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Senator MCCLELLAN. I wish to thank all the witnesses who have appeared, especially when I was presiding at these hearings, because they have been very cooperative and each one has undertaken to present his point of view with due logic and persuasion in a spirit and effort to be helpful to the committee.
Mr. BRENNAN. Mr. Chairman, Mr. Bresnahan could not return this morning, so with the permission of the subcommittee, I would like to insert his prepared statement in the record.
Senator MCCLELLAN. His statement will be inserted in the record at this point.
(The prepared statement of Mr. Bresnahan follows:)
STATEMENT OF JOHN A. BRESNAHAN ON BEHALF OF PRINTING INDUSTRIES OF AMERICA, INC., WASHINGTON, D.C., CONCERNING THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW
My name is John A. Bresnahan.
I am a member of the law firm of Bresnahau, Eberly & Wilkinson, with offices in the Tower Building, 1405 K. Street, N.W., Washington, D. C., and I am appearing as General Counsel to the Printing Industries of America, Inc., with offices at 20 Chevy Chase Circle, N. W., Washington, D. C.
Printing Industries of America, Inc., is a national trade association representing some 50 affiliated local and regional associations and some 6,000 firms engaged in the printing and allied industries in the United States. Its membership represents printing businesses of all sizes, from among the largest to among the smallest. The printing industry is recognized to be an industry of small businesses.
While Printing Industries of America, Inc., is interested in several phases of the proposed amendments to the Copyright Law, my remarks will be directed primarily to Section 301-"Pre-emption with respect to other laws."
Before discussing the effect that proposed Section 301 will have on the printing industry, it seems appropriate to inform the Committee of practices within the industry and to show the Committee samples of the items which will be under discussion.
It is a common practice in the printing industry for the printer to design and prepare preliminary copy for printed matter which a customer or a prospective customer may need, or which the printer believes he may need. Some of this material is prepared at the direct suggestion of a customer or prospective customer, some may be prepared on a purely speculative basis.
Basically, I suppose you can call this preliminary copy a graphic illustration of an idea. Whether it be an item as small as a business card or as large as a counter display, whether it be a menu for a ceremonial dinner, a corporation's report to its stockholders, or a counter display for a well known cosmetic, the procedures are essentially the same.
The printer conceives the idea, preliminary sketches are made for the illustrations, space for copy is indicated, and a rough dummy is made up in a manner which will give the customer, or prospective customer, a good picture of the finished product. This material is prepared by artists and others on the printer's staff, or, if it be a small printer, by outside artists. In either event it requires an investment in time and money by the printer.
It has been recognized in the printing industry for many years, and it is so reflected in the trade customs of the industry, that such preliminary sketches, designs, dummies, and copy are the property of the printer until the customer, or prospective customer, purchases the job from the printer, at which time all rights and all title to the design and copy pass to the customer.
Like any other business, the printing industry is faced with the problem of unprincipled competitors and unprincipled customers and prospective customers, and all too frequently an unprincipled customer or prospective customer will take the preliminary design and copy prepared by one printer and have the job printed by another printer for a price which will not include the cost of the initial preparatory work done by the originating printer. This is known in the trade as "pirating." In such cases the offended printer has been able to obtain relief and redress under the doctrine of common law copyright in the nearest available local court.
Here are some examples of the types of material that we are talking about. You will note the preliminary rough character of these exhibits and particularly note the fact that in each case there exists only one original. The making of copies would involve considerable inconvenience and cost to the originators of these dummies.
For the purpose of what I am next going to say, I would like to assume that sketches, designs, dummies and copy are covered by Sections 102 and 103 of the proposed legislation. This matter is dealt with in more detail in the attached appendix.
Section 301 provides that on and after January 1, 1967, all rights in the nature of copyright in works that come within the subject matter of copyright as speci fied by Sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed by the proposed copyright law and that, thereafter, no person is entitled to copyright, or any equivalent legal or equitable right in any such work under the common law or statutes of any State.
There are some very practical problems involved which affect both the printer and the Copyright Office.
Currently the printer prepares only one copy of the sketch or dummy. If he is covered by the Copyright Law he will be required to prepare another copy for the Copyright Office (or maybe two copies).
If the printer is required to register his copyright to obtain protection under the Copyright Law, under Section 401 he will be required to deposit one or two copies with the Copyright Office.
It is conceivable that the requirement to deposit such copies would soon require the Copyright Office to obtain more storage space to accommodate the vast quality of material that will be sent to them.
Such material, once the job has been sold or rejected, has no further value, literary, artistic, or otherwise.
Coming under the new copyright law and being deprived of relief in a local court, the printer-if he did register his piece by sending a copy to the Copyright Office, would have to undergo the cost of prosecuting the case of infringement in a federal court. Such courts might in many cases be far removed from the printer's place of business and both the costs and inconvenience to the printer would be much greater than if he enforced his common law rights in local court. Since the large majority of printing firms in the United States are relatively small they will find it difficult to assume this additional financial expense.
It is our recommendation that the problem be resolved by a further exception to Section 301 (a), to be included as item (4) to subsection (b), as follows:
"(4) preliminary sketches, drawings, designs, layouts, dummies and copy prepared in a preliminary form as part of a selling effort to induce the purchase of the finished product."
The attached Appendix relates to questions within the proposed legislation dealing with the coverage of sketches, drawings, designs, etc. by the proposed legislation.
ARE SKETCHES, DESIGNS AND DUMMIES AND COPY COVERED BY SECTIONS 101, 102 AND 103 OF THE PROPOSED COPYRIGHT LAW?
Since the general revision of the Copyright Law first came under discussion within the printing industry there has been substantial disagreement as to whether sketches, copy, dummies and preparatory work prepared by a printer for exhibit to a prospective customer as part of a sales effort, comes within the "works of authorship" entitled to copyright protection under Section 102.
In the language of the first paragraph of Section 102, with the exception of the last sentence, it would seem that the items under discussion are subject to copy. right protection. However, when you read the last sentence and the seven categories enumerated thereunder, it would seem that the items under discussion are not included in the copyright protection, although they may be included in Section 5 of 102, which reads: "(5) pictorial, graphic, and sculptural works"
Section 101 of the proposed amendment defines "Pictorial, graphic, and sculptural works" as including two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, plans, diagrams, and models.
Section 103 does not pertain to the items under discussion.
We have discussed this problem with the Register of Copyrights and members of his staff. We have exhibited samples of this material to them and urged the point that they are not covered by the proposed language. As near as I could judge from these discussions, the Copyright Office is of the opinion that they are covered.
If disagreement exists at this level, you can be sure that there will be disagreement if, and when, the amended copyright law is passed in its present language, and the problem reaches the litigation stage. This is an acute problem since it requires a determination of the jurisdictional question. If the action must proceed under the Copyright Law it is one for the Federal Courts, but if it can proceed under the common law doctrines then it is one for the State or local courts.
ADDITIONAL COMMENTS REGARDING SECTION 301
Section 301, subsection (a) in the last sentence, uses the expression "under the common law or statutes of any State", whereas in subsection (b) it uses the expression "under the law of any State." Is it intended that (b) include the common law AND the statutes of a State, or one or the other of them? This change of language opens the door for controversy and makes a decision as to the meaning difficult.
Further complications can be readily anticipated under Section 301(b) (3) when you attempt to determine whether "pirating" of an item under discussion is, or is not, violating a right equivalent to any of the exclusive rights specified in Section 106. This is so plain that I will not discuss it further.
Senator MCCLELLAN. The Chair would like to announce that it is now apparent that further testimony before the subcommittee will be needed and there are others who desire to be heard, but they have not been able to be accommodated up to now. There is doubt in the chairman's mind whether he can conclude these hearings during this session of Congress, and even whether we may be able to hold another day or two of hearings on this copyright matter before adjournment. So we shall have to recess the subcommittee subject to call, and it is undetermined whether we can proceed further at this session or whether the matter will have to go over for further hearings at the next session of Congress. We are just unable to determine it now. It will depend upon the urgency and volume of other work that we shall have to do in the closing days of this session.
The committee stands in recess subject to the call of the Chair. (Whereupon, at 11:55 a.m., the committee was adjourned, to reconvene subject to the call of the Chair.)
By order of the chairman letters and statements received by the subcommittee are printed as follows:
Mr. THOMAS C. BRENNAN,
ORGANIZATION OF AMERICAN HISTORIANS,
Chief Counsel, Committee on the Judiciary,
DEAR MR. BRENNAN: Thank you for letter informing me of the hearings on Wednesday and Thursday, August 4th and 5th on the general revision of the Copyright Law.
In conformance with our telephone conversation of July 21, I am enclosing herewith some copies of the statement Professor Julian P. Boyd made at the hearing of the House committee on June 17. I am requesting that this statement be included in the evidence and testimonies gathered by the Subcommittee on Patents, Trade-Marks, and Copyrights in relation to this bill.
Thank you for notifying me of the hearings and your assistance in this matter. Sincerely yours,
W. D. AESCHBACHER, Secretary-Treasurer.
STATEMENT OF JULIAN P. BOYD
(Professor of History, Princeton University. Editor of The Papers of Thomas Jefferson, and former President (1964) of The American Historical Association, before the House Committee on the Judiciary on June 17, 1965 concerning the proposed Revision of the United States Copyright Law (H.R. 4347 and S. 1006, 89th Congress), on behalf of The Society of American Archivists, The Organization of American Historians (formerly The Mississippi Valley Historical Association), The American Historical Association, The Southern Historical Association, The Western History Association, and The American Association for State and Local History.)
Mr. Chairman, for this opportunity to testify, I should like to express my own appreciation as well as that of the various professional societies that have authorized me to represent their interests, so far as these are affected by the proposed revision of the Copyright Law. These organizations are: The Society of American Archivists, The Organization of American Historians (formerly the Mississippi Valley Historical Association), The American Historical Association, The Southern Historical Association, The Western History Association, and The American Association for State and Local History.
These societies embody the archival and historical professions in the United States. They are the voice of thousands of writers, teachers, and friends of history in universities, in colleges, in government, in public and private schools, and in a variety of other institutions throughout the nation. They represent the archivists who serve government and the cause of history in town, county, state, and national repositories of archival records. They reflect the activities of approximately two thousand historical societies and agencies of history that have come into existence since the first of such institutions was created in this country in 1791. These societies are local, state, regional, and national in character. Through the dedicated labors of countless men and women of the past and present, these useful institutions have made it their concern to disseminate a knowledge of our past and to gather, preserve, publish, and make available for use the millions of written documents, both public and private, on which all knowledge of our history as a nation-and all that this knowledge means as a priceless legacy-must ultimately rest.
There is literally no form of concern for the American past and for its relevance to our society today that is not reflected in the activities of these institu
tions and the immense company of public-spirited men and women who support them, whether that activity belongs to the scholar who explores the documentary sources and advances the frontiers of knowledge, to the teacher who inculcates in school children an awareness of our heritage, to the member of a village historical society who helps preserve a historic house, erect a commemorative tablet, or celebrate a notable event, or to the archivist, librarian, or custodian of manuscripts who makes all of these useful endeavors possible through his indispensable role of presiding over the books, manuscripts, and records and of insuring their accessibility and use. All are engaged in an endeavor of infinite variety and complexity, and like most human enterprise its results may be sometimes of immense public benefit and sometimes perhaps of dubious value. But all of these promoters of the cause of history consciously or unconsciously, rest their justification on the same premise that they are promoting the public good by advancing and disseminating a knowledge of our past, that the attainment of this great object depends in the final analysis on the written record, and that in a democracy that record, in whatever form, must be accessible on a basis of equality so that each may examine and interpret it in what he regards as the true light, being held accountable for his errors by others who possess the same right.
If the record is not accessible, the books that advance the frontiers of knowledge cannot be written or published. Without these books, teachers and students will be shackled with interpretations of our past that will soon be obsolete if not dangerously misleading. The record is the foundation. Unless this record and the right of access to it are protected in the fullest amplitude possible, the whole society suffers. Whatever affects the foundation affects not merely this vast and varied network of historical enterprise. It affects the national interest in the deepest moral and spiritual sense. For, as someone has well said, the historian is in a sense custodian of the public truth, and one of the glories of democracy is that it dares to face the truth about its past. The proposed legislation, and indeed any legislation that seeks to encourage and protect intellectual creativity, inevitably touches the foundations of the historian's world and touches therefore the interest that all citizens have in safeguarding and constantly adding to our knowledge of the American past.
The historian, by the canons and discipline of his profession, is perhaps more acutely sensitive to the importance and the subtle implications of copyright legislation than most others. He is well aware of the long struggle to advance the concept through almost five centuries since the right of ownership in literary and artistic works was first protected at common law. He knows the philisophical expression of the idea in John Locke's Two Essays of Government concerning "that Property which men have in their persons as well as Goods." and he is aware of its broad extension by implication in our own Declaration of Independence in its proclamation of the right to life, liberty, and the pursuit of happiness. He is himself an author of books and the interest in their publication and distribution that he shares with the novelist or composer is no less real because his works rarely have a wide public distribution and because, by his own disciplinary canons, he believes that history to have value must be interpreted and reinterpreted freshly with each succeeding generation. He believes, that is, in promoting the obsolescence of his own work. The historian and the archivist, therefore, join with artists and publishers in supporting the aims of copyright legislation and in welcoming the general terms of the proposed revision.
There are, however, some particular provisions of the present bill that cause grave concern throughout the archival and historical professions. In the far-flung community of historical scholars it is not to be expected that all would agree on the extent or magnitude of the dangers that seem apparent in its various provisions. It may be true, for example, that some teachers of history support the proposed substitute for Section 107 which would greatly extend the use of copyrighted materials for purposes of instruction or promotion. Their motive in doing so is beyond question. They wish to improve the quality of teaching. They not only do not ground their proposal on any consideration of economic self-interest but in fact propose to limit such use strictly to those aspects of teaching and research in which commercial advantage and private gain are not involved. But it is equally beyond question that the vast majority of historians welcome the proposed statutory recognition of the doctrine of fair use as developed by the courts. As set forth in the language of the bill, the standard by which such use is to be determined is neither raised nor lowered. It remains precisely where experience, reason, and the law all agree in indicating that it should remain. It