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COPYRIGHT LAW REVISION

THURSDAY, OCTOBER 9, 1975

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,

AND THE ADMINISTRATION OF JUSTICE
OF THE COMMITTEE ON THE JUDICIARY

Washington, D.C. 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, Drinan, Pattison, and Railsback.

Also present: Herbert Fuchs, counsel; and Thomas E. Mooney, associate counsel.

Mr. KASTEN MEIER. The hearing will come to order.

This morning, and again on October 23, next Thursday, in this room the subcommittee will hear closing testimony from Ms. Barbara Ringer, the Register of Copyrights. Ms. Ringer has been requested and has agreed to give us a detailed review of the state of the revision project, now that the hearings have been completed. Of course, we also would observe that in the other body, the Judiciary Committee in the Senate has reported out, earlier this week, a slightly modified version of the bill. So, I think these hearings are most timely. I would expect that other members would be appearing very shortly.

In any event, it is always a pleasure to greet Barbara Ringer. I suppose we would like to hear ultimately about three things: First, the general review of the bill in its entirety—and these three things are not necessarily in this order—but we are interested in the bill, and in the sections and in the provisions, whether or not they are in controversy, or have been in controversy ; second, those matters which still provoke some controversy, and we would like to pay special attention to them; and third, we would like to ask you, if you are able, to indicate how the present state of the bill in the other body may differ from the other body's action of last year, which is really encompassed in H.R. 2223, which is substantially the Senate bill of the second session of 1974,

Well, in any event, you may proceed. TESTIMONY OF BARBARA RINGER, REGISTER OF COPYRIGHTS, LI

BRARY OF CONGRESS, ACCOMPANIED BY DOROTHY SCHRADER, GENERAL COUNSEL

Ms. RINGER. I would like to start with a general statement and endeavor to answer your questions, then proceed with a general

review of the bill, and then go into some of the detailed questions, which I will continue on the 23d. I also will try to give you a general idea of what the Senate did on October 7, although I have not seen the text. I have just had the amendments described to me.

On May 7, the first day of your hearings, I appeared as one of the opening witnesses on H. Ř. 2223. My duty then, as I saw it, was to try to put the bill in historical perspective, to pinpoint the major issues remaining to be settled, and to answer your initial questions about the substantive content and status of the legislation.

I am returning on the 14th day of these hearings, in response to your letter of September 9, 1975, asking me to make the final presentation of testimony reflecting your views with respect to what the hearings revealed and what changes if any in the bill seem indicated.” I am greatly honored by this request, and I will do my utmost to fulfill it in any way that will help the committee complete the formidable task now confronting it.

During my testimony on May 7, I sought to identify what I considered the main isues remaining after a decade of sporadic legislative consideration of the general revision bill. The seven principal issues, more or less in the order of importance as I saw them then were:

(1) Cable television.
(2) Library photocopying,

(3) Fair use and reproduction for educational and scholarly purposes.

(4) Public and nonprofit broadcasting.
(5) Jukebox.
(6) Mechanical royalty for use of music in sound recordings.

(7) Royalty for performance of records. Related to several of these issues was the chapter of the bill establishing a Copyright Royalty Tribunal, which also presents some problems on its own. I also mentioned the likelihood of questions arising in connection with the manufacturing clause and with various concerns of graphic artists and designers,

Looking back, I think that most of the testimony you heard during the hearings actually does fall somewhere under one or another of these hearings. However, under each one of these big issues there are varying numbers of interrelated subissues, and none of them can be approached in isolation. There is, I hope you will agree, a figure in the carpet, but it is hard to find amid all the intricate strands and colors and patterns that go to make it up. I am not going to try to oversimplify something that is inherently complex, but I am going to try to organize the mass of arguments and pronosals that have been pit forward at these hearings in a way that will make them comprehensible in themselves and as a part of a larger whole.

With my testimony on May 7, I submitted 17 briefing papers covering various aspects of the bill. I also mentioned that I was preparing a second supplementary report of the Register of Copyrights on general revision, which I hoped to have finished in time for the subcommittee to be able to use it when it starts its markup. I have worked on this report off and on for most of the summer, seeking to incorporate into it everything that has been raised in these hearings, the changes made by the Senate subcommittee when it reported its bill in June, and a very few, mainly technical, points that I felt I should raise independently since no one else has mentioned them.

This supplementary report is nearing completion in draft form, and I plan to present it to the Librarian of Congress for submission to Chairman Rodino of the House Judiciary Committee and Chairman Eastland of the Senate Judiciary Committee as soon as possible. In its final form, the report will consist of about 15 chapters organized by subject matter in roughly the same order as the bill. At the beginning of each chapter the report will identify the sections involved and the issues remaining to be decided. The body of each chapter will, in varying ways depending upon the nature of the problem, review the background and content of the provisions of the bill in question and explain the nature of the issues raised and the arguments with respect to them.

The last section in each chapter will consist of comments and recommendations put forward by me as Register of Copyrights. In some cases, I will put forward alternatives or suggested possibilities for methods of compromising disputed issues. My purpose here is not to add one more burden to the already heavy load of proposals you need to consider, but to help you to find ways of deciding among the disputed proposals and debated points you already have before you. I have opinions on some of the matters before you and I will be honest about expressing them when need be, but I have no axes to grind. You, the members of this subcommittee, are the only decisionmakers in this room. My aim is not to influence you; it is to help you, in any way I can, to do your legislative job.

During my scheduled 2 days of testimony, I will first seek to give you an overview of the bill and to show how its many parts fit together. I will then start with chapter 1 of the new title 17 of the U.S. Code, as revised by the bill, and proceed by subject matter through to the end. I am attaching to this statement the drafts of the first five chapters of the supplementary report, which I will use as the focal point of my testimony. And depending on the amount of time we have, and the way the hearing goes this morning, I will probably read some segments from that draft.

On October 23, I will do my best to give you the draft text of the remaining chapters.

Today, I will try to cover the following topics: (1) Subject matter of copyright. (2) Fair use and reproduction for educational and scholarly purposes. (3) Reproduction by libraries and archives. (4) General limitations on performing rights. (5) Secondary transmissions—CATV-normally known as cable television.

These topics include the three most important and difficult issues remaining in general revision. I believe that all of them are susceptible of reasonable solutions. My hope is that my testimony this morning will not only sum up the results of the hearings on these hard issues, but will also help your subcommitee succeed in finding these reasonable solutions and reporting a good bill.

Thank you.

Mr. KASTENMEIER. Thank you, Ms. Ringer. At this point I am chagrined to observe that there is a vote going on on the House floor, a recorded vote on the question of H.R. 7706. We will have to recess

briefly. We will, I hope, be back very soon. I hope you will indulge us in this difficult task of competing with the House floor for attention. We will recess for 10 minutes. Perhaps we can come back sooner.

[Recess. ]
Mr. KASTENMEIER. The committee will come to order.
You were saying, before we were so rudely interrupted ?

Ms. RINGER. Thank you, Mr. Chairman. I had just finished my short opening statement. Perhaps I could give you, at this point, a brief summary of what the Senate full committee, the Judiciary Committee, did on Tuesday. I could do it later. It is a little hard to know exactly how to fit it in, Mr. Chairman. It is going to be obtrusive any time that I do it. I think perhaps now is as good a time as any.

One of the subjects I was going to talk about this morning was directly affected by the Senate Judiciary Committee's actions, and only one.

Nr. KASTENMEIER. Well, Ms. Ringer, use your own judgment in the matter.

Ms. RINGER. All right. To summarize the information I have—and I have seen nothing in writing, for I just have notes of the conversations—the Senate full committee completed all action and ordered the bill reported, with certain amendments. The Senate will be in recess next week, and the expectation, as I am told, is that there is no prospect of floor action until November, but there is a good possibility of it then, and that the chances of any referral to the Commerce Committee in the Senate, as happened last year, are remote.

There were three amendments to section 111 on cable television, and I think I will just skip over them, because I am going to be discussing that today. They were just clarifying amendments.

There was an amendment effecting the liability provision of section 501(c), which, as I am told, means that the subsection which permits local broadcasters to sue as copyright owners in infringement actions under section 111, would be retained, but would be limited to cases of willful and repeated violation.

The other amendment, which I think is the most important one with respect to cable, was in chapter 8 of the bill. I must confess that the information I have is slightly unclear as to the scope of this amendment, but at least as far as cable, and perhaps with respect to the other review activities of the ratemaking part of the tribunal is concerned, apparently the time limits, the so-called stretchout, was expanded from 6 months and 5 years to 3 years and 10 years. In other words, the review periods would be substantially increased, leaving the existing fees in effect considerably longer.

With respect to the mechanical royalty section, there was one clarifying amendment, which I don't think I need to go into. But, the most important thing was that the 3-cent rate was reduced to 21/2 cents. That was a very simple amendment.

I think the votes there were not record votes, but I canot be sure This is informal information I was given.

Most of the substantive discussion in the Judiciary Committee was over the Mathias amendment, which, as you can recall, is not before you in the form of legislation, and was introduced only at the full committee markup session. I really don't know exactly what the language is, but, in effect, the Mathias amendment was accepted. This would set up a compulsory license for performances by a nonprofiit

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