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to embrace common law copyright, i.e., unpublished works.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 Since H.R. 2223 protects unpublished as well as published works, the Government's liability will be extended.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to ascertain whether the material submitted has been published with no intent to claim copyright, or whether it is unpublished and the owner intends to claim copyright protection.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 Where the document requested contains no copyright notice, it may be an unpublished work subject to protection under the proposed copyright revision; and providing access or a copy may very well frustrate the copyright owner's desires and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purposes, it is recommended that language be inserted in H.R. 2223 explaining the fair use doctrine's applicability to unpublished works and the Government's release of documents under the FOIA.
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.
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 include registered 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.
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.]
COPYRIGHT LAW REVISION
WEDNESDAY, MAY 14, 1975
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE OF THE
The subcommittee met, pursuant to notice, 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, Pattison, and Mazzoli.
Also present: Herbert Fuchs, counsel, and Thomas E. Mooney, associate counsel.
Mr. KASTEN MEIER. The hearing will come to order on the third morning of hearings on copyright law revision. The issue under discussion lends itself into equal division of time between those in favor and those opposed; each side will be invited to divide 30 minutes of testimony among its members, and you will be expected to stay within that time frame.
This morning six national library associations have given their entire half-hour to Mr. Edmon Low. Thereafter four representatives of writers and publishers will share their 30 minutes in arguing the other side of the library photocopying issue.
Furthermore, the Chair will announce that the chairman and perhaps another member of the committee will have to excuse themselves for the purpose of appearing before the Rules Committee on the question of the Parole Reorganization Act this morning, and the gentleman from California, Mr. Danielson, will preside during that period of absence of the Chair.
Before introducing the first witness, I would like to yield to our Judiciary Committee colleague from Kentucky, Mr. Mazzoli, for the introduction of one of the witnesses.
Mr. MAZZOLI. Mr. Chairman, thank you very much, I appreciate your willingness to yield today. I would like to just take this chance to introduce to you and your distinguished subcommittee a lady who is from my district and with whom I spend many hours on airplanes, flying back and forth from the District of Columbia to Louisville, our home.
Mrs. Joan Titley Adams, Mr. Chairman, is testifying in your first panel today, and without taking any more of your valuable time, I would just like to commend her testimony because she is a professor at the University of Louisville, as well as being the librarian of the
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Sciences Library. She has been in the Medical Library Association in virtually all of its positions, including the board of directors. She likewise holds positions in the University of Louisville on its faculty senate. And without necessarily knowing all the nuances of the bill before you, which is very complicated, I would like to commend her testimony. Thank you very much, Mr. Chairman.
Mr. KASTENMEIER. Thank you for this introduction. I say to my colleague I am sorry we can't introduce all our witnesses as fully in terms of their biographies.
The Chair would like to welcome Mrs. Adams and Mr. Low. I understand Mr. Low this morning will make the major presentation on behalf of the libraries. Mr. Low, you may want to introduce your other colleagues. You may proceed as you wish.
TESTIMONY OF EDMON LOW, REPRESENTATIVE OF SIX LIBRARY
Mr. Low. Thank you, Mr. Chairman. I am Edmon Low, and I will today present the views of the American library community as represented through six major library associations. With me are representatives of each of the six associations. I am happy to present to you Mr. Julius Marke, representing the law libraries and chairman of their copyright committee. Mr. McDonald, at my right, is the executive director of the Association of Research Libraries. At my left Mrs. Adams-and Mr. Mazzoli, we share your enthusiasm for Mrs. Adams and her work in our library community. Next is Mrs. Sommer, who is representing the Music Library Association, and who is the chairman of their copyright committee; and Mr. Frank McKenna, who is the executive director of the Special Libraries Association. And then with us we have the members of counsel, sitting behind us here, Mr. Sharaf, who represents the Harvard University Library; Mr. William North, representing the American Library Association, and Mr. Philip Brown, representing the Association of Research Libraries.
Mr. KASTENMEIER. Thank you.
Mr. Low. Because of our time limitation, with your permission, Mr. Chairman, I shall omit some of my testimony and ask that this statement be admitted into the record.
Mr. KASTENMEIER. Without objection, your statement in its entirety will be received in the record. You may proceed, sir.
Mr. Low. Thank you.
We are here today to talk about library copying and the provisions of the copyright revision bill. H.R. 2223. I shall be presenting, so far as I am able, the concerns of all these various library groups. However, each of these organizations will also be filing a statement of its own, setting forth in greater detail its individual concerns about provisions of the bill. All of the representatives will assist me in answering particular questions you may have concerning our testimony and the issues raised.
Although our testimony today is limited to library photocopying which is the subject of this hearing, there are other provisions of the bill which concern us, and about which we may be making further statements as other hearings are scheduled.