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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 views. 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.C. 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?
Washington, D.C., July 28, 1965. Hon. JAMES O. EASTLAND, Chairman, Judiciary Committee, Senate Office Building, Washington, D.C.
DEAR JIM: Will you please make the enclosed letter a part of the record of the hearings on copyright legislation. Sincerely,
WALLACE F. BENNETT.
MILLARD SCHOOL DISTRICT,
OFFICE OF ADMINISTRATION,
Fillmore, Utah, July 19, 1965. Hon. WALLACE F. BENNETT, U.S. Senator, Washington, D.O.
DEAR MR. BENNETT : Testimony before Subcommittee #3 of the House Judiciary Committee shows that an ad hoc committee of educational groups is clearly asking for free use of copyrighted materials in the classroom.
As an educator, it is my belief that such free use by means of photocopying would deprive authors of incentive to write and of publishers to publish.
I oppose any provisions in the copyright law which would permit free reproduction of copyrighted materials for educational use. I ask that this letter be made part of the record of the Subcommittee. Sincerely yours,
VERMON S. BARNEY, Superintendent.
August 3, 1965.
Office Building, Washington, D.C. DEAR MR. CHAIRMAN: Enclosed is copy of a letter to Representative Willis from Dr. Edwin J. Stringham, of Chapel Hill, North Carolina.
Dr. Stringham is an English scholar and writer, and I would greatly appreciate your including his letter in the record of hearings which you will shortly open on S. 1006. I have Dr. Stringham's permission to make this request. With all kind wishes, I am Sincerely yours,
SAM J. ERVIN, JR.
CHAPEL HILL, N.C., July 27, 1965. Hon. EDWIN E. WILLIS, House of Representatives, Washington, D.C.
DEAR MR. WILLIS: Testimony before Subcommittee #3 of the House Judiciary Committee shows that an ad hoc committee of educational groups is clearly asking for free use of copyrighted materials in the classroom.
I have been in the field of education for some fifty years, holding professorships at Teacher's College, Columbia University, The Juillard, Queen's College, New York City, University of California, University of Texas, etc. During these years I have authored, co-authored or edited over twenty books for High School and College use. Never have I heard of a proposition so destructive to education in the U.S.A. as that of the ad hoc committee which is asking for unrestricted, free copying and “free use" of copyrighted materials.
If this idea is adopted in proposed bill (H.R. 4347) revising the copyright law of 1909, there would be no incentive whatever for authors and educators with new ideas that have been tested and proven of value to publish their findings. Without proper remuneration and copyright protection no educator is going to go through the ordeal of writing a book. As a result education, as a whole, would become sterile, out-moded and static. How any thinking person would suggest such an unjust use of copyrighted material is, to me, simply incredible.
The adoption of the idea presented by the ad hoc committee would bring undue hardship to retired professors who rely on royalties from books written in their active period for their livelihood. I strong urge this letter be made part of the record of the Subcommittee. Sincerely yours,
EDWIN J. STRINGHAM.
July 15, 1965.
Committee, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: I am bringing to your attention a letter I have received from Dr. R. E. Lieuallen, Chancellor of the Oregon State System of Higher Education, with respect to copyright legislation which is under consideration by your subcommittee.
I will greatly appreciate your courtesy in bringing this letter to the attention of your colleagues through inclusion of the correspondence in your hearings record on the bill. With kindest regards, Cordially,
July 15, 1965.
DEAR DR. LIEUALLEN : I very much appreciated receiving your letter of June 28, 1965, with respect to S. 1006.
Since I know the view you hold is one which is shared by a great many educators, I thought you would like to know that I have taken the liberty of bringing it to the attention of Senator McClellan so that it may be available to the members of his committee in their consideration of the legislation. With kindest regards, Sincerely,
OREGON STATE SYSTEM OF HIGHER EDUCATION,
OFFICE OF THE CHANCELLOR,
EUGENE, OREG., June 28, 1965. Hon. WAYNE MORSE, U.S. Senator, Senate Office Building, Washington, D.O.
DEAR SENATOR MORSE: I would like to voice our support for the positions expressed by the ad hoc education committee on H.R. 4347-S. 1006 “Copyrights." Restrictions in this bill placed upon classroom teachers with regard to the ready availability of teaching resources would have a detrimental effect on instruction.
Over and above the positions expressed by the ad hoc committee, we are concerned over removal of the “not-for-profit” clause in the proposed legislation. Operation of our educational radio and television networks in Oregon would be seriously impaired if it becomes necessary to pay fees and clearance costs for any use of a non-dramatic or musical work, or excerpts from other copyrighted ma. terial.
Encumbrances placed in the way of efficient use of recording devices for repeat and exchange of broadcasts also would be extremely disadvantageous.
We certainly recognize the necessity of protecting the interests of copyright owners, but we feel that the proposed legislation in its present form would prove to be detrimental to the educational process, and not in the public interest. Cordially yours,
R. E. LIEUALLEN, Chancellor.