public broadcasting organization. Instructional television has an exemption, but the public broadcasters, both radio and television, would have a compulsory license for performance of nondramatic literary and musical works. I gather that there were some minor amendments in favor of the copyright owners, but essentially the Mathias amendment was accepted. I am told it was pretty one sided. I was told that there were three supporters of deleting or not accepting the Mathias amendment, and that probably the other eight were in favor of it.

The Bayh amendment was not put forward. I gather Senator Bayh, who was there, indicated that he had changed his mind and was withdrawing it. This is the amendment of section 112, that would take any limit off of the number of video tape recordings that an instructional broadcaster could make and shop around. That, apparently, has been taken out of issue, as far as the Senate is concerned.

The Judiciary Committee adopted the changes that the subcommittee had suggested in section 301, which is the section dealing with the preemption of State law. But, an additional issue, which has been raised by the Justice Department, that had not been adopted by the subcommittee, was raised in the full committee. An amendment was put forward by Senator Burdick which was accepted, and this would make the preemption of State common law not applicable to sound recordings that had been fixed before February 15, 1972. In other words, these would still be subject to protection, or whatever you want to call it, under the various State laws that had been enacted since record piracy became a big problem. This is obviously something I will address myself to in detail when we come to that chapter. Probably the most startling thing that happened was a proposal by Senator Abourezk to shorten the copyright term. I don't know all the details of this, apparently it was not accepted, but the vote was very close. I think most people had not expected it to be an issue, so what happened came as a surprise.

There was some discussion of a so-called ballroom operators' exemption, which has not been put before you in testimony but has been discussed in the Senate. I think you may have received some mail on it. It was voted down. This was a proposal that ballroom operators and similar entrepreneurs be freed from vicarious or related liability in the case of a situation where an independent contractor on their premises is actually choosing the music to be played. In this case, the vote was fairly one sided against the amendment.

There was a proposal to delete the entire royalty tribunal, and this was defeated by a voice vote. Apparently, this was not a widely supported amendment. I would say, of the things the Senate did, the 21/2cent matter, the stretchout, and obviously, the Mathias amendment, were the most important amendments.

If you have any questions, I will try to answer them, but I must confess my information is sketchy.

Mr. KASTENMEIER. Did they not consider the performance royalty for musicians?

Ms. RINGER. My impression is that the point was not raised or discussed at all. I did ask directly and received a direct answer, that the questions of educational exemptions and library photocopying were not raised or discussed at all.

Mr. RAILSBACK. May I ask a question?

Mr. KASTENMEIER. Surely.

Mr. RAILSBACK. Well, what reason was given, or what reason ever has been given for not taking up the performance royalty in the Senate? I think there must be a reason. Is it because another committee might take it up, or what?

Ms. RINGER. No, it is somewhat complicated, but let me try to explain it, as I understand it. Section 114 of the 1974 bill before the Senate action was the most controversial issue in the Senate last year. It was one of the reasons for the referral to the Commerce Committee of the bill for the 15-day period. And the Commerce Committee did report the bill after the 15-day referral, with some changes in section 114. When it came to the floor, the issue was very vigorously debated on the first day of the debates. And it was pretty apparent that it wasn't going to go.

And after considerable discussion, 3 days later, I believe, the Senate deleted the whole provision as far as the performing rights are concerned. There is still section 114, but the performing rights went

out.

In his final remarks in the Senate, Senator McClellan indicated that this did not preclude Senator Scott, who was the principal supporter, from reintroducing the bill as separate legislation. I have forgotten exactly how this was declared, but a statement was made publicly that Senator Scott would be expected to hold hearings on the separate legislation. In fact, in the 94th Congress, he did introduce this as separate legislation and Representative Danielson has done the same thing. This is the same bill. It is in the form of an amendment to the 1909 law.

And it was the subject of hearings in the Senate the day after you had hearings on the same subject. I believe that it is still being considered there in the context of separate legislation as an amendment of the 1909 law. One could infer that the managers of the bill, which include, obviously, Senator McClellan and Senator Scott, have agreed to deal with it as a separate problem and not put it into the discussion in the committee of the general revision bill.

Mr. RAILSBACK. Thank you.

Ms. RINGER. Do you have any other questions? All right, I will now seek to give you a very brief overview of H.R. 2223, to try to preface a much more detailed discussion of the individual sections and chapters and issues.

The earliest drafts of the bill were prepared in the Copyright Office after the study period was over. I believe that it is appropriate to go into a little detail of what was done. We did collect a mass of writings on the subject. The question of copyright revision, obviously, has a long history and has produced an enormous amount of commentary. We did go through all of this in an attempt to observe what it contained in a substantive way. More importantly, for this purpose, we got together all of the revision bills that had been introduced, going back to the 1920's, and most importantly, the product of a very major effort that had been conducted just before World War II, which produced what is known as the Shot well bill. There was a blue-ribbon committee, chaired by James Shot well, of the League of Nations and Columbia University fame. It had produced an excellent bill for the 1940's but it

died when the war came. I don't think that speaks to any fault in the bill itself, but the impetus just went out of it.

We also put together, by subject, all of the foreign bills we could find that bear on this. They fall into very clearcut patterns. And we attempted to try to integrate all of this information to see how all of these different things decided or proposed to decide certain questions. We did this to make sure we weren't missing anything and to see how others have tried to fit the subject matter together in some kind of rational way.

I don't think in the end we really copied anything. We integrated and absorbed it, but I don't think there is anything in this bill now that was ever really copied from anything else.

On the other hand, it is a curiosity to find that your bill has been adopted in some foreign countries and in some foreign treaties. In other words, we had legislated and made treaty law by this longdrawn-out legislative process. There is a certain irony to that. It is startling to see the language we are familiar with here turning up in translation in other laws.

In any case, patterns are detectible throughout the whole range of this previous effort and the effort throughout the rest of the world. These things do fall into predictable categories. I think if you go back and read our earliest drafts from 1963 and the 1964 bill, which was our first essay in this field, I think you will find the structure almost the same. There have been, of course, some additions.

Title I of the bill is the basic revision of the present title 17 of the United States Code, which is the 1909 law, as amended. That is all it is. It does not contain anything else.

The title falls into eight general subject headings, which are the chapter headings listed on the first page of the bill. I certainly don't need to go over them for this purpose. But, this does not exhaust the subject matter of the bill.

I might add in this connection, Mr. Chairman, that the eighth of these was added in the Senate after you finished your work on the bill in 1967. It does establish the Copyright Royalty Tribunal, which has grown in the scope of its duties since its original introduction into the bill. Originally, we had only seven chapters. And then tucked between titles I and II are a whole range of transitional and supplementary provisions which are very detailed but contain some interesting little nuggets here and there. And I will try to point them out to you, when we come to them, although I do not believe that any of them were raised in any of the testimony except that of the Government witnesses on the second day. And I will try to point those out to you when we come to them.

Then we have title II, which is a completely separate piece of legislation, namely, the Design Protection Act, which was the subject of hearings in the House and it passed the Senate three times. It passed twice separately and the third time as part of this legislation in 1974. But, it has not been integrated quite as well as it should be. It just starts out "title II" and then you have the introduction. And I think someone, and I believe it was the Department of Commerce, said that it should be integrated better, because it may not be clear in a different context, if this were enacted into law, what titles you are talking

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about. And I do believe some decision should be made structurally as to how this should be handled. I don't think this is anything that need concern us deeply, but I do make that observation, because, in all candor, Mr. Chairman, the title was grafted onto this bill for strategic reasons rather than in an effort to try to enlarge the subject matter of general revision as such.

Chapter 1 of title I covers almost all of the testimony that you heard in bulk. I would say that the vast majority of the testimony you heard is covered under chapter 1 someplace or another. In fact, the vast majority is covered between sections 106 and 116. And I do think this can be a little misleading, because the guts of the bill are not confined to those big money sections. The bill is a reform bill and it is not a bill that is intended to give people more money. It is an effort to try to bring the law up to date. In fact, I think that anyone simply reading the testimony that was given here in the first 13 days would get the impression that the issues were simply that certain interests want more money, or don't want to pay more money. That is not, basically, the issue that is presented by this bill, of course. And I believe in going through this I can convince you of this, if you are not already convinced.

Chapter 1 falls into four parts. The first section, obviously, is definitions, which I think would be wise to include at the very beginning.

Sections 201 to 205 cover the subject matter that can and cannot be copyrighted. Section 106, which is a very fundamental provision of the bill, lays out the exclusive rights of the copyright owner in general terms. Then sections 107 to 117, are the limitations or qualifications on those exclusive rights, and inevitably, that is going to be what is most of what we are talking about.

With respect to the definitions, these have evolved very slowly, and in some cases torturously over the legislative process, but I think that most of them are now fairly well settled. I don't recall that there was any extensive challenge to any of the language in 101. There are some separate definitions in the cable and jukebox sections, namely, sections 111 and 116, because those are the only sections in which the terms that are defined are used.

The definitions in 101 are there because they are used in more than one section. Now, this can be a little tricky, because, for example, you may look at section 105 on U.S. Government works and, for instance, say you are talking about a work of the U.S. Government, then what do you mean? Well, the definition is in 101. And it is there only because the term is used in a not terribly important way in chapter 4. And we already had a letter to the Washington Post saying that the bill is faulty because works of the U.S. Government is not defined. However, it is defined, but it is defined in section 101, and you have to look for it.

Now, some of the definitions are extremely important in connection with substantive issues, but I will try to discuss them in relation to those issues.

The subject matter of copyright, as such-the scope of the copyright law in terms of the works it covers, as distinguished from the rights it gives-is covered by sections 102 to 105.

In the report that you have before you in draft form I have singled out four issues that were raised in hearings and elsewhere in relation to these four sections. Actually, there were no issues raised in connection with section 103. I have tried to put them forward to you in the form of four questions or issues to be considered. It is hard for me to say, Mr. Chairman, how I ought to handle this. A lot of this is not of overwhelming importance. I would ask that, if you could, you would look at the questions I have put forward on that first page. I will cover the ones that I think are worth mentioning here. I would hope that you would consider them in the markup, if you don't consider them now.

I think that the main one, the one that you should consider most directly, is question No. 4, which has been raised by several witnesses for the Government, most particularly in a letter, which you may have received, from NASA. This is a section which has been very, very controversial in the past. I think that you would find the legislative history of this surprising in view of the shortness of the section and the fact that you didn't hear more public testimony on it.

The question is essentially whether the prohibition against_copyright in U.S. Government works is too broad or too narrow. It had been an inflammatory provision at one time, but I do believe that a great deal of the heat has gone out of it.

The Commerce Department, in its testimony on the second day of hearings, called attention to the National Technical Information Service, the NTIS, which does have a statutory mandate to operate a clearinghouse for the collection and dissemination of scientific, technical, and engineering information. I would say, on the basis of my own knowledge, that most of the material they publish is not written by Government employees. It is written by independent contractors. Therefore, there is a question, initially, in my mind, as to whether or not a lot of the stuff they do publish isn't copyrightable if the Government, if the executive branch, chooses to make it subject to copyright. However, NTIS does not feel that way. And under its statutes, it is required to be as self-sustaining as possible and not to force the general public to bear the publishing costs that are essentially for private benefit for the benefit of the research and development community. The lack of copyright prevents NTIS from combating very extensive photocopyrighting. And they are mainly concerned with that, both in the United States and abroad.

The Department of Commerce therefore urged an amendment to section 105 that would allow it to secure copyright in NTIS publications, noting correctly that a precedent does exist for this in the Standard Reference Data Act involving Bureau of Standards publications.

The NASA letter, which came in not too long ago, made three specific recommendations with respect to this section. One is an old issue that in my report I attempted to cover historically, and that is to allow exceptions to the prohibition. The 1964 bill did contain a provision that would have allowed the Government to secure copyright in publications by Government employees or officials written as part of their duties in exceptional cases and under certain circumstances. This was strongly opposed, and was dropped, I believe, in the first bill that was the subject of your hearing in 1965.