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owner against the United States in the Court of Claims for the recovery of reasonable and entire compensation for the "eminent domain taking" of the copyright by the United States. This right is similar to that accorded to patent owners under 28 U.S.C. 1498 (a). To date, no suit has been filed under 28 U.S.C. 1498(b).

By analogy to patents, which gives the exclusive right to prevent others from making, using and selling, it has been held that suits against the United States under 28 U.S.C. 1498 (a) must be by "the owner" and a mere licensee is not an "owner." In the leading case of Waterman v. MacKenzie, 138 U.S. 252, 255– 257, the Court listed only three types of owners: namely, the person who, at the time of the alleged infringement, held legal title to the entire patent, or an undivided share of the entire patent, or the entire patent for a specified part of the United States. The transfer of anything less was held to be a license and the licensee could sue only through the licensor.

In the Congressional proceedings on the original Act of June 25, 1910 which became 28 U.S.C. 1498, it was stated that the measure was intended to waive sovereign immunity as to, and provide a remedy for, only the owners of patents, and also that the bill was not intended to permit suits by licensees under the patents (H. Rept. No. 1288, 61st Cong.; Cong. Rec., June 22, 1910, pp. 8755-8785). In contrast, if section 201(d)(2) should be enacted in its present form, a transferee of only one of the rights provided by the copyright law could sue the United States in the Court of Claims while a licensee of only one of the rights under a patent could not. It is therefore suggested that section 201 (d) (2) be modified by deleting the last sentence of said subsection and substituting the following:

"Except in suits against the United States, the owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title. Suits against the United States can be brought only by the owner of the entire copyright, the owner of an undivided share of the entire copyright, or the owner of the exclusive right under the entire copyright for a specified part of the United States."

Section 203 of the bill would permit the author or his heirs to terminate the original transfer of his rights at any time during a period of 5 years beginning at the end of 35 years from the date of execution of the transfer (up to 40 years in certain situations). Termination is effected by serving a written notice on the transferee at last 2 years but not more than 10 years before the effective date of termination. However, section 203(b)(2) and parallel section 304 (c) (5) (B), (relating to transfers of copyrights subsisting on the effective date of the legislation), provide that an agreement to transfer rights subsequent to the termination of a prior transfer will not be effective unless made after the effective date of that termination or unless made to the original transferee. We believe the transferee should not be in a preferred position to enter into an agreement for transfer prior to termination of the original transfer. We feel that all potential transferees should have an equal opportunity to enter into such an agreement. It is therefore suggested that subparagraph (2) of section 203 (b) and subparagraph (B) of section 304 (c) (5) be deleted.

Under the present Act (17 U.S.C. 21) omission of notice on published copies of a work ordinarily places the work in the public domain. However, if such notice is accidentally omitted from a particular copy or copies, copyright is not lost; but innocent infringers who are misled by the accidental omission are not liable for infringement. Under section 404 (a) of the bill omission of notice from a relatively small number of copies of a work will not invalidate the copyright whether or not such omission was accidental. Moreover, the omission of notice will not invalidate the copyright in a work if registration for the work is made within 5 years after the publication without notice and a reasonable effort is made to add notice to all copies distributed to the public. As under the present law, innocent infringers who are misled by the omission of notice would not be liable for infringement (section 404 (b)).

We feel that, in the public interest, a copyright should be protected from invalidation only when the failure to provide notice was the result of an accident or mistake, and a small number of copies were distributed to the public. To permit, as proposed in section 404 (a) (2), a copyright owner to publish an entire printing of his work without notice and still enforce the copyright would tend to negate the purpose of notice. The fact that innocent infringers would incur no liability would still subject such persons to proving their innocence even where the act of omission regarding notice was deliberate. We also feel that it would be advisable that the words "particular copy or copies", contained

in the present statute, be used instead of the words "relatively small number" to designate the limits within which notice may be omitted without loss of copyright. It is therefore suggested that section 404 (a) be deleted and the following substituted therefor:

"(a) THE EFFECT OF OMISSION ON COPYRIGHT.—The omission of the copyright notice prescribed in sections 401 and 402 from copies or phonorecords publicly distributed by the authority of the copyright owner by accident or mistake shall not invalidate the copyright where the accidental or mistaken omission is from a particular copy or copies or a particular phonorecord or phonorecords distributed to the public."

The first sentence of section 410 of the bill is in accord with section 13 of the Act (17 U.S.C. 13) in that it provides that no action for infringement of a copyright shall be instituted until registration of the copyright claim is made. The balance of section 410, however, differs from existing law in that it provides that if the required papers for registration have been filed in the Copyright Office and registration has been refused, the applicant may institute an action for infringement. In such case, the Register may, at his option, become a party to the action with respect to the issue of registerability of the copyright claimed. We question the advisability of permitting an infringement suit where no registration has occurred. To do so would, in all likelihood, lead to many baseless suits brought for harassment purposes. Moreover, the Register of Copyrights need not intervene under the provisions of this section, leaving the defendant to carry the burden. Also, the time, effort and possible costs that the defendant would have to expend would not be outweighed by the remote possibility that in isolated instances a work should have been registered. The judicious actions by the Register of Copyrights in the past have been buttressed by court decisions and little need is seen for change. In addition, it is questionable whether it is a desirable policy to permit the Register of Copyrights to become a party to a copyright infringement suit between private litigants. Accordingly, the Department recommends the deletion of all of section 410 after the first sentence.

The Bureau of the Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration's program. Sincerely,

RAMSEY CLARK, Deputy Attorney General.

DEPARTMENT OF STATE,
Washington, May 20, 1965.

Hon. JAMES O. EASTLAND,

Chairman, Committee on the Judiciary,
U.S. Senate.

DEAR MR. CHAIRMAN: Thank you for your letter of February 26, 1965 asking for the comments of the Department of State on S. 1006 providing for the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes. The Department appreciates the opportunity to express its views on certain aspects of the proposed legislation.

Section 104. Subject matter of copyright: National origin

Section 104 pertains directly to the foreign relations interests of the Department. This section specifies the occasions when foreign works, that is, works produced by authors who are not nationals of the United States, will be given United States copyright protection. This section makes several changes in the present law. The following changes are of primary interest to the Department: (1) Subsection (b) (1) grants protection not only to nationals, but also to domiciliaries of foreign countries with which the United States has copyright treaty relations. The Department believes this is a reasonable extension of the protection afforded under the present law, because persons domiciled in a foreign country, and hence carrying on their basic economic activities in that country, are closely analogous to nationals of that country with respect to certain aspects of copyright protection. Our existing Copyright Law in Section 9(a) provides for the assimilation of domiciliaries to nationals for domestic purposes, that is, domiciliaries of the United States are treated on the same basis as nationals of the United States as regards copyright protection. Further, Article II (3) of the Universal Copyright Convention (UCC) embodies the same principle. It appears logical, therefore, to extend such assimilation to the domiciliaries of foreign countries with which the United States has copyright treaty re

lations. Furthermore, such assimilation introduces significant simplification in connection with the problem, often faced in connection with the registration activities of the Copyright Office, of determining copyright entitlement. Also, as a by-product effect, it accomplishes the injunction in Protocol 1 of the UCC that stateless persons and refugees who have their habitual residence in a State should be, for purposes of the UCC, assimilated to the nationals of that State. (2) Subsection (b) (2) extends protection to works of foreign authors on the basis of their being first published in the United States. The Department believes this is a useful extension of present United States protection, and is in accordance with UCC practice under which each UCC country gives copyright protection to works first published in UCC countries as well as to works of nationals of UCC countries. Also, protecting works first published in the United States may encourage authors to publish first in this country.

(3) Subsection (b)(4) broadens the President's discretion to proclaim copyright protection for designated foreign countries so that it would apply to countries with which the United States maintains no copyright relations. Under the present law, the President's power to proclaim copyright protection can be exercised only on the basis of reciprocity between the United States and other countries. Under the proposed bill, the President could proclaim copyright protection for foreign countries "whenever he finds it to be in the national interest." Furthermore, the subjects of such copyright protection are broadened so as to include not only citizens or subjects of foreign countries, but also domiciliaries of, and works first published in, such countries. The Department of State strongly supports this extension. It gives the President flexibility to take into account all aspects of the national interest involved in the extension of copyright protection to foreign countries, especially as regards United States relationships with developing countries or with countries entering new phases of political, social and economic development.

Section 601. Manufacture, importation, and public distribution of certain copies Section 601 of the bill also pertains directly to the foreign relation interests of the Department. This section relates to restrictions upon importation of English-language literary works by United States citizens or domiciliaries not manufactured in the United States. The bill liberalizes the import restrictions contained in the "manufacturing clause" of the present Copyright Law. The following changes are of primary interest to the Department:

(1) It provides that the manufacturing requirement shall not apply in any case where the author of any substantial part of the English-language material is neither a citizen nor a domiliciary of the United States. Under the present law, the manufacturing requirement applies to the English-language works of foreign citizens and domiliciaries of foreign countries unless either (a) the work is authored by a citizen or subject of a foreign country adhering to the UCC and the work is not first published in the United States, or (b) the work is first published in a foreign country adhering to the UCC.

(2) With respect to works subject to the manufacturing clause, it raises from 1,500 to 3,500 the number of copies manufactured abroad that can be imported into the United States.

(3) It provides that the import restriction applies only to works preponderantly in the English language. This clarifies the question existing under the present law as to whether a bilingual or multilingual work is subject to the requirement of manufacture in the United States. The bill makes it clear that such works would in general not be subject to this requirement .

(4) It eliminates the specification that a foreign language book or periodical be of foreign origin to be exempt from the "manufacturing clause". Hence, it would not apply, as it does now, to a foreign language work of a United States citizen.

(5) It provides for the elimination of the manufacturing requirement as it applies under the present law to certain illustrations within a book and to separate lithographs or photo-engravings.

The Department believes that these changes represent a substantial liberalization of the existing "manufacturing clause". They tend to minimize its impact on trade in books originating in other countries, and to confine its application to individual instances of large-scale manufacture of literary works originating in the United States. Consequently, the Department believes that the revised "manufacturing clause" in the new bill constitutes a reasonable response, in the present-day climate of world trade relationships, to the desirable objective of moving multilaterally and unilaterally to reduce trade barriers.

Section 105. Subject matter of copyright: United States Government works

A third and last area of the bill upon which the Department would like briefly to comment has to do, not with its basic foreign relations interests, but with its interest, as one of the government agencies, in the question of copyright on gov. ernment works and publications. Proposed Section 105 gives clear statutory expression to the existing general ban on copyright in a "publication of the United States Government". Section 105 provides that there shall be no exemption from the ban on copyright for a "work of the United States Government" which is defined as "a work prepared by an officer or employee" of the Government "within the scope of his official duties or employment". We support this clarification. In so far as the question of copyright is concerned, the Department is not a large scale producer of works designed for dissemination to the public. But on occasion employees of the Department produce some works which are appropriate for public dissemination. We foresee few if any instances when the absence of possible copyright protection for these works would pose a problem.

Section 105 would make one change in the existing law on government copyright, in that it would provide that "copyright protection *** is not available for any work of the United States Government", whether published or unpublished. Under present law, the Government may have some literary property rights in unpublished works. It appears reasonable that, since there is no copyright protection in published government works there should likewise be no protection in unpublished works. Appropriate remedies on behalf of the Govern ment for unauthorized release of unpublished government material need not in. clude the economic remedies incident to copyright.

The Department has been advised by the Bureau of the Budget that from the standpoint of the Administration's program there is no objection to the submission of this report.

Sincerely yours,

DOUGLAS MACARTHUR II,

Assistant Secretary for Congressional Relations

(For the Secretary of State).

THE GENERAL COUNSEL OF THE TREASURY,
Washington, D.C., May 24, 1965.

Hon. JAMES O. EASTLAND,

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

DEAR MR. CHAIRMAN: Reference is made to your request for the views of this Department on S. 1006, "For the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes."

Comments on those provisions of the bill of interest to this Department are set forth below.

Section 8 of title 17 and section 58 of title 44 of the United States Code forbid copyrights in "any publication of the United States Government" or "Government publication" but do not define these terms. Section 105 of the proposed legislation would continue this prohibition and, in addition, would define a "work of the United States Government" as "a work prepared by an officer or employee of the United States Government within the scope of his official duties or employment." This definition should be of assistance to agencies in reaching more uniform interpretations in this area than have been possible under the present law. This section would also clarify the Government's right to receive and hold copyrights transferred to it by assignment, bequest or otherwise, thus obviating an uncertainty in the present law.

For some time the Department has been of the opinion that the Bureau of Customs should be relieved of the responsibility for deciding whether imported articles are piratical copies of legally copyrighted works as it is now obliged to do under section 106, 107, 108 and 109 of title 17. Section 602 of the bill would accomplish this objective by making the importation of copies or phonorecords of a copyrighted work without the authority of the copyright owner, except for certain specified purposes, an infringement actionable under section 501. Lawfully made copies could still be imported, however, if manufactured in accordance with section 601. This section would continue with minor modifications and subject to the usual exceptions the prohibitions against importations of certain works in the English language unless manufactured in the United States, but the

number which could be entered on an Import Permit issued by the Copyright Office would be increased to 3,500 copies. Exportation, seizure and forfeiture proceedings would remain the same as in present title 17. Section 106 of title 17, which prohibits the importation of any article bearing a false notice of copyright, has not been incorporated in the bill, thereby relieving the Bureau of Customs from making difficult decisions required under the section. The Secretary of the Treasury would be given additional authority under the bill to implement these revisions. He would be permitted by section 602 to provide regulations for the notification of the importation of articles that appear to be copies or phonorecords of legally protected works to persons claiming an interest in the copyright. Section 603 would authorize him to require a person seeking exclusion to obtain a court order enjoining importation or to furnish proof that the alleged copyright is valid and show that the entry of the material would be in violation of section 602. The Secretary could also require a bond of indemnity against any damages that might result from his actions. While these revisions would continue to require numerous administrative actions there would be a reduction in the complexities and difficulties in the decisions which the Bureau of Customs is presently required to make, and additional protection against liability because of any erroneous action.

The proposed revision would pose some problems in respect to the Internal Revenue Code. Under existing law, a copyright endures for a stated number of years and its statutory life is easily determinable. Sections 302 through 305 of the proposed legislation would introduce certain variables to be considered in determining the life of a copyright as income-producing property for purposes of computing depreciation under the income tax laws and in determining the period for recovering the costs of acquiring the copyright itself. It is not believed that the complexities which might result if S. 1006 were enacted would be such as to warrant objection by this Department to the changes relating to the period for which copyright endures.

The bill, if enacted, would necessitate a minor change in the Internal Revenue Code in that "copyright royalties" as defined therein for the purpose of taxing personal holding companies will need to be redefined in terms of the new Copyright Law. However, this amendment can be made when the bill is receiving consideration by the Congress.

The Department has been advised by the Bureau of the Budget that there is no objection from the standpoint of the Administration's program to the submission of this report to your Committee.

Sincerely yours,

(Signed) FRED B. SMITH, Acting General Counsel.

Mr. BRENNAN. Finally, Mr. Chairman, I would like to have incorporated by reference at this point in the record the studies prepared by the Library of Congress which were printed by the subcommittee and the reports of the Register of Copyrights for 1961 and 1965.

Senator MCCLELLAN. They may be received and made exhibit A for reference to the hearings that will ensue.

(The documents referred to and identified below will be found in the files of the committee.)

During the 86th Congress the Committee on the Judiciary, Subcommittee on Patents, Trademarks, and Copyrights, published a series of 11 committee prints containing 34 studies on "Copyright Law Revision," prepared under the supervision of the Copyright Office of the Library of Congress with a view to considering a general revision of the copyright law (title 17, United States Code). The following is a list of the studies:

First print:

1. The History of U.S.A. Copyright Law Revision from 1901 to 1954.
2. Size of the Copyright Industries.

3. The Meaning of "Writings" in the Copyright Clause of the Constitution.
4. The Moral Right of the Author.

Second print:

5. The Compulsory License Provisions in the U.S. Copyright Law.

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