RESPONSE OF THE AMERICAN HISTORICAL ASSOCIATION TO TESTIMONY OF On behalf of the American Historical Association's Committee on Freedom of Inquiry, as well as the other historical and learned societies referred to in my statement of April 4, 1967, I wish to thank the Senate Subcommittee on Patents, Trademarks, and Copyrights for an opportunity to comment on the testimony of the author-publisher witnesses at the hearing on April 28, 1967. Please consider my remarks as applicable also to H.R. 2512, passed by the House of Representatives on April 11 and referred to this Committee on April 12. For the convenience of the Committee, there are attached as Appendices I to IV the amendments to the language and legislative history of S. 597 which we feel essential to meet the needs of the historian and others engaged in scholarly research. SUMMARY OF PROPOSED AMENDMENTS TO S. 597 AND H.R. 2512 We urge the Senate Judiciary Committee and this Subcommittee to take the following action: Fair use 1. Retain, as passed by the House, Section 107, of H.R. 2512. (a) Reject the publisher's proposal to amend Section 107 and the language contained in the first two sentences of the third full paragraph on page 31 of the House Report. See Appendix I hereto. In our judgment, the effect of the publishers' proposals would be to negate the fair use doctrine, making Section 107 a promise to the ear to be broken to the hope. As the hearings and debates on H.R. 2512, the House version of S. 597, show, Section 107 was based upon a long line of court decisions exempting the reasonable use of a copyrighted work by scholars, teachers and others from threats of civil and criminal liability under the copyright law. The hearings before this Committee, we submit, fully support the correctness of the value judgment of the House. The legislative language of Section 107 clearly endorses a liberal application of the doctrine of fair use whenever the use is in furtherance of the advancement of scientific, historical, legal, or educational purposes.1 The publishers did not deny this. On the contrary, they frankly admitted their purpose was to limit the traditional exemption embodied in Section 107. (b) Reject the suggestion at page 34 of the House Committee Report that the fair use doctrine is to be narrowly limited in the case of unpublished works. With all due deference, we submit this concept is not only foreign to the judicially created principle of fair use but finds no support in the policy considerations which underlie copyright protection. Moreover, such a narrowing of the doctrine of fair use would run directly contrary to the Association's congressional mandate. 36 U.S.C. § 20. (c) Repudiate the publishers' bald and wholly speculative claim that the "unauthorized" use of a copyrighted work must be prevented no matter how minor the amount of royalty allegedly diverted. I trust I may be forgiven for saying the unbridled self-interest of this proposal refutes itself. (d) Reject the publishers' contention that the existence of a possible "commercial motive" on the part of a user of copyrighted material per se narrows the market available for exploitation of the copyright monopoly. Under the most charitable view, this contention exemplifies the danger of attempting to extend a principle to the fullest limits of its logic. (e) Accept and endorse those portions of the House debates on H.R. 2512 which conclusively demonstrate that the whole structure of the legislation was designed to avoid any arbitrary limitation on the concept of fair use. 113 Cong. Rec. H 3863. The inapplicability of conventional concepts of property to the "unique and abbreviated" right conferred by the copyright was repeatedly emphasized. Id. at H 3613, 3863. The floor managers of the House Bill were also at pains to point out that, because of the educators' concern over the position taken by the publishers, "the subcommittee [provided] that fair use can include 'use by reproduction in copies or phonorecords or by any other means' specified by the statute." Id. at H 3613. They further made clear that "Notwithstanding the copyright owner's exclusive rights, the courts have held that others may make 1 See cases and materials cited in footnote 12 of my statement of April 4, 1967. a 'fair use' of portions of literary property for purposes considered to be in the national interest." These uses, as Mr. Poff stated, are identified in Section 107 "to include criticism, comment, news reporting, teaching, scholarship, and research." Ibid. Finally, as Mr. Hutchinson pointed out, any attempt to limit, confine, or narrow the fair use doctrine would "make much more difficult a fair use of a work by a scholar or a teacher or anyone else." Id. at 3863. For these reasons we respectfully urge this Committee, and the Congress, to make clear once and for all that any attempt to emasculate the doctrine of fair use is totally inconsistent with the constitutional standard, the national interest embodied therein, and the intent expressed in the legislative language of Section 107. Archival collections 2. Our proposal that the Committee include as a part of its report a clarifying statement of the "for profit" clause in Section 108 was not opposed by any witness. Accordingly, we respectfully request that the language which appears in the Appendix II be included in the Committee's report. Duration 3. Amend Sections 302(a), (c), and (e) so as to provide an inducement to the authors of unpublished materials to register such materials. This proposal, which was unopposed by any witness, it of the utmost importance to the community of historians, scholars, and teachers. Furthermore, it is fully consonant with the overall purpose of the legislation, namely, to provide greater certainty with respect to the terminal date of copyright protection of both published and unpublished materials. Limiting the copyright term of unpublished unregistered materials to life-plus fifty years or seventy-five years from the date of creation. whichever expires first, can do no violence to the legitimate interests of the authors of such works. The amendment proposed in Appendix III will reduce the practical burden on scholars and others in dealing with the prodigious body of unpublished, unregistered works that exist and will come into existence after the effective date of the law. Innocent infringement 4. Amend Section 504(c) (2) so as to protect those engaged in historical and other scholarly pursuits from liability for statutory damages for technical copyright infringement. This proposal, which was unopposed, is essential to protect the historians' freedom of inquiry. In this connection it should be noted that the amendment proposed (See Appendix IV) is limited to copying for personal use in the course of scholarly research. As previously noted, such use has long been recognized as falling within the fair use doctrine. The amendment is necessary and desirable, however, not only from the standpoint of legislative symmetry, but to insure a parity of treatment for the scholarly researcher with the teacher. Protection of the interests of both are essential to accomplishment of the constitutional mandate. namely, to stimulate intellectual labor, literary creativity, and contributions to the totality of human knowledge. We feel certain that this committee, and the Congress, has no wish to impede the exercise of intellectual curiosity. As an educational spokesman recently noted the two qualities essential to learning are curiosity and resolution, for only the curious will learn and only the resolute will overcome the obstacles to learning." We are satisfied this Committee has no desire to erect unwarranted threats of suits for copyright infringement as an additional obstacle to the advancement of the sciences and useful arts. Respectfully submitted. PAUL L. WARD, Executive Secretary. APPENDIX I To insure that § 107 will receive the liberal interpretation intended, we suggest this Subcommittee include as part of its report the following language in lieu of 2 Report of Eugene S. Wilson, Dean of Admissions, Amherst College, p. 8 (issued May that which appears in the first two sentences of the third full paragraph on page 31 of the House Report: "It is important to realize that the bill is not intended to restrain scholars from using any work as source material or from making 'fair use' of it. Any use for scholarly research or educational purposes that is fair use today would be fair use under the bill. As the Court of Appeals for the second circuit recently held, the fundamental justification for the fair use doctrine is found in the Constitutional purpose which underlines the granting of copyright protection. Rosemont Enterprises, Inc., v. Random House, Inc., 366 F.2d 303, 307 (2d Cir. 1966), cert. den. 385 U.S. 1009 (1967). The Court there noted: "To serve that purpose, "courts in passing upon particular claims of infringement must occasionally subordinate the copyright holder's interest in a maximum financial return to the greater public interest in the development of art, science and industry."" "The Court of Appeals also concluded that 'whether an author or publisher has a commercial motive or writes in a popular style is irrelevant to a determination of whether a particular use of copyrighted material in a work which offers some benefit to the public constitutes a fair use,' Id. at 307. "The Court refused to subscribe to the view that a user is absolutely precluded from saving time and effort by referring to and relying upon prior published material, stating, 'It is just such wasted effort that the proscription against the copyright of ideas and facts, and to a lesser extent the privilege of fair use are designed to prevent. See Gorman, Copyright Protection for the Collection and Representation of Facts, 76 Harv. L. Rev. 1569, 1584 (1963).' Id. at 310. "This Committee subscribes to that view of copyright expressed by the Supreme Court in United States v. Paramount Pictures Inc., 334 U.S. 131, 158 (1948). "In United States v. Paramount Pictures, Inc., 334 U.S. 131 at 158 (1948), the Supreme Court held that: 66 "The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 547, 46 L. Ed. 1010, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, "The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.' "Under the decisions of the courts a broader scope has always been afforded the doctrine of fair use where the field of learning is concerned. The courts are especially inclined to a liberal extension of the doctrine where the matter copied is of a scientific, historical, or educational nature.1 As Mr. Latman's study notes: "It has often been stated that a certain degree of latitude for the users of copyrighted works is indispensable for the 'Progress of Science and useful Arts.' Particularly in the case of scholarly works, step-bystep progress depends on a certain amount of borrowing, quotation and comment.' 2 "It seems clear that the copyright was never conceived to promote publication as an end in itself. Without reasonable access to source materials, the primary social purpose of the copyright-to encourage the creation and dissemination of works of learning-may easily be subverted. A preoccupation with protecting the publish-manufacturer's investment may result in a severe imbalance in the equities involved. We submit that in balancing the equities involved in educational and scholarly uses, the public interest should prevail over possible de minimis damage to the copyright owner. Certainly in the case of unpublished works, there can be no showing that their use has lessened their commercial value." 1 Rosemont Enterprises, Inc., v. Random House, Inc., 366 F. 2d at 307; Berlin v. E. C. Publications, Inc., 329 F. 2d 541, 544 (2d Cir. 1964); Mathews Conveyor Co. v. Palmer-Bee Co., 135 F. 2d 73 (6th Cir. 1943); B. Kaplan, An Unhurried View of Copyright, pp. 62, 73, nn. 73, 113 (Columbia University Press 1967); Gorman, Copyright Protection for the Collection and Representation of Facts, 76 Harv. L. Rev. 1569, 15S4 (1963); Nimmer on Copyright, 145, p. 652 (1963). Latman, Fair Use of Copyrighted Works, Study No. 14 prepared for Subcom. on Patents, Trademarks and Copyrights, Sen. Comm. on the Judiciary, 86th Cong., 2d Sess. (Comm. Print 1960) at 7. APPENDIX II To clarify the "for profit" clause in § 108, we suggest that this Subcommitteeinclude as a part of its report the statement that: "The receipt of a sum of money by a nonprofit institution to defray the cost of reproduction (including a contribution to the general expenses of the library) shall not be deemed to be for the purpose of direct or indirect commercial advantage where such proceeds are used exclusively for educational, religious or charitable purposes and not for private financial gain. Compare Section 110(4) and H.R. Rep. 83 at 47. "This will make clear that the decision in Associated Music Publishers, Inc., v. Debs Memorial Fund, Inc., 141 F.2d 852 (2d Cir. 1944) may not be invoked to defeat the statutory purpose of Section 108.1 The interest of the librarian and the archivist in affording ready access to materials in their custody is obviously of paramount importance in achieving the constitutional purpose of promoting the sciences and useful arts." APPENDIX III The Association fully appreciates the considerations which underlie extension of the duration of the period of copyright protection in Sections 302 through 304 from fifty-six to seventy-five years. International uniformity in the protection of registered works is highly desirable. The one hundred year maximum term for unpublished works and the seventy-five/one hundred year term for anonymous works do, however, raise problems for the historians and others engaged in scholarly research, writing and teaching. Accordingly, we propose an amendment to Section 302(a) designed to reduce the practical burden on scholars and others in dealing with the prodigious body of unpublished, registered and unregistered works that exist and will come into existence after the effective date of the law. The amendment we propose would be added as a proviso at the end of Section 302 (a). It would state: "Provided, that in the case of an unregistered work, copyright endures from its creation for a term consisting of the life of the author and fifty years after his death or for a term of seventy-five years from the date of creation, whichever expires first." It is our understanding that under the general scheme of the Bill the intention is to provide copyright protection for a period approximately seventy-five years from the date of creation of a work in lieu of the existing fifty-six years from the date of publication. Furthermore, the Bill and the House Committee Report recognize the importance to users and the public at large of providing an inducement to authors to register their works whether published or unpublished. Compart H.R. Rep. 83 at 125–126. In order to fully effectuate the purpose of this amendment, and at the same time protect the duration periods specified for anonymous and pseudonymous works, and works made for hire, it is proposed that Section 302 (c) be amended so as to insert in line 31 on page 29 of the Bill the phrase "if registered" immediately after the word "hire." A similar amendment should be made to Section 302(e) at line 21 page 30 of the Bill by inserting the phrase "first publication of a registered work" in lieu of the phrase "first publication of a work."” These amendments we submit will protect the interest of the scholar and of the public in the dissemination of historical knowledge without undue infringement of private rights. The vast majority of the works affected consist of private materials that no one is interested in protecting or infringing. At the same time, they accord recognition of the importance of such materials to the community of scholars and the nature and function of historical research. Historians are interested not merely in the relatively small body of literary works registered and published but in the total body of the recorded human record. This record historians find indispensable in documenting their research. 1 See Latman, Fair Use of Copyrighted Works, Study No. 14 prepared for Subcomm. on Patents, Trademarks and Copyrights, Sen. Comm. on the Judiciary, 86th Cong., 2d Sess. (Comm. Print 1960) at 13. 2 H.R. Rep. 83 at 102 (recent life expectancy statistics indicate that between 70 and 76 years is the average equivalent of life-plus-50 years). The House Committee stated that, as a general rule, it intended the life-plus-50 term to apply "equally to unpublished works, to works published during the author's lifetime, and to works published posthumously." Id. at 103. APPENDIX IV INNOCENT INFRINGEMENT We support the view of the House Committee that a special "innocent infringer" defense should exist for the "problems of educational and scholarly uses of copyrighted material discussed in connection with [Section 107].”1 Through some oversight, however, the defense as set forth in Section 504 (c) (2) of the Bill is limited to "face-to-face teaching activities in a classroom or similar place normally devoted to instruction." In order to accomplish the expressed legislative purpose we suggest that the last sentence of Section 504 (c) (2) commencing with the word "In" in line 23 at page 44 of the Bill be deleted and in lieu thereof the following be substituted: "In the case of reproduction for the educational and scholarly uses specified in Section 107, where an instructor in a nonprofit educational institution who infringed by reproducing a copyrighted work in copies, phonorecords, or by any other means for use in the course of face-to-face teaching activities in a classroom or similar place normally devoted to instruction, or where an individual who infringed such a work by copying it by manual or any other means, for his personal use in the course of scholarly research, sustains the burden of proving that he believed and had reasonable grounds for believing that the reproduction was a fair use, the court in its discretion may remit statutory damages in whole or in part." Hon. JOHN L. MCCLELLAN, AMERICAN HOTEL & MOTEL ASSOCIATION, Chairman, Subcommittee on Patents, Trademarks, and Copyrights, Washington, D.C. DEAR MR. CHAIRMAN: Enclosed is an original and copy of the statement of the American Hotel & Motel Association presenting the Association's views on S. 597... a bill to revise the Copyright Law, Title 17 of the United States Code, and for other purposes. While recommending some revision, the attached statement, in general, supports Sections 110 (5) and 111(a)(1) of S. 597. We strongly urge that some relief from possible infringement be assured our industry where our establishments using a master antenna merely retransmit broadcasts to various portions of their establishments and "no direct charge is made to our customers." We understand that this is a complex problem but unless an exemption is made under such conditions, it is entirely possible for example, that the tenants of Federal-aid programs in the field of Housing, like ourselves, may find themselves liable in those instances where there is a secondary transmission from a master antenna to various units in a Housing project. We request that this official statement of the Association be made a part of the record of the Subcommittee hearings on this legislation. Sincerely yours, Enclosures. ALBERT L. MCDERMOTT. STATEMENT OF THE AMERICAN HOTEL & MOTEL ASSOCIATION TO THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS, U.S. SENATE Mr. Chairman and gentlemen of the subcommittee, I am Arthur J. Packard, president of the Packard Hotels Company which is a chain of small hotels and motels. I am also chairman of the Governmental Affairs Committee of the American Hotel & Motel Association. The Association is a federation of state associations having a membership in excess of 6,000 hotels and motels located in all sections of the country. It maintains offices at 221 West 57th Street, New York City, and at 777-14th Street, NW., Washington, D.C. I welcome this opportunity to present the Association's views on S 597, a bill for the general revision of the Copyright Law. The Association wishes to register its support of Sections 110 (5) and 111(a)(1) of S. 597, subject to the following comments; 1 H.R. Rep. 83 at 131. |