With me is Mr. Paul Conrad, general counsel of the association. We wish to address ourselves to sections 105 and 504 of the bill.

Section 504, in its endeavor to achieve uniformity in statutory damages to be awarded for copyright infringement, has eliminated provisions of the present copyright law relating to newspaper reproduction of photographs. Damages for unintentional infringement by a newspaper of a photograph copyright, under present law, are limited to not less than $50 nor more than $200 (sec. 101 (b)). Under proposed section 504 the unintentional infringement of a photograph copyright by a newspaper could subject the newspaper to damages ranging from a low of $100 to a high of $10,000.

It has been said in defense of the proposed change that newspaper infringement of photograph copyrights is not a serious problem. To support this contention it is pointed out that relatively few photographs are ever copyrighted, and instances of infringement actions being brought against newspapers, based on photograph copyright, are virtually unknown. We submit that if there is no problem in this area of copyright law, it is precisely because of the limits so wisely placed on recovery by the present statute. The logic of the limit is obvious. Newspaper reproduction of a photograph is unlikely to injure the copyright holder. It may well enhance the value of the copyright. The House Committee on Patents in its report on the 1909 Copyright Act (H.R. 2222, 60th Cong., second sess., 1909) observed that newspaper reproduction

has little permanent value or usefulness and a reproduction in this form does not damage the copyright proprietor to as great an extent as would the reproduction and sale of copies of the photograph in a different form.

We hardly provide a copy "suitable for framing."

We are not aware of any contention that the proposed change is based on complaint that the present limit is creating hardship for copyrighters of photographs.

On the other hand, exposure to heavy damage claims and certainly an upper limit of $10,000 is "heavy" by comparison with the present $200 maximum—imposes a burden on newspapers. More photographs are used by newspapers today than ever before, to the benefit of the public. Handling literally thousands of photographs annually, a newspaper could so easily overlook the notice on the rare photograph that has been copyrighted. It takes no imagination to visualize the pressure for substantial settlement a copyright owner could and would bring to bear on the unfortunate newspaper facing a potential claim of $10,000.

We appreciate the concern for uniformity which motivates the bill's proponents in drafting section 504. However, we submit that all of the reasons for the newspaper limitation which pertained in 1909 continue and indeed are more compelling in view of the tremendous increase in use of photographs in newspapers.

For these reasons our association urges retention of the proviso by adding to section 504:

Provided, however, That in case of a newspaper reproduction of a copyrighted photograph, such damages shall not exceed the sum of $200 nor be less than the sum of $50.

Section 105 of the bill deals with one of the most vital copyright issues; namely, the copyrighting of Government works. It is elemental that anyone who has the right to copyright has a legal right to withhold from public access. Last year Congress passed overwhelmingly a Freedom of Information Act. It recognizes the right of the public and Congress to all information held by its Government save that which must be withheld in the interests of national security and a very few Government-business areas.

In section 105 lies the potential for giving to individual Government employees the incentive, and even the right, to withhold information from the public for personal, private gain.

Opposing economic interests which help bring out the issues in such areas as CATV and jukeboxes are not present here. While there is an economic interest on one side of this Government copyright issuethat of the Government employee and Government contractor who stand to profit by obtaining copyright-there is really no countervailing economic interest.

Certainly the Nation's newspapers have no dollar-and-cents interest. Whether or not newspapers might be frustrated in their efforts to obtain access to copyrighted Government information would make no difference to the newspaper's profit-and-loss statement. Lack of access would, we think, impair our ability to discharge our responsibilities to the public.

Section 105 calls for the balancing on one side this economic interest with the principle of public access to Government information on the other. In a special sense then, Congress must delve into the intricacies of this problem as representatives of the people. Congress must make quite clear for the future direction of governmental agencies, employees, contractors, and the courts, what is and what is not copyrightable.

Section 8 of the present copyright law says of Government assembled intelligence simply:

No copyright shall subsist in any publication of the United States Government, or any reprint in whole or in part, thereof.

Given this rather vague language, the courts could have taken the narrow view that unless the Government itself publishes the work, it should be copyrightable. This would permit of unconscionable abuses. The courts could have taken a somewhat wider view that a Government work (therefore not copyrightable) includes any work produced by a Government employee specifically employed to produce the work. This, too, would allow employees and Government contractors to exploit a great deal of information coming into their possession as a result of their favored positions. For example, this would have permitted the copyrighting of the Gettysburg Address.

Going now to the other side of the question, an employee of the Government clearly should have the right to copyright a work unrelated to, or only casually related to his Government employment. The problem, then, is one of drawing a line between the latter described work and work based substantially on the employee's Government-provided information.

Section 105 of S. 597 proposes now to define a Government work as "a work prepared by an officer or employee of the U.S. Government as a part of his official duties."

This, our association submits, takes a relatively narrow view of what constitutes a Government work. It still leaves to the courts a heavy responsibility for interpretation. Depending on the legislative history accompanying the act, the courts could be forced to hold that this language will permit copyrighting of any work prepared by a Government employee on his own, no matter how deeply the content delves into information peculiarly available to him in his Government work. The example often suggested is the astronaut who first lands on the moon, and who sets down his impressions and observations. Since he was employed as an astronaut, not as a writer, it is conceivable that this writing would not be "a part of his official duties."

These impressions, then, could be withheld from public access until the employee finds the highest bidder for his copyrighted writing.

The concern of the press is that if the Government employee has the right to copyright his creative works stemming directly from his Government employment, he has every incentive to withhold from ordinary press access the information which he intends to exploit privately. After all, if he has blurted it out to a reporter and it appears in the Nation's press, it will have little or no salable value to a prospective book publisher. At this point, then, the right to exploit fosters a form of wholly unregulated censorship by the individual possessed of information having genuine public interest. The more interesting the information, the more potential value it has in copyrighted form, and the more incentive the individual has for concealing it until he is ready to sell it.

Exploitation here means that Government funds have been used for private gain whether we are talking about an individual employee of the Government or a private contractor whose research has been funded by the Government.

Far too much of this has gone on already, in some instances seeming to be in direct conflict with the language of the present statute. Again the real problem is that no one has sufficient economic interest to act as a watchdog. M. B. Schnapper, editor of Public Affairs Press here in Washington, has brought the issue into focus in a declaratory judg ment suit challenging the right of Vice Adm. Hyman G. Rickover to copyright a series of speeches about nuclear power, the Navy and education. The Supreme Court in its 1961 review of the case (369 U.S. 111) observed that the case raises "serious public questions" "questions touching the responsibilities and immunities of those engaged in the public service, particularly high officers, and the rightful demands of the Government and the public upon those serving it." Mr. Schnapper in his book, "Constraint by Copyright" (Public Affairs Press, 1960), documents some of the abuses of Government copyright. We can hardly rely on an individual or a group to police this area of copyright which grows more complex daily with Government expansion into research.

Such is our view of the problem. We find the language of section 105 to be the least acceptable of various solutions advanced to date.

The original House bill defined a "work of the U.S. Government" as "a work prepared by an officer or employee of the U.S. Government within the scope of his official duties or employment." (See H. Rept. No. 2237, 89th Cong. 2d sess., at p. 192). This language at least admitted of interpretation that the ambit of an employee's official duties could include more than just what he is expected to produce for the Government.

"Within the scope" would be further enlarged if these words were replaced by "in connection with." It has been proposed that Congress go the whole way and prescribe copyright of all material "where a substantial part thereof is created by Government employees, or with Government funds."

Any of these proposals will surely raise a protest from Government employees and private firms contracting with the Government to do research. They will insist that each of these definitions of a Government work is too restrictive of their rights to copyright.

Our association would agree that drawing any line on the basis of a few words, which must in their simplicity cover myriad complex employee-Government and contractor-Government relationships will necessarily result in some inequities. But if Congress chooses to resolve this important issue by means of a few words, we would urge that any doubts be resolved in favor of the public, not private individuals. These individuals are being compensated for their Government-related efforts, and need not necessarily be given a means of exploiting their Government associations.

Ideally, we think Congress should resolve the CATV, juke box and performers' rights issues now, and reserve for separate consideration a rewriting of section 8. Ideally, too, it will not be accomplished by the use of a few words tortuously selected to cover an impossibly long list of different Government information situations. Rather it will deal with each of the possible situations with statutory provisions that are definitive, equitable, and protective of both private and public interests.

Thank you for this opportunity to appear.
Senator BURDICK. Thank you.

I am sort of curious. What did the court hold in the Rickover case? Mr. POTTER. Well, it is still in the process at the moment, sir. Senator BURDICK. You have a review of the case and a quotation from it. It is decided, is it not?

Mr. POTTER. It was remanded to the district court for continued hearings.

Senator BURDICK. Oh, I see.

I believe Mr. Schnapper will be a witness here, later today.
Mr. POTTER. Yes, sir.

Senator BURDICK. Mr. Potter, I note you have some suggested language for section 105 of the bill.

Mr. CONRAD. We included several ways that the wording could be changed; yes, without suggesting any single one.

sir.

Mr. POTTER. We realize it is a highly complicated matter, sir. Senator BURDICK. We will give it our best attention. Thank you,

Mr. POTTER. Thank you.

Senator BURDICK. Mr. William T. Collins.

STATEMENT OF WILLIAM T. COLLINS, PRESIDENT, OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, INC.

Mr. COLLINS. Gentlemen, my name is William T. Collins, and I am here to urge the subcommittee to consider adopting an amendment to S. 597 that would exempt from provisions of the bill all nonprofit agricultural State, county, and district fairs, and all establishments within their confines.

I own and operate the William T. Collins Shows, a carnival show that is based in Minneapolis, Minn., and which plays fairs on a route that extends from Canada to Oklahoma. I appear before this subcommittee on behalf of the Outdoor Amusement Business Association of which I am president. OABA members include carnival shows that do business in all of the 48 continental States.

Whenever we speak of fairs, the tendency may be to think first of the huge and spectacular fairs, such as the Illinois, Minnesota, and Ohio State Fairs that each year attract more than 1 million paid admissions. Those large and successful million-admission fairs are far from typical. The typical fair, I assure you, is a modest operation that today is struggling for its very existence.

Amusement Business magazine each year publishes a directory of fairs, and it is the most authoritative fair listing in existence. The 1967 directory lists 2,297 commercial fairs that operate for 3 or more days each year throughout the United States and Canada. Of those nearly 2,300 fairs, only 27 of them in 1966 attracted more than 500,000 admissions. And 2,125 of those fairs attracted 100,000 admissions, or less.

Last year, the typical fair attracted only 34,000 paid admissions and had a revenue of only $42,000. Today, $42,000 does not go very far, not when one is attempting to operate a fair. The typical fair spends about $13,000 a year to maintain its grounds and buildings. An estimated $18,000 is put into plant improvements, such as blacktopping, landscaping, constructing new exhibit buildings and restroom facilities, painting, and the like. The typical fair budgets $5,000 or so for talent for its grandstand shows. That leaves only about $6,000 for salaries, advertising, the premium prizes awarded 4-H youngsters and other exhibitors, and other miscellaneous expenses.

It's easy to see, therefore, why the small agricultural fair today is hard pressed to make ends meet. If a fair were a business, it could either raise its prices, dilute the quality or size of its product while holding the price line, or quietly go out of business. However, a fair is not a business. It is, instead, a nonprofit institution that has long been an important part of our American tradition, especially in the ag ricultural States. For many rural and small town families, the fair is still their entertainment highlight of the year. The States are vitally concerned with preserving their State and county agricultural fairs, because the fairs serve as showcases for agricultural products. and they motivate rural youngsters to remain on the Nation's farms.