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By contrast, the production abroad and importation of motion pictures and television programs, by American "author"-producers, has had a serious effect on American workers engaged in the production of such copyrighted works.
THE MANUFACTURING CLAUSE AND THE FIRST AMENDMENT As we have noted, Sec. 601 (and Sec. 16) would effectively prevent some American authors from disseminating their works in the United States. Only books, and only those by American authors, are singled out for this restraint. This "legislative classification is strikingly underinclusive." Erznoznik v. City of Jacksonville, U.S. Supreme Court (June 23, 1975; 422 U.S. 205, 215). Although a legislature may, ordinarily, "deal with one part of a problem without addressing all of it" said the Court,
“This presumption of statutory validity, however, turns upon the subject matter of expression. 'Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" Police Dept. of Chicago v. Mosley, 408 U.S. at p. 95.
The manufacturing clause, new version and old, restricts the distribution of certain works because of their form-applying to books but not to films, television or radio programs, pictures or illustrations. The clause restricts the distribution of books because of the nationality or domicile of the author. Books by American authors are restricted, books by foreign authors are not. These restrictions curtail the author's right to disseminate his books, protected by the First Amendment. Smith v. California, 361 U.S. 147 (1959); Bantam Books v. Sullivan, 372 U.S. 58 (1963). The restrictions of the manufacturing clause, discriminatory and "underinclusive", violate the First Amendment as well as the Due Process Clause of the Fifth Amendment.
CHANGES IN SECTION 601
As we have noted, the primary purpose of the manufacturing clause is to compel book publishers to manufacture here the copies they distribute in this country. That purpose is not served by prohibiting the importation of foreignmade copies of books by American authors which are published abroad by foreign publishers. American authors do not have their works published abroad to obtain lower printing costs, or to deprive American printers of work. Those consequences occurred when American publishers arranged for the foreign composition and printing of books they produced for sale in the United States. So long as the manufacturing clause remains in the Copyright Act, it should be limited to those circumstances. Therefore, the Authors League recommends that Sec. 601 (b) be amended by adding a new clause reading:
“(7) where the copies were produced by a publisher who had previously published the work outside the United States and is not a national or domiciliary of the United States or a domestic corporation or enterprise."
This clause would permit the American author who had published his book abroad, by a foreign publisher, to authorize the importation and distribution of that publisher's copies in the United States without limitation on the number of copies, and without losing protection for his publishing or other rights.
The Authors League also recommends that Sec. 601 be amended to exempt periodicals and contributions to periodicals. Many foreign periodicals are sold here from their original, foreign-made editions. They are not even subject to the manufacturing clause if they do not contain contributions by American authors. And the pressure of the manufacturing clause will not compel them to print in this country the copies they sell here. Its only effect can be to deny American authors the opportunity of having their contributions published in those periodicals. Indeed, one of the primary consequences of the clause is to deprive American authors of work opportunities in various areas. For example, American publishers frequently have contracted for the foreign production of art books, children's books and other works requiring good-quality color photographs or illustrations. Under Sec. 601, this practice would not be restricted so long as the publisher hired a British, Australian or other foreign author (from a U.C.C. country) to write the text. For Sec. 601 does not apply to foreign production of graphic material, and would not apply where the text was written by such a foreign author.
Mr. KASTENMEIER. Thank you. Actually, we have some questions of the witnesses. Mr. Karp, would you remain at the table, and perhaps
we will have Mr. Strackbein and Mr. Van Arkel and Mr. Sandler join you for any questions that the committee may have.
PANEL DISCUSSION: MR. STRACKBEIN, MR. VAN ARKEL,
MR. SANDLER, AND MR. KARP
Mr. KASTENMEIER. For a country that holds itself out as having freedom of the press and freedom of speech and peoples with various ideological persuasions, is it consistent for us to deny foreign publications into this country by using this economic device in the copyright law to limit or, in fact, prohibit equal protection for such copyright materials, Mr. Karp?
Mr. VAN ARKEL. May I address myself to that?
Mr. VAN ARKEL. There is presently no law of any kind that prohibits, any foreign publisher from sending into the United States any number of books that he desires to send in. We are not talking about a limitation on books or other periodicals into the United States. We are talking about the conditions under which such a foreign publisher can achieve a monopoly by law of the entire American book economy. We think that the Congress has not only the right, but the duty, to see to it that there are reasonable conditions on the grant of this copyright and that the use of the manufacturing clause is a totally appropriate means to that end. Mr.
Karp. May I answer the question, which you addressed to me, Mr. Chairman !
Mr. VAN ARKEL. I am sorry. I didn't know I was interrupting.
Mr. Chairman, the answer to your question is obviously that it is not proper for the Congress of the United States to enact a statute, which it has done, which prevents foreign editions of works from American authors from entering the country. I think it violates the first amendment. The classifications in the present law and in the bill are so inclusive and so arbitrary and so discriminatory as probably to fall under the first amendment.
Moreover, it ill-behooves the labor unions to sit here talking about an author's monopoly. If it weren't for a particular section of the Clayton Act, every union in this country would be illegal as a monopoly.
Third, if the Department of Justice were able to sue Congress for violating the antitrust laws, they would be suing you for enacting the manufacturing clause. They have a suit going against American publishers right now for conspiring with British publishers to keep foreign editions of books out of this country. And a most effective method of keeping those books out of this country is the clause we are discussing today.
Mr. KASTENMEIER. Thank you. Mr. Van Arkel, are there not other means or devices than the manufacturing clause in the copyright law, such as tariffs and duties on foreign publications, which ought to govern as an economic matter, whether it is protectionist or not, that ought to govern in this area!
Mr. VAN ARKEL. If I may, I would like to refer to my original statement for the history of the introduction of the manufacturing clause,
the reasons for its enactment, and how it was derived. I really think that alternatives, and I haven't given much thought to the alternatives, but I think clearly there would be difficulties with the GATT Treaty with the imposition of tariffs and with the Florence agreement.
As I say, I haven't thought this subject matter through, but I can foresee that an effort to find alternatives would lead to far more confusion and difficulty than the continuation of what has been the law for a number of years.
Mr. KASTENMEIER. At this point, I would like to yield to Mr. Railsback.
Mr. RAILSBACK. No questions.
Mr. DRINAN. I want to thank all of you gentlemen for your statements, and I raise the question whether or not this manufacturing clause violates the Helsinki agreement. I read that very carefully, and toward the end there are several sections about the diffusion of knowledge and the guarantee that we will not block access to knowledge in any language. I wonder whether anybody would want to make a judgment on that?
Mr. Karp, would you feel that Helsinki supports your case? It is a new argument for you, I hope.
Mr. Karp. No; I am not arguing with you. I wish I was better prepared to agree with you.
Mr. Drinan. It is a new argument I am offering you. Go ahead.
Mr. KARP. I think you are right in principle, but I haven't prepared myself on the Helsinki agreement to comment in detail. Mr. Drinan. It might be a very good argument for you. Mr. KARP. I will certainly look at it. Mr. DRINAN. Any of you other gentlemen ?
Mr. VAN ARKEL. I can only reiterate, Mr. Drinan, what I already stated. There is presently no law of any kind on the books which prohibits, in any manner, the importation of books into this country. To that extent, I think it is completely consistent with the freedom which the Helsinki agreement talks about in its agreement, and really goes beyond what that agreement contemplates. I can only emphasize that you are talking here not about free trade, not about free exchange;
are talking about the grant of an American monopoly of this market through copyrights. Now, there is certainly nothing in the Helsinki agreement that says that this country has got to give an unconditional amount of access to this market to all foreign publishers, whoever they may be.
Mr. Drinan. Let me quote to you from a manual on copyright law done by Arthur Hansen. This is his conclusion, on page 150:
In general, most experts find no logic in denying copyright protection to authors as a means of protecting printers against foreign competition. In fact, all groups concerned with the possible exception of the printers-appear to agree that manufacture in the United States should not be a condition of copyright.
Anything to comment on that?
Mr. VAN ARKEL. I can only ask that you read my statement for the reasons
Mr. DRINAN. I did, sir. I read it last night, and I reread it again this morning. I have practically memorized it. But give me somebody be
sides the printers. I mean, you disagree with it, but he said “with the possible exception of the printers.” Well, are there other groups?
Mr. VAN ARKEL. One of the staunchest supporters was a former Register of the Copyrights, Mr. Sam Warner, who wrote at length on this, and testified against it very strongly.
Mír. Drinax. Well, he is not exactly a whole class of people. He is just a former Register of the Copyrights.
Mr. VAN ARKEL. Well, he is a well qualified expert.
Mr. Karp. I think that the more recent Registers of Copyrights have disagreed with Mr. Warner. To my recollection, Mr. Kaminstein and Ms. Ringer both opposed the manufacturing clause.
Mr. DRINAN. Would it be your judgment that Mr. Hansen here is correct that all groups concerned, with the possible exception of the printers, appear to agree this is without foundation ?
Mr. KARP. I certainly think that is a correct statement.
Mr. SANDLER. May I make a statement? Obviously, I was one of those that was referenced as a printer there, so I am not addressing myself to that portion of it, but I quickly scanned the testimony by Mr. Hoopes. I think he is stating a compromise. I think I want to refer this committee to his testimony.
Mr. DRINAN. Well, is that the compromise already in the bill ?
Mr. SANDLER. No, I mean recognizing the need of a compromise on the parts of the opposed parties and the fact that there is a need, at least on a temporary basis, for the manufacturing clause.
Mr. DRINAN. Is he recommending a compromise different from Section 601 now, which is a compromise?
Mr. SANDLER. No.
Mr. DRINAN. Would you state in your terms, sir, how 601 is a compromise? Mr. Karp says it is a compromise, but give us, if you would, the two or three things that you think compromise 601?
Mr. SANDLER. Well, there is the opportunity for books to come in. Certainly, it does not restrict these books from coming in. There are portions of manufacturing that it is my understanding can still be done in foreign countries. My understanding is plates—well, identification ofthese products may have some misnomers. We say “plates” in letterpress type terms. We talk about type-setting, reproduction, these types of things. Now, these types of things are allowed to be brought in.
Mr. DRINAN. And does it phase out at a moment in time?
Mr. Drixan. You recommended that, Mr. Karp, but that is not in 601?
Mr. Karp. No, it isn't. We also recommend a very important thing which I think you gentlemen ought to consider seriously. This is a fight between American publishers and American printers, and we are in the middle. We have been in the middle for over 50 years, and it is unconscionable. What goes abroad and what they are really concerned about is the American publisher who sends abroad printing work on a very big, multicolored book, for example, where the setting or the illustrations or the color work is too expensive to do here. And American publishers shop around. They used to send it to Switzerland and they sent it to Italy and now they are sending it to Japan. Ironically, that is not literary material and they can do that, under the new law. That is where the loss of business is.
No American publisher takes a 250-page novel, or a 300-page biography and ships it abroad in order to get the printing done cheaper. That is ridiculous. It may happen, but if it does it happens rarely.
But, what they are doing is saying to the American author of a novel or the author of a biography that if you can't find an American publisher, and if you have to go abroad, if you are James Joyce or even Ernest Hemingway, and you are living in Paris and you publish abroad, you can't have that publisher send copies into this country. And the only reason that those copies come in, in most cases, is because the American author abroad or here can't even find an American publisher to put the book out. All that remains in this clause of significance to American authors is they still lose their publishing rights if those copies are imported. And as you pointed out, Mr. Chairman, that is an obvious restriction on the fundamental right to distribute work in this country, to bring in intellectual works into this country. And it is only imposed on American authors. And they ought to accept at least this change because it doesn't hurt them one bit. It still keeps the clause in place, which I don't like either, but it still keeps the clause in place to protect them against the American publisher who is going to bring out an American edition and deliberately ships the printing work abroad. That is what they are really concerned about. That is the culprit.
And they shouldn't be insisting that when an American lives abroad or sends abroad to have a book published, because it is the only place they can find a publisher, they shouldn't be insisting that any number of copies of that foreign-copy edition be brought into this country, because, by God, nobody sent that abroad in the first place to cheat their members of their union or their constituent manufacturers.
Mr. KASTENMEIER. If the gentleman would yield? Do you think there should be an insistence on this?
Mr. VAN ARKEL. If I understood the proposal correctly, and this is the first time I heard it, I think it would be far simpler to say we are going to repeal the manufacturing clause.
Mr. KARP. Well, I will accept that one, too.
Mr. DRINAN. Mr. Chairman, on section 601, music is exempted and it is not covered. Has anybody complained about that!
Mr. KARP. Everything is exempt except books. Any motion picture producer, American motion picture producer, can go to France or Italy and make a movie with foreign labor and import any number of copies of that film into this country and secure copyrights. And the damage done to the craft unions of California is probably much greater than is done to the printing trades in this country, but that isn't prohibited. The only class of copyright work that is covered by this clause are books and contributions to periodicals, and only if written by American authors. And I really think that if we went to court, the U.S. Supreme Court might well say that is such an arbitrary classification, that this classification is so discriminatory, that it violates the due process clause of the fifth amendment. And I cited cases in my statement where the court has said that. And I wonder whether