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content that may come up. However, I think it would be a mistake to open these hearings with a detailed summary of individual sections. Instead, at this point, I will try to answer rather briefly four general questions:

1. Why does the copyright law need revising?

2. How was this bill developed? (I have already indicated the answer to this question.)

3. What are the major provisions of the bill? 4. What disputes still need to be settled?

THE NEED FOR GENERAL REVISION

To say that the present copyright statute was enacted in 1909 is almost enough of an answer to why a new law is needed. The basic premise of that statute, like all those preceding it, was that the author's principal remuneration would come from the sale of printed copies. This premise has been engulfed and swept away by the 20th-century revolution in communications: theatrical motion pictures, high-fidelity phonograph records and audio tape recordings, radio, jukeboxes, wire communications, television, photocopying equipment, video tape recordings, electronic computers, communications satellites-the list grows endlessly. Just as the first copyright laws were a response to an earlier revolution brought on by the development of the printing press, so must a copyright statute today respond to the challenge of a technology based on instant communication and reproduction of an author's works throughout the world.

There are those, as there always have been, who ask why there should be a copyright law at all. They tend to confuse the monopoly granted by the patent law and the completely different protection afforded under copyright. They argue that authors will write whether they are paid or not: "If they need to make a living, why don't they go out and get a job?"

The basic answer to these arguments is found in our Constitution itself: Congress is given the power "*** To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The basic purpose of copyright protection is the public interest, to make sure that the wellsprings of creation do not dry up through lack of incentive, and to provide an alternative to the evils of an authorship dependent upon private or public patronage. As the founders of this country were wise enough to see, the most important elements of any civilization include its independent creators-its authors, composers, and artists-who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy. A strong, practical copyright law is the only assurance we have that this creative activity will continue.

The drafters of the 1909 act had these aims in view, but for various reasons the statute as enacted fell considerably short of the goal. There is little point now in detailing the ambiguities, obscurities, omissions, and paradoxes of a statute which, after 56 years, still presents dozens of unanswered questions. Let me observe only that a statute which was hastily drawn to begin with has now become hopelessly antiquated.

DEVELOPMENT OF THE BILL

In the hearings on this bill held before Subcommittee No. 3 of the House Judiciary Committee earlier this year a question was raised as to why, in view of the fast-evolving communications technology, there have not been more frequent revisions of the copyright law. If there is a single answer to this question, I believe it is that there are so many interrelated creator-user interests in the copyright field, and they present such sharp conflicts on individual issues, that the consensus necessary for any general revision is extremely difficult to achieve. Examples of this difficulty are found throughout the concentrated efforts to revise the 1909 act which went on continuously between 1924 and 1940 and which all ended in failure and futility. Realizing fully what copyright law revision is up against, Arthur Fisher, my predecessor as Register of Copyrights, planned a program that would be based on a thorough knowledge of all the issues and a painstaking effort to resolve as many disputes as possible before a bill reached the stage of congressional hearings. It took us 10 years, but the program he planned has been carried out to the best of our ability.

The revision program started with the preparation and publication of 35 studies of the principal issues in revision, 34 of them printed by this committee. These were followed by the Register's Report on General Revision of 1961, which analyzed these issues and made detailed recommendations concerning them. Then followed a series of 12 panel meetings, numerous consultations, and a large volume of correspondence, with specialists and interested parties, during which a draft bill gradually emerged. In 1964, a revision bill was introduced in the 88th Congress for the purpose of comment and discussion, and following further revisions the present bill was introduced in February 1965. In May of this year the Copyright Office issued the Register's Supplementary Report on General Revision, which explains in some detail the development, meaning, and thinking behind individual provisions of the bill. The report, the supplementary report, transcripts of the meetings, and comments have been printed by the House Committee on the Judiciary.

The bill as it has emerged is the product of intensive and extensive critical scrutiny over a considerable period of time. On the whole I believe it is technically sound and that, although improvements can still be made in language and structure, in general it is as clear and concise as the inherently complex subject matter permits. On matters of substance I regard the bill as a genuine improvement over the present law, and one of its strengths is that it is neither an "author's bill" nor a "users' bill." A number of its provisions represent carefully worked-out compromises which, while not especially welcome to either side on a particular issue, have proved a satisfactory way of balancing the interests. As a result, the bill has received gratifyingly widespread and strong support.

I hasten to add, of course, that not all differences have been resolved. Several serious and important issues remain unsettled, and they are certain to be hotly debated as these hearings proceed. But in listening and evaluating the arguments on both sides I urge you to keep two vitally important points in mind:

First, none of these issues is irreconcilable. Our experience over the past several years has shown that patient exploration of alternatives can disclose a solution to even the most sharply drawn dispute. The hearings before Subcommittee No. 3 of the House Judiciary Committee have already pointed the way to possible compromises on several controversies.

Second, none of these issues goes to the heart of revision. So far, at least, the opposition to the bill has been directed to particular provisions rather than to the basic idea of revision or to the bill as a whole. This does not mean that the issues in dispute can be avoided, but it does permit them to be considered individually.

PRINCIPAL PROVISIONS OF THE BILL

Summarizing its provisions very generally, the bill would expand the subject matter of copyright to include, not only all categories of works now copyrightable, but also "pantomimes and choreographic works" and "sound recordings." The prohibition against copyright in Government publications would be retained, but the provisions on the protection of foreign works would be liberalized to some extent. Some of the principal disputes over the bill derive from the provisions setting forth the exclusive rights of the copyright owner. The general approach has been to mark out the perimeter of copyright in broad terms, and then to define the scope of copyright and specify its limitations in particular situations and for particular kinds of works. The important doctrine of "fair use" is specifically mentioned as a limitation on the copyright owner's exclusive rights, but without attempt at definition.

The bill would drop the present "for profit" limitation on certain performing rights, but would substitute specific limitations for classroom activities, educational broadcasting intended for instructional use in schools, performances during religious services, and certain performances for educational, religious, or charitable purposes. There is no exemption for transmission by a community antenna service under the bill, but certain other secondary uses of broadcasts would be freed from the copyright owner's control.

A new and controversial provision would permit a broadcasting organization to make "ephemeral recordings" for use in its own transmissions under certain conditions. The compulsory licensing provisions for the making of sound recordings would be liberalized, and the maximum rate under the statute would be raised from 2 cents to 3 cents. The jukebox exemption would be removed, and the exclusive rights accorded to sound recordings, while including the right to prohibit unauthorized duplication, would not include rights of public performance.

Perhaps the most significant and far-reaching provisions of the entire bill are those dealing with the term of copyright. Instead of the present dual system of protection of works under the common law before they are published and under the Federal statute after publication, the bill would establish a single system of statutory protection for all works, whether published or unpublished. And instead of the present term of 28 years from first publication, renewable for a second. period of 28 years, the bill would provide a basic term of the author's life plus 50 years. These changes, which we believe are a funda

mental and essential part of the revision program, are the result of a number of factors:

1. Life expectancy has increased by more than 20 years since 1909. More and more authors find their works falling into the public domain during their life, at the very time when they need them most to provide for their old age and for their dependents.

2. It is important for the revised term provisions to do away with the present system of copyright renewal, which is a nightmare of complexity and which frequently results in the inadvertent loss of protection.

3. The most important single concept under the present law, that of "publication," is based primarily on the public distribution of printed copies. With the development of many new methods for disseminating works to the public, the concept of "publication" has become increasingly obscure and inadequate as the starting point of statutory copyright.

4. A uniform national term of the life of the author plus 50 years is prevalent throughout the world and, in an age when works travel across boundaries in the twinkling of an eye, it is highly desirable to establish a uniform term internationally. Life-plus-50 years is roughly equivalent, on the average, to a term of 75 years from publication, and is not too long in view of the increased longevity of authors. There may be uncertainty in some cases as to when an author died; computing the term on the basis of the author's death has not been a major problem in other countries, and would be solved for all practical purposes by the system of presumptions established in the bill. The present law contains a number of highly technical requirements concerning copyright notice, registration, and deposit, and the recording of assignments which are not only burdensome and difficult to understand but which, in too many cases, result in a complete loss of copyright protection. The bill would abolish some of the unnecessary features of these requirements. With respect to those it retains, it would reduce the drastic consequences of a mistake, and would make the requirements as simple and flexible as possible. It would also make possible a "reversion," under which an author (or his widow and children) could terminate any grant of rights the author had made after 35 years, thus shielding him and his family against unremunerative transfers. The bill would retain a manufacturing requirement, but with substantial changes that would make its results less drastic.

MAJOR ISSUES STILL TO BE RESOLVED

On the basis of the comments and testimony on the 1965 bill so far, I should like to single out five major issues which are still in dispute and about which your subcommittee is certain to hear at length:

1. Education and "fair use";

2. The jukebox exemption:

3. Community antenna systems;

4. The manufacturing requirements; and
5. The compulsory licensing rate.

I do not mean to suggest, of course, that these are the only questions left to be resolved in copyright revision. During these hearings you will undoubtedly hear testimony concerning copyright protection for Government works, the scope of the "ephemeral recording" exemption,

the question of performing rights in sound recordings, and other matters of substance. The five issues I have named, however, are those on which the sharpest conflicts have arisen.

Some opposition has also been expressed to the proposed copyright term of the life of the author plus 50 years. I have not included this among the "major issues still to be resolved" for several reasons: because the provision is one of the foundation stones of the entire structure and content of the bill as it now stands; because there is no provision of the bill on which the support of the proponents of copyright law revision is stronger or more nearly unanimous; and because the opposition to the provision appears for the most part to be isolated or of less than primary importance to the opponents.

(1) Education and "fair use."—A new and important issue in copyright law revision emerged from our discussions only a little more than a year ago: what uses can be made of a copyrighted work for nonprofit educational purposes without the authority of the copyright owner? This issue is notable not only because its implications for authorship, publishing, education, and scholarship can be far reaching, but also because each side in the controversy performs a vital public service which contributes to the other. Despite substantial reservoirs of good will and an obviously sincere desire to seek solutions on both sides, oversimplifications and misunderstandings have hampered efforts to work out solutions so far.

At the outset there are three points which I believe need to be emphasized:

(1) The bill would in no way whatsoever diminish the privilege that schools now have under the present law with respect to classroom uses of copyrighted material. Anything that can be done under the doctrine of fair use now could be done under the bill; and the bill, even more clearly than the present law, completely exempts performances and exhibitions in classrooms and "in-school" instructional broadcasts.

(2) The doctrine of fair use, as the courts have evolved it, depends on a number of variable factors, including but by no mean confined to the commercial character of the use and the effect on the author's potential market. Assuming that the necessary factors are present, some limited uses for nonprofit educational purposes would undoubtedly be held to constitute fair use under both the present law and the bill, but each situation would have to turn on its own facts.

(3) While the present law contains a "for profit" limitation with respect to the right of public performance, the right of copying is an absolute right, unqualified by any "for profit" limitation. Any nonprofit copying under the present law would clearly constitute infringement unless the doctrine of fair use were applicable. The bill would not change this situation in any way.

I should like to emphasize these three points, because I want to make clear that what some of the educators seek is not possible under the present bill, but should be considered in the light of the new bill.

Viewed in the light of these three points it seems clear that the things the educators are seeking the privilege to do under the bill are things which, at least in some cases, would be infringements today. On this point we said, in the Register's Supplementary Report:

There is hardly any public need today that is more urgent than education, but we are convinced that this need would be ill-served if educators, by making

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