Mr. VIVIAN. Do these firms which publish these tables consider themselves as having any copyright to them?

Dr. HOLLOMON. Certainly.

Mr. VIVIAN. To the numbers themselves?

Dr. HOLLOMON. No, to the volumes.

Mr. VIVIAN. Therefore, you would not be violating their copyright interests?

Dr. HOLLOMON. I do not believe so.

Mr. VIVIAN. What amount of money do you anticipate to be asked of the appropriations committees as a result of the authorizations contained in this bill?

Dr. HOLLOMON. We believe that over a 4- or 5-year period, that the level of the expenses to operate the system will be on the order of $20 million a year.

Mr. VIVIAN. Do you have a budget breakdown for that amount of funds?

Dr. HOLLOMON. Yes, we do.

Mr. VIVIAN. I would be interested in having that submitted, if it is available. That completes my questions.

Mr. DADDARIO. Without objection, that will be submitted for the record.

(The information requested is as follows:)

Estimated annual costs for SRDS program when fully implemented

Mr. YEAGER. One question for clarification, if I may. I think you have seen the letter which we have received from the Library of Congress Copyright Office.

Dr. HOLLOMON. Yes, I have.

Mr. YEAGER. It indicates that, in their opinion, they believe that section 7(a) of the bill seems intended to create the equivalent of a copyright which, unlike the present law, is free of the requirement to protect users and the public. The proposed copyright law says that copyright protection is not available for any work of the U.S. Government, and defines the work of the U.S. Government as being a work prepared by an officer or employee of the U.S. Government within the scope of his official duties. As Mr. Vivian mentioned, on the bill which is presently before the House Judiciary Committee, the Department of Commerce testified that this provision be retained.

Is there a conflict between what you are suggesting here and the previous testimony of the Department, or do you consider that section 7(b) does not, as the Library Copyright Office has suggested, amount to a copyright?

Dr. HOLLOMON. I don't know quite how to answer that question. I will answer in this way. We believe that what was proposed here and the degree to which it is an exception to the general statement of copyrights is appropriate. There should be, and can be, exceptions where demonstrated need exists. In other words, we don't believe that is inconsistent with the general proposition of the Secretary of Commerce. There are conditions in which exceptions should be made, but the exceptions should not be made administratively, but by statute, as is being suggested here.

The second question has to do with the limitation of time, as to the length of time. We would not object at all to being limited to some degree as to the time for which the stamp would be valid. The third question has to do with whether or not this is or is not actually establishing copyright. I assure you our intent was to be liberal but to maintain assurance. It was not to establish a Government monopoly in that sense. It has, however, in practice, I believe, a large number of the characteristics of a copyright.

So to answer your question as fairly as I can, I believe that to be the fact.

Mr. YEAGER. Thank you.

Mr. VIVIAN. I would like to inject a question there. Copyright on ordinary copy expires after some period of time and anyone is free to publish the document thereafter. Would this also apply to standard reference data?

Dr. HOLLOMON. That is right. The situation here is that if this system were fully established we would be revising such compilations periodically. We tried to say how frequently such a revision would be desirable or necessary, and, therefore, in that context we thought it would be appropriate to limit the time if the committee so desired. Mr. VIVIAN. It seems to me some comprehension of the time role of the stamp is important. It is not obvious to me in this legislation or in my own mind at this point.

Dr. HOLLOMON. I tried to at least discuss that question. We tried to say how freqently we believe it to be proper and appropriate to revise the compilation, either to set them out in a modified form or reevaluate them. We said something about 6 or 7 years. Therefore, 10 years may not be an inappropriate limitation.

Mr. VIVIAN. To use a mark which contains a date?

Dr. HOLLOMON. That is right. To use a mark which contains a date. Mr. DADDARIO. Are there any further questions, gentlemen? If not, this committee will adjourn until 10 o'clock tomorrow morning at the same place.

65-891-66-5

ADDITIONAL QUESTIONS SUBMITTED TO DR. J. HERBERT HOLLOMON, ASSISTANT SECRETARY OF COMMERCE FOR SCIENCE AND TECHNOLOGY, BY THE SUBCOMMITTEE ON SCIENCE, RESEARCH AND DEVELOPMENT

1. In your testimony you stated that you would be amenable to a time limitation being placed in section 7 of the bill. Keeping in mind the fact that the International Critical Tables were obsolete after 30 years, what time limitation do you recommend to be placed in section 7

While we favor no time limit as set forth in section 7 of the proposed legislation, if the Committee believes a time limit is necessary, we suggest following the principles applied to the duration of copyrights.

2. In your testimony you stated that

some fraction of the cost should be recovered in order to have a measure of whether or not this is useful." Is it unreasonable to expect that the experts who advise the Bureau that standard reference data be compiled in a particular field also are capable to advise the Bureau if the compilation is of value to the scientific community?

Experts advising the National Bureau of Standards in particular fields would be our primary source of advice on whether a particular compilation is of value to the scientific community. However, the independent approval implied by substantial sales at realistic prices would also be a real help to us. It would help us, for example, in describing our program and its value to non-scientific audiences. It would also help us by providing the less distinguished members of the scientific community with a way to give us an indication of their satisfaction. We have an obligation to the routine analytical chemist, the laboratory technician, and plant engineer who need standard reference data for some of their work just as much as do the leading scientists of this country.

Their needs may be somewhat different and the experts may not always be fully aware of just what those needs are. We can obtain some indications along these lines through the professional and technical societies, but, as I have indicated, the sale of a substantial number of volumes of a given compilation at more than token cost is a clear and impartial indication that the work is valuable. Of course, it should be understood that a small sales volume would not necessarily imply that the work was of little value. Some scientific topics are vitally important to a small audience only, and only a few copies of the tables might be sold. Nevertheless, those few workers might be making a very important contribution to science.

3. If the Bureau contracted for the compilation and publication of standard reference data under its present authority, could the Bureau receive a royalty or similar payment on the sale of the publications or would such amount be taken into consideration in determining the amount of the contract?

The Bureau could receive a royalty under section 278b (d) of title 15 of the U.S. Code, or could negotiate a contract price reflecting royalty consideration.

(a) Has the Bureau ever received a royalty or similar payment on the sale of publications by a commercial publishing organization (other than rights which may have been acquired by assignment or bequest)? If so, under what circumstances?

The Bureau has not received royalties. There are numerous instances when individual NBS staff members receive royalties or similar payments that they assign to the Bureau.

4. In any situation does the Bureau expect to compensate copyright holders for the use or republication of copyrighted material?

In the course of preparing compilations of critically evaluated data, the National Bureau of Standards and its contractors expect to make very substantial use of information which has already appeared in printed sources including books and in technical journals. Many of these sources are copyrighted. However, I believe that the present copyright law specifically recognizes that the purchaser of a book or journal is entitled to use the information which it contains, and even to excerpt portions of it for scholarly purposes and critical review. These are precisely the uses to which our compilers will put such copyrighted material.

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With respect to republication for sale in some few cases, however, our compilers may find that an existing copyright document contains a particular table or graph which constitutes a most satisfactory and comprehensive assembly of data, already critically evaluated. It might be quite appropriate to present this table to our readers in its existing format. In such circumstances, we would seek permission to duplicate the material and would pay a reasonable fee if necessary, though past experience indicates this would seldom be required.

(a) If so, how will the amount of such compensation be determined, particularly if there is a disagreement?

Compensation may be determined by settlement negotiations pursuant to Section 1498 (b) of title 28 of the U.S. Code. If settlement cannot be reached, that section provides for legal action by the copyright owner against the U.S. in the Court of Claims.

5. Since published standard reference data will not be copyrighted and therefore will not carry a copyright notation, how will publishers be put on notice that the publication may not be published for sale?

Procedures issued under section 4 can require appropriate notice, for example, by reciting relevant portions of the statute. However we would have no objection to authority to secure copyrights for standard reference data publications. (a) Is the knowledge that one is doing a prohibited act necessary to the imposition of the fine under section 8?

Proof of knowledge is not required for imposition of a fine. However, the presence or absence of knowledge and the exercise of due care would be important factors in administrative decisions as to whether to seek imposition of the penalty and at what level to agree to compromise. If a compromise cannot be agreed upon, the courts would no doubt consider evidence of lack of knowledge or of exercise of due care in seeking the amount of a particular penalty.

(b) Should there be a clause requiring the Secretary to give notice in the compilation itself as to the restrictions placed on the use of the data appearing therein or the symbol or mark appearing thereon?

We would have no objection to such a clause under the principles of copyright. This would be done in any event administratively.

6. Under section 9, may a commercial publisher under contract to the Bureau bring an action to restrain violations?

No, unless by contract he has copyright. If no copyright is awarded under the contract however, a commercial publisher could request that the Secretary seek restraint of a violation.

7. What steps are being taken in private industry to collect such material and put it into data processing systems for more rapid retrieval?

Many industrial laboratories and engineering organizations maintain for their own use special collections of data on the materials of particular interest to them. In many cases these data compilations concentrate on proprietary products of the particular firm concerned. In other cases the data books describe all products that may be of concern to the particular organization's scientists and engineers, regardless of origin. Some of these organizations are now beginning to put such data into computers for rapid retrieval. The chemical manufacturing industry is perhaps most advanced in these activities. Scientists and engineers in these industries are extremely eager to obtain the products of the Standard Reference Data System to store in their own retrieval systems. Another industry in which computer techniques are universally employed for computations is the nuclear power industry. All nuclear power reactor calculations these days are made by computers. The data used in these calculations must be available on tape or in some other form of storage. The U.S. Atomic Energy Commission has for some years maintained an extensive activity whose purpose is to produce and disseminate compilations of neutron cross section data in the form of magnetic tapes. It is our intent to work closely in all fields with representatives of the Federal agencies and those industries which are in need of data in sophisticated processing systems.

(a) Will the activity of Commerce under the proposed bill interfere with this activity or discourage it by setting up competition through publication of "Standard Reference Data?"

The activities of the Department of Commerce under the proposed bill will encourage the establishment and widespread use of sophisticated data processing systems throughout industry. Our activities will help to make available such data to a large number of smaller industrial organizations which do not have

the internal resources to develop their own system themselves. There is little reason to believe that there will be competition from the Standard Reference Data System. Instead there will be coordination, standardization (in such matters as e.g., units, format, terminology), and reduction of duplication of effort. In addition, our early attention will be directed to the collection, evaluation, and distribution of data about substances of universal interest and applicability (elements and chemical compounds of general usefulness and highest possible purity). This information will therefore provide a common basis to ensure that specialized and/or private collections can be compatible with one another to whatever extent the users and owners desire.

8. Is the Secretary to have authority to dictate the format to be used by other government agencies in compiling the data which such agencies develop for their own use?

Under the proposed legislation the Secretary of Commerce would not have authority to dictate the format to be used by other government agencies in compiling the data which such agencies develop for their own use and that of their contractors. The responsibility of the Secretary is advisory in such matters. However, if the format or degree of evaluation of the data do not satisfy the standards established by the Secretary of Commerce, he would have the authority to withhold designation of such material as a product of the Standard Reference Data System.

9. Would agencies of the Federal Government that make research and development grants, contracts, or other arrangements with individuals or organizations be required or encouraged to secure from the recipient a commitment to turn into the system data developed with Federal funds?

We would encourage the agencies to participate in the system. However, it is not believed that a commitment is necessary because work supported by the government is normally published either in the report literature or in the open scientific journal literature. Indeed, unless specific data are available in some such fashion for the general scrutiny of the technical community, they would be considered to be inadequately documented for designation as standard reference data. Since the reporting of data acquired in research is a normal part of the scientific and technical process, special arrangements to be sure the data are made available to the operators of the Standard Reference Data System are not necessary.

10. What percentage of the total annual cost of this program is expected to be recouped from the sale of standard reference data under section 5 of the bill? It is my opinion that approximately 25% of the total cost of the program might be recovered through user charges when the program is fully implemented, and assuming that there is as much demand for special information services as we anticipate.

11. Since standard reference data is international in scope, what provisions in the bill would prevent a foreign organization from duplicating and selling the Bureau's Standard Reference Data outside the United States?

(a) Would section 7 be applicable to such activities, and could the Bureau attach assets of such foreign organizations in the U.S.?

The bill, if enacted, would not have extra-territorial effect. There would be no authority in this legislation to attach assets of foreign organizations.

(b) What recourse would there be under the bill if such a foreign organization distributed such materials in the U.S.?

The remedy of injunction against violations of section 7 would be available to prevent such distribution. The availability of the civil penalty remedy would depend upon the facts and whether the U.S. had jurisdiction over the party.

(c) What recourse does the Bureau have to prevent a domestic organization from printing and distributing standard reference data outside the U.S.? The remedies of injunction and civil penalty would be available against persons subject to the jurisdiction of U.S. district courts.

(d) What advantages or disadvantages would the copyright laws and international agreements afford in above situations as compared to the bill? A copyright would be enforceable in other countries pursuant to international agreement.

12. What appeal does a person or organization have from the provisions of section 8?

(a) If the violator refuses to compromise the claim, how will the Secretary enforce the penalty?