We question the advisability of permitting an infringement suit where no registration has occurred. To do so would, in all likelihood, lead to many baseless suits brought for harassment purposes. Moreover, the Register of Copyrights need not intervene under the provisions of this section, leaving the defendant to carry the burden. Also, the time, effort, and possible costs that the defendant would have to expend would not be outweighed by the remote possibility that in isolated instances a work should have been registered. The judicious actions by the Register of Copyrights in the past have been buttressed by court decisions and little need is seen for change. In addition, it is questionable whether it is a desirable policy to permit the Register of Copyrights to become a party to a copyright infringement suit between private litigants. Accordingly, the Department recommends the deletion of all of section 410 after the first sentence. The Bureau of the Budget has advised that there is no objection to the submission of this report from the standpoint of the administration's program. Sincerely, Hon. EMANUEL CELLER, RAMSEY CLARK, Deputy Attorney General. GENERAL COUNSEL OF THE DEPARTMENT OF COMMERCE, Chairman, Committee on the Judiciary, Washington, D.C. DEAR MR. CHAIRMAN: This is in further response to your request for the views of this Department concerning H.R. 4347, a bill for the general revision of the copyright law, title 17, of the United States Code, and for other purposes. This bill, which is the product of lengthy and careful study by the Register of Copyrights and his staff, would provide for a complete revision of the U.S. copyright law, the first such revision since 1909. The bill would modernize the copyright law to meet present conditions and would provide for a single national system of copyright protection under Federal statute for all works whether published or unpublished. There would no longer be available the present protection afforded in State courts to unpublished works (so-called commonlaw copyright). Among other things, the bill would lengthen the term of copyright protection generally to the life of the author plus 50 years, would accord limited copyright protection to sound recordings, would modify in some respects the compulsory license for the recording of music and repeal the present exemption of jukebox operators from payment of performance royalties. In general, we support the proposed revision of the copyright law as embodied in H.R. 4347 and with the few exceptions noted below we would urge its enactment by the Congress. Section 109 (4) would authorize performance of a nondramatic literary or musical work by unpaid performers not only where no admission is charged but also where an admission fee is charged so long as the net proceeds of admissions, after reasonable production costs and outlays, are applied exclusively for educational, religious or charitable purposes. We feel that where any admission is to be charged for such a performance, the copyright owner should retain the power to decide whether his work is to be performed and if so at what royalty. To the extent that the permission to perform his work for a money-raising purpose represents a donation to a charitable, religious or educational cause, he should retain the privilege to decide whether or not to do so. It is desirable to avoid any possible confusion and overlap between chapter 16 of title 35 of the United States Code, which provides patent protection for new, original, and ornamental designs for articles of manufacture, and section 111 of H.R. 4347 which covers the scope of exclusive rights in pictorial, graphic, and sculptural works. In order to make clear that copyright in a pictorial, graphic, and sculptural work portraying a useful article as such does not extend to the manufacture of the article iteslf, we recommend that section 111 be amended to include the following language: "Copyright in a work that portrays a useful article as such, such as a drawing, model, or photograph of the article, shall not include any right to prevent the making, distribution or exhibition of useful articles of the design to portrayed." We note that section 601 of H.R. 4347 would significantly reduce the scope of The so-called manufacturing clause whereby U.S. copyright protection for English language works of U.S. citizen authors is conditioned on the printing (manufacture) of such works in this country except that a limited number of copies printed abroad (1,500) may be imported without losing U.S. copyright protection. The bill would increase to 3,500 the number of permitted imports. In addition, it would provide that the consequence of exceeding this limit would no longer be total forfeiture of U.S. copyright protection as at present but merely loss of the right to control the making and distribution of visual copies in this country. The so-called subsidiary rights of the author, often commercially important, such as dramatization rights, recording rights, and performance rights, would not be forfeited. In principle we are opposed to the inclusion of collateral trade protective features such as the manufacturing clause in a general copyright statute. In addition, we question the need for continued protection of this sort for the printing industry under current conditions. The difference between foreign and domestic labor costs in the printing industry is growing smaller. Highly automated U.S. plants have an advantage in the printing of large editions, despite their higher wage rates. An additional advantage is their proximity to their customers. Trade practices of foreign printers differ from those of the U.S. industry. These differences lead to misunderstandings which tend to discourage the placement of printing orders abroad. While the removal of the manufacturing clause could result in some printing being done overseas that is now done here, we doubt that the loss would substantially injure the U.S. book industry. If, however, the Congress were to conclude from consideration of all factors before it that the revised manufacturing clause as proposed in section 601 of the bill should be retained we would not offer further objection, since it represents a significant improvement over the present "manufacturing clause." We have been advised by the Bureau of the Budget that there would be no objection to the submission of our report from the standpoint of the administration's program. Sincerely, DEAR MR. CHAIRMAN: This letter is in response to your request of February 23, 1965, for a report on H.R. 4347, a bill for the general revision of the copyright law, title 17 of the United States Code, and for other purposes. Because of its responsibilities and mission, the Department of Health, Education, and Welfare is concerned with the possible impact of a revision of the copyright law on the promotion of education and public health, and upon the dissemination of information in health, education, science, and related fields. Of particular interest to us, are those provisions of H.R. 4347 which deal with Government publications, exclusive rights in copyrighted works, and the limitations on such rights, including fair use. Section 105 of the bill defines the term "work of the United States Government" for the purpose of exclusion from copyright. We favor the inclusion of an appropriate definition in the bill in order to eliminate as much as possible the present uncertainty as to the meaning of Government publication for purposes of the copyright law. We recommend the inclusion of a provision in the bill to authorize a library to make and supply to applicants under limited circumstances single copies of copyrighted materials in its collections or in collections available to it. In order to meet the needs of researchers and scientists, and to take into account new methods of duplication and storage of information, we suggest that the bill include a provision to enable libraries to "store" articles or other works on tapes in computers and to make available such tapes or similar materials to other libraries. We believe it would be useful to libraries, authors, publishers, scientists, and researchers to have the permissible limits of copying by libraries spelled out in the statute. We also recommend that the so-called "for profit" limitation of the present law be retained. The present law (17 U.S.C. 1(c), (e)) limits the copyright owner's performance right in nondramatic literary and musical works to public performance for profit. We believe that the deletion of the "for profit" limitation in H.R. 4347 would be injurious to the development of educational radio and television, and would impair the effectiveness of educational radio and television as pedagogical tools. The enclosed memorandum by our General Counsel discusses in detail the matters referred to above, as well as other aspects of the bill. We recommend the enactment of the bill with the modifications suggested in the General Counsel's memorandum. We are advised by the Bureau of the Budget that there is no objection to the presentation of this report from the standpoint of the administration's program. Sincerely, ANTHONY J. CELEBREZZE, Secretary. JUNE 7, 1965. To: The Secretary. From: Alanson W. Willcox, General Counsel. Subject: H.R. 4347, General revision of the copyright law. H.R. 4347 would provide the first comprehensive revision of the copyright law since 1909. Of major interest to the Department of Health, Education, and Welfare are the provisions of the bill which deal with Government publications, exclusive rights in copyrighted works, and the limitations on such rights, including fair use. The report of the Register of Copyrights on the general revision of the U.S. copyright law, July 1961, states that there has been "much uncertainty as to what constitutes a 'publication of the U.S. Government' in which copyright is prohibited" (House committee print, 87th Cong., 1st sess., p. 130). Section 105 of the bill would define a "work of the United States Government" to mean a work prepared by a Government officer or employee within the scope of his official duties or employment. We have not explored the question whether this definition is the most appropriate one, but we understand that other agencies have made specific suggestions for modification of the definition. Our concern is that there be a definition in the bill, that it resolve the present uncertainty to the maximum extent feasible, and that it be equitable both to the Government and to the employee. With regard to the provisions of the bill on exclusive rights in copyrighted works, we recognize that competing considerations must be taken into account in delineating the scope of exclusive rights in copyrighted works and the limitations upon those rights. As was aptly stated in the Register's report, the "ultimate task of the copyright law is to strike a fair balance between the author's right to control the dissemination of his works and the public interest in fostering their widest dissemination"; and where the author's interests conflict with those of the public, "the public interest must prevail" (p. 6). We have endeavored to apply these criteria in reviewing and commenting upon the provisions of H.R. 4347 dealing with exclusive rights in copyrighted works and the limitations on such rights. Of paramount interest to this Department is the extent to which the provisions of the bill might affect the widespread dissemination of information in health, education, science, and related fields. We, therefore, view with concern the omission from the bill of provisions authorizing libraries to make and supply to applicants copies of copyrighted materials under limited circumstances. We urge that the bill include a section substantially as follows: "Notwithstanding the provisions of section 106, any library which has collections or access to collections available to the public or to researchers in any specialized field shall be entitled to duplicate, by any process now in existence or which may hereafter be developed, including such processes as photocopying, sound recording, and computerization, any work in its collections or in collections available to it, other than a motion picture, and to make available to other such libraries computer tapes or other materials on which such works are duplicated. Any such library may supply a single copy or sound recording of any such work upon request, but only under the following conditions: “(a) The library shall be entitled, without further investigation, to supply a copy of no more than one article or other contribution to a copyrighted collection or periodical issue, or to supply a copy or sound recording of a similarly small part of any other copyrighted work. "(b) The library shall be entitled to supply a copy or sound recording of an entire work, or of more than a relatively small part of it, if the library has first determined, on the basis of a reasonable investigation, that a copy or sound recording of the copyrighted work cannot readily be obtained from trade sources. "(c) The library shall attach to the copy a warning that the work appears to be copyrighted." Conditions (a), (b), and (c) above were included in section 7 of the preliminary draft bill, dated February 15, 1963, prepared by the Register of CopyCopyrights. It is generally recognized that photocopying by libraries, particularly of articles in scientific journals, has been of invaluable assistance to scientists, researchers, and scholars. The sheer volume of scientific journals, perhaps 50,000, makes it impracticable for the scientist or his employer to purchase or subscribe to more than a limited number. It would also be impracticable to require a library to obtain the permission of the copyright owner each time it receives a request from a scientist for a copy of an article from such journals. The importance of disseminating medical and public health materials by means of making copies of such materials was recognized by Congress when it directed the Surgeon General of the Public Health Service, through the National Library of Medicine, to "make available, through loans, photographic or other copying procedures or otherwise, such materials in the [National] Library [of Medicine] as he deems appropriate" (42 U.S.C. 276). Under the restrictive provisions of the section which we have recommended, it is doubtful that the supplying of a single copy to a researcher or scientist would seriously impair the copyright owner's potential market for his work. Although the practice of photocopying by libraries, without benefit of statutory or judicial sanction, is apparently widespread, we believe it important that the bill include provisions along the lines recommended above for the following reasons: 1. With no reported judicial decisions on the subject, it would be useful to libraries, authors, publishers, scientists, and researchers to have the permissible limits of photocopying spelled out in the statute. 2. The failure of a comprehensive revision of the Copyright Law to include a provision on photocopying might be deemed to indicate an intent by Congress not to authorize photocopying by libraries as a limitation on the exclusive rights of a copyright holder. Although photocopying is the most widespread method of copying in use today, the section which we have recommended to be included in the bill takes into account methods of duplication of information which are now in existence, or may later be developed. In order to be able to service the needs of the scientific community by providing information from, and copies of, articles from scientific journals with dispatch, we have recommended the inclusion of language to enable libraries to "store" such articles on tapes in computers and to make available such tapes to other libraries. We favor the inclusion in the bill of a section on fair use. We agree with the statement in the report of the Register that it would be "anomalous to have the statute specify the rights of copyright owners in absolute terms without indicating that those rights are subject to the limitation of fair use" (p. 25). Because it would be impracticable to spell out the precise rules for the application of the doctrine of fair use, we favor the approach taken in section 107 of the bill merely to state that the fair use of a copyrighted work is not an infringement of copyright. Fair use is an equitable doctrine, and the courts should have sufficient margin to apply it as the circumstances of a given case warrant. We believe that the abstracting or digesting of articles from scientific journals to the extent reasonably necessary to meet the needs of researchers, scientists, or scholars would be a fair use. Similarly, reproduction by a teacher of a work to the extent reasonably necessary to illustrate a lesson would also appear to be a fair use. However, because of the generality of the language of section 107, we believe it desirable that the committee report accompanying the bill make it clear that such abstracting or digesting of scientific articles, and such reproduction of materials by teachers, would be permissible fair uses. We have singled out abstracting and digesting, and reproduction for classroom lessons as examples of fair use because of the vital importance of the former to scientists and researchers, and of the latter to the education process, and because of the need to dispel any doubts that such uses are fair uses. With regard to the provisions of the bill on exclusive rights in copyrighted works, we recommend that the so-called "for profit" limitation of the present law be retained. The present law (17 U.S.C. 1(c), (e)), limits the copyright owner's performance right in nondramatic literary and musical works to public performance for profit. The report of the Register recommended the retention of this limitation. stating that it strikes “ a sound balance between the interests of copyright owners and those of the public" (p. 27). The bill, however, would delete the "for profit" limitation, and would declare the performance of a nondramatic literary or musical work, or the exhibition of a work not to constitute an infringement only in the instances set forth in section 109. The two principal exceptions in section 109 for educational purposes would authorize such performances and exhibitions in the course of face-to-face teaching activities in a classroom, and in the course of a transmission, if the tranmission is made primarily for reception in classrooms and is a regular part of the systematic instructional activities of a nonprofit educational institution. The exception for performances in the course of face-to-face teaching activities would also be applicable to the performance of dramatic works. In our judgment, deletion of the "for profit" limitation would be injurious both to the development of educational radio and television in communities throughout the country, and to the use of radio and television as pedagogical tools. Instructional programs over educational radio and television are not limited to those transmitted primarily for reception in classrooms. Such programs are frequently designed for reception by students, adults, and shut-ins in homes, places of work, and community centers, as well as in classrooms. The exception in section 109(2) would not be applicable to a number of instructional programs which appear on educational radio and television but are not made primarily for classroom reception, such as preschool children's programs, adult education courses, postgraduate training programs for various professions, vocational training programs, and health education. The bill would also deny the benefits of the "for profit" limitation currently available to programs of a cultural nature which appear on educational radio and television. The value of both the instructional and cultural programs would appear to be beyond question. Congress has recognized the significance of educational television, both to the community as a whole and as an important new method of teaching. Thus, title VII of the National Defense Education Act, as amended (20 U.S.C. 541 et seq.) directs the Commissioner of Education to conduct, assist, and foster research and experimentation in the more effective utilization of television and radio for educational purposes, and to disseminate information concerning these new educational media to educational agencies and institutions. Congress also recently enacted a program of Federal matching grants for the construction of educational television facilities (Public Law 87-447; 47 U.S.C. 390 et seq.). In reporting out S. 205 (which was later enacted as Public Law 87-447), the conference report stated: "Only through the establishment of educational television broadcasting facilities and the activation of noncommercial educational television broadcasting stations can the goal of creating an adequate television system to serve the needs of all the people in the United States be accomplished." (Rept. No. 1609, 87th Cong., 2d sess., p. 6.) The importance of educational radio and television was also recognized in the recently enacted Elementary and Secondary Education Act of 1965 (Public Law 89-10). Section 303(b) (6) of title III of that act authorizes grants for "developing, producing, and transmitting radio and television programs for classroom and other educational use" as supplementary educational services and activities. We understand that the deletion of the “for profit" limitation would be particularly burdensome to educational radio and television broadcasters because of the added expense and staff needed to obtain the necessary clearances from copyright owners. Where this burden could not be met, the quality of the programs offered by educational radio and television would necessarily be reduced. We recognize that there may be occasional abuses of the rights of authors by performances of nondramatic literary or musical works over educational radio and television. We believe, however, that because of the vital role of educational radio and television, the benefit to the public from the reten |