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But I do question whether sufficient study has been made of appropriate fee levels to be certain that those contained in the bill are the fairest and most equitable for all parties.

I would feel better able to speak to this point if hearings had been held on fee levels. Without the benefit of such hearings, I question whether the copyright bill should mandate specific fees to be paid to copyright holders.

I understand that intensive efforts and long hours of exchange and discussion took place in 1971 between all interested parties in this matter-the motion picture industry, the commercial broadcasting industry, and the cable TV association. With the assistance of the Chairman of the Federal Communications Commission and the Director of the President's Office of Telecommunications Policy, these parties agreed to a so-called Consensus Agreement. Due to the difficulty and complexity involved in arriving at mutually acceptable copyright rates, the Consensus Agreement provided for compulsory arbitration on the matter of fees if the parties were not able to reach agreement on their own.

It seems to me this approach to fee setting would be a fair and reasonable approach. Compulsory arbitration has no built-in advantages for either side-the copyright holders or the users. An Arbitration Tribunal, composed of experts without bias, would seem to me to afford the best chance for arriving at a fair and reasonable settlement of this complex, difficult problem.

Assurance of a reasonable rate of return for the producers of copyrighted material is of particular interest to me. The holders of copyrights and producers of copyright material represent the creative elements in our society who through their talents and labors make available to the public artistic and educational programs. They are entitled to a realistic schedule of copyright fees.

But even more important than reward is encouragement for them to produce more and better.

The motion picture industry in California makes a significant contribution to the entertainment of our nation. Cable television is likely to be an extremely influential and important segment of the broadcast media in the years ahead. The ground rules set by this copyright legislation will undoubtedly have a lasting influence on both these industries.

I urge my colleagues to examine carefully in the course of these hearings whether the prescribed fee schedule for copyright material in Section 111 is the wisest course for Congress to follow.

FEDERAL LIBRARIANS ASSOCIATION,

Washington, D.C.

STATEMENT OF THE FEDERAL LIBRARIANS ASSOCIATION TO THE SUBCOMMITTEE ON PATENTS, TRADEMARKS AND COPYRIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY ON S. 1361

The Federal Librarians Association is a fledgling organization of professional employees in library, information and documentation centers of the United States government. Membership embraces librarians from Okinawa to Germany, as well as those in the continental United States.

The purpose of the organization is to provide a forum for the exchange of ideas and techniques in the library sciences as they are exercised in Federal agencies, and to provide mutual cooperation and support between these libraries with a common goal-to serve the United States government by providing the best possible library, information and documentation service to the general public.

The issue of library photocopying is a concern that this organization shares with others, and a common desire that justice and equity prevail. We are well aware that legislative drafting, especially in this field, is a difficult and often inconclusive art. Nonetheless, we believe that revision is necessary in the two subissues to which you have addressed yourselves, viz. what constitutes fair use, and the liability of the librarian and the user in ascertaining the requirements for making single copies.

We, the Board of Directors and the Executive Committee of the Federal Librarians Association, meeting in Alexandria, Virginia, on August 6, 1973, unanimously agreed that the language of sec. 107 in S. 1361 is necessary in the public interest, and provides statutory support to what "bench law" has often decided, viz. that the primary purpose of copyright legislation is "to promote the progress of Science and the useful Arts".

In regard to section 108 (d) we endorse without reservation the amendment recommended by the American Library Association in their statement presented

to you in the hearings on July 31, 1973, a copy of which is attached. We are happy to join our colleagues in the American Library Association in this recommendation which will not only protect librarians from undue and unjust liability, but also permit them to advance the public interest and to satisfy the national need for intellectual and scientific information.

STANLEY J. BOUGAS,

President, Federal Librarians Association.

STATEMENT OF EVAN H. FOREMAN, JUNE 15, 1973

I appreciate the opportunity of presenting testimony to this Subcommittee on Senate Bill 1361, designated a General Revision of the Copyright Law of the United States. Although I own several dozen copyrights on forms used in connection with a small family business, I oppose this bill on the grounds that it drastically and unfairly extends the rights of copyright holders to the detriment of the public.

As I understand this bill, the concept of publication, which under the present copyright law marks the beginning of the term of statutory copyright, would be abolished. The term of copyright would commence with the date of creation of the work and would last for a term measured by the life of the author plus fifty years in the case of individuals, and seventy-five to one hundred years from the date of creation for corporate copyright owners. (Sec. 302a S. 1361)

The Constitution, Article I, Section 8, Clause 8, provides that Congress shall have the power "to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries" (Emphasis supplied). This clause, which forms the Constitutional basis for all copyright legislation, was intended by the framers of the Constitution to benefit the public by encouraging invention and artistic expression through the grant of a limited monopoly.

Prior to the passage of the current act, the term of protection for published works was fourteen years, with a renewal period of an additional fourteen years. The current law doubled this period so that now copyright owners may claim two twenty-eight year periods of protection. As you know, Congress has, for some years, extended this protection so that works which would have otherwise fallen into the public domain remain copyrighted. Now, advocates for copyright in dustries, in seeking passage of S. 1316, argue that even fifty-six years is not sufficient time in which to exploit their works. These arguments are not only contradicted by the facts, but they are also offered in support of legislation which would work a grave injustice on the public.

Movies, songs, books and other copyrighted works reap the greatest financial benefits for their creators during the first year or so of their existence. After that, the pecuniary returns fall off drastically. The same copyright industries which seek to persuade Congress that a half century is too brief a period in which to exploit songs, movies, books and other copyrighted works have, however, successfully argued just the converse to the tax collector in securing for themselves the fastest possible depreciation write-off on their copyrighted properties. They have successfully convinced the tax collector that their work is more than ninety percent exploited within the first three years of its life.' Their contention therefore, that a half century is not enough to enjoy the financial rewards of their creation is contradicted by their own successful arguments to the Internal Revenue Service.

No proponent of this bill can convincingly contend that the public would benefit from further extension of the copyright holders' period of protection. To be sure, authors, composers and other creative persons must be given sufficient motivation to produce works which will enrich society's cultural pool. But it is only this benefit to the public which justifies the limited monopoly of copyright. The inclusion or extension of any rights in copyright which do not ultimately benefit the public is contrary to Constitutional intent in that it unduly rewards copyright owners at the public's expense. I therefore urge the Subcommittee to retain the present term of copyright, with the same renewal period, and bring to an end the temporary extensions which have heretofore been granted, and allow these many works, which are long past due, to fall properly into the public domain.

It is also suggested by copyright industry advocates, with equal vigor, that we should do away with the concept of publication, and have the period of copyright 1 Daily Variety, May 15, 1972, Pages 1 & 14, Exhibit 1.

commence, not with the date of publication, but with the date of creation of the work. It is argued that the concept of publication is outmoded and no longer serves a useful purpose. A logical analysis of the function of publication demononstrates that just the contrary is the case.

Presently a work must be published with proper notice to establish copyright protection. It is this publication which perfects the copyright—not the registration of one's claim of copyright with the Copyright Office, which must come after publication. The present act nowhere defines publication but Section twenty-six refers to the date of publication as the "earliest date when copies of the first authorized edition were placed on sale, sold or publicly distributed . . ." While this is not necessarily a literal definition of publication, it amply conveys the true meaning of publication; i.e., a dedication to the public. But, the proposed bill, S. 1361, by abolishing the requirement of publication, would mean that one could secure the protection of a statutory copyright without ever making his work public or without ever placing tangible 'copies in the hands of the public. Under such a system the copyright owner could reap the benefits of the copyright law but deprive the public of the eventual free and unfettered use of the copyrighted work. Where tangible copies of the work are sold to the public, as is the case now with most books and magazines, there is no danger. But, all too frequently, as in the case of motion pictures, the works are not usually sold to the public, but are merely shown temporarily and then recalled permanently by the owner. However profitable this may be, the actual and practical effect is to render the term "for limited times" a nullity, because without publication (meaning the sale of tangible copies to the public), at the end of the statutory period, the copyright would continue in perpetuity, since only the copyright owner would have lawful possession of any of the tangible copies. The intent of such copyright owners is amply demonstrated by a statment of Mr. E. Cardon Walker, President of Walt Disney Productions, quoted in the newspaper supplement "Parade," March 18, 1973, page 4, "A large share of our product is timeless, which means that we can re-release our pictures generation by generation." This industry practice does violence to the Constitutional mandate that copyrights shall be "for limited times" by insuring that "Snow White and the Seven Dwarfs" will never fall into the public domain and that our great-grandchildren, and theirs as well, will perpetually be paying Mr. Walker's stockholders to enjoy it.

2

Unless Congress enacts a law requiring publication and defines it as the distribution of tangible copies of the work to the public, like books and magazines, I submit that S. 1361 would be unconstitutional since the public would be denied its remainder interest in the copyrighted works. Without the requirement that tangible copies be distributed in order to perfect one's copyright, large copyright owners will continue to band together, file repressive lawsuits against private, individual citizens, claiming that their copyrighted products are never distributed to the public and ask for seizure of the copyrighted item. This would allow such a group to maintain perpetual and absolute control of copyrighted items. This is not what the Constitution intended and should not be sanctioned by Congress.

The above is not hypothetical. It is a reality under the present law, and the proposed law goes even further in extending protection to copyright owners. Under the present law the major motion picture companies, for example, have exercised almost complete control over nearly all their films in the United States. Through a small law firm on retainer to all the major U.S. film distributors, the motion picture industry has repeatedly threatened numerous film collectors with lawsuits in an attempt to discourage their collecting films. Through this same firm the industry has initiated extraordinary lawsuits against numerous others involving seizure without notice of the collectors' film prints and issuance of Temporary Restraining Orders. The effect of these actions has been to deny many citizens their property and because the defendants in such lawsuits are usually selected to be middle income film collectors, they are unable to compete with these corporations on an equal financial footing.

No matter how economically profitable it may be from the viewpoint of large corporate copyright holders, not to sell, but only "license for use" their copyrighted products, the unalterable result of such a method is to render perpetual control over the copyrighted item. This cannot be squared with the "for limited

2 Exhibit 2.

3 Memorandum Statement by the Copyright Committee of the Motion Picture Association of America, Inc. at page 1001, Hearings before Subcommittee No. 3 of the Committee on the Judiciary, House of Representatives, First Session, 89th Congress, Copyright Law Revision, Serial No. 8, Part 2, Exhibit 3.

times" language of the Constitution. The history of motion pictures under the present law provides an example. While theoretically, under the present law, the fruit of the tree drops into the public domain at the termination of the statutory period to enrich the cultural pool of the public, this has not, in fact, happened. The majority of motion pictures created in the United States have disappeared altogether, many prior to the expiration of even the first twenty-eight year term of protection. The public has forever been deprived of this part of its cultural heritage which its ticket purchases have financed and the Constitution has held is its due. This harm is irreparable. Such works cannot and do not fall into the public domain because not a single tangible copy remains in existence.* Copyright here has become a chess game in which the public is permanently checkmated.

For the foregoing reasons I respectfully urge that no legislation be approved by this Subcommittee or by Congress which lengthens the term of statutory copyright, or which fails to make publication, defined as the sale of tangible copies to the public, a specific requirement to perfecting copyright protection. (Note: The Exhibits referred to by Mr. Foreman are in the files of the Committee.)

AUGUST 7, 1973. STATEMENT BY MORTON I. GROSSMAN, VA WADSWORTH HOSPITAL CENTER, Los ANGELES, CALIF.

I am Morton I. Grossman, MD, PhD, Senior Medical Investigator, Veterans Administration Wadsworth Hospital Center, Los Angeles; Professor of Medicine and Physiology, UCLA School of Medicine, Los Angeles; former president of the American Gastroenterological Association; former member of the editorial boards of American Journal of Physiology, Gastroenterology, Handbook of Physiology, UCLA Forum in Medical Sciences, and others; currently Chairman of the Editorial Board of the official journal of the American Gastroenterological Association, Gastroenterology.

I appreciate this opportunity to present my view of the copyright bill, S. 1361, and request that this statement be made part of the official record. I speak as a private individual, not as a representative for any of the organizations listed above.

Any new provision of the copyright law that impaired the ability of individual scientists to obtain copies of individual articles published in scientific journals would be a serious impediment to the flow of information that is essential for scientific progress.

I oppose any plan that would require the payment of royalties for photocopying individual articles in scientific journals. Such royalties cannot be viewed in the same light as royalties on literature for the writing of which the author earns part or all of his living. Scientists are not paid a fee for publishing their results in scientific journals. No fee should be charged for making individual copies of such articles. Copyright privileges in the case of scientific journals should be used only to safeguard against unethical use, not as a means of providing income to publishers or scientific societies.

The proposal by the American Library Association to substitute section 108 (d) (1) of the present Bill with this new wording:

"The library or archives shall be entitled, without further investigation, to supply a copy of no more than one article or other contribution to a copyrighted collection or periodical issue, or to supply a copy or phonorecord of a similarly small part of any other copyrighted work."

would accomplish the purposes I have set forth. Respectfully submitted.

SUPPLEMENTAL STATEMENT OF BELLA L. LINDEN, ON GENERAL REVISION OF THE U.S. COPYRIGHT ACT, SUBMITTED ON BEHALF OF HARCOURT BRACE JOVANOVICH, INC., AND MACMILLAN, INC.

The particular impetus for this Supplemental Statement is the inquiry made by Senator Burdick into precisely how libraries can be expected to record and transmit compensation for numerous individual photocopying uses, and his request for a description of the administrative techniques and budgets which would be involved. Accordingly, this submission will be directed towards the issue of

• Films In Review, April, 1973, at page 224, Exhibit 4.

20-344-73-38

compensation for library photocopying. Insofar as compensation for the use of copyrighted materials in information storage and retrieval systems is concerned, most technologists seem to agree that there is no significant administrative or financial burden in programming computer systems to identify and record the various works stored, manipulated and retrieved. The current issues with respect to use of copyrighted materials in information storage and retrieval systems do not appear to be those of the mechanism of compensation, but rather the points at which the obligation of compensation should attach-i.e. at input, during manipulation, or upon retrieval-and whether a rate making authority, such as that discussed in connection with CATV, should be created. We believe these are issues best suited to consideration by the proposed National Commission on New Technological Uses of Copyrighted Works.

With respect to library photocopying, it appeared to me that the hearings on July 31st revealed a general agreement among the parties and the Members of the Subcommittee that library photocopying can be a valuable research tool which should not be prevented, but that copyright proprietors are entitled to a fair compensation for such use of their works. The library representatives, however, appear to take the position that although copyright proprietors are entitled to such compensation the presence of an obligation to pay such compensation will involve unbearable administrative burdens of identifying and recording uses. Their objection, in sum, appears not to compensation per se, but rather to the manner in which it could be provided.

Among the mechanisms of compensation for library photocopying which have been discussed are blanket licenses, subscription fee increments, clearing houses, per-use charges to requesting users, and others. Several, but not all, of these devices would admittedly involve "clocking" of individual uses. However the photocopying devices used by libraries today generally do record the number of pages copies and in many cases hardware manufacturers receive payment from libraries based upon such clocked uses. There is little doubt that any photocopying equipment can be adapted to use with similar clocking devices at nominal costs. Obviously, compensation schemes which will depend upon the number of pages copied by individual users will involve questions of identifying and segregating public domain and copyrighted materials. Similarly (and regardless of the particular compensation scheme envisaged) not all objects-of photocopying must or should be treated in the same manner. Thus the copying of technical journals, of single encyclopedia entries, of text books, or of novels. poetry or music involve varying considerations and hence potentially varying forms and amounts of compensation. However these are problems which, again. the copyright proprietors themselves will have to resolve-and they will quite clearly be forced to resolve them in a manner which will assure a workable recordation and transmission of the compensation which they have stated they require in order to survive.

To attempt to calculate specific budgets for the implementation of various compensation systems at this time is a rather fruitless task. Any realistic estimate of the amounts which would be involved will depend not only upon the particular system-such as blanket licensing or per-use charges-but would require clearly defined samplings of the current practices of libraries, their photocopying procedures, and the nature of the copied works.

In all of American commerce the establishment of devices for payment of obligations has always been a problem of the entity to whom the obligation is owed, provided however that the law recognizes the product or service as private prop erty and precludes preemption without the authorization of the owner. So too in connection with library photocopying the creation of workable devices for compensation is a problem which will have to be faced by those copyright proprietors who desire compensation. If their proposals and devices prove unworkable, the pressures of the marketplace will provide appropriate adjustments.

It is submitted that there is no justification for vitiating the authors and publishers rights by including the librarians' proposed Sec. 108 in the Revision Bill. It is respectfully urged that Sec. 108 of the Act as passed by the House plus leaving the unresolved issues to the National Commission proposed under Title II of the Bill would be an appropriate alternative in the event this Subcommittee considers that the appropriate adjustment between users and proprietors cannot be left to the marketplace.

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