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There is only one clause in the entire bill in parentheses, and we would recommend that it be deleted. That is at section 403 (a) relating to "Notice of copyright: Contributions to collective works.” The section provides:

SECTION 403. Notice of copyright: Contributions to collective works.

(a) A separate contribution to a collective work may bear its own notice of copyright, as provided by sections 401 and 402. However, a single notice applicable to the collective work as a whole is sufficient to satisfy the requirements of sections 401 and 402 with respect to the separate contributions it contains (not including advertisements inserted on behalf of persons other than the owner of copyright in the collective work), regardless of the ownership of copyright in the contributions and whether or not they have been previously published.

The alleged justification for that clause in parentheses is set out in the 1965 Supplementary Report of the Register of Copyrights. It

says that

the general copyright notice * * * would not cover the material placed in that issue by other persons as ordinary advertising. (See 1965 Supplementary Report of the Register of Copyrights, p. 104.)

That assumes a legal answer to a question that is not only unresolved, but one which is causing considerable controversy; that is, the ability and resolve of offset publications to photographically “lift" advertising layouts from other publications.

It has never been judicially decided that a newspaper has no property right or copyrightable interest in advertising layouts which it creates with its own skill, materials, and effort. Indeed, there is un resolved litigation on that very point today,

We feel it would be most unfortunate and legally indefensible at this time for a copyright law to blithely remove from possible general notice protection every published advertisement. If the clause were deleted, it would rightfully allow the question to be resolved by future judicial decision.

B. AS USERS OF COPYRIGHTED MATERIAL

Undoubtedly one of our greatest concerns is with the provision relating to copyright of U.S. Government works. (Sec. 105; see 1965 Supplementary Report of the Register of Copyrights, pp. 8–10.) Communicating information is not only the newspaper industry's stock in trade; its free flow is essential to our form of government. Whatever might clog that flow must be of concern to each of us, particularly if it affects in any detrimental way information emanating from governmental sources.

Although section 8 of the present copyright statute provides that "no copyright shall subsist *** in any publication of the United States Government, or any reprint, in whole or in part, thereof," it is a matter of common knowledge that this prohibition is honored more by its breach than its practice. (Schnapper, "Constraint by Copyright” (Public Affairs Press, 1960).) A number of governmental bodies get around" it by permitting private persons who produce works under a Government contract or grant to secure copyright and then obtain a nonexclusive license to publish, or they arrange for the private publication of works produced under contracts or grants, or they take assignments of copyrights secured by private persons. (Ch. XI, Report of the Register of Copyrights on Copyrights Law Revision, July 1961, pp. 129–133.)

The American Newspaper Publishers Association discussed this situation in a transmittal letter of May 10, 1965, to the subcommittee chairman, stating:

This Association takes the position that no person should be permitted to copyright any material where a substantial part thereof is created by Government employees, or with Government funds.

We concur with that position. In our opinion, limiting the copyright prohibition to a "work” of the U.S. Government "prepared by an officer or employee of the United States Government within the scope of his official duties or employment” is absolutely insufficient as a judicial or administrative standard in such an important area. It does not touch, in our opinion, some main areas of abuse copyrighted speeches by Government officials or employees or Government grants to private individuals.

We would prefer a prohibitory standard tied to the expenditure of public funds--which either pays the salaries of governmental officials or employees, or is used for a grant or contract, or is used for publication of the work.

Our comments on final matters will be more brief.

We generally agree that the doctrine of "fair use" as a limitation on exclusive rights is predominantly a question of law. Section 107's brief statement regarding it should suffice as an adequate legislative recognition of the principle.

We likewise agree with the "useful article" distribution or exhibition rights contained in section 111(a) (2). (See 1965 Supplementary Report of the Register of Copyrights, pp. 47-49.)

We feel the "innocent infringer” provision at section 404 (b) is an admirable balance of interests, particularly with the liberalization of notice requirements in the bill.

However, we strongly urge that the clause in section 101 (b) of the present law relating to newspaper reproduction of a copyrighted photograph, which limits liability to a sum between $50 and $200, be retained in the present bill as an amendment to section 504(b).

Although section 504(c)(2) gives the court discretion to reduce statutory damages as low as $100 in cases of innocent infringement, the conceivable maximum for such infringement could be $10,000.

This allowable disparity in damages might easily place a newspaper in the position of being forced into a settlement completely out of proportion to the damage incurred—the very thing the existing limitation was designed to prevent. The American Newspaper Publishers Association's letter goes into this matter in considerable detail, so we will not repeat it here.

We have appreciated the opportunity to present these views today. We will, of course, be most happy to cooperate with the committee in any manner it desires in any future considerations.

Thank you.

Mr. KASTEN MEIER. Thank you, Mr. Cardwell, for a very cogent and concise statement. The letter you refer to by the American Newspaper Publishers Association dated May 10, 1965, and signed by Stanford Smith, general manager, we have. At this point without objection the Chair would like to include this letter as part of the record.

(The document referred to follows:)

AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION,

New York, N.Y., May 10, 1965. Hon. EDWIN E. WILLIS, Chairman, House Judiciary Subcommittee on Copyrights, Washington, D.C.

DEAR MR. CHAIRMAN: The American Newspaper Publishers Association submits its views in this letter for the record of hearings to be held by your subcommittee beginning May 12 on bill H.R. 4347 providing for general revision of the copyright law of 1909.

The ANPA is a trade association of daily newspapers with more than 930 members having more than 90 percent of the total U.S. daily newspaper circulation. Inasmuch as our members are both users and creators of copyrighted materials, their interests would be affected by certain provisions of H.R. 4347. That bill, and its companion measure now in the Senate Judiciary Committee, reflect changes made in response to comments and study of bills introduced in the 2d session of the 88th Congress. Our views deal with the provisions of the bill relative to copyright in works of the U.S. Government and damages recoverable in the case of the unauthorized reproduction of copyrighted photographs by a newspaper.

GOVERNMENT COPYRIGHT Section 105 of this bill continues the present law's general prohibition against securing copyright in any "work of the United States Government” which is defined in section 105 as a "work prepared by an officer or employee of the United States Government within the scope of his official duties or employment."

While we are gratified to note that this bill does not contain the provision set forth in a prior version which would have permitted copyright to be secured in a published work of the U.S. Government in appropriate cases as determined by heads of U.S. Government agencies, the present bill still leaves much to be desired because the phrase "within the scope of his official duties or employment" may not afford adequate protection for the general public. If that phraseology is narrowly interpreted, it could be limited to the relatively small number of persons employed by the Government whose job descriptions specify duties involving the preparation of such Government works. The fact of the matter is that a great number of Government officers and employees, including administrative assistants, research workers, lawyers, economists, and others on a professional level, devote substantial amounts of time and effort to the preparation of copyrightable material although such activities might not be held to be within the scope of their official duties or employment. Another concern is that the present bill establishes no standards whatever regarding the ownership of copyrighted material created in the course of performing contracts between private individuals or corporations and the U.S. Government.

This association takes the position that no person should be permitted to copyright any material where a substantial part thereof is created by Government employees or with Government funds. It is of vital importance that the laws of the United States insure that all such material is made available to the general public, without copyright restrictions, so as to encourage the widest possible dissemination of Government information, documents, or other writings.

NEWSPAPER REPRODUCTION OF COPYRIGHTED PHOTOGRAPHS The damage provisions of bill, H.R. 4347, are also of special concern to newspapers. Section 101 of the present law provides that in the case of a newspaper reproduction of a copyrighted photograph, such damages shall not exceed the sum of $200 nor be less than the sum of $50. The bill deletes that special damage limitation provision of the present law and adds instead a so-called "innocent infringer" provision in section 504(c) (2) which provides :

* * In a case where the infringer sustains the burden of proving that he was not aware and had no reason to believe that his acts constituted an infringe ment of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $100."

Bill H.R. 4347 would also change the present law in other respects. Under present law the court, in cases not involving special limitations, has the discretion to award statutory damages in lieu of actual damages and profits in an amount not less than $250 nor more than $5,000. Section 504(c)(1) of the bill provides that the copyright owner may elect to receive statutory rather than actual damages and profits, and the limitation upon such damages has been increased to $10,000.

This association is strongly opposed to the deletion of the special limitation applicable to newspaper reproduction of copyrighted photographs and asks that this provision be reinserted in section 504 by striking the period in line 8, inserting a colon and adding the following language: Provided, however, That in case of a newspaper reproduction of a copyrighted photograph, such damages shall not exceed the sum of $200 nor be less than the sum of $50.".

The ANPA is convinced that the special considerations which prompted the enactment of this provision are still present today and that this provision should be retained in the law. In our opinion, the proposed “innocent infringer” provision is wholly inadequate and does not protect the legitimate interests of newspapers in cases of innocent infringement.

The report of the House Committee on Patents on the 1909 Copyright Act (H. Rept. 2222, 60th Cong., 2d sess., 1909), at page 15, stated that the special limitation of damages relating to the newspaper reproduction of copyrighted photographs was made "because such reproduction has little permanent value or usefulness and a pro tion in this form does not damage the copyright proprietor to as great an extent as would the reproduction and sale of copies of the photograph in a different form."

This is equally true today. In fact, where proper credit is given, the usual case involving the newspaper reproduction of copyrighted photograph would confer a benefit rather than inflict a legal injury upon the owner because of the promotion value of such a publication. In any event, it is extremely doubtful that the publication of any single photograph would result in profit to the newspaper which could be recovered by the copyright proprietor. Accordingly, the proprietor would be certain to elect statutory damages under the provisions of the bill. At this point, the court before whom any such action is pending would be authorized to award not less than $100 nor more than $10,000 for the single photograph. No standards are provided for guidance of the court except its discretion in light of the circumstances of the case. In our opinion, the permissible damage limitations are fictitious when applied to photographs. The situation thus created presents a legalized means of forcing a newspaper publisher who inadvertently uses a copyrighted photograph to pay up or face litigation with no reasonable means of predicting the amount which will be awarded by the court. This was the very thing the existing limitation was designed to prevent.

It is important to understand the circumstances under which photographs are used and handled by newspapers. While care is used in the handling of photographs submitted for publication, the pressures of time inherent in the newspaper business make it impossible for newspapers to make appropriate copyright searches before publishing each photograph submitted for publication. In view of the risk of such substantial financial penalties as could be imposed under provisions of the bill, the deletion of the special damage limitation regarding photographs and the substitution of the innocent infringer provision could have far-reaching consequences for daily newspapers. For the reasons we have stated, we believe it would be in the public interest to retain this special damage limitation in any revision of the copyright law of 1909.

We respectfully urge that in considering the merits of bill H.R. 4347 the subcommittee consider the foregoing matters which are of vital concern to American newspapers. Very truly yours,

STANFORD SMITH, General Manager. Mr. KASTENMEIER. Do you in behalf of the National Newspaper Association feel that otherwise you are in complete accord with that statement ?

Mr. CARDWELL. Yes.

Mr. KASTENMEIER. Do you feel that other newspapers that are not members of your group, presumably metropolitan dailies and others would also agree with that, with what was said in behalf of the newspaper industry

Mr. CARDWELL. The American Newspaper Publishers Association is primarily the organization of the large metropolitan papers and that is its policy statement.

Mr. KASTENMEIER. I gather then your association is primarily made up of smaller newspapers? Mr. CARDWELL. That is primarily correct; yes, sir.

Mr. KASTENMEIER. Other than the exceptions you take in your statement, do you agree with the proposed revisions and urge its adoption?

Mr. CARDWELL. Absolutely. From the testimony you have received over the past month, it is quite obvious that the copyright law needs adaptation to some modern problems.

I have gone through the bill several times and certainly the Register of Copyrights is to be congratulated on the intelligent manner in which he has gone about attempting to reconcile some of the competing interests.

However, as I did point out on the question of whether a newspaper is copyrightable, the accommodation of conflicting interests, I think, has conceivably resulted in some rather vague language which is going to make some business for lawyers.

Mr. KASTEN MEIER. What is the general practice in the newspaper industry? Is it to copyright certain features and certain supplements as opposed to the entire newspaper?

Mr. CARDWELL. I would say beyond any question that would be true. Some columnists have copyrighted columns. I know of only two or three newspapers in the United States which copyright the edition of the paper as a general practice.

Normally, a newspaper as a whole would be copyrighted only when it is faced with an infringement situation; in other words, when a radio station perhaps is reading the news that its reporters wrote over a morning broadcast or when an offset publication perhaps is lifting the advertising layouts that it has created.

I would say that newspaper copyright is a reaction to an infringement situation.

Mr. KASTENMEIER. In the case where a newspaper copyrights the entire edition, I assume that the copyright notice purports to protect the material which is really not copyrightable. That is to say, there would be many parts of a newspaper which are not original material with that newspaper:

Mr. CARDWELL. The general copyright notice protects everything in the paper that is copyrightable, for example

Mr. KASTENMEIER. An AP dispatch, for example?

Mr. CARDWELL. Unauthorized use of an AP dispatch could be enjoined if a newspaper which uses it is not a member of the AP.

For example, part of a paper which would not be copyrightable would be a press release sent by any group to several papers. Certainly if one of them copyrighted the paper, it would not then be able to protect it against use elsewhere.

Copyright notice is generally to protect editorial cartoons, which may be plagiarized, to protect unique stories and an attempt to protect advertising.

Mr. KASTEN MEIER. Do you foresee any change in newspaper puhlishing from the technological standpoint which in any sense might have to be reflected in consideration of a copyright provision ?

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