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using, transporting, distributing, or selling such copies or phono. records may be seized and forfeited to the United States.
(b) All provisions of law relating to (1) the seizure, summary and judicial forfeiture, and condemnation of vessels, vehicles, merchandise, and baggage for violations of the customs laws contained in title 19, United States Code, (2) the disposition of such vessels, vehicles, merchandise, and baggage or the proceeds from the sale thereof, (3) the remission or mitigation of such forfeiture, (4) the compromise of claims, and (5) the award of compensation to informers in respect of such forfeitures, shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this section, insofar as applicable and not inconsistent with the provisions of this section; except that such duties as are imposed upon the collector of customs or any other person with respect to the seizure and forfeiture of vessels, vehicles, merchandise, and baggage under the provisions of the customs laws contained in title 19 of the United States Code shall be performed with respect to seizure and forfeiture of all articles described in subsection (a) by such oflicers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General.
Proposed section 114 should be amended to provide for the copyright owner of a sound recording to have the right to make derivative works or it should be amended to clarify that persons other than the copyright owner do not have such a right absent consent of the copyright owner, notwithstanding the fact that the sound recording copyright owner would have no such right.
Section 114 limits the specific rights of a sound recording copyright owner to those granted to copyright owners by parts (1) and (3) of section 106. That is, sound recording copyright owners have the right:
(1) To reproduce the copyrighted work in copies or phonorecords; and
(3) To distribute copies, et cetera. The right to prepare derivative works based on the copyrighted work (part (2) of section 106) is withheld from a sound recording copyright owner despite section 103 which states that such works are copyrightable and despite the fact that sound recording copyright owners are entitled to make and copyright derivative works under present law, 17 U.S.C. $ 7. There is a real possibility that an unauthorized duplicator who made a "derivative” work by slightly altering the original copyrighted sound recording would claim that he did so legally since the copyright owner is given no exclusive right to make derivative works.
This potential legal problem could be eliminated by including part (2) of section 106 in the list in section 114 of exclusive rights granted to a sound recording copyright owner—an action which would grant to sound recording copyright owners no more rights than they presently possess.
Section 506 should be amended accordingly to include part (2) of section 106.
A third area for concern is proposed section 301 (pages 32-33), subparagraph (b), which states:
Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to:
(3) Activities violating rights that are not equivalent to any of the exclusive rights within the general scope of copyright ** * including breaches of contract, breaches of trust, invasion of privacy, defamation, and deceptive trade practices
We believe this language could be read as abrogating the antipiracy laws now existing in 29 States relating to pre-February 15, 1972, sound recordings on the grounds that these statutes proscribe activities violating rights "equivalent to * * * the exclusive rights within the general scope of copyright * **"
Certainly such a result cannot have been intended for it would likely affect the immediate resurgence of piracy of pre-February 15, 1972, sound recordings. (Note: In any event, there would be no effect on sound recordings produced after February 15, 1972, since it would appear that the States cannot constitutionally enforce their antipiracy laws against the unauthorized duplication of these later recordings.]
We therefore urge that section 301(b) be amended to include a new subsection (4) as follows:
(4) Sound recordings fixed prior to February 15, 1972.
Proposed section 506(a) should be amended to correct the disparity of sanctions between second-time infringers of sound recording and motion picture copyrights and second-time infringers of other copyrights.
As written, section 506(a) provides for a maximum $10,000 fine and 3 years imprisonment for second-time infringers of all copyrights but sound recording and motion picture copyrights. Infringers of these latter two categories are subject, upon conviction of a second offense, to a maximum fine of $50,000 and 2 years imprisonment. We suggest that these latter infringements are sufficiently serious to warrant at least the same maximum imprisonment for second offenders as is applicable to second-time infringers of other copyrights, as well as the larger fine. The term of imprisonment prescribed should therefore be at least 3 years.
We support the substitution of "for purposes of commercial advantage or private financial gain" for the present requirement in 17 U.S.C. 104 that, to be criminal, infringements must be done "for profit.” The provision in present section 104 for aiders and abettors has been removed, but these individuals will be liable to prosecution under 18 U.S.C.2.
From the standpoint of making deterrents meaningful beyond the financial deterrent and provide a penalty for those who can "take" financial losses as a cost of business, it is recommended that a maximum 1-year term of imprisonment be included in the sanctions under proposed sections 116(d) and 506(b), (c), and (d), all of which are provisions the Department supports.
We also note that section 115, subparagraph (a) (1), states explicitly and with clarity what four courts of appeals have ruled is the scope of compulsory licensing under present law, namely, that absent authorization by the owner of a composition copyright, the duplication of a sound recording embodying a copyrighted musical composition is an infringement of the composition copyright even though the duplicator tenders royalty payments and otherwise attempts to comply with present compulsory licensing provisions. This is contained in the final sentence of subparagraph (a) (1), which reads:
A person may not obtain a compulsory license for use of the (nondramatic musical) work in the duplication of a sound recording made by another.
Since this prohibition is not limited to copyrighted sound recordings, the effect is to prevent the operation of the compulsory license mechanism for making copies of any sound recordings embodying copyrighted musical compositions. The Department wholeheartedly supports this provision.
Section 804 deals with procedures before the tribunal which determine adjustment of copyright royalties and their distribution under specified sections of the bill. We object to the provision in subsection (e) of this section that the Senate Committee on the Judiciary and the House of Representatives Committee on the Judiciary may waive a requirement that a final decision in each proceeding be rendered by the tribunal within 1 year from the certification of the panel by the Register of Copyrights.
The constitutional division of duties among the three principal branches of the Government places in the Congress the legislative responsibilities. However, once a law has been enacted, it is for the executive branch to carry out the intents and purposes of the law as directed by the Congress. In our view, legislation, once enacted, should not be modified or waived by actions of a committee of the Congress. It is suggested that if waiver of the 1-year requirement is desirable under particular circumstances, these circumstances be generally outlined in the bill and that the tribunal be given authority upon good cause shown to extend the period of time for rendering decisions.
Of particular concern to this Department is the new form of copyright protection provided by title II of the bill.
This new form of protection is a hybrid between design patents, 35 U.S.C. 171-173, issued for a period of up to 14 years by the Patent Office for new, original and ornamental designs of articles of manufacture and the copyright laws which provide for registration and issuance of certificates of copyrights for the writings of authors. The new protection that is provided under the bill is not presently available under the copyright laws and can only be obtained through a design patent after an examination procedure which determines whether the ornamental design meets the criteria of patentability, including unobviousness in view of the prior art, as provided by 35 U.S.C. 102, 103.
While the protection period as proposed for the new type of ornamental design protection is only a maximum of 10 years as compared with the maximum of 14 years available for a design patent, it is granted without the need of meeting the novelty and unobviousness requirements of the patent statute.
A threshold consideration before finding that the needs are such that this new type of protection should be available is whether the benefits to the public of such protection outweigh the burdens. We believe that insufficient need has been shown to date to justify removing from the public domain and possible use by others of the rights and benefits proposed under the present bill for such ornamental designs. We believe that design patents, as are granted today, are as far as the public should go to grant exclusive rights for ornamental designs of useful articles in the absence of an adequate showing that the new protection will provide substantial benefits to the general public which outweigh removing such designs from free public use.
While it has been said that the examination procedure in the Patent Office results in serious delays in the issuance of a design patent so as to be a significant problem and damaging to "inventors" of ornamental designs of useful articles, the desirable free use of designs which do not rise to patentable invention of ornamental designs of useful articles are believed to be paramount.
If the contribution made to the public by the creation of an ornamental design of a useful article is insufficient to rise to patentable novelty, the design should not be protected by the law. The Department of Justice has consistently opposed legislation of this character.
To omit Federal statutory protection for the form of a useful object is not to deny the originator of that form any remedy whatsoever. If he can prove that competitors are passing off their goods as the originator's by copying the product's design, he may bring an unfair competition action against such copyists. Crescent Tool Co. v. Kilborn & Bishop Co., 247 Fed. 299 (C. A. 2 1917). See, also, Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964), and Compco Corp. v. DayBrite Lighting, Inc., 376 U.S. 234 (1964).
Quite apart from our opposition to the merits of title II, we also oppose enactment of the design protection provisions of this bill which would provide a new class of actions against the United States since the bill proposes to amend section 1498(a) to add the new type of design copyrights to the remedies available to inventors against the United States who have been issued U.S. patents when they are used by the United States without authorization of the owner.
For example, by amending section 1498 (a) in this way, the Congress will be creating a completely new problem area fraught with difficulties for Government procurement.
Government contractors who "reverse engineer" alleged trade secrets. in bidding competitively for Government contracts would now be faced with the necessity of designing around the "packaging looks” of a product covered by a design copyright which may not rise to the stature of patentable novelty under the patent laws. Thus, the "nonutilitarian looks" of a vehicle which may not be protectable as a design patent would be given copyright-type protection under the bill.
We, therefore, strongly oppose the new type of protection proposed by title II of the bill.
Section 1498 (a) is also amended to provide for the first time for suits against the United States for unauthorized use of inventions, whether patented or unpatented.
Thus, it would appear to permit a suit based on a trade secret containing an unpatented invention. This also, we strongly oppose as inconsistent with limiting claims against the United States in 28 U.S.C. 1498 to those recognized by the patent and copyright laws. No adequate showing has been made that this type of protection, on balance, is in the public interest.
The provision in section 220 whereby simultaneous suit can be filed against the Administrator who carries out the provisions of title II, section 230, and an alleged infringer of the design in that it subjects an alleged infringer to suit in the same action even though the threshold question whether a certificate can issue under the provisions of
the law has not been decided as between the Administrator and the applicant for registration is believed undesirable. While it is not likely that the issuance of certificates of registration will be frequently refused if certain basic requisites of applications are met, nevertheless, if a situation should arise of a refusal of issuance of a certificate of registration by an Administrator, this should require a separate and distinctive action to secure issuance thereof, especially since governmental functions should not normally be mixed with the proprietary enforcement functions of courts in adjudicating private rights and remedies.
Certain technical corrections appear indicated in title II as follows:
Page 73, line 26, “mortgage" should read “mortgagee." Mr. KASTENMEIER. Thank you. I had difficulty understanding this. What you are referring to by using the term fair use is a proposal that we remove the uncertainty in connection with the present language in the bill; your suggestion does not substantively change the construction of the bill, but is more or less a clarification of it, in an attempt to remove the uncertainty ?
Mr. GOLDBLOOM. I believe that is right.
Mr. KASTENMEIER. With respect to the term, of course, you clearly opposed the term proposed in the legislation. Why did the Department of Justice propose to change the term of 50 years to 56 or life? In other words, you perceive that there was an inequity on the part of authors who might seek terms for life or some other terms other than what is present in the law?
Mr. GOLDBLOOM. To the extent that it may be urged that the present term does not fully protect an author who may live a long life and has created a copyrighter's work in his early years. We believe that in constitutional concept, furnishing this protection to authors for their creations, that the present law may very well not be sufficient to protect that interest. We feel, however, that the bill as drafted goes far beyond the requirement or the need to protect authors or their creations. For that reason we would lengthen the 56-year term to the extent that it may last during the duration of the lifetime of the particular author.
Mr. KASTENMEIER. Had you wondered or determined why the rest of the world had gone to a life plus 50 at some point during the codification of their copyright laws?
Mr. GOLDBLOOM. We know they have gone that way. They have, we believe, different considerations that they pursue in furnishing this type of protection.
Mr. KASTENMEIER. How would theirs be different from our own? It is a very important point.
Mr. GOLDBLOOM. Well, we think that our own considerations flow from constitutional provisions of the concept of thereby protecting authors and to promote and advance science and useful arts for a limited time under the concept as expressed in the constitution.
In our view a term which extends for 56 years or the lifetime of the author, whichever is greater, would serve those constitutional goals of a limited time, which is a very clear constitutional concept. Certainly, 150 years in our view is an extended period of time considerably above the authority granted.