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is to have exclusive rights. It is no satisfaction to make a picture based on something that anybody else can make. The longer it is protected, the more satisfied we are.
Mr. HUTCHINSON. Thank you.
Has Walt Disney Corp. started any lawsuits against commercial CATV?
Mr. OLIN. No.
Mr. Sr. ONGE. Our next witness will be Mr. Burkhardt, accompanied by Mr. Richman.
STATEMENT OF FREDERICK BURKHARDT, AMERICAN COUNCIL OF
LEARNED SOCIETIES, ACCOMPANIED BY MARTIN F. RICHMAN
Mr. BURKHARDT. Mr. Chairman, in the interest of saving the committee's time, I have prepared a brief summary of my main statement, but with your consent I would like to have the whole statement inserted in the record.
Mr. St. Onge. Without objection, the statement may be inserted in the record.
Mr. BURKHARDT. Thank you, Mr. Chairman.
My name is Frederick Burkhardt, and I am president of the American Council of Learned Societies. Mr. Richman has been counsel to the ACLS in connection with our statement regarding the copyright legislation.
I might begin by saying a few words about the American Council of Learned Societies. It is a federation of 31 national professional scholarly organizations, mainly in the humanities, some of them in the social sciences. Most of the members are both scholars and teachers, and naturally have a very deep interest in the copyright legislation now being proposed.
I might say to start with that the ACLS feels that the legislation now being proposed is on the whole excellent, and I join with the other witnesses today in commending the Register of Copyright and his staff for doing a remarkably good, clear, fair job in a tremendously complicated situation.
We will have a number of suggestions for revisions to make, but on the whole we feel the present draft is an excellent piece of work. The ACLS board of directors appointed a committee, whose names you will find listed on page 2 of the longer statement.' The committee chairman was Walter Muir Whitehill, director of the Boston Athenaeum, and, as you see, is composed of a number of distinguished scholars and librarians, producers of books, and users of books.
This committee, with the help of Mr. Richman, of Root, Barrett, Cohen, Knapp & Smith, have produced this statement about the scholarly aspects of this legislation. We have not commented on every section of the bill, but only on those that we feel affect scholars and their work.
On pages 2 to 7 you will find a discussion of the problem of the duration of copyright. On this matter, the committee felt rather reluctant about the extension of the time, because scholars have such
a great interest in access and in the free flow of ideas, and the products of the mind, that anything that tends to restrict the free use goes somewhat against the grain.
Nevertheless, on consideration of all the factors involved we have decided to support the basic change to a system of copyright based on the life of the author plus 50 years. We think this should be supported because it is accompanied by the elimination of the theoretically perpetual duration of common law copyright in unpublished writings. It is a system that scholars can work with; that is, a system based on the life of the author is a practical one for scholars to use.
Perhaps just as important as any of the other reasons is the fact that it will help to promote international uniformity of copyright protection for published works. The British system has, I believe, exactly this same length of time.
On unpublished writings, which we discuss on pages 7 to 12: this is the most important single gain for scholarship in the revision bill. The provision setting a terminal date upon the copyright in unpublished writings will eliminate the great practical difficulties Olved in attempting, long after the death of a writer, to ascertain the persons from whom permission to publish should be sought.
I believe you heard the testimony of Mr. Boyd, on the problems of historians, and the problems he had in connection with the work on Thomas Jefferson. This is duplicated time and again by scholars using letters and materials that they find in archives. To attempt to establish and get the permission of the descendants, even to find out sometimes who they are, is just completely impractical for a scholar. And a conscientious scholar always tries, of course, to have his permissions and his rights well established. So this change will be an enormously beneficial one for scholars.
We would, however, like to change the bill to limit the period of copyright protection in unpublished writings to 25 years after death of the writer unless they are published within that period, in which case the normal period of 50 years after death would apply.
This change is proposed primarily because of the growing interest in scholarship on reasonably current historical and literary topics, and because where longer protection of privacy is desired, it can be achieved by agreement upon depositing manuscripts in a library.
The recent report of the papers of Mr. Adlai Stevenson being given to Princeton is an instance of the owners of the rights deciding what length of time papers may be kept from the public in the interest of privacy. Any reasonable regard for privacy, I think, can be maintained under a 25-year restriction.
Similarly, the ACLS recommends shortening the minimum period for protection of existing unpublished writings from the 23 years proposed in the bill to 10 years. The ACLS committee believes the shorter period would be adequate to protect existing interests in manuscript materials.
On the doctrine of fair use, which we discuss on pages 12 to 15, the new statutory recognition of the doctrine of fair use is approved, hut ACLS would give it more practical implementation (a) by setting forth general criteria of fair use to help scholars understand and apply the limits of the doctrine in their work; and (b) by allowing the courts discretion to withhold mandatory statutory damages in cases involving a bona fide fair use defense.
On the first point, I might say that we agree with Mr. Dubin that trying to set forth every kind and condition of the examples of the fair use is, we believe, hopeless, but we do think that a conscientious scholar trying to establish what fair use is would be helped if some general criteria were set up. In fact, we find that the criteria that were mentioned in an earlier version of the bill could very well be used and would be helpful to a man in deciding whether, indeed, he was within the law or not.
To state examples or to state minimum and maximum lengths of quotation we believe is impossible, but setting general criteria and then leaving it to the courts for statutory interpretation is, we think, the best solution.
On pages 15 to 19 we discuss photocopying by libraries. Since scholars are dependent on the collections of libraries for access to almost all their source materials, and ought to have available modern tools to facilitate research work, the ACLS considers the omission from the bill of any provision on photocopying by libraries to be a disservice to scholars.
The ACLS committee concludes that a principled compromise between the needs of scholarship in using copyrighted works on the one hand, and the legitimate interests of authors and publishers in protecting the market for them on the other, may be found by distinguishing two aspects of photocopying.
Thus, ACLS would not have the copyright law authorize photocopying of an entire copyrighted book without the consent of the copyright owner, but recommends that the statute authorize photocopying of extracts at the request of library patrons. The statement sets forth a proposed statutory provision containing appropriate safeguards on pages 18 and 19.
We didn't discuss the implications of electronic and computer information retrieval and storage systems on this problem, but I might say that it seemed to us that a system of controls, royalty charges, and so forth could easily be set up on such a centralized electronic computer system.
But in our statement we were talking largely, and almost exclusively, about the use of books and copyright materials in a library collection.
Our fourth major point is on the notice of copyright, and there we support the bill's retention of a requirement for notice of copyright on published copies, because of the important uses which the copyright notice serves in the research process of scholars and the selection and cataloging processes of libraries by giving an indication of the timeliness of the contents of a work.
5. On the manufacturing clause, pages 20 to 24: The scholarly community favors the removal of all unnecessary restrictions on the free flow of ideas; thus, to the extent that complete or partial manufacture abroad would enable more books to be published and made available at reasonable prices, the removal or easing of inhibitions in the copyright law on such manufacture is desirable.
ACLS would, therefore, favor total elimination of the manufacturing clause from the copyright law. If this goal cannot be achieved, ACLS supports the various changes easing the strictures of the manufacturing clause that are proposed in the revision bill.
In particular, ACLS endorses the increase from 1,500 to 3,500 in the number of copies permitted to be imported. This change will aid in the publication of scholarly works of a specialized nature, many of which have a small market in this country and a similarly small audience abroad.
The ACLS committee objects to the sentence in the bill which explicitly prohibits any step of foreign manufacture in the case of processes other than the conventional printing processes which have long been specified in the manufacturing clause. The statement urges that the "other processes” sentence is not warranted either by the history of the present manufacturing provisions or by the needs of domestic industry.
6. On Government publications, pages 24 and 25, the ACLS supports the bill in excluding from the definition of a "work of the United States Government"-a noncopyrightable category--writings prepared by universities, foundations, or individual scholars financed by Government research grants. The statement notes that the considerations upon which copyright is denied to writings of Government officers or employees are not generally applicable to works written by private persons or institutions, and that denial of copyright could, in effect, preclude publication of the product of research grants.
That is all I have to say, Mr. Chairman, but Mr. Richman and I would be very happy to answer any questions you may have.
(Mr. Burkhardt's full statement follows:)
STATEMENT OF THE AMERICAN COUNCIL OF LEARNED SOCIETIES
These comments on certain aspects of H.R. 4347, the bill providing for a general revision of the copyright law, are submitted on behalf of the American Council of Learned Societies (ACLS). ACLS is a nonprofit federation of 31 national scholarly organizations (listed in app. A) concerned with the humanities and the humanistic aspects of the social sciences. Thus ACLS represents a wide range of individuals and institutions engaged in scholarship in the humanities, whose concern with the copyright law relates principally to the availability, custody, and use of copyright materials for research, as well as the writing and publication of new scholarly works and the use of copyright materials in teaching.
The board of directors of ACLS authorized the appointment of a committee of experienced scholars to review the copyright revision bill, with the guidance of counsel, from the viewpoint of the broad interests of scholarship in the humanities. The committee, speaking for ACLS, comments in this statement on those aspects of the bill which in our judgment have the most direct impact on scholarship. Except where the interests of scholarship are affected, we take no position on aspects of the bill relating to commercial uses of copyright materials.
A. DURATION OF COPYRIGHT 1. Lengthening of the term
We have concluded that the basic provisions of the revision bill respecting the duration of copyright should be supported, despite serious doubts whether the substantial lengthening of the term of copyright in published materials which the bill will effect is desirable from the viewpoint of scholarship.
1 The ACLS Committee on Copyright Revision consists of:
Counsel to the committee is Martin F. Richman, Esq., of Root, Barrett, Cohen, Knapp & Smith, New York City.
52-380—66-pt. 3- 12
The change from the existing term of 28 years from first publication, renewable for an equal period, to a system in which the term of copyright continues for the life of the author and 50 years after his death is generally understood to have the effect of continuing copyright for about 75 years after publication, on the average, while the term for works of corporate or unidentified authorship is explicitly lengthened to 75 years after publication (sec. 302). Thus the term of copyright under the bill will in virtually all cases be substantially longer than under the existing law-in the average case a whole generation longer.
Although scholars are typically authors themselves, their basic interest is in the availability and use of copyright materials, which in turn means that the interests of scholarship are hindered by an undue lengthening of the copyright term and of the concomitant restrictions, red tape, and uncertainty which may divert the scholar from his basic work. We believe there is an important element of “intellectual eminent domain” in copyright, as in scholarship generally, whereby works of the intellect must, in return for the compensation of a period of exclusive exploitation and control, be made available to the public without restriction after a reasonable period of time.
Despite these cautionary comments, the ACLS committee has concluded that the basic change to a system based on the life of an identified natural author plus 50 years should be supported, for the following reasons :
(1) Related to this change is another, of major benefit to the interests of scholarship, namely the placing of a terminal date after the death of the writer upon the copyright in manuscripts and other unpublished materials (discussed in sec. 2, pp. 7–12 below). It appears to us a fair compromise among the various interests involved to give a substantial extension to the period of copyright in published materials of authors in exchange, as it were, for elimination of the theoretically perpetual duration of copyright in unpublished materials of the authors under the existing system of “common law copyright.”
(2) Scholars can work with a system based on the life of the author as easily as with one based on publication, and perhaps more easily. The individual scholar is apt to know the date of death of a historical or literary figure with whose writings he is dealing, whereas the separate dates of first publication of primary source materials may be elusive (despite the useful guidance of copyright notices in prior works published in the United States). Ascertaining the date of death of an earlier scholar in the field whose work is being used will not generally be difficult either.'
(3) In the abstract, it might seem that a term consisting of the life of the author and 25 years after his death (the minimum term under the Universal Copyright Convention) is sufficient to protect the dependant widow and children of an author from an economic point of view and to satisfy considerations of artistic control with respect to dissemination, adaptation, and other uses of a person's writings. However, the term of life plus 50 years is almost universally that used in other countries, including Great Britain, in which the works of American scholars and the works of others in which they would be interested are likely to have copyright protection. Once the "life plus” principle is adopted, there are many advantages in enhancing international uniformity as to the duration of the term after death in published works. Accordingly, the term of life plus 50 years for the published works of identified natural authors appears to be the most logical change to make.
The new provision with respect to works of corporate or unidentified authorship, such as those made for hire or anonymously published—namely, a term of
? As an author, the scholar (or his family) rarely will have any significant financial interest 50 years or more after a work is published, and even more rarely be interested in restricting the dissemination of his work at that point in time. Similarly, the financial inducement to publishers, a key purpose of copyright in encouraging dissemination of writings, rarely will include an expectation of sales revenue that long after publication with respect to scholarly works.
8 The presumption of sec. 302(e) as to an author's death having occurred more than 50 years before, if 75 years from publication has elapsed, will be helpful in this regard. However, we question the requirement of that subsection that a certified report must be secured from the Copyright Office in each case in order to be able to rely on the presumption. Any user of materials that old should be entitled to the presumption, provided he has no actual contrary information, if the persons interested in the copyright have let so long a period elapse without filing in the Copyright Office a simple statement under sec. 302(d) in establish the author's continued life or more recent death.