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It is completely unlike any other copyright law in the world and, in some cases, is simply a historic vestige. We have in this country a dual system of copyright. We are the only country that has this. We have a system that consists of common law copyright in a work up to the point of first publication. At that point the work either falls into the public domain or it becomes subject to statutory copyright. Publication is the dividing line between common law protection and either the public domain or the limited statutory protection of the 1909 law.

I don't think I need to stress that the concept of publication has now become outdated and slightly ridiculous. We are now in an era in which there are very few works that are not capable of being disseminated by media other than print, and many works never see print and are disseminated entirely through various electronic media. This system has resulted in peculiarities and injustices, none of these less than the monstrous formalities that were retained and added to in the 1909 law. The fact is that if you publish a work, publish in the print sense, without a copyright notice in the correct form and position, you throw your work into the public domain regardless of what your intentions were.

The revision bill attempts to deal with the entire copyright situation as it now exists and, to the extent that it is possible to predict it, into the next century.

It provides essentially a simple system which is nothing novel. This system exists everywhere in the world. It is a system of a term based on the creation of the work. In other words, when the author figuratively lifts his pen from his paper, he has a copyright under the Federal law and under the Constitution, and he has it for his lifetime.

There is no possibility that it would expire during his life, which is possible and in fact likely, under the present law. The international norm for the term of copyright is the life of the author plus 50 years. This is now in effect in a large majority of countries that have copyright laws.

Mr. DANIELSON. Mr. Chairman, I should like to inquire.

Mr. KASTENMEIER. The gentleman from California.

Mr. DANIELSON. Ms. Ringer, you just mentioned that automatically under the bill the creator has a lifetime copyright. Perhaps as we go along as a new member of this subcommittee, I will have my present question resolved.

As I read the Constitution it authorizes to secure for limited times and in the absence of compelling evidence I am going to assume we have the right to make that less than a lifetime.

Can you explain that difference, please?

Ms. RINGER. There is nothing unconstitutional about the present law which provides a first term of 28 years with a second term under a renewal system of 28 years; and as I mentioned this second term has been extended by recent enactments of Congress.

There is nothing unconstitutional about that. At the same time. I would find myself unable to agree with any argument that a term based on the life of the author and a finite number of years after his death was not a limited term.

Obviously people die. Everyone dies and that in itself is a limited term. If you add 50 years after that, you are definitely creating a limited term.

I think a better argument could be made that, under the present law, when you lift the pen from the paper you have an automatic common law copyright that is perpetual as long as the work is not "published."

And I believe there might be some question as to whether or not this is constitutional. That there are many, many manuscripts sitting over in the Library of Congress which may well be subject to protection for generations, centuries, perhaps even eons.

This seems against the public interest. One of the arguments for a life-plus-50 term is that not only does it provide a clearcut cutoff date but the date is the same for every work that an author writes.

In other words, for all of an author's works under a life-plus-50 system, every work falls into the public domain at the same time and you don't have this system that we have now where you have to do a lot of research to determine when a work falls into the public domain.

Mr. DANIELSON. Suppose Congress would enact a law which would limit this to 10 years, which might very well be less than a lifetime? Ms. RINGER. I am not suggesting that the system in the bill is something dictated by the Constitution or anything other than international norms that have been established and accepted throughout the rest of the world.

What I am saying is that 10 years might be sufficient

Mr. DANIELSON. I am only talking about constitutionality. If we limited a copyright to 10 years, I can see no reason why that would not be constitutional.

Ms. RINGER. Nor can I.

Mr. KASTENMEIER. You may continue.

Ms. RINGER. Thank you. The present bill, the bill we are now considering, H.R. 2223, in addition retains the formalities that have been bugaboos under the present law, but liberalizes them to the extent that they are not the all-or-nothing disasters that authors face now.

In other words, if you publish your work without a notice or with an incorrect notice, the bill allows you to correct your mistake. This is true of other formalities. You would do something because there is a reason for it and not just because the law says you have to.

There is another provision which I am doubtful anyone will raise as an issue, but I might mention in the context of the general content of the bill. There are reforms that are of benefit to authors and artists with respect to ownership, in addition to the longer term, and one of the most notable of these is in section 203 of the bill.

Instead of the present complex and rather arbitrary and capricious renewal provisions, it allows an author or his beneficiaries to re-do a bad deal. In effect, the present law was intended to accomplish that result but has been most imperfect in doing this.

Section 203 is the reversion provision which basically allows an author, if he is still living or his widow and children and grandchildren to terminate a transfer after 35 years under certain circumstances.

If they don't do that, then the contract continues. If they do do it, then they have an absolute right to call the deal to a halt. In my opinion, despite the complexity of the provisions, it is a real plus forauthors.

Let me say that most of the real issues that you are going to be considering are not going to be before you in the testimony. The real issues are the reform of the copyright law and the things that I have been talking about.

The issues that you will be hearing about are very, very important to authors, among other groups, but they are almost all outside the basic guts, if you will, of the bill itself.

The most important of these separate issues still remains, cable television. There were some hopeful signs in the early seventies that an agreement might be reached on this issue, but they turned out to be somewhat premature.

Let me say that your subcommittee in the middle sixties was a pioneer on this issue. It hit your predecessors cold. There had been some consideration of this in the context of FCC regulations and Senator Pastore had sponsored a bill in the communications area. But in terms of the major issues raised by copyright liability for cable operators, no one before you, in my opinion, had come to grips with the ultimate problems, the question of division of markets, and the importation of local as against distant signals and how the whole thing might be worked out in a way that will benefit authors.

Your first essay on this, your bill that was put before the House in 1967, was a pioneering effort, and no one should be ashamed of it. I think it is recognized today as more sophisticated than anyone could have expected for a bill at that time. You recognized complex truths about this important public issue before others did and in fact up until the end of the sixties, people were still asking, what is cable television?

This issue, I believe, is finally approaching a resolution, although there will be sharply conflicting testimony. You cannot blame people for wanting to get the best deal they can, and nothing is black, white, or even gray on this issue.

I will answer any questions that you have. The bill itself establishes a compulsory licensing system which in effect is based on this principle, that if the FCC says that a system can carry a signal, then the System automatically has a compulsory license to carry that signal and the copyrighted program, on the signal, and there is an elaborate compulsory licensing procedure and a complex schedule of fees that cable systems would have to follow and pay in order to insulate themselves from liability for copyright infringement.

Essentially, the thing is basically a complete compulsory license. The bill that you reported in 1967 did not have a compulsory license for CATV, although you considered it. It did have exemptions and complete liability. It was black and white and no gray.

What has emerged is quite different and yet I think that the principles underlying it are still the same principles and I think the result is probably an acceptable one.

The testimony you hear, I hope, will be largely over the details of the system and not whether or not cable ought to pay. There will be some testimony to this effect, but it seems to me that maybe we are beyond that point. As things stand now, it is mainly a question of how they pay and how much.

Another issue which was not dealt with by your committee at all, although you heard testimony on it, was that of library photo

copying and I would rank this as the second most important issue in the bill.

It is now dealt with in section 108 of H.R. 2223. The reason that you did not report a provision on this subject was that the parties respectively, and for absolutely opposite reasons, agreed that the bill should not address the problem.

At that time, and it was before the full impact of library photocopying and photocopying machines generally had been felt, the feeling on the part of the copyright owners was that a provision specifying explicitly what the liability of libraries would be would have deleterious effects, since the owners felt that they had complete rights and libraries should not photocopy at all without paying. The library community felt just the opposite.

I think it was a mistake for the bill to say nothing. Looking back, I think that some provision on this was essential. What has emerged in section 108 has been fought over in a friendly way for a number of years in the Senate context. Essentially, section 108 insulates libraries from liability for the operation of coin-operated machines on their premises and allows them to photocopy single copies of articles and excerpts from journals and books, and so forth, in their collections. If it is clear that a work is out of print, they can make a single complete copy for a user. Some of this activity can be carried out for inter-library loan purposes.

The big issue in section 108 is found in subsection (g), and the briefing paper in the folder that I will give you goes into this in some detail.

Under the final version that emerged in the Senate, after saying what libraries can do, the bill says that this does not apply to multiple copying, including making multiple copies one at a time and it does not apply to single copying when it is done systematically.

It is still not altogether clear in anyone's mind what systematic copying means, but there is a good deal of concern on the part of librarians as to the chilling effect this would have on their interlibrary loan and network activities which are ongoing and very important as a public issue.

This is something that badly needs resolution. You passed and the President did sign on December 31 of last year, a bill setting up a national commission that has as part of its mandate, a study of this problem.

At the same time you yourselves, will have to decide what section 108 and specifically section 108 (g), says on this particular subject. There are other activities going on in the library photocopying arena and you will hear more about them as your hearings proceed.

An issue of great immediate importance in the subcommittee level right now is the liability of public broadcasting. In 1967 your subcommittee agreed that instructional television should be given an exemption to a certain extent from copyright liability and during the House debates, this exemption was expanded.

But at the same time the exemption was limited to instructional television. Public broadcasting which to some extent enjoys an exemption today would be liable under H.R. 2223. The public broadcasters and their representatives have been seeking a very broad and far

reaching compulsory license with respect to the use of copyrighted material other than motion pictures, audiovisual works and dramatic

works.

Their concern is with the high cost and difficulty in getting clearances and the fact that their budget does not permit them to do the clerical work or to pay extensive royalties.

The Senate subcommittee staff is now engaged in a series of meetings trying to resolve this issue. The signs are relatively hopeful and perhaps with certain amounts of good will and cooperation, you will not have to face what is known generally as the Mathias amendment, which would be the proposal for a compulsory license covering public broadcasting.

Related to this is another amendment put forward in the last Congress by Senator Bayh which would extend to an unlimited amount the number of recordings, tapes, that an instructional broadcaster could make of broadcasts for use in delayed broadcasts or throughout the whole complex of instructional broadcasting.

In my opinion, this is an important issue but it is not as important as the Mathias amendment, and I expect the two will be considered together whenever they get to you.

In the area of jukeboxes, a very difficult compromise was achieved in 1967 and, astonishingly, it has held up. This involved a compulsory license for jukebox performances with a payment of $8 by jukebox operators per box per year, the payments being made into the Copyright Office and then disbursed under the procedure provided.

As a result of the cable wars in the Senate, an amendment was added which establishes a copyright tribunal, chapter 8 of the bill, and gives it a double mandate. First, in certain cases, the tribunal would settle disputes with respect to the disbursement of fees. This does not seem objectionable to most people.

But in addition the tribunal would be called upon, through what in effect is a compulsory arbitration system, to review the rates of the compulsory licenses that are set under the bill, and recommended changes which would become effective unless Congress chose to wipe them out.

The jukebox operators objected to $8 being subjected to a review, and in the Senate consideration last September, Senator Hollings put forward an amendment that took the jukebox rate out from under the tribunal review. This is the form in which the bill now appears.

The jukebox rate is frozen at $8 and it is not subject to review. I am reasonably sure you will hear testimony on this issue in the days to come.

I believe that this is the only real issue remaining with respect to the jukebox problem which, without any question, was our biggest headache in the early sixties.

The other economic issue that you will hear testimony on is the amount of the rate for the old traditional compulsory license covering the making of sound recordings of musical compositions.

The 1909 law was a pioneer. It adopted the first compulsory license in any field. It established a system which is still in effect today that allows a record producer to make a record of a copyrighted musical composition without permission if he follows a compulsory licensing procedure and pays 2 cents per record per song.

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