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law is desirable. Thus, the ACLS committee would favor total elimination of the manufacturing clause from the copyright law. If this goal cannot be achieved, we endorse the various changes easing the strictures of the manufacturing clause made in section 601 of the revision bill.

One ameliorative aspect merits specific comment, for it may be of most direct aid to the publication of scholarly works in particular. That is the increase from 1,500 to 3,500 in the number of copies permitted to be imported (with elimination of the ad interim copyright procedure which presently limits the worth of even the 1,500-copy limit). Works of a specialized nature, be they doctoral dissertations on abstruse historical or literary points, or collections of experimental poetry or the like, have a small market at best. In the many cases where the additional 2,000 copies permitted under the bill will make publication abroad economically feasible (by combining access to a small American market with what may be a similarly small audience in other countries), this change repre sents a great advance for scholarship, and at no demonstrable harm to the domestic printing industry.

It may be that a higher cutoff figure would be more practicable in terms of normal editions for scholarly works, taking into account not only present practices but the expansion of the scholarly community in the years ahead which will be governed by the new law. In that event we would support modification of the import limit to include such a figure. However, we have concluded that it would not be appropriate to open up the import restrictions for university press books alone, since many works of scholarship, despite their small runs, are issued by trade publishers, whose efforts in this direction should not be discouraged.

We vigorously object to one backward step in the revision of the manufacturing clause set out in the bill. Section 601(c) defines the required manufacture in the United States in the language of the present statute with respect to books produced by typeset processes and by lithographic or photoengraving processes. There follows a final sentence which requires, with respect to “any process other than those specified" in the subsection (and in the present law), that "every step" in the manufacture take place in the United States.

It has been suggested that this final sentence will bar the use of "reproduction proofs" and other means of utilizing foreign typesetting for the manufacture in the United States of books by photo-offset lithography. We do not believe the sentence should have this effect, inasmuch as the preceding language of the subsection with respect to lithographic processes is the same as in the present law, under which the Copyright Office has acted on the basis that the manufacturing clause is satisfied if the plates are made, and the printing and binding are done, in this country. The Register's Supplementary Report (pp. 146–147) confirms that the use of the existing statutory language in the preceding sentence is intended to leave unaffected the question of applicability of the manufacturing clause in these circumstances, and that the final sentence does not apply to such cases.

However, more broadly viewed, the final sentence is unwarranted for creating an explicit prohibition of any step of foreign manufacture out of the "extremely obscure provision” referring to other processes in the present manufacturing clause.17 The sentence is particularly objectionable for extending the anachronistic requirements of the manufacturing clause to new reproductive processes currently being developed or that may be developed in the future. We have seen no evidence that there has been any reliance on a domestic manufacturing requirement in the nurturing of a U.S. industry in processes other than the conventional typeset or lithographic and photoengraving processes, and of course there can have been no such reliance with respect to new processes that may be developed in the future. Accordingly, the arguments for retention of the manufacturing clause with respect to the conventional printing processes are completely inapplicable here, and we strongly urge deletion of this final sentence of section 601 (C) from the bill. 3. Government publications

17 The reference in the present law-described in the Register's Supplementary Report (p. 147) as an "extremely obscure provision"--was added to the first proviso of 17 U.S.C. sec. 16, which sets forth several exceptions to the manufacturing requirements, by an amendment of 1926.

The purpose of the amendment was to establish that the specification of manufacturing requirements with respect to works manufactured by the named conventional printing processes did not preclude the securing of copyright on works manufactured in the United States by other processes, rather than to impose a requirement of complete domestic manufacture in the case of works manufactured by such other processes. The Copyright Office has acted on the basis that works manufactured abroad by other processes were not barred from U.S. copyright registration by the present manufacturing clause. See the Copyright Office Revision Study on the manufacturing clause, published in 2 Studies on Copyright 1123, 1139-1140, 1154 (Arthur Fisher Memorial edition, 1963).

It is also significant that secs. 17 and 107 of the present law, which implement the manufacturing requirements created by sec. 16, pick up the definitional phrases of sec. 16 relating to the conventional printing processes but contain no wording explicitly pertaining to that of the proviso of sec. 16 referring to other processes.

In defining works of the U.S. Government, so as to provide that such works are not copyrightable, the revision bill properly excludes from the definition works prepared by universities, other private institutions or individual scholars financed by research grants from the Government (sec. 105). The considerations supporting unfettered dissemination of writings by Government officers or employees prepared within the scope of their official duties, reflected in the policy decision that such writings should not be copyrightable by the Government (or the individuals involved), are not generally applicable to works written by private persons or institutions. These works, produced under various types of Government grants in large numbers, do not necessarily deal with subjects of specific governmental concern, but advance knowledge generally. The extent of the stimulus to their having been written, as well as the extent of the economic support, afforded by the Government grant varies greatly from case to case.

The investment necessary for publication under private auspices may be impossible to secure without copyright protection, so that denial of copyright may have the effect of narrowing rather than broadening the dissemination of the product of the research grant. In appropriate cases, moreover, the Gov. ernment by agreement with the grant recipient may take an assignment of the copyright or of certain pecuniary or other rights under it (sec. 105 (a)). Respectfully submitted.

Chairman, Committee on Copyright Revision.


The American Council of Learned Societies is a private nonprofit federation of national scholarly organizations concerned with the humanities and the humanistic aspects of the social sciences. It was organized in 1919 and incorporated in the District of Columbia in 1924. The ACLS represents the United States in the International Union of Academies.

The constituent societies of the ACLS are:
American Philosophical Society, 1743
American Academy of Arts & Sciences, 1780
American Antiquarian Society, 1812
American Oriental Society, 1842
American Numismatic Society, 1858
American Philological Association, 1869
Archaeological Institute of America, 1879
Society of Biblical Literature, 1880
Modern Language Association of America, 1883
American Historical Association, 1884
American Economic Association, 1885
American Folklore Society, 1888
American Dialect Society, 1889
Association of American Law Schools, 1900
American Philosophical Association, 1901
American Anthropological Association, 1902
American Political Science Association, 1903
Bibliographical Society of America, 1904
Association of American Geographers, 1904
American Sociological Association, 1905
College Art Association of America, 1912
History of Science Society, 1924
Linguistic Society of America, 1924

Mediaeval Academy of America, 1925
American Musicological Society, 1940
Society of Architectural Historians, 1940
Association for Asian Studies, 1941
American Society for Aesthetics, 1942
Metaphysical Society of America, 1950
American Studies Association, 1950
Renaissance Society of America, 1954

Mr. Sr. Onge. Thank you for summarizing your statement so adequately, Mr. Burkhardt.

As I understood your remarks, you said it might be fairly easy to set up a system of fees and royalties in connection with the use of computer retrieval systems. Would you be prepared to submit to the committee such a system, at least in broad outline, broad form, or is that beyond your talents ?

Mr. BURKHARDT. I am afraid it is quite beyond my capacity to do, sir, but as a general observation, I would say that since the electronic computer program can handle so many different items, the item of how many times a periodical has been used, what sections have been used, and so forth, can be recorded each time the use is made. It becomes an easier problem to prepare a recording of uses with the electronic equipment than it would be for a library or a librarian to have to carry a complete record of every time this collection or this magazine or this paper is used, and what has been used from it.

That would be an impossible burden, but not with an electronic system. However, I must say that this is a perfectly amateur opinion. It just seems mechanically and technically more possible there.

Mr. St. ONGE. Thank you, sir.
Mr. Poff?

Mr. Porr. In your summary, at page 2, paragraph 2, your last clause numbered (b), I assume you mean that a judge should have the power to exempt a scholar from statutory damages, if he—the judge-were convinced that the scholar was acting in good faith?

Mr. BURKHARDT. That is right; an innocent infringement, I think it might be called, or even a technical infringement which actually caused no damage to the owner—didn't affect the market in any way, but, nevertheless, was an infringement in the judgment of the court.

In that case, it would seem to us unfair to automatically make the man pay $100, which the proposed legislation does.

Mr. POFF. I don't want to quarrel with your language, but bona fide fair use, to many, is a meaningless phrase. If it was fair use in fact, it would not be subject to statutory interpretation.

Mr. BURKHARDT. Yes. "Good faith” is the proper term.

Mr. Porf. You made reference to an earlier form of the fair use statute and I assume you had reference to section 6 of H.R. 11947. Is that correct?

Mr. BURKHARDT. That is set out on page 14 of our report. It indicates that from section 6 of the earlier version of the copyright revision bill, we have suggested the retention of this set of criteria.

Mr. POFF. That is all, Mr. Chairman.
Mr. St. ONGE. Mr. Tenzer?

Mr. TENZER. I have just a few questions, Mr. Burkhardt. Since I haven't had a chance to read your full statement, I don't know whether the answer to my question is contained in it.

Could you more clearly define who is eligible for membership in these scholarly organizations, or the so-called "scholarly community" to which you refer?

Mr. BURKHARDT. Yes, sir. It it not mentioned in the report, but I will be very glad to give you a general description.

The eligibility varies with the societies. Two of them are honorary societies to which people are elected, and their membership is limited to people elected by the members. That is the American Philosophical Society and the American Academy of Arts & Sciences.

Others are more conventional professional associations in which you have to have a Ph. D., be teaching, be a practicing member of the discipline, but almost all of them also permit membership by persons interested in the field.

The overwhelming majority of our members, however, are members of faculties at universities in the humanities and social sciences, and are teachers and professors.

Mr. TENZER. Teachers and instructors of education and engaged in the field ?

Mr. BURKHARDT. Yes, the large majority.

Mr. TENZER. Again, I don't know whether your full statement contains anything specific on it, but we have had considerable testimony before this committee in support of the free use of copyrighted material for educational purposes. If your statement contains any reference to that, I would like you to point it out; otherwise, I would like to have your comments on that suggestion or proposal.

Dr. BURKHARDT. By implication, I think some of the requests that have been made in the past seem to us to be altogether too wholesale a demand for free use. We do think that the authors, the people who have worked on and created works of art and scholarship, have rights that ought to be protected, and we think a reasonable compromise can be worked out to satisfy both the educational needs and the claims of the producer and creator.

We think the fair-use doctrine and the other points discussed in our statement adequately cover the possibilities we need.

Mr. TENZER. Thank you, Mr. Burkhardt.
No further questions, Mr. Chairman.
Mr. Sr. ONGE. Mr. Hutchinson?
Mr. HUTCHINSON. No questions, Mr. Chairman.

Mr. St. ONGE. Thank you very much, sir, for an excellent presentation of the viewpoint of the people you represent.

Mr. BURKHARDT. Thank you.

Mr. St. ONGE. The next witness will be Dr. Fred S. Siebert, representing the American Council on Education.


Mr. SIEBERT. Mr. Chairman and members of the subcommittee, I am Fred S. Siebert, professor and dean of the College of Communication Arts at Michigan State University, East Lansing.

I have been serving as copyright consultant to the American Council on Education, on whose behalf I appear before you. The membership of the American Council on Education consists of 1,113 colleges and universities, and 230 organizations in the field of higher education.

You and the other members of the subcommittee are already familiar with the history and rationale of copyright legislation and with the extended efforts of the Copyright Office to produce a billH.R. 4347—which would be acceptable to a wide variety of conflicting interests.

Education, and in particular higher education, has a deep and vital interest in copyright legislation. It is both a producer and a consumer of copyrighted materials. It is, therefore, interested in the utmost protection for the creators and proprietors of educational materials so as to stimulate the continued flow of such materials, and at the same time it is concerned that the educational process, including both teaching and various kinds of scholarly and scientific research, be able to utilize copyrighted materials with a minimum of time, effort, and expense. The widespread use of current materials for teaching and research purposes, and the ease of duplication through inexpensive and instantaneous duplication processes have raised problems for both the proprietors and the consumers of copyrighted materials.

The history of copyright legislation will show that beginning with the first copyright statute enacted by the British Parliament in 1710, each successive act both in England and in America has enlarged the rights of the copyright proprietor. This present bill is no exception. Not only have the rights of proprietors of the traditional categories such as books, music, et cetera, been enlarged, but new categories have been added such as phonorecords, pantomimes, and choreographic works. Two additional candidates for copyright protection have not been included in H.R. 4347—performers' rights and rights in the products of digital computers-probably with good reason.

Our civilization in the past has been based on what can be called the free flow of information. Fortunately, information cannot be copyrighted so that no one individual or organization can have a monopoly of a piece of it. Sometimes it is difficult to distinguish between information and its format as, for example, with a map.

On the other hand, it is just and proper that the creator or innovator be able to receive some form of monetary return for his intellectual products. The problem is to strike a proper balance between the producer and the consumer of intellectual works.

The American Council on Education is not opposed to the principle of royalty payments to copyright proprietors. Education probably contributes more royalties to copyright proprietors of literary works than any other identifiable group. However, the council believes that certain limited uses of copyrighted materials in teaching and research are proper without the inconvenience of clearance for these limited

Unfortunately, in its present form, H.R. 4347 has expanded the rights of the copyright proprietor beyond his rights in the present copyright law so as to limit educational uses. In other words, the existing law is, in a number of aspects, more favorable to education than the proposed law.


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