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situation, thus accounting for the difficulty in laying down ground rules for all situations, as was attempted by section 6 of the preceding bill, H.R. 11947.

Copying of all publications, copyrighted or not, is, of course, facilitated and encouraged by modern photocopying devices. This does not mean that it is appropriate to lower the barriers and permit copying of copyrighted material or any larger scale than before. We submit that all copying of copyrighted material which is not permissible under the doctrine of fair use amounts to unlawful confiscation of the rights of the copyright owner and that the Congress should avoid any such development.

Any lessening of the present copyright protection permitting additional copying would serve to discourage creative writing on a wholesale scale. Thus we would be faced with the situation of killing the goose that laid the golden egg.

Even as to out-of-print books, we submit that there is no justification for permitting copying beyond the bounds of fair use. The fact is that most book publishers now appoint a single-copy reproducing agent such as University Microfilms of Ann Arbor, Mich., a subsidiary of Xerox Corp., for the purpose of filling orders for single copies of their out-of-print works. These copies can now be purchased for as little as about 4 cents per page, with costs tending to being lowered as reproducing processes are further developed.

Although, as has been already stated to you, the present bill does not decrease the present rights of teachers to use copyrighted material, you will be likely to hear, among other arguments, that the classroom teacher needs the right to use copyrighted materials without delays for clearances, the right to use them without payment of royalties, the right to make a single copy of entire copyrighted works, and the right to make multiple copies of excerpts and of quotations.

At this stage, we ask the question, why is it just for copyrighted works of authors to be taken by teachers without compensation? Of course, all of us want our children to have the best possible education. However, we do not expect the builder of a nonprofit school building to construct it at no charge, nor the furniture merchant to donate school furniture, nor the supplier of school supplies to give his products gratis, nor the teacher to waive compensation. On what reasonable theory, then, can the creative writer and his publisher be expected in effect to donate books?

As to the equities of this situation, it is significant to note the comment of Prof. Melville B. Nimmer, of the University of California Law School, at Los Angeles, in his highly regarded textbook entitled "Nimmer on Copyright," published in 1964. The following persuasive statements appear at page 653:

But if every schoolroom or library may be purchasing a single copy supply a demand for numerous copies through photocopying, mimeographing or similar devices, the market for copyrighted educational materials would be almost completely obliterated. This could well discourage authors from creating works of a scientific or educational nature. If the "progress of science and useful arts" is promoted by granting copyright protection to authors, such progress may well be impeded if copyright protection is largely undercut in the name of fair use.

Similar reasoning applies to the performance right of a copyright owner. It is true that under the present law the public performance

of copyrighted nondramatic literary works does not require the consent of the copyright owner if it is a nonprofit performance.

This distinction between performances for profit and not for profit with regard to nondramatic works, although reasonable when originally conceived, is no longer reasonable.

The development of educational television, on both closed and open circuits, has served to emphasize that such distinction, when applied to educational broadcasting on both television and radio, is wholly unfair to copyright owners.

When the performance right was included among the exclusive rights granted to a copyright owner under the copyright law with respect to nondramatic works only where the performance is for profit, nonprofit performance was geneally face to face, largely in churches, classrooms, club meetings, and so forth.

But nonprofit television is now becoming a major educational instrument reaching simultaneous audiences of hundreds of thousands. It is certain to grow. We submit, therefore, it is essential that the use through nonprofit broadcasts of nondramatic copyrighted literary material should be accorded the same treatment as dramatic works.

In recognition of the illogic of the present distinction between dramatic and nondramatic literary works with respect to nonprofit public performances, the present bill eliminates such distinction by virtue of section 106. However, this elimination is diluted, almost to the point of nonexistence, in section 109.

I am not going into section 109 and section 108. They have been covered by the Authors League and the American Textbook Publishers Institute previously and will be, I am informed, discussed further. As to recordings, we also make certain recommendations as to sections 110 and 113. The details of those requested changes and the reasoning behind them will be presented by representatives of other organizations.

In section 203, we recommend two changes as follows:
Page 13, line 26: Delete "first."

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Page 13, line 27: After "work" add "under such grant.' The purpose of these requested changes is to make clear that the period during which termination of a grant under a copyright may be effected is intended to begin at the end of 35 years after publication under the grant which is sought to be terminated and not after publication under some other grant. For instance, if the grant is to a book publisher the publication intended is that of that publisher's edition of the book and not of any prior publication by some other publisher.

To effectuate that purpose, as above stated, the word "first" is advocated to be deleted in one instance, and after the word "work" in another phrase "under such grants" is proposed to be added.

With regard to joint works, section 302 (b) treats of the duration of copyright of "a joint work prepared by two or more authors who did not work for hire." In the case of such a work the bill provides that copyright endures for the life of the second of the authors to die plus 50 years after his death, no matter how many authors there happen to be involved.

We believe it is fairer to change "second" to "last."

As to section 302 (c), the second sentence deals with the duration of copyright of anonymous and pseudonymous works. The bill now provides that if before the end of the copyright term the identity of such an author "is revealed in the registration or other public records of the Copyright Office"-which may involve thousands of papers in the Copyright Office "the copyright in such work endures for the term specified by subsections (a) or (b), based on the life of the author or authors whose identity has been revealed."

We believe that it creates an unduly onerous burden for persons attempting to determine whether such a work is in copyright to be required to search through countless documents in all the public records of the Copyright Office. Accordingly, it is suggested that a less onerous and more reasonable procedure would be to change subsection (c) so that the sentence beginning at line 18 with "if" should be deleted and the subsequent portion of that subsection changed to read in accordance with the more simplified procedure set forth at page 13 of my statement and which I will not take time to quote.

With regard to copyright notice we request certain changes with respect to that subject which are commented on in Mr. Karp's statement so I won't address myself to that any further.

On the subject of damages, we ask for changes on page 30 of the bill. The purpose is to conform allowable recovery of damages with the holding of the U.S. Court of Appeals for the Second Circuit, in a case decided last year, Peter Pan Fabrics Inc. v. Jobela Fabrics, Inc., 329 F. 2d 194, wherein the court held that under the present law both statutory damages and profits of the infringer are recoverable. We believe that should be continued.

The other two changes are technical and I rely on my statement. Finally, we come to section 601 which deals with the subject known colloquially as the manufacturing clause. In our joint memorandum of April 6, 1965, we and the seven other organizations which signed it stated that we were opposed to the inclusion of any manufacturing clause. That position remains unchanged. Nevertheless, the book publisher organizations have held several meetings with the Book Manufacturers' Institute in an effort to agree upon terms which would enable us to withdraw such opposition.

These discussions are continuing. We understand that a special time will be set for the manufacturing clause to be discussed before the subcommittee. We shall accordingly refrain until then from any further comment on this subject.

Before closing, Mr Chairman, I should like to state that we believe that the Register of Copyrights and his staff have delivered themselves of a momumental task in a most scholarly manner and it is strongly hoped that their effort will be successful.

Thank you.

Mr. KASTENMEIER. I want to thank you, Mr. Manges, for a learned statement and a useful one. I assume, sir, that you will want to include the two memorandums in the record.

Mr. MANGES. I would like to, Mr. Chairman.

Mr. KASTEN MEIER. Without objection they will be included in the record along with your statement.

Mr. MANGES. Thank you.

(The documents referred to follow :)

MEMORANDUM OF AMERICAN BOOK PUBLISHERS COUNCIL, INC., AMERICAN GUILD OF AUTHORS & COMPOSERS, AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, AMERICAN TEXTBOOK PUBLISHERS INSTITUTE, THE AUTHORS LEAGUE OF AMERICA, INC., COMPOSERS AND LYRICISTS GUILD OF AMERICA, INC., MUSIC PUBLISHERS' PROTECTIVE ASSOCIATION, INC., MUSIC PUBLISHERS ASSOCIATION OF THE UNITED STATES, RE H.R. 4347

SECTION 101

Page 3, line 5: Insert following definition:

“.Face-to-face' teaching activities are teaching activities conducted in a nonprofit educational institution, which are carried on solely by the members of a class and its instructors, with no other persons present and with no admission fee (other than any regular tuition charge)."

Page 4, line 1: Change definition of a "supplementary work" to read as follows: "A supplementary work' is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon or assisting in the use of the other work, such as forewords, introductions, prefaces, prologues, epilogues, [pictorial] illustrations, musical arrangements, maps, charts, tables, editorial notes, tests, [and] answer[s] material for tests, bibliographers, appendixes, and indexes."

After definition of "supplementary work” add following paragraph:

"Text material is literary, pictorial, or graphic material prepared and distributed primarily for instructional purposes."

Page 4, lines 26 to 28: Re "a work specially ordered or commissioned for use”, etc. Add the following categories: "as a compilation, as text or test material. as an atlas, as a history or statement of activities of a private business or organization".

Page 4, lines 28-29: Change "if the parties expressly agree in writing" to “if it is expressly agreed in writing signed by the parties".

SECTION 105

Page 6: Delete entire section and substitute section 4 of H.R. 11947, except at lines 4 and 13 of page 4 of H.R. 11947 add "or unpublished" after "published".

SECTION 106

Page 6, line 20: After "derivative" insert "and supplementary".

Page 7, line 2: Change "circle of family and social acquaintances" to "circle of a family and its social acquaintances" (as set forth in section 5 of H.R. 11947).

SECTION 108

Page 7, line 20: Change "exhibit" to "display".

SECTION 109

Page 7, line 36: Change “made primarily" to "made by a noncommercial station primarily".

Page 8, line 2: After "dramatico-musical work" add "of a religious nature". Page 8, line 7: Change "any fee or other compensation" to "any salary, fee, or other compensation" (as in section 8 of H.R. 11947).

Page 8, lines 14 to 36, (5), (6), and (7): Recommend that these be deleted. Page 8: At end of section, after line 36 add:

"Notwithstanding the provisions of section 106 (b) (1) and (2), for purposes of this section,

"(a) To perform' a work means to recite, render, play, dance or act it. "(b) To 'exhibit' a work means to display a material object in which the work or a copy of it is embodied and is limited to pictorial, graphic, and sculptural works."

We also urge that it be made clear that information storage retrieval transmissions are not intended to be included under section 109 exemptions.

SECTION 110

Page 8: The right to make an ephemeral recording should be very strictly limited. Such a recording should be made only by a single transmitter (not an

organization which is a combination of transmitting agencies), and it should be utilizable only for a single delayed transmission of a live broadcast or telecast, from the particular station within a limited time not in excess of 30 days after the originating transmission. Thereafter the recording may be kept solely for its own archival purposes.

SECTION 113

Page 10, line 19: After "making" insert "the particular".
Page 10, line 20: After "private" insert, "home".

Page 11, lines 7 to 10: Delete sentence commencing "The owner" and substitute the following:

"The compulsory licensee may postpone payment of royalties for records manufactured before filing, until the quarter following such identification."

(c) (3) provides for a "detailed statement of account" to be furnished by one claiming a compulsory license. It would be appropriate to provide that the Register of Copyrights may make regulations concerning the nature of this "detailed statement".

SECTION 201

Page 12, line 12: After "unless" delete through "otherwise" in line 13 and substitute "it has been expressly agreed otherwise in writing signed by the parties".

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Page 13, line 27: After "work" add “under such grant".

SECTION 204

Page 15, line 14: Omit comma after "administer".

SECTION 302

Page 17, line 12: Change "second" to "last".

Page 17, lines 18 to 23: Change sentence beginning with "If" to read: "Before the end of such term, one or more of the authors of an anonymous or pseudonymous work may record in the Copyright Office a statement revealing the identity of the author or authors of such work. In such event the copyright in such work shall endure for the term specified by subsections (a) or (b), based on the life of the author or authors whose identity has been revealed. The statement shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation.”

SECTION 401

Page 21, line 22: Delete "or elsewhere".

SECTION 404

Page 23, line 15: After "notice" add "from a copy publicly distributed by authority of the copyright owner".

Page 23, line 16: Delete “receiving actual notice that”.

Page 23, line 25: After "destruction," add "omission".

Page 23, line 27: Add a new subsection (d) to read:

"(d) Where a copyright notice is omitted from a copy of a work prepared under an authorization which required such notice to be included, such copy shall not be deemed publicly distributed by authority of the copyright owner."

SECTION 504

Page 30, line 4: Delete "and profits" and after "damages" add "and any profits of the infringer which are attributable to the infringement".

Page 30, line 5: After "work" add "of the copyright owner".

Page 30, lines 11 and 12: Change "sustains the burden of proving" to "proves" and delete "willfully".

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