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While we favor the principle embodied in subsection 109 (5) we believe there are problems with two of the concepts contained in the latter portion of the proposed provision. Proposed subsection 109 (5) would exempt:
(5) the further transmitting to the public of a transmission embodying a performance or exhibition of a work, if the further transmission is made without altering or adding to the content of the original transmission, without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the further transmission.
We are concerned with the phrases "without any purpose of direct or indirect commercial advantage” and “without charge to the recipients of the further transmission."
We believe that the phrase "without any purpose of direct or indirect commercial advantage” may prove to be troublesome. Where the translator is owned by or licensed to the commercial television station whose programs the translator is retransmitting, the purpose would clearly appear to include commercial advantage. However, where the translator licensee is an individual or organization in the community served by the translator, there would appear to be countless fact situations which could raise difficult questions as to whether the purpose of establishing a particular translator was direct or indirect commercial advantage.17 Inquiry would have to be made into the purpose or intent which led to the construction and operation of a particular translator. In our view, the matter could better be handled by excluding from the exemption two particular classes of translators: those which are operated for profit, and those which are under common ownership with regular commercial TV stations (which have built them in hopes of improving their coverage). We would therefore favor eliminating the language "without purpose of direct or indirect commercial advantage” and substituting language along the following lines : "where the further transmission is by a facility neither operated for profit nor under common ownership (wholly or partly) with the commercial broadcast station whose signal it is rebroadcasting.”
As to the second phrase, "without charge to the recipients of the further transmission”, the scope of this is obvious in some respects. However, we would like to point out that, read literally, it might affect numerous translators which are supported by general community subscription charges or by tax funds. This we believe to be an undesirable, and probably unintended, result. In our view this aspect of the matter can be covered, insofar as it is appropriate, by the “not for profit” limitation mentioned above. Accordingly we would favor elimination of the language mentioned concerning charges.
We wish to re-emphasize the importance which the Commission attaches to the development and operation of translator stations. Where these are non-profit and not owned by regular commercial TV stations, we are concerned lest their continued operation be jeopardized by the imposition of the possible costs and substantial administrative burdens involved in the copyright clearance process, which, by and large, the community and publicly licensed translators are not set up to handle.
Adopted: April 21, 1965. Commissioner Lee absent; Commissioner Cox abstained from voting.
GENERAL SERVICES ADMINISTRATION,
Washington, D.C., May 20, 1965. Hon. JAMES O. EASTLAND, Chairman, Committee on the Judiciary, U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : Your letter of February 26, 1965, requested the views of the General Services Administration on S. 1006, 89th Congress, a bill “For the general revision of the Copyright Law, title 17, of the United States Code."
The bill has as its primary purpose the establishment of a single system of
16 Conceivably there could also be a question about the meaning of the phrase "without altering * * * the content of the original transmission. However, we assume that dele. tion of a particular program or programs from a translator's rebroadcast service sometimes required by Commission policy where a regular TV station in the area is presenting the same program-would not be construed as "altering the content. If this is not the case, we believe the language should be clarified so that such deletion would not affect the exemption.
17 For example, a translator might be established by a local television receiver dealer whose purpose includes stimulating the sale of receivers.
statutory copyright protection for all works whether published or unpublished instead of the present dual system of protecting works under the common law before they are published and under the current copyright statute after publication. Among other things the bill specifically amends the present term of copyright by providing for a term of the author's life plus 50 years in order to bring the statutory term into line with the copyright term in most countries, adds a provision to the current statute specifically recognizing the doctrine of fair use, but without any attempt to indicate the application or define the scope of the doctrine and clarifies the scope of the prohibition against copyright in "Government Publications."
The interest of the General Services Administration in the proposed legislation is derived primarily from its statutory responsibilities under the “Federal Records Act of 1950,” Title V of the Federal Property and Administrative Seryices Act of 1949, as amended (44 U.S.C. 392 et seq.). In particular, section 503 of the Federal Property and Administrative Services Act creates the National Historical Publications Commission and provides that the Commission, among other things, shall cooperate with and encourage appropriate Federal, State and local agencies and non-governmental institutions, societies, and individuals in collecting and preserving and, when it deems such action to be desirable, in editing and publishing the papers of outstanding citizens of the United States and such other documents as may be important for an understanding and appreciation of the history of the United States.
The above statute also authorizes the Administrator of General Services, whenever he deems it to be in the public interest, to establish and maintain Presidential archival depositories for the preservation and making available to the public for historical research purposes papers and other historical material of any President or former President of the United States or of any other official or former official of the Government, and other papers relating to and contemporary with any President or former President of the United States. With respect to any papers, documents or other historical materials so deposited in any Presidential archival depository he is to exercise all the functions and responsibilities otherwise vested in him pertaining to Federal records or other documentary material in his custody or under his control and to cooperate with and assist any university, institution of higher learning, institute, foundation or other organization, or qualified individual in furthering or conducting study or research in any historical materials deposited in any Presidential archival depository.
In order that the authority of the Administrator of General Services under the Federal Records Act with respect to letters and other intellectual productions that come into his custody or possession, exclusive of material copyrighted or patented, will not be impaired by common law copyright or other analogous claim of literary property right, section 510 of the Federal Property and Administrative Services Act provides that “neither the United States n'or its agents shall be liable for any infringement of literary property rights or analogous rights
ising thereafter out of use of such materials for display, inspection, research, reproduction or other purposes." Therefore, to insure that the Administrator of General Services may continue to exercise this responsibility without restraint or possible infringement of copyright under Title 17 of the United States Code as it would be amended by S. 1006, it is recommended that the transitional and supplementary provisions of the bili, commencing on page 38 thereof, be amended by the addition of a new section 13 reading substantially as follows:
"Nothing in this act shall affect the authority and responsibilities of the Administrator of General Services under the provisions of Title V of the Federal Property and Administrative Services Act of 1949, as amended."
In addition to GSA's concern over the proposed bill because of the effect that it would have on its responsibilities under the Federal Records Act, it also has a broader concern over the effect that the measure might have on historical research in general. Specifically, the restrictions contained in the bill on the reproduction of manuscript material will be a real deterrent to the cause of historical scholarship in the nation. The bill would virtually preclude the microfilming by the custodian of manuscript collections of papers and other historical documents which are less than 100 years old for the purpose of depositing the copy in some other library or research institutions.
The microfilming of historical documentary sources to increase their availability for study and teaching in colleges and universities has been increasing on a limited scale in the past decade. The use of microfilming in the next generation is expected to increase greatly in order to meet the needs of expanding graduate schools. Manuscript collections of materials immediately predating World War I, or roughly those 50 years old, should not be excluded from this program, which could be the result under the terms of the bill. In very few instances are manuscript collections made up entirely of documents, the literary property rights to which are owned by the possessor of the physical items. Collections deposited in libraries and other depositories are normally mixed. For some of the papers the donor can transfer literary property rights to the depository; for others such rights will lie in numerous persons or their heirs, most of whom are beyond practical reach of the depository.
The addition of the fair use doctrine to the copyright law as is proposed by the bill offers little, if any, relief in this situation. The reference to fair use is vague and its exact meaning will depend upon court decisions. Unless section 107 of the bill is amended to clearly indicate that archivists and manuscript custodians are authorized under the concept of fair use to microfilm manuscript collections for research use of scholars elsewhere, it is believed that the practical effect of the bill in limiting the microcopying of manuscript collections to those which are over 100 years old will seriously hinder the use of documentary materials for research purposes.
For these reasons, therefore, it is further recommended that the bill,be amended by the addition of a new section 111 to chapter 1 of the bill and the renumbering of present sections 111, 112, 113 and 114 as 112, 113, 114 and 115, respectively. The new section 111 would provide for an additional limitation on exclusive rights in order to permit unrestricted reproduction of manuscript collections and other historical documentary sources for historical research purposes, reading gubstantially as follows:
"111. Limitations on Exclusive Rights : Manuscript Collections
(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a library, historical society, archives, manuscript repository or other educational or research institution having legal custody of manuscript collections of business, personal, and institutional papers and other documents which are of value to historical research to reproduce such collections, or parts thereof, in microfacsimile form.
(1) for purposes of preservation and se y, or
(2) for the deposit of copies in other such institutions in order to make the manuscript collections more widely available for research use, if the copies
are made without any purpose of financial gain. (b) The exclusive rights of the owners of the copyright in the manuscript collections shall extend to all copies thereof made under the provisions of this section.
(c) As used in this section the term "manuscript collections” shall include both "literary works" and "pictorial, graphic and sculptural works” as defined in section 101 of this act.
Subject to the foregoing suggested changes, GSA would have no objection to the enactment of S. 1006.
We are unable to estimate the cost to GSA which would be incurred as a result of enactment of the bill.
The Bureau of the Budget has advised that, from the standpoint of the Administration's program, there is no objection to the submission of this report to your Committee. Sincerely yours,
LAWSON B. KNOTT, Jr.,
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
August 5, 1965. Hon, JAMES 0. EASTLAND, Chairman, Committee on the Judiciary, U.S. Senatc, Washington, D.C.
DEAR MR. CHAIRMAN: This letter is in response to your request of July 15, 1965, for a report on S. 1006, a bill “For the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes."
Because of its responsibilities and mission, the Department of Health, Education, and Welfare is concerned with the possible impact of a revision of the Copyright Law on the promotion of education and public health, and upon the dissemination of information in health, education, science, and related fields. Of particular interest to us, are those provisions of S. 1006 which deal with Government publications, exclusive rights in copyrighted works, and the limitations on such rights, including fair use.
Section 105 of the bill defines the term “work of the United States Government” for the purpose of exclusion from copyright. We favor the inclusion of an appropriate definition in the bill in order to eliminate as much as possible the present uncertainty as to the meaning of Government publication for purposes of the Copyright Law.
We recommend the inclusion of a provision in the bill to authorize a library to make and supply to applicants under limited circumstances single copies of copyrighted materials in its collections or in collections available to it. In order to meet the needs of researchers and scientists, and to take into account new methods of duplication and storage of information, we suggest that the bill include a provision to enable libraries to "store” articles or other works on tapes in computers and to make available such tapes or similar materials to other libraries. We believe it would be useful to libraries, authors, publishers, scientists and researchers to have the permissible limits of copying by libraries spelled out in the statute.
We also recommend that the so-called “for profit" limitation of the present law be retained. The present law (17 U.S.C. 1(c), (e)) limits the copyright owner's performance right in nondramatic literary and musical works to public performance "for profit”. We believe that the deletion of the “for profit" limitation in S. 1006 would be injurious to the development of educational radio and television, and would impair the effectiveness of educational radio and television as pedagogical tools.
The enclosed memorandum by our General Counsel discusses in detail the matters referred to above, as well as other aspects of the bill.
We recommend the enactment of the bill with the modifications suggested in the General Counsel's memorandum.
We are advised by the Bureau of the Budget that there is no objection to the presentation of this report from the standpoint of the Administration's program. Sincerely,
/s/ WILBUR J. COHEN,
AUGUST 5, 1965. To: The Secretary. From : Alanson W. Willcox, General Counsel. Subject: S. 1006, General Revision of the Copyright Law.
S. 1006 would provide the first comprehensive revision of the Copyright Law since 1909. Of major interest to the Department of Health, Education, and Welfare are the provisions of the bill which deal with Government publications, exclusive rights in copyrighted works, and the limitations on such rights, including fair use.
The Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, July, 1961, states that there has been “much uncertainty as to what constitutes a 'publication of the U.S. Government in which copyright is prohibited” (House Committee Print, 87th Cong., 1st Sess., p. 130). Section 105 of the bill would define a "work of the United States Government” to mean a work prepared by a Government officer or employee within the scope of his official duties or employment. We have not explored the question whether this definition is the most appropriate one, but we understand that other agencies have made specific suggestions for modification of the definition. Our concern is that there be a definition in the bill, that it resolve the present uncertainty to the maximum extent feasible, and that it be equitable both to the Government and to the employee.
With regard to the provisions of the bill on exclusive rights in copyrighted works, we recognize that competing considerations must be taken into account in delineating the scope of exclusive rights in copyrighted works and the limitations upon those rights. As we aptly stated in the Register's Report, the “ultimate task of the copyright law is to strike a fair balance between the author's right to control the dissemination of his works and the public interest in fostering their widest dissemination”; and where the author's interests conflict with those of the public, “the public interest must prevail” (p. 6). We have endeavored to apply these criteria in reviewing and commenting upon the provisions of S. 1006 dealing with exclusive rights in copyrighted works and the limitations on such rights.
of paramount interest to this Department is the extent to which the pro. visions of the bill might affect the widespread dissemination of information in health, education, science, and related fields. We, therefore, view with concern the omission from the bill of provisions authorizing libraries to make and supply to applicants copies of copyrighted materials under limited circumstances. We urge that the bill include a section substantially as follows:
"Notwithstanding the provisions of section 106, any library which has collections or access to collections available to the public or to researchers in any specialized field shall be entitled to duplicate, by any process now in existence or which may hereafter be developed, including such processes as photocopying, sound recording, and computerization, any work in its collections or in collections available to it, other than a motion picture, and to make available to other such libraries computer tapes or other materials on which such works are duplicated. Any such library may supply a single copy or sound recording of any such work upon request, but only under the following conditions:
“(a) The library shall be entitled, without further investigation, to supply a copy of no more than one article or other contribution to a copyrighted collection or periodical issue, or to supply a copy or sound recording of a similarly small part of any other copyrighted work.
“(b) The library shall be entitled to supply a copy or sound recording of an entire work, or of more than a relatively small part of it, if the library has first determined, on the basis of a reasonable investigation, that a copy or sound recording of the copyrighted work cannot readily be obtained from trade sources.
"(c) The library shall attach to the copy a warning that the work appears to be copyrighted."
Conditions (a), (b) and (c) above were included in Section 7 of the preliminary draft bill, dated February 15, 1963, prepared by the Register of Copyrights.
It is generally recogn'ized that photocopying by libraries, particularly of articles in scientific journals, has been of invaluable assistance to scientists, researchers and scholars. The sheer volume of scientific journals, perhaps 50,000, makes it impracticable for the scientist or his employer to purchase or subscribe to more than a limited number. It would also be impracticable to require a library to obtain the permission of the copyright owner each time it receives a request from a scientist for a copy of an article from such journals.
The importance of disseminating medical and public health materials by means of making copies of such materials was recognized by Congress when it directed the Surgeon General of the Public Health Service, through the National Library of Medicine, to "make available, through loans, photographic or other copying procedures or otherwise, such materials in the (National] Library (of Medicine] as he deems appropriate" (42 U.S.C. 276).
Under the restrictive provisions of the section which we have recommended, it is doubtful that the supplying of a single copy to a researcher or scientist would seriously impair the copyright owner's potential market for his work.
Although the practice of photocopying by libraries, without benefit of statutory or judicial sanction, is apparently widespread, we believe it important that the bill include provisions along the lines recommended above. In taking this position, we are not unmindful of the reasons given by the Register of Copyrights for dropping the provisions on photocopying in Section 7 of his preliminary draft bill from the 1965 Copyright Revision Bill. The Register pointed out in his Supplementary Report on the General Revision of the U.S. Copyright Law, May, 1963, that there was strong opposition to these provisions from author and publisher groups on the one hand and from library groups on the other hand (House Committee Print, 89th Cong., 1st Sess., p. 26). He further stated his belief that it would be premature to include provisions on photocopying in the bill in view of the changing technology in the reproduction, storage and retrieval of information (Id.). In our judgment, however, there are two overriding reasons for inclusion in the bill of provisions such as we have advocated. The failure of a comprehensive revision of the Copyright Law to include a provision on photocopying might be deemed to indicate an intent by Congress not to authorize photocopying by libraries as a limitation on the exclusive rights of a copyright holder. Additionally, we believe that with no reported judicial decisions on the subject, it would be useful to libraries, authors, publishers, scientists, and researchers to have the permissible limits of photocopying spelled out in the statute.
Although photocopying is the most widespread method of copying in use today, the section which we have recommended to be included in the bill takes into