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Sciences Library. She has been in the Medical Library Issociations virtually all of its positions, including the board of directors. She like wise hoids positions in the University of Louisville on its faculty a ate. And without necessarily knowing all the nuances of the bill in fore you, which is very complicated, I would like to commend her testimons.

Thank you very much, Mr. Chairman.

Mr. KiSTENMEIER. Thank you for this introduction. I say to mym'. league I am sorry we can't introduce all our witnesses as fully in terus of their biographies.

The Chair would like to welcome Mrs. Adams and Mr. Low. I uurde. stand Mr. Low this morning will make the major presentation on the i of the libraries. Jír. Low, you may want to introduce your oiher leagies. You may proceed as you wish.

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TESTIMONY OF EDMON LOW, REPRESENTATIVE OF SIX LIBRARY

ASSOCIATIONS

Mr. Low. Thank you, Mr. Chairman. I am Eilmon Low, and I w!! today present the views of the American library community is reporu sented through six major library associations. Il'ith me are represildlives of each of the six associations. I am happy to present to you Mr. Julius Marke, representing the law libraries and chairman of the copyright committee. Jr. JcDonald, at my right, is the executive diretor of the Association of Research Libraries. At ir left MN

Adams--and Mr. Mazzoli, we share your enthusiasm for Mrs. dijala and her work in our library community. Next is Mrs. Sommer, who is representing the Music Library Association, and who is the ci.airman of their copyright rommittee and Mr. Frank Nekemna, who is the executive director of the Special Libraries. Issociation. And then with lia te have the members of counsel, sitting behind there, Mr. Sharaf, trho represents the Harvard University Librarv: Jir. William Notte representing the American Library Association, and Mr. l'hui.p los representing the Association of Research Libraries.

Vr. KASTEN VEIER. Thank you.

Mr. Low. Because of our time limitation, with your permission, Mr. Chairman, I shall omit some of my testimony and ask that this statement be adınitted into the record.

Mr. K ASTEN VEIER. Without olijection, your statement in its entirely will be reivel in the record. You may proceed, sir.

Mr. Low. Thank you.

We are here today to talk about library conving and the prorisions of the copyright roiis on bill. II.R. I shall be presenting, so far as I am able, the concerns of all these varions library groups. However, eah of the ormanizations will also be filing a statement of its own. witing forth in greater detail its individual concerns about prisma of the bill. All of the representatives will assint me in answering particular questions you may have concerning our testimony and the in raised.

Althougi o'r testimonr today is limited to library photocopying mrbisch is the kuhint of this hearing, there are other pror sions of the U11 which connen 14, and about which we may be making further statements as other hearing are scheduled.

I would like first to point out that, although this copyright revision

has been under consideration for 10 years, the library photocopy.22-te is still an important unresolved subject. In brief, as we see it, a question which Congress and this committee must decide is

rter libraries will be permitted-at no additional expense- to o linaer to serve the public by the long standing practice of providing 4.2 copies of copyrighted material for users' research or study. It 15111e with direct and widespread impact on the general publie a:1 involves both the right of access to library materials and the cost oft!.at were

In the past year there have been two major developments affecting t..quion. In the first case ever brought by å publisher, the II..als & Wilkins ('0., against a library the courts have upheld the

opying of single copies of copyrighted medical journal articles 2 leng within the doctrine of fair use, and not constituting infringe Hel of copyright. It is in part because this case consumed 7 years a:vi major financial outlay that libraries are concerned about the med major deselopment, which is the introduction last year into the

ale b:iÍ, without any hearing, of a new and undefined limitation on I'm rights of libraries, namely, the concept of systematic reprodue. t..." of either single or multiple copies of copyrighted material.

Now when we talk about library copying, we are not talking about Forg for the benefit of libraries or librarians, we are talking ale if wething that is carried on for the benefit of users of libraries

theunde citizens from all walks of life throughout the country. In we are talking about library copying practices, we are talk1.2 atwit the schoolbos in (alifornia who may needi a copy of an ** Le in telax Angeles Times for a project he is norhing on in h. !!!!, de clase or almost a judge in the counts court in Midilles 1.... Jins, who may find he needs a copy of a law pryw artile *.teers direly upon a ditult question of law which has arin :!cours of his work. Or about the doutor in downtnte Illinone

Hartient with an ual and rare was and the only rent tral to tw found in contained in an ofwelle jour ul pub.ed in **Pogo!.. a: d asa:ln!!e only through the Region Midtal Library :!!!, but s'y't harture may aid him in long hain pat 1.1* life. | ur arr ta'mitalut, eveil, na mapier of this conmittee 134

*****P0-a@post.al Krferien. Se of the Library of Cong!ı** for an *** i opamning with rutirghie. Or, ker talli.nurit a 11.'1*' !"

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Alumnipigopes 1..., notre liner that compright is not a contitut:orar...! ** to al bot yuri of emne's jer | :p ('onett'stoon 51118 lv morje ose

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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 www to designate tbe Administrator directly in the bill. The Copyright Otice Windle willing to assume this responsibility, as the Congress or, under the prema imena the President directs. Sincerely, ,

JONN G. LORENE Acting Librarion of Cungreat.

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,

Washington, D.C'., September 3, 19. Hon. PETER W. Rodino, Jr., Chairman, Committee on the Judiciary, House of Representatives, Washington, D.C.

DE AR ME. CHAIRMAN: This is in further reply to your request for the views of the National Aeronautics and Space Administration on the bill H.R. 23, Fr the general revision of the Copyright law, title i7 of the l'nited States (ande, and for other purposes."

Title I of the bill provides for a general revision of the t'nited States (usporen Law, title 17 of the l’nited States (ode. Title II establishes a new type of protein 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 I

Gorernment Works

The proposed lozislation obviates some of the ambiguities present in the currat cogs right law with respect to Government works. Spr. 10.5 of the bill paulis :3 copyright in any "work of the l'nited States Government." which in deset 15 dec. 101 as "a work prepared by an officer or employer of the United States of ernment as part of his oficial duties." The present law prohibits copyrie 1 : *putotol, iation of the United States Government” (see 8), but do not desse 5* latter term. The prope legislation adequately reflects case law and cost tl.3:1 pratice within the executive brauch, which have established that work propismod bp Guvernment offrers or employers as part of their otheial duties are Gone ment publications" within the copyright prohibition.

Nane previous pagright revision bills have defined a Government work as De preju really an officer or employee "within the movie of his off al duejes opp ploi ment." The latter war (sjlered objectionable because it was ambigue.1974 subjent to a mach broader interpretation. For example, it could be construed 1 probibiting er right even where an offers or employee Boluntarily wrote a la og his ott a time whleh was somehow related to his empluytent.

sec. 100 a.- parifies the right of the Government to receive and hold rise rights transferred to it by asignment, bquest, or otherwise, thus obsiating : ot';per unirrtainty in the current law.

SA IR 3 abolishes common law copyright protection and extends aty!! turs propright protention to publwbed and unpublished works i Sec. 104 and see 301). In our fie* the copyright prohibition of sec, 1415 would apply to with pic Tish and unpublished Government works as this term is defined in Ser 101

XASA !* still of the vie*, exprese in evinments limited to the Course on previon is proped legislation ***, II R. 1317, en cangrenn. 114 Sre the 14inthat copyright protection should be available for Governmeat work in esempio:ial circumstances. This would give NASA the opportunity to enter 11. cou?,"te negotiations with private publiwhing firme in erreptional cq-*wth at to pay for NASA p!!!/"ans molil roeive the widened prible distribuit*.41 & quind 1, Section 2031) of the National Aeronautics and Space Art o! In The neztrating pitton of the Government depends on its ability to proride priest jupviene fat ne for a periei «l time to the puti' ber in erroge pris divreihintain and teplorer. If nerouary, the rights of the Government to enpyright in web er litfonal cases par le imuted to a shorter period of time; for example. 5 5 (enities than the m!! teru), which may homo suttie tent time fose the publiser to

spee'n hi« initial publishinx cuts. Arroringly, it is recuenmended that the lodIgation he inserted in der 105 :

"In exceptional cama pops right may be spund in a published work of the United Natze Gorf1.4ne where, but most of the special nature of the work of the drumstances of its preparation, it is determined that copyright protection would petilt in more effective dissemination of the work or for other reasons would be in the poblic Interest. The bead of the Government agency for which the work was

prepared shall make the determination in each case in accordance with regulationis established by an administrative officer designated by the President, and sliall publish a statement of the basis for its determination in each case in the manner 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 could 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 copy. right in the Government applies to domestic copyrights only. Thus, in this vier, the Government may copyright abroad when that serves its best interests. Wolle tre feel that many foreign signatories to the Universal Copyright Con. tention would honor the copyright of the U.S. Government in their respective countries under the Convention, some nations might take the position that a Is Gorernment work cannot receive copyright protection anywhere.

The basic rationale for prohibiting copyright protection for C.S. Government works is that American taxpayers have paid for these works through tax assessments and should have 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 forriga governments are accepted for copyright registration in the United States, psiepi 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) improvements of our negotiating position with certain countries; (b) royalties Ciuld 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 l'.s. Government works through

tal-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. 107 of H.R. 2223, that is:

**I'milication or other use by the United States Government of any material in which copyright is existing does not impair the copyright or authorize any f'irther up or appropriation of the material without the consent of the copy. rixht owner."

It is believed desirable to retain such a provision in the statute to provide arances to authors and to preclude the argument that deletion of this proFinjon from the present statute implies that such protection is no longer available. Pre-emption With Respect to Other Laws

A key provision of Title I of H.R. 2223 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 stat11tory protection as soon as it is "created" or, as the term is defined in Sec. 101, when it in "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 remies under the common law or statutes of any state that are not equivalent to any 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* 1.5.C. 1491, which permits suit against the Government for breach of an express or implied contract. Undoubtedly, it was not intended that such a F-deral statute be preempted by the copyright revision. It is recommended, therefore, for clarification purposes, tbat Sec. 301(h) 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 *fitle 17" be replaced by "this or other title of the United 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 24, grant injunctions to prevent or restrain infringement (emphasis added). It is recommended 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 l'nited States." This waiver of sove reign immunity has been construed not to embrace common law copy right, 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. 2223 protects unpublished as well as published works, the Government's liability 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 doeument 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 (h) an innocent infringer who acts in reliance upon an authorized copy or phonorecord from which the copyright notice has been oruitte, aud 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. Yo protection is spelled out in the proposed legislation for an innocent infringer who relies on an unauthorized copy or phonorecord of a published work from which the copyright notice 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 II.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 onbodr. 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 statenient also where a work consists preponderantly of any material that is in the public domain. We recommend that Sec. 403 le 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. 2023. It is assumed that the word "title" in the various sections refers only to Title II dealinz 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 28 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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