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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 regu. lations or practices in the form of the Compendium of Copyright Office Practices has been done somewhat informally 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 informally.
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 impo-e 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 vou 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 University of Wisconsin several vears 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, my 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 hare 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 committee 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 speedly 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 omission 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 analvsis 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 stue (lents 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 conpratulate you on your fine work in revising the copyright law. Thank Fou 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 1-01 are secondhand copies, and in the third and subsequent years as much 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 maile by duplication. I will invite you to suggest, partly because it will, I 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 ain wondering whether they are all susceptible to the same rule. In any event, what limits do you think might be placed on copies?
Mr. CAYEROX, A reasonable rule, Mr. Chairman, would follow the guidelines that photocopying should be, without payment of royalties, should be restricted to the kinds of copying that a scholar, for example, would do by hand, or on a typewriter. And this suguests, or translates inore specifically in that photocopying of single copies of isolated pages 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 rovalty payments.
Mr. KASTEN 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 photocopying without payment of royalty to a single copy of an isolated page.
Mr. KASTENMEIER. Thank you. The gentleman from California, Mr. Danielson.
Mr. DANIELSON. Suppose that single copy is made today and tomorrow somebody else comes back to make a single copy, would you change the rule at that point ?
Mr. CAMERON. This is a matter of grave concern in the case of library copying. I do not know how it could be dealt with except that if it were discovered that a conspiracy were underfoot, then I suppose it could be dealt with.
Mr. DANIELSON. I do not know how many conspiracies you may have investigated, or if you have any concept of the amount of time and money involved in a conspiracy, but anyway, it is an interesting thought.
On your secondhand book subject, what a copyright owner is entitled to under the Constitution is the protection of the use of his literary property so that it will stimulate his activities in producing some more. Suppose instead of selling the book 1 student bought a book and 10 students in a little group were allowed to read the same book. Now, you have 10 pairs of eyes rather than 1 pair of eyes on this book. What would you suggest about that?
Mr. CAMERON. That happens regularly, all of the time, Mr. Danielson. I do not think anything could be done about it. I am not greatly concerned about the voluntary and the spontaneous activities of students to avoid payment for books. What I am concerned about is the commercial exploitation of the desire of students to reduce their payment to the owners of the copyrighted material.
Mr. DANIELSON. Well, your suggestion is interesting. But, in the real world that we live in, I want to suggest to you, you do not count on my vote.
That is all, Mr. Chairman. Mr. KASTENMEIER. The gentleman from New York, Mr. Pattison. Mr. PATTISON. I was just going to comment on, I guess, the same thing, the problem of the resale of old books. It seems to me as far as textbooks are concerned, it is usually resolved by the author coming out with a new edition about once a month.
Mr. CAMERON. It does not work quite that way.
Mr. PATTISON. No; I understand. But I think it would be a very difficult problem to regulate and resolve.
In the area of the number of copies, what you have suggested is, I think, under anybody's definition within, I do not think any librarian would have any problem determining that that was fair use to the limit you suggested, so making it specific would not really add very much. I think the problem comes about when you are talking about specialized journals that even a very limited kind of use, where you are talking about making three or four copies, it is going to have a very big effect on that particular journal; whereas in Time magazine or something like that, Time magazine really does not care whether you made all of the copies you wanted. It is cheap, and it is out of date within a week's time, and they are not concerned. So, the nature of the journal is really what determines how many copies will constitute fair use. And I would suggest that any kind, any number of copy limitation just simply would not accomplish very much.