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COPYRIGHT LAW REVISION

WEDNESDAY, MARCH 15, 1967

U.S. SENATE,
SUBCOMMITTEE ON PATENTS,
TRADEMARKS AND COPYRIGHTS OF THE
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to call, at 10:10 a.m., in room 3302, New Senate Office Building, Senator John L. McClellan (chairman) presiding.

Present: Senators McClellan, Burdick, and Fong.

Also present: Thomas C. Brennan, chief counsel; Edd N. Williams, Jr., assistant counsel; Stephen G. Haaser, chief clerk, Subcommittee on Patents, Trademarks and Copyrights; and George S. Green, professional staff member, full committee.

Senator McCLELLAN. The committee will come to order.

The subcommittee this morning resumes the public hearing on legislation to provide for a general revision of the copyright law. This series of hearings will consider all sections of S. 597, with the exception of the provisions relating to CATV. That subject was considered at separate hearings last year. The subcommittee at a later date will determine if additional hearings are necessary on that subject.

I introduced S. 597 by request. Therefore, I have no unalterable position on the bill. There are many provisions of it that need to be studied and that will be the purpose of our hearings, to get information that will guide us in trying to resolve issues and arriving at a proper judgment. The language of the bill is as many of you know, that approved by the House Judiciary Committee and it does not necessarily reflect my views concerning the several controversial issues involved in this legislation. I doubt if it reflects all of the views of my colleagues on the committee. Based on a preliminary study, there are certain provisions of the bill which I may not be able to support in their present form. I am hopeful, and anticipate, that if some revisions are made, I will then be able to give my wholehearted support to this legislation.

The Subcommittee has attempted to afford the opportunity to be heard to representatives of every qualified viewpoint. Over 100 witnesses will appear at these hearings. Due to the many requests received it will not be possible to hear everyone who desires to appear. I believe, however, that we will afford adequate time to all points of view.

I strongly recommend, and would encourage, all witnesses to submit their prepared statements for inclusion in the record and to limit

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their oral testimony to summarizing their major points. This will save time and thus afford, possibly, others a little more opportunity to be heard in person.

It is obvious that these hearings will be rather protracted. Because of other official and legislative duties, it will not always be possible for me to be present. Senator Burdick, my colleague, has agreed to preside in my absence. I appreciate his assistance and cooperation in this regard. Therefore, I direct that there be printed at this point in the record a letter of February 15, 1967, from me to Senator Burdick appointing him cochairman for these hearings and during the further consideration of S. 597.

Senator Burdick, any comments or statements?

Senator BURDICK. I am in substantial agreement with your statement. You have covered the territory.

Senator McCLELLAN. Senator Fong, I have just concluded a brief opening statement on the bill. Would you have any comment at this time?

Senator Fong. No, I have no comment at this time, sir.

Mr. BRENNAN. Mr. Chairman, I request that there be printed at this point in the record the notice of this hearing which appeared in the Congressional Record.

Senator McCLELLAN. Without objection, that will be done.
Mr. BRENNAN. To be followed by the text of the bill, S. 597.

Senator McCLELLAN. Without objection, that will be printed in the record. (The documents referred to follow :)

FEBRUARY 15, 1967. Senator QUENTIN N. BURDICK, Senate Office Building, Washington, D.C.

DEAR SENATOR: I was very pleased to learn of your willingness to assist me in conducting the hearings on S. 597, the copyright revision bill. I am designating you as co-chairman of the subcommittee for the consideration of this legislation.

Mr. Brennan has informed me that a number of those who were present at last year's hearings have commented on the skill and objectivity you displayed in conducting the proceedings. As you well know, the issues before the Patents subcommittee are rather complex and so I especially appreciate the time which you have devoted to the work of the subcommittee. With kind personal regards, I am Sincerely,

John L. MCCLELLAN,

Chairman.

NOTICE OF HEARING BY SUBCOMMITTEE On Patents, TRADEMARKS, AND

COPYRIGHTS Mr. MCCLELLAN. Mr. President, as chairman of the standing Subcommittee on Patents, Trademarks, and Copyrights of the Committee of the Judiciary, I wish to announce that the subcommittee has scheduled a public hearing on S. 597, the copyright revision bill. These hearings will be held on March 15, 16, 17, 20, and 21, commencing at 10 a.m. in room 3302, New Senate Office Building.

The subcommittee has already received a number of requests from those who wish to testify on this bill. Anyone else who wishes to testify should communicate immediately with the office of the subcommittee, room 349-A, Senate Office Building, Washington, D.C., telephone 225-2268.

The subcommittee consists of the Senator from Michigan (Mr. Hart), the Senator from North Dakota (Mr. Burdick), the Senator from Pennsylvania [Mr. Scott), the Senator from Hawaii (Mr. Fong), and myself.

(S. 597, 90th Cong., first sess. ] A BILL For the general revision of the Copyright Law, title 17 of the United States Code,

and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title 17 of the United States Code, entitled “Copyrights,” is hereby amended in its entirety to read as follows:

TITLE 17-COPYRIGHTS CHAPTER 1. SUBJECT MATTER AND SCOPE OF COPYRIGHT. 2. COPYRIGHT OWNERSHIP AND TRANSFER_. 3. DURATION OF COPYRIGHT. 4. COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION 5. COPYRIGHT INFRINGEMENT AND REMEDIES 6. MANUFACTURING REQUIREMENT AND IMPORTATION 7. COPYRIGHT OFFICE

Sec. 101 201 301 401 501 601 701

[graphic]

Chapter 1-SUBJECT MATTER AND SCOPE OF COPYRIGHT Sec. 101. Definitions. 102. Subject matter of copyright: In general. 103. Subject matter of copyright:

Compilations and derivative works. 104. Subject matter of copyright: National origin. 105. Subject matter of copyright: United States Government works. 106. Exclusive rights in copyrighted works. 107. Limitations on exclusive rights : Fair use. 108. Limitations on exclusive rights : Reproduction of works in archival collections. 109. Limitations on exclusive rights : Effect of transfer of particular copy or phonorecord. 110. Limitations on exclusive rights : Exemption of certain performances and displays. 111. Limitations on exclusive rights : Secondary transmissions. 112. Limitations on exclusive rights : Ephemeral recordings. 113. Scope of exclusive rights in pictoral, graphic, and sculptural works. 114. Scope of exclusive rights in sound recordings. 115. Scope of exclusive rights in nondramatic musical works : Compulsory license for

making and distributing phonorecords. 116. Scope of exclusive rights in nondramatic musical works: Public performances by

means of coin-operated phonorecord players. 8 101. Definitions

As used in this title, the following terms and their variant forms mean the following:

An "anonymous work” is a work on the copies or phonorecords of which no natural person is identified as author.

The "area normally encompassed” by a transmission comprises the entire geographic area within the radius that the transmitter's signal is expected to reach effectively under normal conditions, including any parts of the area within that radius that its signal fails to reach effectively because of terrain, structures, or other physical or technical barriers. The Register of Coyprights may, by regulation, further particularize this definition, taking into account any pertinent definition in a Federal statute or regulation.

"Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

The "best edition" of a work is the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.

A person's "children" are his immediate offspring, whether legitimate or not, and any children legally adopted by him.

A "collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

A compilation” is a work formed by the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation” includes collective works. "Copics” are material objects

, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either

directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed.

"Copyright owner," with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.

A work is "created" when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.

A "derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work."

A "device," machine," or "process" is one now known or later developed.

To "display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.

A work is "fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "'fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

The terms "including" and "such as” are illustrative and not limitative.

A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

"Literary works" are work's expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, or film, in which they are embodied.

"Motion pictures” are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.

To "perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in sequence or to make the sounds accompanying it audible.

"Phonorecords are material objects in which sounds other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed.

"Pictorial, graphic, and sculptural works" include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, plans, diagrams, and models.

A “pseudonymous work” is a work on the copies or phonorecords of which the author is identified under a fictitious name.

“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. To perform or display a work "publicly" means:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered;

(2) to transmit or otherwise communicate a performance or display of the work to the public by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

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