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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 Copyright in unpublished writings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eliminate the theoretically pierpetual duration after the writer's death of the so-called "common law copyright" in unpublished literary manuscripts, letters, personal papers, and other writings, by bringing all rights in the nature of copyright under the Federal statute and setting limits upon the duration of the copyright in unpublished works.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 piagued 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.
l'nless the concept of copyright of limited duration is made applicable to unpublished writings in general, as proposed in the bill, we would think it neces.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 prorision 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 happenings 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.
* 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.
6 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. The situation with letters is particularly troublesome, since the copyright passes through the family of the sender, whereas the 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.
6 The practical problems for scholars discussed above have little relationship to unpub. lished writings of corporate or anonymous authorship, and the discussion in this section is confined to writings of identified natural persons.
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.*
B. USE OF COPYRIGHTED MATERIALS 1. Fair use
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:
"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;
“(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 11 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 bad 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."
u Generally called "photocopying" for convenience, although Xerox and all other types of mechanical coplers are included.
to have available modern tools to facilitate their research work, subject to due regard for the rights of copyright owners.
It is generally recognized that the problem of photocopying has two distinct aspects, the copying of entire books on the one hand, and the copying of extracts on the other. We believe that a principled compromise between the needs of scholarship in using copyrighted works and the legitimate interests of authors and publishers in protecting the market for them is to be found by distinguishing these two aspects.
Thus, we have concluded that photocopying of an entire copyrighted book for a scholar should not be undertaken by a library without securing the consent of the copyright owner. Neither of the two common bases for resort to this practice is valid :
(1) Inaccessibility or expense of a copy of the work itself is a self-defeating justification for utilizing the easy and inexpensive methods of photocopying. In the long run, the cost of copyrighted works as published, as well as the degree of their accessibility in nearby libraries, will be funetions of the demand for the works; to the extent that substitutes for purchasing published copies are widely utilized, it can only be expected that scholarly works more generally will be published in smaller quantity and become still more inaccessible and expensive.
(2) With respect to out-of-print works, many publishers have licensed agencies for preparing complete photocopies upon request. While it may in some cases take more time to procure a copy from such an agency than from a nearby library, the protection of the economic interest of the author and publisher warrants the delay (which may be no greater than that involved in purchasing a book by mail). If there is no licensed agency, and unless a revised edition is in preparation, it would be rare for a publisher to refuse consent to photocopying by a library. There may be a few cases in which there is some substantive reason for the author or copyright owner to wish to withhold further reproduction of a work, and to permit libraries to circumvent this consideration would eliminate a significant right inherent in the
copyright. On the other hand, we strongly urge that libraries be authorized to furnish extracts to patrons for research use. As generally stated, this aspect of photocopying refers to the duplication, at the specific request of a library patron, of not more than a single contribution to a periodical issue or collective work, or of a "similarly small" or "relatively small” extract from a book. It is dubious that copying on this scale, however frequently repeated in response to different requests, can substantially affect the sales of periodicals or reference works." The proposals that have been made for central clearing and payment of royalties on account of photocopying by libraries seem to us too complicated and too burdensome for libraries to be justified in relation to the photocopying of extracts on the scale described in this paragraph.
In striking the balance between the needs of library users and the economic interests of copyright owners, it is appropriate that the privilege of photocopying extracts be limited to libraries of nonprofit organizations." Moreover, to minimize the element of economic gain to either the user of extracts or the library in photocopying instead of purchasing a copy of the work, the library should be required to charge for photocopying at cost. Some general warning of copy. right restrictions on further use of photocopies should be given by the library.
12 In this section, it should be noted, we are considering only the making of single copies at the request of a library patron, and not multiple reproductions for distribution to classes or otherwise, interlibrary or intralibrary uses of photocopying for "housekeeping" purposes, or the practices of libraries of business concerns, all of which involve other considerations.
13 It should be noted that we are dealing here with copying from conventional printed or manuscript materials in a library's collections, and not with the use of electronic informa. tion storage and retrieval systems. The latter, by permitting the recording of works in a "knowledge core" at a central point with direct, quick access from other locations by electronic means, could well reduce the sales to individual libraries of works such as periodicals and reference books, whose primary value is availability on call. The use of such electronic systems accordingly involves different considerations, and clause (3) of the suggested provision on photocopying is intended to exclude the operation of such systems from the scope of this provision (see below).
14 Compare the definition of libraries given special privileges under the import restrictions of the bill (secs. 601 (b) (4)(C) and 602(a)).
The proposed provision would be an additional section in chapter 1 of the bill, and might read as follows:
*Sec. -Limitations on exclusive rights: Copying by libraries
“(a) Notwithstanding the provisions of clauses (1) and (3) of section 106(a), a library of an organization operated for scholarly, educational, or religious purposes and not for private gain is entitled, without the authority of the copyright owner, upon the request of any person to duplicate by any process and furnish to such person a single copy or phonorecord of an extract from a copy or phonorecord of a copyrighted work in its collections other than a motion picture, but only under the following conditions :
“(1) The extract shall consist of no more than one separate contribution to any periodical issue or other collective work, or no more than a relatively small part of any other work ;
"(2) The library shall furnish such copy or phonorecord without profit to itself, but shall charge the person to whom it is furnished an amount approximately equal to the cost (including labor and overhead) of duplicating and furnishing it ;
“(3) The library shall furnish such copy or phonorecord on its premises or by delivery in the form of a material object and not by transmitting the work or the extract therefrom; and
“(4) The library shall by reasonable means inform its patrons that a person to whom such a copy or phonorecord is furnished is not exempt from liability to the copyright owner for any use of such copy or phonorecord constituting an infringement of copyright.”
C. MISCELLANEOUS PROBLEMS 1. Notice of copyright
The retention in the revision bill of a requirement of notice of copyright on published copies (sec. 401 et seq.) is of great importance to individual scholars as well as libraries. In addition to the two major copyright purposes served by the notice--giving an indication of whether copyright does subsist in the work, and of the identity of the proper source for permissions to use the work-the notice of copyright, in stating the year of first publication of the work, also serves substantively in the research process of scholars, and in the selection and cataloging processes of libraries, to indicate the timeliness or vintage of the contents of the work. Of course, the information for any of these purposes given in a copyright notice may not be precise, but it does afford a useful starting point for further inquiry, and in many cases will be sufficient to make correspondence with the publisher or author unnecessary. In light of the amelioration which these sections of the bill make in the technicalities concerning notice and in the consequences of inadvertent failure to observe them, the great usefulness of the copyright notice far outweighs any inconvenience of the requirement to publishers. 2. Manufacturing clause
The many arguments against continuation of the requirement that English language books by American authors must be manufactured in the United States, and the justifications asserted for the requirement on behalf of the printing industry, need not be rehearsed here, as they have been fully stated by others. From the viewpoint of scholarship, the arguments for abolition of the “manufacturing clause" make the better case.
As a general proposition, the scholarly community favors the removal of all unnecessary restrictions on the free flow of ideas. To the extent that complete or partial manufacture abroad would enable more books of any character--to be made available to the American public at reasonable prices, or to be published at all, the removal or easing of inhibitions on such manufacture in the copyright
16 The references in the suggested provision to the types of works which may be duplicated and to the types of duplicates permitted are based in part upon sec. 7 of the preliminary draft prepared by the Copyright Office for discussions held in 1963-64 (copyright law revision, pt. 3, p. 6). As the preceding text indicates, our primary concern is with photocopies in visually readable forms (including microfilm) of extracts from written works, including unpublished manuscript materials. The provision suggested would not affect restrictions imposed on unpublished manuscripts by agreement with the party depositing them in the library (see above).
iç Because of assignments of copyright, inclusion of material from prior versions in a particular edition of a work, and other variations as to name or date permitted in a copyright notice.