We will not, in the Copyright Office, register the three-dimensional design of a useful article unless something in it can be conceptually identified as a work of art in a very broad sense. The Patent Office will register everything we register and those things too, but only if it meets their standards, and if they are applied for. And the applications have dropped off substantially over the years in the design patent field. In any case, all this is a result of the Mazer case, and the design bill actually started before the Mazer case was decided and was based, in its very earliest origins, on the assumption that there was no copyright protection. So it is perfectly clear, Mr. Chairman, that the situation has changed since then.

But it is our quite strong belief that the design section title of the bill is still needed to cover this additional area of protection which is, in effect, without protection now. And we believe that the approach that has been adopted is valid for some of the material that we are now registering for copyright.

It is entirely conjectural whether anybody who is now getting full copyright protection, which is upwards of 56 years now, would turn to this title if they have clearly established rights under the copyright law now. Probably not. It took them a long time in years to realize the full copyright was going to be sustained by the courts. But I think it has been sufficiently established, and now that it is they would not turn back to design, sui generis design protection.

Nevertheless, I do believe that the overlap that you speak of between copyright and design protection under title II would be quite substantial and that people might find some advantages in going the title II route rather than the copyright route, even in areas that are now registering in the Copyright Office.

I think I had better skip over the legislative history going up to the point in the Senate where title I and title II were conjoined. The design bill, as I summarize on page 14, has been pending in one house or the other ever since its initial introduction in 1957. It has been the subject of hearings three times in the Senate and once in the House. On four occasions, it has passed the Senate. On two other occasions, it has been reported favorably by the House and Senate Judiciary Subcommittees and was the subject of a hearing before your subcommittee in December 1963.

I think I will skip now to the discussion of the design part itself, as distinguished from the typeface issue, and come back and deal with the typeface issue separately. I would like to emphasize at this point that the two are closely related.

This is from page 21. As the law now stands, a large area of designs of useful articles is subject to full copyright protection, while the remainder, consisting of a large body of fine three dimensional designs, is virtually without effective protection. The design bill would remedy this injustice and restore a balance to the level of deserved protection in a field involving a high degree of creativity.

The Copyright Office adheres to its position strongly favoring the enactment of title II of the bill. And we agree with the comments in a letter that NASA sent to the committee about 6 weeks ago indicating that there are some problems of terminology in conjoining these

two in the same piece of legislation. And it is unclear whether the design title would go under title 17 or would float around somewhere separately. I think that shoud be straightened out.

Section 202 of the design title has been strongly criticized for its failure to protect the shape of wearing apparel. This was a hotly fought issue, and it was a simple case of expediency. The shape of wearing apparel has been cut out of the area of protection of the bill, but this restriction does represent a hard-won compromise, and may well be the reason why there has been no opposition to the bill since 1969, other than the traditional opposition of the Department of Justice, which has opposed separate design legislation from way back before there was a Mazer case.

This is still on the design title.

In the context of protection for typeface designs under title II, questions have been raised as to whether a font is a "useful article" and whether any typeface design can qualify for protection under subsections (b) and (c) of section 202, which are restrictive in the sense of what can be registered as a design. And this is rather hotly argued in the typeface testimony.

In our opinion, there is no question that truly original designs for typefaces can qualify for protection under the design title, and we do not feel that revisions in the definition of "useful article" or the language of section 202 are necessary to achieve this purpose. But this is basically a technical question and not a substantive one.

The basic substantive questions concerning typeface are obviously more difficult.

Some technical points were raised by the Commerce Department in its testimony on May 8, concerning whether the design should be required to be made public before registration or the multiple designs could be registered together and whether declarations should be allowed in lieu of the requirement for statements to be made under oath. And the Commerce Department also argued that the $15 fee is too low, and that the Administrator should have discretion to set the fee at cost. The Copyright Office has no fundamental objection to these suggestions. We do observe, however, that multiple designs should be registrable on a single application only if they bear some discernible relation to each other. As for the fee, we have severe reservations about the Administrator being able to set fees on the basis of costs of operations in cases of this sort, where he could be in a position to subsidize the inefficiency of his own operations. If, as we are recommending and I am coming to this difficult recommendation-administration of the design operation is entrusted to the Copyright Office, the design fee should bear some relation to standard copyright fees.

A point raised by the Patent Office and representatives of typographers was supported by Alan Latman in his testimony, has to do with the possibility of maintaining an action for infringement without a certificate of registration. The Copyright Office has no objection to tightening this provision to prevent maintenance of suit in the absence. of a certificate of registration.

The question of where the design title should be administered is unanswered in the bill, but some expectation has been expressed that the

Administrator would be the Commissioner of Patents or a subordinate official of the Patent Office. There were, in fact, some informal discussions of this possibility over 20 years ago. In the light of the Mazer decision and the extremely close relationship between copyright and design registration, the Copyright Office now feels strongly that administration of the design title should be in the Copyright Office. Both the Department of Justice and NASA raise questions concerning the Government suit provision which allows the U.S. Government to be sued for design infringement. We agree with the suggestions advanced by NASA for technical improvements, but we do not really agree with the Justice Department's concern about possible difficulties for Government procurement under this provision.

We do not see that designs are any different from any other protected material for this purpose.

I should add a final point which I forgot, frankly, when I wrote this section of the report, Mr. Chairman.

A question was raised as to the length of the term which is now 5 years, for the renewal, one single renewal of 5 years, under title II. This was a compromise which was achieved, I would say, roughly in about 1955. It is inconsistent with the International Convention, which we do not belong to but which we could belong to if this were passed. And I believe that we should add an additional renewal term of 5 years. I do not see any public policy argument against it. The design patents now last for 14 years, and it would certainly make it possible for us to join an International Convention that we would not otherwise be able to join.

Í have a section in here about calligraphy, which is kind of a bridge between a basic work-of-art design question and the typeface question. I merely say on this point that we believe that we may have been wrong in not accepting calligraphy unless accompanied by illuminated letters, ornamental borders, pictorial embossing, and the like. We have come to the conclusion that calligraphy is an art form, a traditional, genuine art form, and that it should be registered assuming that it meets our formal requirements.

However, the calligraphers raised another question which has been a point of issue in some of the discussions in the Senate as to whether or not they should not have a right to use copyrighted material in the works that they letter. In other words, that they should be able to take a copyrighted poem and because of the fact that they are making it into a calligraphic work, they should be able to use it without permission or payment. And essentially, what we are saying is this should be handled by fair use, and they should not have a specific exemption. The basic question in typeface-and I regret this comes so late in the morning, but I would hope that we could get through this if possible, Mr. Chairman-is discussed on page 15, in which I quote at length from the letter I sent to you on June 6, 1975, explaining why this has become such an issue in copyright law under the present law. We are now being importuned to make registration as works of art for original designs for the individual letter forms in an alphabet. We believe this has become more of an issue than it had been because of the increasing use of photocomposition which vastly simplifies the exigencies which now exist in the designing of typefaces and makes it

possible for many more variations and a good deal more originality to be applied than could be applied when you have to work within the confines of a metal slug.

In any case, without burdening you with the full letter, you did, with my gratitude, hold a hearing on September 17, 1975, which dealt with this problem in the context of the revision bill. And this followed in many respects the hearing that I held the previous November in which this same sharp controversy was presented.

I am now on page 18. Proponents of typeface design protection argued that new photocomposition techniques have made unauthorized copying of typefaces an urgent problem, that original designs for fonts of type are the writings of an author in both the constitutional and statutory sense, that no case law in any field rules out their copyrightability, that registration for typeface designs would impose no burden on authors and reprinters, and that both titles I and II of the revision bill should be amended to make clear that typeface designs can be considered original and that fonts of type are useful articles. They also recommended that the term of protection under the design bill be extended to 15 years, and I would recommend doing that, as I have done, but for other reasons-besides just typeface-in other words, to conform to international standards.

Opponents argued that neither title I nor title II of the bill as drafted protects typeface designs; they opposed any amendment of title I to bring typeface designs within the scope of traditional copyright protection, and they stated that title II would be inappropriate without "very extensive amendment including mandatory licensing at reasonable rates." They argued that the issue is not one of "typeface piracy," so to speak, but of creating exclusive rights for a few big manufacturers, who would use them to enforce tying arrangements between their machines and fonts. Concern was expressed by a representative of magazine publishers lest recognition of exclusive rights might lead to suits to enjoin publication of printed matter. Representatives of typographers and the American Institute of Graphic Arts expressed concern about the danger of excessive protection that would foreclose the use of certain typefaces.

Since that hearing, the director of typographical development for the Mergenthaler Linotype Co., Mr. Parker, has reiterated a point that he made in the hearings but which may not have attracted your attention. It was that Mergenthaler-and I would assume that this same view is held by other manufacturers who do develop and buy original typeface designs-had no objection to compulsory licensing of protected typeface designs at a reasonable fee.

And he also made clear, as he had at the hearing, that Mergenthaler seeks only to protect original typeface designs from unauthorized use to make means for composing text, and from such unauthorized means being used to compose a page of text, and has no intention of seeking rights against publishers and authors or in the composed page as such. I have also received a letter from Mergenthaler's attorney here in Washington, Henry Leeds, who has urged us to go on and make a decision under the present law with respect to the pending applicationit has been pending for a long time now while all of this has been going on-and suggesting, I think-the letter is here, and you can judge it for

yourself, but I think it is a fair interpretation to say-suggesting that we will be sued in mandamus to insist that we register the original design, unless we decide the case favorably and change our regulations, which I think we have said all along we would have to do if we were going to do this.

Let me come now to the recommendations that I have on this very difficult problem. This is beginning on page 26.

The issue of protection for original typeface designs under the present law, or title I of the revision bill, which is the copyright part, or the design act embodied in title II, is one of extraordinary difficulty and complexity. In view of the consistent tradition in the Copyright Office in opposition to the registration of any typeface designs, the long-standing interpretation of the Office's regulations to this effect, and the many doubts raised at the Copyright Office hearing on the subject, it is our view that registration under the present law should be made only on the basis of a clear-cut judicial decision.

And as I have suggested, this may be forthcoming.

The testimony at the House hearings on July 17, 1975 suggested that, underneath the sharp arguments, there may be an underlying basis of agreement. It seems possible that, if the bill were amended to foreclose copyright protection for typeface designs under title I and to make clear the availability of protection under title II, the various positions might be accommodated if: first, liability were clearly restricted to the unauthorized duplication of the design in the manufacture of fonts, matrixes, and so forth, and if printers, authors, publishers, et cetera, were clearly freed from any risk of liability; and second, that a compulsory licensing system were established under title II, allowing anyone to manufacture a font, et cetera, reproducing a protected typeface design on payment of a reasonable fee.

We see many similarities here, Mr. Chairman, to the situation that existed when the compulsory license was created for sound recordings in 1909: The claim of monopoly which has been very strongly urged and the recognition that here was something that needs to be protected, that deserves to be protected, but if you do protect it, there will be some economic consequences. This proposal would obviously require careful elaboration as to content, form and procedure. However, the Copyright Office considers this the best method of resolving an important and difficult problem and would, with your help, do its best to contribute to a productive result.

Mr. KASTENMEIER. Thank you, Ms. Ringer. Just one or two questions before we close today.

I am chagrined by the fact that there are so many other ongoing competitive legislative enterprises taking place this morning that we do not have all our colleagues present.

I do agree that if we were to protect typeface designs, it ought to be under title II rather than under title I, and we ought to make that clear. At least that is my offhand judgment.

I am not entirely clear why the printers, authors, publishers should be freed from any risk of liability. Precisely what connection might they

Ms. RINGER. The concern that was expressed by Mr. Wasserstrom here and also at the hearing I held in the Copyright Office in Novem