Mr. KASTENMEIER. Then without objection, the committee will receive these several bulletins and reports, and they may not be made part of the record, but we will have them for the files.

Mr. FREUDENBERG. Thank you, Mr. Chairman.

The definition in the present bill, in section 106(b) (3) (A), which is at the top of page 7 of the bill and relates to the definition of performing or exhibiting a work "publicly," provides in its definition that "to perform or exhibit" is public when it occurs "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 merely to a substantial number of persons, obviously would include various 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.

The Copyright Office has mentioned in this Copyright Law Revision, part 6, and in other instances, that such semipublic places as clubs, lodges, factories, summer camps, and schools are examples of places at which performances or exhibitions should be regarded as "public."

We do not feel that meetings of Government officials in their official capacity are sufficiently like these examples to warrant having them regarded as "public."

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

With respect to section 109, the Department of Defense generally supports the exemptions from copyright infringement in connection with certain performances and exhibitions. However, it urges that certain exemptions be amended or extended in the public interest, for reasons which I will point out.

Various governmental activities utilize closed-circuit television for instructional activities. Accordingly, section 109(2), which provides an exemption for instructional television, should be amended to refer not only to nonprofit educational institutions, but also to governmental activities.

The words "or governmental activities" should be inserted before the semicolon at the end of section 109(2).

Historically, our military bands have been exempt from copyright infringement in the performance of public concerts such as those on the steps of the Capitol or in parades. There may be some question whether this exemption is lost, because performances by military bands fail to meet the requirements of section 109 (4).

I know that the Armed Forces, and probably most band members, like to think of bandsmen as soldiers, sailors, and airmen first, and musicians second. But military bandsmen are in one sense paid musicians.

We are very pleased that the Register, in his report on this bill, page 39, and Mr. Finkelstein of ASCAP, in his testimony, have construed the phrase "without payment of any fee or other compensation for the performance" to exclude military pay.

Assuming this interpretation of section 109 (4) is followed, then performances by military bands would retain their exempt status. However, we continue to urge an amendment to preclude any possible question.

Accordingly, section 109 (4) should be amended by inserting in line 8 after the last comma and before "if" the words "except that any such payment shall not cause a performance, which would otherwise be non-infringing, to infringe any copyright if such payments are made out of funds of the United States Government or any State government."

The reference to State government in the proposed language is included to exempt public performances of National Guard military bands.

I might also note that when a military band travels any distance to take part in a holiday parade or public function, the community or group which invites the band normally pays the travel expenses and per diem allowances of the band members. We consider that this type of payment would have no effect under either the bill's language or our proposed modification of 109 (4).

The Defense Department singles out clause (5) of section 109 for support because that portion of the bill insures that nonprofit retransmission of radio and television programs by community antenna systems, CATV, and by TV translators, which merely retransmit a signal on a different higher frequency, will be a noninfringing activity.

The military departments do employ such apparatus at isolated posts so that servicemen may see television shows which they could not receive with their individual equipment.

The following new clause (8) for section 109 is suggested to preserve the status quo with respect to the operation of radio and television stations by the Armed Forces Radio and Television Service for the benefit of servicemen and their families at places not served by commercial broadcasters, including shortwave broadcasts which are beamed to our overseas military personnel from stations located within the continental United States. The new exemption of subsection 8 would apply to

performance of a nondramatic literary or musical work, or exhibition of a work, by or in the course of a transmission made by the U.S. Government primarily for reception by United States Government employees, including military personnel, and their families.

The performance and exhibition of certain types of work, for example music, by Armed Forces stations will continue under proposed 109 (8) to be privileged and noninfringing. Clause (5) of 109 does not seem to preserve this privilege to Armed Forces stations, inasmuch as it applies only to "further transmissions," not initial broadcasts, and it applies only when the original transmission is unaltered.

When an Armed Forces Radio and Television Service station broadcasts a recorded commercial program, it is required by DOD instruction 5120.20 to eliminate advertising material.

The Defense Department urges the adoption of 109 (5) and (8) not only because they continue an existing legal privilege and should save the public considerable sums of money, but also because these provisions are not unfair to the copyright owners whose works are broadcast or retransmitted by military facilities.

Military broadcasting and retransmitting facilities within the United States are restricted by regulation and practice to areas not reached by private commercial broadcasters. DOD instruction 5120.20 provides:

The mission of Armed Forces Radio and Television Service is to provide United States Armed Forces personnel outside the continental United States, in certain isolated areas, and in specified military and veterans hospitals in the United States, where U.S. commercial radio and television programs are not available or adequate, with programs of information, education, and entertainment which would otherwise be unavailable to them.

In addition, the DOD instruction provides that Armed Forces Radio and Television material will not be used for:

commercial purposes, or in any manner that would constitute competition with, or otherwise be detrimental to, commercial artists, copyright owners, or other private interests determined to be competitive in nature; * *. [Emphasis added.]

Thus, the Defense Department's activities do not reduce the commercial market to which a copyright owner may license his musical or other works. In fact, much of the material which is broadcast by military stations, and all the material which is "retransmitted" by CATV and translator apparatus, is originated by commercial networks and stations which pay royalties to the copyright owners.

Section 302 of the bill deals with the duration of copyright. Under the present law one can, by mere inspection of a published work with proper notice of copyright, readily determine whether copyright has expired, that is, if the copyright notice date is more than 56 years old.

The Department of Defense does not take any position as to the length of copyright term, but we do note that a considerable burden will be put on the public and the Government under the bill in trying to determine the life of a copyright which in many cases will be dependent upon the date of death of the author; that is, life of the author plus 50 years.

In order to take cognizance of the changes proposed in sections 104 (a) and 301 of the bill with respect to copyrights in unpublished works, and to eliminate references to minimum statutory damages, it is suggested that section 1498 (b) of title 28, United States Code, with reference to remedies available to copyright proprietors in the case of infringement by the U.S. Government, be amended.

Specifically, it is suggested that this section be amended by inserting the word "published" in the first line, by deleting the words "as damages", ", including the minimum statutory damages as set forth in section 101 (b) of title 17, United States Code", and "the damages accruing to him by reason of***." Title 28, United States Code, section 1498 (b) would then read as shown in attachment 2.

The word "published" is inserted in the proposed amendment to 28 U.S.C. 1498 (b) to assure that the liability of the United States under the new copyright law would remain substantially the same as it is now.

At present the Government can be sued under 28 U.S.C. 1498 (b) only for infringement of works "protected under the copyright laws of the United States"; such works are primarily "published" works. Since the bill would bring many categories of "unpublished" works previously protected only by State literary property law within the

scope of Federal copyright law, this limitation to published works is needed.

As to statutory damages, we found no reported decisions or legislative history interpreting 28 U.S.C. 1498(b), but we believe it is rather clear that the Court of Claims presently has discretion to award or withhold minimum statutory damages in suits against the Government.

Here I might interject that I believe the first case to be brought against the Government in the Court of Claims under this law as a case for copyright infringement was filed very recently against the Department of Agriculture.

I don't know the details, but this accounts for us not having any judicial interpretation of 28 U.S.C. 1498 (b).

Section 504 (c) of the bill gives a copyright owner an absolute right, at his election, to statutory damages in a minimum amount of $250 for all infringements of any one work.

In our opinion, 28 U.S.C. 1498 (b) should not incorporate this principle of mandatory statutory damages.

If statutory minimum damages were to apply at the election of the copyright owner in suits against the Government, section 1498 (b) would lose its eminent domain aspect.

I trust that you are aware that the law provides that there is no injunctive relief to prevent the Government from using material, but we pay the just rewards to the copyright proprietor when we do infringe. This can be done administratively, and that is the way we hope it would be done.

That is, people would come to us with an administrative claim, rather than suing us in the Court of Claims.

Government agencies, we feel, might be faced during administrative settlement negotiations with claimants' arguments that negotiations should start with $250 as a lower limit, even though the owner's actual damage may be nominal, for example, in a case where a few photocopies have been made by the Government of a copyrighted

article.

The present language of 28 U.S.C. 1498 (b) as to administrative claims further supports this proposal to omit reference to statutory damages.

Section 504 (c) also incorporates, under statutory damages, damages for willful infringement, which were not previously provided in 17 U.S.C. 101(b). Such damages are completely inconsistent with the eminent domain aspect of 28 U.S.C. 1498(b), and should not be awarded in an action against the United States under that section.

Now, throughout my comments here, when I am talking about not making minimum statutory damages apply, I must emphasize it is only in connection with suits against the U.S. Government.

The Defense Department has recommended that several amendments be made in this bill. We believe that the recommended changes are very much in the public interest.

Looking at H.R. 4347 from a parochial point of view, it appears that unless amendments along these lines are adopted, the direct effects of the bill on the military departments will be more harmful than helpful.

Although we do not take such a narrow view of this important legislation, we hope that this committee and Congress will find merit

in our proposals. Our support is basically in favor of this generally fine bill.

This completes my prepared statement, Mr. Chairman.

(Attachments 1, 2, and 3 to Mr. Freudenberg's statement follow :)

[Attachment 1]

PROPOSED SECTION 105

(a) Copyright protection under this title is not available, except as specified in subsection (c), for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyright transferred to it by assignment, bequest, or otherwise.

(b) A "work of the United States Government" is a work prepared by an officer or employee of the United States Government as part of his official duties. (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 on the basis of 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.

(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.

(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).

[Attachment 2]

PROPOSED CHANGE IN 28 U.S.C. 1498 (b)

"(b) Hereafter, whenever the copyright in any published work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive remedy of the owner of such copyright shall be by action against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such infringement: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however. That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a