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a use was not an infringement of copyright, the court may in its discretion, withhold any award of statutory damages under this subsection or may reduce the amount to a sum less than $100."

This recommendation is in conformity with the Register's 1961 Report where he advances the “proposal that the minimum not be mandatory against innocent infringers” (p. 106). Horace S. Manges, Esq., Counsel to the American Book Publishers Council, has expressed agreement with the proposal by the Register that was to innocent infringers, the court should be permitted to withhold all statutory damages or to award less than the minimum.” 30

We respectfully urge this Committee to adopt the proposed amendment submitted by the Ad Hoc Committee.

IV. DURATION OF COPYRIGHT TERM

Since our first copyright law in 1790, a renewable term has been the characteristic hallmark of American copyright law. The present law provides for an initial period of 28 years copyright, renewable for a similar period of 28 years after which the work goes into the public domain.

S. 1006 would work radical surgery on this tested and unique American policy by adopting a copyright period measured by the life of the author plus 50 years.

The Ad Hoc Committee urges retention of the present renewal provision of law: a 28-year initial term of copyright plus a 28-year renewal period.

As an alternative we favor the Register's proposal in his 1961 Report : initial 28-year term plus a 48-year renewal term, totaling 76 years (instead of the present 56).

Education accepts the rationale of the Register's 1961 Report, as follows:

"We do not believe that the maximum term of copyright—which we are proposing be 76 years from first public dissemination—is necessary or advisable for all works. Experience indicates that the present initial term of 28 years is sufficient for the great majority of copyrighted works : less than 15 percent of all registered copyrights are being renewed at the present time.

“The percentage of renewals varies from one class of works to another. During a recent year, for example, renewals ranged from 70 percent of the eligible motion pictures, down through 35 percent for music, 11 percent for periodicals, 7 percent for 'books' (which includes text material published in various forms) to less than 1 percent for technical drawings.”

Section 24 of the present law provides an initial 28-year period, which enables teachers and students to use the non-renewed 85% of all registered copyrights from the 29th year, because the copyright owner let the work go into the public domain. Under S. 1006 it could be a hundred years or more before this very same kind of material goes into the public domain and becomes usable by education. As the Register has told Congress, this is neither “necessary or advisable for all works."

The Department of Justice has opposed extension of the term beyond 56 years, as an unwarranted monopoly:

“The Department of Justice is opposed to lengthening the period of copyrights. Copyrights (and patents) are forms of monopolies and should not be extended for periods longer than those now provided by law. The present 56-year monopoly granted to authors is in our view fully adequate to reward authors for their contributions to society. Considering this matter from the viewpoint of the public, which is interested in the early passing of copyrighted material into the public domain, it would seem unwise to extend further the copyright monopoly."

These duration proposals of S. 1006 fly in the face of the action of the authors and publishers of 85% of all copyrighted works who do not seem to need or want a copyright duration more than an initial term of 28 years. To force more on them is not only a curious sort of paternalism but also detrimental to the best interests of the American people. Here again we accept and adopt the answer of the Register in his 1961 Report to the Congress :

“Advocates of a uniform single term contend that even though most works have little or no commercial value beyond 28 years, it would do no harm to let

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30 Manges, Horace S., “The Shape of Copyright Revision," Publishers Weekly, January 8, 1962, 42 at 45.

31 Copyright Law Revision, Report of the Register of Copyrights, House Com. Print, 87th Cong., 1st Sess., July 1961, p. 51. [Emphasis added.]

82 Letter of Acting Deputy Attorney General Katzenbach, May 2, 1962, House Rep. No. 1742, 87th Cong., 2d Sess., on H.J. Res. 627, p. 6.

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their protection continue for the maximum term. They argue that no one is interested in using a work after it has ceased to have commercial value, so the continuation of copyright would be of no practical consequence. "We believe that this argument is fallacious on two grounds:

“Many works that have ceased to have substantial commercial value in themselves are still useful to scholars, researchers, historians, and educators, as well as to authors of new works based on preexisting ones.

The argument seems to assume that the public derives no benefits from having works in the public domain. Copyright protection for a certain period is essential to foster the creation and dissemination of intellectual works and to give authors their due reward. But on the other hand, there are many circumstances in which copyright restrictions inhibit the discrimina

tion of works or their use in the creation of new works. “We believe that, when authors or other copyright owners feel that they have no need for a longer term, the termination of copyright restrictions after 28 years is in the public interest.” 83

The Congress enacted the present duration provision in 1909 and rejected suggestions for a life-plus-50 term. One of the specific comments in the House Committee's Report was that,

A very small percentage of the copyrights are ever renewed. of them ceases in most cases before the expiration of twenty-eight years. Furthermore, the present law (of a fixed 28-year initial term beginning with an objectively ascertainable date of publication) is simple and readily enables anyone to know when a copyrighted work is in the public domain. On the other hand, S. 1006 (based on an uncertain life term arising from a subjective date of creation) creates a highly complex system of variable and multiple durations. Conformity to foreign laws

One of the principal reasons advanced for S. 1006's radical departure from the 175-year old American copyright renewal practice is to have our duration provision correspond with that in foreign countries. There are many answers to this enforced conformity of our law to foreign law:

First, the U.S. Constitution itself set our copyright law apart from all foreign copyright laws; the Constitution permits copyright only "for limited times.” The Copyright Act passed immediately after the adoption of the Constitution regarded 14 years as a limited time for initial terms, and the patent law (which comes under the same Constitutional provision) still has only a 17 year term. Thus, the drive for conformity to foreign laws seems to ignore the fundamental limitation in our Constitution.

Second, the best interests of the American people must prevail over any mechancial concept of conformity to foreign law. As already demonstrated, such conformity is detrimental to the some 45,000,000 school children of America.

Third, adoption of conformity-to-foreign-law as a principal basis for copyright law revision sets a dangerous precedent. For example, most foreign countries have no copyright notice requirement except for special kinds of works. Also, major foreign countries have no system of copyright registration and deposit of copyright material. By adapting the conformity-with-foreign-law rationale, do we say that henceforth copyright notice and copyright registration and deposit will also be eliminated although notice has been part of our copyright law since 1802 and registration since 1790?

Fourth, the proposed term of life-plus-50 is unnecessary, according to the Register's 1961 Report, even if Congress wants to make our maximum term generally comparable to that given American works in other countries. All that is necessary, the Register said, is to increase the total term from the present 56 years to 76:

"A term of 76 years from the first public dissemination would be generally equivalent to the term most prevalent in foreign countries . . . Thus ... this term would achieve the main purposes of those who have advocated a term of 50 years from the death of the author.87

For these aforesaid reasons, the Ad Hoc Committee opposes Chapter 3 of S. 1006 in its present form and urges continuation of the provisions of 8 24 of the

85

88 Op. cit., supra, n. 31, at 52.
84 Op. cit., supra, n. 7, at p. 14.
Bs Goldman, Abe A., op. cit., supra, n. 4, at 1270.
38 Op. cit., supra, n. 31, at 73.

37 Register of Copyrights, Copyright Laro Revision, House Com. Print, 87th Cong., 1st Sess. (1961), p. 73.

present law (28 years plus 28 years) or, as an alternative, adoption of the Register's 1961 recommendation for an initial term of 28 years plus a 48 year renewal term. We favor a short first term and a longer second term instead of a single term.

CONCLUSION

For this Committee's convenience in having the Ad Hoc Committee's recommendations for amendments altogether, I conclude my remarks by submitting an Appendix which sets forth these proposed amendments.

APPENDIX

TEXT OF AMENDMENTS TO S. 1006 AS PROPOSED BY THE AD HOC COMMITTEE

1. EDUCATIONAL EXEMPTION FOR LIMITED COPYING

A. New Section 111: ug 111. Limitations on exclusive rights: Educational copies and recordings

"Notwithstanding the provisions of $ 106, it is not an infringement of copyright for anyone lawfully entitled under $ 109 to perform, exhibit, or to transmit a performance or exhibition of, a copyrighted work (save those originally consumable upon use, such as workbook exercises, problems, or answer sheets for standardized tests)

“(a) to make no more than one copy or phonorecord of the work in the course of such use, provided that no copy or phonorecord may be made of dramatic works (including any accompanying music), pantomimes and choreographic works, and motion pictures or filmstrips unless the performers and the audience are limited to students, faculty, or staff, and

(b) to make a reasonable number of copies or phonorecords of excerpts or quotations from the work, provided that such excerpts or quotations are not substantial in length in proportion to their source, "solely for purposes of such person's or organization's own teaching, lawful performances, exhibitions and transmissions, for course work study in connection therewith, for research or for archival purposes, provided that no such copyrighted material is sold or leased for profit and that no direct or indirect private gain is involved."

B. Resultant renumbering of present 88 111-114 of S. 1006 and of references to them on pages 1 (after line 7), 37 (line 27) and 38 (lines 32, and 33).

C. Amendment of g 109(4), page 8, lines 4 and 5 as follows:

“(4) performance or transmission of a nondramatic literary or musical work, [otherwise than in a transmission to the public,] without any prior . .

2. REVISION OF "FAIR USE"

Amendment of g 107, page 7 as follows:

“Notwithstanding the provisions of $ 106, the fair use of a copyrighted work to the extent reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright. Noncommercial educational use by a nonprofit educational institution or organization shall be presumed to be such "fair use" unless specifically rebutted."

8. WAIVER FOR STATUTORY DAMAGES FOR INNOCENT INFRINGEMENT BY TEACHERS

Addition of the following sentence to 8 504 (c) (2), on page 30 at the end of line 19:

"In a case where the infringer proves that the infringing use was for bona fide nonprofit educational purposes and made in reasonable belief that such a use was not an infringement of copyright, the court may, in its discretion, withhold any award of statutory damages under this subsection or may reduce the amount to a sum less than $100."

4. DURATION OF COPYRIGHT

The Ad Hoc Committee is not committed to any special language to accomplish its proposal for retaining the present 28-year term plus 28 (or 48) years renewal terms. The following language is taken from § 24 of the present law, and is submitted merely as one possible means of achieving this objective:

A. Amend g 302, page 17 to read as follows: "S 302. Duration of Copyright: Renewal and Extension

“(a) Copyright in a work created on or after January 1, 1967, subsists from its creation.

(b) The copyright secured by this title shall endure for twenty-eight years from the date of creation of the work whether the copyrighted work bears the author's true name or is published anonymously or pseudonymously, or is a joint work or a work made for hire: Provided, That in the case of any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than an assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work, the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in default of the registration of such application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication.

"(c) Subsisting copyrights originally registered in the Patent Office prior to July 1, 1940, under section 3 of the act of June 18, 1874, shall be subject to renewal on behalf of the proprietor upon application made to the Register of Copyrights within one year prior to the expiration of the original term of twenty-eight years."

B. § 303: delete second sentence, beginning on line 10 of page 18.

C. § 304: delete subsections (a), (b), and lines 18 through 25 (inclusive) of subsection (c), on page 19 and (1) substitute the following: “8 304. Duration of Copyright: Termination of transfers and licenses covering

renewal terms (a) In the case of any copyright subsisting in either its first or renewal term on January 1, 1967, other than a copyright in a work made for hire, the exclusive or non-exclusive grant of a transfer or license of the renewal copyright or of any right under it, executed before January 1, 1967, by any of the persons designated in subsection (b) of this section, otherwise than by will, is subject to termination under the following conditions :"

(2) Insert the following between lines 6 and 7 of page 21 :

“(b) The authority for termination of transfers and licenses provided for in subsection (a) of this section may be exercised by the following designated persons :

“(1) The author, if living, of any work (including a contribution by an individual author to a periodical or to a cyclopedic or other composite work) other than any periodical, cyclopedic or collective work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, or

“(2) The widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors or in the absence of a will, his next of kin.

(3) Make appropriate changes in Table of Contents of sections on page 16, between lines 19 and 20.

Mr. ROSENFIELD. In passing may I say I am a trustee of the Copyright Society of the United States of America, and have been a member of the Copyright Law Committees of the American Bar Association and the Bar Association of the District of Columbia. I do not at

this point represent these bodies, but speak for the ad hoc committee.

The present Attorney General wrote to the Congress that “copyrights are forms of monopolies." "Even at its best," wrote the assistant librarian of the Supreme Court, "copyright necessarily involves the right to restrict as well as to monopolize the diffusion of knowledge.” And in discussing the issues in copyright law revisions, a distinquished copyright law professor put it thus: “of course the main disputes center on the size and ingredients of the monopoly pie.”

Since 1909 Congress has steadfastly exempted nonprofit educational uses from the possibility of restriction on the diffusion of knowledge by such copyright monopoly. The ad hoc committee urges that, in the public interest, the same kind of congressional protection for education be written into any new copyright law in order to meet the needs of education described by Dr. Wigren this morning.

To accomplish these ends, the ad hoc committee proposes four amendments to S. 1006 as follows:

First, an educational exemption for limited copying for nonprofit educational purposes, through a new section 111, and an amendment to section 109(4).

Second, a clarification of the fair use provision.

Third, authorization of discretionary judicial waiver of statutory damages for innocent infringement by teachers.

Fourth, a restoration of the present term of copyright, 28 years initial plus 28 years renewal or 28 plus 48 as originally proposed by the register.

May I add that our last recommendation is in opposition to what the register this morning testified as “one of the foundation stones of the entire structure and content of the bill as it now stands."

Mr. Chairman, there are other provisions of the copyright law which are of interest to education, but my written statement is limited to these four and, with your permission, I shall discuss orally only the first two of these stated amendments. First, an educational exemption for limited copying by teachers.

For the last 56 years the copyright law has contained the "for profit" principle, authorizing the nonprofit public performance of nondramatic literary and musical copyrighted works. S. 1006 would abolish this doctrine.

The present copyright law is sensitive to the public interest in its broadest sense by distinguishing nonprofit from commercial uses of copyrighted materials. This bill turns its back on this fundamental concept and lumps nonprofit and commercial uses together. We respectfully suggest that the blind spot in S. 1006 is its failure to give proper effect to the vital distinction between nonprofit and commercial uses and users of copyrighted materials.”

In his 1961 report to this committee, the Register recognized the validity of this distinction, and recommended its retention, because, as he said, it strikes “a sound balance between the interests of copyright owners and those of the public."

The ad hoc committee agrees with the Register's 1961 recommendation on this point as far as it goes, and proposes a new section 111, which in the terms of education's needs, Mr. Chairman, represents the most urgent of the ad hoc committee's proposals. This new proposed section appears at the bottom of page 4 and at the top of page 5

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