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III. There has been a darning realization of unprecedented challenges and dangers to the publishing industry by a technological revolution in the methods of handling and disseminating information.
In response to a recent letter circulated through the book publishing industry, more than 100 publishers have indicated their belief that a study of the impact of new media upon publishing should be made.
A group of leading publishers has agreed to undertake and finance such a study. They have suggested to the American Textbook Publishers Institute and American Book Publishers Council that these organizations become officially involved in this study.
Initial response of the officers of these organizations has been favorable. In any case, substantial funds are available for the study, and the study will be made.
This undertaking is further evidence of what the Register of Copyrights rightly described as the "dawning realization of these unprecedented challenges and dangers has provoked a whole series of meaningful and significant debates."
IV. The need for an appropriate definition of a "work made for hire" had been vigorously debated by the Authors League (membership of which consists of novelists, poets, dramatists) and the representatives of composers and lyricists, on the one hand, and the book publishers on the other and a compromise achieved.
After long and fairly inclusive statements, proposals and counterproposals, it became clear to all concerned that the alleged dangers in the concept of a work made for hire did not relate to the authorship and publication of textbooks, atlases, encyclopedias, dictionaries, forewords, translations, etc. It became clear that the inclusion of a reversion provision in the law (sec. 203 of H.R. 4347) would make it essential that the ownership of copyright, the term of protection and the mechanics of protection of certain categories of works such as those above listed, be permitted as works made for hire. Lacking such a concept, an encyclopedia, for example, would be subject to 7,000 separate reversion negotiations if there were 7,000 contributors, and the term of protection for each contribution would be governed by the life plus 50 years of each contributor. Accordingly, by letter dated April 6, 1965, addressed to the Register of Copyrights and signed by counsel for the following organizations: American Book Publishers Council, Inc.; American Guild of Authors & Composers; American Society of Composers, Authors & Publishers; American Textbook Publishers Institute; The Authors League of America, Inc. ; Composers & Lyricists Guild of America, Inc.; Music Publishers' Protective Association, Inc.; and Music Publishers Association of the United States, specific language for the modification of the definition of "supplementary works” (sec. 101, p. 4, lines 1 through 7 of H.R. 4347) and of a "work made for hire” (lines 23–30 of that page) were submitted to the Register of Copyrights. A copy of that proposal, signed by the eight organizations who endorsed it, was sent to this committee, and its inclusion into the record was requested.
The American Textbook Publishers Institute membership is most particularly concerned with an appropriate and workable definition of "work made for hire" and accordingly urges that the concepts and, if feasible, the language proposed in the above noted joint statement be incorporated into any redraft of H.R. 4347.
V. The manufacturing clause is clearly an anomaly in our law and should be repealed. It is unnecessary to burden this committee with further reiterations of these views.
As the Register of Copyrights and the Book Manufacturers Institute, Inc., have noted, the book publishing industry has for years interpreted the language and the intent of the manufacturing clause under existing copyright law as requiring the actual printing and binding to be done in the United States and as inappli. cable to the typesetting and the making of repro proofs. The Register of Copy. rights and the Deputy Register of Copyrights have both expressed support of these views in their statements to this committee. The Book Manufacturers Institute, Inc., has indicated, albeit more obliquely, that this matter is of no real concern to them. It should also be noted that all but one of the most articulate and vigorous supporters of a manufacturing clause did not insist in their testimony before this committee on the incorporation of language into H.R. 4347 that would bar the present interpretation of the manufacturing clause.
It would therefore be appropriate that if a manufacturing clause is to be ineluded in the bill, its language clearly and explicitly state that binding and printing are the two requirements in the determination of domestic manufacture, and
that preliminary or preparatory work not be deemed part of the printing and binding processes.
Where as a defense to a claim of copyright infringement, the defendant interposes the defense that the book was manufactured in violation of the manufacturing clause, the burden of proof with respect to this defense should initially rest on the party claiming the defense. Obviously, the requirements set forth at page 33, lines 16 through 19 (under subsection (B)), cannot be met by the copyright claimant. Therefore, if there should be a manufacturing clause, subsection (d) of section 601 should read as follows:
"(d) Importation or public distribution of copies in violation of this section does not invalidate protection for a work under this title. However, in any action for infringement of the exclusive rights to reproduce and distribute copies of the work or in any criminal infringement proceeding therefor, the infringer has a complete defense if he proves that:
"(1) Copies of the work have been imported into or publicly distributed in the United States in violation of this section by or with the authority of the owner of such exclusive rights; and
“(2) The infringing copies were manufactured in the United States; and
“(3) The infringement was commenced before the effective date of registration for an authorized edition of the work, the copies of which have
been manufactured in the United States." VI. The requirements of notice of copyright and deposit set forth in chapter 4 of H.R. 1347 fail to take into account copyrighted works disseminated by information storage and retrieval systems. The requirement of the affixation of appropriate notice of copyright and the consequences of omission of notice are set forth in sections 404 and 405.
Since unpublished manuscripts can be "first published" in a computer system, the sections on copyright notice as well as on deposit of copies for the Library of Congress must be reevaluated. If an unpublished manuscript is stored in a computer and then only sections of it at a time are reproduced in print-out, when has that work been published? Or has it been published? What are the requirements of notice under the proposed law? What, if any, is the year of publication? All of these questions and others are asked at greater length and in more detail in “The Law and Computers in the Mid-Sixties” statement submitted by the undersigned to this committee on June 30, 1965, and accepted into the record.
Accordingly, it is urged that with respect to information storage and retrieval systems and computer uses of works, the copyright notice be required on input wherever the title of the work appears directly underneath the title, including the date of input. It is further urged that such copyright notice be deemed both actual and constructive notice of a copyright claim.
The researcher, the user of the computer system, could then readily ascertain whether a work is copyrighted by requiring the title of the work and the copyright notice to be flashed on the screen or printed out in addition to the portions of the work to which his inquiry related. In that manner, the public at large will not be impeded by uncertainty or delay in ascertaining whether a claim of copyright subsists and the protection of the copyright proprietor would be preserved. It is submitted that without this kind of amendation, chapter 4 of H.R. 4347 would result in a new Pandora's box of confusion and litigation. Respectfully submitted.
AMERICAN TEXTBOOK PUBLISHERS INSTITUTE,
By BELLA L. LINDEN, Counsel. Mr. HUTCHINSON. Now with regard to your blanket licensing and so on, isn't your blanket licensing going to supersede the doctrine of fair use?
Mrs. LINDEN. No. I don't believe so, because I really do not think the doctrine of fair use is applicable.
Mr. HUTCHINSON. Well, you, I concede, are much more familiar with the subject than I but it seems to me as to whatever copying of excerpts and so on that a teacher might now do, I mean, anything that could be legally done, would be done within the doctrine of fair use, whereas your blanket license would, in effect, supersede all that, because you would say, "Well, the blanket license is going to cover everything, and consequently, if you don't have a blanket license, your use is not covered in the blanket license.” It has superseded the doctrine of fair use in that respect, has it not?
Mrs. LINDEN. Well, Mr. Hutchinson, as you heard from so many who appeared before today, the doctrine of fair use is not one that sets forth with any certainty whatsoever what is legally permissible under the present law. In fact, because photocopying devices are so recent, so recent in terms of development and economic impact, there is not a single case, to my knowledge, where the doctrine of fair use has been tested with respect to the reprinting of even the smallest portion of a copyrighted work by a Xerox or some other photocopying device.
It is my view, and I believe it is shared by many, that the doctrine of fair use was developed to take care of literary criticism, to the copying of longhand of an inconsequential portion of a work, even though that latter is technically a copyright infringement, because the author, under our present section 1, has exclusive copying rights. Everyone has recognized, and so has the judiciary, that certain standards of common sense must prevail, and that where the copying of longhand in no way hurts the market, or the potential sale of the work, it is de minimis and should not receive the attention of the courts.
As a matter of fact, Judge Story, I think it was in Folsom v. Marsh, an 1841 case, set forth standards of evaluating fair use that hold today. Basically he said that fair use depends on four criteria, and the last, but certainly not the least, is whether the economic worth or the potential market of a copyrighted work is affected by the copying.
And what I am suggesting is that these very standards and they are logical, and they are fair, and they are wholly applicable to the doctrine of fair use but these standards, that Judge Story set in 1841, preclude the applicability of a doctrine of fair use to the reprinting, the photocopying, that is available by present-day technology.
But unfortunately—and that is why we of the textbook publishers have come forward with a blanket licensing system—the dilution of the potential market, the erosion, is not startling. We won't wake up one morning and find there are no more textbooks sold. But each year more and more photocopying, each year less and less purchase of books, and the economic stalemate or the destruction comes or would come at a time when private authorship and publishing would be too weak, financially, to do anything about it.
Mr. HUTCHINSON. So it is your position that any photocopying use is really not within the doctrine of fair use?
Mrs. LINDEN. Well, perhaps "any” is too broad. But certainly, the kind of photocopying uses suggested by the NEA ad hoc committee would be too broad, and those photocopying uses could be achieved by the umbrella of licensing, and no teacher would be bothered. She could get up in the morning and copy whatever she needed.
Mr. HUTCHINSON. Your proposal here for a clearinghouse, is this initially made at this point here today? Have you made it to any of the educational groups?
Mrs. LINDEN. We have talked, even in the corridor of this building, with some of the educational groups, and they said they would be interested in seeing our proposal.
Mr. HUTCHINSON. You haven't actually submitted anything to them?
Mrs. LINDEN. No.
Mrs. LINDEN. That is true. I think that it is too soon for us to have a reaction. I think that the reaction more appropriately would come once they recognize that we don't intend to be the sole arbiters of how the sampling is done, what is paid for, how it is paid for, and so forth, and that we are lending financial and active support to the Council on Library Resources, to Dr. Heilprin and Dr. Meyerhoff, and Mr. Jerry Sophar, and all of the other gentlemen who are not in any way affiliated with book publishing, and who have recommended the Market Research Bureau to do the sampling study that would be necessary for a licensing system and who are actively engaged in supervising that licensing study.
The NEA will be asked to lend the help and services of their own research bureau, so that together we can negotiate and work out a system under which all can live and survive.
Mr. HUTCHINSON. Thank you.
(Whereupon, at 12:40 p.m. the committee was recessed, to be reconvened at 2:15 p.m. the same day.)
(The subcommittee reconvened at 2:15 p.m., Hon. Robert W. Kastenmeier presiding.)
Mr. KASTENMEIER. The subcommittee will come to order.
This afternoon, having concluded this morning with Mrs. Linden, we will proceed in somewhat changed order to accommodate Mr. Richard Cardwell who will be the first witness, representing the National Newspaper Association.
May I announce that we will try to conclude fairly expeditiously this afternoon because we may be interrupted by more quorum calls and rollcalls. With this in mind, we will try to proceed as quickly as we can.
STATEMENT OF RICHARD CARDWELL, ON BEHALF OF THE
NATIONAL NEWSPAPER ASSOCIATION
Mr. CARDWELL. Mr. Chairman, members of the subcommittee, my name is Richard W. Cardwell. I am a practicing attorney in Indianapolis, Ind., and serve as general counsel to the Hoosier State Press Association.
I appreciate the invitation to appear before you on the subject of copyright revision in behalf of the National Newspaper Association.
For the record I might state that the name of the association was changed approximately 2 weeks ago from National Editorial Association to the National Newspaper Association. Most of its membership of more than 6,600 newspapers is made up of weekly or semi
weekly newspapers, but more than 850 are dailies. NNA members are located in all 50 States and all 435 congressional districts. Newspapers published by its members go into approximately 25 million homes regularly and are read by about 100 million Americans. Accompanying me is Mr. Theodore A. Serrill, executive vice president of the association.
Copyright revision is of great interest to newspaper publishers, both as creators and users of copyrighted material. I will divide my discussion today into those two contexts.
A. AS CREATORS OF COPYRIGHTED MATERIAL
Whereas newspapers have more often resorted to State remedies of unfair competition in the past when faced with unauthorized appropriation of their creative efforts, there is little question that the emphasis is shifting toward the necessity of Federal copyright protection. The 1964 U.S. Supreme Court decisions in Sears, Roebuck & Co. v. Stiffel Co. (376 U.S. 225) and Compco Corp. v. Day-Brite Lighting, Inc. (376 U.S. 234), probably have limited State remedies to the “passing off” concept. And the bill under consideration states unequivocally that its intent is to federally pre-empt State “unfair competition" equivalent to copyright, thereby abolishing the common law cause of action. (Sec. 301; see Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill (May 1965), pp. 81-86.)
I might state first that it is somewhat difficult to determine the copyrightability of newspapers under the present bill. Whereas the present law plainly states at section 5(b) that “periodicals, including newspapers” are subjects of copyright, we can only assume that they now fall within the category of “literary works" in section 102(1) and somehow also within the term "collective work" in the definition section. (Sec. 101:"Acollective work’ is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole." See 1965 Supplementary Report of the Register of Copyrights, p. 104.)
Assuming, however, that they are still subject to copyright, we think it is of utmost importance that the deposit and registration requirements be as simple and elastic as possible. Copyrighting individual issues of newspapers is an onerous and time-consuming procedure. Very few newspaper publishers, particularly in smaller operations, have either the time or inclination to go through the rigamarole. Even when faced with the prospect of infringements, they may elect to suffer rather than go through the detailed requirements for protecting their rights, and, I might add, paying the $1 registration fee per issue. (The fee would be $6 if the bill is passed in present form, sec. 708(a) (1).)
For that reason, we are in favor of the administrative latitude contained in the bill wherein the Register of Copyrights may by regulation exempt any categories of material from the deposit requirements (sec. 406 (c)) and may permit a single registration for a group of related works. (Sec. 407(c); see 1965 Supplementary Report of Register of Copyrights, pp. 119–120.)