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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, 11. Barbara Ringer.
VS. 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 vield 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 eileet, 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 cletail because both you, Mr. Chairman, and Mr. Kaminstein, have referred 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.]
. 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
t certain frames of reference for the committee. Some of it may be 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 Mr. Chairman, I am Barbara Ringer, Register of Copyrights in the Copyright Once of the Library of Congress. I appear today in support of H.R. 2923, 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 Register of Copyrights, Arthur Fisher, achieved success in 1952 with the signing at Geneva of the Universal Copyright Convention, followed in 1954 by the enactment of revisions to the 1909 statute permitting U.S. adherence to the UCC, aud 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 U.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 1955, 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 hare 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 1975. 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 ('opyright Law. The Register's Report was the first of many major contributions to the general reyi. sion program by Abraham L. Kaminstein, Mr. Fisher's successor as Register of Copyrights. The purpose of the Reports, as Mr. Kaminstein said in his 1962 Annun! Report, “was to furnish a tangible core around which opinions and conclusions could crystalize-to achieve the widest possible agreement on basic principles tfore proceeding to draft a revised copyright law." The Report attempted to pin1**int 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 fixusing 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 dis. semination" and to last for a first term of 28 years, renewable for a second term OP 8 Fears, 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 c'onsultants on General Revision was heid between September 1961, and March 12, at which all of the Report's recommendations were discussed in an increas. ingly tense atmosphere. The heated 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 flounder, some method for advancing and considering alternative rommendations would have to be found.
in Sovember 1962, the Register announced that the Copyright Office was prepar i 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 recommendations concerning "public dissemination" and the retention of common law prutention, and that "at least one alternative version of our draft bill will adopt the life plus basis for computing the termin conjunction with a system of notice, depsit, 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 ('onsultants 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 193, and included a total of eight meetings of the Panel of (consultants.
The development of this preliminary draft proved to be a difficult but enormnonsly 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 (pyright statute by representatives of nearly all of the groups affected. It also created 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-by-section prision of the bill. The draft of the bill that emerged from this process was Direpared entirely within the Copyright Office without collaboration or consultation with any private groups or individuals. The introduction of the 19 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 kreat deal of progress had been made, but that still further revisions would be nepsary before legislative hearings could profitably begin. During the fall and winter of 1964-1965 the Copyright Office reviewed and analyzed the many oral and written comments on the hill and prepared another complete revision.
At the beginning of the Soth Congress, on February 4, 195, Representative Celler introduced the 1967 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 t'.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. 2n»esional hearings on the bill. Over a period of more than three months, between Jay 26, 1965 and September 2, 1965, 22 days of public hearings were held before your subcommittee, under the objective and dedicated chairmanship of the man who is still your chairman, Robert W. Kastenmeier. A total of 103 witnesses, representing an extraordinarily wide range of public and private interests, appeared to testify. The record of those 1965 hea rings comprises nearly 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 manufacturing 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.) 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 gen. eral areas: subject matter of copyright, ownership, duration, notice and registration, manufacturing and importation requirements, community antenna spe tems 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 sultopics, 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 Ilouse Judiciary Committee on September 21, 1966, and was reported without amendment by the full Judiciary ('ommittee 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 Hlouses have all been drawn froin it.
The bill was reported too late in the Soth Congress for further legislative action, and indeed none had been expected in 1966, In the revised from reported by the House, it was introduced by Representative (eller in the 90th Congress, and was considered by the newly-constituted membership of Subcommittee 3, again chaired by Representative Kastenmeier on February 20, 24 and 27, 1967. 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 Ilouse 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 protractedl. When the House finally recessed after 7:00 p.m., it was apparent that a rescue operation was essential. Over the next four dars, in an atmosphere of intense crisis, several crucial compromises were achieved, and on
Tuesday, April 11, an amended bill was passed by the Ilouse after mild debate with the extraordinary vote of 379 yeas to 29 nays. Fairly radical changes were bude in three areas: there were drastic revisions in the provisions establishing
right linbility for jukebox performances; the provisions dealing with community antenna transmission were droppell entirely and the exemptions for instructional broadcasting were considerably broadened. On the other hand, the structure and content of the bill itself has remained substantially intact.
The Senate Judiciary (onmittee, which had opened hearings in 1901 and had had a short series of hearings on the (ATV problem in 1966, resumed full-scale (*)sideration of the bill, under the joint chairmanship of Senators Maf'lellan and Burdick, on March 15, 1967. Indeed, the Senate hearings were in full swing during the crisis in the Ilouse, and for a time the general revision program resulled a two-ring circus in more ways than one. To everyone's surprise the mure of the Senate hearings, which lasted 10 days and ended on April 28, 1907, Viry nearly equals that of the House hearings in size and content.
Of the several areas that emerged as fullblown issues at the Senate hearings, by far the most important is the problem of the use of copyrighted works in automated information storage and retrieval systems. This problem was adidressed sparately in the context of the creation of a National Commission on New Technological ('ses which Congress enacted as separate legislation only last year, and which is still awaiting stafling.
Jeanwhile, as the 1:867 legislative momentum began to slow more and more, it was increasingly apparent that cable television had become the make-or-break ins1.e for right revision. Although the Senate Judiciary Subcommittee worked long and hard between 1968 and 1970 to resolve controversies over a number of i«110's other than cable, and succeeded in reporting the revised bill to the full Se-uinte Judiciary (ominittee during the 9140 ('ongress, it was not able to push revision any further. An effort spearheaded by the Copyright Office to gain enact01.cnt of a "bareboneg' bill, containing everything except the cable section and other controversial provisions dealing with economic rights, also failed. By 1971 it was apparent that the bill was completely stymied over the (ATV issue, and pien the issuance of comprehensive FCC rules in 1972, governing the carriage of imals and programming by cable systems, failed to break the impasse.
Because of this long delay, ('ongress has passed a series of successire bills prtending the term of (opyright. These now run through the end of the current (ongress, and are scheduled to expire on December 31, 1976. The urgent problem of tape piracy was also taken care of through separate legislation. A total of seven years passed between House passage of the bill in 1907 and the resume tion of its active consideration in the Senate Subcommittee last year.
There may have been other reasons, but certainly the most immediate cance of the revision bill's new momentum was the Supreme ('ourt decision in CBNV. Teleprompter, holding that under the 1909 statute cable systems are not liable far copyright infringement when they import disiant signals. The decision was followed quickly by favorable actions in the Senate Judiciary Subcommittee and full Committee and, after a brief referral to the Commerce ('ommittee, hy passage in the Senate on September 9, 1975, by a vote of 70-1. In late November your Subm ittee held a hearing which, in one respect was a forerunner of these hearings, I testified in an optimistic vein at that time, and I remain hopeful that at long last the entire revision measure will be enacted into law during the current ('ongress.
Vs. Rixger. 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 19th century copyright law, based on assumptions concerning the creation and dissemination of author's works that have been completely overturned in the past 50 years.
A 20th-century copyright statute is long overdue in the United States, and the present need for a revised law that will anticipate the 21-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 19921, and produced four distinct legislative efforts before World War II. I will not go through the bills, but the period covered was 19:24