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 H.R. 4347 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,

FRED B. SMITH, Acting General Counsel.

DEPARTMENT OF THE AIR FORCE,
Washington, May 24, 1965.

Hon. EMANUEL CELLER,

Chairman, Committee on the Judiciary,
House of Representatives.

DEAR MR. CHAIRMAN: Reference is made to your request to the Secretary of Defense for the views of the Department of Defense with respect to H.R. 4347, 89th Congress, a bill for the general revision of the copyright law, title 17 of the United States Code, and for other purposes. The Secretary of Defense has delegated to the Department of the Air Force the responsibility for expressing the views of the Department of Defense.

The general purpose of the bill is stated in the title.

The Department of Defense recognizes the need for a general revision of the copyright law. This bill appears to resolve most of the vexing problems which exist under the present law adequately and fairly. However, the bill is deficient in three areas of major concern to the military departments. They are the areas of Government publications, performing rights, and damages in suits against the Government. Subject to the recommendations which follow, relating to these areas and to other less important matters, the Department of the Air Force, on behalf of the Department of Defense, urges that the bill be enacted into law.

SECTION 101-DEFINITIONS

Recommend that the definition of a "work made for hire" be amended at page 4. lines 24 and 25 to read "(1) a work prepared by an employee within the scope of his employment, or, in the case of an officer or employee of the United States Government, as part of his official duties; or". [Italics supplied to show new language.]

Comment: The recommended change will make it clear that a "work of the United States Government" is a "work made for hire." This is important in order to clearly bring a "work of the United States Government" within: (i) the

copyright ownership provisions of section 201(b) when copyright is permitted in an exceptional case under 105(c) (as proposed herein); (ii) the exception in section 203(a) to the reversion provisions of section 203; and (iii) the copyright duration provisions of section 302(c), regardless of whether the work is anonymous or pseudonymous.

SECTION 104-SUBJECT MATTER OF COPYRIGHT: NATIONAL ORIGIN, AND SECTION 301PRE-EMPTION WITH RESPECT TO OTHER LAWS

Comment: No revision to these sections is recommended, but it should be noted that heretofore it has been doubtful that an action based on common law copyright could be brought against the U.S. Government under 28 U.S.C. 1498(b) which refers only to "copyright in any work protected under the copyright laws of the United States". Since sections 104(a) and 301 (a) of the bill would provide for statutory copyright in what was formerly protected as a common law copyright, it appears likely that an action based on copyright in an unpublished work would now be possible against the United States unless 28 U.S.C. 1498 (b) is also amended to avert this possibility. Accordingly, we have recommended an amendment to 28 U.S.C. 1498 (b) in our comment on the transitional and supplementary provisions.

SECTION 105-SUBJECT MATTER OF COPYRIGHT: UNITED STATES GOVERNMENT WORKS

(a) Recommend that subsection 105 (a) be amended to read :

"(a) Copyright protection under this title is not available, except as specified in subsection (c), for any work of the United States Government * * language in italics).

(new

(b) Recommend that the definition in section 105(b) be changed to read: “(b) 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] as part of his official duties." [Italics and black brackets supplied to show changes in language.]

Comment: This change substitutes the words "as part of his official duties" for the words "within the scope of his official duties or employment." The change, together with the modification in the definition of "work made for hire" recommended above, will insure continuance of the existing standard for determining copyrightability and ownership of works prepared by Government employees.

"Part of official duties" has been established, both by case law and customary practice within the executive branch, as the proper test for whether or not a work is a “publication of the United States Government" under 17 U.S.C. 8. For example, Judge Holtzoff in the Rickover case (177 F. Supp. 601, 123 USPQ 252) indicated that a Government publication is one "prepared by a Government officer or employee as part of his official duties and issued by the Government as a public document." On appeal in the Rickover case (284 F. 2d 262, 127 USPQ 231) Justice Reed stated "The Copyright provision should be read, we think, to refer to publications commissioned or printed at the cost and direction of the United States." [Emphasis added.] Justice Reed also said that "statements called for by his official duties or explanations as guides for official action" are barred from copyright. As long ago as 1857, Judge Ingersoll said in Heine v. Appleton (11 Fed. Cases 1031): “Although the plaintiff was shipped as a master's mate, his chief duty was to make sketches and drawings for the Government" in holding that such sketches and drawings were Government property. In U.S. v. First Trust Company of St. Paul (251 F. 2d 686, 116 USPQ 172) the court stated that "If Clark's notes are the written records of a Government officer executed in the discharge of his official duties, they are public documents The Bureau of the Budget, in a letter dated December 3, 1964, to the Register of Copyrights, adopted the following interpretation of the statutory and case law for guidance to Federal agencies toward uniform practices in Government copyright matters.

"Works prepared for the Government by its officers or employees as part of their official duties are 'Government publications' within the copyright prohibition, regardless of whether they are published by the Government or privately." The phrase "scope of his official duties or employment" which the bill would use in defining “work of the United States Government" is a formless concept. It lends itself to a much more inclusive interpretation than does "part of his official duties." Even though the phrase "scope of employment" may be acceptable in determining the rights of employer and employee in private employment situ

ations it is susceptible to misinterpretation if applied in the Government employment relationship. For example, in a case where a Government employee has voluntarily written a book about his agency on his own time, a court might find the work uncopyrightable if the former test were adopted. It would probably reach the opposite and fairer result if "part of official duties" were the test.

The public benefits where Government employees have an incentive to write on their own time. If the definition of "work of the United States Government" were unduly inclusive or ambiguous, the possibilities of employees owning and copyrighting their work would be lessened. Their incentive to create would be diminished. The Government might also have difficulty in recruiting and retaining creative personnel.

Finally we might point out that there is no real risk that the "part of official duties" test will be too generous to the Government employee, giving him rights which should belong to the public. It is commonly understood that an employee's official duties, in this context, comprehend not only duties which are expressly assigned to him but also duties which are implied because of the nature of his employment and other circumstances.

(c) Recommend that section 105 be amended by adding the following subsection (c):

"(c) An administrative officer designated by the President shall by regulations establish standards and procedures pursuant to which copyright may, in exceptional circumstances, be secured in works of the United States Government. The regulations promulgated under this subsection shall

"(1) Permit copyright protection only in cases where because of the special nature of the works or the circumstances of their preparation copyright protection is needed for effective dissemination of the works or for other reasons in the public interest;

"(2) Provide for limiting the enforcement of copyright to that period of time and to those exclusive rights which are necessary and appropriate to the purposes for which copyright is secured in each case;

"(3) Provide that the head of the Government agency for which the work was prepared shall make a determination in each case that copyright protection is warranted and shall provide that a record accessible to the public shall be made of the basis for each such determination.

No copyright shall be secured under this subsection, or enforced, which shall interfere with the freedom of the press in the United States to publish or reprint matters of public concern; except that, in any case where publication by a private publisher is found to be necessary in the public interest, and copyright protection is required in order to secure such publication, copyright may be enforced to the same extent as if the work were not a work of the United States Government.

Comment: The suggested change incorporates the content of section 4 (c), H.R. 11947, 88th Congress, 2d session. It will permit copyright in Government works, including works published by the Government itself and works published privately at the behest of the Government, in those relatively few, exceptional cases where copyright is clearly in the public interest. The suggested change incorporates safeguards, in addition to those of H.R. 11947, which should have the effect of limiting the number of works for which copyright protection is sought, minimizing the impact of copyright in terms both of duration and exclusive rights, and averting any possibility that copyright might be used by Government agencies to defeat the public's right to know.

This Department sees the issues as rather narrow. Is there a need for authority to copyright some Government works? If the answer is "yes," can that authority be so defined that it will not unduly impinge on the interests of others, including the general public and the press?

The most obvious need is in connection with writings prepared by employees as part of their duties, particularly medical, scientific, and technical writings, which could potentially be published as books or as contributions to books. In some cases, publication by the Government itself is impossible or really impracti cable. Unless published privately, a meritorious work may not be published at all, or it may be ineffectively disseminated. In such cases, the facts of economic life require copyright. A private book publisher ordinarily will not put out the work unless he can count on copyright protection for a period of several years. The new 105 (c) suggested above would facilitate private publication in such

cases. It is anticipated that the regulations promulgated under 105 (c) would require impartiality in the selection of a publisher, and normal sound contracting practices. It is also anticipated that the duration and scope of the publisher's interest in the copyright would be limited and that the Government would retain sufficient control to satisfy its own needs and protect the public interest.

There are other situations in which the protection of copyright or of one of the exclusive rights comprehended by copyright might be useful to the Defense Department. For example, employees of the military departments sometimes create music, plaques, medallions, posters, organizational insignia, and other nonliterary works which through repetitive use and association acquire a quasiofficial, symbolic character. Experience has shown that such "symbolic" works may be used by commercial firms or by others in ways which are unfair to the public or to the Government. The departments have coped with similar problems by use of trademarks, design patents, and threat of Federal Trade Commission or criminal proceedings. If certain of these works could be published with copyright notice, the problem would be solved in a very satisfactory manner. Books and other works referring to foreign countries present certain problems. No publisher in the country involved may be willing to undertake the task of translation unless granted an exclusive right to bring out the foreign-language version. Furthermore, such a work may be distorted if translated and published by an inept or unfriendly publisher. Problems of this type have arisen from time to time in connection with official military histories. It is not clear whether a U.S. Government work, which is in the public domain in the United States by reason of the present proscription against copyright, could be considered in the public domain in foreign countries. If the Government could publish such works in the United States with a copyright notice and a statement that all rights are dedicated to the public except the right to publish translated versions in foreign countries, both problems could be solved.

Another important reason for permitting copyright in certain works of the U.S. Government is to qualify them for copyright protection in certain foreign countries. Where the foreign rights are to be exploited, the lack of at least nominal copyright protection (with the U.S. copyright licensed free to the American public) may foreclose copyright protection abroad. Article IV, paragraph 4 of the Universal Copyright Convention, states:

"No Contracting State shall be obliged to grant protection to a work for a period longer than that fixed for the class of works to which the work in question belongs, in the case of unpublished works by the law of the Contracting State of which the author is a national, and in the case of published works by the law of the Contracting State in which the work has been first published."

Another situation in which copyright might be desirable is when a private contribution cannot be separated from the Government's contribution to a work. The departments, for instance, have had cases where works were jointly authored by a Government employee and private persons, and where employees have voluntarily incorporated in official manuscripts substantial amounts of unpublished material written by themselves outside their Government employment.

It is conceivable that there are other categories of Government works for which copyright may eventually be desirable. For example, there is likely to be increased copyrighting of computer programs in the future by commercial firms. If the Government is able to copyright its employee-produced programs it will be in a good position to negotiate cross-licensing arrangements with the commercial proprietors.

Considering the examples cited, there seems to be ample justification for the copyright authority embodied in the suggested 105 (c). The adequacy of the safeguards to protect the interests of public, press, and others has also been touched on and is further apparent from the recommended statutory language itself. In view of these safeguards and the sheer burden of administration, no Federal agency could abuse its authority by copyrighting great quantities of material. Copyright in works of the U.S. Government would be limited to those relatively few extraordinary cases where copyright is clearly in the public interest.

In further support of such copyright authority, is a Bureau of the Budget letter of December 3, 1964, to the Register of Copyrights which states:

"*** we believe there are some situations where the public interest would be served by permitting agencies to obtain copyright in Government publications. While the statutes prohibit such action at the present time we would favor

legislative authority which would permit an exception to the general prohibition against copyright in Government publications."

(d) Recommend that the following new subsection (d) be added to section 105:

"(d) Publication or other use by the United States Government of any material in which copyright is subsisting does not impair the copyright or authorize any further use or appropriation of the material without the consent of the copyright owner."

Comment: This provision appeared in H.R. 11947 and is generally similar to a currently existing provision in 17 U.S.C. 8. The Register of Copyrights has indicated that this section was deleted because it merely restates the existing case law in this area. However, it is believed very desirable to retain such a provision in the copyright law for easy reference. The corresponding section in 17 U.S.C. 8 is frequently cited in correspondence and regulations pertaining to copyright matters in the various military departments. These departments concur with the view of a Copyright Office study, which suggests that the preservation of the owner's rights in privately owned material used in Government publications is important, not only in fairness to the owner, but also in order to enable the Government to secure his consent to its use of the material.

(c) Recommend that the following new subsection (e) be added to section 105:

"(e) Any copyright in a work, or any exclusive rights therein, held by the United States Government, may be licensed, transferred, or otherwise disposed of in the public interest in accordance with regulations promulgated by the administrative officer designated under subsection (c)."

Comment: The recommended change would eliminate existing uncertainty about the power of the Government to grant licenses under, and to dispose of, copyrights which it holds. This bill appears to be a proper vehicle for establishing such authority since the bill covers transfer of ownership (see e.g. see. 201 (d)). Such a provision would provide Government agencies the necessary flexibility to make suitable arrangements for the transfer of copyrighted materials to assure that the materials are made available to interested persons through the most effective channel of communication.

SECTION 106-EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS

Recommend that the definition in section 106 (b) (3) (A) be amended at page 7, line 1, by inserting ", other than at an official meeting or gathering of officers or employees of the United States Government," after the word “place".

Comment: The definition in section 106(b) (3) (A) provides that "To perform or exhibit a work 'publicly'" refers to performance or exhibition "at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and social acquaintances is gathered". The latter part of this definition, which refers to a substantial number of persons, obviously would include official meetings or gatherings of Government personnel which are not open to the public. We believe that performances or exhibitions at such meetings should not be deemed public performances or exhibitions.

SECTION 107-LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE

Comment: A copyright law revision bill introduced in the 88th Congress (H.R. 11947) attempted to set forth some of the factors to be considered in determining what constitutes fair use. Because of difficulty in trying to define such criteria, it appears preferable to support section 107 of the present bill which merely mentions fair use as a noninfringement of copyright.

SECTION 109-LIMITATIONS ON EXCLUSIVE RIGHTS: EXEMPTION OF CERTAIN PERFORMANCES AND EXHIBITIONS

(a) Recommend that clause (2) of section 109 be amended by inserting "or governmental activity" after "institution" in line 39.