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graph correctly. These four examples you have pointed out are cases in which the ad hoc committee, while it thinks these practices may be proper in some instances, on the whole is willing to accept less than what the present practice now provides.

May I hastily say two things in this connection. First, that there are some members of the ad hoc committee, and they have testified before you, that wish to go beyond what the ad hoc committee as a consensus has developed, not only in connection with these four but with others. Secondly, Mr. Chairman, and Mr. Poff and gentlemen of the committee, this is just one lawyer's estimate. I was asked for my estimate and presumably Mr. Cary will be asked for his in conformity with your request.

Other far better equipped lawyers may reach different conclusions. But I respectfully suggest that this is my vision of the effect of the law, the practice, the bill and our proposal before you.

Mr. POFF. That was the qualification I was about to suggest. I think it is also pertinent to comment that what one court may determine to be a fair use practice, another court might not determine to be a fair use practice.

Mr. ROSENFIELD. You are so right, Mr. Poff. This merely illustrates the difficulty, why FCC, HEW, and the Deputy Archivist are worried.

When you are dealing with school systems you cannot afford to put the determination on the individual teacher. I think we have indicated to you what happened in Baltimore when the issue arose as a result of this 2 years of controversy.

We happened to have a very distinguished member of the Baltimore school staff representing one of the major educational organizations of America on the ad hoc committee. This person went back and talked to the supervisor. The board got worried, called its lawyer in. As a result the school board lawyer said, "There is too much uncertainty, don't use any copyrighted material.”

Mr. Chairman, this gives me an opportunity to make one further observation. There has been so much comment about the fact that there have been no lawsuits. One of the reasons that there have been no lawsuits is that where there is any question, where teachers realize there is any question, and consult, they are told to "lay off.” In my earlier testimony I went into details as to other reasons for the absence of lawsuits, and therefore will not repeat them now.

Let me give you an example, Mr. Chairman, of the kind of thing we are talking about today. We are talking about a newspaper.

I just happened to be away over the weekend and picked up the Richmond Times Dispatch of Friday, August 13. There does not seem to be any copyright notice anywhere in this paper. I may have missed it but I don't find it. Yet in its masthead, the Richmond Times Dispatch says:

All rights reserved and contents may not be reproduced without permission of the publisher.

Now let us take the teacher who is not a copyright specialist, who happens to want to pick something from that very page, for student and classroom use, and he happens to notice the masthead. He does not know whether this material is in the public domain or not. He

never heard the term. He probably had as much trouble as I did to try to find the copyright notice.

Most newspapers have the copyright notice at the top of the front page. There isn't any here. All the teacher knows is that he is told he had better stay away unless he gets permission. So, he does not use it.

This is the kind of problem we are faced with, Mr. Poff. This is what I call the condition of American education. Please give us something in the nature of the HEW report's expression, which I regard as superb, that provides in the statute “the permissible limits of photocopying." Teachers don't want to break the law. We don't even ask to be permitted to do as much as we are now doing. But we feel the need, for a proper educational system, to be permitted to do more than the present law and the proposed bill would allow and in some way make this possible without requiring a “hot line” to a lawyer. And if you happen to get a different lawyer you will get different answers.

Mr. POFF. That's all, Mr. Chairman.

Mr. KASTENMEIER. If there are no other questions, again, the committee appreciates your contribution this morning.

Mr. ROSENFIELD. Thank you, Mr. Chairman. Mr. KASTEN MEIER. That concludes this morning's testimony. The Chair will observe that we are nearing the conclusion of our hearings. We have perhaps 2 more days of hearings. One presumably we will have next week and perhaps another hearing the week after. I am not in a position at this moment to announce specifically what witnesses will appear at what time but we will make this public within a day or so. Accordingly, this subcommittee will stand adjourned until next week at a date and time to be subsequently announced.

(Whereupon, at 12:15 p.m., the subcommittee recessed, to reconvene subject to call of the Chair.)


COMMITTEE ON THW abhington, D.C.




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

Present: Representatives Kastenmeier, Edwards, Poff, and Hutchin

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

Mr. KASTENMEIER. The subcommittee will come to order. In continuing the hearings on general copyright revision this morning we are pleased to hear from three witnesses; two representing departments of the executive branch, and a third, a well-known expert in the field.

Our first witness this morning is the State Department, represented by Mr. Philip H. Trezise. Mr. Trezise, please identify your colleagues and let me say to you, “Welcome to the committee.”



Mr. TREZISE. Thank you, Mr. Chairman.

I am a Deputy Assistant Secretary for Economic Affairs in the Department, and with me are Mr. Harvey Winter, on my right, who is in our Business Practices Division, and on my left, Mr. Allan Mendelsohn from our Legal Adviser's Office.

I have a statement, Mr. Chairman, and with your permission I will read it.

Mr. KASTEN MEIER. You may proceed, sir.

Mr. TREZISE. Mr. Chairman, I am Philip H. Tresize, Deputy Assistant Secretary for Economic Affairs in the Department of State.

The Department of State has reviewed the three provisions of the copyright law revision bill that bear on our responsibilities. We support all three.

Of the three sections, two have particular relevance to our foreign relations. These are sections 104 and 601. In our letter to the chairman of the committee, the Department commented in some detail on these two sections. We also commented on section 105 regarding copyright in U.S. Government works.

This section does not involve foreign relations but does involve our responsibilities as a Federal agency. Today I will limit my comments in this statement to the matters involving our foreign relations.

First for section 104, the subject matter of copyright as it concerns national origin. Section 104 specifies the occasions on which foreign works will be given U.S. copyright protection. Basically, it continues the reciprocity approach embodied in the present law as regards published works; that is, the United States gives foreign citizens protection equal to that given by the foreign country to U.S. citizens. It is thus consistent with generally accepted international practice in most countries.

But in one significant respect, section 104 goes beyond the strict reciprocity approach. It permits the President, in special cases warranted by the national interest, to depart from the reciprocity approach and to proclaim protection for designated foreign countries with which the United States maintains no copyright relations.

The Department of State supports this modification. It permits the President a certain degree of flexibility allowing him to take into account all aspects of the national interest which could be involved in the extension of U.S. copyright protection to foreign countries. We would expect that this flexibility would be used primarily for purposes of furthering our relations with developing countries, particularly those which do not yet have copyright laws.

Section 601 relates to the so-called manufacturing clause in the existing copyright law. This clause requires that the manufacture, that is, typesetting, printing, binding, of certain books and periodicals be done in the United States in order to get and keep U.S. copyright protection.

The existing law requires that books or periodicals of domestic origin, or which are in the English language, be manufactured in the United States in order to qualify for U.S. copyright protection. This requirement applies also to a foreign language work which is authored by a U.S. citizen, no matter where it may be published. In general, works are excepted from this requirement when authored by a national of a country adhering to the Universal Copyright Convention, or when published in such a country.

Section 601 changes the present manufacturing clause in several ways. First, the clause would no longer be applicable to a work which is not predominantly in English. Second, it would no longer be applicable to a work if the author of any substantial part of the Englishlanguage material is neither a citizen of, nor domíciled in, the United States. Third, it would not apply, as it now does, to certain illustrations within a book and to separate lithographs or photoengravings. Finally, with respect to those works which would still be subject to the clause, section 601 raises from 1,500 to 3,500 the number of copies manufactured abroad that could be imported into the United States.

The revised section 601 would not eliminate the protective features of the manufacturing clause. However, it would liberalize its application and the Department considers that this would be desirable.

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