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of these I consider only 2 (duration and the manufacturing clause) as of major importance. Most amazing to those of us closely involved in the development of the bill is what has happened with respect to the so-called "reversion” or termination-of-transfers provision now found in section 203. This, which was once by all odds the most explosively controversial provision in the bill, appears to have largely receded as an issue in general revision.
The one remaining issue on ownership of copyright that should be mentioned here is raised by the proposal advanced on behalf of screen writers and composers which would change the status of "works made for hire" under both the existing law and the bill, and would substitute the equivalent of the “shop right” concept of the patent law. The concept of an employer for hire as "author" is an important one in the present statute, and in our 1961 report we recommended continuation of the present rule that all rights vest in the employer as the most practical solution to the problem. The proposed “work made for hire" provisions, which are based on this premise, represent a carefully workedout compromise whose effects are felt throughout the bill. The suggestions for changing them are put forward by authors who have already achieved some of the goals they are seeking in the bill by means of collective bargaining agreements, and on balance I believe that the arguments in favor of their suggestions are substantially outweighed by the practical difficulties they would present. Federal pre-exemption and duration of copyright
I consider the provisions of chapter 3, establishing a single Federal system of copyright and a term of the life of the author plus 50 years, as the most important group of sections in the bill. It is undeniably true, as has been pointed out here, that this represents a major reversal of the recommendations, made by us in the Register's report in 1961; but I am now firmly and genuinely convinced of the validity of the arguments supporting the changes in chapter 3, and I regard them as a fundamental and essential part of the revision program. If I may, I should like briefly to review these arguments for you once more:
(1) Life expectancy has increased by more than 20 years since 1909. More and more authors find their early works falling into the public domain during their life, at the very time when they need them most to provide for their old age and for their dependents.
(2) The most important single concept under the present law, that of “publication," is based primarily on the public distribution of printed copies. With the development of many new methods for disseminating works to the public, the concept of "publication” has become increasingly obscure and inadequate as the starting point of statutory copyright.
(3) A uniform national term of the life of the author plus 50 years is prevalent throughout the world and, in an age when works travel across boundaries in the twinkling of an eye, it is highly desirable to establish a uniform term internationally.
(4) Life plus 50 years is roughly equivalent, on the average, to a term of 75 years from publication, and is not too long in view of the increased longevity of authors. While there may be uncertainty in some cases as to when an author died, computing the term on the basis of the author's death has not been a major problem in other countries, and would be solved for all practical purposes by the system of presumptions established in the bill.
(5) It is important for the revised term provisions to do away with the present system of copyright renewal, which is a nightmare of complexity and which frequently results in the inadvertent loss of protection. A renewal device would be difficult to integrate into a life-plus system, even if its harsher features could be minimized. Leaving aside the legitimate needs of scholarship as put forward by representatives of archivists and historians on June 17, it seems doubtful whether the 85 percent of copyrighted material not now being renewed would represent, in the aggregate, any substantial benefit to the public if placed in the public
domain before the end of the term provided in the bill. The Office is now completing a survey of the nature of the material not being renewed, and I hope to present it to the committee for its information in the near future.
As I have said, I regard the life-plus-fifty provision as one of the foundation stones of the entire structure and content of the bill, and there is no provision on which the support of the proponents of copyright law revision is stronger or more nearly unanimous. For the most part the opposition has appeared to be isolated or of less than primary concern to the opponents. At the same time, I was strongly impressed by the arguments advanced by the Deputy Archivist of the United States and by Prof. Julian Boyd on behalf of archivists and historians.
Their proposal that libraries, archives, and other repositories be permitted to duplicate manuscripts for the preservation of their own collections and for research use in other archival institutions struck me as reasonable and worthy of adoption. Notice, registration, and remedies
Remembering the stormy battles that raged about them in the past, it is gratifying for me to see how well the provisions on formalities (notice, deposit, and registration) and on remedies for infringement have stood up during these hearings, and to realize how much better they are as a result of being picked apart. An issue has been raised as to whether a notice should be required on copies distributed abroad but, for the reasons set forth in some detail in the supplementary report, I adhere to the belief that the bill should retain this requirement.
In general, two substantive issues have been raised with respect to the provisions on statutory damages: whether the copyright owner should be given the option of choosing statutory damages even where actual damages and profits can be shown, and whether the court should be allowed discretion to reduce or remit statutory damages in cases of innocent infringement. I believe that the right of the copyright owner to elect minimum statutory damages in cases where infringement has been proved is an important one under the present copyright statute, and that it should be preserved and made clear in the new law. I also have doubts as to the wisdom of allowing the courts unlimited discretion to remit statutory damages as they see fit. As I have already indicated, however, I regard the placing of limitations on remedies in certain situations as a possible solution to some of the disputed issues involving the exclusive rights of the copyright owner.
Finally I come to the painful problem of the manufacturing clause, an economic issue which has burdened our copyright law for threequarters of a century. Let me say again, as I have said many times before, that in principle I believe that none of the exclusive rights of a copyright owner should be made to depend upon compliance with manufacturing requirements. Recognizing the immense difficulties and bitter conflicts underlying this issue, however, we have gone forward with a provision that would greatly liberalize the requirements now in effect and that would preserve the present language supporting the publishers' practices of printing American editions from imported reproduction proofs printed from type composed abroad.
Assessing the extensive and generally quite constructive testimony that was presented to you on August 11 and 12, my impression was that, assuming the validity of the publishers? position on reproduction proofs, and leaving aside the burdens and injustices that we know to exist in some individual cases, neither the publishing industry nor the printing industry is hurting too much under the present law. The concern on both sides seems to be with the future: the publishers are concerned lest the continuation of a manufacturing requirement should hamper them in their use of new and improved methods of book manufacture, and conversely the manufacturers and printers are concerned lest repeal of the requirement should open the floodgates to foreign competitors enjoying much lower wage rates. Judged in this light, it would seem that the goal of the bill is not so much to remedy any major economic imbalance now existing between these interests, but to avoid the danger of creating such an imbalance in the future.
At this time I should like to confine my comments to subsection (c) of section 601, which as a matter of language offends me more than any other provision in the bill. This subsection was drafted carefully in an effort to preserve the status quo with respect to composition of type abroad, but to achieve this purpose it has been necessary to use the tortured, ambiguous, and virtually incomprehensible language of section 16 of the present statute. During Mr. Howard's testimony on behalf of the Book Manufacturers Institute I was impressed by the open-minded recognition that the use of foreign reproduction proofs has been "fairly widespread for the past 10 years” and by his suggestion that, in order to avoid endangering substantial numbers of copyrights, the committee consider adopting in its report "a legislative interpretation *** exempting such reproduction proofs." Although I should prefer a clear-cut statutory provision to accomplish this end, I urge that, at the least, the suggestion of a legislative interpretation be adopted.
Mr. Chairman and members of the committee, you may know that I was recovering from an illness when these hearings started and was forced to follow the first seven sessions from the transcript. Since June 10, however, I have been fortunate enough to attend every session except the one during which I testified at the opening of the Senate hearings. I should like to say, without belaboring the obvious, that I consider these past weeks one of the most gratifying experiences in my professional life. Thanks to you, and to your extremely able and
cooperative counsel, these hearings have been conducted in an atmosphere of constructive objectivity, diligent and penetrating consideration of all sides of the issues, and an obvious determination to seek reasonable solutions and to report the best bill possible. The record of these hearings is certain to become a landmark in the history of the copyright law and my only regret is that Arthur Fisher, the true guiding spirit behind the revision program and this bill, could not have lived to attend these hearings.
In the 1961 report of the Register we observed:
Within limits, the author's interests coincide with those of the public. Where they conflict, the public interest must prevail. The ultimate task of the copyright law is to strike a fair balance between the author's right to control the dissemination of his works and the public interest in fostering their widest dissemination.
This passage has been quoted in opposition to, and as being inconsistent with, various provisions of the bill. However, I not only stand behind this statement, but I feel very strongly that the bill you have before you is based on the principles expressed in it. The bill contains a number of provisions in which the exclusive rights of the copyright owner are limited, qualified, or denied; where protection is strengthened, it is because we are convinced that this will foster creativity and thereby serve the public interest. To the best of our abilities we have tried to draft, not an "authors' bill," not a “users' bill,” but a bill that would serve the ultimate public interest now and for some time to come. It is satisfying to know that our efforts are in the hands of statesmen whose concern for the genuine public interest has been constantly manifested at these hearings. Mr. Chairman and members of the committee, thank you for
your patience in listening to this long presentation.
Mr. KASTENMEIER. Thank you, Mr. Kaminstein. Your long presentation was deeply appreciated, as well as your complimentary remarks to the committee. I have only a few questions, two on the term.
I suppose another argument for making it life plus 50 would be the fact that never again would you have to change it, at least for reasons of longevity, because you have already solved that.
Mr. KAMINSTEIN. We hadn't advanced that argument, Mr. Chairman, but I think it is a good one.
Mr. KASTENMEIER. You indicate that the renewal feature of the present law has been burdensome for the Copyright Office in the past. Had you not suggested that, I was going to ask you: could not the law be written for life plus 50 years, except that at the end of 28 years there be a renewal feature?
Mr. KAMINSTEIN. It would be conceivable, Mr. Chairman, to consider such a provision. But let me go back to your original question. The present renewal provision has been fraught with difficulties. Next to the manufacturing clause, I think it is probably the most complicated provision in the present law, and has been the subject of constant litigation. It represents one of the few instances in which the Supreme Court has been called upon to decide the meaning of the word “or” in a statute—the question whether widows and children share a renewal equally or share it successively, first widow and then children. But even on a simple basis it is difficult for an author or composer to keep records to remind him that in 28 years he will have to renew; and there is at least one person sitting in this room, a very distinguished dramatist, George Middleton, who has lost renewal rights because of this provision.
The burdens of renewals on the Copyright Office are the least important aspects of the problem. The complexities of renewal are burdensome on and unfair to everyone concerned. Even if the publisher keeps records, the publisher may go out of business and thus a great many renewals which would ordinarily be renewed are not.
Mr. KASTENMEIER. I gather in practice it is impossible, at least under the
present circumstances, to notify holders of renewal dates. Mr. KAMINSTEIN. Fifteen years ago when I first came to the Copr. right Office this was one of the thoughts that occurred to me, and I asked for a survey as to whether this was feasible. But the modern mobility of people, coupled with the fact that original and renewal claimants are usually different, makes it almost impossible. The addresses we have are useless in 10 years, let alone
Mr. KASTENMEIER. Just speaking hypothetically, would a 28-year renewal feature in a life plus 50 term destroy agreement with the Europeans? Would it be sufficiently different, by virtue of that addition, to destroy any accord or mutuality we would have with the Europeans, with the simple life plus 50 ?
Mr. KAMINSTEIN. It would affect the uniformity. I am not sure, Mr. Chairman, but I think it might. If renewal were voluntary and induced in some way, you might have a different question, but if failure to renew terminated copyright, I think it would affect the term.
Mr. KASTEN MEIER. On a different subject, last week Mr. Giles, testifying for the Department of Commerce, on page 3 of his testimony suggested that we might consider whether section 109(4) be changed, because, he states:
In our view this exemption from the copyright protection should not apply to any performance where admission is charged even if the net proceeds are to be applied for an educational, religious, or charitable purpose.
It is our view that if there is an admission charge, the copyright owner should have the right to decide whether this work is to be performed, or royalty is to be required. Otherwise, he goes on to say: the copyright holder is in a sense being compelled to make a donation to a charitable, religious, or educational cause. How do
react to that comment ? Mr. KAMINSTEIN. I was impressed by the argument, Mr. Chairman. and also by Mr. Poff's pushing at the point that he might thus be contributing—I take it this was the implication—he might be contributing to a cause of which he was not particularly fond. I think this is one of the situations where there has to be a balance, and pretty much it is de minimis in the sense that these exceptions have been developed over the past and have not been objected to too strenuously.
In theory there is validity in the argument.
Mr. KASTENMEIER. It could be further argued, could it not, where there is an admission charged and where there are net proceeds, and I think Mr. Hutchinson as well as Mr. Poff referred to this, where, if there are indeed profits, should not the cost of copyright be taken out of those profits before distribution? Why should the copyright holder be required to make an involuntary contribution?