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Section 103 (a) provides that "protection for a work employing pre-existing material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully." For example, the author of an anthology that includes an unauthorized translation of a copyrighted poem could secure no copyright protection for the translation, and would be liable as an infringer to the owner of the copyright in the poem; he could, however, secure copyright for the rest of the "new matter" in his anthology. Note also that the language used in this connection is "unlawfully" rather than "without the consent of the copyright owner." There may be cases where copyrighted material can be used lawfully without the owner's consent (for example, under the doctrine of fair use or under the provisions of some foreign laws) and it would seem unfair to narrow or deny copyright protection in those cases. A special provision requiring consent for the copyrighting of a musical arrange ́ment made for use under a compulsory license is included in section 113 (a) (2).

D. NATIONAL ORIGIN

The 1961 Report proposed that protection under the revised law be available for all works without regard to the citizenship or domicile of the author or the place of first publication, but recommended that the President be given discretion to withhold or limit protection for works originating in certain countries. Although there was some support for our proposal, there appeared to be a definite consensus in opposition to providing this "automatic" protection to published works of foreign origin. It was argued that an underpinning of reciprocity may still be necessary in order to insure adequate protection for American works in some foreign countries, and that it would not be in the national interest to place the President in the position of making negative declarations denying protection to works originating in those countries designated by him.

Under section 101 of the bill protection would be granted to unpublished works without regard to the nationality or domicile of the author. Published works would be subject to protection under one of four conditions:

(1) If the author is a national or domiciliary of the United States or of a country with which the United States has copyright relations under a treaty; (2) If the work is first published in the United States or in a country that is a party to the Universal Copyright Convention;

(3) If the work is first published by the United Nations, by any of its specialized agencies, or by the Organization of American States; or

(4) If the work is covered by a Presidential proclamation extending protection to works originating in a specified country.

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As under the present law, published works of foreign origin would still have to come within the scope of either a treaty or a Presidential proclamation to be protected in the United States. The Presidential authority would be broadened, however, to allow the issuance of proclamations without regard to reciprocity: the President would have discretion, "whenever he finds it to be in the national interest," to extend protection to works originating in any country, whether or not that country grants equivalent protection to American authors. The bill would also follow the Report in authorizing the President to revise, suspend, or revoke any existing proclamations, or to impose conditions or limitations on the protection extended by a proclamation. Largely because of the peculiar wording of the present law, works of stateless persons are now subject to copyright protection in the United States without regard to the author's former nationality, his domicile, or the place of first publication. The bill would greatly expand the importance of the author's domicile as a criterion of protection, and would extend protection to most stateless persons by virtue of their domicile in a country with which the United States has copyright relations. For this reason there seems no need for a special provision dealing with stateless persons in section 104.

Whatever the citizenship or domicile of their authors, unpublished works are now given protection under common law in the United States, and subsection (a) of section 104 is intended to continue this protection under the statute. Suggestions have been made for establishing the same requirements of national origin for unpublished as for published works, but we believe they are ill-founded. To set up citizenship and domicile criteria for unpublished works would not only narrow the present scope of common law protection without any demonstrated reason for doing so, but it would also present overwhelming technical difficulties. Citizenship and domicile are, of course, things that can change, and there is no point of time at which it would be practical to fix the status of unpublished works. Moreover, under the Universal Copyright Convention the United States is obliged to protect works first published in U.C.C. countries; if unpublished works were subjected to the conditions in subsection (b) of section 104, it would be necessary to provide a procedure for retrieving a work by a non-U.C.C. national from the public domain at the time of its first publication in a U.C.C. country. There is no necessity or justification for burdening the provision with these complications.

E. UNITED STATES GOVERNMENT WORKS

The 1961 Report recommended that "the general prohibition against copyright in 'publications of the U.S. Government' should be retained in the copyright statute," and that the similar provision in the Printing

Law be repealed as redundant and confusing. The 1965 bill implements these recommendations (in sec. 105 and in SEC. 5 of the Transitional and Supplementary Provisions) and carries them a step further: it provides that "[c]opyright protection under this title is not available for any work of the United States Government," thus denying protection both to "publications" and to unpublished works. We found persuasive the arguments that the same policy considerations against Government copyright apply to unpublished and published material, and that control over unauthorized dissemination of unpublished Government works should be dealt with as a matter of security rather than literary property.

The Report proposed to define the scope of the prohibition as applying generally to "published works produced for the Government by its officers or employees." Section 105 of the bill defines a "work of the United States Government" as a "work prepared by an officer or employee of the United States Government within the scope of his official duties or employment," and also specifies that the "Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise." Thus, a Government official or employee would not be prohibited from obtaining copyright protection for any work he produces in his private capacity outside the scope of his official duties. The use of Government time, material, or facilities would not, of itself, determine whether something is a "work of the United States Government," but the Government would then have the privilege of using the work in any event (28 U.S.C. § 1498 (b)), and the unauthorized use of Government time, material, or facility could, of course, subject an employee to disciplinary action. The 1964 bill had adopted a proposal that the definition read “* * * a work prepared by an officer or employee of the United States Government as part of his official duties." This language was criticized on the ground that, since it differed from the definition of a "work made for hire," it raised questions as to whether the two concepts should be construed differently. No difference in meaning was intended between a work prepared "as part of his official duties" and a work prepared "within the scope of his employment," and to avoid confusion we have made the language uniform in the 1965 bill. The term "employee" has been supplemented by "officer" to make clear that it includes elected and appointed officials of all branches of the United States Government.

Under the definition in section 105 (b) there would be nothing to prohibit an independent contractor or grantee from securing copyright in works prepared by him under a Government contract or grant, as long as the contract or grant permits it. We believe that it is important to preserve the basic right of private authors to secure copyright in these situations, and that any cases in which it is considered

desirable to deny or limit protection should be dealt with by agency regulations or contract provisions, or by separate legislation.

One of the most controversial recommendations of the 1961 Report, which was carried over with some changes into the preliminary draft of 1963 and the 1964 bill, was that copyright in Government works be permitted in exceptional cases in which the special circumstances are found to justify the securing of exclusive rights. This proposal was supported by some Government agencies and book publishers, primarily on the ground that there are a few Government works which would be given broader and more effective dissemination through commercial channels, and that the public interest would therefore be served by allowing copyright to be claimed in them. The recommendation was strenuously opposed, by newspaper and periodical publishers among others, on the ground that a provision allowing exceptions is unnecessary and would be open to abuse.

In the light of the arguments for and against allowing copyright in Government works under exceptional circumstances, we undertook a further exploration of the actual need for exceptions and of the possibility of establishing effective administrative safeguards to insure that the exceptions would not be abused. Our conclusions, based on the information we received, were that there are undoubtedly a few isolated cases in which copyright in a Government work would do no harm and might actually benefit the public, but that these cases are quite rare. On the other hand, to set up administrative machinery effective enough to prevent the granting of copyright to Government works in cases where it is not warranted would require extremely elaborate procedures and detailed safeguards. The few cases where copyright would be justified do not, we believe, warrant the establishment of these complex procedures, and we have therefore dropped the provision allowing exceptions from the bill.

Section 8 of the present statute contains a provision which is intended to make clear that the copyright in a private work is not affected if the work is published by the Government. Although the 1961 Report recommended that this saving clause be retained and clarified, the provision no longer appears to us to be necessary and we have omitted it from the 1965 bill. Under the present law, which uses the term "any publication" of the Government without definition, there might be questions as to the status of private works published under Government auspices. The bill, in contrast, uses the comprehensive term "work of the United States Government" and defines it in such a way that privately written works are clearly excluded from the prohibition. No special provision is necessary, therefore, to make clear that the Government must secure permission in order to publish a copyrighted work, and that Government publication of a private work has no effect upon its copyright protection.

Chapter 2

EXCLUSIVE RIGHTS UNDER COPYRIGHT

OUTLINE

A. Basic approach of the bill__.

B. Copyright owner's exclusive rights in general__.

1. General scope of copyright_---

2. Rights of reproduction, preparation of derivative
works, and publication_

a. In general___.

b. Reproduction___

c. Preparation of derivative works___.

d. Use in information, storage and retrieval

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D. Effect of transfer of particular copy of phonorecord____
1. Effect on further disposition of copy or phonorecord_
2. Effect on exhibition of copy---

3. Effect of mere possession of copy or phonorecord..
4. Proposal for a "public lending right”.

E. Exemption of certain performances and exhibitions.......
1. In general___

2. Face-to-face teaching activities__.
3. Educational broadcasting---

4. Religious services___.

5. Certain performances for educational, religious, or

charitable purposes.

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