Lapas attēli

We all know that the entire bill reached an impasse in the Senate because of the inability to solve the issue of cable television. I must confess that in 1968, recognizing that nothing was going to move unless somehow the CATV issue could be solved or dealt with separately, I gave in to some despair.

Testifying before the Senate Subcommittee on Patents, Trademarks and Copyrights, I said that I had been musing on Yeats' poem, "To a Friend Whose Work Has Come to Nothing." Nothing much to encourage me happened for a long time.

Certainly I feel no such despair tolay.

At the last session of Congress, the Senate passed the revision bill by a margin of 70-1, and every indication seems to point to a consensus in that body that this is a measure whose time, at long last, has come.

Although insufficient time remained in the last session for Ilouse consideration, the status of the general revision legislation was one of the points covered in your subcommittee's hearings on November 26, 1974, on S. 3976, a short bill whose enactment effective December 31, 1974, appears to pave the way for favorable action in both Ilouses during the current Congress.

I should like to close my statement by offering some personal olvservations based on years of involvement with copyright revision. I should like to recall the constructive spirit of the 1965 hearings for I ferrently hope that they will be repeated in the work you begin tolav. Nine years ago, Mr. Chairman, your subcommittee met for jl executive sessions, over a 7-month period, to prepare a bill for the full Judiciary Committee.

('ongressmen, members of a busy subcommittee, were willing and glad to spend an extraordinary amount of time and effort on a bill that could not have meant mich to them politically, that could not gain them any votes. What made this extraordinary effort possible, and indeed successful, was the prevailing spirit of compromise--constructive and reasonable, rather than destructive and extreme. I called it "In Experiment in Legislative Technique." It was the most exhilarating experience of my legal career.

All of us are special pleaders, no matter how moral we feel our case to be. For my part, I make no bones about favoring authors, composers, and artists. But I know, nevertheless, that everyone must make some compromise. My experience convinces me that there are no casy shortents in copyriglit, and no side can afford the luxury of a complete victory. Neither can we embrace categorical solutions; what they possess in simplicity, they sacrifice in orslinary justice. What is needed is a responsible and considered compromise, for only such a compromise will best serve the interests of all.

This will require statesmanship of the highest order, and I hope you will feel the personal satisfaction that comes with a job well done.

Thank you, Mr. Chairman.

Mr. KASTENMELER. Thank you. Vír. Kaminstein, for a most eloquent and personal statement on a subject many regard as impersonal.

I am almost sorry, however, to mention that in 19966 we had 31 executive sessions over a 7-month period. You will detect some trepidation among my subcommittee members who have not been through that experience. I Laughter.]

Much of that work will not have to be redone, I expect. Perhaps this is not the time, as I introduce the next witness, to commend people before our task is completed for indeed historically one day I am sure that the names of Fisher, Kaminstein, and Ringer will, in terms of copyright and its history of this country, have an extraordinary place.

For my part, legislatively, I would like to recall that the chairman of the full committee, Mr. Celler, who served Congress so well for so many years, has always felt so deeply about and has been a very great patron of copyright.

Froin the legislative standpoint I think he also deserves very special recognition.

In any event, I would like to call on the person on whom we are going to have to lean heavily, not only this morning but in days to come, in n-solving whatever of the issues still remain.

We would be very pleased to hear from our Register of Copyrights, V. Barbara Ringer.

Ms. RINGER. Thank you very much, Mr. Chairman. I am accompanied by Dorothy Schrader, general counsel of the Copyright Office, who I hope will get me out of trouble if I get into it.

The Copyright Office has prepared portfolios consisting of 19 folders, 18 of which deal with separate issues or chapters of sections of the bill. Some are much more important than others. On the left side of each folder we have put the relevant sections on the particular issue, and on the right side we have tried to summarize the contents of the bill, give some of the background of the provisions and analyze the contents of the bill in a rather simple, brief way.

Some of the provisions of the bill, as you well know, Mr. Chairman, do not yield their meaning readily on a first, or second, or even third rrading

In any case I hope that they will be useful to the committee. They are intended for reference and not as fundamental legislative history.

But I hope the material on the right side can be considered, in effect, my statement on the issues that are involved at this point and be made a part of the record of the hearings. I have also a prepared statement which is for the record and I don't think I need to go into it in vast detail because both you, Mr. Chairman, and Mr. Kaminstein, have rrferred to the comments I have made in it.

I would, however, like to make a few points from it and then go on to a summary of the principal issues speaking more or less from these briefing papers.

The material referred to appears in app. 2.) As I see them now but without in any way trying to predict what other witnesses will say during the course of these hearings because I don't think anyone, no matter how close they are to the subject, can do that

Mr. KASTENMEIER. I urge you not to oversummarize. We do hope that-we regard your testimony as very important at the outset to uit certain frames of reference for the committee. Some of it may Dve lost to us if it is contined exclusively to the record.

Ms. Ringer. I take your point, Mr. Chairman. Then I will read at least a major part of this statement. [The prepared statement of Ms. Ringer follows:]

STATEMENT OF BARBARA RINGER, REGISTER OF COPYRIGHTS Jr. Chairman, I am Barbara Ringer, Register of Copyrights in the Copyright Office of the Library of Congress. I appear today in support of H.R. 22:23, to review its long and difficult legislative history, and to try to answer any questions you have about its contents, its status, and the issues remaining to be settled.

The Federal copyright law now in effect in the United States was adopted in 1909 and has been amended in only a few relatively minor ways. It is essentially a Nineteenth Century copyright law, based on assumptions concerning the creation and dissemination of author's works that have been completely overturned in the past fifty years. A Twentieth-Century copyright statute is long overdue in the United States, and the present need for a revised law that will anticipate the Twenty-First Century is so obvious as to be undeniable.

It is startling to realize that the program for general revision of the copyright law actually got underway more than 50 years ago, in 1924, and produced four distinct legislative efforts before World War II: The Dallinger, Perkins, and Vestal Bills in 1924–1931, the Sirovich Bill in 1932, the Duffy Bill in 1934-1936, and the “Shotwell" Bill in 1939. One of these measures passed the House, and a later one passed the Senate, but in every case the revision program ultimately failed of enactment because of fierce opposition to particular provisions by certain groups. The history of U.S. copyright law revision in the 1920's and 1930's teaches a basic lesson: the need to work out accommodations on the critical issues in an atmosphere of good will and give and take. It is a great deal easier to recognize the validity of this proposition than to put it into practice.

The failure of the earlier efforts at general revision of the copyright law has been blamed on one group or another, and on the face of it there does appear to be quite a bit of blame to go around. At the same time it is important not to forget that the main purpose behind some of the revision bills was to permit U.S. adherence to the International Convention of Berne. There can be little doubt that some of the Congressional opposition to copyright law revision stemmed from basic objections to U.S. acceptance of foreign principles of copyright jurisprudence and to U.S. assumption of the international obligations involved in becoming a member of the Berne Union.

After World War II the proponents of copyright law reform adopted a new approach. It was assumed, on the basis of past experience, that efforts to revise the copyright law in a way that would permit adherence to the Berne Convention would continue to be futile. It was also recognized that the emergence of the United States as a major exporter of cultural materials made our adherence to a multilateral convention essential. Thus, efforts to secure general revision of the copyright law were temporarily deferred in favor of a major program aimed at developing and implementing a new international copyright convention to which the United States could adhere without major changes in our law. These efforts, under the leadership of Kegister of Copyrights, Arthur Fisher, achieved success in 1952 with the signing at Geneva of the Universal Copyright Convention, followed in 1934 by the enactment of revisions to the 1909 statute permitting U.S. adherence to the UCC, and by the coming into force of the Convention in 1955.

Noteworthy as it was, the achievement of bringing the United States into the international copyright community also served to dramatize once more how archaic and inadequate the C.S. copyright statute of 1909 had become. The autumn of 19.75, which saw the coming into force of the Universal Copyright (onvention and the inauguration of the current program for general revision of the copyright law, marked the end of one epoch and the beginning of another. In August 1965, Congress authorized the formation of a Panel of Consultants on General Revision of the Copyright Law under the chairmanship of the Register of Copyrights, and the Copyright Office undertook a series of basic studies of the major substantive issues involved in revision. At the same time began what has become a seemingly endless series of meetings and discussions with representatives of virtually every interest group affected by the copyright law. By now these discussions, which have been as valuable as they have been time-consuming, must literally run into the thousands.

The study phase of the current revision program began almost exactly 20 years ago, in 1955. It was supposed to take three years, but it took about six. It pro. duced 35 studies covering most of what we thought at the time were the substantive issues in copyright revision. These were published, together with a large body of comments from the Panel of Consultants, and I am proud to say that they are all still in print.

The culmination of this effort was the publication, in 1961, of the 1961 Report of the Register of Copyrights on General Revision of the Copyright Law. The Register's Report was the first of many major contributions to the general revi. sion program by Abraham L. Kaminstein, Mr. Fisher's successor as Register of ('opyrights. The purpose of the Reports, as Mr. Kaminstein said in his 1962 Anpunl Report, "was to furnish a tangible core around which opinious and conclusions could crystalize-to achieve the widest possible agreement on basic principles

before proceeding to draft a revised copyright law.” The Report attempted to pinjasnt the major issues in revision, summarize the present law with respect to each of them, analyze alternative solutions, and present specific recommendations.

The Register's Report succeeded very well in clarifying the issues and in fusing the discussions on them, but some of its most fundamental recommendations proved more controversial than anyone in the Copyright Office had expected. In particular, the Register's proposal for copyright to begin with “public dissemination" and to last for a first term of 28 years, renewable for a second term of 48 years, provoked a flood of opposition; there was strong support for a single Fueral copyright system with protection commencing upon the creation of a work and ending 30 years after the author's death. A series of meetings of the Panel of t'onsultants on General Revision was held between September 1961, and March 1:12, at which all of the Report's recommendations were discussed in an increas. ingly tense atmosphere. The beated arguments at these and other meetings actually stalled the revision program for several months and brought it to a genuine crisis in the later summer and fall of 1962. It became apparent that, if the entire project was not to tlounder, some method for advancing and considering alternative recommendations would have to be found.

in Sovember 1962, the Register announced that the Copyright Office was preparvi to change its position on some debatable questions and to draft alternative language on others. He indicated that the Office was prepared to revise its recomtendations concerning “public dissemination" and the retention of common law prudention, and that “at least one alternative version of our draft bill will adopt the life-plus basis for computing the term-in conjunction with a system of notice, depuit, and registration that we consider essential." The Register also announced iliat he would send preliminary drafts of statutory language to the members of an expanded Panel of Consultants on General Revision for their comments, and that he would convene another series of meetings on the preliminary draft. The proc. is of preparing draft language for circulation ocenpied practically all of 1963, and inoluded a total of eight meetings of the Panel of ('onsultants.

The development of this preliminary draft proved to be a difficult but enormonly productive phase of the program. The procedure adopted provided a motive and a foruin for detailing, critical scrutiny of the language and substance of a new copyright statute by representatives of nearly all of the groups affected. It also (teated an atmosphere of cooperative effort that has survived various stresses and strains and has continned to grow in breadth and depth.

The preliminary draft of the general revision bill that had reached completion at the beginning of 1964 was never intended to be a final report. The next six months were devoted to compiling, analyzing, and synthesizing all of the comments received on the draft, to making substantive decisions and changes on the basis of these comments, and to preparing a complete, section-hy-section trerision of the bill. The draft of the bill that emerged from this process was prepared entirely within the ('opyright Office without collaboration or consultation with any private groups or individuals. The introduction of the 1964 draft in July 1964 marked the end of the drafting phase of the revision program and the opening of the legislative phase.

Like the preliminary draft on which it was based, the 1964 bill was not intended as a finished product, but as a focal point for further comments and suggestions. In August 194, a full week of detailed discussions of the bill showed that a great deal of progress had been made, but that still further revisions would be nepsary before legislative bearings could profitably begin. During the fall and winter of 1964–1965 the Copyright Ofhce reviewed and analyzed the many oral and written comments on the bill and prepared another complete revision.

At the beginning of the 89th Congress, on February 4, 1965, Representative Celler introduced the 1963 general revision bill and the Copyright Office spent the next three months preparing a supplement to the 1961 Register's Report. The Supplementary Report of the Register of Copyrights on the General Revision of the l'.S. Copyright Law: 1965 Revision Bill which was published in May 1965, set forth the reasons for changing a number of recommendations in the 1961 report and clarified the meaning of the provisions of the 1965 bill.

Publication of the Supplementary Report coincided with the opening of Con. grossional hearings on the bill. Over a period of more than three months, between May 26, 1965 and September 2, 1965, 22 days of public hearings were held before pour subcommittee, under the objective and dedicated chairmanship of the man who is still your chairman, Robert W. Kastenmeier. A total of 163 witnesses, representing an extraordinarily wide range of public and private interests,

appeared to testify. The record of those 1965 hearings comprises nearls 2.000 pages of printed text, including not only the oral transcript but also more than 150 written statements. The Senate Judiciary Subcommittee under the chair. manship of Senator John McClellan of Arkansas, held brief hearings on the revision bill in August 1965, but delayed a full series pending the conclusion of the intense activity in the House subcommittee.

Several siguificant factors with respect to the general revision program emerged from the 1965 hearings. Most obvious were the sharp controversies remaining to be settled on some old issues (such as the jukebox exemption, the royalty rate to be paid under the compulsory license for recording music, and the manufac. turing requirements with respect to English-language books and periodicals), and on some relatively new issues (such as fair use, and the reproduction of copyrighted works for educational and research purposes, the liability of educa. tional broadcasters and similar transmitters, and the status of community antenna television systems under the copyright law).

Aside from the need to work out further accommodations on several critical issues, the most serious problem arising from the 196.5 hearings was now to organize the massive contents of the record in a way that would overlook no significant comment or suggestion but that still would form a comprehensive basis for decision-making. Working in close collaboration, the Copyright Office and the House Judiciary Committee counsel prepared summaries of every statement that had been made, and then divided the entire corpus of the hearings into ten general areas: subject matter of copyright, ownership, duration, notice and registration, manufacturing and importation requirements, community antenna systems and other secondary transmissions, jukebox performances, compulsory license for phonorecords, educational copying and fair use, and educational broadcasting and other performing rights. Each subject was then divided into subtopics, under which were listed every issue raised at the hearings.

This "experiment in legislative technique," as it has been called, prored effer. tive. It enabled the House Judiciary Subcommittee, in its deliberations of the bill, to consider each issue in context, to weigh the arguments for and against it, and to arrive at reasoned decisions. Meeting regularly, usually twice a week, from February through September 1966, the subcommittee held 51 executive sessions, all of which were attended by representatives of the Copyright Office. Examining each issue in depth and then redrafting the pertinent section of the bill as they went along, the subcommittee produced an entirely revised bill in an atmosphere of informal, bipartisan discussions that could well serve as a model for similar legislative projects.

The bill, as revised by the subcommittee, was reported unanimously to the full Hlouse Judiciary Committee on September 21, 1966, and was reported without amendment by the full Judiciary Committee on October 12. 1966. The House Report still remains the basic legislative explanation of the content of the bill, and the reports succeeding it in both Houses have all been drawn from it.

The bill was reported too late in the 49th Congress for further legislative action, and indeed none had been expected in 1966, In the revised foorm reporteci by the House, it was introduced by Representative (eller in the 20th Congress, and was considered by the newly-constituted membership of Subcommittee 3, again chaired by Representative Kastenmeier on February 20, 24 and 27, 1907. It was reported to the full Committee on the last of these dates and, after rather heated debates in the full committee on February 28 and March 2, 1967, was again reported to the House. This time, however, the report included minority views hy Representatives Byron G. Rogers of Colorado and Basil L. Whitener of North Carolina, devoted to the jukebox issue, and additional dissent by Jr. Whitener on the bill's treatment of CATV.

It was becoming increasingly apparent, as the bill moved toward the House floor, that extremely sharp and unreconciled conflicts on the issues of jukebox performance and CATV transmissions remained, and that there was a serious danger that one or both of these issues could defeat the bill. The bill was con. sidered by the House Rules Committee on March 8, 1967, and the rather acrimonious arguments in the Committee before it took action authorizing full debate on the House floor were another danger signal.

The debates of the bill in the House of Representatives on April 6, 1967, were difficult and protracted. When the House finally recessed after 7:00 p.01., it was apparent that a rescue operation was essential. Over the next four days, in an atmosphere of intense crisis, several crucial compromises were achieved, and on

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