COPYRIGHT LAW REVISION

WEDNESDAY, MAY 26, 1965

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE No. 3 OF THE
COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The subcommittee met at 10 a.m., pursuant to call, in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier presiding.

Present: Representatives Kastenmeier, St. Onge, Edwards, Tenzer, Lindsay, and Hutchinson.

Also present: Herbert Fuchs, counsel to the subcommittee; and Allan Cors, associate counsel.

Mr. KASTEN MEIER. The committee will come to order.

The Subcommittee Chairman Ed Willis regrets his inability to be present at this week's session. His hearings in Chicago presumably will be less tranquil than this one.

This morning's hearing marks a new era in the copyright law revision program which was initiated 10 years ago under the auspices of Congress. The detailed history of this program is set forth in full in Mr. Kaminstein's preface to the supplemental report of the Register which has just been, or is just about to be made available. After years of study and discussion the Copyright Office has now offered Congress a comprehensive measure for the general revision of the Copyright Act of 1909.

This is in a sense a historic occasion noted by the fact that this will be, when successfully concluded, only the fourth general copyright revision in copyright history. I observe not only from the long list of witnesses but from the attendance at the committee meeting this morning that interest in this is high.

The basic measure is H.R. 4347, introduced by Judiciary Committee Chairman Celler at the request of the Librarian of Congress. Identical bills were also introduced by our subcommittee colleague, Mr. St. Onge (H.R. 5680), by Representative Helstoski (H.R. 6831), and by Repre sentative Monagan (H.R. 6835). These bills will be placed in the record of the hearings, together with a summary of the highlights of the measure, prepared by the Copyright Office.

(The documents referred to follow :)

1

[H.R. 4347, 89th Cong., 1st sess., By Mr. Celler; H.R. 5680, by Mr. St. Onge; H.R. 6831, by Mr. Helstoski; H.R. 6835, by Mr. Monagan]

A BILL For the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title 17 of the United States Code, entitled "Copyrights," is hereby amended in its entirety to read as follows:

102. Subject matter of copyright: in general.

103. Subject matter of copyright: compilations and derivative works.

104. Subject matter of copyright: national origin.

105. Subject matter of copyright: United States Government works.

106. Exclusive rights in copyrighted works.

107. Limitations on exclusive rights: fair use.

108. Limitations on exclusive rights: effect of transfer of particular copy or phonorecord. 109. Limitations on exclusive rights: exemption of certain performances and exhibitions. 110. Limitations on exclusive rights: ephemeral recordings.

111. Scope of exclusive rights in pictorial, graphic, and sculptural works.

112. Scope of exclusive rights in sound recordings.

113. Scope of exclusive rights in nondramatic musical works: compulsory license for making and distributing phonorecords.

114. Scope of exclusive rights in nondramatic musical works: performance by means of coin-operated machine.

§ 101. Definitions

As used in this title, the following terms and their variant forms mean the following:

An "anonymous work" is a work on the copies or phonorecords of which no natural person is identified as author.

The "best edition" of a work is the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.

A person's "children" are his immediate offspring, whether legitimate or not, and any children legally adopted by him.

A "collective work" is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

A "compilation" is a work formed by the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation" includes collective works.

"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, 'in which the work is first fixed.

"Copyright owner," with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.

A work is “created" when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.

A "derivative work" is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, con

densation, or any other form in which a work may be recast, transformed,
or adapted. A work consisting of editorial revisions, annotations, elab-
orations, or other modifications which, as a whole, represent an original
work of authorship, is a "derivative work."

A “device,” “machine,” or “process" is one now known or later developed.
The terms "including" and "such as" are illustrative and not limitative.
A "joint work" is a work prepared by two or more authors with the in-
tention that their contributions be merged into inseparable or interdepend-
ent parts of a unitary whole.

"Literary works" are works expressed in words, numbers, or other verbal
or numerial symbols or indicia, regardless of the nature of the material
objects, such as books, periodicals, manuscripts, phonorecords, or film, in
which they are embodied.

"Motion pictures" are works that consist of a series of images which, when
shown in succession, impart an impression of motion, together with any ac-
companying sounds, regardless of the nature of the material objects, such
as films or tapes, in which they are embodied.

"Phonorecords" are material objects in which sounds, other than those ac-
companying a motion picture, are fixed by any method now known or later
developed, and from which the sounds can be perceived, reproduced, or other-
wise communicated, either directly or with the aid of a machine or device.
The term "phonorecords" includes the material object in which the sounds
are first fixed.

"Pictorial, graphic, and sculptural works" include two-dimensional and
three-dimensional works of fine, graphic, and applied art, photographs,
prints and art reproductions, maps, globes, charts, plans, diagrams, and
models.

A "pseudonymous work" is a work on the copies or phonorecords of which
the author is identified under a fictitious name

"Publication" is the distribution of copies or phonorecords of a work to
the public by sale or other transfer of ownership, or by rental, lease, or
lending.

"Sound recordings" are works that result from the fixation of a series
of musical, spoken, or other sounds, but not including the sounds accom-
panying a motion picture, regardless of the nature of the material objects,
such as disks, tapes, or other phonorecords, in which they are embodied.
"State" includes the District of Columbia and the Commonwealth of
Puerto Rico, and any territories to which this title is made applicable by
an act of Congress.

A "supplementary work" is a work prepared for publication as a second-
ary adjunct to a work by another author for the purpose of introducing,
illustrating, explaining, commenting upon, or assisting in the use of the other
work, such as forewords, introductions, prefaces, pictorial illustrations,
maps, charts, tables, editorial notes, tests and answers, bibliographies,
appendixes, and indexes.

A "transfer of copyright ownership" is an assignment, mortgage, exclusive
license, or any other conveyance, alienation, or hypothecation of a copy-
right or of any of the exclusive rights comprised in a copyright, whether
or not it is limited in time or place of effect, but not including a non-ex-
clusive license.

To "transmit" a performance or exhibition is to communicate it by any
device or process whereby images or sounds are received beyond the place
from which they are sent.

The "United States," when used in a geographical sense, comprises the
several States, the District of Columbia and the Commonwealth of Puerto
Rico, and the organized territories under the jurisdiction of the United
States Government.

The author's "widow" or "widower" is the author's surviving spouse under
the law of his domicile at the time of his death, whether or not the spouse
has later remarried.

A "work made for hire" is:

(1) a work prepared by an employee within the scope of his em-
ployment; or

(2) a work specially ordered or commissioned for use as a contri-
bution to a collective work, as a part of a motion picture, as a transla-

tion, or as supplementary work, if the parties expressly agree in writ-
ing that the work shall be considered a work made for hire.

§ 102. Subject matter of copyright: In general

Copyright protection subsists, in accordance with this title, in original works
of authorship fixed in any tangible medium of expression, now known or later
developed, from which they can be perceived, reproduced, or otherwise com-
municated, either directly or with the aid of a machine or device. Works of
authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures;

(7) sound recordings.

§ 103. Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes com-
pilations and derivative works, but protection for a work employing pre-existing
material in which copyright subsists does not extend to any part of the work
in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished from the
pre-existing material employed in the work, and does not imply any exclusive
right in the pre-existing material. The copyright in such work is independent of,
and does not affect or enlarge the scope, duration, ownership, or subsistence
of any copyright protection in the pre-existing material.

§ 104. Subject matter of copyright: National origin

(a) UNPUBLISHED WORKS.-The works specified by sections 102 and 103, while
unpublished, are subject to protection under this title without regard to the na-
tionality or domicile of the author.

(b) PUBLISHED WORKS.-The works specified by sections 102 and 103, when
published, are subject to protection under this title if--

(1) on the date of first publication, one or more of the authors is a na-
tional or domiciliary of the United States, or is a national, domiciliary, or
sovereign authority of a foreign nation that is a party to a copyright treaty
to which the United States is also a party; or

(2) the work is first published in the United States or in a foreign na-
tion that, on the date of first publication, is a party to the Universal Copy-
right Convention of 1952; or

(3) the work is first published by the United Nations or any of its special-
ized agencies, or by the Organization of American States; or

(4) the work comes within the scope of a Presidential proclamation.
Whenever he finds it to be in the national interest, the President may in
his discretion extend, by proclamation, protection under this title to works
of which one or more of the authors is, on the date of first publication, a
national, domiciliary, or sovereign authority of any designated foreign
nation, or which are first published in any designated foreign nation, and
he may revise, suspend, or revoke any proclamation or impose any con-
ditions or limitations on protection under a proclamation.

§ 105. Subject matter of copyright: United States Government works

(a) Copyright protection under this title is not available for any work of
the United States Government, but the United States Government is not pre-
cluded from receiving and holding copyright transferred to it by assignment,
bequest, or otherwise.

(b) A "work of the United States Government" is a work perpared by an
officer or employee of the United States Government within the scope of his
official duties or employment.

§ 106. Exclusive rights in copyrighted works

(a) GENERAL SCOPE OF COPYRIGHT.-Subject to sections 107 through 114, the
owner of copyright under this title has the exclusive rights to do and to authorize
any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, to exhibit the copyrighted work publicly.

(b) DEFINITIONS OF CERTAIN EXCLUSIVE RIGHTS.

(1) To "perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture, to show its images or to make the sounds accompanying it audible. (2) To "exhibit" a work means to show a copy of it, either directly or by means of motion picture films, slides, television images, or any other device or process.

(3) To perform or exhibit a work “publicly" means:

(A) to perform or exhibit it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and social acquaintances is gathered;

(B) to transmit or otherwise communicate a performance or exhibition of the work to the public by means of any device or process.

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of section 106, the fair use of a copyrighted work is not an infringement of copyright.

§ 108. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord

(a) Notwithstanding the provisions of section 106 (a) (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by him, is entitled, without the autnority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

(b) Notwithstanding the provisions of section 106 (a) (5), the owner of a particular copy lawfully made under this title, or any person authorized by him, is entitled, without the authority of the copyright owner, to exhibit that copy publicly to viewers present at the place where the copy is located.

(c) The privileges prescribed by subsections (a) and (b) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.

§ 109. Limitations on exclusive rights: Exemption of certain performances and exhibitions

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or exhibition of a work by instructors or pupils in the course of face-to-face teaching activities in a classroom or similar place normally devoted to instruction;

(2) performance of a nondramatic literary or musical work, or exhibition of a work, by or in the course of a transmission, if the transmission is made primarily for reception in classrooms or similar places normally devoted to instruction and is a regular part of the systematic instructional activities of a nonprofit educational institution;

(3) performance of a nondramatic literary or musical work or of a dramatico-musical work, or exhibition of a work, in the course of services at a place of worship or other religious assembly;

(4) performance of a nondramatic literary or musical work, otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if:

(A) there is no direct or indirect admission charge, or

(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain;

(5) the further transmitting to the public of a transmission embodying a performance or exhibition of a work, if the further transmission is made