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The overwhelming mass of educators are honest men and women who would not abuse a republishing service. But without a "fair use" principle in copy. 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 Department 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.O.
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 coprright 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 University. 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, tion 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 imdesirable 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 need to quote for perfectly legitimate purposes in their books and articles.
(2) The laxity permitted with respect 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 coprright 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 concerning 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 private 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 would respectfully urge that the lawr contain a provision 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.
Section 302, subsection (a)
I fear that scholarly activities in the United States will be greatly impeded if the term of copyright becomes life of the author plus 50 years. This section, plus section 304, could delay the publication of monographs, articles, etc., by making unavailable for many additional years possible quotations from copyrighted works published since 1906.
College and university faculties and graduate students frequently need to quote from copyrighted publications in order to buttress statements of fact, to comment critically upon the conclusions of others, or to compare differing viewpoints. In a single book of a scholarly nature it may be necessary to include perhaps 100 quotations or more. Even under the present possible 56-year copyright term, this is often extremely difficult or even impossible.
For example, with respect to a work bearing statutory copyright notice, the publisher may have gone out of business, the author may have died, and the author's heirs may be impossible to locate. In that case, one has either to omit a necessary quotation or wait until the copyright expires. As another example, occasionally an author or his heirs do not wish to permit quotation; here again one must wait until the material enters the public domain. H.R. 4317 would lengthen the period during which works might not be available for scholarly use.
The present possible statutory copyright term of 56 years gives adequate protection to most authors. As I understand it, the purpose of the American copyright system, as expressed in the Constitution of the United States, is to “promote the Progress of *** useful Arts, by securing for limited Times to Authors * * * the exclusive Right to their respective Writings ***”. It is not to extend that right almost indefinitely or to create a copyright monopoly.
In the academic profession, the main purpose of copyright is not to provide pecuniary reward, but to prove authorship of material and to prevent others from plagiarizing, pirating, or otherwise improperly claiming authorship of their work. Most scholars produce the majority of their published work after the age of 30.
Under the present law they can be protected to age 86 if they publish at 30. This arrangement provides adequate proof of authorship (and sufficient time for royalties, if there are any).
If some authors and composers are in financial need, could not they be pensioned by a grateful Republic? I cannot see the justice in abandoning our traditional American copyright system in order to perpetuate royalties for a half century after the death of certain creators of literary and musical compositions.
As for the argument that the extension of the copyright term will reconcile our law with the practice of most foreign nations, I would submit that at the time the United States became a party to the Universal Copyright Convention, the U.S. Senate was assured that ratification would not mean the abandonment of the distinctive American copyright system. It is my understanding also that one reason for the decision of the United States not to join in the Berne Conven. tion was the provision in that convention that copyright should extend for the life of the author plus 50 or more years. Section 303
The extension of Federal statutory protection to unpublished works is one of the most commendable features of the bill, because the general public appears to be unaware of the protection now afforded to unpublished works under the conimon law.
Obviously Congress can provide only a framework of law, under which the Copyright Office must issue regulations prescribing or suggesting means of administration. Nevertheless, I am wondering how this section can be enforced in certain cases.
For example, let us assume that in 1960 John Doe submitted a 500-page unpublished doctoral dissertation (typewritten and bound) to Midwestern University in partial fulfillment of the requirements for his Ph. D. degree. In 1967 he wishes to register his unpublished dissertation with the Copyright Office in order to comply fully with the revised copyright law. He has no extra copy of his dissertation to send to Washington, and it would probably cost him several hundred dollars to have another copy typed and bound. How could the author reasonably comply with chapter 4, section 407, subsection (b)? Furthermore, if after regis tration of an unpublished work in compliance with section 303 a registration notice should then appear on the unpublished work, would John Doe have to type this notice on his title page or its verso? If so, this would necessitate the breaking of the binding on all copies of his dissertation. Could a registration notice be inserted by pasting or by use of a stamp?
Or let us assume that an unpublished letter has been deposited in a library, and the heirs of the author or writer of the letter wish to register the letter with the Copyright Office. There are no copies of the original letter; in other words, it is unique. Let us assume further that the margins on the letter are inadequate in size to permit the addition of a registration notice without endangering the legibility of the letter itself. Would a photographic copy of the letter then be acceptable for registration purposes? How could a registration notice be affixed to the original letter? Section 304
This section, along with section 302, would create an overly complicated formula for determining the status of copyrighted material. Among the factors involved would be, presumably
(1) Whether the copyright was in its first term on January 1, 1967.
(2) Whether the copyright was in its renewal term in 1962, when Congress continued until December 31, 1965, renewal terms that were about to expire.
(3) Whether the copyright was in its renewal term on December 31, 1965, or was renewed prior to January 1, 1967.
(4) Whether the copyright was secured on or after January 1, 1967. Should this formula become law, scholars and students would probably hare need to carry a print of the copyright law with them at all times.
Section 401, subsection (c)
I consider it extremely unwise to abandon the provisions of the present U.S. Code, title 17, chapter 1, section 20. At least under the 1909 copyright law one knows where to look for the copyright notice in a book or periodical.
Section 401 would even permit an author or publisher to insert a copyright notice in a location not prescribed by the Copyright Office. Presumably under section 401 a copyright notice could be placed on the last printed page in a book or on page 13 of a contribution to a periodical. Then the courts would have to decide whether this is a "reasonable notice."
Where new classes or types of copyrightable material have been developed since the enactment of the Copyright Act of 1909, they could of course be covered by regulations issued by the Copyright Office. Section 407, subsection (6)
If the author of a 500-page unpublished doctoral dissertation created in 1960 has no extra "complete copy" to send to the Copyright Office for registration deposit, is there some alternative method by which he could comply with the law? Or what of an original letter or other unique manuscript in a library? Section 411, concerning the necessity of registration before certain remedies for
infringement are available Let us suppose that an unpublished work was created in 1960.
(1) Let us suppose that infringement of this work occurs before January 1, 1967. I assume that in this case, defense under the common law is still possible, according to section 11 of “Transitional and Supplementary Provisions."
(2) Let us now assume that the author registers his unpublished work with the Copyright Office on March 1, 1967. Meanwhile, an infringement occurs on February 1, 1967. Does the author who fails to register his unpublished work exactly on January 1, 1967, face the danger of a “twilight zone” and possible loss of certain remedies at law?
Section 704, subsection (6)
Frequently the author of an unpublished work prefers to restrict its use or circulation because it contains an original idea or discovery or a hitherto untapped source of information. If he deposits a copy with the Copyright Office, the Library of Congress can add the deposit to its collections, which presumably would be open to the public. Since an idea is not itself copyrightable, I wonder