effort to effect a general revision of the copyright law. Separate original and renewal term registration is a substantial financial burden on individual authors and artists who contribute small or short works to a variety of daily newspapers and other periodicals. The proposed amendment to section 408 (c) would specifically authorize the Register, without prejudice to her general authority, to establish regulations permitting grouping of contributions by the same individual author for registration purposes. Fee schedule-section 708.—The new fee schedule adopted by the Senate Subcommittee also appears in H.R. 7149, introduced by Mr. Robert W. Kastenmeier on May 20, 1975 at the request of the Library of Congress and the Copyright Office. We found it necessary to propose general increases in the fee schedule in view of the low ratio of recovery of the costs of the copyright registration system by cash receipts for services performed. We strongly urge inclusion of the new fee schedule in H.R. 2223. We also take this opportunity to urge separate enactment of H.R. 7149 without awaiting general revision of the copyright law. The revision bill cannot become effective immediately upon enactment because of the administrative preparation required to implement its provisions. Hence, we favor enactment of H.R. 7149 as soon as possible. Voluntary licenses for use of copyrighted works by the blind and physically handicapped-new section 710.-This provision also originated with the Library of Congress and the Copyright Office, and we urge its addition to the revision bill. It has the support of the American Association of Publishers. Universal Copyright Convention.-We propose a technical amendment to section 104(b) (2) in view of the 1971 revision of the Universal Copyright Convention, Line 25 of page 7 should read “1952 or 1971 Universal Copyright Convention; or". 4. GENERAL COMMENTS ON TITLE II Design legislation has been pending before Congress even longer than the current efforts at omnibus copyright revision. Title II of H.R. 2223, the Design Protection Act, represents the current version of design legislation. The proposal has been refined through years of study, debate, consideration, and amendment. The Library of Congress and the Copyright Office have supported this legislation in the past, and we reiterate our strong endorsement of the present bill, especially since the present version appears to resolve many issues that delayed enactment of separate design legislation. The Design Protection Act would create a new form of protection for designs based upon modified copyright principles and would bridge the gap between existing design patent and copyright protection for ornamental designs of useful articles. This new form of protection is needed to correct deficiencies in the protection accorded by existing law. For example, although the Copyright Office registers certain ornamental designs of useful articles which qualify as "works of art," it must refuse registration for numerous equally attractive or meritorious designs, because they do not display separate work of art authorship apart from the utilitarian aspects of the article. On the other hand, design patents are judged by the high patent standards of novelty and non-obviousness. The patent is difficult and expensive to obtain, and most designs do not survive a court test. The Design Protection Act avoids these pitfalls. It is specifically tailored to meet the demonstrated need for protection of ornamental designs of useful articles with due regard for the interests of consumers and their representatives, the product retailers. The bill adopts the copyright standard of originality, but the term of protection is short in consideration of the public interest in free competition among product designs. We accept in general the amendments adopted by the Senate Subcommittee with respect to title II. However, we have some hesitation about the amendment to section 203. adding the requirement that protection may be accorded to a revision, adaptation, or rearrangement of design subject matter only if the changes are substantial. We agree with the amendment provided the substantiality. of the revision is judged by traditional copyright standards of originality. We would not support the change if there is any possibility that it would be construed to establish a stricter standard of originality than that established in section 201 (b) (4). If the House Judiciary Committee adopts this language, we recommend a clarification in the report that the amendment in no way derogates from the section 201 (b) (4) standard of originality. Finally, we point out that the bill presently does not indicate which agency will administer the Design Protection Act. Under section 230, the Administrator will be designated by the President. In order to assure administrative preparation for implementation of the Design Protection Act, the Congress may wish to designate the Administrator directly in the bill. The Copyright Office would be willing to assume this responsibility, as the Congress or, under the present bill, the President directs. Sincerely, JOHN G. LORENZ, Acting Librarian of Congress. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Hon. PETER W. RODINO, Jr., Chairman, Committee on the Judiciary, DEAR MR. CHAIRMAN: This is in further reply to your request for the views of the National Aeronautics and Space Administration on the bill H.R. 2223, “For the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes." Title I of the bill provides for a general revision of the United States Copyright Law, title 17 of the United States Code. Title II establishes a new type of protection for original ornamental designs of useful articles. Set forth below are comments on specific provisions of the bill which would have a direct impact on NASA's activities and liability. Government Works TITLE I The proposed legislation obviates some of the ambiguities present in the current copyright law with respect to Government works. Sec. 105 of the bill prohibits copyright in any "work of the United States Government," which is defined in Sec. 101 as "a work prepared by an officer or employee of the United States Government as part of his official duties." The present law prohibits copyright in a “publication of the United States Government" (Sec. 8), but does not define the latter term. The proposed legislation adequately reflects case law and customary practice within the executive branch, which have established that works prepared by Government officers or employees as part of their official duties are "Government publications" within the copyright prohibition. Some previous copyright revision bills have defined a Government work as one prepared by an officer or employee "within the scope of his official duties or employment." The latter was considered objectionable because it was ambiguous and subject to a much broader interpretation. For example, it could be construed as prohibiting copyright even where an officer or employee voluntarily wrote a book on his own time which was somehow related to his employment. Sec. 105 also clarifies the right of the Government to receive and hold copyrights transferred to it by assignment, bequest, or otherwise, thus obviating another uncertainty in the current law. Since H.R. 2223 abolishes common law copyright protection and extends statutory copyright protection to published and unpublished works (Sec. 104 and Sec. 301). in our view the copyright prohibition of Sec. 105 would apply to both published and unpublished Government works as this term is defined in Sec. 101. NASA is still of the view, expressed in comments submitted to the Committee on previously proposed legislation (e.g., H.R. 4347, 89th Congress, 1st Session, 1965), that copyright protection should be available for Government works in exceptional circumstances. This would give NASA the opportunity to enter into competitive negotiations with private publishing firms in exceptional cases so that selected NASA publications could receive the widest possible distribution as required by Section 203(a) of the National Aeronautics and Space Act of 1958. The negotiating position of the Government depends on its ability to provide copyright protection for a period of time to the publisher in exchange for distribution and related services. If necessary, the rights of the Government to copyright in such exceptional cases can be limited to a shorter period of time; for example, 5 years (rather than the full term), which may be sufficient time for the publisher to regain his initial publishing costs. Accordingly, it is recommended that the following subsection be inserted in Sec. 105: "In exceptional cases, copyright may be secured in a published work of the United States Government where, because of the special nature of the work or the circumstances of its preparation, it is determined that copyright protection would result in more effective dissemination of the work or for other reasons would be in the public interest. The head of the Government agency for which the work was prepared shall make the determination in each case in accordance with regulations established by an administrative officer designated by the President, and shall publish a statement of the basis for its determination in each case in the manner specified by such regulations." It is strongly urged that Sec. 105 be amended to specify that the copyright prohibition for Government works apply only to domestic copyright protection. This could be done by inserting the phrase "within the United States" after the word "available" in line 1 of Sec. 105. It is a commonly held opinion, although not established by case law, that the prohibition against obtaining copyright by the Government applies to domestic copyrights only. Thus, in this view, the Government may copyright abroad when that serves its best interests. While we feel that many foreign signatories to the Universal Copyright Convention would honor the copyright of the U.S. Government in their respective countries under the Convention, some nations might take the position that a U.S. Government work cannot receive copyright protection anywhere. The basic rationale for prohibiting copyright protection for U.S. Government works is that American taxpayers have paid for these works through tax assessments and should have access to them free of copyright restrictions. This rationale does not require a giveaway of U.S. Government works to foreign nationals and foreign governments. Most foreign countries provide domestic copyright protection for publications of their governments, and publications of foreign governments are accepted for copyright registration in the United States, except for statutes, court opinions, and similar official documents which are considered inherently uncopyrightable. Among the benefits which would accrue from asserting copyright abroad in selected U.S. Government works are: (a) improvements of our negotiating position with certain countries; (b) royalties could be collected, thereby aiding our balance of payments; (c) protection of the integrity of U.S. Government works; and (d) greater dissemination if American publishers were licensed to distribute U.S. Government works through established distribution outlets abroad. It is also recommended that a subsection similar to that appearing in the current law, 17 U.S.C. 8, be inserted in Sec. 105 of H.R. 2223, that is : "Publication or other use by the United States Government of any material in which copyright is existing does not impair the copyright or authorize any further use or appropriation of the material without the consent of the copyright owner." It is believed desirable to retain such a provision in the statute to provide assurances to authors and to preclude the argument that deletion of this provision from the present statute implies that such protection is no longer available. Pre-emption With Respect to Other Laws A key provision of Title I of H.R. 2223 is Sec. 301, which would establish a single system of statutory protection for virtually all copyrightable works whether published or unpublished. Under Sec. 301, a work would obtain statutory protection as soon as it is "created" or, as the term is defined in Sec. 101, when it is "fixed in a copy or phonorecord for the first time." Sec. 301(b) provides that nothing in the title annuls or limits any rights or remedies under the common law or statutes of any state that are not equivalent to any of the exclusive rights within the general scope of copyright, such as breaches of contract. No mention is made of Federal statutes such as the Tucker Act. 28 U.S.C. 1491, which permits suit against the Government for breach of an express or implied contract. Undoubtedly, it was not intended that such a Federal statute be preempted by the copyright revision. It is recommended, therefore, for clarification purposes, that Sec. 301(b) be amended by inserting the phrase "under Federal statutes or" after the word "remedies" on line 1. A similar omission occurs in Sec. 117 and it is suggested that the phrase "title 17" be replaced by "this or other title of the United States Code." Sec. 502(a) provides that any court having jurisdiction of a civil action arising under the title may, subject to the provisions of section 1498 (b) of title 28, grant injunctions to prevent or restrain infringement (emphasis added). It is recommended that the phrase “subject to the provisions of" be replaced by "except in actions against the Government under" to clarify the exclusive jurisdiction of the Court of Claims under 28 U.S.C. 1498 (b). Unpublished Works 28 U.S.C. 1498 (b) provides for a cause of action against the Government for infringement of "copyright in any work protected under the copyright laws of the United States." This waiver of sovereign immunity has been construed not to embrace common law copyright, i.e., unpublished works. See e.g., Porter et al. v. United States, 473 F 2d 1329, 117 USPQ 238 (CA 5 1973). Since H.R. 2223 protects unpublished as well as published works, the Government's liability will be extended. It is urged that 28 U.S.C. 1498 (b) be amended so that it continues to restrict the Government's liability for copyright infringement to "published” works only. Government agencies receive a voluminous amount of material from private sources which does not bear a copyright notice and which is reproduced, distributed, etc. in its day-to-day business activities, for example, under the Freedom of Information Act. It would be extremely difficult, if not impossible, to ascertain whether the material submitted has been published with no intent to claim copyright, or whether it is unpublished and the owner intends to claim copyright protection. The effect of compliance with the Freedom of Information Act (FOIA) on the Government's liability for copyright infringement also needs clarification. If a document requested under the FOIA bears a copyright notice, the requester can be so advised and will usually be able to secure a copy elsewhere. Where the document requested contains no copyright notice, it may be an unpublished work subject to protection under the proposed copyright revision; and providing access or a copy may very well frustrate the copyright owner's desires and subject the Government to liability. We are concerned whether the furnishing of a copy of a document by the Government under the FOIA will be considered excusable, or a form of fair use. Of course, if a document is released under FOIA, the Government may not itself restrict its use by others. For clarification purposes, it is recommended that language be inserted in H.R. 2223 explaining the fair use doctrine's applicability to unpublished works and the Government's release of documents under the FOIA. Innocent Infringers Under Sec. 405 (b) an innocent infringer who acts in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted, and who proves that he was misled by the omission, is shielded from liability for actual or statutory damages with respect to any infringing acts committed before receiving actual notice of registration. No protection is spelled out in the proposed legislation for an innocent infringer who relies on an unauthorized copy or phonorecord of a published work from which the copyright notice has been omitted; or for an innocent infringer of an unpublished work, i.e., one who relies on a copy or phonorecord which has been published without authority of the owner. Publications Incorporating Works in the Public Domain Sec. 403 of H.R. 2223 provides that when a work is published in copies or phonorecords consisting preponderantly of one or more Government works, the notice of copyright shall also include a statement identifying the portions embodying work protected under Title 17. It is NASA's opinion that Sec. 403 is too limited and that it would be in the public interest to require such a statement also where a work consists preponderantly of any material that is in the public domain. We recommend that Sec. 403 be amended by adding the phrase "or works in the public domain" after the word "works" in the heading and before the words "the notice" in line 3 of the body of the section. TITLE II Our remaining comments are directed to Title II of H.R. 2223. It is assumed that the word "title" in the various sections refers only to Title II dealing with ornamental designs. It is not apparent where Title II will appear in the United States Code. If Title II is placed under Title 17, difficulties in construction may ensue. For example, the definitions set forth in Title I of H.R. 2223 dealing with copyrights might be construed as being applicable to Title II also. It is suggested that paragraph (b) of 28 U.S.C. 1498 be amended to includeregistered designs rather than paragraph (a). (See Sec. 232.) The process for creating rights in registered designs is more closely analogous to copyrights. Furthermore, the specific authorization for the administrative settlement of copyright infringement claims set forth in paragraph (b) [and not present in paragraph (a)] would be made applicable to registered designs, which in our opinion is highly desirable. In the event 28 U.S.C. 1498 (a) is amended as set forth in Sec. 232, it is recommended that the phrase "described in and covered by a patent of the United States" be inserted after the word "invention” in the first line. This will reinstate the language present in the current law with respect to patented inventions and which was probably inadvertently omitted. Omitting this language might be interpreted as a broadening of the Government's liability to cover unpatented inventions. Subject to the foregoing, the National Aeronautics and Space Administration would have no objection to the enactment of H.R. 2223. The Office of Management and Budget has advised that, from the standpoint of the Administration's program, there is no objection to the submission of this report to the Congress. Sincerely, JOSEPH P. ALLEN, Assistant Administrator for Legislative Affairs. [Whereupon, at 12:20 p.m. the hearing adjourned to reconvene at 10 a.m. on May 14, 1974.] |