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vent interest in the subject of copyright, and it is a most fitting and apt statement to be made on the last day of these hearings.
Does anyone have any questions of Mr. Fuchs which he may vicariously answer for the chairman?
Mr. TENZER. Mr. Chairman, we will defer the questions to be addressed to the chairman of our full committee when we get into executive session.
Mr. KASTENMEIER. Thank you.
Mr. POFF. Mr. Chairman, I don't have any questions, but I would like to make some observations and I will make them just as briefly as I can.
Speaking as one member of the subcommittee, I am not prepared to make any predictions at this point. The chairman has undertaken to do so. I am glad to have the chairman's advice, which is born of long experience in the field, and his advice will
certainly be considered. But I think it would be a tactical mistake for any member of this subcommittee, until we have considered further the subject in executive sessio
to indicate any particular predilection for any particular point that has been made by any particular witness, and for myself I intend to remain objective and open minded about it until we have finally presented the bill to the floor of the House.
I think it might also be appropriate at this time to voice my personal opinion-and it is a personal opinion only—that it will be impossible for the Congress to consider this legislation in the first session.
That is to say, that I believe the legislation will not reach the floor of the House until the second session, and I say that for a calculated purpose; namely, to encourage those who hold divergent viewpoints to try to reach some accommodation in the interval while the Congress is standing in recess, and to report that accommodation to this subcommittee when we reconvene in January.
I have no hesitation whatever about assuming my share of the responsibility for making those decisions, which seem now to be stalemated in what the chairman described as trench warfare. I shall make that decision, and I shall not hesitate to announce it at the proper time. But I think that all of us want to make the right decision, and we need the help of those who are most knowledgeable in the prag. matics which this legislation seeks to deal with. And I repeat what I said. I hope we can expect some positive and constructive suggestions before we sit down to report this bill to the floor of the House next year.
That is all I have to say, Mr. Chairman.
Mr. KASTENMEIER. The gentleman from Virginia speaks for himself, but as for the predilections of the chairman of the full committee, Mr. Celler, these are, it seems to me, well known and have been for years, his attitudes about copyright. And I think, as I said before, that his statement is a fitting one. Now, I would like to call as our next and last witness, the Register of Copyrights, Mr. Abraham Kaminstein.
Mr. Kaminstein, we are very happy to have you here. When we commenced the hearings in late May, you were not able to be with us, but as it turns out you are able to conclude our hearings, and we are happy to have you back.
STATEMENT OF HON. ABRAHAM L. KAMINSTEIN, REGISTER OF
COPYRIGHTS; ACCOMPANIED BY BARBARA A. RINGER, ASSISTANT REGISTER OF COPYRIGHTS FOR EXAMINING; AND ABE A. GOLDMAN, GENERAL COUNSEL, COPYRIGHT OFFICE
Mr. KAMINSTEIN. Thank you, Mr. Chairman. Since I hope to cover a wide area, I request permission to read my statement.
Mr. KASTENMEIER. Please do.
Mr. KAMINSTEIN. My name is Abraham L. Kaminstein and I am Register of Copyrights. I am honored to appear before your committee as closing witness in this historic series of hearings. I am accompanied by two associates already familiar to this committee as the craftsmen principally responsible for drafting the bill, the Assistant Register of Copyrights for Examining, Barbara Ringer, and our General Counsel, Abe Goldman.
For those who find them impressive and I confess that this includes me—the statistics of these hearings are worth noting for the record : 22 days of testimony—including today-over a period of more than 3 months, from some 163 witnesses, with more than 2,300 pages of oral transcript, plus written statements numbering more than 150 and running to some 1,600 pages. But more remarkable than the size of this massive record is its substantive weight and its relative freedom from bombast and meaningless polemics. The testimony on both sides of even the most sharply disputed issues has been for the most part constructive, temperate, and meaningful. The record of these hearings contains a full and'intelligent discussion of the arguments on each of the main points of conflict, as well as comments and suggestions on a number of matters of detail and language which your committee will wish to consider. All this will be of immense value when the time comes, as it soon must, for the necessary job of redrafting.
Throughout the hearings there have been a number of statements with which I disagree on legal or technical grounds, or which I feel require qualification or fuller explanation. There are also a good many matters of detail which need further analysis in the light of the comments or arguments that have been presented to your committee. However, mindful of Voltaire's definition of a bore as a man who tries to say everything. I am going to confine my remarks today to the main issues in dispute of which, I am sorry to say, there are still plenty. We in the Copyright Office are now in the process of preparing summaries, syntheses, and analyses of all of the testimony and statements presented during these hearings, with the hope that they will be of help to you in the redrafting process. Needless to say, my colleagues and I are ready today and in the future to answer questions or to assist the committee in every possible way.
Right now, if my own experience is any guide, some of the results of the past 3 months may look to you like a painting viewed too close: little dabs of paint without any clear meaning or relation to one another. What I would like to do is to help you to stand back and to look at the entire bill in the light of these hearings, viewing its composition whole. I think you will find, as I did, that something that may seem overly complex and muddled at close range will appear much simpler, coherent, and workable at the proper distance. And, when the bill is seen in perspective, I am confident that solutions to the remaining problems will begin to emerge. Subject matter of copyright
Sections 102 through 105 deal with the subject matter of copyright, and it is gratifying here, as elsewhere, to realize that the basic approach of the bill has been accepted and that the issues in dispute have been sharply narrowed. This group of sections now appears to present two major questions still to be resolved:
First: Should protection be granted to unpublished works without regard to the nationality or domicile of the author! All unpublished works, whether of American or foreign origin, are now protected under the common law, and the bill would continue this protection under the statute. I do not believe any convincing reasons have been put forward as to why this protection should be cut off. Moreover, as we pointed out in the supplementary report, to do so would present inordinate technical difficulties. Citizenship and domicile are things that can change, and there is no point of time at which it would be practical to fix the status of unpublished works. Equally important, under the Universal Copyright Convention the United States is obliged to protect works first published in UCC countries; if unpublished works were to be subjected to citizenship and domicile requirements, it would be necessary to provide a procedure for retrieving a work by a non-UCC national from the public domain at the time of its first publication in a UCC country: There is no necessity or justification for burdening the provision with these complications.
Second: Should copyright be permitted in U.S. Government works under exceptional circumstances? A good deal of the heat appears to have gone out of what was once a burning issue, but the question is still one the Congress has been called on by some Government agencies and book publishers to decide. In the supplementary report we noted that there are undoubtedly a few Government works which would be given broader and more effective dissemination through commercial channels, and that in those cases copyright protection would do no harm and might actually benefit the public. We concluded, however, that there are not enough of these cases to justify setting up the elaborate procedures and safeguards necessary to insure against abuse of the privilege. No factual basis has been furnished at these hearings to make me believe it necessary to change that recommendation. Exclusive rights under copyright
It is certainly no secret that the greatest number of problems still to be resolved, and the toughest ones, arise from sections 106 through 114, dealing with the exclusive rights of the copyright owner. In approaching these problems, however, it is important to realize that they are confined to specific substantive issues; there has been general acceptance of the basic structure and approach of the rights sections of the bill, and of a number of provisions that represented points of conflict in the past. In the smoke of battle it may not seem too clear, but a lot of progress has already been made.
Moreover, I do not consider it unfortunate that the revision program has thrown a spotlight on the mutual challenges between the new communication and reproduction devices and the copyright law, and that in doing so it has stirred up a number of sleeping dogs on both sides. The dawning realization of these unprecedented challenges and dangers has provoked a whole series of meaningful and significant debates. While I do regret the oversimplifications and misunderstandings that have marked some of them, I believe that ultimately the bill will be better because of these exchanges.
Before dealing with the eight major controversies arising from the rights sections, I should like to point out the various alternatives that are available for dealing with these controversies. In any situation in which the rights of copyright owners and the corresponding privileges of users must be balanced, the statute can do one of four things:
1. It can grant the exclusive right with no limitations other than the general limitation of fair use;
2. It can deny the right entirely or deny it in certain specified situations;
3. It can grant the right but make it subject to a compulsory license, enabling a user to utilize a work without the need for advance clearance, upon payment of a statutory royalty but without the danger of liability for statutory damages;
4. It can grant the exclusive right but limit the recovery possible under the remedies sections: the user is induced to obtain an advance license but, if he fails to do so, he is shielded from liability beyond a stated limit.
I believe that the eight problems I am now going to discuss can each be resolved within the framework of one of these four alternative methods. Fair use and the right of reproduction for educational or research
purposes This issue is notable not only because its implications for authorship, publishing, education, and scholarship are far-reaching, but also because each side in the controversy performs a vital public service which contributes to the other. There are, I believe, three points here which need to be re-emphasized :
(1) The bill would in no way whatsoever diminish the privilege that schools now have under the present law with respect to classroom uses of copyrighted material. Anything that can be done under the doctrine of fair use now could be done under the bill, and the bill, even more clearly than the present law, completely exempts performances and exhibitions in classrooms and "in-school" instructional broadcasts.
(2) The doctrine of fair use, as the courts have evolved it, depends on a number of variable factors, including but by no means confined to the commercial character of the use and the effect on the author's potential market. Assuming that the necessary factors are present, some limited uses for nonprofit educational purposes would undoubtedly be held to constitute fair use under both the present law and the bill, but each situation would have to turn on its own facts.
(3) While the present law contains a “for profit" limitation with respect to the right of public performance, the right of copying is an absolute right, unqualified by any “for profit” limitation. Any nonprofit copying under the present law would clearly constitute infringement unless the doctrine of fair use were applicable. The bill does not change this situation in any way. I believe that there have been serious misconceptions on this point among the educational community which have clouded and distorted the true issues and have made solutions much more difficult. The Copyright Office is preparing a legal memorandum on this subject which we plan to present to the committee for its information, and I hope that the representatives of the educational groups will also help to clear up this unfortunate misunderstanding.
On August 19 Mr. Rosenfield presented to this committee his analysis of 11 possible teacher uses in instruction of a map taken from the front cover of a Sunday newspaper supplement, in terms of whether each use would constitute an infringement under the present law, the bill, and his group's proposals. I believe his analysis was a fair one, and, while I do not agree with it in every detail, I am not prepared to challenge its basic conclusions. It does seem to me, however, that the presentation underlines an important point: that some of the things educators are seeking the privilege to do under the bill are things that are infringements of copyright today. It also illustrates the difficulties of generalization here; it seems likely that some of the educators' claims would be different if, instead of appearing in a newspaper, the map were a part of a reference work such as an encyclopedia, if it were sold in the form of slides intended for projection, or if it were sold separately for classroom use by students.
I believe a great deal could be gained if we confront this problem, not on the erroneous assumption that the bill would deprive teachers of privileges they have now, but directly on the issue of whether certain educational and research uses should be freed from the copyright protection existing under the present law. I think this is the real issue. Looked at in this way, the alarm and seriousness with which the authors and publishers have opposed proposals for sweeping educational exemptions are certainly understandable.
A report dated February 4, 1965, from the Office of Federal Education Activities, Federal Education Programs Branch, Office of Education, Department of Health, Education, and Welfare, states that the estimated obligations of Federal funds for education and training and for the support of academic science" alone is more than $6 billion for fiscal 1965 and close to $9 billion for fiscal 1966. Some of these enormous sums will unquestionably be used to acquire new devices intended for the reproduction of copyrighted works.
Obviously, authors and publishers whose livelihood depends upon the sale of copies to educational markets could be expected to fight any revision bill that could destroy this market by allowing the untrammeled use of copying devices without insuring a fair compensation for that use. At the same time, I believe that both sides could benefit substantially from a bill that would not only permit occasional copy. ing of excerpts for limited classroom distribution without the need I of following difficult clearance procedures or the dangers of statutory liability, but that would also induce the establishment of a simple and reasonable system for payment of royalties. I do not think it is too much to hope that both sides will realize the validity of this goal, and will help in working toward its realization.