OFFICE OF THE REGISTER OF COPYRIGHTS, COPYRIGHT OFFICE, THE LIBRARY OF CONGRESS, Washington, D.C., May 13, 1965. HONORABLE L. QUINCY MUMFORD, SIR: This report is a supplement to the Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, submitted to the Congress in July 1961. As explained in the preface, the purpose of the Supplementary Report is to set forth the reasons for changing a number of the recommendations in the 1961 Report, and to clarify the meaning of the provisions of the copyright law revision bill of 1965. The Supplementary Report represents an effort to state, as frankly as we can, the thinking behind the language of the 1965 bill and, in many cases, the arguments for and against particular provisions. We also point to language in the 1965 bill which requires further study, and it should be clear that we envisage the possibility of amendments as the legislative inquiry proceeds. What success the revision program has achieved so far is the result of a willingness on the part of a number of people to enter into a continuing dialog in which alternative solutions were scrutinized and debated. A decade of this kind of thorough exploration has convinced me that, while the problems in copyright law revision have no simple or ineluctable solutions, none of them are irreconcilable. In the last 5 years my colleagues on the Copyright Office General Revision Steering Committee, now including George D. Cary, the Deputy Register of Copyrights, Abe A. Goldman, General Counsel, Barbara A. Ringer, Assistant Register of Copyrights for Examining, and Waldo H. Moore, Chief of the Reference Division, have spent endless hours on revision. A temporary illness has forced me to the sidelines since March, but in my absence George Cary has actively and effectively carried the work forward. The very difficult task of putting precisely what we had in mind into words, both in the Report of 1961 and the Supplementary Report of 1965, has fallen to the gifted pens of Barbara Ringer and Abe Goldman. I am proud to submit this Supplementary Report to you for transmittal to the Congress, as a part of our continuing obligation to work toward the formulation of a new copyright law. Sincerely yours, ABRAHAM L. KAMINSTEIN, Enclosure: Supplementary Report. PREFACE THE PROGRAM FOR GENERAL REVISION SINCE 1961 Introduction.-While some consider it strange that it took this long and others marvel that it got this far, the program for general revision of the copyright law has finally entered its legislative phase. The program started with a study phase which began in 1955 and lasted 6 years. This first phase ended in July 1961, when we submitted to Congress the Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law,* containing detailed recommendations for an omnibus statute. The next phase, which was devoted to discussion, debate, and drafting, lasted for 3 years and culminated in the introduction of a revision bill in both Houses of the 88th Congress for purposes of further discussion and comment. Then followed an interim period of about 6 months during which the Copyright Office redrafted the bill in the light of the detailed comments and suggestions it had received. The final, legislative phase of the program began on February 4, 1965, when Senator McClellan and Represenatative Celler introduced the bill with the expectation of active congressional consideration during the current session of the 89th Congress. This supplementary report is intended both as an end product of the drafting phase and as an introduction to the legislative phase of the revision program. The Development of a Draft Bill.-The Register's Report of 1961 was intended as a means and not as an end. Its tentative recommendations were considered carefully and advanced seriously, but their purpose was not to state a final Copyright Office position or even to argue the ultimate merits of a particular point of view. The purpose of the Report was to furnish a tangible core around which opinions and conclusions could crystallize, thus forming the basis for agreement on the principles to be embodied in a bill. Despite the criticism provoked by some of its proposals, and despite the radical differences between its recommendations and the bill now pending, I believe the Report accomplished what it set out to do. We had expected the Report to be controversial, but I cannot honestly say that we were prepared for the fervent opposition to some of its major recommendations. At the same time the Report had the effect of prodding a good many people out of their seemingly list *Citations to the Report, and to the later collections of comments and discussions published in connection with the program for general revision, will be found in App. A. less attitude toward copyright revision. At 4 full-day meetings of the Panel of Consultants on General Revision, held from September 1961 to March 1962, to discuss the Report's recommendations in detail, there was little evidence of apathy or indifference. And, along with the free-swinging attacks and complaints, there were also a number of constructive, well-reasoned arguments. Most of the statements at the Panel meetings, as well as a substantial body of written comments, deserved and received serious consideration. The focal point of opposition to the Report was its proposal on the start and length of the copyright term, which lay at the heart of the entire revision program. We had recommended that copyright begin with the "public dissemination" of a work-a concept that would include public performance as well as the distribution of copies and sound recordings-and that it last for a first term of 28 years, renewable for a second term of 48 years. There was very little support for these recommendations, and there was strong sentiment favoring copyright from creation of the work, and the term most common in foreign copyright laws, based on the life of the author and a period of 50 years after his death. Changes on matters of substance as fundamental and as important as these could not be undertaken lightly. It required a good deal of time to absorb and analyze the body of comments we received and to come to decisions as to which recommendations we were going to abandon or revise and what new recommendations we were going to make. Moreover, the intensity and force of the controversy stirred up by the Report made it imperative that we remain detached from the conflicts while we were reviewing the issues in dispute. There was a period during which the revision program, on the surface at least, appeared to be in a state of suspended animation. What we were doing in the Copyright Office at this time, in addition to allowing the flames to burn down a little, was trying to decide what the next steps in copyright law revision ought to be; but our apparent inactivity and our silence as to our intentions made some people very restless, and there were suggestions that we were being stubborn or aloof. The hardening of opposition and the aura of controversy that surrounded the Report became apparent toward the end of 1961, and it is no exaggeration to say that during 1962 the revision program went through a serious crisis. Fortunately, the program emerged from this stormy period considerably stronger and better founded than before. For its part the Copyright Office was quite properly spurred on to reach decisions, and to speed up its action toward preparing a finished bill. On the part of those who did the spurring, there was a new realization of the immensity of this task. On all sides there was increased respect, understanding, and a recognition of the need for flexibility and compromise. Although we have been over some bumpy roads since 1962, from that time on I have never doubted that we were traveling forward. In November 1962, I announced that the Copyright Office was prepared to change its position on some debatable questions and to draft alternative language on others. I indicated, for example, that the Office contemplated revising its recommendations concerning "public dissemination" in the light of the justifiable criticism that had been directed against it, that the Office's draft bill would be based on the concept of a single federal system of copyright from creation, and that it would present alternative proposals with respect to the length of the copyright term. During the following year, beginning in January 1963 and ending in January 1964, the Office held another series of 7 full-day meetings and an eighth 2-day meeting with a greatly enlarged Panel of Consultants consisting, in effect, of anyone with sufficient interest to be heard on the subject. At each meeting we presented preliminary drafts, including alternatives in some cases, covering virtually all of the provisions of a new law. These draft provisions were prepared on the basis of an intensive analysis and evaluation of the comments received on the appropriate section of the Register's Report, and of any equivalent language in foreign laws and previous revision bills. Like the Register's Report, the preliminary draft was an experimental device for provoking discussion and suggestions. In many of the sections we were trying out ideas, and throughout the draft we deliberately laid out the provisions in more detail than necessary in order to direct attention to as many problems of content and language as possible. Again, although various provisions of the preliminary draft attracted considerable adverse criticism and opposition at the time, the draft as a whole served its intended purpose. It laid the foundation for a consensus on some of the issues previously in controversy. It elicited a large number of meaningful and constructive comments and suggestions, both at the Panel meetings and in written statements. It also formed the basis for meetings, discussions, and exchanges of correspondence with the various subcommittees of American Bar Association Committee 304 (under the notably competent chairmanship of John Schulman), and with many interested organizations and individuals. All of this contributed materially to the bill. During the 6 months following the last of the Panel meetings on the preliminary draft the Copyright Office undertook a complete review and revision of the draft, section by section. Every comment or suggestion we had received was given consideration. On questions of substance the Office reviewed all of the policy arguments that had been presented, and in some cases modified the provisions of the draft or adopted an entirely new approach. On matters of language there was very extensive redrafting and boiling down of wordage with the thought of making the bill as brief, simple, and clear as the inherently complex subject matter permits. The outcome of all this concentrated effort was the copyright law revision bill of 1964, introduced in both Houses of Congress on July 20, 1964. A full week of discussions on the new bill, including a 2-day meeting of the Panel of Consultants, were held in New York early in August 1964. On the whole the response was gratifying: a great many of the earlier detailed substantive issues and technical drafting questions had simply dropped out of the discussions. At the same time it became clear that several major issues remained to be settled, and this was borne out by the written and verbal comments made to the Copyright Office during the remaining months of 1964. Not all of these issues were capable of reconciliation, but part of the Office's effort in redrafting the bill was to work toward fair and acceptable compromises on as many of them as possible. THE COPYRIGHT LAW REVISION BILL OF 1965 With his usual wisdom and foresight, Arthur Fisher, my predecessor as Register of Copyrights who died in 1960, planned the revision program as a long-range project involving nearly unlimited amounts of time and effort. He realized that unless we first knew what we were talking about and then drafted a bill that was general enough to be comprehensible and detailed enough to hold water, there would be little purpose in bringing a bill to the point of congressional hearings. Most important, he recognized the need for reconciling the fierce conflicts between the many special interests in the field; he knew that stubborn opposition on a few fundamental issues could doom this revision program as surely as it has all of the past efforts. To bring the program to this point we have had to explore every question, analyze every argument, discuss, consult, confer, and look for workable compromises on issues that some people claimed were irreconcilable. It has been said that laws, like children, often turn out to be quite different from what their parents expected, and it is possible that Arthur Fisher might not recognize the bill now pending in Congress as the culmination of his efforts. There have been a great many changes, some of them on matters of fundamental importance, from the recommendations in the Register's Report. While the actual drafting of the bill was done by the Copyright Office without direct consultation with anyone outside the Government, we have consistently tried to obtain and consider the viewpoints of |