase

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Two Icancha provides for a cause of action against the Government for an ent of renginight in any work protected under the copyright laws ĐẸ Ted M'ates Inis waiver of monety pa klub.ty has been construed at

to embrace common law copyright, i.e., unpublished works. See e.g., Porter et al. v. United States, 473 F 2d 1329, 117 USPQ 238 (CA 5 1973). Since HR. 23 protects unpublished as well as published works, the Government's liability wal be extended. It is urged that 28 U.S.C. 1498(b) be amended so that it contantes to restrict the Government's liability for copyright infringement to "publasted" works only. Government agencies receive a voluminous amount of material from private sources which does not bear a copyright notice and which is reproduced, distributed, etc. in its day-to-day business activities, for example, under thes Freedom of Information Act. It would be extremely difficult, if not imposć uru 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 clarinet Nike If a document requested under the FOIA bears a copyright notice, the requint can be so advised and will usually be able to secure a copy elsewhere. Wiere the document requested contains no copyright notice, it may be an unpabused work subject to protection under the pr posed copyright revision; and providing access or a copy may very well frustrate the copyright owner's desi es ..1 subject the Government to liability. We are concerned whether the furns, ing of a copy of a document by the Government under the FOLA will be ect gheni exeusable, or a form of fair use. Of course, if a document is releasevi un fer FOLA, the Government may not itself restrict its use by others. For clarificata purposes, it is recommended that language le inserted in HR. 2223 evolut. A the fair use doctrine's applicability to unpublished works and the Government * release of documents under the FOLA.

Innocent Infringers

Under Sec. 405(b) an innocent infringer who acts in reliance upa an authorized copy or phonorecord from whichte copyright notice has been oudel, and who proves that he was rai led by the orission, is shielded from 115K for actual or statutory damages with respect to any infringing nets coated before receiving actual notice of registration. No protection is spelled out in tr proposed legislation for an innocent infringer who relies on an undethery cả copy or phon record of a published work from which the eng right neto 1s been omitted; or for an inuent infringer of an unpublished work, 12, 68 who relies on a copy or photorecord which has been published without a ifuori 3 of the owner.

Publications Incorporating Works in the Public Domain

Sec. 403 of HR. 2223 provides that when a work is published in copies of phonorecords consisting preponderantly of one or more Government works, the notice of copyright shall also include a statement identifying the portions ezabodve ing work protected under Title 17. It is NASA's opinion that Sec. 463 is too limited and that it would be in the pulic interest to require such a statement also where a work consists preponderantly of any material that is in the public domain. We recommend that See, 403 le viended by adding the phrase "or works in the public domain" after the word "work" in the heading and before tLe words "the notice" in line 3 of the body of the section.

TITLE II

Our remaining comments are directed to Title II of IIR. 3. It is nestled that the word "title" in the varions sections refers aly to T,'le II den' ng with ornamental designs. It is not apparent where Title II will appear in the Unrel States Code, If Title II is placed under Title 17 d. vlties in construction tuss ensue. For example, the definitions set forth in Title I of HR 223 dealing wick copyrights might be construed as being applicable to Title 11 also,

It is suggested that paragraph cho of 25 USC. 1198 be amended to include registered des gus rather ↑) in pragraph (a), (Sen See, 232). The process for creating rights in registered desus is more elsely analogous to copyriga's Furthermore, the spe ifle authorization for the adnanostrative settlement of Copyright infringement claims set forth in paragraph (lo) (and not present in paragraph (a)] would be made applicable to registered designs, Walch in our opinion is highly desirable.

In the event 25 USC 1498 m) is amended as set forth in See 232, It is recompened that the phrase 'described in and covered by a patent of the United

be inserted after the word invention" in the first line. This will reinstate @al','k'ge forsent in the current law with respect to patented inventions and ea was probably inadvertently onitted Onitting this language might be erupted as a broadem:g of the Government is liability to cover unpatented

et to the foregoing, the National Aeronautics and Space Administration 1 'ave no of section to the ena tmeat of HR_2.24.

i e offre of Minagement and Budget has advised that, from the standpoint độ hẹ Alu hartiations program, there is no objection to the submission of this rejert to tie C sugress,

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Jos PHP ALLEN, Assistant Administrator for Legislative & Jaira,

Whereupon, at 122) p.m. the hearing adjourned to reconvene at

1a 1a, on May 14, 1974.]

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