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Compromise has been the bloodline of the manufacturing requirement. It was compromise that originally injected the clause into the law, and as demonstrated through its long history, it was compromise after compromise that sustained it. It is difficult to see how the remaining shell of the once powerful manufacturing clause can survive further revision of the act, as is presently contemplated.
In 1961 we found out that the shell was a little harder than we thought, but after 16 more years of further compromises, this comment remains apt. The manufacturing clause has never been defensible on principle, and of the many blots on our international copyright escutcheon it has traditionally been the biggest and the dirtiest. As it now stands, section 601 is far less objectionable than the present manufacturing requirement and its many predecessors, but the question remains: Do economic factors justify any provision conditioning the exercise of rights under a copyright upon the place where copies were manufactured ?
As I mentioned just now, and I will repeat in summary, Mr. Kasteinmeier asked Mr. Biller on May 8 whether it might be useful for our purposes internationally to place a further restriction on this section, which could actually limit the effect of the manufacturing clause to a term certain, for example, 6 years, or some other specific period of time. Mr. Biller replied affirmatively. The Department of Commerce supported the view.
The Copyright Office is familiar with the process of compromise that produced the present text of 601. We believe that all those who participated in it deserve commendation for their reasonable attitudes and spirit of give and take. We also respect the willingness of various groups to remain committed to their agreements despite the passage of nearly a decade since the compromise began to emerge. Assuming that some sort of restriction on manufacture must remain in the copyright statute, the general approach of section 601 appears satisfactory.
At the same time, lest there be any doubt, we certainly support any effort to phase it out. We do think the time has come to think seriously about a phaseout. If, as Chairman Kastenmeier suggested, a terminal date for section 601 could be set now, it could provide a reasonable transitional period during which there could be an opportunity to study the actual economics of the situation during a time of great technological change in book manufacturing.
Mr. KASTENMETER. In connection-if I may interrupt—with what you have said about various groups remaining committed to their various agreements, what I suggested was gratuitous. It was not the result of any one side, or any other side, or negotiations, but rather the perception, I think, shared by the Copyright Office in terms of the long-term utility of this particular clause.
Ms. RINGER. Quite so. The technology of book manufacturing is going forward by leaps and bounds, and what I really started to say before was that in my opinion, the reproproof issue is not the hot issue it once was; because I do not think it makes that much difference any more. I think the economics of the industry, and obviously the impact of computerized book manufacture, are beginning to be felt, and I think that perhaps we are really dealing with an anachronism here now, although I am not prepared to say this in the face of book manufacturers sitting here saying otherwise.
In any case, Mr. Karp, as I said before, was not a party to the agreement of Toronto, although the officers of his organization have accepted the compromise in general in the past. But he did testify to you on September 18, that the American author is the primary victim of the manufacturing clause, and is being whipsawed between two, in effect, special interests. He did question the constitutional justification of the manufacturing clause, and I do not dismiss this lightly. But at the same time, he put forward two specific proposals.
The first was that section 601 should be made inapplicable to works by American authors first published abroad by foreign publishers. And his proposal, which includes a suggested amendment, is set forth here on pages 35 and 36. We agree with the principle of this proposal, though not necessarily with the language of the suggested amendment. What this would do, if it could be drafted properly, would be to limit the effect of the manufacturing clause to cases where American publishers choose, for economic reasons, to go to a foreign country to have their manufacturing done; as distinguished from the case where an American author cannot find any other publisher besides a foreign publisher to put his work before the public. And in those cases, Mr. Karp is arguing—and I think rather unanswerably on principle—that the author should not be caught in this bind.
I think it does on balance need to be said, however, that 601 is a great liberalization of the present manufacturing clause.
Mr. DRINAN. Excuse me, Mr. Chairman. Ms. Ringer, is there any hope that the UNESCO treaty, the Florence agreement, could be expanded into another treaty to take care not only of the tariffs, but also of the quantity?
Ms. RINGER. Well, as a matter of fact, the approach is from a different angle. The Bern Convention, which we are not a member of, prohibits formalities such as the manufacturing clause out of hand to foreign works. Let me try to answer your question directly, because I am not sure I am starting off right.
The Florence agreement is up for amendment next year. Maybe Ms. Schrader would want to address herself to this problem. I know she is familiar with it. Basically, the question is whether or not quantitative limitations, as distinguished from tariffs, are involved in the Florence agreement. I think they have not been traditionally. Am I right?
Ms. SCHRADER. That is right.
Ms. RINGER. The big question here is not Florence, but the General Agreement on Tariffs and Trade which the State Department saysand there is no question about it—is in spirit against this whole thing. I had not meant to get into this area, but let me try now.
In other words, if we were joining the GATT today, we could not sustain the manufacturing clause. If we were enacting the manufacturing clause, we could not do it under the GATT. The GATT, which is a peculiar instrument, does allow exceptions for existing laws and liberalizations of them.
Mr. DRINAN. But there is no way by which GATT can do our work for us?
Ms. RINGER. No, indeed, unfortunately; not unless you want to adopt a construction of it which would say, well, we just cannot continue this. It is so arguable, the thing is so unclear, that I would not be comfortable with a flat position. We just cannot do this as a matter
of treaty law. It would be nice to say this, but I just cannot see it.
I think if you are going to do away with it, you should just do away with it.
Mr. DRINAN. Thank you very much. Mr. KASTENMEIER. When I resumed the Chair, you indicated you did not necessarily intend to complete chapter 14 today.
Ms. RINGER. That is right.
Mr. KASTENMEIER. Then, could I encourage you to sum up to the point where you would like to? I do want to express my admiration for your ability, for over
2 hours, to engage in what is primarily a monologue-very difficult to do. It is very hard on any witness, and you have done beautifully, I must say. But I think—it is already 12:30, and we should not ask you to proceed much further at this late hour.
Ms. RINGER. Let me just say one more word about the rest of this section, which is up to page 38, and which involves a proposal by the Authors League to exempt periodicals and contributions to periodicals. And our feeling is that this really does run pretty solidly counter to the compromise, and we also doubt whether complete exemption would be necessary to protect the interests of individual authors in this particular situation. And we suggest some wording in the report that would probably solve the problem.
Now, Mr. Lacy of McGraw-Hill wrote to me, and he has also, through the counsel for the American Publishers Association, I think, written to counsel on both the Senate and the House side concerning what I think is a legitimate concern about the way this would work out in practice. In other words, his assumption as to how the compromise would work when the books arrive on the dock, so to speak—and I think he has got a point, and I think they should be addressed, and I think we will be here too long if I try to get into this. I could either start with this rather technical point next time, or just make it and leave it for further consideration in markup, perhaps. Then, I would start again on page 38 next time.
Mr. KASTENMEIER. All right, fine.
Mr. DRINAN. No. I just wanted to thank Ms. Ringer. This is better than any law school course that I had. I feel I should be paying tuition.
Ms. RINGER. Thank you.
Mr. KASTENMEIER. I think that sums up the committee's viewpoint. I thank you again very much, Ms. Ringer. We will see you, if not before, on December 4 in this room at 10 a.m.
(Whereupon, at 12:36 p.m., the subcommittee recessed, to reconvene at 10 a.m. Thursday, December 4, 1975.]
COPYRIGHT LAW REVISION
THURSDAY, DECEMBER 4, 1975
HOUSE OF REPRESENTATIVES,
AND THE ADMINISTRATION OF JUSTICE
Washington, D.C. The subcommittee met, pursuant to notice, at 10:30 a.m., in room 2226, Rayburn House Office Building, Hon. George E. Danielson, presiding
Present: Representatives Kastenmeier [chairman of the subcommittee), Danielson, Drinan, and Pattison.
Also present: Herbert Fuchs, counsel, and Thomas E. Mooney, associate counsel.
Mr. DANIELSON. The hearing will come to order. This morning we will hear further and probably finally from Barbara Ringer, the Register of Copyrights. Her appearance today marks the 18th session of the committee's public hearings on Copyright Law Revision.
The Chair notes that the Senate Committee on the Judiciary has: favorably reported the companion bill, S. 22, and prospects for the enactment of a revision bill seem brighter than before.
At this time, the Chair announces that without any objection, the second supplementary report of the Register of Copyrights on the general revision of the U.S. copyright law will be printed and published as a committee print. There being no objection, it is so ordered.
Welcome again, Ms. Ringer. Will you proceed? TESTIMONY OF BARBARA RINGER, REGISTER OF COPYRIGHTS,
ACCOMPANIED BY DOROTHY SCHRADER, GENERAL COUNSELResumed
Ms. RINGER. Thank you very much, Mr. Chairman. When I broke off last time, I was in the middle of chapter XIV on the manufacturing clause, and I would like to pick up at that point, finish chapter XIV and XV, if possible, complete the rest of my comments on the report which would involve going back to chapter XIII involving rights in sound recordings, then picking up chapter XII on preemption and duration, chapter XIII on formalities and infringement, and chapter XV on the Copyright Office and the Royalty Tribunal. This would complete the entire report. You have all of these chapters now, and I am very pleased that the report will be printed. Needless to say I would like to update it so as to take account of recent developments. I will be editing and updating it in the next month or so, and I hope it will be ready for printing around Christmas time. Mr. DANIELSON. That will be all right.
Ms. RINGER. In that case, I would like to start on page 38 of chapter XIV. Before doing that, I would just simply say to set the thing in context that there are two points that I have made so far with respect to the manufacturing clause.
First, that section 601 is really a very substantial liberalization of present manufacturing requirements and, especially if certain further amendments were added to it, would represent a great improvement over the present law. But at the same time, I do believe the time has come to think seriously about phasing the clause out entirely and the Copyright Office would certainly favor that approach if the committee so decides.
The points raised on pages 38 and 39 are not of major importance, but I should note that, since the date of this report, there have been further discussions between the counsel for the American Association of Publishers and the counsel for the Book Manufacturers Institute. As a result of these discussions, the Book Manufacturers Institute has withdrawn its proposal from an amendment, and I understand there is an agreement as to what the report might say on the point that is discussed here. I will not say any more about this rather technical matter, unless you would like to ask questions about it.
I will come immediately to the main point in this part of the chapter, which is the Canadian exemption, and I will read now from page 39. This point is discussed, Mr. Chairman, from pages 39 to 50 in the report, and I am starting to read at page 39 from my report.
Whether manufacture in Canada should be equated with manufacture in the United States is probably the easiest question to state and the most difficult question to answer in the entire revision bill. Obviously, the Canadian exemption is a pivotal part of the compromise underlying section 601. It was accepted by the Senate. At the September 18, 1975, House Judiciary Subcommittee hearings there was no opposition to the exemption, and there was testimony by Mr. Van Arkel specifically in favor of it. He did refer to the fact that, under the 380-called Toronto agreement, which I mentioned last time, there was an expectation that Canada would adhere to the Florence agreement, which would mean that tariff barriers with respected importation of books in Canada would be removed. The report in pages 41 to 44 attempts to lay out the present status of the dispute, and I will turn to page 45 in which I try to summarize this status.
No one is actually opposed to the Canadian exemption, considered bolely on its own merits. All the private interests that have spoken on the matter favor it, either because they believe it advantageous or justified or because they regard it as a fundamental part of the manufacturing clause compromise. And, as I said, it should not be forgotten that a major part of the agreement of Toronto involved Canadian adherence to the Florence agreement, which would mean a complete withdrawal of tariff barriers to the importation of American books into Canada.
Opposition to the Canadian exemption is entirely governmental. The State Department opposed it on the ground that it violates U.S. international obligations and runs counter to U.S. trade policy. The Commerce Department agrees, though its statement suggests less certainty about the violation and more concern about unilaterally giving up trade preferences without first negotiating something in return.