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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that "copyright protection *** is not available for any work of the United States Government", whether published or unpublished. Under present law, the Government may have some literary property rights in unpublished works.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that, since there is no copyright protection in published government works there should likewise be no protection in unpublished works. Appropriate remedies on behalf of the Govern ment for unauthorized release of unpublished government material need not in.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,


Assistant Secretary for Congressional Relations

(For the Secretary of State).

Washington, D.C., May 24, 1965.


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.

6. The Economic Aspects of the Compulsory License.

Third print:

7. Notice of Copyright.

8. Commercial Use of Copyright Notice.

9. Use of the Copyright Notice by Libraries.

10. False Use of Copyright Notice.

Fourth print:

11. Divisibility of Copyrights.

12. Joint Ownership of Copyrights.

13. Works Made for Hire and on Commission.

Fifth print:

14. Fair Use of Copyrighted Works.

15. Photoduplication of Copyrighted Material by Libraries.

16. Limitations on Performing Rights.

Sixth print:

17. The Registration of Copyright.

18. Authority of the Register of Copyrights to Reject Applications for Registration.

19. The Recordation of Copyright Assignments and Licenses.

Seventh print:

20. Deposit of Copyrighted Works.

21. The Catalog of Copyrighted Entries.

Eighth print:

22. The Damage Provisions of the Copyright Law.

23. The Operation of the Damage Provisions of the Copyright Law: An Exploratory Study.

24. Remedies Other Than Damages for Copyright Infringement.

25. Liability of Innocent Infringers of Copyright.

Ninth print:

26. The Unauthorized Duplication of Sound Recordings.

27. Copyright in Architectural Works.

28. Copyright in Choreographic Works.

Tenth print:

29. Protection of Unpublished Works.

30. Duration of Copyright.

31. Renewal of Copyright.

Eleventh print:

32. Protection of Works of Foreign Origin.

33. Copyright in Government Publications.

34. Copyright in Territories and Possessions of the United States.

87th Congress, House committee print, "Copyright Law Revision," Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, July 1961.

89th Congress, House committee print, "Copyright Law Revision, Part 6," Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill, May 1965.

Senator MCCLELLAN. Mr. Brennan, please call the first witness. Mr. BRENNAN. The first witness is Mr. L. Quincy Mumford, Librarian of Congress.

Senator MCCLELLAN. Mr. Mumford, come around, please, sir.

STATEMENT OF L. QUINCY MUMFORD, LIBRARIAN OF CONGRESS Senator MCCLELLAN. Mr. Mumford, do you have a prepared statement?

Mr. MUMFORD. Yes, Mr. Chairman, I do.

Senator MCCLELLAN. Would you like to read it?

Mr. MUMFORD. It is brief, and if I may, I would be glad to present it by reading it.

Senator MCCLELLAN. We shall be glad to have you proceed in that way.

Mr. MUMFORD. My name is L. Quincy Mumford, and I am the Librarian of Congress. I consider it a great honor to appear before your subcommittee as one of the opening witnesses in support of the bill for general revision of the copyright law.

As you know, the copyright system of this country finds its origin in the constitutional provision empowering Congress to secure to authors for limited times the exclusive right to their writings. Congress exercised its authority to enact copyright legislation in its very first session in 1790, and since then the law has been completely revised only three times: in 1831, 1870, and 1909. It has been nearly a century since the second revision, when the Library of Congress was entrusted with administration of the American copyright system, and it is now more than 56 years since the last general revision of the statute.

The Library of Congress in a great measure owes the strength and variety of its collections to the copyright registration system. The copyright law, through its requirement for the deposit of copies, has enriched the national heritage in a most practical and immediate way. But far more important to the Library and to the public is the role of the copyright law in the creation of our country's literature, music, and art. There would be no Library of Congress as it now exists but for the creative endeavor of hundreds of thousands of individual authors, and in a great many cases there would have been no such creative endeavor but for the incentive of copyright.

In my 10 years as Librarian of Congress I have seen remarkable changes in the methods of disseminating, storing, and communicating information, and it seems clear that we are on the threshold of even more revolutionary developments. Our archaic copyright law must not only be revised to take account of the changing methods by which authors' works reach the public; it must also be revised in such a way that, in furtherance of the constitutional mandate, authorship is encouraged and fairly compensated. The task of copyright law revision in this country is therefore overdue, and the longer it is delayed the more serious will be the loss for future generations.

I can assure you from personal observation that this bill was drafted with painstaking thoroughness and an openminded effort to reconcile differences and seek solutions to the many complex problems in this field. The bill is a tribute to the many years of dedicated endeavor of Arthur Fisher, the late Register of Copyrights, who planned the revision program, and Abraham L. Kaminstein, the present Register, who has carried on this work and who will be your next witness. As these hearings proceed, you will no doubt hear some differences of opinion on particular issues, but I hope that they do not obscure the notable accomplishment that this bill represents. Mr. Kaminstein has said that in his experience there are no irreconcilable issues in copyright, and this bill reflects not only his belief in this principle but also the truth of it.

As you are well aware, copyright law is a highly technical subject, a subject in which I cannot claim to be an expert. But like many technically complex matters, the basic principles underlying it are not so obscure. For copyright, one of these principles is that an effective copyright law is a prerequisite to the promotion of cultural creativity, and that future generations will draw on the creativity of today as we have drawn on that of yesterday. Therefore, the bill before you today


has far-reaching implications, and may well be one of the most significant pieces of legislation to come before this Congress.

Mr. Chairman, I respectfully urge your favorable consideration of S. 1006. Thank you very much for the privilege of appearing before


Senator MCCLELLAN. Mr. Mumford, you have studied this bill carefully?

Mr. MUMFORD. Mr. Chairman, as I said, I am not an expert, but I have spent considerable time in discussing various points, issues involved in the bill with the Register. I think I have some general understanding of the implications of its major parts.

Senator MCCLELLAN. Do I understand, then, your testimony is, in effect, a general endorsement of the bill, of its objectives, and you are not undertaking to say that the mechanics of it are adequate or inadequate to accomplish those objectives, or that they are the best approach to those objectives?

Mr. MUMFORD. I would say that my feeling is one of endorsing the bill as a whole, including the basic principles as well as the details and mechanics of implementation.

Now, there may need to be modifications in the light of differences of opinion, as will be brought out here in these hearings, but it represents the best thought of a great many people, people on our copyright staff who have conducted studies and spent many hours-well, I should not say hours, because these studies have gone on for years, as you know.

Senator MCCLELLAN. The point I am making is, the bill was introduced some 6 months ago.

Mr. MUMFORD. Yes, sir.

Senator MCCLELLAN. As of that time, possibly you and others who conferred about the bill and who have actually developed it may have thought that you had covered everything adequately, or that the bill as drafted was most acceptable and desirable, but subsequently I wonder whether you have heard of some opposition to the bill or to any provisions therein which may have caused you to reconsider any part of it and to have any suggestions now for revision.

Mr. MUMFORD. I have heard of some expressions of difference of opinion on certain points, and I think some of them will be expressed here this morning. There are none that I have heard which I would concur in; I do not agree with them.

Senator MCCLELLAN. That is the point I wanted to make. So far, in the discussions that have emanated subsequently to the introduction of the bill, there has been nothing come to your attention that would cause you to suggest any modification of the bill?

Mr. MUMFORD. No, sir, not at the present time.

Senator MCCLELLAN. In other words, you are still of the opinion that this bill as drafted and as originally introduced is substantially in accord with your best opinion as to what should be done?

Mr. MUMFORD. I think so, Mr. Chairman.

Senator MCCLELLAN. Very well, Mr. Mumford.

Does counsel have any questions?

Mr. BRENNAN. I have no questions, Mr. Chairman.
Senator MCCLELLAN. Thank you very much.
Mr. MUMFORD. Thank you.

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