federal government from seeking copyright protection anywhere in the world, there is little, if anything, in the history or rationale of the copyright law to support such a broad contention.1 The prohibition of copyright in United States government publications had its origin in the Printing Law of 1885; and later, a similar prohibition was incorporated in the Copyright Act of 1909. When these laws were passed, the volume and variety of government publications were relatively limited, and the original reason for such a prohibition appears to have been to prevent private persons from securing copyright in their reprints of government publications. Since that time, however, the scope and quantity of government publications has greatly increased so that today the basic argument for such a prohibition is that the government material should be "freely available to the public and open to the widest possible reproduction and dissemination." 13 Wide reproduction of government publications within the United States is perhaps a benefit that should be retained by the United States taxpayer since he has underwritten their cost, but foreign nationals do not have such an interest, and they need not be awarded the same privilege. Assuming then that the United States government is free to seek foreign copyright protection, the question remaining is whether the benefits of the Universal Copyright Convention are available in view of the domestic restriction on copyright in government publications. National treatment Article II of the Universal Copyright Convention sets forth the basic principle of national treatment whereby the Published works of nationals of any Contracting State and works first published in that State . . . enjoy in each other Contracting State the same protection as that other State accords to works of its nationals first published in its own territory. Thus, there are two ways in which a work qualifies for protection under the Convention: First, where the author is a national of a member country; and second, where the work is first published in a member country." The clauses are alternative, and even non-contracting states, such as the Soviet Union, which does not provide reciprocal copyright protection, can qualify by first publishing in a contracting state." 15 The principle of national treatment means that each contracting state will grant to those works to which the Convention applies the same protection it accords to domestic works. In other words, if the Convention formalities are met, any work first published in one of the contracting countries (or published by a national of a contracting country in a non-contracting country) is automatically "assimilated” into the other contracting countries and given the same protection as any domestic work of the same class. Thus the Convention “does not seek to eliminate differences in copyright theory which exists throughout the world or to harmonize national laws, but instead recognizes existing differences." 16 The general rule of national treatment is subject to variation on only three points. These variations are contained in Article III on formalities, Article IV on duration, and Article V on translation rights. In the words of Arpad Bogsch. "On all other points . . . the convention contains no possible exceptions from national treatment and no express minimum requirements." " Formalities Article III, Paragraph 2, provides that a country may require any "formalities or conditions for the acquisition and enjoyment of copyright in respect of works first published in its territory or works of its nationals wherever published." 12 Goldman, The History of U.S.A. Copyright Law Revision from 1901 to 1954, Copyright Law Revision Study No. 1. 13 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, p. 130. 14 See Tannenbaum, "The Principle of National Treatment and Works Protected; Article I and II," in Universal Copyright Convention Analyzed, Kupferman and Foner ed. (1955), p. 13: 1953 Report of the American Bar Association Committee on International Copyright; in Universal Copyright Convention Analyzed (1955), pp. 546, 563. 15 See S. Exec. Rep. No. 5, 83rd Cong., 2nd Sess. (1956); 100 Cong. Rec. 8866–68, (Remarks of Senator Morse). 16 H.R. Rep. No. 2608, 83rd Cong., 2nd Sess. (1954). 17 Bogsch, Universal Copyright Convention (1959), p. 3. However, as to other works first published outside its own territory, only the standard minimum formalities set forth in Article III, Paragraph 1, must be complied with. In other words the symbol © the name of the copyright proprietor and the year of first publication must be placed so as to give "reasonable notice of the claim of copyright." This is an exception to the principle of national treatment because, strictly speaking, each country under that principle could insist that its own formalities be met. Duration Article IV, Paragraph 2, on the duration of protection, sets a certain express minimum to be accorded by each contracting state for various classes of works. In addition, Paragraph 4 of that Article provides that in the case of published works, "No Contracting State shall be obliged to grant protection to a work for a period longer than that fixed . . . by the law of the Contracting State in which the work has been first published." Thus, although the principle of national treatment applies, (see Article IV, Paragraph 1), it is qualified by the rule of minimum duration and by the rule of comparison with the law of the country of first publication. For example, if the work first published in contracting country A is protected for 25 years, contracting country B, whose law gives a similar domestic work protection for 50 years, would not be obligated to give more than the 25 years protection, even though the principle of national treatment would ordinarily require the 50-year term of protection. Likewise, it has been suggested that if the law of country A (country of first publication) did not protect the class of works to which the work in question belongs, country B would not be obligated to give protection to the work." 18 In summary then, in view of Section 8, Title 17 of the United States Code, it would appear that foreign copyright protection is available albeit publication must first be accomplished in a member nation. For example, publication first in Canada observing the Canadian and Universal Copyright Convention formalities would assure Convention-wide protection. TITLE 17 U.S.C., SECTION 8 Of course the obvious, and best, alternative to the legal obstacle course briefly outlined above is to amend Section 8 to provide statutory authority for the United States government to obtain United States copyright on certain select government publications which have commercial potential abroad. Perhaps this section could be amended as follows: (Proposed new language in italics) Section 8. Copyright not to subsist in works in public domain, or published prior to July 1, 1909, and not already copyrighted, or Government publications; publication by Government of copyrighted material.-No copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to July 1, 1909, and has not been already copyrighted in the United States, or in any publication of the United States Government, or in any reprint, in whole or in part, thereof, except that the Postmaster General may secure copyright on behalf of the United States in the whole or any part of the publications authorized by section 2506 of Title 39; and except that copyright may be secured in a work of the United States Government where a principal pur 18 Bogsch, Universal Copyright Convention (1959), pp. 49-95; Kaye; "Duration oof Copyright Protection and Publication under the Convention", Alticle IV and VI in Universal Copyright Convention Analyzed (1955), pp. 39-50. 19 Bogsch, supra note 18 at pp. 61-63. With respect to this principle of the "shorter term" which is set out in Article IV, Mr. Bogsch makes the following additional comment: [W]hen the class is not protected by copyright in the work's country of originthe country in which protection is sought is free to deny protection to the work even if, under this latter country's law, works of the class to which the particular work belongs enjoy protection. On the other hand, if the particular work is not protected in its country of origin (due, for example, to failure to comply with initial domestic formalities), this circumstance, in itself, will not excuse the country in which protection is sought from the duty to protect the work if the class to which it belongs according to the law of its country or origin is protected in its country of origin. The solution adopted by the conference is a compromise between two principles. According to the first, duration should be regulated only by the law of the country in which protection is sought ("pure" national treatment). According to the other, no work should be entitled to longer protection abroad than in its country of origin (principle of the Berne Convention). pose is to disseminate the work abroad, as well as in the United States, and the head of the government agency for which the work was prepared determines that the public interest will be served by obtaining copyright in the work so that it might be published and disseminated, and sold in countries outside the United States. The publication or republication by the government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgement or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor. ADVANTAGES TO BE DERIVED The advantages of establishing a policy providing for the copyright of United States government publications abroad are quite obvious. (1.) Such action will provide a source of revenue for the United States government and may have a favorable effect on our balance of payments. Perhaps foreign funds so earned could be used to support a variety of different programs in the host country. (2.) Greater dissemination of government works will be accomplished since the outlets for the published work will be as many as there are local corner bookstores in the various foreign countries. In other words, assuming an American publisher is awarded the contract it would utilize its established foreign retail outlets to disseminate the publication. Distribution would not be limited to the number of United States libraries or other official channels found in any foreign country. This policy would not, in any way, interfere with the free distribution of publications which may be disseminated abroad by some government agencies for educational or other purposes. It would not interfere with any governmental program for the exchange of various publications with foreign nations. (3.) It will provide a means of protecting the integrity of any American publication in a foreign country. Since the work cannot be copied without the permission of the owner, and if copied with permission it must be copied faithfully, the United States government can thus better control quotations and duplication of its publications abroad. For example, it will permit the government to require that a work such as the Report of the President's Commission on the Assassination of President John F. Kennedy be copied faithfully; or to prevent use of outdated versions of a work being disseminated, as where a medical publication may need revision because of new discoveries necessitating immediate correction. (4.) It will provide a greater incentive to government employees to prepare quality publications since the employee would be aware of the potential. Moreover, the fact that a work of a government employee-author is being "sold" abroad by the government may provide a great satisfaction to the employee in knowing that he is materially contributing to the operation of his government. The employee, as well as the government, receives additional satisfaction in knowing that the work is identified abroad as originating in the United States and that it is a creative product of a United States citizen. (5.) Another advantage is the favorable negotiating position it would give to our government in being able to exchange some types of technical data with those foreign countries which make it a practice of copyrighting their works. Under the policy proposed here we can "barter" our copyrighted material for theirs. FURTHER CONSIDERATIONS While we stand to benefit from copyright registration abroad, this would not necessarily mean a higher cost to the foreign user. Various publishing and author representatives have pointed out the fact that copyrighting a work does not necessarily result in the higher cost of the work to the purchaser. It is our understanding that the final cost of the work is decided by factors such as demand. marketability, initial layout costs, et cetera and that the royalty rate, if any, has little or no impact on the final price. In addition, it will be noted that government copyright abroad in an American publication does not prohibit the granting of free licenses if such is desired. The mere fact that there is protection for the government does not mean that there is any limitation on free dissemination in appropriate circumstances. In light of the experience of Great Britain, Canada and other nations that continue to copyright and exploit their publications (after adopting the practice and then having an opportunity to evaluate it), it would appear that some benefit is to be derived from this practice. Certainly, some proportion of the cost of government publications could be recovered. And in any event, one cannot disregard the question frequently asked: "Should we give away our government publications to foreign nationals in those cases where we would derive a greater benefit by selling them?" Moreover we can cite a parallel precedent in the related field of patents. It is an established policy of several government agencies to obtain foreign patent protection on government-owned inventions by filing patent applicatios abroad. Protecting government-owned copyrightable property abroad is of equal importance. RESTATEMENT Substantial revenue has accrued to the benefit of the United States through the sale of copyrighted books in which the United States government earned royalty, such as "Atomic Energy for Military Purposes," "M.I.T. Radiation Laboratory Series," et cetera. The revenue that could be accrued by the sale abroad of such non-technical books as the "Warren Report," or "Infant Care" may be significantly greater in view of the much larger market and the greater number of selections that would become available. The convenience of offering a variety of translations, which would certainly result especially through the efforts of the United States publishing industry, would further enhance the potential market. That export of printed matter from the United States is growing substantially is not debatable in 1963 it was $177 million, in 1964, $201 million, and last year it was $226 million dollars. Such statistics not only show the size of the current market for U.S. produced material, but may also indicate some rough measure of the potential revenue as a percentage of exports. One commercial publisher has estimated the size of potential revenues, to the government, in the next five years to approach $5 million per year. Since the opportunity of copyrighting abroad of United States government publications has never been implemented, the consequences of such policy cannot be fully documented either negatively or affirmatively. Obviously, we will have to experience the operation of the policy over a period of time before we can fully evaluate it. F.E.L. CHURCH PUBLICATIONS, LTD., Re Senate Bill No. S. 597, Title 17-Copyrights. Hon. JOHN L. MCCLELLAN, U.S. Senate, Washington, D.C. Chicago, Ill., May 12, 1967. DEAR SENATOR MCCLELLAN: It is our understanding that as a member of the Judiciary Committee of the United States Senate, the above captioned bill is presently before Committee for hearing and further consideration. It is in reference to this bill that this letter is presented. F.E.L. Church Publications, Ltd. is an Illinois Corporation, primarily dealing in the publication of materials for worship in the Roman Catholic Church. Such worship material is generally of original composition and suitable for copyright. The copyright protection afforded our firm is in essence all that permits us to continue in business. Section 101, Line 34 of the bill, which is the definition of "display" provides as follows: "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" Section 110, sub-paragraph 3, which deals with acts which are not infringements, provides as follows: "performance of a nondramatic literary or musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly" It is in the application of the above stated paragraphs that we feel a serious problem may arise as to our business, as well as the business of any publisher of religious materials. Although Section 101, Line 34, specifically speaks of the display of religious materials by way of mechanical projection, the phrase "or any other device or process" will allow a wide latitude of interpretation. Therefore, our original music compositions for Mass may be projected mechanically for an entire congregation to sing or may be photocopied for display purposes. If this be the interpretation of Section 101, Line 34, then Section 10, subparagraph 3 would effectively remove any projection presently afforded a publisher of religious material by the Copyright Law. Besides the above named sections, Section 110, sub-paragraph 4 may allow performance of our work without any return to our organization whatsoever. Again, we find these provisions also objectionable. We have no argument with the fact that religious institutions should be given special consideration, but if our original religious materials may be used indiscriminately, then obviously there would be no reason for our type of organization to continue in business; and if we, as well as others, leave the field, the original religious material, which is a "must", for the viability of the Church, would also disappear. Please understand that this applies not only to a norganization such as F.E.L. Church Publications, Ltd., which is a profit making company, but also to such a company as the Liturgical Press, a not-for-profit company owned and operated by the Order of St. Benedict. Without the dollar return on their material, they cannot survive. A representative of our firm as well as Archabbot Weakland, Chairman of the Roman Catholic Bishops Music Advisory Board of the United States, as well as other concerned clerics involved in publication, would be willing to testify before your Committee. We would appreciate your comments on the above. Very truly yours, JOHN L. KELLOGG, Mr. ROSEL H. HYDE, Chairman, Federal Communications Commission, DEAR MR. CHAIRMAN: In the course of the Subcommittee's current hearings on S. 597, for the general revision of the copyright laws, the representatives of educational television and broadcasting submitted certain amendments for the consideration of the Subcommittee. I am enclosing a copy of these amendments and would welcome receiving any comments which the Federal Communications Commission may care to present. With kind regards, I am Sincerely, JOHN L. MCCLELLAN, Chairman. FEDERAL COMMUNICATIONS COMMISSION, Hon. JOHN L. MCCLELLAN, Washington, D.C. DEAR SENATOR MCCLELLAN: The Commission has your letter of April 4, 1967. and appreciates the opportunity to comment upon the amendments to S. 597 proposed during the hearings by the representatives of educational broadcasting. We shall comment on these proposals and their relationship to H.R. 2512 as passed by the House. As you know, the Commission has long fostered the development of educational broadcasting, and we recognize that if the public is to obtain the maximum benefit from it, it should not be unreasonably barred by unduly complex and costly copyright clearance procedures. At the same time, we also recognize the important public interest in protecting the rights of copyright owners. We believe that this amendment to H.R. 2512 is a possible reconciliation of these two goals. |