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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It is apparent that with the exception of (1) protection of unpublished foreign works; (2) Government ownership of copyright; and (3) free use of copyrighted material under certain conditions, the American Patent Law Association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 legislation, 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. (20) 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:
(i) 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 (6) 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 espect. 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
than one copy for its own lawful transmission purposes or for archival preservation, if the copy is not used for transmission after 6 months and is thereafter destroyed or preserved for archival purposes. This would allow any such organization not only to make a copy or recording of a copyrighted work, from a live broadcast, and to perform and exhibit it, but also to make a copy from previously recorded or filmed works, and further, to perform and exhibit such a copy. This so-called right would interfere with and be a clear violation of certain rights previously sold and transferred by the copyright proprietor and for which considerable sums of money were paid.
Under section 704 (a), all deposits are the property of the U.S. Government, but the copyright should not vest in the items so deposited. The written consent of the copyright proprietor should be required, under section 704(b) before an exchange or transfer of the work could be effectuated by the Library of Congress. The same cautionary language should be added to section 704(c) to avoid “other disposition" by the Register or Librarian of Congress. This would avoid policing the disposition of such articles so deposited and require the consent of the copyright owner in the event the articles were not destroyed, but some other use was contemplated.
May I express my appreciation, Mr. Chairman and other members of the committee, for the opportunity to be heard on this proposed legislation. Mr. St. ONGE. Thank you, Mr. Dubin. Mr. Poff?
Mr. POFF. Briefly, let me see if I can summarize your recommendations.
First, you say we should change the language in section 304(c)(1) to read the same as the language in section 203 (a)(1).
Mr. DUBIN. Yes, sir. Mr. Poff. Second, you say that in section 101 we should require that all hypothecations of copyrights, and proceedings incidental thereto, should be governed by this act and jurisdiction should be granted to the Federal courts.
Mr. DUBIN. Yes, sir.
Mr. DUBIN. No; I would merely recommend the elimination of the words “or elsewhere" appearing in section 401(a).
Mr. POFF. I am sorry; I misunderstood you. That is as to the affixation of the notice.
And fourth, you would require strict and exact reciprocity in connection with protection of unpublished foreign works.
Mr. DUBIN. Yes, sir.
Mr. Poff. You would oppose Government ownership of copyrights generally?
Mr. DUBIN. In my personal capacity, sir, or for the committee?
Mr. DUBIN. In my personal capacity, I would not oppose ownership of copyrights by the Government in a derivative capacity, but I would oppose initial ownership by the Government.
Mr. POFF. And finally, you think that the fair use doctrine is properly and amply dealt with by the present language in the bill?
Mr. DUBIN. Yes, sir; I do. After being here yesterday, I went back and checked on an analysis I made in 1955 of the various statutes in Europe. Of course, this analysis was made before the British act of 1956.
But I went over the language, and the language set forth in the act, and I cite this because I remember Mr. Tenzer yesterday asking how could language set forth the elements of fair use. The language is incredible and it doesn't work.
For example, Argentina has a provision for certain purposes up to 1,000 words or 8 measures of music. That is just one provision of fair use. When the fair use provision was first proposed, I think the record will show-and I went on record as opposing just the use of the term "fair use." I felt that examples should be set forth. I was wrong. I changed my viewpoint. I feel that just the statement "fair use" would be sufficient and leave the matter up to the courts.
Mr. POFF. Traditional statutory interpretation dictates that a statute is deemed to cover those things included, and assumed to exclude those things which are not mentioned.
Mr. DUBIN. I think it might be that; yes, sir.
Mr. TENZER. I have no questions except to say that the witness presents rather exceptional qualifications, and I think he has made a very significant contribution to the material before our committee.
Mr. DUBIN. Thank you, sir.
Mr. HUTCHINSON. I have no questions other than to express my apologies for not being here to listen to the entire presentation. I would say that I listened with a great deal of interest to the part of your presentation relative to reciprocity.
Much earlier in the hearings this question of reciprocity was presented to my mind, and I think it is something that the committee must seriously consider.
Mr. St. Onge. Thank you very much, Mr. Dubin.
Mr. St. ONGE. The next witness will be Mr. Spencer Olin, representing the Walt Disney Productions.
STATEMENT OF SPENCER C. OLIN, ON BEHALF OF WALT DISNEY
Mr. Olin. My name is Spencer C. Olin. I will depart from my written statement immediately to say that I don't mind having been relegated to second position behind Mr. Dubin. Mr. Dubin is one of my several mentors in copyright law and in American Bar Association activities, and I was glad to let him speak first-not to let him, but to consent to the chairman's invitation that he do so. I hope that by reason of the two of us from the west coast speaking together we won't prove “How the West Was Lost.”
I am a vice president and general attorney of Walt Disney Productions, of Burbank, Calif. I am also secretary of, and attorney for, Walt Disney Music Co. and Wonderland Music Co., both of which are wholly owned subsidiaries of Walt Disney Productions, engaged in the music publishing business.