I am chairman of the Committee on Copyright Law of the American Patent Law Association, an association composed of approximately 3,000 attorneys who specialize in the field of patents, trademarks, and copyrights, and am authorized to submit a resolution adopted by the board of managers of the American Patent Law Association on April 28, 1965, in connection with H.R. 4347, a companion bill to S. 1006.

Copyright in this country involves three factors, namely, the rights of the user, the rights of the creator, and above all, the promotion of the progress of science and the useful arts-all protection must be in the public interest. Copyright, in any form, statutory or by virtue of the common law right of first publication, is a monopoly, consisting only in the power to prevent others from reproducing the copyrighted work. The author certainly is entitled to the fruits of his labor, but on the other hand, the world should not be deprived of improvements, nor the progress of arts be retarded. Monopoly of learning and knowledge cannot long be endured there must come a time when discoveries and inventions become the property of all. The enactment of copyright legislation and the sole interest of the United States in conferring monopolistic rights lie in the general benefits to be derived by the public from the labor of authors, as well as the public encouragement of individual efforts by personal gain.

In our approach to copyright, from the enactment of the first Copyright Act by the First Congress in 1790, and in the revisions that took place in 1831, 1870, and 1909, our legislation, rather than adopting the European civil law doctrine that copyright is but the extension of the author's personality, has consistently set forth that the statutes, instead of granting additional sanctions to rights already held, substituted a new and lesser right to the exclusion of an old and greater one--that literary and artistic property lost the character of copyright and became the subject of copyright privilege, depending upon legal enactment for the security of the private owner.

Much has been and will be said and written about the need for a general copyright law revision. Virtually every civilized country has, since the termination of World War II, enacted or is proposing new copyright legislation. To this list is even added the Soviet Union and the Soviet bloc, to the extent that private individuals therein may be afforded protection. We have become a party to an international copyright convention, the Universal Copyright Convention, now consisting of 50 countries.

The development of the medium of expression of literary and artistic works-scientific and technical advances and improvements-requires us to maintain our role as a great creditor nation and a world economic power, not only in the field of tangible property but also in the intellectual and artistic sphere.

The proposed legislation, to a great extent, will accomplish this result, but the legislation goes even further-it strikes a harmonious and equitable balance between the public interest, on the one hand, and, on the other, of the rights of the creator and the user.

At this time, and with all sincerity, I would like to express my respects and appreciation to the Copyright Office, the Register, Abraham Kaminstein, George Cary, Abe Goldman, Barbara Ringer, and other members of the Copyright Office staff for the magnificent results accomplished by them. This statement is my penance-in the past, I

have disagreed, and I still do disagree, with many of the items set forth in the proposed legislation. I have never been backward in expressing my disagreement, as members of the Copyright Office staff well know. Having worked with them, argued with them, quarreled with them, advised with and been advised by them over a period of almost 10 years, I have learned and I trust they, too, have, that reasonable compromise, in order to arrive at a fair and equitable bill for all concerned, is never an impossibility.

Prior to the adoption of the resolution by the American Patent Law Association, a report was submitted to the members of the copyright committee. The responses were not unanimous-they could not have been, since the committee members are all lawyers-but the consensus was overwhelming in favor of endorsing in principle the bills now pending in the Senate and in the House of Representatives, with the exceptions that will be specifically pointed out. That consensus is embodied in the following resolution:

Whereas legislation is pending in the Congress of the United States to revise completely the copyright law, title 17, United States Code: Be it

Resolved, That the American Patent Law Association approves the following principles as a basis for said revision:

(1) A single Federal system of copyright;

(2) A basic term consisting of the life of the author plus 50 years after his death, with an extension of subsisting copyrights. For works made for hire, the term should be 75 years from publication;

(3) A modified statutory license for the making and distribution of phonorecords of musical works;

(4) A modified form of reversion after 35 years, but permitting the continued use of derivative works made during the 35-year period;

(5) Protection of sound recording against unauthorized dubbing;

(6) Recognition of the doctrine of fair use;

(7) Elimination of the jukebox exemption;

(8) A relaxation of formalities as to notice;

(9) Divisibility of copyrights;

(10) Provision for judicial review of a determination by the Copyright Office; (11) Protection of foreign works, both published and unpublished, only on the basis of treaty or proclamation; be it further

Resolved, That the American Patent Law Association opposes the following: (1) Government ownership of copyright;

(2) Limitation of copyright by way of a manufacturing clause;

(3) Exemption from copyright protection permitting free use of copyrighted material except under the doctrine of fair use; be it further

Resolved, That a copy of this resolution be forwarded to the chairman of the Judiciary Committee of the Senate and to the chairman of the House Judiciary Committee of the U.S. Congress.

I ask the indulgence of this committee for the opportunity to make some remarks, in my personal capacity, as one deeply interested in the field of copyright law.

The present bill is an improvement over H.R. 11947 and S. 3008, which were introduced on July 20, 1964. For example, the present bill contains the compromise provisions on "recapture." I have always been opposed in principle to the concept of "recapture," since this interferes with the freedom of contract, but the compromise (and this compromise, as I am only too cognizant, was worked out after many hours of tedious wrangling), is reasonable and fair to all concerned, providing that the provisions are not changed or watered down. Any dilution or modification would, in turn, create other problems and affect other sections of the proposed legislation. In the interest of obtaining

a workable copyright revision law, I urge that the provisions covering "recapture" should be left untouched.

I desire to point out, however, that since it was the intent that the additional term of 19 years, as to existing copyrights, would accrue to the benefit of the author, his widow (or her widower) and children (together with grandchildren who would qualify), the language in the present section 304 (c) (1) would give a person or entity outside that group the right to terminate and gain the benefit of the additional 19 years. The language should be changed to read identically with the language in section 203 (a) (1).

It is apparent that with the exception of (1) protection of unpublished foreign works; (2) Government ownership of copyright; and (3) free use of copyrighted material under certain conditions, the American Patent Law Association has endorsed the pending legisla tion, in principle. Certain clarification of language is, of course, required and undoubtedly will take place. I do not desire to burden this committee with a detailed statement covering such language. There are, however, a few points that involve substance rather than form. For example:

(1) In section 101, language should be added to provide that a copyright may only be mortgaged, hypothecated, or secured under the Copyright Act and that any proceedings in connection therewith or based thereon are to be governed exclusively by the act.

While a copyright may only be mortgaged under Federal law (in re Leslie Judge Co., Inc. (272 Fed. 816 (C.C.A.-2, 1921)); cert. den. Green v. Felder (256 U.S. 704, 65 L. Ed. 1180 (1921)), there is considerable doubt as to whether or not enforcement of the mortgage or an attempt to reach the copyright could be effected in a State court. (See Republic Pictures Corp. v. Security First National Bank (197 Fed. (2d) 767 (C.A.-9, 1952)); Harms Co. v. Eliscu (339 Fed. (2d) 823 (C.A.-2, 1964)). The proposed language would remove this doubt and would effectively provide for a unified and exclusive Federal jurisdiction for the enforcement of rights under the mortgage.

(2) Since it is intended, in the proposed legislation, that there be a relaxation of formalities as to notice, there would appear to be no necessity that, as a condition of continued protection, a notice be affixed on all copies if the work is published outside of the United States. It is suggested, therefore, that the words "or elsewhere," appearing in section 401(a), be eliminated.

(3) In section 503 (a), provision should be made that detailed rules for seizure and impounding should be specifically promulgated by the Supreme Court, under the Federal rules of civil procedure, or otherwise, instead of leaving the procedure to the discretion of the court in each particular case.

The following comments are offered in connection with points on which the submitted resolution disapproves elements set forth in the proposed bill:

(1) Protection of foreign unpublished works: Under section 104, protection would be granted to unpublished works without regard to the nationality or domicile of the author. This would afford protection to unpublished works of the authors of a country which (a) might not afford protection to the unpublished works of U.S. authors; and (b) might not itself grant protection to the unpublished works of its own authors.

On page 8 of the supplementary report of the Register, the retention of this provision to protect foreign unpublished works is sought to be justified upon the ground that if unpublished works were subjected to the same conditions imposed upon published works, it would be necessary to provide a procedure to protect the work of a non-UCC national if the work were subsequently published in a UCC country. There appears to be no justification for this solicitude in connection with works of authors whose countries have not seen fit to protect works of U.S. authors either on the basis of treaty or proclamation.

In the 1961 report of the Register (p. 118), the statement was made that the extension of copyright protection to all works, without regard to reciprocity, would simplify our international copyright relations and the determination of the copyright status of foreign works, would serve our best interests and encourage countries to adhere to the UCC. This, in effect, recommended the adoption of the so-called French system; that is, protection without regard to reciprocity, and was stated by a certain commentator to be "one of the most important innovations recommended by the report."

There was great doubt as to whether or not there was protection in France for foreign works, in the absence of treaty or reciprocity. The fact that treaties and conventions based upon the principle of reciprocity do exist proves that laws regarding literary and artistic property are in some ways exceptional, falling outside the scope of common law and granting special privileges. Foreigners would not thus be automatically entitled to claim unconditional benefits from them. What inducement could be held out to cause a country to adhere to the UCC when the works of an author of that country enjoy protection in the United States?

But even if it was assumed that the French system previously existed, France, by introducing legislation to do away with this system has recognized the fact that generosity is not appreciated but too often abused.

It must be pointed out that the protection of foreign authors implies the existence of reciprocity since such protection is based on the universalism of copyright. Copyright is acknowledged almost everywhere in the world and it must be regulated on the basis of mutual respect. The French law of July 8, 1964, does not discriminate against the nationality of authors nor against the place of origin but takes into consideration the lack of mutuality between the law of the country of origin and that of the country in which protection is sought. If the country of origin does not assure to foreigners, and its own nationals, protection which is not equivalent to that of the French law, then the works of nonnationals of France will not be protected and will receive inferior protection in France. There is no reprisal and no retaliation-France merely refused to grant to foreign works any greater protection than a foreign country granted to French works. France, in applying the "French system" never went as far as the proposal of the Register, which would grant protection to the unpublished works of nationals of countries where there might be no copyright protection for the works of its own nationals. Under the French Act of 1852, it was held that protection in France could not be broader than that afforded in the country of origin, nor could the law be availed of by citizens of a country with which France had a treaty

granting a lesser degree of protection. A U.S. work is protected in France only as long as it is protected in the United States and the highest court in France has held that if the work is not protected in the country of origin it will not be protected in France.

The Register's proposal would give protection to unpublished Soviet works having as their country of origin the Soviet Union, and this despite the fact that U.S. works do not enjoy protection in the U.S.S.R. (nor does any foreign work).

The attitude of the Soviet Union toward foreign authors is well known, but how are native authors treated in the Union and in the Soviet bloc?

It must be remembered that in the Soviet system the individual disappears before the collectivity. The Soviet principle is that the author works for the good of the community and should be remunerated in accordance with the "social usefulness" of his work. Once he has offered his work for exploitation in any medium, the fees he is to receive are set out in a series of schedules laid down in the copyright law. The rates vary both as to literary merit and the contribution the work makes to the cultural growth of the nation and its Communist education. Socially useless writings, whatever their literary merit, earn nothing at all.

Ownership of exclusive rights has been eliminated, for with complete socialization the term has lost its meaning. The author only has the right to secure the services of a Socialist organization to publish, reproduce, circulate, and publicly perform his works, and his "exclusive" right to derive material benefits from the publication or public performance of his work is only the right to receive compensation in accordance with governmental schedules exclusive rights are deemed unsocialistic.

There is nothing chauvinistic nor immoral in looking out for the interests of our own nationals. The element of reciprocity, that is, "you scratch my back and I'll scratch yours," should be applied in the field of international copyright relations.

(2) Government ownership of copyright: There was determined opposition to copyright in the U.S. Government. It was felt that the Government should neither be the initial owner of the copyright nor the derivative owner, that is, by virtue of an assignment, bequest, or otherwise.

(3) Free use of copyrighted material except under the doctrine of fair use: The committee opposed exemption from copyright protection providing free use of copyrighted material, other than under the doctrine of fair use. Sections 109 (1) and, (2), 110, and, to a lesser extent 704 (a), (b), and (c), would allow the free use of copyrighted material to the detriment of the copyright proprietor. In connection with section 109 (1) and (2), the use of such material should be only with the consent of the copyright proprietor, despite the fact that the purpose may be in connection with teaching activities. The printer of a textbook is paid, the school janitor is paid, the teacher is paid, and in many instances the educational institution receives a substantial tuition fee there is no reason why the author or copyright owner should not likewise be reimbursed.

Section 110 provides that it is not an infringement for an organization lawfully entitled to transmit a performance to make no more