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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, Under Secretary. 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 provisions 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 recognized 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, 1965, 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

account methods of duplication of information which are now in existence, or may later be developed. In order to be able to service the needs of the scientific community by providing information from, and copies of, articles from scientific journals with dispatch, we have recommended the inclusion of language to enable libraries to "store" such articles on tapes in computers and to make available such tapes to other libraries.

We favor the inclusion in the bill of a section on fair use. We agree with the statement in the Report of the Register that it would be "anomalous to have the statute specify the rights of copyright owners in absolute terms without indicating that those rights are subject to the limitation of fair use" (p. 25). Because it would be impracticable to spell out the precise rules for the application of the doctrine of fair use, we favor the approach taken in Section 107 of the bill merely to state that the fair use of a copyrighted work is not an infringement of copyright. Fair use is an equitable doctrine, and the courts should have sufficient margin to apply it as the circumstances of a given case warrant.

We believe that the abstracting or digesting of articles from scientific journals to the extent reasonably necessary to meet the needs of researchers, scientists or scholars would be a fair use. Similarly, reproduction by a teacher of a work to the extent reasonably necessary to illustrate a lesson would also appear to be a fair use. However, because of the generality of the language of Section 107, we believe it desirable that the Committee report accompanying the bill make it clear that such abstracting or digesting of scientific articles, and such reproduction of materials by teachers, would be permissible fair uses. We have singled out abstracting and digesting, and reproduction for classroom lessons as examples of fair use because of the vital importance of the former to scientists and researchers, and of the latter to the education process, and because of the need to dispel any doubts that such uses are fair uses.

With regard to the provisions of the bill on exclusive rights in copyrighted works, we 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." The bill, however, would delete the "for profit" limitation, and would declare the performance of a nondramatic literary or musical work, or the exhibition of a work not to constitute an infringement only in the instances set forth in Section 109. The two principal exceptions in Section 109 for educational purposes would authorize such performances and exhibitions in the course of face-to-face teaching activities in a classroom, and in the course of a transmission, if the transmission is made primarily for reception in classrooms and is a regular part of the systematic instructional activities of a nonprofit educational institution. The exception for performances in the course of face-to-face teaching activities would also be applicable to the performance of dramatic works.

In our judgment, deletion of the "for profit" limitation would be injurious both to the development of educational radio and television in communities throughout the country, and to the use of radio and television as pedagogical tools. Instructional programs over educational radio and television are not limited to those transmitted primarily for reception in classrooms. Such programs are frequently designed for reception by students, adults, and shut-ins in homes, places of work, and community centers, as well as in classrooms. The exception in Section 109(2) would not be applicable to a number of instructional programs which appear on educational radio and television but are not made primarily for classroom reception, such as pre-school children's programs, adult education courses, post-graduate training programs for various professions, vocational training programs, and health education. The bill would also deny the benefits of the "for profit" limitation currently available to programs of a cultural nature which appear on educational radio and television. The value of both the instructional and cultural programs would appear to be beyond question.

Congress has recognized the significance of educational television, both to the community as a whole and as an important new method of teaching. Thus, Title VII of the National Defense Education Act, as amended (20 U.S.C. 541 et seq.) directs the Commissioner of Education to conduct, assist, and foster research and experimentation in the more effective utilization of television and radio for educational purposes, and to disseminate information concerning these new educational media to educational agencies and institutions. Congress also recently enacted a program of Federal matching grants for the construction

of educational television facilities (P.L. 87-447; 47 U.S.C. 390 et seq.). In reporting out S. 205 (which was later enacted as P.L. 87-447), the Conference Report stated:

"Only through the establishment of educational television broadcasting facilities and the activation of noncommercial educational television broadcasting stations can the goal of creating an adequate television system to serve the needs of all the people in the United States be accomplished." (Rept. No. 1609, 87th Cong., 2d Sess., p. 6.)

The importance of educational radio and television was also recognized in the recently enacted Elementary and Secondary Education Act of 1965 (P.L. 89-10). Section 303(b) (6) of Title III of that Act authorizes grants for "de-. veloping, producing, and transmitting radio and television programs for classrooms and other educational use" as supplementary educational services and activities.

We understand that the deletion of the "for profit" limitation would be particularly burdensome to educational radio and television broadcasters because of the added expense and staff needed to obtain the necessary clearances from copyright owners. Where this burden could not be met, the quality of the programs offered by educational radio and television would necessarily be reduced.

The Register of Copyrights has departed from his original recommendation that the "for profit" limitation be retained (Register's Report, p. 27) because of his belief that retention of this limitation in the light of the growing importance of nonprofit performances, particularly nonprofit broadcasts, would "involve serious dangers to the author's rights" (Supplementary Report, p. 21), We believe, however, that because of the vital role of educational radio and television, the benefit to the public from the retention of the "for profit" limitation would outweigh any danger to the rights of an author. To the extent that there is any conflict between an author's interests and the public interest, we believe that the latter should prevail.

Section 110 of the bill provides that an organization entitled to transmit a performance or exhibition of a copyrighted work to the public may make no more than one copy of the work solely for purposes of the organization's own lawful transmissions or for archival preservation, if the copy is not used for transmission after six months from the date it was first made. The restrictions in this section on the making of “ephemeral recordings" would work a hardship on educational radio and television stations which frequently have occasion to make delayed broadcasts and rebroadcasts. The six month limitation on the transmission of such recordings is unrealistic since educational radio and television stations often rebroadcast previously taped programs for periods beyond six months from the date of recording. The provision limiting an organization to making ephemeral recordings solely for its own transmissions would prevent the exchange of such recordings among educational radio and television stations unless the necessary clearances are obtained from the owners of copyrighted works which appear in such recordings. It is our understanding that many educational radio and television stations rely heavily upon the exchange of such recordings in scheduling programs.

We suggest, therefore, that Section 110 of the bill be amended by deleting the time limitation in which an ephemeral recording may be used for transmission by educational radio and television stations, and by permitting the exchange of such recordings among educational radio and television stations.

In summary, we believe that S. 1006 provides a long overdue revision of the Copyright Law. We recommend the enactment of the bill with the modifications suggested herein.

Hon. JAMES O. EASTLAND,

U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE DEPUTY ATTORNEY GENERAL,
Washington, D.C., June 3, 1965.

Chairman, Committee on the Judiciary,
U.S. Senate, Washington, D.C.

DEAR SENATOR: This is in response to your request for the views of the Department of Justice on S. 1006 "For the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes."

The bill constitutes a complete rewriting of the Copyright Act of 1909, as amended, title 17, United States Code. Among the more notable revisions which

would be effected in existing law, is the change in the present dual system of protecting works under the common law before publication (17 U.S.C. 2), and under the Act after publication (17 U.S.C. 10), in favor of a single Federal statutory system for the protection of all works whether published or unpublished (section 301).

Also, there would be a change in the duration of the copyright period which is now 28 years from the date of first publication with notice, and renewal for an additional 28 years, or a total of 56 years (17 U.S.C. 24). The bill (section 302) would substantially increase the duration of the copyright by providing for a term consisting of the life of the author and 50 years after his death, and for anonymous works and works for hire, a term of 75 years from publication or a term of 100 years from creation, whichever expires first.

Although the bill does not provide for renewal of copyrights, as authorized under existing law, it does provide (section 203) for the termination, by the author or his heirs, of the original transfer of rights at the end of 35 years (or up to 40 years in certain situations).

Another important change which the bill would make in existing law would be the repeal of the present "juke box" exemption. Under existing law (17 U.S.C. 1(e)), the rendition of a musical composition by a coin-operated machine, sometimes called a "juke box," is not deemed a public performance for profit subjecting the performance to the payment of a royalty, unless an admission fee is charged in the place where such rendition occurs. The bill (section 114) would repeal this exemption and make the owners of such machines subject to the payment of royalties whenever musical compositions are played on the machines. An additional change which the legislation would make in existing law would be to include sound recordings within the categories of copyrightable works (section 102).

In general, the Department of Justice favors the revision of the Copyright Act as proposed in the bill. Whether the provisions extending copyright protection to sound recordings, increasing the duration of copyrights, and repealing the "juke box" exemption should be enacted, involve questions of policy concerning which the Department prefers to make no recommendation. There are certain provisions of the legislation, however, which we consider objectionable.

Section 4 of the present law (17 U.S.C. 4) uses the language of Article I, section 8, clause 8 of the Constitution by providing that "works for which copyright may be secured * * * shall include all the writings of an author." Section 5 of the present law (17 U.S.C. 5), which sets forth thirteen classes of copyrightable works, provides that those specified classes "shall not be held to limit the subject matter of copyright as defined in section 4." In spite of these provisions the courts have held that certain works are not copyrightable even though they would appear to be a "writing of an author" because they are not specifically set forth in one of the classes of section 5.

It is understood that the drafters of the legislation determined to omit the omnibus provision of section 4 in the general revision and to reformulate the categories of copyrightable works in sufficiently broad terms to include all the classes specifically set forth in the present statute. While the language of section 4 of the present law is omitted, section 102 of the bill does not limit coverage to the enumerated categories. Rather, this section in exemplifying works of authorship prefaces the categories set forth by the word "include" which is defined in section 101 as "illustrative and not limitative." Thus, section 102 of the bill, like the present law; provides an omnibus provision plus a list of classes of copyrightable works. To modify the language of the present act without changing it in substance will in all likelihood cause confusion rather than clarify the situation. It is recommended that the present omnibus provision in section 102—“Works of authorship include the following categories ***"-be deleted and that if an omnibus provision is found to be necessary, the language of the Constitution-"all writings of an author"-be used.

Section 201 (d) (2) of the bill provides for transfer of a portion of the exclusive rights in a copyright and provides further that the owner of such portion of the rights shall be entitled to all of the protection and remedies accorded to the copyright owner. This would represent a change in case law regarding transfers since the courts have held that a copyright is an indivisible unit and a partial transferee or licensee cannot sue for an infringement of a right transferred to him without joining the owner of the residual rights as a party to the suit.

It is believed that section 201(d) (2), as presently worded, would create many problems under 28 U.S.C. 1498 (b), which provides for suits by a copyright

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