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COPYRIGHT LAW REVISION

WEDNESDAY, AUGUST 18, 1965

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE No. 3 OF THE
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met at 10 a.m., pursuant to recess, in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding.

Present: Representatives Kastenmeier, St. Onge, Edwards, Poff, and Hutchinson.

Also present: Herbert Fuchs, counsel; and Allan Cors, associate counsel.

Mr. KASTENMEIER. The subcommittee will come to order. This is the 18th day of hearings on the revision of the copyright law. The Chair regrets that of the four witnesses originally scheduled, witnesses Nos. 3 and 4 will not appear this morning. That is, the Graphic Arts Industries Association and the Canadian Copyright Institute and their representatives will not appear. However, their submissions will appear at the close of today's testimony.

For our first witness this morning the chair calls Mr. John Schulman.

Mr. SCHULMAN. Mr. Chairman, may I take the liberty of introducing Mr. James Toomey, chairman of the Patent, Trademark, and Copyright Section of the American Bar Association, who will speak on behalf of the American Bar Association, and Mr. Sidney Diamond, who is the incoming chairman of the copyright division of that section?

Mr. KASTENMEIER. Welcome to the committee, gentlemen. We look forward to hearing from you both.

Mr. Toomey, will you proceed then?

STATEMENT OF JAMES E. TOOMEY, CHAIRMAN OF THE AMERICAN

BAR ASSOCIATION SECTION ON PATENT, TRADEMARK, AND COPYRIGHT LAW

Mr. TOOEY. Mr. Chairman, I would like to present the resolution which was adopted by the American Bar Association at its annual meeting last week in Miami. This was the result of a study of a committee that was chaired by Mr. Schulman and which resolution was adopted by our section and presented to and passed by the House of Delegates of ABA last Thursday, August 12, 1965.

I will read the resolution:

Resowed, That the American Bar Association approves the following principles as the basis for the revision of the United States Copyright Act, title 17, United States Code :

(1) A single Federal system of copyright;

(2) A basic term consisting of the life of the author plus 50 years after his death, with an extension of subsisting copyrights, and for works made for hire, the term should be 75 years from publication ;

(3) The modification of the existing statutory license for the making and distribution of phonorecords of musical works to provide greater advantages to the copyright proprietor and provide a broader recovery against infringers;

(4) A form of reversion after 35 years but permitting the continued use of derivative works made during the 35-year period ;

(5) Protection of sound recordings against unauthorized duplication ;
(6) Recognition of the doctrine of fair use;
(7) Elimination of the jukebox exemption;

(8) A relaxation of formalities as to notice consistent with reasonable notice and equitable treatment in the case of failure to comply ;

(9) Recognition of divisible interests in copyright and of separate ownership thereof;

(10) Provision for judicial review of a determination by the Copyright Office;

(11) Protection of foreign works, both published and unpublished, only on the basis of treaty or proclamation; and be it further

Resolved, That the American Bar Association opposes the following:
(1) United States Government ownership of copyright;
(2) Limitation of copyright by way of a manufacturing clause; and

(3) Recognition of a certificate of registration as constituting prima facie evidence of the validity of the copyright.

This resolution was arrived at after a study of 10 years in our section of ABA and a particularly intensive study during the last 3 years.

The first 10 items enumerated as approved are embodied in the bill.

Mr. KASTENMEIER. May I interrupt to inquire, was item No. 10, the provision for judicial review, in the bill?

Mr. TOOMEY. I understand it is.

Mr. SCHULMAN. There is a provision in there whereby, if the Register rejects a copyright, the copyright owner may still sue and have the question of the copyrightability of his work adjudicated in that proceeding

Mr. TOOMEY. Only item 11 of those approved is a variation of the bill and that is section 104.

Now the matters disapproved which are a departure from the bill, the first item of the principles opposed would vary section 105 of the bill. The second item disapproved would eliminate section 601 of the bill and the third item disapproved would vary section 409 (c) of the bill.

I will yield to Mr. Schulman to review this matter further with you.

(The prepared statement of Mr. Toomey follows:)

STATEMENT OF JAMES E. TOOMEY, CHAIRMAN OF THE AMERICAN BAR ASSOCIATION

SECTION ON PATENT, TRADEMARK, AND COPYRIGHT LAW Mr. Chairman and members of the subcommittee, I am James E. Toomey of 300 Lakeside Drive, Oakland, Calif. I am chairman of the Patent, Trademark, and Copyright Section of the American Bar Association. I am also patent counsel of Kaiser Aluminum & Chemical Corp. of Oakland, Calif.

I appear today solely on behalf of the American Bar Association, an organi

zation of more than 120,000 lawyers throughout this country and appear for the purpose of advising the subcommittee of the ABA position on revision of the copyright laws.

I am accompanied by Mr. Sidney Diamond, of New York City, chairman of the Copyright Division of the Patent, Trademark, and Copyright Section of ABA, and Mr. John Schulman, also of New York, one of the elder statesmen of the copyright bar, who has chaired the committee which has studied the revision of the copyright laws on behalf of the ABA. I may say that this section itself has a membership of approximately 3,000 which includes substantially all of the active members of the copyright bar.

The following resolution which was adopted as a result of the report of Mr. Schulman's committee and presented to the House of Delegates of ABA last Thursday afternoon at the annual meeting of the association in Miami sets forth the position of ABA :

Resolved, That the American Bar Association approves the following principles as the basis for the revision of the United States Copyright Act, title 17, U.S. Code:

“(1) A single Federal system of copyright;

(2) A basic term consisting of the life of the author plus 50 years after his death, with an extension of subsisting copyrights, and for works made for hire, the term should be 75 years from publication;

(3) The modification of the existing statutory license for the making and distribution of phonorecords of musical works to provide greater advantages to the copyright proprietor and provide a broader recovery against infringers ;

“(4) A form of reversion after 35 years, but permitting the continued use of derivative works made during the 35-year period ;

(5) Protection of sound recordings against unauthorized duplication ;
(6) Recognition of the doctrine of fair use;
"(7) Elimination of the jukebox exemption;

(8) A relaxation of formalities as to notice consistent with reasonable notice and equitable treatment in the case of failure to comply ;

(9) Recognition of divisible interests in copyright and of separate ownership thereof;

(10) Provision for judicial review of a determination by the Copyright Office;

"(11) Protection of foreign works, both published and unpublished, only on the basis of treaty or proclamation ; and be it further

Resowed, That the American Bar Association opposes the following:
“(1) United States Government ownership copyright;
“(2) Limitation of copyright by way of a manufacturing clause; and

"(3) Recognition of a certificate of registration as constituting prima facie evidence of the validity of the copyright.”

The foregoing resolution was arrived at as a consequence of extensive study by the Patent, Trademark, and Copyright Section of ABA over the past 10 years, and particularly intensive study in the past 3 years. Symposia were presented in conjunction with and as part of the section meetings in 1962, 1963, and 1964 and on two occasions this year, including the Miami meeting last week, in which the principal provisions of the proposed legislation were considered.

The first 10 items enumerated as approved in principle by the ABA are embodied in the bill before you. Item 11 is a variation on section 104 of the bill. Further, the matters disapproved in the ABA resolution are departures from the bill. The first item of the principles opposed would vary section 105 of the bill, the second item disapproved would eliminate section 601 of the bill, and the third item disapproved would vary section 409 (c) of the bill.

Mr. Schulman is well known to all of us as one of the leaders of the copyright bar. He has lived with this problem for many years and he has been immediately concerned with and to a large part responsible for the work of the American Bar Association which has resulted in the resolution which I have just presented to you. Mr. Schulman appeared before the House of Delegates of the American Bar Association last Thursday afternoon to assist our section delegate, James P. Hume, of Chicago, in the presentation of this matter to the House of Delegates. I therefore yield to Mr. Schulman to review this matter with you.

Mr. KASTENMEIER. Mr. Schulman.

STATEMENT OF JOHN SCHULMAN

Mr. SCHULMAN. Thank you, sir.

I have submitted a statement which I will ask be accepted without being read, since it is quite long. It consists first of all of a statement of a general nature. After page 6 there is an appendix headed by a statement of the contents of that appendix.

The appendix is divided into five parts. Part 1 discusses the nature of copyright; part 2, the origins and development of the copyright in the United States. Three, the existing copyright system and the need for its modernization and revision: part 4, the question of a single system and the term of copyright; and part 5, exclusive rights, exemptions, and fair use.

I have attempted to document these items with references to the cases, to the actual sources of the history and development of the copyright law, and will submit it for your consideration rather than trying to read it to you.

Mr. KASTENMEIER. The committee is very appreciative of having this. Without objection your entire statement and appendix will be made a part of the record.

(The prepared statement referred to follows:)

STATEMENT OF JOHN SCHULMAN

My name is John Schulman. I am an attorney engaged in the practice of law at 19 West 44th Street, New York City. I have, for more than 30 years, specialized to a great extent in the law dealing with copyright and literary property, and the problems encountered by authors, publishers, and users of literary, scientific, and artistic works.

Among other activities, I was for many years counsel to the American Guild of Authors and Composers, formerly known as the Songwriters Protective Association. I participated as one of the counsel to the Dramatists Guild of the Authors League of America in the preparation of the standard form of agreement for the production of plays upon the living stage, and in the negotiation of a collective bargaining agreement between the Writers Guild and the television companies. I have been and am counsel to individual writers, publishers, and other persons as well as industrial companies dealing with copyrighted material.

My activities have also included writing on the law of copyright, and lecturing before professional groups in the United States and other countries on matters relating to copyright. I have over a period of 30 years appeared before various congressional and senatorial committees to give testimony on copyright legislation.

It was my privilege to serve the Government of the United States as a member of its delegation which attended the Diplomatic Conference in Brussels in 1948 at which the Berne Convention was last revised, and as a member of the delegation and consultant to the State Department at all of the meetings and dip lomatic conferences which led to the preparation of the Universal Copyright Convention, a treaty to which we adhered in 1954, and to which 50 nations of the world are now parties.

I have been an active participant in the work of the Patent. Trademark, and Copyright Section of the American Bar Association in its study of the copyright system and have been a member of its council and chairman of its copyright division. Among other organizations with which I have served are the American Patent Law Association of which I am a member of the board of managers, the New York Patent Law Association of which I am a member of the board of governors, and the Copyright Society of the United States of which I was at one time vice president and am now a trustee. As member of the Librarian's panel of specialists since its inception, and as chairman of Committee 301 of the Patent, Trademark, and Copyright Section of the American Bar Association, I have participated actively in the studies and the preparatory work which resulted in the development of H.R. 4347.

May I at this juncture both apologize for the foregoing immodest recitation of my credentials, and hasten to explain that I do not present this statement on behalf of any of the individual groups or organizations which have been mentioned. They have appeared or will appear by their own spokesmen. The resolution presented to you by Mr. Toomey represents the official view of the American Bar Association.

Although I have represented and am presently copyright consultant to authors, composers, publishers, and others, my appearance before you is not for the purpose of pressing claims of any special interest or serving any limited cause. I wear only one hat and before you serve only one master. My appearance is motivated by a desire to achieve the enactment of a new copyright law which will further the public interest. And if I appear to be oriented in the direction of authors and other creators, it is only because of my sincere conviction that the copyright system is an integral part of our system of free enterprise and should be dealt with in the light of our basic philosophy of the right of an individual to own and profit from private property and to enjoy the economic benefits flowing from his own labor and the exercise of his skill and talents.

And it is equally my conviction based upon years of study and practical experience that the keystone of a sound copyright system is a proper regard for the man who, as Burton Lane testified, starts with a blank piece of paper and by his efforts and genius produces the product which did not exist before and from which we all profit and from which our entire society benefits.

In preparation for my appearance before you, I have given long and serious consideration to the question of the way in which my testimony could provide the utmost assistance to this committee and to Congress.

We are engaged in a mutual effort to establish a regime for copyright which will in all probability endure for the next half century. Upon the resultant copyright law will rest the welfare of our authors, publishers, and other creative groups, and the cultural health and the economic well-being of our society.

With this objective, it seems to me that my proper role should be not to espouse the cause of any group which has appeared before you, or to support or rebut any proposal by any special interest. It is for the Congress to determine what particular solution should be adopted in those areas where opinions differ widely, or to effect a compromise between contending interests. But to make the proper choice and to reach a just result, this committee and the Congress should be fully informed about the nature of copyright, its origins, the concepts which led to the constitutional grant of power to Congress, as well as to the effect of the copyright system upon, and its relationship to, the society in which we live.

I have accordingly prepared and presented here as an appendix a discussion of these relevant matters, with the hope that their presentation in proper perspective will aid in arriving at the proper choices or alternatives even though the ultimate solutions were not to be those which I or others would have chosen.

May I at this time also pay tribute to the Register of Copyrights, Hon. Abraham L. Kaminstein and to his loyal and devoted associates, George D. Cary, Barbara A. Ringer, and Abe A. Goldman, for their service to our Nation in carrying out the project entrusted to them of studying our copyright system and preparing the bill which has been submitted. But we should also pay our respects to the hundred or more individuals who served on the Panel of Specialists, and on the various committees, and who participated in the meetings, panels and symposia out of which this bill was forged. In all of my experience I can remember no other effort in the field of intellectual property in which so many participated and out of which there came so Excellent a result. And last but not least, I should like to pay homage to the members of this committee whose industry, patience and quest for knowledge and information at these hearings will always stand out as a symbol of the true virtues of the democratic process in lawmaking.

52-380—66--pt. 3--21

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