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Mr. KASTENMEIER. Thank you, Ms. Ringer, for a very comprehensive review historically of the issues involved in copyright law revision.
The Chair will state, that at our next hearing, we will have Government represented by three other entities, the Justice Department, the Commerce Department, and the State Department, and to some extent, other aspects will be more deeply explored with reference to the bill in terms of its administration from the governmental point of view.
I have at this point just a couple of questions and then I would like to yield to my colleagues. From time to time there have been arguments made that we could leave something out of the bill.
Indeed, from time to time, certain areas have not been covered in the bill. But is it not the case, this being a unified code, that the operation of the bill does apply whether or not we specifically deal with a subject or not? That is to say, all we have done in a sense is by our nonstatement, to leave the matter somewhat unresolved in terms of potential litigation?
Therefore, we can really not fail to deal with an issue. It will be dealt with one way or the other. The code, title 17, will cover it. So we have made a conscientious decision even by omission. Do you agree?
Ms. RINGER. I would agree. In 1909 there was probably no intention to protect sound recordings. I think the legislative history would bear this out although it is ambiguous. In the early 1970's there was an increase in record piracy because of the increasing popularity of 8-track cartridges. As a result, there was a major effort to get States to pass legislation or to enforce common law protection of what were clearly, in a layman's sense, published works because of the lacuna in the 1909 statute. There was no explicit protection. This issue went all the way to the Supreme Court and the Supreme Court upheld the validity of a State criminal statute against record piracy on the ground that Congress had not preempted that protection since it had failed to act.
You may not even be refraining deliberately from giving protection, which I think was the thrust of your question. You may, in fact, be handing them State protection which is variable and inconsistent in many cases and has a lot of undesirable features. These were the very undesirable features that Madison mentioned in the "Federalist Papers" when he was defending the copyright clause in the Constitution.
Mr. KASTENMEIER. By virtue of passing this bill, we will deal with every issue. Whether we deal with it completely or not for the purpose of resolving the issues involved is the only question, not whether it has dealt with the four corners of the bill because the four corners of the bill will presume to deal with everything in copyright.
Ms. RINGER. I quite agree, Mr. Chairman.
Mr. KASTENMEIER. One of the apprehensions that, as we develop this bill and probably future amendments to it, is that by creating rights and extending rights, we might make the law very complicated given the present state and future state of society, that the business of getting clearances and knowing what levels of rights are really being accorded may get extraordinarily difficult, particularly for users.
What is your comment to that?
Ms. RINGER. This has been a concern to us in the Copyright Office, too. There are some situations—and I think cable is one of the best examples I have ever seen-that are so intrinsically complicated that you cannot deal with them in a broad-brush way.
I think that your efforts to deal with the CATV problem in 1965 which were attacked as being terribly complicated are extraordinarily clear and simple compared to the FCC regulations which in effect did the same thing.
At the same time, I am very disturbed about the increasing reliance on compulsory licensing to resolve difficult conflicts. The law is so out of date that there are now areas in which authors are simply not being protected at all. In these areas there have built up user interests that are so strong and so deeply embedded that to impose outright copyright liability, with no if's, and's or but's, would create very serious problems.
Because the 1909 law has been allowed to become hopelessly out of date, you have to compromise, and the obvious compromise in many of these cases is compulsory licensing.
When you begin this game in areas now protected under copyright, where the protection already exists and licensing arrangements have already been made, then I think you are doing something very drastic, and the ultimate result could be substantial changes in the character of copyrights that might actually make it harmful to the author rather than helpful.
Mr. KASTENMEIER. Now, I would like to yield to the gentleman from California, Mr. Wiggins.
Mr. WIGGINS. Following you will be many witnesses who will reflect their economic interests and you may be one of the few witnesses who do not have an obvious economic stake in this bill.
Can you help me with some of the problem policy issues which may pervade all of these sections of the bill? I think I can understand a person's economic ax. I respect their points of view. But, I am not sure I really understand the public policy issues involved and I would like your assistance.
Ms. RINGER. The 1909 Joint Congressional Committee, in its report No. 2222, made a statement which has been quoted many times and which I agreed with at one time, but which I have ceased to agree with.
I will paraphrase it. It was that copyright is not for the protection of the author, but for the public and that where the author's interests and the public's interests conflict, the author must yield.
This sounds great and for a long time, I felt that this was probably correct. But, the more I have looked upon the status of authors in this country and the fact that the public interest is badly served when authors are badly served, I have felt that too often the public interest has been identified with economic users rather than with authors.
In recent years, partly as a result of this whole revision exercise, I have been trying to gage individual issues in terms of their impact upon creativity and authorship, which I consider the ultimate public interest.
The Constitution speaks of the desirability of promoting the progress of science and useful arts, science in the broad sense of learning or knowledge, by offering protection for limited times to authors and inventors.
It seems to me that it is this protection, the exclusive rights that are supposed to be granted to authors, that is the ultimate public interest that the Constitution and its drafters were thinking about.
I do not think that this has ever been fully or even partly realized in any copyright law we have had in our entire history.
Mr. WIGGINS. I was wondering if you would place the dissemination for the benefit of the public-and I might add for the profit of the disseminators-on an equal plane with the protection of the authors and inventors?
Ms. RINGER. Yes. I think that the system that we have had has been based on the desire to induce dissemination, make works available to the public by offering protection to authors.
I think that this system is now subject to some difficulty because of the fact that the new technology has made it an absolute detriment to disseminate. In other words, an author in certain situations who lets. the bird out of the cage, finds that there is no way to regain it, that once he has made a tape and it has been played over the radio or television, he finds suddenly it is being pirated or made in duplicates all over the country.
It is very, very difficult in that situation for him to realize any economic gain or reward for his creation and there may be situations in which he would prefer to keep his bird in its cage, so to speak.
I am speaking in terms of music, but I think the example is better in some areas where there is a more realistic possibility of exercising complete control.
The task of your committee, as I see it, is to try in some way to evaluate the impact of the new dissemination media on the basic task of giving authors a reasonable return and inducing them to let the work go out to the public.
We are in really big trouble on this, in my opinion, at the moment. Mr. WIGGINS. Thank you.
Thank you, Mr. Chairman.
Mr. KASTENMEIER. The gentleman from California, Mr. Danielson? Mr. DANIELSON. I wish to thank Ms. Ringer, Mr. Lorenz, and Mr. Kaminstein for their contribution this morning. It was most helpful.
Will Ms. Ringer be back again? I have a couple of questions.
Mr. KASTENMEIER. As a matter of fact, yes. We will have Ms. Ringer back perhaps at an earlier time than later because it is obvious today we will not have time for extended examination on a number of issues which have been raised.
Mr. DANIELSON. All right.
Beyond that, I want to thank my colleague, Mr. Wiggins, for raising the point he just did raise and for your response to it. It was directly responsive to one question in my mind. As I read the Constitution, the justification for copyright in the first place-and the only one in the Constitution-is to promote the progress of science and useful arts.
So far as I am concerned, any legislation which I will support will have to be calculated to achieve that end, to promote the progress of science and useful arts.
The copyright is the means through which that end is accomplished and that will be, I believe, the general rule that I am going to follow here.
I wish to thank Mr. Kaminstein and commend him for the magnificent perception of the legislative process which is set forth in the next
to the last paragraph of his statement, and of the responsibility of the Congress in meeting that process.
I wish every legislator would include that as part of his morning devotions or ablutions.
Mr. KASTENMEIER. The gentleman from Massachusetts, Mr. Drinan? Mr. DRINAN. I want to welcome Ms. Ringer back. I am sorry I had another subcommittee. That subcommittee was about bankruptcy, and the Congress has been even more apathetic about bankruptcy than about copyright laws.
I thank you for your appearance here today and I wish to thank the
other two witnesses.
Mr. KASTENMEIER. The gentleman from New York, Mr. Pattison?
Mr. KASTENMEIER. I am astounded. [Laughter.]
Probably it is the better part of wisdom, since the House is in session, to terminate at this period and to thank all three witnesses, Mr. Lorenz, Mr. Kaminstein, and Ms. Ringer, for illuminating the subcommittee and updating it on the subject of copyright.
Particularly what Ms. Ringer has contributed this morning will raise a number of other issues, other questions, with which I am in entire agreement with the gentleman from California, Mr. Danielson, on and suggest further colloquy.
Rather than get into those thickets at this hour, I think we will let the morning testimony stand. It does sound not only hopeful, but gives us the frame of reference for now proceeding hopefully to a successful end.
In conclusion the Chair desires to again thank our witnesses this morning.
Mr. DANIELSON. Is there any chance of getting a larger room for tomorrow? There are a lot of people standing up back there that would rather sit.
Mr. KASTENMEIER. We will do what we can do in that regard. The committee is very impressed by the public interest. We will try to bring additional chairs in and accommodate those standing today.
Tomorrow we will have representatives of the Justice Department, Commerce Department, and the State Department on the question of general copyright revision. Until then, the subcommittee stands adjourned.
[Whereupon, at 12:10 p.m., the subcommittee adjourned, to reconvene at 10 a.m., Thursday, May 8, 1975.]
COPYRIGHT LAW REVISION
THURSDAY, MAY 8, 1975
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
The subcommittee met, pursuant to call, at 10:10 a.m. in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee] presiding.
Present: Representatives Kastenmeier, Danielson, Drinan, Badillo, Pattison, and Railsback.
Also present: Herbert Fuchs, counsel; Bruce A. Lehman, counsel; and Thomas E. Mooney, associate counsel.
Mr. KASTENMEIER. The committee will come to order. This morning is the second morning devoted to hearings on the subject of H.R. 2223 and other bills relating to the general revision of the copyright law.
We are pleased to have as our first witness this morning, representing the State Department, Deputy Assistant Secretary for Commercial Affairs and Business Activities, the Honorable Joel W. Biller. Mr. Biller is accompanied by Philip R. Trimble, Assistant Legal Adviser for Economie and Business Affairs.
Is Mr. Biller here?
Mr. BILLER. Yes.
Mr. KASTENMEIER. We will be happy to hear what you have to say. TESTIMONY OF JOEL W. BILLER, SECRETARY FOR COMMERCIAL AFFAIRS AND BUSINESS ACTIVITIES, DEPARTMENT OF STATE
Mr. BILLER. Thank you, Mr. Chairman. Mr. Trimble is sitting on my right and Mr. Bushnell is on my left.
I greatly appreciate having the opportunity to present the views of the State Department on H.R. 2223, for the General Revision of the Copyright Law, title 17 of the United States Code, and for other purposes. Although we take exception to one section in this bill, the Department otherwise supports the enactment of this important legislation.
As the committee knows, the present U.S. copyright law is essentially the same as the act of 1909. Since that date, great advances have been made in technology and techniques for communicating printed matter, visual images, and recorded sounds. These advances have created new industries and methods for the reproduction and dissemination of copyrighted works.