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ten, Section 109 (7) is not broad enough to include coin-operated machines but is limited to a "single receiving apparatus of a kind commonly used in private homes." We do not believe that coin-operated machines are commonly used in private homes. For that reason, if Congress wishes to repeal the "jukebox exemption," it should limit its action to "jukeboxes." This can be accomplished by adding a third subdivision to Section 114, reading as follows:
"(3) and the machine is a device for the playing of recorded music originating in the establishments."
Hon. JOHN L. MCCLELLAN,
AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION,
New York, N.Y., August 3, 1965.
Chairman, Senate Judiciary Subcommittee on Patents, Trademarks and Copyrights, Senate Office Building, Washington, D.C.
DEAR MR. CHAIRMAN: The American Newspaper Publishers Association submits its views in this letter for the record of hearings to be held by your Subcommittee beginning August 4 on Bill S. 1006 providing for general revision of the Copyright Law of 1909.
The ANPA is a trade association of daily newspapers with more than 950 members having more than 90% of the total U.S. daily newspaper circulation. Inasmuch as our members are both users and creators of copyrighted materials, their interests would be affected by certain provisions of S. 1006. That Bill and its companion measure now in the House Judiciary Committee reflect changes made in response to comments and study of Bills as introduced in the second session of the 88th Congress. Our views deal with the provisions of the Bill relative to copyright in works of the United States Government and damages recoverable in the case of the unauthorized reproduction of copyrighted photographs by a newspaper.
Section 105 on this Bill continues the present law's general prohibition against securing copyright in any "work of the United States Government" which is defined in Section 105 as a "work prepared by an officer or employee of the United States Government within the scope of his official duties or employment."
While we are gratified to note that this Bill does not contain the provision set forth in a prior version which would have permitted copyright to be secured in a published work of the United States Government in appropriate cases as determined by heads of United States Government agencies, the present Bill still leaves much to be desired because the phrase "within the scope of his official duties or employment" may not afford adequate protection for the general public. If that phraseology is narrowly interpreted, it could be limited to the relatively small number of persons employed by the Government whose job descriptions specify duties involving the preparation of such Government works. The fact of the matter is that a great number of Government officers and employees, including administrative assistants, research workers, lawyers, economists and others on a professional level, devote substantial amounts of time and effort to the preparation of copyrightable material although such activities might not be held to be within the scope of their official duties or employment. Another concern is that the present Bill establishes no standards whatever regarding the ownership of copyrighted material created in the course of performing contracts between private individuals or corporations and the United States Government. This Association takes the position that no person should be permitted to copyright any material where a substantial part thereof is created by Govern ment employees, or with Government funds. It is of vital importance that the laws of the United States insure that all such material is made available to the general public, without copyright restrictions, so as to encourage the widest possible dissemination of Government information, documents or other writings.
NEWSPAPER REPRODUCTION OF COPYRIGHTED PHOTOGRAPHS
The damage provisions of Bill S. 1006 are also of special concern to newspapers. Section 101 of the present law provides that in the case of a newspaper reproduction of a copyrighted photograph, such damages shall not exceed the sum of $200 nor be less than the sum of $50, The Bill deletes that special damage limitation provision of the present law, and adds instead a so-called "innocent infringer" provision in Section 504 (c) (2) which provides:
*In a case where the infringer sustains the burden of proving that he was not aware and had no reason to believe that his acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory dam. ages to a sum of not less than $100."
Bill S. 1006 would also change the present law in other respects. Under present law the court, in cases not involving special limitations, has the discretion to award statutory damages in lieu of actual damages and profits in an amount not less than $250 nor more than $5,000. Section 504 (c) (1) of the Bill provides that the copyright owner may elect to receive statutory rather than actual damages and profits, and the limitation upon such damages has been increased to $10,000.
This Association is strongly opposed to the deletion of the special limitation applicable to newspaper reproduction of copyrighted photographs and asks that this provision be reinserted in Section 504 by striking the period in line 8, inserting a semi-colon and adding the following languege: "provided. however, that in a case of a newspaper reproduction of a copyrighted photograph, such damages shall not exceed the sum of $200 nor be less than the sum of $50."
The ANPA is convinced that the special considerations which promoted the enactment of this provision are still present today and that this provision should be retained in the law. In our opinion, the proposed "innocent infringer" provision is wholly inadequate and does not protect the legitimate interests of news. papers in cases of innocent infringement.
The Report of the House Committee on Patents on the 1909 Copyright Act (H. Rept. 2222, 60th Congress, 2nd Sess., 1909), at p. 15, stated that the special limitation of damages relating to the newspaper reproduction of copyrighted photographs was made "because such reproduction has little permanent value or usefulness and a reproduction in this form does not damage the copyright proprietor to as great an extent as would the reproduction and sale of copies of the photograph in a different form."
This is equally true today. In fact, where proper credit is given, the usual case involving the newspaper reproduction of copyrighted photograph would confer a benefit rather than inflict a legal injury upon the owner because of the promotion value of such a publication. In any event, it is extremely doubtful that the publication of any single photograph would result in profit to the newspaper which could be recovered by the copyright proprietor. Accordingly, the proprietor would be certain to elect statutory damages under the provisions of the Bill. At this point, the court before whom any such action is pending would be authorized to award not less than $100 nor more than $10,000 for the single photograph. No standards are provided for guidance of the court except its discretion in light of the circumstances of the case. In our opinion, the permissible damage liimtations are fictitious when applied to photographs. The situation thus created presents a legalized means of forcing a newspaper publisher who inadvertently uses a copyrighted photograph to pay up or face litigation with no reasonable means of predicting the amount which will be awarded by the court. This was the very thing the existing limitation was designed to prevent.
It is important to understand the circumstances under which photographs are used and handled by newspapers. While care is used in the handling of photographs submitted for publication, the pressures of time inherent in the newspaper business make it impossible for newspapers to make appropriate copyright searches before publishing each photograph submitted for publication. In view of the risk of such substantial financial penalties as could be imposed under provisions of the Bill, the deletion of the special damage limitation regarding photographs and the substitution of the innocent infringer provision could have farreaching consequences for daily newspapers. For the reasons we have stated, we believe it would be in the public interest to retain this special damage limitation in any revision of the Copyright Law of 1909.
Section 403 (a) of the draft Bill provides in effect that, with one exception, a single copyright notice applicable to a collective work such as a newspaper will satisfy the copyright notice requirements of Sections 401 and 402 with respect to any separate contribution to the collective work which does not bear a separate copyright notice, regardless of the ownership of the copyright in the contribution. This provision would serve the laudable purpose of preventing the loss of copyright protection for any such contribution. However, we question the wisdom of the parenthetical language contained in Section 402(a) stating that this rule would not include "advertisements inserted on behalf of persons other than the
owner of copyright in the collective work." We think that the parenthetical language in Section 403 (a) should be deleted from the Bill because it would mean that newspapers cannot protect their copyright in advertisements unless they use a separate copyright notice on each such advertisement. While newspapers do publish ads which are wholly created by the advertiser and copyrighted in the name of the advertiser, they also publish many other ads in which newspapers hold a copyright interest either under the terms of a written document or because the ad was created or composed solely by the newspaper. There is presently pending litigation in which a newspaper publisher asserts such a copyright interest against a defendant charged with the infringement of the copyright in the advertisement by photographically copying the ad for use in another publication. We believe it would be wiser to permit this question to be resolved in the courts rather than insert in the Bill what amounts to a statutory rule that newspapers do not have a copyright interest in the newspaper advertisements. In light of these considerations we urge that the parenthetical language in Section 403 (a) be deleted.
We respectfully urge that in considering the merits of Bill S. 1006 the Subcommittee consider the foregoing matters which are of vital concern to American newspapers.
Very truly yours,
STANFORD SMITH, General Manager.
Hon. JOHN MCCLELLAN,
NEW SMYRNA BEACH, FLA., July 21, 1965.
Senate Subcommittee on Patents, Trademarks and Copyrights,
DEAR SENATOR MCCLELLAN: 1. I am a member of the Committee on Patents, Trademarks and Copyrights of the American Bar Association, and having more than a casual interest in said Revision, I have already given Congressman A Syd Herlong, Jr., representing my Congressional District in Florida, some of my observations on the Proposed Revision, and have fully documented my reasons therefor.
2. According to the Congressional Record of July 12, 1965, at page 15856 thereof, there will be meetings of the Standing Sub-Committee on Patents, Trademarks and Copyrights, on Wednesday, August 4th, and Thursday, August 5th, 1965, at 10 a.m., in Room 3302 of the New Senate Office Building, at which time and place anyone who wishes to testify or submit a statement for the record for the General Revision of the Copyright Laws, should communicate immediately with the office of the Sub-Committee, Room, 349-A of the Senate Office Building, Washington, D.C., Telephone 225–2268.
3. I have planned to attend the Annual Meeting of the American Bar Association in Miami, Florida, which, as you probably know, will open there on August 6th, and run until August 13th, 1965.
4. I shall endeavor to appear before the Committee on Copyrights of the American Bar Association in Miami to relate my observations as to how your committee reacted to my testimony, and to my documentation in support of my testimony, if I am given the opportunity to appear before your Committee.
5. Should I find it impossible to appear before your Committee, I will file with it a typed statement of perhaps three pages, together with a list of my documentations, which consist of citations from pages of recent issues of the Congressional Record bearing on the new proposed Copyright Law together with photostats of correspondence from some of members of the American Bar Association appearing in recent issues of the Journal of the American Bar Association, pertinent to your current hearings on a new Copyright-several of said letters are so interesting as to be unforgettable.
6. I hope to arrive in Washington the week preceding the above hearings, andon my arrival will phone your office relative to this letter.
JOHN F. KAVANAGH. (NOTE.-Mr. Kavanagh submitted the following for inclusion in the appendix.)
I have neither the time nor the assistance necessary to do that job so I will confine my criticisms on this point to the following pages of the proposed Copy
right Bill, H.R. 4347 supra, to wit: page 21 Chapter 4, Section 401, Line 31 (2)— Amend the language reading "the year of first publication of the work", by adding the words "and date of month" to precede the words "of first publications of the work."
In support of my suggestion I refer to our correspondence, your letter to me of February 4th, 1965, concerning the date of copyright of the book entitled "WHO KILLED KENNEDY?".
My suggestion is further fortified by referring to page 26, Section 408 of H.R. 4347-"Application for registration" where at line 33, Subsection (8), and I now quote "(8) if the work has been published the date and nature of the first publication". (Underscoring supplied).
The same suggestion is also fortified by reference to P. 27 of H.R. 4347, sec. 409: Registration of Claim and Issuance of Certificate, Line 21(d), and I now quote from that section:
"The effective date of a copyright registration is the day on which [italic mine.]
You will notice, of course, the Section does not say "the year"-it specifically says "day", which is the main reason I wrote you under date of January 27th, 1965, with reference to the copyright date of "Who Killed Kennedy?".
You will also recall the other reason for my original letter to you is that a fee of $3. I thought was too high for merely looking in a book the Copyright Section was by law required to keep inasmuch as I supplied them with the Library Card number and year of filing which was printed on the flyleaf of "Who Killed Kennedy?".
In the proposed bill H.R. 4347 that fee is hiked about 67%, as will be noted by reference to Section 708 of page 37, Lines 39 to 41, inclusive, of H.R. 4347 which mentions that the cost for the making of a search has been increased to $5. an hour or fraction of an hour;
It could be argued from the rate of payment that under that section a "search" which would consist of merely looking in a book for the date (as in "Who Killed Kennedy?") with information similar to that which I supplied to the Copyright Office, and which could be done in less than two minutes, would be $5.00 for two minutes or less, and as there are 2,400 minutes in a 40-hr week, work like that entailed in my case would cost the inquiries the ridiculous sum of $6,000.00 a week, for 1,200 jobs of 2 minutes each like that sought by me.
I have been supplied with some references to comparatively recent insertions by Members of Congress in the Congressional Record Zerox copies of which I enclose for your information, the most hair-raising insertion being that by Congressman Mac Mathias of Maryland in which is printed correspondence between Mr. Abram Chayes who was at the time Legal Advisor to the State Department, and who was requested by Dean Rusk to explain a glaring violation of the present Copyright Law. This violation was called to the attention of the State Department by
NOTE. The foregoing is a carbon copy of page 3 of a letter sent by John F. Kavanagh member of the Committee on Copyright of the American Bar Association to Congressman Edward J. Gurney under date of February 19, 1965, by registered mail.
Hon. JOHN L. MCCLELLAN,
ROYALL, KOEGEL & ROGERS,
Chairman, Subcommittee on Patents, Trademarks, and Copyrights, U.S. Senate, Washington, D.C.
DEAR JOHN: I am responding to your generous invitation to comment on testimony offered by educational organizations before your Subcommittee in respect to the copyright legislation.
The enclosed analysis is based on the educators' testimony before your Subcommittee and the House Subcommittee. It puts the case for publishers, who are my clients, and incidentally for authors as well. I hope you will find it fair minded, factual, and detailed. In summary, it makes the following case:
1. To make copies of a book is to reduce the market for that book whether the copies are sold or not. However, the educators' proposed amendment would permit them to actually sell copies in competition with private publishers who produced the original so long as no profit derived from the sale.
2. The only market for textbooks lies in educational institutions. This market would be destroyed if these institutions could make copies freely, whether or not anyone makes a profit from such copying. With the erosion of its market, the private textbook industry would be crippled. In its place, there would have to be a nationalized textbook industry.
3. Every right that teachers now have to make copies under the present law is preserved for them under S. 1006.
4. There is no clear unanimity among educators as to what they want to copy, in what quantities, or even as to whether they should pay for this copying.
5. The amendment proposed by the educators asks for far wider copying privileges than they have expressed a need for. For example, the educators don't need or want to copy instructional materials, but their amendment would permit them to do so.
6. It would be destructive to write into the bill a flat exemption for the use of excerpts because this is virtually the only use that schools make of copyrighted materials.
7. The teachers seek certainty as to what they may legally copy, but the language of their proposed amendment simply adds new uncertainties. It is unlikely that any language can be devised to pin down "fair use" in the statute without serious damage to authors, composers, and publishers. The danger to these persons is greater than any possible gains to educational institutions.
8. The doctrine of fair use amply protects teachers in the legitimate use of copyrighted material. The Register of Copyrights is authority for the statement that the statutory recognition of fair use meets the reasonable needs of education for the copying of short excerpts. By the way, the essence of "fair use" is that no use is fair which prejudices the sale or diminishes the profits of the original work. This doctrine has been around and working successfully for 125 years.
9. It is now cheaper to copy a book than to buy the book itself. The growing technology in photocopying and computer uses of information will destroy the market for creative works if educational institutions are granted an exemption from copyright.
It seems to me that the publishers and authors make a strong case, and I hope you will see it that way. No one can be indifferent to the real needs of education. But neither can we be indifferent to the needs of authors and a private publishing industry which, directly or indirectly, furnishes employment to thousands of workers. Teachers and textbook publishers live together in a kind of symbiosis. Destroy or frustrate one and you destroy or frustrate the other.
I am convinced that adoption of the educators' amendment would be destructive to authors and publishers. And the real point is that educators don't need that amendment in order to do their jobs.
Very sincerely yours,
KENNETH B. KEATING.
THE CASE AGAINST THE PROPOSED SECTION 111 AMENDMENT TO S. 1006 The following statement is a response to the testimony of representatives of an ad hoc committee of educational organizations on copyright revision.
I. The making of copies
To make copies of a work is to reduce the market for work whether the copies are sold or not.
The ad hoc committee of educational organizations has proposed an amendment to S. 1006 to give schools the right to make multiple copies of parts of a book. In good faith, they have inserted the proviso: " *** provided that no such copyrighted material is sold or leased for a profit, and no direct or indirect commercial advantage or other private gain in involved."
This language concerns only the possible profits to the copier. It says nothing about the losses sustained by author and publisher from such copying.
This loss is inevitable because for each book published, there is a fixed and limited market. For textbooks and other instructional materials, the sole market is the schools, which usually buy multiple copies.
If these institutions were permitted as a matter of law to buy one book and to make copies from it, the market for any new book would be severely reduced. Even though made for nonprofit use, these nonprofit copies would cut the author's market just as effectively as a pirated edition sold for profit.