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tiated thousands of law suits on the grounds that use of similar words precludes the use of information and ideas even though similarity of phrasing is often unavoidable, particularly in the case of research material.
I have here an interesting publication of the American Council on Education. which is a primary research contractor for the Office of Education. Its members, practically all of the leading colleges and universities are the Government's major academic research contractors.
This report, which I am sure is available to your committee, is especially interesting because it was prepared under a grant from the Office of Education and was copyrighted as the private property of the council. What is ironic about this publicly financed work is that it recommends that schools and teachers should have the right to place copyright restrictions on research and instructional material funded by local, State, and Federal agencies.
In the past, as far as I am aware, it has not been the custom of public school systems or teachers to resort to copyrighting of educational materials. Although occasionally practiced, it was inconsequential or haphazard.
What we have now is a situation in which a report financed by the U.S. Office of Education is encouraging public school systems as well as teachers to place copyright restrictions on practically all types of instructional material which is now being financed by the Office of Education, the National Science Foundation, NASA, AEC, and others. That copyrighting happens to have all sorts of restrictive features is set forth in the report in great detail. The extent to which the report admits that copyrighting handicaps the educational proeess in all sorts of ways should also be noted.
On page 17, for example, it refers to the psychologically restricting effect of a copyright notice. In discussing educational broadcasting on page 4, it is stated that "* * * professors have had to discover how complex and frustrating can be the problem of tracing copyright ownership of the materials they wish to use in their broadcasts and of arranging for their release for educational uses.” The same difficulty applies also in tracing copyright ownership of materials in other media. Yet, on page 3, it is stated that “if the maximum benefit from educational programs is to be achieved, provision should be made for the widest possible use of such programs.” It appears to me that allowing restriction through copyrighting is inconsistent with our objective of seeking the widest possible dissemination of Government-financed knowledge.
We should not be surprised when any vested interest group resorts to misrepresentations for self-serving ends, but I trust that Members of Congress will recognize that such ends are diametrically opposed to the protection of the public interest sought by the Long amendment.
(From the Washington Post, Aug. 8, 1965)
IN THE PUBLIC DOMAIN When the public pays for research, the research properly belongs to the public. The Commissioner of Education, Mr. Keppel, has now adopted that rule without qualification. Since the Federal Office of Education is currently distributing nearly $100 million a year in research funds, the question of copyrights and patents is not wholly academic.
The most valuable research, in the commercial sense, will probably be that bearing on the development of new curricula and textbooks. The Office of Education anticipates that its policy will mean faster dissemination of new ideas; the authors and publishers of textbooks will be able to use this federally financed prototypes without fear of copyright infringement. However interesting the research reports may be to theorists, they will have practical effect only as they re schools and children. They will be put to use more quickly, and more widely, because they will now lie in the public domain.
EXCERPT FROM STATEMENT (P.2) BY ROBERT T. JORDAN OF THE COUNCIL ON LIBRARY
RESOURCES AND ADVISOR TO THE COMMITTEE ON COPYRIGHT ISSUES OF THE AMERICAN LIBRARY ASSOCIATION ON H.R. 4347, A BILL FOR GENERAL REVISION OF THE COPYRIGHT LAW, FEBRUARY 25, 1965
This section (sec. 8 of the copyright law) should be broadened to include publications resulting from contracts with the U.S. Government. There is no reason why an author should be paid twice, once by the U.S. Government, under contract, and a second time, from personal royalties. Also, if it is a valid principle to preclude copyright on work paid for by the U.S. Government, either by employees or under contract, it would seem equally valid to prohibit copyright on any work paid for by any governmental unit or nonprofit group. This would increase the amount of material in the public domain.
(NOTE.—This was appended to a statement by Charles Gosnell before the House Committee on the Judiciary, Subcommittee No. 3. Mr. Gosnell is chairman of Committee on Copyrights of the American Library Association, director of the library of New York University, and former assistant commissioner of education of New York State.)
THE HARRY S. TRUMAN LIBRARY INSTITUTE FOR
THE HARRY S. TRUMAN LIBRARY,
Independence, Mo., May 14, 1965. Hon. EMANUEL CELLER, House of Representatives, Washington, D.C.
DEAR CONGRESSMAN CELLER: There is enclosed a copy of a resolution adopted by the board of directors of the Harry S. Truman Library Institute at its annual meeting on April 24, 1965. As secretary of the board I would wish to call your attention to this resolution, which deals with an aspect of the revision of the copyright law that we think is of great importance to freedom of research.
The directors of the institute would greatly appreciate your favorable attention to the content of this resolution. It is similar to one recently adopted by the Council of the Society of American Archivists. Very sincerely,
PHILIP C. BROOKS, Secretary.
RESOLUTION ADOPTED AT THE ANNUAL MEETING OF THE BOARD OF DIRECTORS OF THE
HARRY S. TRUMAN LIBRARY INSTITUTE, INDEPENDENCE, Jo. Resolved:
1. That the new copyright law include a provision that will permit libraries, archives, and other repositories to microfilm or otherwise make facsimiles of manuscripts for the purpose of depositing copies in other institutions. (This would not adversely affect copyright interests in the manuscripts in any way. It would, in effect merely extend the repository's ability to show its manuscripts to scholars and others, and at the same time would make it possible to house security copies at a distance from the originals.)
2. That the new law include a provision, which will automatically limit the duration of literary property rights to the author's lifetime plus 25 years, or to 50 years from the date of origin of the writing, in cases where the death date of the author is unknown, unless those rights are protected by registering them with the Copyright Office, in which case the longer period of protection shall apply. (This would make more readily available to scholars and others a vast amount of ma. terial that has little or no monetary value but which may be of vital concern for research in such fields as literature and history.)
PHILIP C. BROOKS, Secretary. APRIL 24, 1965.
New York, N.Y., September 21, 1965. Re H.R. 4347, section 404(a). Hon. HERBERT FUCHS, Counsel, Committee on the Judiciary, House of Representatives, Washington, D.C.
DEAR SIR: My name is Franklin Waldheim and I am eastern counsel of Walt Disney Productions. A copy of the accompanying statement has been signed by the following members of the Copyright Bar-in their individual capacity and, where indicated, on behalf of the organizations specified opposite their
Representing Spencer C. Olin, Elliott H. Levi. Walt Disney Productions.
tas, and myself. Julian T. Abeles.
Music Publishers' Protective Association, Inc.
Harry Fox, agent and trustee. Leon Kellman.-
American Guild of Authors & Composers. Harriet F. Pilpel..
American Society of Magazine Photographers.
Society of Magazine Writers.
Composers & Lyricists Guild of America, Inc.
FRANKLIN WALDHEIM, Attorney at Law and Counselor at Lair.
COPYRIGHT--AND THE DEATH PENALTY Since 1802 our law has required some form of copyright notice. The public has been accustomed to seeing it and, while other countries get along very well without it, it does not seem in order to dispense with this tradition. However, failure to affix the copyright notice results, under our present law, in forfeiture of the copyright. This has seemed to be a cruel punishment to inflict for such a trifling offense.
The Register of Copyrights, in his supplementary report on the general reri. sion of the copyright law, states that sections 401 through 405 of the pending bill "represents an effort to preserve the values of the copyright notice by inducing its use, while substantially ameliorating the effects of accidental or even deliberate errors or omissions." These sections do, indeed, offer some escape from the harsh severity of the present law but leniency is afforded only under conditions with which it may sometimes be impossible to comply.
Section 404 provides that omission of the notice does not invalidate the cops. right—but only if the notice has been omitted from no more than a relatively small number of copies or if registration has been made within 5 years after publication (and a reasonable effort is made to add the notice after the omission has been discovered). Suppose, then, that a work is published and distributed to the public in large numbers with no adequate copyright notice affixed. The only way to avoid forfeiture would be to register the work within 5 years. But the author and the publisher may never notice the omission until an infringement action arises more than 5 years after the publication. It would then be too late to correct the error by registration.
Thus copyright is still condemned to death because of the failure to comply with a formality. The pending bill offers a chance of survival only if farorable conditions prevail. Commonsense would dictate life for the copyright in all circumstances.
A copyright notice may be affixed but, if there are certain errors in it, the work will be deemed to have been published without any notice under section 105 (b) and (c). In some cases, the affixation of a notice to the copies presents insoluble problems. Suppose the copyrighted work is reproduced in the form of an earring or a bracket charm. How does one affix a legible copyright notice? (The courts have held that attaching a tag with the notice does not comply with the statute. Trifari v. Steinberg-Kaslo, 144 F. Supp. 577.)
Where a copyrighted work is later issued with some revisions, the copyright owner must decide at his own peril what copyright date to use—whether to use the original date or whether the revisions will be held to be sufficiently substantial to constitute the revised edition of a new work. A wrong decision as to the date can, under section 405 (b), condemn the work as having been published without any notice.
Whenever, under the pending bill, the copyright is saved from forfeiture, section 404 (b) protects the innocent infringer who was misled by the omission of notice. Its provisions seriously impair the copyright owner's rights to damages and profits and to an injunction—but they do not destroy the copyright. These same provisions could apply to any omission of notice, but at the same time the copyright could be preserved. Why does not section 404(a) simply read as follows:
“(a) EFFECT OF OMISSION ON COPYRIGHT.—The omission of the copyright notice prescribed by sections 401 and 402 from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work."
Would such a provision tempt copyright owners to dispense with the copyright notice? Of course not. Omission of the copyright notice would seriously limit the owner's rights to damages, profits and injunctive relief under section 404 (b). This section fully protects the innocent infringer who has been misled by the absence of a notice and it would also induce the copyright owner to include the copyright notice to preserve his full rights and remedies. At the same time the law would once and for all put an end to the ruthless forfeiture of copyrights because of a failure (almost certain to be inadvertent or unintentional) to comply with a formality.
The writers, composers and artists of America are not lawyers. They are dedicated creators who strain every faculty to contribute to the culture and happiness of our people. They are not publishers. They are not printers. Their works are reproduced and distributed through others. Why should their creations be confiscated because someone forgot a “c” in a circle?
WESTMINSTER THEOLOGICAL SEMINARY,
Philadelphia, Pa., March 11, 1965. Representative RICHARD S. SCHWEIKER, II ouse Office Building, Washington, D.C.
DEAR MR. SCHWEIKER: As a resident of Wyndmoor in Montgomery County, I appreciate your sending us information from time to time through your Speaks Frankly.
May I call to your attention the fact that hearings are to begin soon in Subcommittee No. 3 of the House Judiciary Committee on the copyright laws. However, it has one bad feature which I hope can be eliminated in the preliminary stages. There are certain types of technical printing involving, for example, foreign language alphabets which can be done either not at all in this country or else only at great expense. At present, type of this sort may be set up abroad, then a "reproduction proof" is taken and sent to this country where the book is printed by offset and bound. This sort of procedure would lose copyright under the new law, while it is possible under the present law. I hope that this privilege may be continued in the new law. Our printing industry is making excellent progress in this country even with this feature in the present law. We have in Philadelphia one of the best printers of this sort in the world, Maurice Jacobs, Inc., and they are making good progress under present conditions. It would be unfortunate to han American scholarship by making the production of some books so expensive that they could not be printed. Sincerely yours,
PAUL WOOLLEY, Professor of Church History.
September 24, 1965.
DEAR MR. FUCHS: We endorse the present efforts to bring the copyright law up to date, and we view with a sense of urgency the need to provide legislation that is meaningful and effective.
On behalf of Xerox Corp., I want to express our firm conviction that the protection of legitimate rights of authors in their works is vital to the dissemination and exchange of information. Without adequate protection of these rights, many sources of valuable information would be unable to survive; their contributions to human knowledge would be lost. Moreover, failure to assure proper protection of copyrights would significantly reduce the incentive to creativity. To us. it appears self-evident, therefore, that sound copyright legislation is indispensable to the enrichment of our society.
Accordingly, we vigorously support H.R. 4347 now under consideration. In our judgment this bill would provide a significant and necessary improvement over existing legislation, particularly in regard to the definition of the subjeet matter and scope of copyright, the notice provisions, and the extended duration of copyright. In addition, the provision relating to fair use included in this bill is far superior to that included in the bill introduced in the 88th Congress. By recognizing fair use without attempting to define its scope, the present bill is seen to permit a continued reasonable judicial development of this doctrine to meet changing conditions and needs.
Deeply involved as our company is in the field of communications, both as a manufacturer of copying equipment and as a publisher of books and other educational materials, we can appreciate the diversity of interests affected by copyright.
One of the most complex problems in this regard arises from modern techno logical advances in reprography. A great deal of imaginative thinking and sincere cooperation will be required to devise a workable system which will guarantee legitimate compensation to copyright owners, yet avoid unreasonable restrictions to the free flow of information.
Satisfactory solutions to problems of this nature are rarely provided by legislation, and it is best for all interests concerned that the present bill make no attempt to do so. A voluntary system acceptable to all fair-minded parties is called for. We at Xerox shall continue to study every proposal advanced for accommodating interested groups as we have done in the past. Moreover, we intend to intensify our efforts to devise a workable system and to cooperate fully with others attempting to do so. Sincerely,
J. C. Wilson, President.