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If a school lacks copying facilities on its premises, it may go to commercial firms to have copying work done. A new firm has been established in New York, called Selected Academic Readings, Inc. A copy of a recent release from this firm is appended. It offers any collge teacher the opportunity to choose his own selections for a book of readings. It will then furnish these readings in bound books, printed by photo-offset for 242 cents a page up to 100 pages, and for 2 cents a page beyond 100 pages. These prices are for editions of only 100 copies. For editions of 1,000 copies or more, the prices would be perhaps half as much.
Give educational institutions the right to make multiple copies of extracts without paying for them, and these new devices will drive books of readings and anthologies from the market. It may be argued that it is educationally desirable to have anthologies tailored to the needs of individual teachers. Is it also desirable to deprive authors of their income and textbook publishers of their market?
The proposed Section 111 amendment must be considered in the text of new, advancing technology. In this context, it appears as a devastating threat to authors and publishers.
The prospect of computers The photocopy machines even in advanced forms are relatively unsophisticated. Beyond photocopy lies the computer. The actual present uses of computers and their future use in classrooms are illustrated in a publication of Dr. Wigren's division of the National Education Association. It is titled The Role of The Computer in Future Instructional Systems.
A computer network system of medical libraries began with Harvard, Yale, and Columbia Universities. It has since been extended nationally. Its potential is described in the words of McCandlish Phillips as reported in The New York Times, dated March 5, 1965.
“The medical libraries of three major Eastern Universities will be tied together in a network of computers and telephone lines to give scholars virtually instant access to their pooled resources ***
“Although there is much duplication, the three libraries will then contain 1,025,000 items. These can be searched by computers in seconds * * *
"When telecommunication and photographic reproducing devices are added to the network system, it will be possible to eliminate some duplication of material among libraries. Pages from a book in New York could be flashed to a user in another city and even reproduced for him in take-home form."
The September 9 issue of The Boston Herald describes a new computer program at Harvard University. The article begins as follows:
“A television and computer system being installed at Harvard will transmit audio and visual information from any source to Harvard students.
“Ten miles of television cables are being laid underground by WGBH to link its studios and classrooms, laboratories, lecture halls, and computer centers at Harvard.
“The project, expected to be completed soon after the first of the year, will provide what is the most vital tool of research scientists and teachers—instan. taneous transmission of information.
“The kinds of information to be transmitted are limitless.
“Besides carrying television shows of experiments and lectures to Harvard classrooms, the system will permit researchers to hook up to libraries, first to locate and then read on the TV screen copies of books and periodicals.”
In these and similar computer systems, printed material is transferred to electronic signals recorded on tape. Upon demand, any portion of the recorded material can be printed out in any quantity desired. Similar devices record printed material on microfilm and print out any portion of the recorded material in any quantity desired. The portions printed out would be the excerpts to which the ad hoc committee asks free, unpaid for access in their proposed amendment.
The use of computers in classrooms is not a far-out fantasy of science fiction. Today, there are eight computers in use in the classrooms of the New York City schools alone.
It is not surprising that the educators appearing before your Committee have been silent concerning the advancing technology in education. It is not their responsibility to present this topic in their testimony, but it is the responsibility of authors and publishers to do so. It is their responsibility to show that all of these devices are designed to make one copy of a book suffice where 100 have been used before. It is their responsibility to show potential damage in the innocentsounding request for free, unpaid use of excerpts.
Publishers can and will adjust to these changing circumstances, but only if their products and services are paid for and only if authors are assured of a reward for creating by an effective copyright law.
SELECTED ACADEMIC READINGS, INC.
NEW YORK, N.Y. The following is a step-by-step procedure in the S.A.R. custom-made readings book program:
1. A professor teaching a course submits a list of readings from journals or magazines and agrees to adopt this book as a required text (minimum yearly adoption of 100 copies). S.A.R. gives the professor the option of adding or subtracting articles each year, thereby up-dating the book as needs change.
2. S.A.R. undertakes to secure necessary permission to reprint the articles.
3. S.A.R. prints by Photo Offset, binds these articles in book form, including any prefatory material that the professor may desire.
4. S.A.R. ships these books either to the college bookstore or directly to the professor.
The cost to the student is based on a per page price of 212¢ for the first 100 pages and 2¢ for all subsequent pages. Therefore, the cost of a 200 page readings book to the student would be $4.50. Since our readings books do not contain any superfluous materials, the average page count is far less than conventional books.
NATIONAL NEWSPAPER ASSOCIATION,
Washington, D.C., August 16, 1965. Senator John L. MCCLELLAN, Chairman, Subcommittee on Patents, Trademarks and Copyrights, New Senate Office Building, Washington, D.C.
DEAR SENATOR MCCLELLAN: The National Newspaper Association submits its views in this letter for the record of hearings to be held by your Subcommittee on Patents, Trademarks and Copyrights on bills providing for general revision of the Copyright Law of 1909.
Most of the membership of more than 6,600 newspapers of the National Newspaper Association is made up of weekly or semi-weekly newspapers, but more than 850 are dailies. NNA members are located in all 50 states and all 435 Congressional districts. Newspapers published by its members go into approximately 25 million homes regularly and are read by about 100 million Americans.
Copyright revision is of great interest to newspaper publishers, both as crea. tors and users of copyrighted material. We will divide our discusssion into those two contexts. A. As creators of copyrighted material
Whereas newspapers have more often resorted to state remedies of unfair competition in the past when faced with unauthorized appropriation of their creative efforts, there is little question that the emphasis is shifting toward the necessity of federal copyright protection. The 1964 United States Supreme Court decisions in Sears, Roebuck & Co. v. Stiffel Co. (376 U.S. 225) and Compco Corp. v. Day-Brite Lighting, Inc. (376 U.S. 234) probably have limited state remedies to the “passing off” concept. That may be defined as the unfair competition situation where one appropriates a work or product of another and passes it off as his own, thus misleading the public as to the source. And the bill under consideration states unequivocally that its intent is to federally preempt state “unfair competition” equivalent to copyright, thereby abolishing the common law cause of action. (#301 ; see Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill (May, 1965) pp. 81-86.)
We might state first that it is somewhat difficult to determine the copyrightability of newspapers under the present bill. Whereas the present law plainly states at 5(b) that “periodicals, including newspapers" are subjects of copyright, we can only assume that they now fall within the category of "literary works” in 102(1) and somehow also within the term "collective work” in the definition section. (101—“A 'collective work is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.") (See 1965 Supplementary Report (note 3) p. 104.)
Assuming, however, that they are still subject to copyright, we think it is of utmost importance that the deposit and registration requirements be as simple and elastic as possible. Copyrighting individual issues of newspapers is an onerous and time-consuming procedure. Very few newspaper publishers, particularly in smaller operations, have either the time or inclination to go through the rigamarole. Even when faced with the prospect of infringements, they may elect to suffer rather than go through the detailed requirements for protecting their rights—and, we might add, paying the $4 registration fee per issue. (The fee would be $6 if the bill is passed in the present form. (708(a) (1))
For that reason, we are in favor of the administrative latitude contained in the bill wherein the Register of Copyrights may by regulation exempt any categories of material from the deposit requirements (406 (c)) and may permit a single registration for a group of related works. (407 (c); see 1965 Supplementary Report (note 3) p. 104.)
There is only one clause in the entire bill in parentheses, and we would recommend that it be deleted. That is at 403(a) relating to "Notice of Copyright: Contributions to collective works."
The Section provides :
“(a) A separate contribution to a collective work may bear its own notice of copyright, as provided by sections 401 and 402. However, a single notice applicable to the collective work as a whole is sufficient to satisfy the requirements of sections 401 and 402 with respect to the separate contributions it contains (not including advertisements inserted on behalf of persons other than the owner of copyright in the collective work), regardless of the owner of copyright in the contributions and whether or not they have been previously published.” [our italic.]
The alleged justification for that clause in parentheses is set out in the 1965 Supplementary Report of the Register of Copyrights. It says that “the general copyright notice * * * would not cover the material placed in that issue by other persons as ordinary advertising.” (See 1965 Supplementary Report (note 3) p. 104).
That assumes a legal answer to a question that is not only unresolved, but one which is causing considerable controversy, i.e., the ability and resolve of offset publications to photographically "lift” advertising layouts from other publications.
It has never been judicially decided that a newspaper has no property right or copyrightable interest in advertising layouts which it creates with its own skill, materials and effort. Indeed, there is unresolved litigation on that very point today in the U.S. District Court in Vermont (Brattleboro Daily Reformer v. Winmill Publishing Co).
We feel it would be most unfortunate and legally indefensible at this time for a copyright law to blithely remove from possible general notice protection every published advertisement. If the clause were deleted, it would rightfully allow the question to be resolved by future judicial decision. B. As users of copyrighted material
Undoubtedly one of our greatest concerns is with the provision relating to copyright of United States Government Works. (105; see 1965 Supplementary Report (note 3) pp. 8–10). Communicating information is not only the newspaper industry's stock in trade; its free flow is essential to our form of government. Whatever might clog that flow must be of concern to each of us, particularly if it affects in any detrimental way information emanating from governmental sources.
Although 8 of the present copyright statutes provides that "no copyright shall subsist *** in any publication of the United States Government, or any reprint, in whole or in part, thereof,” it is a matter of common knowledge that this prohibition is honored more by its breach than its practice. (Schnapper, Constraint by Copyright (Public Affairs Press, 1960)). A number of Government bodies "get around” it by permitting private persons who produce works under a Government contract or grant to secure copyright and then obtain a nonexclusive license to publish, or they arrange for the private publication of works produced under contracts or grants, or they take assignments of copyrights secured by private persons. (Chapter XI—Report of the Register of Copyrights on Copyright Law Revision, July 1961, pp. 129–133).
The American Newspaper Publishers Association discussed this situation in a transmittal letter of August 3, 1965, to Senator McClellan, Chairman of the Committee's Subcommittee on Patents, Trademarks and Copyrights, stating:
“This Association takes the position that no person should be permitted to copyright any material where a substantial part thereof is created by Government employees, or with Government funds."
We concur with that position. In our opinion, limitation of the copyright prohibition to a "work” of the United States Government "prepared by an officer or employee of the United States Government within the scope of his official duties or employment" is absolutely insufficient as a judicial or administrative standard in such an important area. It does not touch, in our opinion, some main areas of abuse-copyrighted speeches by government officials or employees or government grants to private individuals.
We would prefer a prohibitory standard tied to the expenditure of public funds—which either pays the salaries of governmental officials or employees, or is used for a grant or contract, or is used for publication of the work.
Our comments on final matters will be more brief.
We generally agree that the doctrine of "fair use" as a limitation on exclusive rights is predominantly a question of law. 107's brief statement regarding it should suffice as an adequate legislative recognition of the principle.
We likewise agree with the “useful article" distribution or exhibition rights contained in 111(a)(2). (See 1965 Supplementary Report (note 3) pp. 47–49).
We feel the “innocent infringer” provision at 404 (b) is an admirable balance of interests, particularly with the liberalization of notice requirements in the bill,
However, we strongly urge that the clause in 101 (b) of the present law relating to newspaper reproduction of a copyrighted photograph, which limits liability to a sum between $50 and $200, be retained in the present bill as an amendment to 504 (b).
Although 504 (c) (2) gives the court discretion to reduce statutory damages as low as $100 in cases of innocent infringement, the conceivable maximum for such infringement could be $10,000.
This allowable disparity in damages might easily place a newspaper in the position of being forced into a settlement completely out of proportion to the damage incurred—the very thing the existing limitation was designed to prevent. The American Newspaper Publishers Association's letter goes into this matter in considerable detail, so we will not repeat it here.
We have appreciated the opportunity to present these vs. We will, of course, be most happy to cooperate with the Committee in any manner it desires in any future considerations. Thank you. Sincerely,
THEODORE A. SERRILL.
NEW YORK, N.Y., September 21, 1965. Re S. 1006, Section 404(a). THOMAS C. BRENNAN, Esq., Chief Council, Subcommittee Patents, Trademarks and copyrights,
Committee on the Judiciary, New Senate Office Building, Washington, D.O. DEAR SIR: My name is Franklin Waldheim and I am Eastern Counsel of Walt Disney Productions. A copy of the accompanying statement has been signed by the following members of the Copyright Bar–in their individual capacity and, where indicated, on behalf of the organizations specified opposite their names. Signed by
Representing Spencer C. Olin, Elliott H. Levitas and myself
-Walt Disney Productions Julian T. Abeles.
_Music Publishers' Protective Association,
Harry Fox Agent & Trustee Leon Kellman..
American Guild of Authors and Com
posers American Society of Magazine Photog
raphers Harriet F. Pilpel -
Society of Magazine Writers
Composers & Lyricists Guild of America,
COPYRIGHT-AND THE DEATH PENALTY Since 1802 our law has required some form of copyright notice. The public has been accustomed to seeing it and, while other countries get along very well without it, it does not seem in order to dispense with this tradition. However, failure to affix the copyright notice results, under our present law, in forfeiture of the copyright. This has seemed to be a cruel punishment to inflict for such a trifling offense.
The Register of Copyrights, in his Supplementary Report on the General Revision of the Copyright Law, states that Sections 401 through 405 of the pending bill "represent an effort to preserve the values of the copyright notice by inducing its use; while substantially ameliorating the effects of accidental or even deliberate errors or omissions." These sections do, indeed, offer some escape from the harsh severity of the present law but leniency is afforded only under conditions with which it may sometimes be impossible to comply.
Section 404 provides that omission of the notice does not invalidate the copyright—but only if the notice has been omitted from no more than a relatively small number of copies or if registration has been made within five years after publication (and a reasonable effort is made to add the notice after the omission has been discovered). Suppose, then, that a work is published and distributed to the public in large numbers with no adequate copyright notice affixed. The only way to avoid forfeiture would be to register the work within five years. But the author and the publisher may never notice the omission until an infringement action arises more than five years after the publication. It would then be too late to correct the error by registration.
Thus copyright is still condemned to death because of the failure to comply with a formality. The pending bill offers a chance of survival only if favorable conditions prevail. Common sense would dictate life for the copyright in all circumstances.
A copyright notice may be affixed but, if there are certain errors in it, the work will be deemed to have been published without any notice under Section 405(b) and (c). In some cases, the affixation of a notice to the copies presents insoluble problems. Suppose the copyrighted work is reproduced in the form of an earring or a bracelet charm. How does one affix a legible copyright notice? (The courts have held that attaching a tag with the notice does not comply with the statute. Trifari v. Steinberg-Kaslo, 144 F. Supp. 577.)
Where a copyrighted work is later issued with some revisions, the copyright owner must decide at his own peril what copyright date to use—whether to use the original date or whether the revisions will be held to be sufficiently substantial to constitute the revised edition a new work. A wrong decision as to the date can, under Section 405(b), condemn the work as having been published without any notice.
Whenever, under the pending bill, the copyright is saved from forfeiture, Section 404 (b) protects the innocent infringer who was misled by the omission of notice. Its provisions seriously impair the copyright owner's rights to damages and profits and to an injunction—but they do not destroy the copyright. These same provisions could apply to any omission of notice, but at the same time the copyright could be preserved. Why does not Section 404 (a) simply read as follows:
“(a) Effect of Omission on Copyright.—The omission of the copyright notice prescribed by sections 401 and 402 from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work."
Would such a provision tempt copyright owners to dispense with the copyright notice? Of course not. Omission of the copyright notice would seriously limit the owner's rights to damages, profits and injunctive relief under Section 404 (b). This section fully protects the innocent infringer who has been misled by the absence of a notice and it would also induce the copyright owner to include the copyright notice to preserve his full rights and remedies. At the same time the law would once and for all put an end to the ruthless forfeiture of copyrights because of a failure (almost certain to be inadvertent or unintentional) to comply with a formality.
The writers, composers and artists of America are not lawyers. They are dedicated creators who strain every faculty to contribute to the culture and happiness of our people. They are not publishers. They are not printers. Their works are reproduced and distributed through others. Why should their creations be confiscated because someone forgot a “c” in a circle?