OVERSTATED COPYRIGHT CLAIMS

Librarians are and have been concerned with copyright problems. During the course of their normal working day, they are often asked questions involving uses of copyright and materials, especially those librarians who are heads of libraries attached in institutions of learning and public libraries. Librarians who are heads of music departments which loan music for public performances are often queried whether an item is within the public domain. Many of the problems which we face are not discussed and determinable from this act under consideration.

There is little doubt that the novels of Scott, Dickens, and the other novelists of the 19th century, are now within the public domain, yet anyone who enters a bookstore and buys a copy of the reprint edition of these novels clearly sees a copyright notice inserted by the publisher. A new sheet of Beethoven's music that you could buy in any music store bears a copyright notice. But what this copyright covers has always been a confusing matter among librarians and, I am certain, among users. The only practical solution that a librarian can give is to advise the user to make certain that he uses the original version which is clearly within the public domain. However, if such an original copy is not available for very few libraries have first editions of novels and other writings and sheets of original music-then such a course of action is impossible.

Therefore it is seriously urged that the committee consider inserting a provision into the copyright act requiring that the copyright notice give a general idea of what materials are claimed to be covered by the registered copyright. Our committee does not think that this is a burdensome requirement as this should not take any more than a couple of sentences. We are not urging that the copyright be voided or that the copyright holder lose any rights that he may obtain because of the failure of the notice to be technically accurate. We are merely asking that a notice be inserted to give us, the user, an idea of what materials are claimed protected under the Copyright Act. Scholars would like to know to whom credit for an idea should be given. The registration form should include a more extensive description than should the printed notice.

It is the feeling of our committee that such a requirement is not a burdensome one. If we accept the idea that the copyright bill should protect the public as well as the copyright owner, it is inconceivable that one could object to such a requirement. You will note that the request is limited only to those works which are known to be within the public domain.

CONCLUSIONS

Librarians in a sense are salesmen of the published work, whether it be books, magazines, maps, photographed records, et cetera. All libraries have an interest in promoting literary works by use of displays, bringing libraries closer to the user, advising readers on materials to read, and my indexing and preserving our literary heritage. In fact, some studies show that such programs are successful in

increasing the use of books. This often results in the readers buying some books for their own use. We are informed by the register of copyrights that displays of books and other copyrighted materials are protected by section 109 (b) which permits libraries to display copyright materials in exhibit cases. For this, we are grateful.

The whole problem of copyright would be obliviated, if an invention which a publisher friend of mine suggested, was ever perfected. His idea was that there should be an ink that would automatically disappear as the reader read.

In conclusion, I would like to stress that our committee feels that a change should be made in the duration of the copyright under this bill, a provision should be included to accept the idea of single copying of items within a library, the bill should recognize the rights of libraries to single copy an entire work for preservation, and finally, that librarians be included in the exemption now afforded the teacher. The librarians of this country are engaged in preserving all forms of printed materials and recordings of every description for future generations of scholars, and these activities are supported by public funds. It is not our purpose to injure financially the writers of these works, but rather it is our business to see that the materials are used and used according to the laws of this country. We have nothing to gain, but plenty to lose if the copyright bill in any way limits or discourages the freedom of use of the printed thoughts of mankind. We have no other way to make our wants and our feelings known to Congress other than by our appearance here at this hearing. We know of no other way to make our points emphatic. We rest assured that our statements will be taken into consideration by this committee in its deliberations in finally framing a copyright bill, which weighs the needs of the publisher and writer and includes protection to those who seek to educate and encourage the use of materials.

Mr. SURRENCY. Mr. Chairman, I have attached three forms for proposed language to incorporate the material which we have suggested. Senator MCCLELLAN (presiding). These are suggested amendments. Mr. SURRENCY. Yes, sir.

Senator MCCLELLAN. Very well. They may be received and printed in the record.

(The documents referred to follow :)

PROPOSED AMENDMENT TO SECTION 108, S. 597, GRANTING TO LIBRARIES PERMISSION TO REPRODUCE BOOKS FOR PRESERVATION

Notwithstanding the provisions of section 106, it is not an infringement of copyright for a nonprofit institution, having custody of books of value to scholarly research, which have deteriorated and cannot be used in their present condition without further mutilation, to reproduce, without any purpose of direct or indirect commercial advantage, for purposes of preservation and security.

PROPOSED AMENDMENT TO SECTION 504 (2) GRANTING EXEMPTION TO LIBRARIES

504 (c) (3) Where a library in a nonprofit institution, infringed by reproducing a copyrighted work for use in the library or elsewhere for one of its users, or for its own purposes, believing that this reproduction was within fair use under section 107, or any other provision of this act, the court will remit all damages.

PROPOSED NEW SECTION TO S. 597 TO REQUIRE NOTICE OF NEW MATERIALS IN WORKS WITHIN THE PUBLIC DOMAIN FOR WHICH A COPYRIGHT NoTICE HAS BEEN INSERTED

401 (d) A notice affixed to a work which is within the public domain and which is not subject to be registered under this act either by the author or the owner of the copyright, shall contain a statement of the subject matter for which the benefits of this act are claimed.

Senator MCCLELLAN. Do you have anything further?

Mr. SURRENCY No, sir.

Senator MCCLELLAN. I regret that I was not present to hear all of your testimony but I shall read it.

Mr. SURRENCY. Thank you, sir.

Senator MCCLELLAN. We appreciate your appearance. We are glad to have witnesses come and testify and help us with this bill. It is not

easy.

Mr. SURRENCY. Well, sir, it is not.

Senator MCCLELLAN. We need all the help we can get.

Thank you very much.

Mr. SURRENCY. Thank you.

Senator MCCLELLAN. Congressman Gray?

STATEMENT OF HON. KENNETH J. GRAY, A MEMBER OF CONGRESS FROM THE 21ST CONGRESSIONAL DISTRICT OF THE STATE OF ILLINOIS

Mr. GRAY. Mr. Chairman, I want to apologize. This is the fourth committee meeting I have attended today and I am running a little bit late. In fact, I came off in such a hurry, I left my testimony in the office.

If you will bear with me

Senator MCCLELLAN. I have so many friends tell me I do better when I do not try.

We welcome you here, sir.

Mr. GRAY. Thank you. My name is Kenneth J. Gray, Representative in Congress from the 21st Congressional District of Illinois.

Mr. Chairman, I deeply appreciate the opportunity of appearing before you and this distinguished Subcommittee on Patents and Copyrights to make some comments briefly on your bill, S. 597, and a companion House bill, H.R. 2512.

Mr. Chairman, there is no question but what the copyright law is archaic and does need some revision. In general, I support a revision of the Copyright Act. I am going to, with your permission, confine my remarks today to one section of the bill that I do believe needs further clarification, and some revision. I am referring to section 110 that is found in the House bill on page 9 and continued on pages 10 and 11, that refers to exemptions. I want to refer today specifically to agricultural fairs.

I have a large rural district in Illinois, 22 counties, comprising over 8,000 square miles, and we have many county agricultural fairs held annually, and one very large State fair, the Du Quoin, Ill., State Fair. These people have expressed fears about the proposed bill.

79-397 0-67-pt. 2-20

I think I could put their fears in proper perspective by quoting one paragraph of a letter I received from Mr. Don M. Hayes, the president of the Du Quoin, Ill., State Fair:

As you know, all agricultural fairs are in a very precarious position and simply cannot absorb any more cost than we are all confronted with now. If we are going to exist, we must improve the quality and quantity of our offerings from year to year. And as you know, Congressman, this is becoming increasingly difficult due to the high cost of entertainment. I think you will agree that fairs are the backbone of America, and certainly should be preserved.

Now, Mr. Chairman, hurriedly, I have read section 110. It says, "Notwithstanding the provisions of section 106, the following are not infringements of copyright" and it goes on and gives those sections which would not have to comply with the Copyright Act. As near as we can get to it is subsection 4 (a) and (b). It says where there is no direct or indirect admission charge or the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, and charitable purposes, and not for private financial gain, except where the copyright owner has served notice of his objections to the performance under the following conditions, and then it lists the conditions upon which a copyright owner could file an objection, even to the performance at an agricultural fair, where admission is charged. We feel that this language is fuzzy, and we would hope that this committee in its wisdom, and certainly the House, when it works its will on this bill, would exclude agricultural fairs.

We used to have an agricultural fair in every county. They are becoming extinct because, with television now and modern modes of entertainment, it is difficult to get people to go out and mix together as they did back at least when I was a young boy at the agricultural fairs. We feel this would be one more additional nail in the coffin, so to speak, of the agricultural fairs if a copyright owner can come around and say, you are using a particular song in live entertainment, you have charged an admission to pay the cost of entertainment; therefore, we feel a copyright fee should be charged. We feel that this will work choas on the fairs.

One other point I would like to make is that in Illinois-and I am not sure how this works in other States-the general assembly subsidizes the county agricultural fairs. So really, what we are doing here would be taking money out of the pockets of the taxpayers and paying the copyright owners. We feel that this is unfair, that an agricultural fair is a medium of farmers bringing in their livestock and products and the ladies their baking goods and this sort of thing to display. A place where you can have clean sportsmanship through harness, running and sulky racing, and a good entertainment program. We feel it is in the best interest of our counties and of the general population for us to continue the small, county agricultural fairs.

Mr. Chairman in closing, I would strongly urge this committee to exclude in section 110 in precise language, agricultural fairs from the Copyright Act that is under consideration by your committee. I feel to do less will help to put the small county fair out of business. Many of them are going out now, and we will be adding others to the list if we place an additional entertainment fee upon them.

In this broad, comprehensive bill, the agricultural fairs probably present the most urgent need for revision or exemption.

I thank you very much for the opportunity of giving you the benefit of the views of my constituents, and certainly of myself.

Senator BURDIC (presiding). Congressman, will that include what we call livestock shows, too?

Mr. GRAY. Yes; that is why I term them agricultural fairs, which would encompass all types of exhibitions.

Senator MCCLELLAN. You would add it to the exemptions so there could be a complete exemption?

Mr. GRAY. That is right.

Senator MCCLELLAN. That would fall in the category of educational, would it not?

Mr. GRAY. The way it is now, in my opinion, it is fuzzy in that the copyright owner, if he feels that any one of these provisions outlined in the various subsections of section 110 is violated, he can file a claimfor example, if the agricultural fair charges an admission to see their night show, then the copyright owner automatically would have the right to come in and file. I feel that agricultural fairs should be excluded from the provisions of the act entirely, and therefore not subject to debate by the copyright owner as to whether or not one of the subsections had been violated.

There is no question but what these agricultural fairs are nonprofit, but, if you have a good entertainment program-for example, at Du Quoin last year, we provided entertainment for over 100,000 people. We had the Perry Como show; Red Skelton was there not too long ago. This is the kind of quality entertainment we are giving the people. But they do have to charge, naturally, an admission. This would give the copyright owner the opportunity of coming in and filing a claim for his particular fee for the use of that live entertainment. I feel that, since it is in the public interest that these fairs are not operated for profit but operated for the benefit of particularly the rural areas of our country, we should have a definite exclusion in all copyrights in the act.

Senator MCCLELLAN. How would you protect the copyright owner? He would just have no protection? He would just have to make that as a contribution, in a sense?

Mr. GRAY. No, my feeling is that, if, let us say, a large act were booked out of New York or any place else, and the persons belonged to a union, he would be protected on a national basis for his work of art. But, as the bill is now written, Mr. Chairman, I feel that some fairs would not know now whether or not they are going to be charged. Some copyright owner might not even come down to southern Illinois at one of our rural fairs, and know what the entertainer is going to sing. At Du Quoin, where they do have talent of national stature, they would probably have somebody there to monitor and see what type of live performances they have.

So I feel the only way to be fair to all of them is for an exclusion, and if there should be a particular right given the copyright owner, it should be done at the national level. In fact, when you read the bill, Mr. Chairman, there are no penalties, no collection procedures. So why give someone a straw to go around and beat these people in agricultural fairs over the head when there is really no followup by the Federal Government or anyone else to insure that these fees are going to be collected?