Federal pre-emption.-The Subcommittee has accepted an amendment to se tion 301 specifically reserving state law protection for misappropriation of e45. right subject matter provided the relief is not equivalent to any of the exclare rights within the general scope of copyright. Prohibition against involuntary transfers.-The Subcommittee has replaced the provision prohibiting expropriation of copyrighted works in section 10405with a new provision in section 201(e) prohibiting involuntary transfers Ningle registration for several contributions to periodicals.-Two new sub paragraphs have been added to section 408 (c) authorizing a single registratam for contributions to a periodical by the same individual author under certa 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 phynesấy handicapped.~A new section 710 has been added directing the Register of Cejr rights to establish by regulation standardized procedures under which the c05-4right owner grants voluntary licenses to the Library of Congress for the repre duction of certain nondramatic literary works for use by the blind and physica....! handicapped. Noncommercial broadcasts to handicapped audience.~A new clause (8) has been added to section 110 exempting the performance of a literary work on bon commercial radio and television stations to a "print or aural handicapped audience." Derivative work right for sound recordings.—Section 114 has been amended t irende 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 recorting t 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, sectid 506(n). A new subsection has been added to section 306 adding forfeiture and destruction of copies as possible penalties for conviction of espyright infringe ment, within the discretion of the court. A new section 309 has been added porn viding 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 Degar ment of Commerce with respect to sections 203–206, 209, 211 213, 227, and 2:29 of the Design Protection Act. 3. RECOMMENDED CHANGES IN TITIE I Several of the amendments adopted by the Senate Subcommittee on Paten's Trojemarks, and Cooyrights were either recommended by the Iibrary of Congress and the Copyright Office, or have been endorsed by us. We specifically urge adej» tion of the following amendments. Prohibition against incoluntury transfers —We recommend the language aconted by the Senate Sul committee in section 201(e) in lieu of the present section 104(0) of HR. 2213. The new language is intended to establish on a statuto, y basis the principle that an involuntary transfer of the copyright interet will not be recognized under our jaw of course, traditional legal netier 4 sach as isnkruptcy proceedings and mortgize foreclosures are not within the scope of the recommended lat zu ge since the author has, in one way or another, consented to these legal processes ov las actions The provision is no longer directed against foreign governments since the same principle applies to the United States Government. While our courts have not addressed the precise issue of 10voluntary transfer, we believe the principle of the proposed section 201(e) would be folowed by the courts in construing tãe present in w. Poderol pre emption We endorse the change in section 301 adopted by the Senate Subcommittee which is inunded to clarify that misappropriation rel of may be provided under st ite law as long as the protection conferred is not equivalent to the exensive rights grafted by the copy" gât law. Sing'e registration for several on vibutions to periodicala.—The basic principle of this prov sion was origéully suggested by Irwin Karp Connsel for the Aathors' Leagne, The Library of Congress and the Copyright Office recommended it to the Set ste Subcomnattee, and the provision also spomes in HR 71M (Y Mr. Kastenmeler), which, Would amend the existing title 17 U 8 C 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. Fee schedule-section 708.-The new fee schedule adopted by the Senate Subcommittee also appears in H.R. 7149, introduced by Mr. Robert W. Kastenmeier on May 20, 1975 at the request of the Library of Congress and the Copyright Office. We found it necessary to propose general increases in the fee schedule in view of the low ratio of recovery of the costs of the copyright registration system by cash receipts for services performed. We strongly urge inclusion of the new fee schedule in H.R. 2223. We also take this opportunity to urge separate enactment of HR. 7119 without awaiting general revision of the copyright law. The revision bill cannot become effective immediately upon enactment because of the administrative preparation required to implement its provisions. Hence, we favor enactment of H.R. 7149 as soon as possible. Voluntary licenses for use of copyrighted works by the blind and physically handicapped-new section 710.-This provision also originated with the Library of Congress and the Copyright Office, and we urge its addition to the revision bill It has the support of the American Association of Publishers. Universal Copyright Convention.—We propose a technical amendment to section 104(b) (2) in view of the 1971 revision of the Universal Copyright Convention. Line 25 of page 7 should read “1952 or 1971 Universal Copyright Convention; or". 4. GENERAL COMMENTS ON TITLE II Design legislation has been pending before Congress even longer than the current efforts at omnibus copyright revision. Title I of HR. 2223, the Design Protection Act, represents the current version of design legislation. The proposal has been refined through years of study, debate, consideration, and amendment. The Library of Congress and the Copyright Office have supported this legislation in the past, and we reiterate our strong endorsement of the present boll, especially since the present version appears to resolve many issues that dolayed enactment of separate design legislation. The Design Protection Act would create a new form of protection for designs based 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 Copyright Office registers certain ornamental designs of useful articles which qualify as "works of art," it must refuse registration for numerous equally attractive or meritorious designs, because they do not display separate work of art authorship apart from the utilitarian aspects of the article. On the other hand, design patents are judged by the high patent standards of novelty and non-obviousness. The patent is difficult 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 competition 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 amendment 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 by traditional copyright standards of originality. We would 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 section 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 wat d designate the Administrator directly in the bill. The Copyright Office wond e willing to assume this responsibility, as the Congress or, under the present the President directs. Sincerely, JOHN G. LORENZ Acting Librarian of Congres NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Hon. PETER W. RODINO, Jr., Chairman, Committee on the Judiciary, DEAR MR. CHAIRMAN: This is in further reply to your request for the viewsť the National Aeronautics and Space Administration on the bill HR. 23, "t 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 Copyrizit Law, title 17 of the United States Code. Title II establishes a new type of pro ́es tion for original ornamental designs of useful articles. Set forth below are ev ments on specific provisions of the bill which would have a direct impact oŭ 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 copyright in any "work of the United States Government," which is densed in Sec. 101 as "a work prepared by an officer or employee of the United States Gop ernment as part of his official duties." The present law prohibits copyright it a "publication of the United States Government" (Sec. 8), but does not denne the latter term. The proposed legislation adequately reflects case law and custody practice within the executive branch, which have established that works prepared by Government officers or employees as part of their official duties are 'Gover ment publications" within the copy right 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 ezployment." The latter was considered objectionable because it was ambiguous vnd subject to a much broader interpretation. For example, it could be construed a 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 e py rights 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 statu tory copyright protection to published and unpublished works (See. 104 and See. 301), in our view the copyright prohibition of Sec. 105 would apply to both pride lished 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 ́ ́ee on previously proposed legislation (eg, HR. 4317, Soth Congress. 1st Seminte The 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 195%. 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 special nature of the work or the circumstances of its preparation, it is determined that copy right 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 regulates established by an administrative officer designated by the President, and sa.. publish a statement of the basis for its determination in each case in the lander specified by such regulations." " W རྒྱས་སྒ If is strongly urged that See. 105 be amended to specify that the copyright non for Government works apply only to domestic copyright profection. is end be done by inserting the phrase "within the United States' after word "available" in line 1 of sec. 105. It is a commonly held opini ›n, alkot established by case law, that the prohibition agamist obtaining copyve Government applies to domestic copyrights only. Thus, in this the Government may copyright abroad when that serves its best interests, we feel that many foreign signatories to the Universal Copyright Conwad honor the copyright of the US Government in their respective es under the Convention, some nations might take the position that a vernment work cannot receive copyright protection anywhere. asic rationale for prohibiting copyright protection for 18 Government * "as is that American taxpayers have paid for these works through tax assess • and should have access to them free of copyright restrictions. This ra toi le does not require a giveaway of US. Government works to foreign vals and foreign governments, Most foreign countries provide domestic coj y = protection for publications of their governments, and publications of foto,gi, governments are accepted for copy right registration in the United States, erest for statutes, court opinions and similar official documents which are con oned inherently uncopyrightable Among the benefits which would acerne i assering copyright abroad in selected US Government works are: (a) reverents of our negotiating position with certain countries; (b) royalties cuected thereby aiding our balance of payments; (0) protection 25y of 18 Government works, and 1 greater disse til an aon f john ders were licensed to distr, ute 18 Government works through evafratrik tution outlets abrend ilmes recommended that ʼn wubsection emilar to that appearing in the að 17Use be inserted in See 165 of RR 233 that is at on or other use by the United St fox Government of any matrial coyright in exiting does not it rar fe expyri, ht or voti re any The trajtoj ristion of the material wilet the cofiscut of the coga beeved desirable to retain such a provod in in the statute to provide toes to authors and to precinde the argument that deletion of ?? la pros to the prese ut statute imjdes that su- as profecíaon is no longer avaualie, Tim With Respect to Other Laves 1*-*ision of Tie 1 of HR 2013 is sec 501, which wou'd establish a win. of statutory protection for virtua all copy*ac fi do wzky * prate tuled or unpublished Under Sec 301, a work would oft ali statyje an not as it is Terented" or as the term is defined in Nec 101. *xed it, a cops or plat, record for the fir tre a¦ by provides that nothing in the title arti sor Hu!'s any rights op es under the cotton isw or statutes of any state that are not equis d'ent • The ex Tusive rights win in the general a པའི་མས་རྣམ་ སྟངས། ཉྙཾཧཱནྟི costart. No mention is made of bolera" stati,tes such as the lucker 1471, whi-li periita sulit na uinst the G vernglent for breach of an te be preempted by the on, tright rev, in it is tev a OTNC 14ancha provides for a cause of action against the Government for ament of neopyright in any work protected under the expr**g? { laww <f Lifed Mates This waiver of sovery su itumunity has been construed a st to embrace common law copyright, i.e., unpublished works. See e.g., Porter et n' v. United States, 473 F 2d 1329, 117 USPQ 238 (CA 5 1973). Since HR 225 protects unpublished as well as published works, the Government's liabtaty wil be extended. It is urged that 28 U.S.C. 1498(b) be amended so that it eogitatums to restrict the Government's liability for copyright infringement to “pullased works only. Government agencies receive a voluminous amount of material from private sources which does not bear a copyright notice and which is reprvi ovd, distributed, etc. in its day-to-day business activities, for example, under the Freedom of Information Act. It would be extremely difficult, if not imposs, ie, to ascertain whether the material submitted has been published with no intest to claim copyright, or whether it is unpublished and the owner intends to Chaila copyright protection. The effect of compliance with the Freedom of Information Act (FOIA) oƏ te Government's liability for copyright infringement also needs clarificata If a document requested under the FOIA bears a copyright notice, the result 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 unpelas ed work subject to protection under the proposed copyright revision; and provið 2 access or a copy may very well frustrate the copyright owner's desi escri subject the Government to liability. We are conce:ned whether the furs s of a copy of a document by the Government under the FOIA will be en di exeu-able, or a form of fair use. Of course, if a document is releaseu ll be* FOLA, the Government may not itself restrict its use by others. For claritată purposes, it is reemmended that language be inserted in HR. 2123 ex 144 the fair use doctrine's applical Paty to unpublished works and the GovernmeÍK release of documents under the FOLA. Innocent Infringers Under Sec. 405(b) an innocent infringer who acts in reliance up. Dan authorized e qy or photorecord from which the copy right notice has been on „ted, and who proves that he was tal led by the omission, is shielded from HENT for actual or statutory damages with respect to any infringing acts contufted before receiving actual notice of registration No protection is spelled out a tr proposed legislation for an inaccent infringer who relies on an unauthorized copy or phonorecord of a published work from which the ecny right notio» } been omitted; or for an innocent infringer of an unpublished work, 1e, Ce who relies on a copy or photorecord which has been published without a toka"} of the owner. Publications Incorporating Works in the Public Domain Sec. 403 of II R. 2223 provides that when a work is published in copies or phonorecords consisting preponderantly of one or more Government works, fia notics of copyright shall also include a statement identifying the portions et about • ing work protected under Title 17. It is NASA's opinion that Sec. 443 18 190 limited and that it would be in the public interest to require such a statet leht plso were a work consists preponderantly of any material that is in the publie domain. We recommend that See, 403 Le amended oy adding the phrase "er works in the public demam' after the word "works" in the heading and before the words "the notice' in line 3 of the body of the section. TITIE II Our remaining comments are directed to Title II of II R. 2223. It is assumed that the word "tile in the various sections refers only to Tile II dea'.nz W!'a ornamentail designs. It is not apparent where Title II will appear in the United States Code. If 1.6 II 1 placed under Title 17, di", "ulties in construction taiv ensen». For exac ple, the definitions set forth in Tie 1 of HR 22223 dealing with copyrights might be construed as being applicable to Title II also, It is sugtested that paragraph cho of 28 U8 C, 1198 be amended to include registered designs rather 19 in peragraph (2), (8ce See 252) The process for creating rights in reactered de ucus is mo,e elly analogous to copyrights, Furthermore, the spe the authorization for the a Îninistrative settlement of Copyright infringement claims set forth in paragraph (10) (and not preseit in paragraph (ar) would be tule applicable to registered desiglis, Walch in our opinion is higily desirable. |