On the other hand I would hope, one of these days when there. is enough public opinion and there are enough people who have thought deeply enough about the basic concept of the writer in this society, that we can go beyond this. This might be 20 or 30 years, but I deeply believe that the writer should be paid for every use just as I say the electric company is paid every time we flip a light on. The process of paying him for every use is not much more difficult than the process they have of measuring when we flip the light on. It could be done just as well, probably without too great an expense or economic burden on the society. I heard Captain Kangaroo the other morning, this was on Flag Day I believe, he said: The beautiful thing about America is that every single person in this society has all the rights and perquisites and privileges that every other person has if he is in the logical situation, in specific situations. The writer, as Rex Stout pointed out, creates these things. He has a right to his rewards, too. The writer has not been getting these rewards. I certainly hope that every member of this committee, in considering this bill, will zealously guard the right of the writers and not be afraid of the educational lobby, the TV lobby, or any other lobby. Think of the writers because they are the individuals who make up our society. They are the ones who give us the words which cause the society to move onward and upward. Mr. KASTENMEIER. Thank you, Mr. Farrar, for your appearance this morning. That, gentlemen, concludes today's testimony. The Chair would like to announce that on Wednesday morning next, immediately preceding the next regular hearing, we will have an executive meeting and committee counsel will designate the room to us. Therefore, until next Wednesday at 10 a.m., when we will hear from the Department of the Air Force, McGraw-Hill, professional photographers, and several other organizations, we will stand adjourned. (Whereupon, at 12:05 p.m., the subcommittee adjourned, to reconvene at 10 a.m., Wednesday, June 23, 1965.) COPYRIGHT LAW REVISION WEDNESDAY, JUNE 23, 1965 HOUSE OF REPRESENTATIVES, The subcommittee met at 10:15 a.m., pursuant to recess, in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier presiding. Present: Representatives Kastenmeier, St. Onge, Edwards, Tenzer, and Poff. Also present: Herbert Fuchs, counsel, and Allan Cors, associate counsel. Mr. KASTENMEIER. The committee will come to order. The subcommittee commences the fifth week on general revision of the Copyright Act, and in this connection has permission to sit both today and tomorrow during the session of the House in the afternoon, if neces sary. Today, we are pleased to hear from our first witness, the Department of the Air Force, represented by Mr. Maxwell C. Freudenberg. Welcome to the committee, Mr. Freudenberg. STATEMENT OF MAXWELL C. FREUDENBERG, DEPARTMENT OF THE AIR FORCE; ACCOMPANIED BY LT. COL. ARTHUR MURPHY, OF THE DEPARTMENT OF THE ARMY Mr. FREUDENBERG. Thank you, Mr. Chairman. Mr. Chairman and members of the committee, I am Maxwell C. Freudenberg, a patent attorney with the U.S. Air Force. I appreciate the opportunity to appear before your committee to present the position of the Department of Defense on H.R. 4347. The purpose of this bill is to amend title 17, United States Code, which in the words of the Register of Copyrights is, in many respects, "uncertain, inconsistent, or inadequate in its application to presentday conditions." Before I go into my statement, I would like to introduce to the committee Lt. Col. Arthur Murphy of the Department of the Army, who has assisted me considerably in working on our preparation of material on this bill, and who will be here also to answer any questions that you may have to direct to either one of us. The Department of Defense recognizes the need for copyright law revision, and the just reward provided by copyright protection as incentives to authors. This bill appears to resolve adequately and fairly most of the vexing problems which exist under the present law. 1157 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 Govern ment. My remarks are principally directed in this connection to sections 105, 106, and 109 of the bill, and to title 28, United States Code, section 1498 (b). 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. The Department of Defense urges amendments to section 105 containing provisions similar to section 4 of H.R. 11947, 88th Congress, which provisions surprisingly were not in the present bill. I might interject that I say "surprisingly," because the Bureau of the Budget, as we have indicated on page 9 of the comments on the present bill submitted by the Air Force to this committee on May 24, 1965, did go on record as saying that they felt there was a need for provisions similar to what were in secton 4 of the bill last year, and some of these have been dropped. For easier reference, the changes suggested for section 105 in my following discussion appear in attachment 1 at the end of this state ment. Before getting into the question of obtaining copyright in a "work of the United States Government," I will comment on the definition of this term. Section 105 (b) should be amended to return to the definition of a "work of the United States Government" which appeared in section 4(e) of H.R. 11947, and which read: A work prepared by an officer or employee of the United States Government as part of his official duties. The language, "within the scope of his official duties or employment," used in the present bill, poses ambiguities which were not raised in the words of the previous bill. The language of H.R. 11947 has been established as a much more exact test, both by case law and by customary practice within executive agencies. Now I again refer to the Department of the Air Force comments of May 24, pages 3 and 4, where we have elaborated on some of the case law, and the Bureau of the Budget statement, using the definition which has the words "as part of his official duties." The words "scope of **** employment" are subject to a broader interpretation than the words "part of his official duties," with the undesirable result that copyrights may be prohibited even where an officer or employee has voluntarily written a book on his own time which is somehow related to his employment. For greater certainty of interpretation, we strongly support the definition of "work of the United States Government" suggested in H.R. 11947, and further suggest that the definition in section 101 of "work made for hire" be amended by adding thereto appropriate language to make clear that a "work of the United States Government" is a "work made for hire." The amended definition of "work made for hire" would read in the pertinent portion "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". We deem it a desirable incentive to employee-authors to permit them to copyright works which are prepared on their own time and not as part of their official duties. We have heard arguments that the definition of "work of the United States Government" should be broad, so as to avoid the opportunity for employees to get copyright where they might improperly use Government information, time, and facilities to create works for personal profit. It is argued that a Government employee having either no copyright or an invalid copyright would be less likely to abuse his position. The trouble with this approach is that it would cast a shadow on the copyright status of many works legitimately created by employees. The possibility of employee abuses is best avoided, we think, by administrative control and disciplinary action. The Department of Defense, and I am sure other Government agencies as well, have effective procedures for controlling abuses by employees who write for private publication. I have noted in attachment 3 to my statement excerpts from a recent Presidential directive, Executive Order 11222, May 8, 1965, and from a Department of Defense directive, 5230.9, August 17, 1957, which, among other laws, directives, and regulations, provide adequate controls through the executive branch on outside writing. The Department of Defense strongly recommends amendment to section 105 to provide for those exceptional cases wherein it appears desirable in the public interest for the Government to obtain copyright. It is suggested that H.R. 4347 be amended to include a provision similar to section 4(c) of H.R. 11947, whereby the criteria for those exceptional cases would be established by an administrative officer designated by the President so that there would be uniform copyright policies throughout the executive branch. The proposed amendment appears in attached section 105 (c) and embodies the content of section 4 (c) of H.R. 11947, but adds safeguards which further protect the interests of the public, particularly with respect to avoiding any interference with the freedom of the press in the United States to publish or reprint matters of public con cern. It is also contemplated in the usual case that copyright protection in a work of the U.S. Government would be available only for a short period of time, consistent with the need to provide an incentive to obtain publication and maximum distribution of the work in the public interest. The Department of Defense supports this amendment because it appears that there are instances where a meritorious work may not be published at all, or published with ineffective dissemination, because of lack of copyright. 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. Whether the foreign rights are to be exploited by the Government or by the employee, the lack of at least nominal copyright protection, with the U.S. copyright licensed free to the American public, may foreclose copyright protection abroad. 52-380-66-pt. 2—33 |