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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:
ORGANIZATION OF AMERICAN HISTORIANS,
Abilene, Kans., July 30, 1965. Mr. THOMAS C. BRENNAN, Chief Counsel, Committee on the Judiciary, U.S. Senate, Washington, D.C.
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 représent 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 sible thro his pensable 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 précisely where experience, reason, and the law all agree in indicating that it should remain. It is general and flexible, permitting the reasonableness and the fairness of the use to be determined in the facts in each case through the only proper agency in which the decision should be vested, the judiciary. If the question were to be fully explained in all of its ramifications and were to be put to a vote of all of the members of the historical and archival professions, I have no doubt whatever that the result would be overwhelmingly in favor of retaining the language of Section 107 exactly as it stands at present.
There may be other questions concerning the terms of the bill that would find historians and archivists divided in opinion, but on one point they undoubtedly speak with a single voice. Section 301 pre-empts or abolishes any claim for protection of literary property rights in published or unpublished works as derived from common law or State statutes. By so doing it brings to an end the common law principle that literary property rights exist in perpetuity. No one can debate the wisdom of such a provision. It terminates the variant interpretations of the principle given by the courts of fifty States. It makes librarians, archivists, and custodians of manuscripts do less damage to their consciences when they provide scholars with copies of older manuscripts. If I may cite a personal example, it brings ethics and law into unison in my own work, for when the gathering and editing of The Papers of Thomas Jefferson was begun in 1943 through the initia: tive of the Congress and many thousands of documents were copied in over six hundred repositories stretching from Australia to Moscow, I was given a formal opinion by the Register of Copyrights that under common law the technical legal right to publish the papers of our chief spokesman for liberty was vested in the hundreds of descendants of Thomas Jefferson and in the multitude of descendants of the thousands of people who wrote letters to him. In the face of such a legal obstacle, it seemed the part of wisdom to assume that the courts would sanction such a technical invasion of literary property right under the doctrine of fair use. The alternative in the face of the impossible burden that this im. posed would have been to abandon the undertaking.
I cite the example not only in order to express the gratitude that all librarians, archivists, and scholars must feel in having this vague, uncertain, and indeed irrational situation brought to an end. I cite it also in order to underscore the grave danger that historians see in the fact that the bill, in its justifiable aim of protecting the right in unpublished manuscripts of authors whose creative works will endure and have lasting property value, makes no distinction between this very small class of manuscripts and the vast numbers of letters, diaries, maps, business records, and every other form of record upon which the historian depends and to which there adheres no commercial value whatever in their literary substance but only, where it exists at all, in their marketability as physical objects. These are the records upon which rests the cause of the historian and of all those who are engaged in the immense network of historical activity that is aimed not at private profit but at the public good. These records are scattered in many repositories and the owners of legal literary property rights in them, under the extended period of protection provided for in the bill, would at times be quite impossible for the historian to discover. He would, in fact, find that the attempt to discover them even in cases where this seemed feasible would totally defeat his purpose and would actually exclude from his use a vast area of legitimate historical sources that previously would have been quite accessible to him under the common law principle safeguarding literary property rights. For the personal experience that I have cited is the typical experience of every historical scholar. His sources on any subject exist not in a single collection but in a vast number of collections in many repositories. He must seek these out through years of patient, laborious, persistent, and often frustrating effort, bearing all the while immense costs in research, photocopying, and travel. This is true whatever the range and importance of the subject being investigated, even one of purely local significance. “A sensibly comprehensive history of the Yakima [Indian] War of (1855 in Oregon), which was no international conflict," Father William N. Bischoff has written, "leads the researcher from Boston to Berkeley, from Victoria to Quebec City, from the Pacific to the other side of the Atlantic-to London, Paris, Lyons, Marseille, Fribourg, and Rome.”
No professional scholar of repute will deny that this is true, nor will anyone deny that it is equally impossible for even the most conscientious investigator to meet all of these exacting requirements of his discipline. Time, money, and the weaknesses of the flesh are handicaps enough and if to these are added the burdens of tracing the owners of literary property rights having no real or substantial value, then the inevitable result is that the historian's task will become so oppressive in some of its most salient and significant areas that he will not be able to sustain it even when he has the purest dedication and the most indomitable spirit. Librarians, archivists, and custodians of manuscripts will feel obliged to comply with the law whereas under the common law doctrine they could make reasonable and useful assumptions that served the cause of learning and injured no one who did not have an appropriate redress. Further, we are just on the threshold of a new area in the copying of such materials as these so as to make our vast historical resources as available to the small college in a remote area as to the great universities and other repositories where so many of these resources are concentrated. This is the beginning of a war on the poverty of intellectual resources that may have incalculable effects for good upon the exploration of our history, upon the dissemination of a knowledge of it through better instruction and thus, by way of a broad and informed public, upon our national character. The Congress itself has given a most heartening support to this vision of enlargement and distribution of our historical resources by the enactment last year of legislation enabling the National Historical Publications Commission to encourage and assist governmental and private agencies in the collection, preservation, and publication through microfilm of other forms of publication of documents having national significance. This is the beginning of what historians have applauded as a program of the highest value to the nation. They hope it will be enlarged and continued with much greater support from government and from private philanthropy. For this program promotes the public interest and injures the literary property rights of no one.
But if the burdens of carrying on historical research are vastly augmented, if librarians, archivists, and custodians of manuscripts feel obliged by law to exclude vast areas of the historical record from investigation, and if the publication and distribution on a large scale of photocopies of collections of manuscripts having no real literary property value is drastically curtailed, then it is easy to predict what will happen. Textbooks will become anemic and outmoded, a condition of life to which they are naturally prone and need no assistance in that direction from legislation. The teaching of newly discovered facts and constantly refreshed interpretations of our history will suffer in similar manner. The presentation of the meaning of our vast outdoor textbook of history in the form of pageants, restorations, monuments, and historic sites will reflect the general deterioration resulting from a narrowed and limited foundation. And in the end, of course, the greatest damage of all will be that done to the public good.
The historians and the archivists of the United States do not presume to suggest the language by which the legitimate rights of the small minority of creative writers who leave unpublished manuscripts of enduring property values will be respected and discriminated from this vast area of the historical record which has no such gainful or material value.' To make such à distinction is the task of legal and legislative experts. But with all of the force that the immense band of dedicated writers, investigators, teachers, and promoters of the cause of history can command, we ask that this distinction be made. To make it would leave no right without a remedy. To fail to make it would do irreparable injury both to the cause of history and to the public interest.
I conclude, Mr. Chairman, by asking leave to present for the record the resolution and its justification as adopted by the Society of American Archivists and as approved by The Harry S. Truman Library Institute, by The National Trust for Historic Preservation, by the Organization of American Historians, by The Western History Association, and perhaps by other organizations of which I have not up to the present been informed :
The Council of the Society of American Archivists adoped the following resolution :
"1. That the new Copyright Law include a provision that will permit libraries, archives and other repositories to microfilm or otherwise make facsimiles of manuscripts for the purpose of depositing copies in other institutions.
"This would not adversely affect copyright interests in the manuscripts in any way. It would, in effect, merely extend the repository's ability to show its manuscripts to scholars and others, and, at the same time, would make it possible to house security copies at a distance from the originals.
"2. That the new law include a provision that will automatically limit the duration of literary property rights to the author's life time plus twenty-five years, or to fifty years from the date of origin of the writing, in cases where the death date of the author is unknown, unless those rights are protected by regis