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which can only be delegated to an executive agency within clearly defined and rather narrow standards if the copyright revision bill is not to be an unconstitutional delegation of legislative power. Standards for such ratemaking activities are not clearly established in the bill. Moreover, the Copyright Office, within which the ('opyright Royalty Tribunal would operate, is not an executive agency but rather a legislative subdepartment. Since ('ongress may not delegate legislative powers to one of its own committees, it seems obvious that it may not delegate such power to a legislative subdepartment, here the Copyright Office, which is not even a segment of an elective body.
Third, there is a substantial danger that tlie Copyright Royalty Tribunal might run a foul of the due process clause under the fourteenth amendment. The procedural safeguarils of the Administrative Proces dure Act would not apply since neither the Copyright Royalty Tribunal, nor the Copyright Oflice, of which it is a part, would seem to fit the definition of agency under section 5.1, title 5, United States Code, the coxlified version of the Administrative Procedure Act.
l'nfortunately, section 804 of the copyright revision bill, dealing with the procedures of the Copyright Royalty Tribunal, does not seem to guarantee the constitutional minimum of a hearing, notice in the Federal Register, and certain other procedural guarantees. Moreover, jndicial review under section S09 of the revision bill of royalty rate determinations has been totally ignored and judicial review of royalty distribution has been limited to matters announting to fraud and corruption. All of these elements concerning the procedures of the Tribunal and the judicial review of its decisions raise the question whether the parties affected by such rate determinations or royalty distributions would have their day in court.
If the constitutionality of the present bill is to be saved it would seem necessary to remove the Copyright Office from the Library of Congress and reestablish it in the executive branch like the Patent Office, its constitutional sibling. Transplanting the Copyright Oflice thus into the executive branch would not only legitimatize the executive and quasijudicial operations of the Copyright Office under the revision bill, but would also subject the ('opyright Office to the due process safeguards of the Administrative Procedure Act, which even the Register of Copyrights admitted in a November 4, 1974, proceeding on typeface designs was not now applicable to the ('opyright Oflice as a legislative subulepartment.
I recognize that my brief statement can only provide a superfieial glimpse of the constitutional problems, but I trust that these remarks will prove to be constructive, and helpful to the committee.
I am now open to questions if I can elaborate on any of these points. Thank you very much.
Mr. KASTES MEIER. Thank you, Professor Brylawski.
Mr. BRYLAWSKI. Well, I would provide an enabling provision whereby the Copyright Office function and the activity delegated to the Copyright Office would be moved into the executive department, possibly the Department of the Interior or the Department of (ommerce.
Mr. RAILSBACK. You would move the whole Office and all of its functions?
Mr. BRYLAWSKI. Yes. Mr. RAILSBACK. What about giving the FCC the power that is envisioned, that is given in the bill to the Copyright Royalty Tribunal?
Mr. BRYLAWSKI. I think it would have authority over more than what the FCC does.
Mr. RAILSBACK. No, I mean the fee schedule, setting the fees and some of the other powers, giving that power to the FCC rather than to the Register of Copyrights?
Mr. BRYLAWSKI. I think it could be done insofar as the cable TV roy. alties and rates are concerned, but there are also the royalties and rates under the section relating to sound recordings and distribution of jukebox royalties and so forth which would not be matters, I think, normally within the competence or jurisdiction of the FCC.
Mr. RAILSBACK. Has there ever been a case that you know of where the authority of the Copyright Office to implement and execute laws has been challenged ?
Mr. BRYLAWSKI. Well, there only have been approximately six reported challenges of copyright administration or the authority of the Copyright Office to reject registrations since the act in 1909. None of those cases have raised the constitutional questions which I raise before the committee today.
Mr. RAILSBACK. Thank you.
Mr. DANIELSON. I just want to say thank you. I had not thought about that constitutional problem at all, for which I can only sit here and blush and say thank you very much. And I will pass.
Mr. KASTENMEIER. The gentleman from New York, Mr Pattison.
Mr. KASTENMEIER. Let me just ask one further question. Quite apart from the theoretical constitutional question you cite, is there any practical disability or disadvantage to parties by virtue of the Librarian of the Congress or the Register of Copyrights theoretically being a part of the legislative branch? After all, they must exercise laws, and I think the Librarian and the Register are not appointed by the Congress as such. They are appointed, the Librarian is appointed by the President, and the Register by the Librarian I believe.
Mr. BRYLAWSKI. That is correct.
Mr. KASTENMEIER. Consequently, for all practical purposes, they are as separate from us as any executive agency. I am talking about the practical, the practical rather than the theoretical constitutional question.
Mr. BRYLAWSKI. Well, I can think of several things, but I will try to boil them down to two things in response to your question. I think that the Copyright Office in recent years has felt certain constraints. I am not sure they would rationalize them as constitutional constraints. Because they are in the legislative department, they do not have quite the formal procedures and hearings of the Patent Office with respect to the exchange with the copyright applicant and his attorney concerning matters which they object to or afford the basis on which they refuse registration. They certainly have attempted to perform fairly,
but the procedures have been quite informal, and the adoption of regulations or practices in the form of the Compendium of Copyright Office Practices has been done somewhat in formally without permitting input by interested parties like in a typical executive agency where they would put forth a proposed regulation, notice in the Federal Reg. ister and take testimony and the like.
Now, Ms. Ringer did follow the course of action of having a formal hearing and took testimony for the first time last November on the question of changing the regulations on copyright on original typeface design, and the response was good, but this is all being done gratuitously and in formally.
The second question is the extent you wish to formalize the procedures in the Copyright Office, or to encourage the type of examination in the Copyright Office that you would have in the Patent Office. You would have to subscribe to a slightly different fee concept, where at the present time the copyright fee is $6 whether it is a several million dollar motion picture or a completely, commercially untested musical composition. The fee structure in the Patent Office starts from $15 and it goes up, partly to match the fact that the examination there is very sub-tantial. And I think that the examination of the Copyright Office is much broader and deeper than it was several years ago, and I think that it will continue to be.
So we have the philosophical question as to how large a fee we want to impose upon a claim of copyright on a commercially untested work. Those are just two of several points which I could raise in response to your question.
Mr. KASTENMEIER. Well, I appreciate the point you have raised. On behalf of the committee, Mr. Brylawski, we would like to thank you for your contribution.
Mr. BRYLAWSKI. My pleasure. Thank you.
Mr. KASTENMEIER. Next the Chair would like to call on Prof. Rondo Cameron, who, incidentally, is well known to the Chair for his work at the l'niversity of Wisconsin several years ago. Professor Cameron is an author, scholar, and teacher, and you are most welcome, Mr. (ameron. You have a short statement, and you may proceed. TESTIMONY OF PROF. RONDO CAMERON, AUTHOR, SCHOLAR, AND
TEACHER Mr. CAMERON. Mr. Chairman, members of the committee, members of the staff. I appreciate this opportunity to present my views, those of an ordinary citizen, on this important legislation. It frequently happens in the legislative process that the voices of ordinary citizens are drowned by the clamor of special interests, and I include among those the bureaucracy that we have heard from today. I am glad to sre that such does not appear to be the case with the bill now under consideration.
Although I qualify myself as an ordinary citizen, mv interest in the outcome of this legislation is far from negligible. Moreover, as a teacher, a research scholar, and an author. I am representative of the many thousands--indeed, millions of others who pursue those honorable professions. For us-teachers, scholars, authors--the printed word is at the very heart of our professional lives and of our livelihood. Books, magazines, and scholarly journals are the tools of our trade,
Both as producers and users of copyrighted material we are vitally interested in the protection of the intellectual property of authors and in its accessibility for fair use by teachers, students, and scholars.
Mr. Chairman, let me note, for the record, that I am the author, coauthor, or editor of eight books that have appeared in more than 20 different editions; of more than 100 articles, contributions to svinposia, columns, and reviews; and that various of my writings have been translated into virtually all major languages including Japanese, Korean, and Arabic. I am also the editor of the "Journal of Economic History," a scholarly publication with an international circulation. Finally, as president of the Economic History Association, I am the official representative of its 1,000-odd individual members, and speak unofficially on behalf of many other similar scholar-teachers.
Mr. Chairman, in view of my background and interests, I will confine my remarks to those portions of the bill concerned with literary works, as defined in the bill, and more particularly to sections 106-108. In general, Mr. Chairman, I find the bill to be excellent, at least those portions with which I am most familiar, a great improvement over the present chaotic state of copyright law. I wish to commend your conmittee and its staff, its predecessors in previous Congresses and their counterparts in the Senate, for striving to bring order out of chaos. I wish for the bill speedy, if now belated, passage.
In spite of my general commendation and my wishes for speeds passage, I do have two points of criticism. It seems to me that there are two flaws in the bill which, however, can be remedied with minimal changes in the text of the bill. The first concerns the unnecessarily vague language in sections 107 and 108. The second concerns an omis. sion from the bill of serious concern to authors of textbooks especially. I will take them up in that order.
One. One of the most widespread abuses of the rights of authors at the present time results from the technological progress that has made possible cheap, rapid reproduction of published works by photocopying and similar processes. As a researcher and teacher, I have found these devices most useful and convenient; but as an author. I have suffered from the unwarranted and unfair-and unremuneratedcopying of my books and articles. It is one thing to photocopy a few isolated pages in preference to laboriously copying by hand or typewriter a series of passages needed for later reference; it is quite another to photocopy entire chapters, articles, and even books for sale or other forms of distribution.
Although sections 107 and 108 take a step in the right direction by identifying and attempting to cope with this abuse, they are not, in my opinion, sufficiently specific and precise. I believe the bill should set specific limits on the amount and number of copies that can be made of a copyrighted publication, beyond which the user or duplicator should pay a royalty to the author and publisher. I will be glad to indicate what I think those limits should be if the committee wishes.
As the analysis of the Senate bill 1361 of the 93d Congress states succinctly-Calendar No. 946, page 118: “Isolated instances of minor infringements, when multiplied many times, become in the aggregate a major inroad on copyright that must be prevented.” In my opinion the best way to prevent it is not to forbid it legally, which would only result in surreptitious infringements, but to require the beneficiaries to pay a royalty to the owner of the copyright.
Two. There is no provision at all in the bill for the payment of royalties on the resale of published books and similar works. I am not concerned here with the market for old, rare, and out-of-print books, many of which are no longer under copyright in any case, or with the casual, informal markets that exist, for example, among college stucents for the resale of textbooks among friends and classmates. What is of concern, however, is the numerous large, organized markets for the commercial resale of used or “secondhand” books, especially textbooks.
The existence of these markets constitute a serious threat, in the language of section 107, to “the potential market for or value of the copyrighted work." As above. I do not suggest that such commercial resale should be prohibited, merely that the wholesalers or retailers should be required to pay a royalty to the owner of the copyright. Musical composers, artists, moviemakers, and such receive royalties on commercial *performances and displays" of their works; it is only fair that authors should receive royalties for the commercial resale of theirs.
Subject to these two qualifications, Mr. Chairman, which I hope the committee will remedy in its final markup of the bill, I again congratulate you on your fine work in revising the copyright law. Thank you for your attention.
Mr. KASTENMEIER. Thank you, Professor Cameron.
In the second suggestion you make, I am rather interested because I lo not recall that the publishers or others who ought to be interested in this question have raised it. Now, perhaps they have, but I do not recall that they have, so we will have to ask them. They would have a financial interest in this.
Mr. CAMERON. Certainly, Mr. Chairman. And that point was brought to my attention in my conversations with my publishers. It is estimated, for example, on a normal commercially successful textbook, in the second year after it is published about one-third of the copies 11-ed are secondhand copies, and in the third and subsequent years as inuch as 50 percent and more of the copies are secondhand copies.
Mr. KASTENMEIER. On the first point, you invite us to ask you what the limits might be on the amount and number of copies that can be made by duplication. I will invite you to suggest, partly because it will,
think, give us an indication of how you conceive of the problem. The types of materials and the types of matter differ so greatly that I an wondering whether they are all susceptible to the same rule. In any event, what limits do you think might be placed on copies?
Mr. CAMEROX. A reasonable rule, Mr. Chairman, would follow the guidelines that photocopying should be, without payment of royalties, shoull be restricted to the kinds of copying that a scholar, for example, would do by hand, or on a typewriter. And this suggests, or translates inore specifically in that photocopying of single copies of isolated paures might proceed without payment of royalty, but the photocopring of multiple copies of one or more pages, or the photocopying of a single copy of an entire item, such as a chapter in a book, or an article in a journal, should be made subject to royalty payments.
Mr. KÁSTEN MEIER. In other words, one could not then make two copies of a single page without payment of royalty?
Mr. CAMERON. It seems to me: Mr. Chairman, that that may be a minor point; but, yes. I would say the legislation which would restrict