tion of the "for profit" limitation would outweigh the occasional damage to an author's interests. Section 110 of the bill provides that an organization entitled to transmit a performance or exhibition of a copyrighted work to the public may make no more than one copy of the work solely for purposes of the organization's own lawful transmissions or for archival preservation, if the copy is not used for transmission after 6 months from the date is was first made. The restrictions in this section on the making of "ephemeral recordings" would work a hardship on educational radio and television stations which frequently have occasion to make delayed broadcasts and rebroadcasts. The 6-month limitation on the transmission of such recordings is unrealistic since educational radio and television stations often rebroadcast previously taped programs for periods beyond 6 months from the date of recording. The provision limiting an organization to making ephemeral recordings solely for its own transmissions would prevent the exchange of such recordings among educational radio and television stations unless the necessary clearances are obtained from the owners of copyrighted works which appear in such recordings. It is our understanding that many educational radio and television stations rely heavily upon the exchange of such recordings in scheduling programs. We suggest, therefore, that section 110 of the bill be amended by deleting the time limitation in which an ephemeral recording may be used for transmission by educational radio and television stations, and by permitting the exchange of such recordings among educational radio and television stations. In summary, we believe that H.R. 4347 provides a long overdue revision of the copyright law. We recommend the enactment of the bill with the modifications suggested herein. U.S. ATOMIC ENERGY COMMISSION, Subject: H.R. 4347. Hon. EMANUEL CELLER, Chairman, Committee on the Judiciary, House of Representatives. DEAR MR. CELLER: This is in further reply to your letter of February 23, 1965, requesting the views of the Atomic Energy Commission 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." H.R. 4347 is a revision of H.R. 11947 and S. 3008, 88th Congress, 2d session. The latter bills were the subject of detailed study and resulting comment by interested agencies of the executive branch. As indicated hereinafter, we believe that certain of the provisions in H.R. 11947 and S. 3008 are preferable to those proposed in H.R. 4347. We are, in this connection, limiting our comments to specific provisions of the bill which appear directly to affect the activities, programs and personnel of the Atomic Energy Commission. Subsection 105(b) of H.R. 4347 defines a “work of the United States Government" as one prepared by a Government officer or employee "within the scope of his official duties or employment." We believe that this provision is much less precise than the definition employed in subsection 4(e) of H.R. 11947 wherein a "work of the United States Government" was defined as a work prepared by a Government officer or employee "as part of his official duties." While some may deem both phrases to be equivalent, the latter phrase, in our opinion, is more definitive and less subject to varying interpretations than the one employed in subsection 105(b) of H.R. 4347. Accordingly, we urge utilization in the present bill of the phraseology of subsection 4 (e) of H.R. 11947. Subsection 4 (c) of H.R. 11947 permitted the head of a Government agency to secure a copyright in special situations when he determined that securing protection would result in more effective dissemination and be in the public interest. This provision has been eliminated in section 105 of the present bill. It is our view that such discretionary authority in the head of an agency is highly desirable and that a provision permitting same should be incorporated in the present bill. We believe that the nonavailability of copyright for Government employees' works can, in certain situations, diminish employee incentive to write on important subjects when individual time and effort are involved. We are particularly concerned that this could result in fewer contributions by Government employees in areas such as the writing of technical books, textbooks, and scientific critiques. We therefore recommend that a provision similar in scope to subsection 4(c) of H.R. 11947 be added to section 105 of the present bill. Such a provision could be a useful tool in facilitating the wider dissemination of technological and scientific information and in so doing further the objectives and purposes of sections 3.b and 141.b of the Atomic Energy Act of 1954, as amended. The present bill, in section 107, merely recognizes the doctrine of "fair use" of copyrighted works. Section 6 of H.R. 11947 was much more practicable in this respect in that it set forth general ground rules for the application of the doctrine of "fair use." We believe the inclusion of such general guides would be of incalculable value in advising the general public, libraries and reproduction organizations, as well as the Government, as to that which is permitted under the doctrine of "fair use." In the foregoing connection, we suggest that appropriate provision be made to exclude as an act of infringement the placing of copyrighted text material into a machine-readable format (i.e., computer tapes) and to provide that infringement would be determined when the work is printed out into an eye-legible form. At the latter point in time, infringement, if any, would be determined in the context of the "fair use" provisions of the bill. The existing law on this matter is not clear and we believe that a clarification in the copyright law would be desirable. While we endorse the requirement of notice as to each work on which copyright protection exists, as set forth in section 401 of the subject bill, we believe that the notice should include the name and date of birth of the author or authors if the copyright is to be for the life of the author and 50 years thereafter as proposed in H.R. 4347. The probable life of the copyright could then be more readily estimated from the notice. Further, in the applications for copyright, section 408 of the bill provides that if one or more of the authors is dead, the date of the death should be furnished. It would appear helpful also to include the date of birth of the living author or authors-particularly if the notice of copyright does not carry same-so that one can estimate the possible expiration from the copyright registry. This would also be of assistance in determining the presumption of expiration of the copyright which section 302(e) of the bill creates. The Bureau of the Budget has advised that there is no objection to the presentation of this report from the standpoint of the administration's program. Sincerely yours, JOHN V. VINCIGUERRA, Executive Assistant to the General Manager. Mr. KASTENMEIER. At this point the Chair would like to call up and welcome Prof. Julian P. Boyd, representing American Historical Association and certain other associations. Professor Boyd. STATEMENT OF PROF. JULIAN P. BOYD, PROFESSOR OF HISTORY, PRINCETON UNIVERSITY, ON BEHALF OF THE SOCIETY OF AMERICAN ARCHIVISTS, THE ORGANIZATION OF AMERICAN HISTORIANS, THE AMERICAN HISTORICAL ASSOCIATION, THE SOUTHERN HISTORICAL ASSOCIATION, THE WESTERN HISTORY ASSOCIATION, AND THE AMERICAN ASSOCIATION FOR STATE AND LOCAL HISTORY Dr. BOYD. For this opportunity to testify, I should like to express my own appreciation as well as that of the various professional societies that have authorized me to represent their interests, so far as these are affected by the proposed revision of the copyright law. Mr. KASTENMEIER. Professor Boyd, may I inquire whether you have a prepared statement for the committee? Dr. BoYD. Yes, sir. I have copies that are not complete because I have added this morning a late addition. I am afraid I don't have enough copies for all members of the subcommittee, but others will be supplied in complete form. Mr. KASTEN MEIER. You may proceed, sir. Dr. BOYD. These organizations are: the Society of American Archivists, the Organization of American Historians (formerly the Mississippi Valley Historical Association), the American Historical Association, the Southern Historical Association, the Western_History Association, and the American Association for State and Local History. These societies embody the archival and historical professions in the United States. They are the voice of thousands of writers, teachers, and friends of history in universities, in colleges, in government, in public and private schools, and in a variety of other institutions throughout the Nation. They represent the archivists who serve government and the cause of history in town, county, State, and National repositories of archival records. They reflect the activities of approximately 2,000 historical societies and agencies of history that have come into existence since the first of such institutions was created in this country in 1791. These societies are local, State, regional, and national in character. Through the dedicated labors of countless men and women of the past and present, these useful institutions have made it their concern to disseminate a knowledge of our past and to gather, preserve, publish, and make available for use the millions of written documents, both public and private, on which all knowledge of our history as a nation-and all that this knowledge means as a priceless legacymust ultimately rest. There is literally no form of concern for the American past and for its relevance to our society today that is not reflected in the activities of these institutions and the immense company of public-spirited men and women who support them, whether that activity belongs to the scholar who explores the documentary sources and advances the frontiers of knowledge, to the teacher who inculcates in schoolchildren an awareness of our heritage, to the member of a village historical society who helps preserve a historic house, erect a commemorative tablet, or celebrate a notable event, or to the archivist, librarian, or custodian of manuscripts who makes all of these useful endeavors possible through his indispensable role of presiding over the books, manuscripts, and records and of insuring their accessibility and use. All are engaged in an endeavor of infinite variety and complexity, and like most human enterprise its results may be sometimes of immense public benefit and sometimes perhaps of dubious value. But all of these promoters of the cause of history, consciously or unconsciously, rest their justification on the same premise that they are promoting the public good by advancing and disseminating a knowledge of our past, that the attainment of this great object depends, in the final analysis, on the written record, and that in a democracy that record, in whatever form, must be accessible on a basis of equality so that each may examine and interpret it in what he regards as the true light, being held accountable for his errors by others who possess the same right. If the record is not accessible, the books that advance the frontiers of knowledge cannot be written or published. Without these books, teachers and students will be shackled with interpretations of our past that will soon be obsolete if not dangerously misleading. The record is the foundation. Unless this record and the right of access to it are protected in the fullest amplitude possible, the whole society suffers. Whatever affects the foundation affects not merely this vast and varied network of historical enterprise. It affects the national interest in the deepest moral and spiritual sense. For, as someone has well said, the historian is, in a sense, custodian of the public truth, and one of the glories of democracy is that it dares to face the truth about its past. The proposed legislation, and indeed any legislation that seeks to encourage and protect intellectual creativity, inevitably touches the foundations of the historian's world and touches therefore the interest that all citizens have in safeguarding and constantly adding to our knowledge of the American past. The historian, by the canons and discipline of his profession, is perhaps more acutely sensitive to the importance and the subtle implications of copyright legislation than most others. He is well aware of the long struggle to advance the concept through almost five centuries since the right of ownership in literary and artistic works was first protected at common law. He knows the philosophical expression of the idea in John Locke's "Two Essays of Government" concerning "that property which men have in their persons as well as goods," and he is aware of its broad extension by implication in our own Declaration of Independence in its proclamation of the right to life, liberty, and the pursuit of happiness. He is himself an author of books and the interest in their publication and distribution that he shares with the novelist or composer is no less real because his works rarely have a wide public distribution and because, by his own disciplinary canons, he believes that history to have value must be interpreted and reinterpreted freshly with each succeeding generation. He believes, that is, in promoting the obsolescence of his own work. The historian and the archivist, therefore, join with artists and publishers in supporting the aims of copyright legislation and in welcoming the general terms of the proposed revision. There are, however, some particular provisions of the present bill that cause grave concern throughout the archival and historical professions. In the far-flung community of historical scholars it is not to be expected that all would agree on the extent or magnitude of the dangers that seem apparent in its various provisions. It may be true, for example, that some teachers of history support the proposed substitute for section 107 which would greatly extend the use of copyrighted materials for purposes of instruction or promotion. Their motive in doing so is beyond question. They wish to improve the quality of teaching. They not only do not ground their proposal on any consideration of economic self-interest but, in fact, propose to limit such use strictly to those aspects of teaching and research in which commercial advantage and private gain are not involved. But it is equally beyond question that the vast majority of historians welcome the proposed statutory recognition of the doctrine of fair use as developed by the courts. As set forth in the language of the bill, the standard by which such use is to be determined is neither raised nor lowered. It remains precisely where experience, reason, and the law all agree in indicating that it should remain. It is general and flexible, permitting the reasonableness and the fairness of the use to be determined on the facts in each case through the only proper agency in which the decision should be vested, the judiciary. If the question were to be fully explained in all of its ramifications and were to be put to a vote of all of the members of the historical and archival professions, I have no doubt whatever that the result would be overwhelmingly in favor of retaining the language of section 107 exactly as it stands at present. There may be other questions concerning the terms of the bill that would find historians and archivists divided in opinion, but on one point they undoubtedly speak with a single voice. Section 301 pre-empts or abolishes any claim for protection of literary property rights in published or unpublished works as derived from common law or State statutes. By so doing, it brings to an end the common law principle that literary property rights exist in perpetuity. No one can debate the wisdom of such a provision. It terminates the variant interpretations of the principle given by the courts of 50 States. It makes librarians, archivists, and custodians of manuscripts do less damage to their consciences when they provide scholars with copies of older manuscripts. If I may cite a personal example, it brings ethics and law into unison in my own work, for when the gathering and editing of "The Papers of Thomas Jefferson" was begun in 1943, through the initiative of the Congress, and many thousands of documents were copied in over 600 repositories stretching from Australia to Moscow, I was given a formal opinion by the Register of Copyrights that, under common law, the technical legal right to publish the papers of our chief spokesman for liberty was vested in the hundreds of descendants of Thomas Jefferson and in the multitude of descendants of the thousands of people who wrote letters to him. In the face of such a legal obstacle, it seemed the part of wisdom to assume that the courts would sanction such a technical invasion of literary property right under the doctrine of fair use. The alternative in the face of the impossible burden that this imposed would have been to abandon the undertaking. I cite the example not only in order to express the gratitude that all librarians, archivists, and scholars must feel in having this vague, uncertain, and indeed irrational situation brought to an end. I cite it also in order to underscore the grave danger that historians see in the fact that the bill, in its justifiable aim of protecting the right in unpublished manuscripts of authors whose creative works will endure and have lasting property value, makes no distinction between this very small class of manuscripts and the vast numbers of letters, diaries, maps, business records, and every other form of record upon which the historian depends and to which there adheres no commercial value whatever in their literary substance but only, where it exists at all, in their marketability as physical objects. These are the records upon which rests the cause of the historian and of all of those who are engaged in the immense network of historical activity that is aimed not at private profit but at the public good. These records are scattered in many repositories and the own |