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lic.” 126

right Act offers no guidance as to the meaning of “publication," courts must rely on judicial precedents which evolved at a time "when the publication of copies was virtually the only means of making a work available to the pub

The facts in King graphically illustrate the revolutionary devices man has developed for “exploiting" his literary and artistic works since the invention of the Gutenberg press and, for that matter, since Marconi, Morse and Bell. Nevertheless, courts have generally followed the rule of Ferris v. Frohman that performance does not forfeit common-law rights, even though such a re sult has been criticized as being in derogation of the constitutional "limited times" mandate and as abhorrent to the central theme of copyright.

Selvin concluded that relief or change from the doctrine of perpetual protection of unpublished performances of literary and artistic works- if it comes at all-will probably have to come from Congress. Even Nimmer, adhering to the logic of Judge Hand's dissent in Capitol Records, believes that determinations as to unpublished works should be governed by a single federal statute rather than left to the vagaries of common-law interpretations in the fifty states. Morrison sums up the need for up-dating the definition of “publication” concisely and force. fully: "this old 'war horse' has had its day.” 120

Beginning in 1955, the Copyright Office of the Library of Congress, pursuant to ear-marked appropriations by Congress, has been conducting comprehensive studies of copyright law and practices. One of these studies, entitled "Protection of Unpublished Works,” by William Strauss, provides a "valuable contribution to a better understanding of copyright law and practice and will be extremely useful in considering the problems involved in proposals to revise the copyright law.” 130 The study explores the history of protection of unpublished works, both at common law, in early state statutes and in federal statutes, the case materials on what constitutes publication, the various legislative attempts to bring unpublished works into our statutory system, how other countries have solved the problem, its relation to the Universal Copyright Convention and comparative treatment under other Conventions. Three alternative proposals for the revision of the present system of protecting unpublished works are discussed :

(1) To continue the system of alternative protection under the common law or by voluntary registration under the statute, but with the privilege of registration being extended to all classes of unpublished works.

(2) To extend the concept of publication to include all methods of public dissemination, by protecting under the statute all works made available to the public in any manner, and to limit common law protection to works which have not been made available to the public.

(3) To eliminate protection under the common law and to provide only for statutory protection for all unpublished as well as published works from creation.

Alternative No. 1, which proposes the least radical change, would “end the discrimination against those classes of unpublished works not now enumerated in Section 12. so that authors or owners of all classes of unpublished works would be entitled to secure statutory copyright voluntarily." 152 However, as Strauss points out, the presently existing uncertainties in regard to what constitutes publication would remain, and unpublished works not voluntarily reg. istered, though widely disseminated by performance or exhibition, would continue to have perpetual protection under the common law. Alternative No. 3 differs from alternative No. 2 in that it would discontinue common-law protection entirely, even as to works not publicly disseminated in any manner, and extend the statute to cover all works from their creation. Strauss poses the question whether control and use of private papers, before public dissemina

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125 HOUSE COMM. ON THE JUDICIARY, 87TH CONG.. 1st Sess., REPORT ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW 40 (Comm. Print 1961).

127 Selvin, Should Performance Dedicate?, 42 CALIF. L. REV. 40, 51 (1954).

128 Letter from Melville B. Nimmer to U.S. Copyright Office, July 8, 1958, in Strauss, Protection of Unpublished Works, Study 29 U.S. COPYRIGHT OFFICE, GENERAL REVISION OF THE COPYRIGHT LAW 50 (1957).

129 Morrison, Copyright Publication and Phonograph Records, 48 GEO. LJ. 683, 708 (1960).

130 O'Mahoney. Foreword to SUBCOMM. ON PATENTS, TRADEMARKS, AND COPYRIGHT, SENATE COMM. ON THE JUDICIARY, S6TH CONG., 20 Sess., GENERAL REVISION OF THE COPYRIGHT LAW at III (Comm. Print 1960).

131 Strauss, supra note 128, at 28. 132 1. at 37.

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tion, are local matters that should be left to state regulation and trial in the state courts.15

This writer agrees with the choice of alternative No. 2, made in 1961 by the Register of Copyrights,134 as the soundest solution to the problems of public rerformance discussed in earlier sections of this article. Alternative No. 3 is now favored by the Register of Copyrights and has been incorporated in the omnibus copyright revision bil1.135 which was introduced on July 20, 1964, by Representative Emanuel Celler, Chairman of the House Judiciary Committee, and Senator John L. McClellan, Chairman of the Senate Patents, Trademarks and Copy. rights Subcommittee. Although alternative No. 3 is very appealing from the point of view of symmetry and clarity, it seems that “there are overbalancing reasons to preserve the common law protection of undisseminated works until the author or his successor chooses to disclose them.” 136 There is some merit to the arguments that “we should go slow in trying to replace a traditional word like 'publication' with a word like dissemination'” 187 and that we "don't know where we're heading ... if a brand new concept of dissemination is injected into the law.” 1 A suggestion which merits further study is framing a clear definition of “publication,” 19 without the necessity of creating another word, "dissemination," which would embrace any method by which a work may be communicated to the public, including reproduction and distribution of visual or acoustic copies, "live" or recorded or broadcast public performances, or public exhibition. Furthermore, a hearing should be conducted to determine the validity of the contention that the transitory and evanescent nature of the performance of some works, such as plays and speeches, makes such a proposal administratively unworkable and impractical.

In the meantime, the courts should strive to achieve a better accommodation of interests in applying the traditional concept of “publication” to modern-day methods of dissemination of literary and artistic works. We end, as we began, with the statement that the King case presented the court with a picture all too familiar in copyright litigation: a legal problem (procedural, jurisdictional as well as substantive) vexing in its difficulty; a dearth of squarely applicable modern-day precedents to a business setting made common by twentieth-century technological innovation; and an almost complete lack of guidance from the terms of the Copyright Act. It is to these problems that Congress must address itself in any revision of the copyright law.

LAW OFFICE OF ORR, ISAKSEN, WERNER LATHROP & HEANEY,

Madison, Wis., May 5, 1965. CHAIRMAN, SUBCOMMITTEE NO. 3. House Judiciary Committee, Cannon Office Building, Washington, D.C.

DEAR SIR: While the proposed revision of the Federal copyright law (H.R. 4347) has been under consideration for some time by the Copyright Bar and a portion of the Patent Bar, it is safe that very few general practitioners know of the existenie of the proposed revision and that an even smaller number know that the bill proposes to drastically change one of the fields of property law which is long been within the domain of the general practitioner.

I suspect that if the bill is enacted in its present form, general practitioners will be astounded to learn

(a) That the property rights in writing such as letters, memoranda, photographs, diaries, etc., exist only by virtue of Federal law (secs. 102, 104(a), 301).

(b) That an engineer or artist whose uncompleted drawings, which have been worked on for months, had been stolen and copied in part could not bring suit to recover damages for infringement of the copyright because registration is a prerequisite to suit and because he does not have a complete copy of the work available for registration (secs. 407, 410, and 301 (a)).

192 J. at 41.

134 HOUSE COMM. ON THE JUDICIARY, 87th CONG., IST Sess., REPORT ON TIIE GENERAL REVISION OF THE U.S. COPYRIGHT LAW 43 (Comm. Print 1961).

136 S. 3008, ILR. 11947. SSth Cong., 2d Sess, (1961). 136 HOUSE COM. ON THE JUDICIARY, 87TH CONG., 1ST SESS., op. cit. 81 pra note 134, at 41.

137 HOUSE COMM. ON THE JUDICIARY, 88TH CONG., 1st SESS.. DiscusSION AND COMMENTS ON REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPY. RIGHT LAW pt. 2, at 84 (Comm. Print 1963).

136 Id. at 78. 139 Id. at 74.

(c) That if the unpublished works were stolen and destroyed and never copied, no relief could be obtained under Federal law unless the works were identically remade and registered ; and that no damages could be obtained under local common law for the value of the property rights in the writings, since the writings exist only by virtue of Federal law. In some instances the writing can never be duplicated as where the author is deceased.

(d) That if a party deliberately and wrongfully copied an unpublished drawing or manuscript the author could not recover exemplary damages for the deliberately wrongful act. The bill permits recovery of certain statutory damages only as an alternative to actual damages resulting from infringements commencing after registration (secs. 411 and 501).

(e) That a local photography studio, which has a damage claim of $300 for copying of portrait made by the studio, could not bring a small claims court suit to recover his damages, but would have to register his photograph and then bring suit in the Federal court.

(f) That if a will of a testator provided that all of the testator's unpublished diaries shall be given to X and the balance of his estate shall be

given to Y, Y gets the copyright with respect to the diaries (sec. 202). Whenever there is an attempt to codify and replace common law rights, ex: treme care sho be taken in drafting the code. If there is not the time or the disposition to take this care, then the time-honored practice of simply changing the common law in part should be followed.

The arguments made by high authority for the proposed Federal codification and replacement of the States' common law property rights in unpublished writings by H.R. 4347, that I have heard, are as follows:

(a) That copyright lawyers need not be concerned with small claims and that lawyers should not worry about matters which are not of great financial concern to them ;

(b) That the author who has his unpublished works stolen even though they represent thousands of dollars worth of effort could rewrite the works and remake them in order to have them registered so that he can bring suit ;

(c) That there is no right to recover exemplary damages under the common law of the various States;

(d) That Federal codification and replacement of the State laws is necessary to enable historical libraries to permit publication of diaries and other personal papers which have been deposited with the library: and

(e) That Federal protection for unpublished works is necessary for valuable works such as unpublished motion pictures. The answers to these arguments are obvious :

(a) Any government should be as concerned with the rights of the impecunious as the affluent;

(6) The remedies provided by any government should be sure and unencumbered ;

(c) Most States do by common law permit recovery of exemplary damages (see Luther v. Shaw 157 Wis. 234, 147 VW 18; Fuchs v. Kupper 22 Wis. 2d, 109, 125 NW 2d, 360);

(d) If there is a public policy permitting copying of works deposited in libraries this can largely be remedied by providing that the deposit in the library constitutes publication, and

(e) Registration for unpublished works may be optional, and when registered, the copyright of the works is governed by Federal law. I therefore submit1. That section 104(a) should be changed to read :

“(a) UNPUBLISHED WORKS.—The works specified by sections 102 and 103, while unpublished and registered, under this title, are subject to protection under this title without regard to the nationality or domicile of the author."

2. That section 106 (a) be changed to read as follows:

(a) GENERAL SCOPE OF COPYRIGHT.-Subject to sections 107 through 114, the owner of copyright protected under this title has the exclusive rights to do and to authorize any of the following:”

3. Section 301 (a) should be changed to read :

“(a) On and after January 1, 1967, all rights in the nature of copyright in works which are subject to protection under this title are governed exclusively by this title."

4. That subsection 301 (b) (1) be changed to read : “Unpublished material that is not protected under this title.”

5. That subsection 302(a) be changed to read :

“(a) IN GENERAL.-The copyright protection afforded by this title, except as otherwise provided by this title, endures until the end of fifty years after the death of the author, or until the end of ten years after publication of the work, whichever time is later."

Similar changes should be made in subsections (b) and (c) and section 303.

6. The definition of publication contained in section 101 should be enlarged so as to include the following additional matter:

"All unpublished works, which on the first day of January 1975, or on the first day of any succeeding 25-year period, have been on deposit in a public library or a library maintained by any nonprofit college, university, or historical society, located in the United States, for at least fifteen years, shall be deemed published as of the beginning of such day unless within the three-year period immediately preceding such day the owner of any interest in the copyright for such work files with the Copyright Office a written objection to having such work deemed published. Any person who makes such objection may by a writing filed with the Copyright Office, waive such objection and when so waived it shall be deemed that such objection shall have no effect whatsoever."

7. Another sentence should be added to section 401 (a) which would read as follows:

"If the publication results solely from the fact that the work has been on deposit in a library, no notice of copyright need be affixed to said work."

You will note that it is suggested that protection be given for a limited time after publication regardless of the time of death of the author. To induce revelation of works for publication, a financial reward is necessary. A publisher would not want to take the gamble of publication unless he had some protection.

Also, Congress should take care that it does not attempt to destroy existing common law copyrights as would be done in the proposed bill.

There are other problems of great importance.

The provisions making registration anything more than a certificate of deposit in the Library of Congress of the proper copies are contrary to good public policy. The Government should not attempt to determine the validity of a copyright in an ex parte proceeding, and therefore should not make the certificate prima facie evidence of validity. Inevitably an examination system will result from the present provisions of sections 407, 408, and 409 which will in a financial way discourage many persons from seeking registration-a poor policy from every standpoint. Very respectfully yours,

TRAYTON L. LATHROP.

LOS ANGELES, CALIF., May 18, 1965. Re H.R. 4347. Hon. EDWIN E. WILLIS, Chairman, House Committee on the Judiciary, House of Representatives, Washington, D.C.

DEAR CONGRESSMAN WILLIS: In this letter I wish to submit for the consideration of your committee a modification of the proposed copyright law, which will preserve to members of the public certain limited rights to use copyrighted literary material under the doctrine of fair use when the use is by means of a computer. My proposal is based upon the thesis, that the use of a computer to perform an act which is otherwise a fair use, should also be a fair use.

The problem is concerned with the extent to which the recording and use of copyright material in computers or other automatic data processing systems constitutes an infringement of a copyright. My views have been set forth in considerable extent in an article entitled “Copyright Aspects of Computer l'sage," the Bulletin of the Copyright Society of the U.S.A. (vol. 11, No. 6, 1964, pp. 380-403). A copy of that article is enclosed for your use and information.

In writing to you at this time I do not speak on behalf of any organization or of any client. I speak to you only because for many years I have been interested in the potential uses of computers and other automatic devices in the analysis and dissemination of information and especially in the interrelationship of computer technology and the law.

"

The main thesis which I wish to impress upon you and to urge for your consideration is summarized as follows:

1. Today there are many uses of copyrighted material which can be made without liability to the copyright owner. Such freedom of liability arises particularly where the use is a "fair use."

2. Because of advances in modern information technology, it will soon be possible to distribute the benefits of such fair use more widely and expeditiously through the media of computers and other data processing systems.

3. The copyright law should make it clear that a use which has heretofore been a fair use will continue to be a fair use even though computers and other automatic processing systems are employed in performing the

acts leading to that fair use. In order to make it possible to use computers and other automatic information processing systems to perform acts which would otherwise be considered a fair use, I propose that you give consideration to amending section 107 of H.R. 4347 by adding the following provision :

“To the extent that copyrighted material is recorded in computer readable form in an automatic information processing system and is used to generate and disseminate information in a manner which would be considered fair use if an automatic information processing system were not involved, such recording and use shall be deemed to be a fair use."

The adoption of the foregoing suggestion would, in my opinion, not take from the copyright owner any rights which he now has. It would only preserve the rights which members of the public now have, to perform certain acts under the doctrine of fair use, even though those acts are performed with the aid of computers instead of with pen and paper or instead of with typewriter or printing machine, as is common at the present time.

The proposition to preserve (or extend) fair use to the computer field would apply particularly to books. Under the present decisional law, there is ample authority to the effect that all of the following acts are fair use :

1. The citing of parts of the work where desired information may be found.

The copying of “short quotations" from the work.
3. The preparation of an index to a work.

4. The preparation of abstracts of a work. All of these fair uses have one thing in common: the item produced does not displace the original copyrighted work and is not sold to the reading public in competition with the original copyrighted work. On the other hand, certain other acts are not fair use. Such acts include:

1. Rewriting the book in some other form, such as rewriting a story as a drama.

2. The preparation of an extensive synopsis. Today it is a simple matter for data processing systems to be used to refer people to the portions of texts where they can find information. Such use does no harm to the copyright owner. In fact, it benefits him. They can also be used to index the work thoroughly.

Publishers have shown little inclination, if any, to publish such indexes. Computer generated indexes are far more useful than indexes usually found in books.

There are many organizations that are devoting energy, time and funds to the development of methods for automatically abstracting literary material, whether they be in the form of articles or the like. The preparation and dis. semination of abstracts can automatically accelerate the development of interest in the original work.

Under my proposed revision of section 107, it would be permissible to record copyrighted material in computer readable form in an automatic information processing system without being held liable for performing that act alone. And the person who does so would be liable for the use of that information only when the record is employed to generate and disseminate information beyond the bounds of fair use. In other words, the recording of the text of literary material or other copyrighted material in an automatic information processing system would itself not render the recorder liable for infringement. Only the

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