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Section 7. Dr. Hornig thinks that the word "copy" in 7(b) should be interpreted to mean commercial republication. Dr. Hollomon states that 7(b) makes it illegal to copy any data compilation bearing the mark and suggests that the word "copy" be changed to "reproduce for sale." He thinks that the bill prohibits republication of data compilations with the mark but not without the mark. He feels that this section provides, in effect, for an exception to the copyright law. Dr. Seitz expressed concern that 7(b) could, if not watched, serve as a deterrent to a free flow of scientific data. Mr. Benjamin and Mr. Wiley feel that the data should be protected by copyright to protect it against foreign republication and to allow commercial publication of the volumes.
Section 8. Dr. Hollomon states that penalties for unauthorized publication and sale of compilations bearing the symbol would serve to maintain its integrity as well as to protect the system of user charges.
Sections 9, 10, and 11. No pertinent comments.
BY CURTIS G. BENJAMIN
COPYRIGHT AND GOVERNMENT 1
"A Sea of Troublesome Questions"
(By Curtis G. Benjamin)
Advisory Committee, and the Department of State. The language of the US Copyright Act of 1909 was carelessly vague in several places, but most of these lapses have been corrected by subsequent legislation or by key court decisions. Strangely enough, the lapse that most directly involves the Federal Government still persists, much to the frustration and dismay of publishers, authors, and Government officials.
Section 8 of the Act decreed that "No copyright shall subsist .. in any publication of the United States Government,” but Congress forgot to define its terms. What is a "publication of the United States Government"? Official documents and Government records? Speeches and books by Federal employees? Reports on Governmentsponsored research? Textbooks developed by Government-funded curriculum committees?
The answers have never been clear, and in attempting to improvise some practical rules of thumb, both Government agencies and the publishing industry have shown a confusing inconsistency. In the years ahead, the Government's massive commitment to scientific research and curriculum reform-including the development of new information systems and new teaching tools-threatens to pose even more complex copyright problems. Unless the new copyright bill now
1 Reprinted from Library Journal, February 15, 1966. Copyright© R. R. Bowker Co., 1965.
being considered by Congress can present some precise but flexible guidelines, the resulting legacy of vagueness will preclude the chance for effective and mutually profitable cooperation between the Government and the publishing industry on literally hundreds of publishing projects of crucial importance to science, technology, and education.
A few case histories will serve to indicate the dimensions of the problem, and to suggest a possible solution. The history of the 1909 Copyright Act suggests that Congress meant the “no-copyright” policy to apply only to publications of the Government Printing Office. But over the years the GPO gradually evolved into a publishing giant that prints and sells “official documents” on subjects ranging from a perennially popular booklet on how to raise guppies to a recently published 627-page compilation of The Collected Papers of Sir Thomas Havelock on Thermodynamics. (One has to admire the bureaucratic adroitness with which this classical work of a British scientist has been transmuted into an "official” US publication.) Over the same years the no-copyright policy for GPO publications has gradually lost status, and now many such publications appear with notices of private copyright. Among them are two very official Congressional publications that have been printed by the GPO and privately copyrighted by specially privileged people: Cannon's Procedure in the House of Representatives, by the former Speaker Clarence Cannon, and Senate Procedure, Precedents, and Practices, by Charles L. Watkins, Parliamentarian of the US Senate. Both of these “crony” copyrights were authorized by special acts of Congress.
In more recent years two other viewpoints have emerged in this area of copyright problems. Both have strong support among people who are convinced that they are safeguarding the public interest. The first argues that no private copyright should be allowed in any publication on which Federal funds have been spent by contract or grant, either directly or indirectly. The second holds that no government employee should be allowed to copyright any work that he produces in the general area of his official responsibility.
Until 1958 all these positions, both old and new, were occasionally debated but successfully skirted with only a few confrontations between authors, publishers, and Government officials. Then came the angry and noisy Public Affairs Associates Inc., v. Rickover case that brought squarely to court the question of what is or is not a "publication of the United States Government." In hearing this case, which centered on whether certain of Admiral Rickover's public addresses and lectures were entitled to copyright protection, the US Court of Appeals once again referred to the regrettable vagueness of Section 8, remarking ruefully that it “creates a sea of troublesome questions."
Admiral Rickover and his antagonist, M. B. Schnapper, proprietor of the Public Affairs Press, have quieted down a bit while their case lags in an indecisive, legalistic limbo. But the sea of troublesome questions has continued to churn about in the debate about the proposed new Copyright Act of 1965. This bill was introduced in Congress last February after more than five years of careful and intelligent preparation by the Register of Copyrights, Abraham L. Kaminstein, and his associates in the US Copyright Office. It represents the first overhaul of our copyright law since 1909, and the hands that drafted it have
been much more specific than were their counterparts in 1909. Still, the new bill leaves open several important questions concerning copyright in publications written by Government employees or financed by Government funds. If the Act is passed without changing the present language of its Section 105, dealing with United States Government works, these questions will have to be settled later by the courts. The process will be costly, slow, and perhaps harsh in many instances. This is certainly an inelegant solution.
The first major question involves works written by Government employees. The new bill defines a “work of the US Government” as one “prepared by an officer or employee of the United States Government within the scope of his official duties or employment.” While this language is quite specific, it is somewhat broader than that of an earlier draft of the bill, in which the concluding words were: “as part of his official duties" (italics mine). Many of us publishers believe that the earlier version leaves less room for uncertainty and contention.
For example, under the proposed definition, would ). Edgar Hoover, in writing his best-selling books on Communism, be producing “works of the US Government”? One can argue that combating Communism in the US is within the scope of Mr. Hoover's duties as director of the FBI, and that alerting the public to the existence and methods of communist infiltration is within the scope of his job. If that is so, would the private copyrights in Mr. Hoover's books be valid?
Similarly, it could be debated whether a professor at the US Naval Academy had produced a “work of the US Government” when he wrote and copyrighted a highly successful text in mathematics. The author has successfully maintained that his official assignment was to teach students; that this responsibility did not extend to his writing of the textbook; that in fact he wrote the text merely to provide himself with a tool for better teaching: Yet it could be argued that the preparation of the text came “within the scope” of his employment at Annapolis.
One of the most noted and debated of private copyrights in Government-sponsored publications is held by Professor Henry D. Smyth for his book, Atomic Energy for Military Purposes. Described in its subtitle as "The Official Report on the Development of the Atomic Bomb under the Auspices of the US Government,” this historic report was written for the Atomic Energy Commission and published in 1946 by the Princeton University Press. AEC officials, recognizing the book's potential impact and public appeal, authorized Professor Smyth to publish a commercial edition simultaneously with an official GPO printing. Both carried a private copyright notice.
The GPO edition in paper covers was priced at 40 cents; the commercial edition was published in cloth binding at $2, and later in paper covers at $1. In spite of the higher prices, the Princeton University Press editions outsold the other by a wide margin: 125,000 copies as against 40,000. The GPO edition, last reprinted in 1950, is now out of print, but the Princeton cloth-bound edition is still in print and in steady demand at $4 per copy.
The success of the commercial editions of the Smyth Report apparently convinced AEC officials that there might be more to publishing a book than just printing it. The AEC now contracts for commercial
publication of many of its important technical works. Three multivolume series and over 100 individual books and technical reports have since been published successfully in this way.
The second major question involves works that have been produced (that is, written or compiled) with Government financial assistance. In the past 40 years, literally hundreds of such works on which Federal funds have been spent in one way or another have been published and copyrighted privately by contractors or grantees. These range from the two great Hoover Commission reports of the 1930s, Recent Economic Changes and Recent Social Trends, to the monumental Education Media Index, an $80 directory which was compiled and published last year by a private firm under contract with the Educational Media Council, which was operating with US Office of Education funds.
Outstanding among the many examples of cooperation between Government and the publishing industry that occurred in the postwar years is the MIT Radiation Laboratory Series. This landmark series, probably the most important technical work on a single subject ever produced in the US, was proposed late in 1944 by Dr. I. I. Rabi, then associate director of the Radiation Laboratory at MIT. He thought it was imperative that the millions of Federal dollars and the priceless man-hours of the country's finest scientific minds that were spent on the wartime work on radar at the Laboratory should lead to more than a series of routine reports printed by the GPO. He envisioned an important, carefully prepared, systematic work—something rather like the great German Handbuch der Physik.
Dr. Vannevar Bush, wartime director of the Office of Scientific Research and Development, carried the idea to the Congressional Joint Committee on Printing, which agreed that publication of the proposed series would be better accomplished by a commercial firm. Dr. Bush then obtained an OSRD appropriation of $500,000 to finance the estimated cost of preparing manuscripts and illustrations for a 27-volume series.
The leading technical publishers of the country were invited to submit competitive bids, and a publishing contract was signed just seven months after the Japanese surrender. The publisher sent to MIT a resident editor who helped to establish editorial style and standards, and later guided the routines of manuscript production, copy editing, and proofreading. For this editorial help, and for its substantial investment in production, promotion, and sales costs, the firm was granted an exclusive copyright on each volume for ten years, which was estimated as the span of prime scientific value of the work. In turn, the publisher agreed to pay into the US Treasury the usual author's royalty and to provide a required number of free copies for official use by the OSRD.
The 27 manuscripts were scheduled for completion in six months, with publication to follow six months later. This schedule proved to be far too ambitious; actually it took four years to complete publication. The $500,000 appropriation ran out at the end of six months, and the publisher had to assume all remaining editorial costs. It proved to be a complex and difficult project, but in the end the series was a brilliant contribution to the literature of science and technology.