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proposed in that the rate of royalty would be fixed in the statute. In addition, the method of collection for such mechanical royalties is now already established in the Copyright Act. As was stated in the minority report accompanying H.R. 7194 (similar legislation introduced in the 88th Cong.):
“The mechanical fee is fairest to all concerned. The royalties thus generated are directly related to the popularity of the particular composer's music, and the royalties paid by an operator likewise are directly proportional to the demand for that composer's record on the part of the operator's customers."
Section 114 as it is now written is also objectionable in that it would place undue pressure and responsibility on the “operators" of such machines. Subsection (2) of the aforementioned section permits each copyright owner to re quire of the owner of an establishment in which a coin-operated machine is located information as to the ownership of the machine. If the owner of the establishment does not answer promptly, he subjects himself to a multiplicity of lawsuits. Should a coin-operated machine contain 250 recordings, there could be instituted a lawsuit for each copyright owner regardless of the damages incurred.
In passing on the matter of the "jukebox exemption," the subcommittee would be well advised to consider the possible impact of such a repeal. The exemption serves as a basis for an entire industry. Repeal of the exemption could seriously cripple or destroy an industry employing thousands of people.
Should the subcommittee, however, in its wisdom recommend repeal of the jukebox exemption, there should be considered the fact that there are other types of coin-operated machines aside from Jukeboxes. Coin-operated radio and tele vision sets are used in many establishments. If section 109 of H.R. 4347 is intended to exempt the reception of radio and television broadcasts in public rooms from the payment of copyright royalties, there is no reason why the exemp tion should be denied because the radio or television set is coin operated. As presently written, section 109(7) is not broad enough to include coin-operated machines but is limited to a "single receiving apparatus of a kind commonly used in private homes." We do not believe that coin-operated machines are commonly used in private homes. For that reason, if Congress wishes to repeal the “jukebox exemption," it should limit its action to "jukeboxes.” This can be accomplished by adding a third subdivision to section 114, reading as follows:
“(3) and the machine is a device for the playing of recorded music originating in the establishments."
AMERICAN MUSICOLOGICAL SOCIETY,
September 29, 1965. Mr. HERBERT FUCHS, Counsel, House Judiciary Committee, Subcommittee No. 3, Cannon Office Build
ing, Washington, D.O. DEAR MR. FUCH8: The American Musicological Society, through its members, comprising 2,000 scholars, authors, teachers, librarians, and composers, has & continuing and vital interest in H.R. 4347, a bill for the general revision of the copyright law.
As president of the society, I have studied the bill and the publication entitled "Copyright Law Revision, Part 6, May 1965," printed for the use of the House Committee on the Judiciary. In addition I have read excerpts from the testi. mony of various witnesses, especially those representing an ad hoc Committee of Educational Associations, and have, further, discussed various aspects of the bill with fellow members of the American Musicological Society.
Most recently I have asked the members of the executive board, elected by the members of the society, to express their opinions regarding section 107: Limitations on exclusive rights: Fair use. The replies were unanimous in supporting the retention of this section as it stands, namely: "Notwithstanding the provisions of section 106, the fair use of a copyrighted work is not an infringement of copyright.”
As expressed so succinctly in "Copyright Law Revision, Part 6," the executire board of the American Musicological Society does “not favor sweeping, acrossthe-board exemptions from the author's exclusive rights * * For us, the difference between "fair use" and "free use" is a critical one: "Fair use" leares to author and publisher the right to take proper action toward the correction or removal of abusive practices; “Free use" imposes restrictive limitations.
Because the principal, if not the sole, publishing reward of authors like us derives from royalties on sales to educational institutions, we are particularly desirous of exercising control over this as well as other sources of income. Without the assurance of such control the incentive to produce textbooks and scholarly works would be much reduced and might ultimately disappear. It seems clear to us that if we, as authors, contribute time, energy, and often arduous research to the preparation of educational materials, we should not be required addi. tionally to contribute any part of the income that might derive from the sales of our works.
In brief, we stand opposed to the several modifications of section 107 that have been proposed by the ad hoc Committee of Educational Associations.
In addition to the position taken by the executive board on section 107, it should be noted that we endorse sections 303 and 304, particularly in the ways in which these sections eliminate the dual system whereby something protected by common law if unpublished is protected by copyright law if published.
On behalf of the executive board of the American Musicological Society and those other members of the society, listed below, who have advised me, I request that this letter be entered in the records of proceedings related to H.R. 4347. Respectfully submitted.
WILLIAM J. MITCHELL,' President.
Executive board members whose views are represented herein:
Past members of the executive board whose views are represented herein:
bia University, New York, N.Y.
THE ASSOCIATED PUBLISHERS, INC.,
Washington, D.O., June 28, 1965. HOUSE JUDICIARY COMMITTEE, Subcommittee No. 3, Subcommittee on Copyrights, House of Representatives, Washington, D.C.
DEAR SIRS : The Associated Publishers, Inc., respectfully urges the Subcommittee on Copyrights, in its work of updating the copyright law of 1909 to give adequate protection to publishers of educational materials. We urge that the principle of "fair use" be followed—a principle that will permit the use of selected quotations and excerpts and their reproduction, while at the same time safeguarding the copyright of the publishers. Without such a safeguard, a copyright might mean little.
Moreover the lack of adequate copyright protection would be especially harmful to non-profit-making publishers, such as the Associated Publishers, a subsidiary of the Association for the Study of Negro Life and History.
If our materials were subject to copious reproduction without our consent and permission, our single-minded goal of better informing the public, of diffusing knowledge, might well be seriously attenuated.
It should be added that we of the Associated Publishers are fully cooperative in granting requests for the reproduction of our materials, levying no charge for such permission to reprint. We are most anxious to have others know of our materials and to make use of them-hence as a matter of policy we grant reprint permission.
1 Columbia University.
The overwhelming mass of educators are honest men and women who would not abuse a republishing service. But without a "fair use" principle in copp. rights a small number of unscrupulous operators could threaten the financial stability of many publishing companies, particularly those which specialize in educational materials. Moreover, such an unhappy occurrence would constitute a disservice to schools and colleges, curtailing the volume of published materials which are the lifeblood of the curriculum. Sincerely yours,
BENJAMIN QUARLES, President.
DEPARTMENT OF STATE,
Washington, September 10, 1965. Hon. EMANUEL CELLER, Chairman, Committee on the Judiciary, House of Representatives.
DEAR MR. CHAIRMAN : The Canadian Embassy has transmitted to the Depart. ment of State the attached letter from the executive secretary, Association of Canadian University Teachers of English, with the request that the Department forward it to the House subcommittee considering revision of copyright legislation.
Accordingly, we are transmitting the letter to you for consideration by Subcommittee No. 3 of your committee. Sincerely yours,
DOUGLAS MACARTHUR II. Assistant Secretary for Congressional Relations.
ASSOCIATION OF CANADIAN UNIVERSITY TEACHERS OF ENGLISH,
Ottawa, Ontario. THE CHAIRMAN OF THE JUDICIARY SUBCOMMITTEE ON COPYRIGHT, House of Representatives, Washington, D.C.
DEAR SIR: At a meeting of the Association of Canadian University Teachers of English held in Vancouver June 15–17, the following resolution was unanimously adopted :
“Whereas a bill known as H.R. 4347, for the general revision of the U.S. copyright law, has been proposed in the House of Representatives in Washington; and
“Whereas bill H.R. 4347 contains clause 601, which effectively deprives both American citizens and Canadian citizens and other foreigners domiciled in the United States of the protection of copyright in 'nondramatic literary material' unless the publication was 'manufactured in the United States'; be it, therefore
“Resolved. That the President of the Association of Canadian University Teachers of English write to the chairman, and send copies of his letter to all members of the Judiciary Subcommittee on Copyright, U.S. House of Repre sentatives in Washington, urging the deletion of the manufacturing clause' from the proposed law, in the interest of freedom of speech and the spread of knowledge."
I am sure that you will recognize the importance of the issues involved, for American writers and academics as well as for those from Canada and elsewhere, and for the principle of free speech. I ask for the thoughtful consideration by your committee of the intent of this resolution. Yours respectfully,
NEW YORK, June 10, 1965. Hon. EDWIN E. WILLIS, Chairman, Subcommittee No. 3, Committee on the Judiciary, House of Representatives, Washington, D.C.
DEAR SIR: As chairman of the committee on copyright of the Association of the Bar of the City of New York, I respectfully request that this letter be made part of the record of the hearings on H.R. 4347 and other bills relating to copsright revision.
The committee on copyright deems a complete revision of the copyright law not only desirable but long overdue. The committee unanimously favors the provisions of H.R. 4347 which accomplish the following:
1. The establishment of a unified Federal system of protection which abolishes common law copyright for all writings.
2. The extension of copyright protection against actual physical duplication of sound recordings (“dubbing"), with some clarification of language so that recordings would not inadvertently be granted protection against other types of use.
3. The repeal of the present exemption of jukebox operators from the payment of copyright royalties.
4. Recognition of the decisional law which requires registration only as a prerequisite to infringement suit and the disallowance of the extraordinary remedies of statutory damages and attorney's fees for infringements of copyright commenced before registration, unless, with respect to pub
lished works, registration is made within 3 months after publication. The committee also unanimously favored deletion of the manufacturing clause. Respectfully,
SYDNEY M. KAYE.
WEST VIRGINIA UNIVERSITY,
Morgantown, June 18, 1965.
MY DEAR MR. CELLER: I am very much interested in H.R. 4347, which I understand is now under consideration by the House Judiciary Committee.
I enclose a memorandum in which I raise certain questions from the viewpoint of a university teacher and researcher.
My particular interest in this bill is the result of my service during the past 4 years as chairman of a committee on copyrights created by the graduate faculty of West Virginia C'niversity. This committee is especially concerned with the protection of literary rights in graduate theses and dissertations. In addition, I direct some 10 doctoral dissertations in history each year, with the concurrent responsibility for advising my graduate students concerning their rights and obligations under the copyright law.
As Congress considers a general copyright law revision, I hope that it will include specific provisions that can be applied to the effective protection of unpublished theses and dissertations. As we know, the literary output from our colleges and universities is extensive and is steadily growing.
The young scholar depends to a large degree upon his doctoral dissertation for at least his early professional employment and advancement. Yet many librarians are apparently unaware of or indifferent to the common-law rights in unpublished manuscripts, and frequently they treat theses and dissertations as though they were in the public domain. The consequences of this cavalier attitude toward other persons' property are: (1) a good deal of plagiarism and piracy; and (2) unauthorized and extensive reproduction, possibly resulting in "publication" of the author's work without his knowledge or consent.
Thus I welcome the proposed extension of Federal statutory protection and registration to unpublished books and articles as contemplated in chapter 3, section 303 of H.R. 4347. (The general public appears to be unaware of the present common-law protection afforded to unpublished works.) At the same time, I fear that some libraries may interpret the "fair use" provision (ch. 1, sec. 107) as authority for illegal reproduction of manuscripts in their possession.
The principal addition to the bill that I would respectfully urge is a provision that no unpublished work may be photoduplicated or otherwise reproduced without the consent of the author or his heirs. This section or subsection should specifically hold a library responsible for any copying of literary property without the permission of its author or creator.
The two provisions of the bill that I consider most umdesirable from the academic viewpoint are:
(1) The extension of the term of copyright to the life of the author plus 50 years. This could make unavailable for decades material that scholars nerd to quote for perfectly legitimate purposes in their books and articles.
(2) The laxity permitted with respeut to the location of copyright notice on published works. I hope that the Congress will retain the present provisions of the United States Code, title 17, chapter 1, section 20, with respect to copr. right notice on books, periodicals, etc. Sincerely yours,
WILLIAM D. BARNS,
MEMORANDUM RE H.R. 4347 AND S. 1006, “FOR THE GENERAL REVISION OF THE COPYRIGHT LAW, TITLE 17 OF THE UNITED STATES CODE, AND FOR OTHER PURPOSES"
(By WILLIAM D. BARNS) This memorandum will set forth in detail my suggestions and criticisms (0cerning certain sections of H.R. 4347 and S. 1006.
Section 101, page 3, lines 31-33, defining the term “publication"
The words "or other transfer of ownership" might be considered a bit vague. Would a general public distribution of a work, even though no actual sale is involved, continue to be regarded as a publication? If so, would it not be advisable to state this contingency in the law? Otherwise I fear we may face future cases involving the interpretation of limited versus general distribution, similar to White v. Kimmell et al. (1952).
Might the word “lending" be further defined? Let us suppose that the author of an unpublished manuscript lends the manuscript to a colleague, critic, or student, and the recipient of the loan plagiarizes the manuscript. Does the infringer have a legal loophole here? In other words, could the infringer claim that lending constituted publication and that publication without copyright notice placed the material in the public domain? Section 107, concerning "fair use"
I welcome the statutory recognition of the doctrine of fair use, but I wish this section might be amplified. H.R. 11947, introduced in the 2d session of the 88th Congress, made some attempt to define the term.
One vexatious problem faced by the reputable scholar is the extent to which he may legally quote from a published work under statutory copyright protection, without permission from the copyright owner or proprietor. A related problem is whether he may quote at all from an unpublished manuscript (for example, from a letter in the manuscripts division of a library) without permission from the author or his heirs. Assuming that H.R. 4347 applies the doctrine of fair use to unpublished manuscripts, we are still in the dark as to the permissible extent of quotation.
The other horn of the dilemma (and the more serious one) is that some librarians, unaware of or indifferent to the present protection afforded to unpublished manuscripts under the common law, assume that an unpublished work not bearing a copyright notice is in the public domain and permit unauthorized and extensive reproduction of it. Some libraries will, without the permission of the author, sell microfilm copies of a graduate thesis or dissertation to any and all applicants. This practice is frequently applied also to collections of prirate letters and other papers that libraries acquire. In this way an author may find that his work has been published by photoduplication without his knowledge or consent. I fear that a general statement on "fair use" might be construed as permitting a continuation of this practice, even though statutory protection is extended to unpublished works.
I rould respectfully urge that the lawr contain a prorision that no unpublished work may be photoduplicated or otherwise reproduced without the consent of the author or his heirs. I would specifically hold a library responsible for any unauthorized copying in which it may engage. Some libraries attempt to pass the responsibility to the recipient of the copy that they make.