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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 Îife plus 50 years. These changes, which we believe are a fundamental 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";
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 tin-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 copies of the materials they need, cut off a large part of the revenue to authors and publishers that induces the creation and publication of those materials. We believe that a statutory recognition of fair use would be sufficient to serve the reasonable needs of education with respect to the copying of short extracts from copyrighted works, and that the problem of obtaining clearances for copying larger portions or entire works could best be solved through a clearinghouse arrangement worked out between the educational groups and the author-publisher interests.
This problem, like the related problems of library photocopying, educational broadcasting, and computer uses of copyrighted material, has arisen because of the development of new marvels in the technology of communications.
A report dated February 4, 1965, from the Office of Federal Education Activities, Federal Education Programs Branch, Office of Education, Department of Health, Education, and Welfare, states that the estimated obligations of Federal funds for education and training and for the support of academic science” is more than $6 billion for fiscal 1965 and close to $9 billion for fiscal 1966. Obviously, some of these enormous sums will be used to acquire new devices intended for the reproduction of copyrighted works. In my opinion the copyright law should not only shield authors and publishers from the potential destruction of their educational markets through the widespread use of these devices, but it should insure that they receive a fair compensation for the use of their works. On the other hand, if a satisfactory clearinghouse arrangement cannot be worked out, I believe there is merit in the argument that individual teachers should not be faced with difficult clearance procedures and the dangers of statutory liability for the occasional copying of excerpts for limited classroom distribution. It will take some doing, but I am convinced that the legitimate interests on each side of
this controversy can and should be balanced for the ultimate benefit of both.
(2) The jukebox exemption.—The issues raised by the present law's exemption of performances on coin-operated machines are so familiar by now that they do not require extended comment. It should be noted, however, that during the recent hearings on this bill in the House, the possibility of another solution to this problem was suggested in the form of a special performance fee, to be paid in addition to the mechanical royalty, which would free a particular record from any further royalties for jukebox performances.
As in the past, objections were raised to this alternative as they have been raised to every alternative suggested. Here, they were raised on the ground that record companies should not be forced to maintain double inventories or to act as involuntary collection agents. It has been pointed out, however, that this solution would not necessarily have to involve the record manufacturer in the payment procedure. Alternative methods, such as the purchase from a performing rights society or other copyright owner of stamps at a fixed rate for affixation on jukebox records, might be worked out under statutory safeguards. Here again, the Copyright Office is not committed to any particular formula for working out this problem, but urges that all concerned give the possibility of alternative proposals their careful and openminded consideration.
(3) Community antenna systems.—The problem of whether community antenna systems, which transmit commercial broadcasts over wires into subscribers' homes, should be liable for the use of copyrighted material included in the broadcasts is one of the most difficult this committee will have to face. It is complicated by uncertainty as to what the present law on this question is. The issue is now before the courts in several cases, but it may not be finally resolved for some time.
Without taking any position as to what the present law may turn out to be, the Register's supplementary report concluded that there are valid arguments on both sides of the question, but that on balance the copyright owner should be compensated for the use of his works by CATV systems. The report added, however, that the problem of how a CATV operator would go about getting advance clearances for all of the coprighted works he uses is a real one which cannot be ignored.
The recent action of the Federal Communications Commission in taking jurisdiction over community antenna systems for certain purposes has raised speculation as to whether the copyright problem might not be solved by requiring the CATV operator to obtain permission from broadcasters to transmit their signals, thus automatically clearing any copyrighted material included in the broadcast. While this possibility has not been debated publicly as far as I know, I am inclined to doubt whether it would meet with much favor from either the copyright owners or the CATV operators.
(4) The manufacturing requirements. The present law requires, with a number of exceptions and qualifications, that English-language books and periodicals must be manufactured in the United States in order to be entitled to full-term copyright protection. The main impact of this requirement today falls on works by American authors, which in some cases are thrown into the public domain as a result of the failure to comply with the law's strict requirements. For example, today, if this clause is violated, the author loses not only is publishing rights but his motion picture rights, which have no real connection with the book manufacturing industry.
The bill would retain a manufacturing requirement, but with substantial changes that would make its results less drastic. The bill's provision appears to be generally satisfactory to the American book manufacturing interests, but the book publishing industry favors complete elimination of the requirement. The publishers are particularly concerned lest the statute be construed as prohibiting their present practice of printing American editions from imported “reproduction proofs" prepared from type composed abroad.
As I have said many times in the past, I believe that in principle none of the exclusive rights of a copyright owner should be made to depend upon compliance with manufacturing requirements. However, in an effort to compromise this extremely difficult question, we have gone forward with a provision that would greatly liberalize the requirements now in effect and that would preserve the present language supporting the use of “reproduction proofs.” Efforts to achieve à further compromise to resolve this issue more satisfactorily have continued until recent weeks, but so far have not borne fruit, and apparently have broken down.
I should like to point out that the recent hearings on August 11 and 12 in the House indicated widespread support, and really almost no opposition, to the proposed provisions of the manufacturing clause