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not in the sanctuary, but down the hall, on Saturday evening and on Sunday evening

We feel that this kind of performance ought to be exempt, even though it is not in the place of worship in the sanctuary or even if it is not connected with an actual worship service at the time. We feel it is a part of the religious function of the church and of the churches.

Senator BURDICK. It is your contention that a reception, a coffee reception or something in the building adjoining the church before and after services is not the same as services?

Reverend FORE. That is the problem. It would not be the same, and under the proposed new law, it is constructed very strictly, and restricts it only to time of worship service, or in the place normally used for service, and we believe that is too restrictive.

Senator BURDICK. Proceed.

Reverend FORE. Three. That in section 111(b) (2), CATV systems be allowed to transmit "religious programs including sermons, devotionals, religious news, music drama, and other types of programs when presented primarily for religious purposes.” This nomenclature is consistent with the recently adopted FCC license renewal forms, and presents a valid description of religious programs, description of what constitutes religious broadcasting, and we believe presents a valid description of religious broadcast programs.

The way it is written now in the proposed law, I think about the only thing that a CATV system could be allowed to broadcast would be a sermon, or a worship service, but I don't think, I am not even sure it would allow just a prayer alone, standing alone, to be broadcast. We feel that this broader description that I have quoted here which is now being used by the FCC in their understanding of religious broadcasts would be more appropriate.

Senator BURDICK. The section you just read now is what you propose as amendments?

Reverend FORE. Yes, sir; the part in quotes.
Senator BURDICK. This is not a part of section 110(B) (2) ?

Reverend Fore. That is correct. The part refers only to worships or sermons, and we believe this to be too restrictive as to what constitutes religious broadcasts.

Senator BURDICK. Proceed.

Reverend FORE. That there be included in the "Definitions" in section 101 of the revision-Judiciary Committee report, page 2-a clause defining “education" and "educational” as including religous” as well as secular education. This is really a point for clarification.

Five. That there be included in proposed new section 110(1) the words "secular or religious" before the words "educational institution." This insertion would be for certainty and precaution, since at various places in the existing law and the revision the terms "educational" and "religious" or "secular" and "religious" appear in juxtaposition but as separate concepts. For example, see new section 110(4) (B); Judiciary Committee report, pages 75, 76, existing section 101.

Summary.

We are in basic sympathy with the purpose of the proposed copyright law; namely, to guarantee authors their rightful income. We do not propose or expect to exploit them or their creations for our own purposes.

We wish to be treated generally in the same way as educational and nonprofit users of materials.

We wish to broaden exemption of the use of materials of a religious nature, made at a place of worship or other religious assembly, even if not made “in the course of services."

Senator BURDICK. Thank you, Reverend Fore.
Reverend FORE. Thank you, sir.
Senator BURDICK. Dr. Ward, American Historical Association.

STATEMENT OF DR. PAUL L. WARD, EXECUTIVE SECRETARY,

AMERICAN HISTORICAL ASSOCIATION; ACCOMPANIED BY JOSEPH B. KENNEDY, JR., COUNSEL

Mr. WARD. Mr. Chairman, my name is Paul L. Ward, executive secretary of the American Historical Association. I am accompanied by Joseph B. Kennedy, Jr., counsel for the association.

In the interests of conserving the time of your committee, I have prepared a brief explanatory summary of our formal statement. With the permission of the chairman, we should like to have the formal statement inserted in the record.

Senator BURDICK. Without objection, it will be included. (The statement follows:)

STATEMENT OF THE AMERICAN HISTORICAL ASSOCIATION During the course of the Hearings before the House Subcommittee on H.R. 4347, the bill providing for a general revision of the copyright law, views were expressed on behalf of the American Historical Association and other historical groups and learned societies by Julian P. Boyd, Professor of History, Princeton University' and Mr. Frederick Burkhardt, President of the American Council of learned Societies. Professor Boyd's statement was also made a part of the record of the hearings on S. 1006 before this Subcommittee. H.R. 4347 as reported last October by the House Judiciary Committee * together with H.R. 2512 and House Report 83 of the 90th Congress are substantially identical. They, together with s. 597 which parallels H.R. 2512, have been under study by the Association's Committee on the Freedom of Historical Inquiry. These comments on certain aspects of S. 597, reflect the views of that Committee. They are submitted on behalf of the officers and 15,000 members of the American Historical Association.

The American Historical Association, a nonprofit membership corporation, was chartered by Congress in 1889.5 Under its statutory charter, the Association is charged with the duty of promoting historical research, the collection and preservation of historical manuscripts, and the dissemination of the fruits of historical knowledge. The Association's membership consists of scholars, educators, students, and those members of the public at large interested in the study of history. For the last half century, the Association's membership has included the outstanding scholars in America. The American Historical Review, the Association's most important publication, is the recognized organ of the history profession in America. The Association, through special committees, summer institutes and publications, promotes the advancement of learning and the sound teaching of history in the nation's colleges, universities, secondary and primary schools.

1 Hearings on H.R. 4347 Before Subcommittee No. 3 on Copyright Law Revision of the House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 8, pt. 2, at 1136–1144 (1965). [Hereinafter cited as House Hearings.]

: House Hearings at 1548-1561.

3 Hearings on S. 1006 Before the Subcommittee on Patents, Trademarks and Copy: rights of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., at 201-205 (1965). (Hereinafter cited as Senate Hearings. ]

* H.R. Rep. 2237, 89th Cong., 2d Sess. (1966).
5 36 U.S. C. $ 20.
* Annual Report of the American Historical Association, Vol. 1 (1965).

The Association and its members constitute a highly respresentative crosssection of the scholars, authors, teachers and the public at large whose concern with the copyright law relates principally to the availability, custody, and use of copyright materials for research, writing, publication, teaching and learning.

A. FAIR USE AND DURATION We endorse Section 107, the Fair Use provision, as providing a clarification of the doctrine which has long been needed by those engaged in scholarship in the humanities. More specifically, we support the legislative recognition of "use by reproduction in copies or phonorecords or by any other means ... for purposes such as criticism, teaching, scholarship or research" as illustrative but not limitative exceptions to the exclusive rights in copyrighted works.

To insure that this provision will receive the liberal interpretation intended, we suggest that this Subcommittee include as part of its report the following language in lieu of 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 underlies the granting of copyright protection. Rosemont Enterprises, Inc. v. Random House, Inc., 366 F. 2d 303, 307 (2d Cir. (1966)), cert, den., 35 L.W. 3234 (Jan. 9, 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.'

“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)

"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)."?

We also endorse Section 108 which permits the reproduction of unpublished collections of manuscripts, documents and other materials of value to scholarly research for purposes of preservation, security, or for deposit for research use in institutions other than those having original custody of such materials. To clarify the "for profit" clause in Section 108, we suggest that this Subcommittee include 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 should 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 in voked to defeat the statutory purpose of Section 108. 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.

We support the change from the present dual system of protecting works under common law copyright before publication (17 U.S.C. $ 2), and under the Act after publication (17 U.S.C. $ 10), to that of a single Federal statutory system for the protection of all works whether published or unpublished. Section 301

7 See p. 11, infra.

8 See Latman, Fair Use of Copyrighted Works, Study No. 14 prepared for Subcomm. on Patents. Trademarks and Copyrights, Sen. Comm, on the Judiciars, 86th Cong., 2d Sess., Comm. Print 1960) at 13.

of the bill eliminates the uncertainty of the theoretically perpetual common law copyright in unpublished writings, This will facilitate scholarly research and the dissemination of the results of historical studies. Together with the clarification of the permissible limits of copying for research use, this change constitutes the most important gain for scholarly research in the bill. Section 303, the provision setting a terminal date for the copyright in unpublished writings at twenty-five years after the effective date of the law will eliminate the great practical difficulties involved in attempting, long after the death of a writer, to ascertain the persons from whom permission to publish should be sought.

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 approximating 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. Sections 410 and 411, H.R. Rep. 83 at 125–126.

As presently written, however, Section 302(a) provides no inducement for early registration or indeed for registration at all of an unpublished work. Our proposal would provide such inducement by limiting the term of copyright in an unregistered work to life plus fifty years or seventy-five years from the date of creation, whichever expires first. This would insure greater uniformity with respect to the terminal dates of published and unpublished materials and permit scholars and other users free access to unpublished, unregistered materials at an earlier date.

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.

The importance of these amendments is underscored by a statement in the House Committee Report, page 34, which we submit puts an erroneous interpretation on the scope of the fair use doctrine. The House Report states that "the applicability of the fair use doctrine to unpublished works is narrowly limited since, although the work is unavailable, this is a result of a deliberate choice on the part of the copyright owner.” However appropriate this comment may be for the literary works that are normally registered and published, it is most inappropriate to the enormous body of existing written memorabilia whose authors are no longer alive. The application of the fair use doctrine in this area is sufficiently flexible to accommodate the right of privacy with the public interest in obtaining information. It is a matter of balancing the equities and in this area we would see no reason why the general criteria set forth in Section 107 should not apply to unpublished as well as published materials."

► See testimony, notes 1-3, supra.

10 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.

We wish to register one further and respectfully vigorous protest to the comments in the House Report on the applicability of the fair use doctrine to educational and scholarly activities. At page 35, in commenting upon the availability of the defense of fair use in cases involving the non-competitive use of copyright materials the report states :

"Where the unauthorized copying displaces what realistically might be a sale, no matter how minor the amount of money involved, the interests of the copsright owner need protection. Isolated instances of minor infringement, when multiplied many times, become in the aggregate a major inroad on copyright, that must be prevented." (Italic supplied.)

While this statement apparently reflects a strong contemporary and opportunistic trend toward more restrictive protection of the exclusive rights conferred by the copyright, its legislative endorsement indicates an hostility toward the fair use doctrine which the courts may find difficult to reconcile with the paramount public interest in the free dissemination of ideas and freedom of expression. In United States v. Paramount Pictures, Inc., 334 U.S. 131 at 158 (1948), the Supreme Court held that:

“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." 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-by-step progress depends on a certain amount of borrowing, quotation and comment." 13

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 by subverted. A preoccupation with protecting the publisher-manufacturer's investment may result in a serere 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 the commercial value of the copyrighted materials.

B. 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

11 Compare Rosemont Enterprises, Inc., v. Random House, Inc., 366 F. 2d 303, 308, note 5, 309 (2d Cir. 1966), cert, den., 35_L.W. 3234 (1967).

12 Rosemont Enterprises, Inc. v. Random House, Inc., 366 F. 2d at 307 ; Berlin T. E. C. Publications, Inc., 329 F. 20 541, 544 (20 Cir. 1964); Matheus Conveyor Co. v. Palmer-Bee Co., 135 F. 2d 73 (6th Cir. 1943); Latman, note 7, supra at ?: 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, 1584 (1963); Nimmer on Copyright, $ 145, p. 652 (1963). 13 Latman, note 12 supra.

14 Compare comments of the Chairman of this Subcommittee, Senate Hearings, pp. 171-175.

"is Compare Rosemont Enterprises, Inc., v. Random House, Inc., 366 F. 2d at 311 (right of first publication does not negate fair use).

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