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Mr. DRINAN. By the grandfather clause, you mean?
Ms. Ringer. Yes, I think so. I am answering your question as of now, but I don't know for sure.
Mr. KASTENMEIER. You may proceed.
Ms. Ringer. The only other point I had regarding this chapter, Mr. Chairman, is a subject quite a few others talked around and perhaps I should mention before I come to the question of music. There is language with respect to limiting the exemption under section 108 to reproductions that are made without any purpose of direct or indirect commercial advantage and, in truth, when you look at the history of this and the language itself, it is not absolutely clear what this covers. I believe that the intention was not to exempt libraries in industrial concerns or large law firms or corporations and so forth. Obviously, it only applies to libraries and archives, but a simple collection of books could be considered an archive or a collection of periodicals could be considered an archive, too. And the limitations of the exemption do not apply only to nonprofit organizations.
In other words, it is the act that has to be nonprofit and not the organization doing it, and the Special Libraries Association, whose principal membership consists very largely of profitmaking organizations, has become concerned and wants to become included in the exemption. I don't think this was the intention originally, but I do think you should look at this question very closely.
The next point on-if you will bear with me
Ms. RINGER. I am looking for it; yes, page 40. Page 40 covers profitmaking organizations and this language was in the librarians' own draft, as put forward in a document by the Judiciary Subcommittee in 1969. This question of interpretation had not been raised until your hearings. And the legislative history, which I laid out here on pages 41 and 42, that history is not all that conclusive. It should be noted—and I am reading from the middle of page
42it should be noted that, as the section is now written, it makes no difference whether the library or archive is part of a profitmaking organization; the question is whether the reproduction is made without any purpose of direct or indirect commercial advantage.” And that point should certainly be clarified.
On the substance of the question, the Copyright Office adheres to its 1961 position. We believe that a library or archive in a profitmaking organization should not, without copyright licenses, be entitled to go beyond fair use in providing photocopies to employees engaged in furtherance of the organization's commercial enterprise. We believe that this was the meaning intended by the drafters of the language in question, and that this interpretation should be reflected in the report. But, I think this is something that you need to debate. The implicaions are rather broad and much broader than the rather limited testimony that you heard on this subject.
I would say that the other issue in all of this that you will need to consider carefully is the scope of subsection (h), which was one of the three main proposals of the library group in its testimony. The librarians recommended that it be deleted, along with all of section (g). And it does except from the exemption musical compositions, pictorial, graphic, and sculptural works, and motion pictures and other audiovisual works.
I went through the testimony fairly carefully, and I couldn't find much discussion beyond Dr. Low's original presentation of this subject, except in the context of music. And after the hearing, there was some correspondence on this point. Rather than go into this in great detail, I will read you the conclusions that we drew on page 43, which are as follows:
Although the librarians at the 1975 hearings sought the complete deletion of subsection (h), their proposal seemed to involve music more than the other categories covered by that provision. The Copyright Office recognizes the concern of music librarians, but we believe that—with respect not only to music but also to pictorial graphic, and sculptural works, and motion pictures and other audiovisual worksthe needs of scholars can and should be met through fair use. It is especially important for the legislative report to make clear the relationship between sections 107 and 108(h).
I might say in this connection, I think there are cases where fair use would apply to photocopying of music and even motion pictures. The examples that were given in Dr. Low's testimony were excerpts and short passages and that sort of thing. And I could even see a situation where the motivation and the scholarly pursuit would justify, under fair use, one complete copy of, say, a drawing or a print, or something like that.
But the exemptions that are basically in subsections (d) and (e) and (f) of section 108 were drawn without these things in mind. I think that it would probably be a mistake to go that far. I think that the report should say something about music, and the fact that for a real scholarly purpose and not for a performance, but a scholarly purpose, photocopying music could be a fair use.
I also think, and this is the last paragraph of this section on page 43, that some attention should be directed at a point not raised at the hearing, but which is of real concern. This is the question of pictorial and graphic works reproduced as illustrations in books, periodicals, and other literary works. No one has really made this point, but it does seem to me there probably was no intention to make somebody making a photocopy legally of a journal or article or book under section 108 (a) or (e), blank out the pictures or the tables or what have you. And I think that clearly they should be exempted, along with the larger works in which they appear as an illustration. I think this probably should require an amendment to subsection (h).
There are other points under this, but I think this probably covers the main ones, Mr. Chairman.
Mr. KASTENMETER. Thank you. Ms. Ringer. Having concluded the first three chapters today, I think we will take due note of the hour and terminate this very productive session. We are very grateful to von. I compliment vou on your presentation. You have been most helpful to this committee. I look forward to reconvening this committee
3 weeks from today, Thursday morning, October 30, at 10 in this room, where we will resume.
I yield to the gentleman from Massachusetts.
Mr. DRINAN. I want to echo what the chairman said. I apologized to Ms. Ringer earlier. I had three other committee meetings to attend. But she is a delight as a witness, because she obviously knows infinitely more about this than I do.
Ms. Ringer, I am receiving letters from all types of famous people, like Richard Rodgers, and I may actually have to send them to you.
Mr. KASTENMEIER. Ms. Ringer, the full text of your statement and the materials will, of course, go in the record.
The committee stands adjourned until the 30th of October.
[Whereupon, at 12:30 p.m., the subcommittee recessed, to reconvene at 10 a.m. Thursday, October 30, 1975.]
COPYRIGHT LAW REVISION
THURSDAY, OCTOBER 30, 1975
HOUSE OF REPRESENTATIVES,
AND THE ADMINISTRATION OF JUSTICE
Washington, D.C. The subcommittee met, pursuant to notice, at 10:15 a.m. in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee) presiding.
Present: Representatives Kastenmeier, Pattison, Drinan, and Railsback.
Also present : Herbert Fuchs, counsel; and Thomas E. Mooney, associate counsel.
Mr. KASTENMEIER. The hearing will come to order this morning.
We will hear the next-to-the-last installment of the closing testimony of Ms. Barbara Ringer in regard to copyrights. Hopefully, the next and last session will take place on Thursday, November 6.
We are fortunate, as some mornings we have not been. We have been preempted by floor business and other matters. Once again we greet you, Ms. Ringer, and if you perhaps it might be well if you could very briefly recap what happened last time to put what we have had in context with where you shall proceed from. TESTIMONY OF BARBARA RINGER, REGISTER OF COPYRIGHTS, LI
BRARY OF CONGRESS, ACCOMPANIED BY DOROTHY M. SCHRADER, COUNSEL
Ms. RINGER. I am Barbara Ringer, the Register of Copyrights. I am accompanied by Dorothy M. Schrader, the General Counsel of the Copyright Office.
As I indicated in my testimony 3 weeks ago, the effort I will be making today and next Thursday is not to put forward my own suggestions with respect to the legislation, but to help you in identifying and reconciling the remaining issues in the bill.
I have prepared and am nearing completion of a second supplementary report of the Register of Copyrights on general revision of the copyright law. This report seeks to put the issues in some sort of historic perspective because, as we all know, the bill has been before the Congress for more than 10 years now.
I started last time with a very brief general summary of the entire bill, trying to show its origins and its structure I then began with the problem areas that are presented to you to resolve, more or less in the order in which they occur in the bill. Last time I dealt first with a range of problems involving subject matter of copyright; second, with the problem of fair use in reproduction for educational purposes; and third, of the problem of library and archival photocopying.
This is as far as we got. I do not see much point in reviewing the rather complicated testimony I gave. It is in the record. But I will be glad to answer any remaining questions you have on those three chapters of the report, those three big areas of subject matter. I think we covered them pretty thoroughly.
With your permission, I will go on to chapter 4 then.
Ms. RINGER. Chapter 4 of the supplementary report deals with limitations on performance rights, with the exception of those limitations dealing with nonprofit broadcasting, which I hope to get to before the day is over.
Let me start with a very general review of section 110, which is a key section in the bill. It lays out eight specific areas in which performing rights of various sorts are limited in one way or another. I will just run them down. They are on page 3 of the chapter.
First is face-to-face teaching activities.
The second, instructional broadcasting, I will cover under what is chapter 6 of the supplementary report.
The third is performances in the course of religious services.
Fourth is live performances without commercial advantage to anyone. This was a rather complicated and at one time controversial provision that has not attracted any attention for some years.
The fifth is an important section and is one of the things I will talk about today--the mere reception of broadcasts in a public place, such as a restaurant.
The sixth was added in the Senate after you had finished with the bill in 1967: annual agricultural and horticultural fairs.
The seventh is similarly in response to proposals put forward by very special interests, public performance in connection with the sales of sheet music and records.
The eighth was added in the full Senate Judiciary Committee on October 7–for noncommercial broadcasting to the blind or deaf.
The two questions that were not raised during the hearings but are presented by this section I can I think characterize very generally as the Aiken case question, the subsection (5) question, and the ballroom question, which was presented directly to the Senate Judiciary Committee in its markup and voted upon. It was voted down. I will come to this in my explanation.
Let me talk first about subsection (5). I think it is short enough for me to read : "Communication of a transmission embodying a performance or display of work by the public reception of the transmission on a single receiving apparatus of the kind commonly used in private homes." This is exempted unless, first, a direct charge is made, or second and this is crucial—the transmission thus received is further transmitted to the public.
You probably are unaware of this as an issue because it was not raised as such during the hearings. It has been a roiling issue in U.S.