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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 registering them with the Copyright Office, in which case the longer period of protection shall apply.
“This would make more readily available to scholars and others a vast amount of material that has little or no monetary value but which may be of vital concern for research in such fields as literature and history."
Some weeks after this resolution was adopted, Mr. Chairman, there was printed for the use of the House Committee on the Judiciary the Supplementary Report of the Register of Copyrights on the . . . 1965 Revision Bill. On pages 87–88 of this Report there appears a summary of arguments advanced in support of a copyright term based on the author's life plus fifty years. These arguments are said to reflect "the overwhelming (though not unanimous) sentiment” in favor of this period of duration. The office of the Register of Copyrights declares itself to be in general agreement with the views there summarized, the first of which includes the following statement: "The fact that less than 15 percent of copyrighted works are renewed is not illuminating, since the remaining 85 percent primarily represent ephemera which no one is interested in using in any case.” (Emphasis supplied.)
This is a singularly surprising and misleading statement with which I am obliged to disagree with the utmost possible emphasis. It reveals a gross misconception of the interests of the community of scholars and a complete disregard of the nature and function of historical research. There is no single item of the human record, ephemeral or otherwise, published or unpublished, important or trivial, that some scholar somewhere at some time may not need and indeed find indispensable as documentary evidence of the first importance for the subject on which he is engaged. Historians are interested not merely in the small number of copyrighted works deemed worthy of renewal. They are interested in and may have urgent need to explore the total body of the record. They accept the necessary limitations imposed upon the 15 percent because this is essential to achieve the great purpose of copyright legislation, but they urge with the greatest possible emphasis that the remaining 85 percent be made available to them at least to the extent of the modest compromise recommended by the Society of American Archivists and by other learned societies.
If no one is interested in this great body of the so-called ephemera save the archivists and the historians, what possible injury could result from granting the request they make for the sake of the public interest which they serve?
AMERICAN HOTEL & MOTEL ASSOCIATION,
New York, N.Y., August 18, 1965. Hon. JOHN L. MCCLELLAN, Chairman, Subcommittee on Patents, Trademarks and Copyrights, Committee
on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: The American Hotel & Motel Association wishes to express its views on S. 1006, a bill to revise the Copyright Law.
The Association's views, as contained in the enclosed statement, support the general thrust of S. 1006. You will note, however, we believe that Section 109, subsections (6) and (7), requires clarification for the stated reasons.
In addition, we ask the Subcommittee give due consideration to the Association's comments as they relate to Section 114 of S. 1006, the so-called "jukebox exemption."
A copy of the Association's statement has been submitted to the Subcommittee's Counsel, Mr. Thomas Brennan, for inclusion in the record of the hearings. Sincerely yours,
LEONARD K. DOWIAK.
STATEMENT OF THE AMERICAN HOTEL & MOTEL ASSOCIATION, WASHINGTON, D.C.
The American Hotel & Motel Association is a federation of State associations having a membership in excess of 6,000 hotels and motels located in all sections of the country. The Association maintains offices at 221 West 57th Street, New York City and at 777—14th Street, N.W., Washington, D.C. We appreciate having the opportunity to register, with this Subcommittee, A. H. & M. A.'s views on S. 1006, a bill to revise the Copyright Law.
Section 109 of S. 1006 states in part that, notwithstanding the language of the "exclusive rights in copyright works" section of the Bill (section 106), the following are not infringements of copyright:
“(6) the further transmitting of a transmission embodying a performance or exhibition of a work by relaying it to the private rooms of a hotel or other public establishment through a system of loudspeakers or other devices in such rooms, unless the person responsible for relaying the transmission or the operator of the establishment:
“(A) alters or adds to the content of the transmission; or
“(B) makes a separate charge to the occupants of the private rooms directly to see or hear the transmission ; “(7) communication of a transmission embodying a performance or exhibition of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless :
“(A) a direct charge is made to see or hear the transmissions; or
*(B) the transmission thus received is further transmitted to the public.” There is contained in the Report of the Register of Copyrights on the General Revision of the Copyright Law, dated July 1961, the recommendation that “the statute should exempt the mere reception of broadcasts from the public performance right, except where the receiver makes a charge to the public for such reception.” The American Hotel & Motel Association endorses this recommendation and agrees with the general thrust of Section 109 of S. 1006.
It is now established practice that the use of copyrighted music in network broadcasts is "cleared at the source,” i.e., the license to perform the music is obtained by the network broadcaster and no further license is required of local stations for their retransmission of the broadcast. As does the Register of Copyrights, "we believe this principle of clearance at the source should apply to the reception of broadcasts."
Since the decision in Buck v. Jewell-LaSalle Realty Company, 232 U.S. 191 (1931), performing licenses are required for all copyrighted musical works where there is a reception of broadcasts in the public rooms of a hotel. In addition, the courts have gone even further. In the case of SESAC v. Statler, 19 F. Supp. 1 (D.C.N.Y., 1937), the court upheld the right to collect royalties when the radio broadcast was being received in the private rooms of a hotel. Since the Buck decision, all of the performing rights societies have demanded the payment of royalties for radio and television reception of copyrighted music in public rooms but to our knowledge only one of the societies has made claim for such reception in private rooms on the basis of the Statler case. The validity of the decision in the Statler case is extremely dubious because we do not believe that the reception of a broadcast by an individual hotel guest in his own room is a “public performance" as that term is used in the Copyright Law.
Whatever the law may be as to these radio and television broadcasts, it is both impractical and inequitable as it applies to proprietors of hotels. The slightest intervention of copyrighted music, however incidental, in a news or dramatic program received by television or radio in a public room of a hotel makes the proprietor liable for infringement of a copyright unless he has a performing license. In addition, the confusion created by the Statler decision should be eliminated. This appears to be the general thrust of Section 109 of S. 1006 which appears to recognize that composers and publishers are amply compensated by "clearance at the source" for radio and television broadcasts of their music.
Section 109 does, however, leave one important consideration unanswered.
Subsection (6) begins with the phrase: “The further transmitting of a transmission." We interpret this phrase and the following remainder of the subsection as limiting the exemption to reception in the private rooms of a hotel or other public establishment where such reception is over a master system of some sort, e.g., a master transmitter with related multiple speaker outlets. We support the exemption to this point, but it is unclear as to whether the exemp tion is to further apply, as we feel should be the case, where there is reception of a transmission in private rooms of a hotel or other public establishment on the single receiving apparatus of a kind commonly used in private homes.
Subsection (7) of Section 109 does not answer the question in that it refers to "public" reception and seemingly does not extend its exemption to reception in "private" rooms.