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Following is the resolution which was adopted as a result of the report of Mr. Schulman's committee and presented to the house of delegates of ABA last Thursday afternoon at the annual meeting of the association in Miami and sets forth the position of ABA:

Resolved, That the American Bar Association approves the following principles as the basis for the revision of the United States copyright Act, Title 17, U.S.C.:

(1) A single Federal System of copyright;

(2) A basic term consisting of the life of the author plus fifty years after his death, with an extension of subsisting copyrights, and for works made for hire, the term should be seventy-five years from publication;

(3) The modification of the existing statutory license for the making and distribution of phonorecords of musical works to provide greater advantages to the copyright proprietor and provide a broader recovery against infringers;

(4) A form of reversion after thirty-five years, but permitting the continued use of derivative works made during the thirty-five year period; (5) Protection of sound recordings against unauthorized duplication; (6) Recognition of the doctrine of fair use;

(7) Elimination of the jukebox exemption;

(8) A relaxation of formalities as to notice consistent with reasonable notice and equitable treatment in the case of failure to comply;

(9) Recognition of divisible interests in copyright and of separate ownership thereof;

(10) Provision for judicial review of a determination by the Copyright Office;

(11) Protection of foreign works, both published and unpublished, only on the basis of treaty of proclamation.

And be it further resolved, That the American Bar Association opposes the following:

(1) United States Government ownership of copyright;

(2) Limitation of copyright by way of a manufacturing clause; and (3) Recognition of a certificate of registration as constituting prima facie evidence of the validity of the copyright.

The foregoing resolution was arrived at as a consequence of extensive study by the patent, trademark, and copyright section of ABA over the past 10 years, and particularly intensive study in the past 3 years. Symposia were presented in conjunction with and as part of our section meetings in 1962, 1963, and 1964, and on two occasions this year, including the Miami meeting last week, in which the principal provisions of the proposed legislation were considered and debated.

The first 10 items enumerated as approved in principle by the ABA are embodied in the bill before you. Item 11 is a variation on section 104 of the bill. Further, the matters disapproved in the ABA resolution are departures from the bill. The first item of the principles opposed would vary section 105 of the bill, the second item disapproved would eliminate section 601 of the bill, and the third item disapproved would vary section 409 (c) of the bill.

Senator MCCLELLAN. If I understood you correctly, there are only three particulars in which the resolution of the bar association challenges the provisions of the bill.

Mr. TOOMEY. There are four. This item 11 is a variation also. There are three propositions which are stated in disapproval of the bill. Item 11 is a departure from the bill.

Senator MCCLELLAN. This indicates to me, then, that you approve of about four-fifths of the bill.

Mr. TOOMEY. Yes, Senator.

Senator MCCLELLAN. Now, let us take the disapproval and ask you to state your reason briefly. You say you disapprove.

Mr. Diamond, if you wish, take your items 1, 2, and 3, where the bar association opposes, as has been identified here in this statement, and give us the reasons why, briefly.

Mr. DIAMOND. Yes, Mr. Chairman.

Let me preface my remarks, if I may, by saying that although this portion of the resolution is expressed in terms of opposition to certain principles, that does not necessarily mean that we are opposed to the bill, because the bill in some respects also follows this same line.

Specifically, as to item 1, "The U.S. Government ownership of copyright," the American Bar Association opposes that. It has been a tradition of our law-and you will find it in the present 1909 act which is now applicable-that there shall be no copyright on works of the U.S. Government, on the basic philosophical theory, if you will, that the same sovereign power of the U.S. Government which grants copyright should not grant any such exclusive right to itself in the products of its own officers and employees in the scope of their official duties.

The bill now before you, in section 105, continues that same basic approach, but with certain specific limitations. There is a definition in section 105 of the bill before you which says that

A "work of the United States Government" is a work prepared by an officer or employee of the United States Government within the scope of his official duties or employment.

The supplemental report of the Registrar of Copyrights explains that the section 105 is still limited in order to make it possible for works, for example, produced by an independent contractor under an arrangement with the Government to be subject to copyright protection.

The American Bar Association resolution simply states the broad general principle of opposition to the U.S. Government ownership of copyright. On this specific detail of whether it is proper to define the work of an independent contractor under a Government contract as a work of the U.S. Government, there was no clear consensus of the American Bar Association, and the resolution therefore does not speak on that specific issue.

Senator MCCLELLAN. What about the Government receiving transfers of assignments of copyright? Do you oppose that provision?

Mr. DIAMOND. The specific detail, again, has not been passed upon by the American Bar Association, Mr. Chairman.

Senator MCCLELLAN. Then, how do you take a position of opposition, when you say nothing is specific?

Mr. DIAMOND. The entire resolution was deliberately drafted in terms of general principles. I don't think there is a single item which goes into the type of detail about which you are now inquiring—not that I am objecting, of course, to your inquiry.

Senator MCCLELLAN. Now, let us take section 105 as an illustration. Would you strike that entire section?

Mr. DIAMOND. Certainly not, Mr. Chairman. We are in favor of the principle on which section 105 is based.

Senator MCCLELLAN. Then, what would you substitute for it?

Mr. DIAMOND. We have no substitute to offer at this stage, because the American Bar Association, Mr. Chairman, speaks only in terms

of an official resolution which is adopted by the association, and this resolution does not refer to any specific clauses or sections of the bill. It was purposely drafted in terms of general principles, in order to bring before this committee the views of the American Bar Association on what we thought were the basic principles which were appropriate to underlie this proposed revision of the entire copyright

statute.

Senator MCCLELLAN. All right, let us reverse our positions at the moment. Just suppose that I am down there testifying what you are saying and you are up here listening as I am. Tell me what you mean now by saying opposition, when you tell me there is nothing specific. I do not quite follow that. You say that you have passed a resolution in which there is opposition, and yet you say you are not in opposition. I do not understand it. Please clarify it for us.

Mr. DIAMOND. Well, Mr. Chairman, it is unfortunate that we should fasten perhaps onto the first item on this particular one, because it is an unusual category, and I would like very much to help explain it if I may.

The bill itself is opposed to the U.S. Government's ownership of copyright, so that when the American Bar Association

Senator MCCLELLAN. It says so in the first sentence:

Copyright protection under this title is not available for any work of the United States Government * * *.

Mr. DIAMOND. That is correct.

Senator MCCLELLAN. It says that in the very first sentence.

Mr. DIAMOND. That is correct, Mr. Chairman. Therefore, when the American Bar Association resolution opposes the U.S. Government ownership of copyright, it is agreeing with the bill.

Senator MCCLELLAN. Well, then, it is not in opposition. That is what confuses me, when you say you are in opposition and then you say you agree.

Mr. DIAMOND. Well, we are in opposition to this principle, with which the bill is also in opposition.

Senator MCCLELLAN. Oh, well. You favor the bill, then, do you?

Mr. DIAMOND. We favor the principle of the bill on the item with respect to the U.S. Government ownership of copyright. It comes under the list of principles which we oppose, and the bill also opposes that particular principle.

Senator MCCLELLAN. Then, you agree with the bill?

Mr. DIAMOND. We do agree with the bill in general terms, Mr. Chairman. As I say, the resolution is not as specific as the bill, but on the item of U.S. ownership of copyright, we do agree with the bill.

Senator MCCLELLAN. You agree with those two provisions, then, in section 105?

Mr. DIAMOND. Well, now, to that I have to answer "No," Mr. Chairman, because as I say, we agree with the general principle. But this resolution does not refer to any specific section any place in the bill.

Senator MCCLELLAN. Well, most of the time, when people come up here and testify about a bill and use the word "oppose," they point out something to which they are opposed. I am having a little difficulty trying to find out what this opposition means.

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Mr. DIAMOND. Well, Mr. Chairman, we will have to plead guilty or, at least, nolo contendere, perhaps, to the rhetorical difficulty here which I think exists.

Senator MCCLELLAN. I am not trying to make it difficult. I am just trying to find out whether you are opposed and you have some constructive suggestion. If you do, let us have it. That is all.

Mr. DIAMOND. Well, Mr. Chairman, let me go back, if I may, to the first item in which there is a variation between the principles of the bill and, for instance, of this resolution.

Senator MCCLELLAN. That is No. 11?

Mr. DIAMOND. Which is No. 11. Perhaps this will help illustrate the position of the American Bar Association.

I understand that fully, what you have just said, Mr. Chairman, that ordinarily when a witness appears before this committee, or any committee of this kind, he is prepared to take a specific position pro or con, and may have specific language to suggest. Well, for good or for ill, the American Bar Association is not in a position to operate in precisely that manner, because it is bound by its own constitution and bylaws to speak only with a single voice, which requires the formal adoption of the resolution. And this is our resolution of principles.

As I said before, it is deliberately phrased in terms of broad general language, deliberately in order to avoid getting into detail, some of it controversial, as between various members of the association itself.

Senator MCCLELLAN. All right. I am trying to understand. You are not making any specific objection, then; you are not requesting any change of language in section 105?

Mr. DIAMOND. That is correct, Mr. Chairman.

Senator MCCLELLAN. All right.

Mr. DIAMOND. Now, with regard to item 11, before the "further resolved" paragraph, that is, the first of the list which Mr. Toomey points out contains a variation in our set of principles from those on which this bill is actually based, and which deals with the protection of foreign works

Senator MCCLELLAN. Where is that in the bill? Can you identify it?

Mr. DIAMOND. That is section 104.

Senator MCCLELLAN. 104?

Mr. DIAMOND. Yes, sir.

Senator MCCLELLAN. Now, this modification that you speak of in the

Mr. DIAMOND. The modification refers only to subparagraph (a) of section 104 in the bill. Section 104(a) of the bill would grant protection under this statute to unpublished works, without regard to the nationality or domicile of the author.

The position of the American Bar Association is that there should not be any distinction between unpublished and published works for this purpose, so that the protection of foreign works, whether published or unpublished, should be only on the basis of treaty or procla

mation.

Senator MCCLELLAN. Well, then, do you want that to read, "whether published or unpublished"? Is this a modification that you are recommending?

Mr. DIAMOND. Well, in order to accomplish the purposes of this resolution

Senator MCCLELLAN. In order to accomplish what you would like to have, tell me how you would revise that subsection.

Mr. DIAMOND. I am not prepared to give you the exact language, Mr. Chairman. But the idea would be to eliminate the subparagraphs (a) and (b), combine them into one paragraph, and have it applicable to both unpublished and published works.

Senator MCCLELLAN. Very well.

All right, what is the next one?

Mr. DIAMOND. The next one is "United States Government ownership of copyright," which we have already discussed, where I have explained, I hope to your satisfaction by now, that although the resolution opposes it, this is also a principle on which the bill is based, because the bill also opposes it.

Senator MCCLELLAN. In other words, it was not necessary to say it? Mr. DIAMOND. Well, we wanted to go on record, Mr. Chairman, as agreeing with the principle of the bill.

Senator MCCLELLAN. All right.

Mr. DIAMOND. It happened to be a negative principle, and that is why it wound up in this list of items which we oppose.

Senator MCCLELLAN. All right. No. 2, then, under that title.

Mr. DIAMOND. Yes. "Limitation of copyright by way of a manufacturing clause." This relates to section 601 of the bill.

Senator MCCLELLAN. 601?

Mr. DIAMOND. Yes, Mr. Chairman.

The American Bar Association opposes this provision in toto. Senator MCCLELLAN. Now we have something here that we can really put our finger on, have we not?

Mr. DIAMOND. I think that is correct.

Senator MCCLELLAN. 601. All right.

Do I understand this means that you oppose all of section 601 ?

Mr. DIAMOND. We certainly oppose the principle of section 601. In order to answer your specific question, Mr. Chairman, I would have to go through it word by word.

Senator MCCLELLAN. I see.

Mr. DIAMOND. But we do oppose the principle.

Senator MCCLELLAN. You not only oppose the principle, you oppose the whole section because it deals with the principle?

Mr. DIAMOND. That is correct.

Senator MCCLELLAN. But if you were going to pass legislation, you would have to indicate what should be taken out and suggest the changes you would like to have made.

Mr. DIAMOND. Yes, Mr. Chairman.

Senator MCCLELLAN. But generally, you oppose it and would like to have it stricken from the bill.

Mr. DIAMOND. That is correct, Mr. Chairman.

Senator MCCLELLAN. Very well.

Mr. DIAMOND. The only reservation in my answer was that there may be a subporagraph in here which is not directly related to limitation of copyright.

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