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Mr. CARDWELL. I would say that the prospective technological changes in the field are considerably prospective and it would probably include direct electronic transmission of the news into the home and received on a screen. At that point conceivably we could come back to Congress but I think before that is in general practice many, many years will have elapsed.
Mr. KASTEN MEIER. Actually I can recall a good many years ago a scheme that was at least thought of where an individual subscriber would have something like a press service machine in the home which could receive both features and news according to the subscriber's use.
Ultimately this could replace the newspaper, but I don't know whether it will ever be perfected or not.
Mr. CARDWELL. Neither do I.
Mr. KASTENMEIER. As to advertising, on page 3, section 403, do I understand that your assertion is that the way it is now written advertisements are not protected for newspapers within the copyright law?
Mr. CARDWELL. No, this section 403 relates to the notice requirements. But my impression is that the Copyright Office does not feel that advertisements in collective works are protectable.
I might say that this almost “aside” in parentheses is really speaking to one of the most controversial questions in the entire newspaper field today. I have tried to decide what they are attempting to do here. I do not know whether they are saying an advertisement has no copy, right protection or that by inserting this clause in parentheses it would mean anyone lifting the advertisement would then fall within the scope of an innocent infringer as having no notice that the copyright applied.
In other words, I don't know exactly what it means. I assume that the latter would be the situation.
There is litigation at this time on this very question. It is certainly a developing field.
Mr. TENZER. Would the chairman yield?
Mr. TENZER. Would the witness give us the citation of the cases referred to on page 3, referring to "unresolved litigation”?
Mr. CARDWELL. That has currently been filed and it is coming up for trial. It is the Brattleboro (Vt.) Daily Reformer v. Roger G. Miller, d/b/a Town Crier.
It is in the U.S. district court in Vermont. The letterpress paper set up a copyright situation against the alleged infringement and has
sued upon it.
Mr. KASTENMEIER. Mr. St. Onge.
On page 1 you use the term “passing off' concept." Would you define that for me?
Mr. CARDWELL. That is an unfair competition phrase where one person or company attempts to pass off its product or work as its own when in reality it is someone else's. It is misleading the public as to the source of a work or product. For example, let's say there is a Lake Auto Sales, using a generic name, and someone opens a shop in the same town and calls it Lake Auto Sales which would result in confusion in the minds of the public. Perhaps it also simulated the
advertising of the first company; then it would be a passing-off situation where it would attempt to trade off the goodwill of the other company.
Mr. St. ONGE. On page 4, the paragraph in the middle of the page, I read in your statement an inference that certain governmental bodies are avoiding the copyright law.
Do you intend that inference? I mean deliberately?
Mr. CARDWELL. That statement was taken from the report of the Register of Copyrights on copyright law revision of July 1961. I did not originate it. It came from the Register of Copyrights.
Mr. St. ONGE. But you adopt it?
Mr. CARDWELL. Weil, I assume he knows what he is talking about. I would adopt it if it is a correct statement. I took it on that basis.
Mr. ST. ONGE. That is all; thank you.
Mr. TENZER. In referring to section 403 under notice of copyright, and when you were discussing that portion of the section in parentheses, you said you were in doubt as to what it referred to. Is it not a fact that sometimes an advertiser may copyright his advertisement before it is given to the newspaper for publication?
Mr. CARDWELL. He certainly may.
Mr. TENZER. So is that not what the portion in parentheses refers to, when you submit a collective work for copyright, and when such works have been submitted by someone else. The same would be excluded from your copyright?
Mr. CARDWELL. As I understand it from the discussion on page 104 of the copyright revision report, part 6, this was included on the assumption that the advertiser is the owner of ordinary advertising. And, since the assumption made is that the advertiser owns the copy, then a person who copyrights a collective work could obtain no interest in it because he would not be the owner.
Mr. TENZER. Is that not as it should be ? Mr. CARDWELL. The revision report refers to ordinary advertising. I would say in a great many or in most areas this would be correct, that the advertiser is the owner of the copy, and that the work that the newspaper does to prepare it is a service to the advertiser.
However, the assertion has been made by letterpress papers—these are the ones which use a hot metal process and cannot photographically reproduce advertising layouts—that they produce advertising layouts with their own skill, resources, and equipment.
This is the point of controversy in the litigation. In other words, a newspaper is asserting a protectable property interest in a newspaper advertising layout.
Mr. TENZER. If I was the owner of a company and prepared an advertisement which I placed in a daily newspaper published in the area of my marketing and distribution program and then took a mat of that advertisement and placed it in 20 or 30 of the smaller newspapers whom you represent, you would not suggest that each of those newspapers would own a share in that copyright, would you?
Mr. ČARDWELL. I would not suggest it. There is no question that the newspaper would not own an interest in it.
However, what if you were a nonadvertiser and the newspaper salesman worked up an advertisement, laid out a really pretty one and brought it to you? You think it looks good and you buy it. He puts it in the paper. He has put a lot of time into it and has used his own skill and resources, perhaps has not even asked you for information about your company.
Then, at this point, some newspapers are asserting an ownership interest in the layout when they have done the work, at least as against a competitor which may lift it photographically and resell it without any proportionate investment. This is the point of litigation.
Mr. TENZER. Without going into the subject of the litigation specifically because I don't know the facts in the case, can you tell us what one of your papers would do in the case of a competitor of one of your advertisers from a neighboring town who picks up the ad and duplicates it exactly. Would the newspaper proceed to sue for unfair competition under the State laws or under Federal laws? Or would he leave it to the advertiser?
Mr. CARDWELL. I do not think the newspaper would have any standing in court.
Mr. TENZER. Thank you.
Mr. KISTEN MEIER. Our last witness today is a gentleman who has been very patient and waited while two other witnesses who were listed after him proceeded ahead of him, Professor Meyerhoff, representing the Committee To Investigate Copyright Problems. Professor Meyerhoff, the committee welcomes you. STATEMENT OF PROF. HOWARD A. MEYERHOFF, DIRECTOR AND
PRESIDENT, COMMITTEE TO INVESTIGATE COPYRIGHT PROBLEMS AFFECTING COMMUNICATION IN SCIENCE AND EDUCATION; ACCOMPANIED BY LAURENCE B. HEILPRIN, DIRECTOR AND CHAIRMAN, CICP STUDY GROUP; AND GERALD J. SOPHAR, DIRECTOR AND SECRETARY-TREASURER, CICP
Mr. MEYERHOFF. I wish to introduce Gerald Sophar to my right and Laurence B. Heilprin to my left. They are both directors of the Committee To Investigate Copyright Problems.
Mr. KASTEN MEIER. Mr. Baptie is not here today?
Mr. Chairman, the testimony that was presented by Mrs. Linden covered quite a little ground that we proposed to cover. For this reason, I think it would save your committee considerable time if I merely submitted the prepared testimony for the record and then summarized some of the points that were not covered by any of the previ. ous witnesses this morning,
Mr. KASTENMEIER. The Chair will be pleased to, without objection, accept your statement and make it part of the record.
(The statement is as follows:)
STATEMENT BY TIIE COMMITTEE TO INVESTIGATE COPYRIGIT PROBLEMS AFFECTING
COMMUNICATION IN SCIENCE AND EDUCATION (CICP), ON H.R. 4347 My name is Howard A. Meyerhoff. I am president of the Committee To Investigate Copyright Problems Affecting Communication in Science and Education, and chairman of the board of directors. CICP is a nonprofit corporation incorporated in the District of Columbia. It was formed by a group of persons interested in solving, before it became too severe, the problem of reconciling the copyright principle with growing use of the new copying and processing techniques. This problem and its possible solutions was discussed by CICP as early as 1958. What we have to say now also applies to the future rather than to the present-we are looking ahead, perhaps to the next 25 years. Because our recommendations depend closely on this view as presented in the statement, they are summarized after rather than before it.
Joined with me in this presentation are my fellow directors and officers of CICP, Alexander A. Baptie, Laurence B. Heilprin, and Gerald J. Sophar.
You are familiar with Benjamin Franklin's remark to the Members of the Continental Congress at the signing of the Declaration of Independence: "We must all hang together, or assuredly, we will all hang separately."
That is our message today. Gentlemen, if we don't hang together in support of the copyright principle, assuredly it will be weakened, and much of our separate interests will go with it. If we can't overcome our narrow parochialisms and unite, we will not only not get what any of us wants, but contribute to the downfall of an institution essential to the American way of life.
Let us now see how those concerned with copyright form interest groups which differ widely on many points. We will then show how these views can be reduced to essentially two, which cannot be reconciled unless they broaden their viewpoints.
1. THE COPYRIGHT INTEREST GROUPS
One of these groups looks at copyright from the viewpoint of publishers for profit. They and many related industries have developed almost solely because of the protection of "intellectual property" by the copyright statute. They are doing well and do not want change. Their interest is to protect protection.
Another interest group are authors who write for money. Their views tend to coincide with those of publishers. If they did not have copyright protection against infringement, selling their intellectual produce (as shown in copyright history) would be as unprofitable as carrying a pig to market through a countryside of starved bandits.
A third interest group are scholarly and scientific authors. In general, they are not paid, and not particularly interested in copyrighting. But they are interested in communicating. In fact, they would like their articles copied, and some even urge their publishers not to copyright. More specifically, they stand for freedom of communication in the sense of not copyrighting articles, as long as they are copying the papers of others or encouraging others to copy their own. However, when they use duplicated material to write a textbook, this view is reversed. They feel that to allow chapters of these books to be mimeographed by enterprising youngsters and sold to the class at small or no profit is unethical. "It hits us right in the royalty check," they cry, and join the textbook publishers in invoking the copyright principle.
A fourth group are the publishers of scientific and scholarly periodicals. They also are not too interested in copyrighting their publications, but most of them say they must do so in order to maintain high professional standards through prevention of misuse, and to maintain the circulation of their journals. This last is rather half hearted, as they do not take the threat of reduced circulation seriously, trusting that if it should materialize they can charge their subscribers more or obtain a subsidy in the "public interest."
Another group with parochial views are the educators. Education, they say, is our most important national occupation. Therefore, while there is something to what the author-for-pay and the texbook publisher say about "drying up the sources," still, communication and dissemination of ideas with ever-freer access are so much more important that the educator should not be hampered in discharging this function. He should be able to make a royalty-free copy or copies if and when they are needed ; and even have much free use of educational TV and other audiovisual media. In general, the educators tend not to discriminate be tween free physical access and free economic access.
The librarians as a group assert that they are in the middle. Granted, they say, were it not for copyright many good works which are their stock in trade would not exist. But their chief clientele are readers who occasionally or often need single copies of documents, single uses of audiovisual material. A single copy, they argue, is all they ever need. It does nobody harin and has been traditionally allowed the student or scholars patiently copying by longhand. Why not now, by rapid mechanized methods? They even go so far as to say that if a whole book is not in print they should be able to make a single copy for a client, in the "public interest."
1 Alexander A. Baptie, vice president, Microcard Corp., West Salem, Wis. ; director, CICP. Laurence B. Heilprin, staff physicist, Council on Library Resources, Washington, D.C.; director, and chairman, CICP study group. Howard A. Meyerhoff, chairman, Department of Geology. University of Pennsylvania, Philadelphia, Pa.: director, and president, CICP. Gerald J. Sophar, vice president, Jonker Business Machines, Gathersburg, Md. i director, and secretary-treasurer, CICP. Walter J. Derenberg, professor of law, New York University School of Law, New York, N.Y.; director, CICP.
The makers of film, photographic materials, and reproduction equipment are not greatly concerned whether copies are royalty free or not. Their main interest is in the number and cost of the copies apart from the royalty. Like the scientists who do not write for pay, they support greater freedom of communication, since this leads to wider use of their materials and equipment.
Another interest group are commercial makers of audiovisual products such as television films used in the educational process. They feel that use of such products should be protected like other copyrighted works. Closely related to them are the makers of computer programs, also for sale to education. They feel that use of these programs should be protected.
On the other hand, manufacturers of computers, which can swallow great masses of copyrighted materials and digest and regurgitate them in new configurations, are worried lest these transformations be construed as "copies" and their use as infringement. For if so, they warn, it would mean really serious obstruction to scientific and educational advance. Like the scientists who do not write for pay and the makers of graphic equipment and materials, they stand for greater freedom of communication, since this leads to wider use of their equipment.
While there are other groups with special interests in copyright, we mention only one more-the "general public." What is their interest in copyright? In the main they are neither aware of its advantages, nor feel constrained by it. like the law and medicine and politics, copyright does not ordinarily touch their lives. Nevertheless, in the long run the general public will be the heaviest loser if copyright is weakened.
Summarizing the various interest group views, we may say that each is one of more or less enlightened self-interest. Our task in this paper is to increase the enlightenment with ultimate benefit to the self-interest.
2. THE TWO BASIC "FACTIONS" IN COPYRIGHT: AN ANALOGY If we sort out these various parochial attitudes and interests, we find that they can be roughly divided into two groups: that of the goose which lays the golden eggs, and her assistants; and that of the consumers of the eggs, and their friends and assistants. Since these are intellectual eggs they are, of course, intellectually and spiritually edible. Those who produce the golden eggs of intellectual creativity want protection and encouragement to lay. Those who are nourished by the intellectual feast want freedom to consume. While some consumers recognize that productive geese must be fed and tended, most are aware only of the eggs—and only after these are so accessible as to seem free-i.e., in the public domain. Users in small quantities often tend to confuse free physical access with free economic access. Once the prototype egg is laid, they may rationalize, what unfairness is there in making a little more use of it, say, by making a personal copy? True, the copyright statute requires permission to copy-but is it necessary or even possible to ask each time if one needs only a single copy? Obtaining permission for a few copies, under today's conditions of diffuse organization, great speed and fast competition is no longer practically feasible. The enormous amount of trouble and time needed to get permission far more than offsets any slight economic loss to the copyright owner. Besides, there is not necessary any economic harm. Who can measure so small an amount as the economic effect of one additional copy?
But the goosewho in reality is nobody's goose—has learned statistics. She replies: it may be that the loss to me of a royalty on a single copy is quite smallpennies compared with the dollars it would cost you to get permission for access to my work. But that is the point of what is going wrong. I am paid by the total. One and one and one and one-is becoming more of the total. In future it will make a bigger and bigger difference to me whether my egg is duplicated one-at-a-time, or in an edition, if I am not paid for one-at-a-time copies. I can see my income shrinking-simply because there is no way to pay--because it costs you more to pay for permission to pay me than to pay me.
Before we go further with this discussion, let us introduce a simple analogy from physics. You are familiar with the experiment of hanging a weight to a spring which is fastened to a support. If you pull down the weight and let