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COPYRIGHT LAW REVISION

THURSDAY, SEPTEMBER 2, 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, Tenzer, Poff, and Hutchinson.

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

Mr. KASTENMEIER. The subcommittee will come to order for this, the 22d and last day of hearings on the general copyright revision.

Chairman Celler was to have been our first witness today, but he is required to preside over a hearing of Subcommittee No.5, on the judgeship bill, and he has requested counsel of the subcommittee to read his prepared statement into the record, which counsel will do at this time.

I am sure Mr. Celler will be disappointed at not being able to attend, particularly when he learns that today we have a very distinguished audience on this last day of the hearings, of notable people in the field of copyrights.

I am very pleased that you noted that this last day of hearing has some significance.

Mr. Fuchs, you may proceed.

STATEMENT OF HON. EMANUEL CELLER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW YORK, AND CHAIRMAN OF THE HOUSE JUDICIARY COMMITTEE

Mr. Fuchs. Mr. Chairman, Mr. Celler's statement follows:

I had hoped to appear personally before this distinguished subcommittee on the last day of its copyright revision hearings. I wanted to make a few observations about the revision program and the revision bill, and I would do so more as Judiciary chairman than as author of H.R. 4347.

Since 1946, our Committee on the Judiciary has had primary legislative jurisdiction, under the rules of the House, of all measures affecting copyrights. Our committee thus shoulders the solemn responsibility of guarding the intellectual property of authors and composers and making sure, in an increasingly complex society, that American creative talent will continue to receive encouragement in the form of a just return from the commercial exploitation of its works.

We are, in short, directly involved in effectuating the constitutional purpose: *** to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. In course of this involvement our committee has played its part in the current copyright revision program, which began 10 years ago with a congressional appropriation of funds. We published the 1961 Report of the Register on the General Revision of the Copyright Law, as well as a number of succeeding volumes of discussion and comments on the report and on ensuing draft legislation. This May, also, we published the supplementary report of the Register, comprising a painstaking and detailed explanation of the bill before you. "As might be expected when one recalls that the Copyright Office is part of the legislative branch of the Government, our cooperation with the Office has been close.

Twice since the publication of the Register's 1961 Report, acting through your Subcommittee No. 3, we initiated legislation to prevent the expiration of copyrights under existing law, pending congressional confirmation of a new and longer term as part of the revision. The latter of these extensions was enacted this year and approved by the President only last Saturday. As a result, no existing renewal terms of copyright will expire before December 31, 1967, by which time a copyright revision measure will surely have been enacted. All present indications are that such a measure will provide a substantial increase in copyright term.

Other copyright activity of the committee in recent years includes the enactment of H.R. 11793, of the 87th Congress, which penalizes traffic in counterfeit phonograph records. Also, in the 88th Congress, the committee reported favorably to the House my bill (H.R. 7194) to repeal the notorious jukebox exemption, a legislative proposal that is repeated in section 114 of the measure now before you.

This is the background against which I introduced H.R. 4347 at the request of the Librarian of Congress (as I had done late in the 88th Congress with H.R. 11947), in order that the best current thinking of the Register of Copyrights and his staff might achieve legislative status and be subjected to the gauntlet of the legislative process.

An essential, and often a decisive element in that process is the character of the scrutiny that is given a measure at public hearings. Here I must pause to pay my deep respect to the Copyright Revision Panel of Subcommittee No. 3 for the patient persistence you have displayed in the course of the present hearings. In this I am not alone but would add my voice, in behalf both of the full committee and myself, to the voices of others in and out of Congress. The conduct of these hearings has been widely applauded. It has even been described as a vindication of our legislative process.

Let me review the magnitude of your accomplishment. You have held 21 days of hearings on a complex and technical subject. You have found time to attend these hearings without skimping your other responsibilities, in a session of Congress unprecedented in its activity and its demands on individual Members--a session which has

seen the Judiciary Committee involved with much major legislation, including voting rights, immigration, Presidental inability, and many other matters. You have heard, I am told, more than 150 witnesses, including Members of Congress, representatives of Government agencies, and spokesmen of every conceivable interest group concerned with copyright.

You have heard from representatives of football players and archivists, of broadcasters both educational and commercial, of composers of music, of movie producers and record manufacturers and librarians and jukebox operators and community antenna interests and publishers, and from teachers who claim to speak with authority because they are also authors, and from authors who make the same claim because they are also teachers, and many others. You have examined these witnesses with great expertness as the hearings progressed. And you have done all this without hope of publicity or political advantage, simply because the work was there to be done-a most impressive performance.

Now, as the hearings close and the measure enters the critical phase of executive sessions, one may ask “How has the bill fared ?” My own impression is that it has stood up very well under the searching scrutiny of the panel. Let me illustrate. The guiding premise of the revision program has been that the tremendous changes in technology that have taken place since 1909, which have fostered entire new industries and new methods for the reproduction of literary and artistic works, have rendered the present copyright law obsolete. It is my understanding that this premise was nowhere challenged in the hearings. I would naturally predict that your subcommittee will accept the basic premise and report a bill.

Turning next to the substance of the measure itself, I should suppose that the proposal of a single national system of copyright for all works, both published and unpublished, would meet with your ap

proval. I am told that there may be an amendment to be made on a 1 related point for the accommodation of archival needs, but basically, it would seem, the single system has general acceptance.

The proposal to extend the term of copyright to life of the author 1 plus 50 years seems to me to be eminently wise and I predict that you

will favorably report it. Our country has been a laggard in the protection of its authors. Even in 1909, when the present term of 56 years was enacted, all major countries except Holland and the United States were protecting their authors at least for the duration of their lives. In the United States today, some authors are outliving their copyrights. In other cases, copyright expires shortly after the author's

death, thus depriving his family of income from his works. A term É of life plus 50 years will insure that the author is compensated for uses

of his works during his life, and that his family will receive income from his copyrights for a reasonable period after his death. A great society can do no less for its creative authors and artists.

Copyright termination calculated from the year of the author's death is easy to administer. All the author's copyrights would go into the public domain at the same time. What is more, it is difficult to see

how the public interest can be adversely affected by affording the probe creators of copyrightable works better protection.

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Finally, the life-plus-50-year term is in effect in most copyright nations of the world. Once it is recognized that the term of copyright should exceed the life of the author, there is little choice other than for the internationally prevalent term of life plus 50.

I am also favorably impressed with the provisions of the measure whose purpose is to simplify the notice requirements and to impose fewer technicalities and avoid forfeitures. I refer to sections 404 and 405 of the bill. Without attempting to describe the precise significance of these provisions, I recommend them to the subcommittee's favorable attention.

A troublesome issue of many years' standing involves the so-called manufacturing clause of the Copyright Act whereunder works by Americans written in English must be manufactured in the United States if copyright protection is to be achieved. It has long been contended that this is a protectionist measure ill suited to a copyright statute. The Register, himself, in his 1961 report, recommended deletion of the clause. In the present bill, however, he has reversed this stand, confining himself to proposing modifications of the clause that would narrow its scope, primarily because of objections raised by the book-manufacturing industry. În my opinion, the Register is to be commended for his flexibility---not chided for vacillation.

It may well be true that the manufacturing clause should be eliminated, and that ultimately it will be. But there is little to be gained from its elimination over the vehement objection of an entire industry and its unions. Technological changes will no doubt render the entire issue moot in a few years. Meanwhile the publishing industry and the authors should content themselves with half a loaf and accept the liberalizing changes contained in the bill. Under these, the manufacturing requirement would cover only predominantly nondramatic literary material and would not apply to works any part of which were written by foreign authors. Importation in violation of the clause would not invalidate copyright, but would merely afford a defense to an infringer. Finally, 3,500 copies manufactured abroad could be imported, instead of only 1,500.

I understand that there was universal approval of most of these changes, even by representatives of the unions most set against repeal. The sticking point was the survival of the clause itself. In this case, I predict the measure you report will, like the present bill, contain a manufacturing clause, however much altered and restricted.

The compulsory license for manufacture of phonograph records of copyrighted songs is another provision of the bill as to which controversy has been largely localized. No one any longer seriously objects to the compulsory license (though the Register once recommended its repeal), and the remaining issue is whether the license should cost 2 cents as at present or 3 cents as recommended by the Register. Although the matter requires study, I would suppose that some increase will be recommended by the panel, in view of the sharp changes in the price level since 1909 when the 2-cent rate was adopted.

Perhaps the most perplexing issue facing you involves the permissible limits of educational copying and the request for exemption of educational television. I am advised that the publishers and authors on the one side and the educational groups on the other have now dug in and are engaged in positional or trench warfare. It seems to me

that the subcommittee, with or without the good offices of the Register, will have to activate these normally symbiotic interests into genuine negotiations for the compromise of their positions. Failing this, the

subcommittee must write its own ticket. Here my predictions are : negative. I believe that you will neither ignore the need of teachers

for access to educational material without undue fuss, nor will you accept the thesis that authors, as a class, must subsidize education. But it is to be hoped that the subcommittee will not have to make the entire decision itself, for the publishers and authors on the one hand and the teachers on the other, both agree that they are indispensable to each other, and the issue seems to me to be eminently negotiable.

The problem of CATV (community antenna television) involves the effort of this relatively young industry to obtain an exemption from copyright obligation in its transmission by wire of copyrighted material picked up by it off the air. The Register in his supplementary report has stated his belief that no exemption is warranted, but also suggests that copyright owners should come forward with practical suggestions for solving the problem of obtaining advance clearances for all of the copyrighted material contained in a broadcast. Here, again, the problem before the subcommittee is formidable, but I cannot envision your recommending an outright exemption from copyright liability in this area.

I turn, finally, to a subject which you know has concerned me for many years. I refer to the repeal of the notorious jukebox exemption of the present law. The Register's bill provides for repeal, as did my bill H.R. 7194 of the 88th Congress, which your subcommittee recommended to the full committee and the full committee reported to the House.

For all these years it has been my purpose to bring about the repeal of this grossly discriminatory provision under which the accident of coin operation is made the determinant that alone exempts the public performance of copyrighted music for profit by means of a jukebox, while such performance by any other means whatsoever is subject to the payment of royalties. No purpose would be served by my reviewing this issue at length. The subcommittee well knows that every disinterested witness (most recently the American Bar Association and Professor Nimmer, I believe) has recommended repeal of the existing exemption as unjustified. You also know that despite my personal convictions as to the indefensibility of the present exemption, I have repeatedly stood willing to permit the issue to be compromised on mutually agreeable terms. In past years the jukebox operators have simply declined to negotiate. If they persist in this attitude, the subcommittee will have no alternative but to recommend, as it did in the 88th Congress, the outright repeal of the exemption. On the other hand, recent testimony by the Register before the other body suggests the possibility of at least one solution to this problem as to which the subcommittee may wish to invite the specific comments of the parties.

In closing, I can only express my conviction that the revision project is in the best of hands. With the assistance of the Register and his excellent staff every augury points to the subcommittee reporting a measure for enactment early in the new year.

That is the end of Chairman Celler's statement.

Mr. KASTENMEIER. Mr. Fuchs, thank you for presenting Chairman Celler's statement. The committee is well aware of his long and fer

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