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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.

1. Lengthening of the term

A. DURATION OF COPYRIGHT

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:

Walter Muir Whitehill, chairman, director, Boston Athenaeum.

Whitfield J. Bell, Jr., associate librarian, American Philosophical Society.

John H. Fisher, executive secretary, Modern Language Association.

Richard Hofstadter, professor of history, Columbia University.

Sidney Hook, professor of philosophy, New York University.

Gordon N. Ray, president, John Simon Guggenheim Memorial Foundation.

Frederick Burkhardt, president of ACLS, ex officio.

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

2 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.

3 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.

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75 years from publication or 100 years from creation, whichever expires firstdoes not involve the same considerations. Indeed, it detracts from international uniformity, in that the laws of Great Britain and of other major countries provide a term of 50 years from publication for this type of work. However, since the present duration for works of this type can be 56 years, the qualified extension to 75 years in this provision (and in the transitional provisions of sec. 304 relating to all copyrights subsisting at the effective date of the new law) seems reasonably justified by the greater uniformity in the domestic copyright law to be achieved in relation to the basic term of life plus 50 years for new works of identified natural authors.

2. Copyright in unpublished writings

The most important single gain to scholarship in the entire revision bill is found in the provisions (sec. 301 et seq.) which will eliminate the theoretically perpetual duration after the writer's death of the so-called "common law copyright" in unpublished literary manuscripts, letters, personal papers, and other writings, by bringing all rights in the nature of copyright under the Federal statute and setting limits upon the duration of the copyright in unpublished works.

Scholars in all fields will support this change of concept. It carries out the eonstitutional principle that copyrights confer exclusive rights for limited times. It is consistent with the law of torts with respect to the right of privacy, which cannot normally be asserted after the death of the person in question. And, most important, it will eliminate the great practical difficulties which have plagued scholars involved in attempting, long after the death of a person whose writings are being studied, to ascertain the number, identities, and locations of the appropriate persons from whom to seek permissions to publish.

Unless the concept of copyright of limited duration is made applicable to unpublished writings in general, as proposed in the bill, we would think it neces sary to deal in the revised copyright law with the problem of making available for publication the primary source materials of historical, biographical, and literary scholarship by a special provision releasing the copyright upon archival collections of such materials a fixed number of years after the death of the writer or after they were deposited in a library or archives, or some combination of such periods. An extremely complex provision of this type exists in the British Copyright Act of 1956 (under which copyright in unpublished writings otherwise continues to be perpetual), and the Register's report of 1961 on U.S. copyright law revision recommended a simpler version of this idea. However, any such provision would introduce new complexities in place of the old, and the approach of the present revision bill in setting a date following the writer's death for the termination of copyright in all his unpublished writings seems much preferable as a rule with which scholars can work.

The bill sets the same duration for copyright in unpublished writings as in published works-50 years after the author's death. Here we believe the considerations which prompted our reluctant support of the 50-year period in the case of published works do not apply. There is no uniformity among other countries as to the period for copyright protection of works unpublished at death. Nor is there a realistic element of economic benefit to writers' families in long-delayed posthumous publication (and our alternative proposal would enhance this pecuniary element for the immediate family, to the extent it exists, as well as the interest of the posthumous publisher, by encouraging early publication after death).

On the positive side, it is evident that there has developed in this generation, perhaps in part because of the fantastic speed with which news of current hap

In the case of works for which renewal registration is filed; though relatively few in number, it is those works for which renewal is worthwhile that ought to be considered in setting the outer limit of copyright protection.

Since literary property or "common law copyright" in unpublished writings has in the past rarely been dealt with in wills, such interests have frequently passed by the laws of intestate distribution, within a generation or two, to an ever-spreading group of remote descendants or collateral relatives of the writer. troublesome, since the copyright passes through the family of the sender, whereas the The situation with letters is particularly possession of the manuscript letters typically passes through the family or other donees of the recipient. Hence the writer's descendants typically have no expectation of financial gain or control of publication, and often may be completely unaware of the existence of unpublished correspondence or other writings of their ancestor.

The practical problems for scholars discussed above have little relationship to unpublished writings of corporate or anonymous authorship, and the discussion in this section is confined to writings of identified natural persons.

penings is disseminated by the communications media, an ever-increasing interest in scholarship on subjects of relatively more contemporaneous vintage, in almost all fields of historical, biographical, and literary work. Persons who figure in public or literary affairs are also growing ever more conscious of their roles, so that acceptable periods for the gestation of private writings into historical or critical source materials are continually being shortened, in some cases down to publication virtually contemporaneous with the events being described or the literary works being analyzed. Accordingly, we believe a revision of the copyright law to be enacted at this time should encourage, and not impede, the dissemination of knowledge about relatively recent affairs based on available primary source materials.

The Universal Copyright Convention permits a minimum term of 25 years after death, and we recommend that this be the term for writings not published prior to the author's death; however, to encourage early publication of the papers of persons of recent historical or literary interest (as well as to cover posthumous publications of works intended by their authors for publication prior to death), we suggest that in the event of publication authorized by the copyright owner during the 25-year period following death, the copyright be extended automatically to the term of 50 years after death which applies in cases of publication during the writer's lifetime. A similar extension is provided for in the transitional provision of the bill respecting existing unpublished works (sec. 303), which is discussed below. The suggested dual term would be preferable, it appears to us, to a fixed additional period measured from posthumous publication (as in the British and other foreign laws), not only because our recommended term serves to encourage early publication, but because subsequent users of the publication will be able to rely on the copyright term being the same as that of the writer's other works.

In cases where writers, or families and others in possession of private papers after death, consider the 25-year term of copyright too short for the protection of their privacy or confidences about persons named in the papers, they can, as now, by agreement with a library or archives or authorized editor arrange for specific restrictions on the use of deposited writings. It is unnecessary for the protection of individuals in these special situations, whose needs will vary from case to case, to delay availability of the generality of unpublished papers for posthumous use more than 25 years-a whole generation-after death of the writer.

With respect to the transitional provision, mentioned above, which extends the copyright in existing unpublished works to 1990 even if the period of 50 years after the death of the author expires before that date (sec. 303), we suggest, for the reasons noted above, that this minimum period of continued effect for "common law copyright" will too long delay the benefits to scholarship of the change in law to a limited duration for copyright in unpublished papers.

Since the transitional provision presupposes that the author at the time in question has been dead for at least 50 years (or 25 years, if our recommended change is adopted), it seems adequate for the protection of existing expectancies that the minimum period end 10 years after the effective date of the new copyright law. The provision for an extension of an additional 25 years in the event of publication during the minimum period is a good one, as an encouragement (similar to our proposal above) to early publication on the part of the owners of copyrights in existing unpublished papers.

1. Fair use

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B. USE OF COPYRIGHTED MATERIALS

We endorse the addition to the statute of a statement, based on the judicial precedents, that "the fair use of a copyrighted work is not an infringement of

The bill terminates the minimum period on Dec. 31, 1990, which is 23 years after the expressed effective date of Jan. 1, 1967. If it is thought that ending the minimum period with a decade will be convenient to persons concerned with this provision, we would suggest Dec. 31, 1980, which is 13 years after the intended effective date.

Any of the suggested minimum periods is long enough to satisfy any constitutional question of due process arising out of the cutting off of existing property interests in common law copyrights." particularly in light of the explicit constitutional mandate that the duration of copyrights under Federal law be "for limited times."

8 Whether or not our suggestion to shorten the minimum period is adopted, the extension in case of publication should be explicitly limited to a publication made with the authority of the copyright owner, which the bill's sec. 303 does not clearly do. Only an authorized publication is entitled to copyright under the general provisions of the bill or under existing law (see sec. 103; 17 U.S.C. 7).

copyright" (sec. 107 of the bill). However, this bare reference to the concept of "fair use" would be considerably more useful to conscientious scholars if the provision went on to give some idea of the criteria for determining what a fair use is. While an all-inclusive or precise statutory definition of such a term is neither practicable nor desirable, we suggest the addition to section 107 of general criteria such as the following: "

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"In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:

"(1) the purpose and character of the use;

"(2) the nature of the copyrighted work;

“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

"(4) the effect of the use upon the potential market for or value of the copyrighted work."

Since the statutory reference to fair use, with or without the general criteria, must necessarily leave somewhat vague the availability of this defense in a specific case, it seems unduly harsh to require a scholar or educational institution to proceed at the peril of a claim for statutory damages (in cases where no actual damages to the copyright owner or profits to the scholar or institution exist, but the defense of fair use is not upheld). Yet the bill's only amelioration of the applicability of statutory damages is to reduce the minimum damages which must be assessed from $250 to $100 in cases of "innocent infringement,' the definition of which does not appear to reach a case involving the defense of fair use.10

We recognize the functions served by minimum statutory damages in various commercial contexts, and realize that copyright suits against scholars or educational institutions as users of copyrighted materials have been rare. Nevertheless, it would seem appropriate to give a practical effect to the new statutory recognition of fair use in proposed section 107 by qualifying the provision for statutory damages. We suggest adding to section 504 (c) (2) a further sentence like this:

"In a case where the infringer sustains the burden of proving that he believed, and had reasonable grounds for believing, that his acts constituted a fair use under section 107, the court in its discretion may withhold an award of statutory damages or may reduce the amount thereof to less than $100."

This proposal is not limited in terms to scholars and educational institutions because of the complexities of definition that would be introduced (particularly in determining who is a "scholar”). If the rigorous requirements of this sentence are met in any infringement case, the proposal appears to have general merit.

2. Photocopying by libraries

Scholars are of course dependent on the collections of libraries for access to all but a small fraction of the primary and secondary source materials they use in research. Accordingly, the copying of extracts from copyrighted works by hand is typically cited as an example of fair use. Modern methods of machine reproduction" of pages in bound volumes have become so quick, so inexpensive, and so prevalent in use by libraries on behalf of their patrons as to raise copyright questions of a different degree, if not of a different character, from those in which the fair use concept can be of practicable guidance. These questions are admittedly difficult and controversial, but the omission of any attempt to deal with them in the revision bill is a disservice to contemporary scholars, who ought

From sec. 6 of the earlier version of the copyright revision bill introduced for study in 1964 (H.R. 11947, 88th Cong., 2d sess.). The general statement of the fair use concept in that version, preceding the sentence set forth above, was that "the fair use of a copyrighted work to the extent reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright." This formulation may be criticized as offering an open invitation to copying by anyone with a "legitimate purpose," rather than serving a delimit the scope of fair use. The sentence which followed and which we suggest be added to sec. 107, on the other hand, is a succinct statement of the criteria of the cases, and would help a conscientious scholar to some extent in assessing a practical situation. 10 The second sentence of sec. 504 (c) (2) states:

"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 infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $100."

Generally called "photocopying" for convenience, although Xerox and all other types of mechanical copiers are included.

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