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data would be socially undesirable. If our interpretation of section 108 is wrong, we recommend that the section be changed to extend the applicable exemption to reproduction in machine-readable language for storage and use in information systems.
The ease of transfer of computerized data is another area in which H.R. 2223 raises a problem. Universities, research agencies, government, and private industry are developing information networks using computers and other electronic equipment to speed the transfer of information from source to user.
H.R. 2223 does not provide a method by means of which information systems users can easily obtain the permission of copyright owners for use of their material. The difficulty and loss of time entailed in many cases in contacting owners may inhibit users from including material in their systems. Or users may be unable to employ material in their systems in sufficient time in situations where speed is essential. It would appear in the public interest for the bill to contain some guarantee that information systems which are willing to pay royalties for material used can obtain easier access to copyrighted information, at least in high-priority areas such as scientific and technological works.
The proposed legislation also leaves unclear at what point in the use of computerized copyrighted material the liability for royalty payment attaches. Under H.R. 2223, it would seem that placing copyrighted data into a computer (which may form part of an information system) might infringe the copyright. Since the use of computers for storage and retrieval of information to some extent may replace the sale of books, in most cases the payment of royalties should be required. However, just where in the process the royalty payment should be assessed, is open to question. We believe it unwise to levy a “toll” at the "input" stage in the process. Levying on the “input" into computers could impede the development of information systems and may render meaningless any exemption for the use of computerized information for educational purposes which may be read into H.R. 2223.
The subject of the application of copyright to community antenna television has presented considerable difficulty in previous drafts of proposed revisions of the Copyright Code. H.R. 2223 attempts a compromise between the extreme positions of complete liability for infringement of copyright by secondary transmission by CATV on one hand and almost complete freedom from liability on the other hand. While we support the imposition of a degree of liability upon CATV, we believe that H.R. 2223 should provide an area of free use for such systems within the local service area.
The first part of subsection (c) of section 111 provides for compulsory licensing of secondary transmissions of a primary transmission by an FCC-licensed broadcast station upon compliance with the notice of ownership and the payment provisions of subsection (d), and (A) the signals of the primary transmission are exclusively aural and the secondary transmission is permissible under the rules, regulations, or authorizations of the FCC; (B) where the CATV system is, in whole or in part, within the local service area of the primary transmitter; or (C) where carriage of the signals comprising the secondary transmission is permissible under the FCC rules, regulations, or authorizations. We strongly urge, with respect to (B), that the secondary
transmittal should be completely free of liability; hence, royalty-free or no licensing would be in order. The secondary transmission in such a situation, where the CATV system is, in whole, or in part, within the local service area of the primary transmitter, finds the cable system only filling gaps or improving reception in the service area of the primary transmitter, supplementing the primary transmission. Such transmission does not impair the primary transmitter's market; in fact, it enhances it. The copyright holder is helped and not hurt by such activity
Section 203 and section 304(c) (6) (D) concern the termination of transfers and licenses. These sections would permit the author or his heirs to terminate the original transfer of his rights at any time during a period of 5 years beginning at the end of a specified time. However, section 203(b) (4) and parallel section 304(c) (6) (D), relating to transfers of copyrights subsisting after January 1, 1977, provide that an agreement to transfer rights subsequent to the termination of a prior transfer will not be valid unless made after the effective date of that termination or unless made to the original grantee or his successor in title.
We do not believe that the grantee or his successor should be in a preferred position to enter into an agreement for transfer prior to termination of the original transfer. We see no reason why all potential transferees should not have an equal opportunity to enter into such an agreement. It is therefore suggested that subparagraph (4) of section 203(b) and subparagraph (D) of section 304(c) (6) be deleted.
Section 302 substantially lengthens the time of copyright protection when compared with the duration of copyright in works under the present copyright law. At the present time, protection is granted for 28 years from the date of publication and may be renewed for a second 28 years, making a total potential term of 56 years in all cases. U.S. patents for any new and useful process, machine, manufacture or composition of matter or improvement thereof, are granted for a term of 17 years (35 U.S.C. 154). Patents for new, original, and ornamental designs of articles of manufacture are granted for a period up to 14 years (35 U.S.C. 173).
Patents for plants are granted for the same length of term as for new and useful processes, machines, manufacture or composition of matter (35 U.S.C. 161). Under the proposed bill, an author would receive a copyright for his life and 50 years after his death. Considering the average life expectancy of people today, this will double the length of copyright when compared with the present one for many works.
For anonymous works, pseudonymous works, and works made for hire, the term is somewhat less, but still significantly greater than provided by the present statute.
Senate report No. 93-983, pages 167–173, discusses various considerations for the duration of copyright in works. A major argument for increasing the term of copyright appears to be that the extension conforms with foreign laws which provide for longer terms of copyright than the present U.S. law. This argument is presented in the Senate today.
However, we do not believe that this should be the criterion for the proper length of copyright protection in the United States.
Under the Constitution, article 1, section 8, the purpose of a copyright is to promote the progress of science and useful arts by securing, for limited times, to authors and inventors the exclusive right to their respective writings and discoveries .While it may be urged that a copy, right term of 28 years plus an additional 28 years might be insufficient to protect the interests of an author in his writings in view of the lengthening of the ordinary lifespan in modern times, the proposed bill, by its extended duration of the copyright term, appears to carry the protection far beyond the contemplation of the framers of the Constitution.
As an alternative, we propose to provide for the lengthening of the term of the copyright duration to be at least coextensive with the lifetime of the author. In this way, the author will be insured protection of his work for at least as long as he may live. Thus, we propose the substitution of an alternative provision to section 302(a), as follows:
(a) In general, copyright in a work created on or after January 1, 1977, subsists from its creation, and except as provided by the following subsections, endures for a term consisting of 56 years or the life of the author, whichever is greater.
A conforming amendment should also be made in section 302(b). The provisions of section 302(c) should be modified to limit the duration of anonymous works, pseudonymous works, and works made for hire, to a period of 56 years from the year of their creation or first publication.
Our proposal would carry out the constitutional concept of promoting the progress of science and useful arts. A 56-year copyright term, as may be extended by the lifetime of the author, is believed more than adequate to promote this constitutional purpose.
It has also been urged that growth in communications media has lengthened the commercial life of many works. This does not justify lengthening the term of a copyright beyond 56 years or the lifetime of the author because a lengthened commercial life is not necessarily consistent with the basic constitutional purpose.
The basic question with respect to copyright duration to be answered by the Congress is whether a doubling of the present copyright term for many works is desirable to promote the progress of science and useful arts. Other forms of Federal protection for creative works, such as patents for useful devices, plants, and designs, are all for periods of no more than 17 years. Copyrights in writings are already in a preferred position. We do not believe that the promotion of the progress of science and useful arts requires a doubling of the possible 56year copyright period. Our alternative proposal would accommodate such valid concerns as may exist regarding the present law and, at the same time, carry out constitutional goals.
Section 405 deals with the effect of omission of the copyright notice. Under the present act, omission of notice on published copies of a work ordinarily places the work in the public domain (17 U.S.C. $ 21). However, if such notice is accidentally omitted from a particular copy or copies, copyright is not lost; but innocent infringers who are misled by the accidental omission are not liable for infringement.
Under section 405 of the bill, omission of notice from "a relatively small number” of.copies or phonorecords publicly distributed will not invalidate the copyright whether or not such omission was accidental. Moreover, the omission of notice will not invalidate the copyright in a work if registration for the work is made within 5 years after the publication without notice and a reasonable effort is made to add notice to all copies or phonorecords distributed to the public in the United States after the omission is discovered.
As under the present law, innocent infringers who are misled by the omission of notice would not be liable in actual or statutory damages for infringement. But under H.R. 2223, they might have to surrender profits gained through the infringement and be subject to injunction or payment of a reasonable license fee for continuing their activity (section 405 (b)). These provisions would delete from 17 U.S.C. $ 21 the provision that no permanent injunction shall be had unless the proprietor of the copyright shall reimburse the innocent infringer his reasonable outlay innocently incurred if the court, in its discretion, shall so direct.
A copyright should be protected from invalidation only when the failure to provide notice was the result of an accident or mistake or in violation of the copyright owner's written requirement that, as a condition of authorization of public distribution, the copies or phonorecords bear the prescribed notice, and distribution of only a small number of such items has been made to the public. To permit, as proposed in section 405, a copyright owner to issue an entire publication of his work without notice and yet enforce the copyright tends to negate the purpose of notice. Although innocent infringers would incur no liability, they would still have to establish their innocence even where the omission was deliberate in many cases. We suggest that the section specifically be limited to the effect of omission of the copyright notice by accident or mistake.
We also believe it advisable that the words "particular copy or copies,"contained in the present statute, be used instead of the broader and more general words "a relatively small number,” found in section 405, to designate the limits within which notice may be omitted without loss of copyright. And we think the discretion in the court to order reimbursement to the innocent infringer should be retained.
Subject to specified exceptions, section 601 provides that the importation into or public distribution in the United States of more than 2.000 copies of a work consisting preponderantly of nondramatic literary material in English by an American or resident alien author and protected under the Copyright Code is prohibited, unless the portions consisting of such material have been manufactured in the United States or Canada.
This section would reenact in modified form a previous, highly protectionist nontariff trade barrier (17 U.S.C. &$ 16, 197). We do not believe that there is either a necessity or desirability for such a provision which creates an absolute bar to certain books published abroad.
Section 601 is entirely unrelated to questions of copyright. It does not protect authors at all. On the contrary, section 601 decreases the value of copyrights by preventing an American author from granting worldwide publication rights to an English publisher who offers more favorable compensation than an American publisher. Whatever the merits of the original "infant industry” justificaton for the mannfacturing clause, the restriction is clearly unnecessary and inappropriate today in light of the strength and success of our industry and in
light of our Nation's commitment to eliminate nontariff barriers to international trade and insure vigorous competition.
For these reasons, section 601 should be stricken from the bill, and the manufacturing clause should be eliminated from our copyright law.
With respect to the Department's antipiracy program in the sound recording field, we note the following as areas where amendments are desirable:
Section 506 should be amended to provide for forfeiture of infringing articles in criminal cases resulting in convictions, and a new section should be added to provide for summary and judicial forfeitures in criminal cases.
At present, the Government has no clear-cut authority to destroy infringing articles which have been seized or otherwise obtained in the investigation or prosecution of a tape piracy case or, for that matter, any criminal copyright infringement case. This lack of specific authority has resulted in critical storage problems for many FBI and U.S. marshals' offices throughout the country and poses the embarrassing possibility that the Government may be ordered to return known infringing articles to a convicted defendant.
With proper amendments, H.R. 2223 could eliminate this most serious problem. We strongly urge the following revisions :
1. There should be added to section 506 a new subsection which should be designated as:
(b) When any person is convicted of any violation of subsection (a), the court in its judgment of conviction shall, in addition to the penalty therein prescribed, order the forfeiture and destruction or other disposition of all infringing copies or phonorecords and all implements, devices, equipment or other articles of whatever kind used or intended to be used in the manufacture, use, or sale of such infringing copies or phonorecords.
Present subsections (b), (c), and (d) need to be redesignated as subsections (c), (d), and (e), respectively.
A conforming amendment should be made to title 18, United States Code, section 2318, so that it reads as follows:
(b) When any person is convicted of any violation of subsection (a), the court in its judgment of conviction shall, in addition to the penalty therein prescribed, order the forfeiture and destruction or other disposition of all counterfeit labels and all articles to which counterfeit labels have been affixed or which were intended to have had such labels affixed.
(c) Except to the extent they are inconsistent with the provisions of this title, all provisions of section (new forfeiture section decribed below), title 17, United States Code, are applicable to violations of subsection (a).
2. A new section should be added reading as follows:
(a) All copies or phonorecords manufactured, reproduced, distributed, sold, or otherwise used, intended for use, or possessed with intent to use in violation of section 506(a), and all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced, and all electronic, mechanical, or other devices for manufacturing, reproducing, assembling,