this phrasing the first copyright statute and subsequent amendments have by and large taken into account the stipulations laid down by the Founding Fathers. The present basic copyright extends for 28 years, with a renewal for an additional 28 years. Several features of S. 597, however, seem to fly in the face of the Constitution, and in my judgment, is contrary to the public interest. Section 302 extends the period of copyright to a term consisting of the author's lifetime and 50 years after his death. I do not believe there is any valid reason for this change. It is estimated that under existing law 85 percent of all copyrighted material tends to enter the public domain after 28 years. Although about 15 percent of copyright holders renew their registrations for 28 additional years, it is difficult to justify the radical change envisioned by Section 302. This is contrary to the original "limited times" clause applicable to both copyrights and patents. Congress has restricted patents to a 17-year period of monopoly, and it is difficult to justify the marked disparity of duration between copyrights and patents contemplated in Section 302. Section 105 of the bill is objectionable in my judgment because it is in derogation of the Constitutional protection of the freedom of the press and of the public interest in general. Since 1895 Congress has stated a basic policy forbidding any copyright whatsoever in government publications (Printing Law 44 USC 58). While the phrasing of Section 105 appears to continue the present law's express prohibition of copyrighting of "any work of the United States Government," its definition of such works is so narrow as to open wide the door to extensive copyrighting of information amassed at enormous public expense. According to Section 105 a non-coprightable "work of the United States" is limited to "a work prepared by an officer or employee of the United States Government as part of his official duties." This phrasing does not afford adequate protection for the public. In my judgment the phraseology of Section 105 should be broadened to avoid legal quibbles as to the meaning of "part of his official duties" and to prohibit copyrighting of all research financed with tax funds. If expenditures for such research are justified, then I see no reason why the data obtained should not be placed in the public domain unless, of course, classification is necessary for national security reasons. Knowledge obtained at public expense should not be transformed into private property. Government contractors can hardly be considered private authors entitled to exclusive rights in the sense referred to in Section of the Constitution. Section 105 also leaves much to be desired in that its phrasing could be interpreted to mean that virtually all government workers and officials are free to place copyright restrictions on information to which they have privileged access. Defining "a work of the United States Government" as "a work prepared by an officer or employee of the United States Government as part of his official duties" is far from adequate. If this phraseology is narrowly interpreted, prohibition of copyrighting could be limited to the relatively few persons on the federal payroll whose job descriptions specify duties requiring the preparation of press releases and official propaganda. As the American Newspaper Publishers Association has pointed out in its objections to the phrasing of Section 105, "a great number of government officers and employees, including administrative assistants, research workers, lawyers, economists, and others on a professional level, devote substantial amounts of time and efforts to the preparation of ... material [that] might not be held to be within the scope of their official duties or employment." The 70-year-old policy of Congress, as enunciated in Section 8 of the present Copyright Act, would be frustrated by the phrasing of Section 105. I recommend for your consideration that your Committee retain the phrasing of Section 8 of the present Copyright Act ("No copyright shall subsist in any publication of the United States Government or any reprint in whole or in part thereof...") and provide the following protective definition: "A publication of the United States Government is a work that is a product of (a) activities financed in substantial part by funds received from the United States Government; or (b) official duties of an officer or employee of the United States Government. Any work of an officer or employee of the Government shall be presumed to be the result of his official functions unless specific waiver is obtained in advance." The provisions in Section 110 relating to educational television also give me cause for concern. Many of us are interested in the status of educational or nonprofit television, and have been impressed by the imaginative proposals to provide funds so that ETV may bring the benefits of television to the public unhampered by commercial considerations. Yet, how many of us are aware that this bill, if enacted, can seriously hamper ETV? I do not believe it is in the public interest to restrict transmissions to a radius of 100 miles; or that the reception be primarily in classrooms, or similar places; or that the transmission "be part of the systematic instruction of a non-profit school." It is extremely difficult for me to see how the imposition of such restrictions upon our educational system will “promote the progress of science and the useful arts," the only justification for our copyright system. Section 106 explicitly puts computer programs within the bill's broad definition of copyrightable material. This would apply to data used as input in information storage and restrieval systems. The development of computer technology calls for unrestricted availability of unlimited quantities of material for introduction into information systems. Restrictions such as S. 597 provides is likely to have a debilitating effect upon both the computer industry and those institutions which use computers, thus retarding scientific and technological progress. I would appreciate your making this letter a part of the hearing record. GAYLORD NELSON, Chairman, Monopoly Subcommittee. THE NEW YORK PATENT LAW ASSOCIATION, Honorable JOHN L. MCCLELLAN, Chairman, Senate Committee on the Judiciary, Washington, D.C. DEAR SENATOR MCCLELLAN: We understand that hearings are in progress by your Committee on the copyright revision bill S. 597. Rather than take the time of the Committee to hear testimony of a witness on behalf of this Association, we respectfuly ask leave to submit for the record the enclosed resolution approved by its Board of Governors. This resolution sets forth the principles favored by The New York Patent Law Association as a basis for the revision of the United States Copyright law, as embodied substantially in S. 597. Respectfully yours, Enclosure. RESOLUTION ALBERT C. JOHNSTON, President. Whereas legislation is pending in the Congress of the United States to revise completely the copyright law, title 17, United States Code: Be it Resolved, That the New York Patent Law Association approves the following principles as a basis for said revision: (1) A single Federal system of copyright; (2) A basic term consisting of the life of the author plus 50 years after his death, with an extension of subsisting copyrights. For works made for hire, the terms should be 75 years from publication; (3) A modified statutory license for the making and distribution of phonorecords of musical works; (4) A modified form of reversion after 35 years, but permitting the continued use of derivative works made during the 35 year period; (5) Protection of sound recording against unauthorized dubbing; (6) Recognition of the doctrine of fair use; (7) Elimination of the jukebox exemption; (8) A relaxation of formalities as to notice; (9) Divisibility of copyrights; (10) Provision for judicial review of a determination by the Copyright Office; (11) Protection of foreign works, both published and unpublished, only on the basis of treaty or proclamation; be it further Resolved, That The New York Patent Law Association opposes the following: (1) Government ownership of copyright; (2) Limitation of copyright by way of a manufacturing clause; (3) Exemption from copyright protection permitting free use of copyrighted material except under the doctrine of fair use; be it further Resolved, That a copy of this resolution be forwarded to the chairman of the Judiciary Committee of the Senate and to the chairman of the House Judiciary Committee of the U.S. Congress.. STATE UNIVERSITY OF NEW YORK, Albany, N.Y., May 8, 1967. The Honorable JOHN L. MCCLELLAN, DEAR MR. CHAIRMAN: The State University of New York has carefully reviewed the provisions of the copyright revision bill (H.R. 2512) as passed by the House of Representatives and sent to the Senate on April 12, 1967. Although we strongly support revision of the Copyright Law and find that H.R. 2512 embodies many needed improvements, we remain concerned because certain provisions of the revision bill will, if enacted, adversely affect the activities of educational institutions. We therefore respectifully offer the enclosed statement which discusses the need for modification of certain provisions in the revision bill. These provisions can be modified to permit the achievement of educational goals without unreasonably affecting the rights of copyright holders. The University remains willing to be of further asistance in any way that may be helpful to the Committee. Sincerely, SAMUEL B. GOULD, STATEMENT PREPARED FOR SUBMISSION TO THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE COMMITTEE ON THE JUDICIARY, U.S. SENATE, BY STATE UNIVERSITY OF NEW YORK Modernization of the Copyright Law in the light of technological advances is strongly supported by State University of New York. Integral parts of the University's educational programs are designed to encourage creativity in the arts, which is the basic reason for providing copyright protection. The University has expanded its courses in the arts; has supported many creative artists in residence at its local campuses; has brought to its campuses a wide variety of performing and literary artists; and has developed educational curricula specifically designed to train persons for careers in the performing arts. The University therefore is not only encouraging creativity, but is constantly enlarging the audience upon which creators ultimately depend for their financial support. This review of the copyright revision bill (H.R. 2512) has been undertaken upon the premise that educational institutions and organizations should not receive blanket exemptions, but that authors, composers and publishers should be paid reasonable fees for non-instructional uses of copyrighted material, when such use would substantially affect the market for the work. However, a revised Copyright Law must balance the contributions of education to the public welfare with the benefits derived by the public from copyright protection. Thus, the essential elements of the University's position are: 1. Limited exemptions should be provided for the instructional use of copyrighted material by educational institutions. 3. Reasonable fees should be charged for other uses of copyrighted materials by educational institutions. 3. The creation of "clearing houses" should be encouraged by the bill so that reasonable fees can be paid without unreasonable delay and expenditure of administrative time and cost. A review of the text of the Report of the House Committee on the Judiciary (Report No. 93, 90th Congress, 1st Session), the debate on the floor of the House which preceded passage of H.R. 2512, and the language of the bill which was passed by the House on April 11, 1967, indicates that the development of instruetion outside the classroom and the rapid expansion of techniques of individualized learning were not fully recognized. General statements supporting educational goals and comments that the interests involved will resolve their differences are not a substitute for consideration of educational needs in the language of the bill. Furthermore, an administrative body, or an advisory group, created to consider further statutory revision should not be a substitute for language in the bill designed to meet the needs of education. TRENDS IN INSTRUCTIONAL METHODS Educational institutions can no longer place their principal reliance on faceto-face instruction. The rapidly increasing demands for educational services and the limited monetary resources available for fulfilling educational goals have necessitated the development of new concepts and approaches. The major thrust of this development has been the expansion of the concept of learning beyond the framework of the student and teacher in face-to-face discussion or lecture settings. Thus, educational philosophy is being reframed to utilize new methods of instruction: An increasing percentage of instruction is being initiated by the student at his convenience, rather than during the limited scheduled hours of classroom lectures. Electronic means of storing and retrieving knowledge are speeding up the learning process and allowing for more concentration upon the significance of what has been learned. Industry and other organizations of society are relating an individual to his job and periodically re-educating him to the changing aspects of his position. The future trends, therefore, are clear: the process of education will not be satisfied with merely providing factual knowledge, but will provide a student with the tools to learn and relearn throughout his life. INSTRUCTIONAL RESOURCES The copyright revision bill (H.R. 2512) provides no exemption for the use of copyrighted material in the instructional resources necessary for programs of independent study. If the bill is enacted, clearances will have to be obtained for the use of copyrighted material in dial access retrieval systems (banks of audio or visual tapes connected by a telephone exchange and actuated by direct telephone dialing), computer assisted instruction (direct instruction and response evaluation by a computer) and audio-visual devices. The distinction made by the revision bill between classroom lectures and instructional television on the one hand, where limited exemptions are provided, and instruction by independent study tools on the other, where no exemption is provided, is clearly artificial. Under section 110 (2) (D), the limited exemption provided by section 110 (2) does not apply if the transmission depends on a choice by the recipient to activate the transmission. Because the essential value of these study tools is student control of the learning process, as illustrated in the examples which follow, this section must be modified if educational institutions are to utilize these resources. The State University College at Buffalo has established a dial access retrieval system. At any one of over three hundred stations throughout the campus, a student may actuate the system by dialing into a bank of prerecorded instructional programs. The State University of New York at Stony Brook, furthermore, operates a computer assisted instruction laboratory equipped with typewriter terminals connected to a computer 75 miles from the campus. In this laboratory, a student may progress through assignments presented to him by the computer. Actuated by the student, the computer continually analyzes the student's responses and provides him with appropriate instructional material. Not only will the lack of exemption for student-activated transmission limit the development of these instructional resources, but so will the concept that the "input" of copyrighted material into a computer may constitute an infringement. For example, in the process of developing a computer assisted instruction course. a professor may introduce many copyrighted works into a computer, and after evaluation, use only a selected number. Since it is only the "output" of copyrighted material which may affect the market for the work, the "input" of material should be exempt. If the material is used, however, and if its use does not fall within the limited exemptions or within the concept of fair use, reasonable fees should then be required. The rights of a copyright holder would in this way be protected while education would be left with the freedom it requires for the development of these resources for individualized learning. LIBRARIES Central to the need for maintaining quality in a university and enriching each student's opportunity for independent study is the development and deployment of library resources. It is impossible for every library to keep abreast of resource material in all fields of knowledge. A library can by cooperative efforts, however, make accessible by various means, electronic and other, the resources of cooperating libraries. Libraries of private and public colleges and specialized libraries of other nonprofit educational organizations will need to combine their resources. For example, two units of the State University are participating with libraries of several private universities and the New York City Public Library in a library network, sponsored by the New York State Department of Education. The copyright revision bill (H.R. 2512) will seriously inhibit this development of these cooperative ventures. The bill allows no greater exemption for the display of copyrighted work by electronic means than for its reproduction. Display without reproduction, however, is no more than use of the volume and would not unreasonably affect the market for the work.' In the more difficult areas of copying and information retrieval through print out, the use of copyrighted material without clearance should be limited by restrictive exemptions and the concept of fair use in order to protect the rights of authors and publishers. The Department of Health, Education and Welfare. in a memorandum to this Subcommittee in its 1965 hearings on the Copyright Law, proposed a section embodying these concepts. However, where it is necessary to obtain clearance, it is critical that the statute provide that the fees charged educational institutions and organizations be reasonable. Additionally, the University agrees with the position of the Ad Hoc Committee of Educational Institutions and Organizations and the American Library Asso ciation that the provision in the bill for the remission of statutory damages for innocent infringement by teachers in non-profit institutions be extended to cover librarians in such institutions. EDUCATIONAL TRANSMISSION Educational transmission provides another method of expanding the development of formal instruction outside the limitations of the classroom. By the use of this medium: Students who are unable to attend classes on a campus can receive an education. Students can be exposed to a greater number of distinguished scholars, Faculty members, who will no longer be required to repeat formal lectures, can devote more time to discussions with individual students. The House by amending sections 110 (2) and 112 (b) of H.R. 2512 has broadened the exemptions for educational transmission by removing artificial distance and copy limitations. It is urged, however, that the limited transmission exemption be clearly granted for all formal instruction, regardless of the place of reception. For example, a course for retraining nurses who have not recently practiced their profession is currently being co-produced by the Department of Nursing of Russell Sage College, a private educational institution, and WMHT, a nonprofit educational television station, in cooperation with the New York State Health and Education Departments, under a grant from and with the assistance of the State University of New York. Each of the twenty-five segments of the series includes one-half hour of television presentation supplementing one and one-half hours of classroom discussion and four hours of clinical experience. The limited transmission exemption in the copyright revision bill should apply even 1 See the Statement of the American Library Association before this Subcommittee on April 4, 1967. Hearings before the Subcommittee on Patents, Trademarks and Copyrights, United States Senate, 89th Congress, 1st Session, August 18, 19, and 20, 1965, page 51. |