It would be pretty clear under a part-of-duties test that this article would not have been prepared as part of my duties. It was prepared by me on my own initiative.

However, the fact that I draw on information which I acquired as a Government officer or employee, and the fact that I use the Government facilities, that is, the Army library, might make it questionable whether this particular work was prepared within the scope of my employment.

And that is an example of a case where the departments believe that the part-of-duties test, which would clearly give the work to the employee, is better than a scope-of-employment test, which might give the rights in the work to the Government.

Mr. TENZER. I am referring to Mr. Freudenberg's statement on page 3, last paragraph, which I quote:

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.

Lieutenant Colonel MURPHY. That is right.

Mr. TENZER. This is the position that the Department of Defense takes with respect to this type of work done by employees?

Lieutenant Colonel MURPHY. We take the position that improper abuses of Government time, facilities, and materiel should be controlled by regulations and by disciplinary action, and not by having a prohibition in the statute which would make the copyright in an improperly prepared work invalid, because with such a prohibition in the statute, there is a danger that you might invalidate some copyright obtained by a perfectly honest employee.

Mr. TENZER. For my information and discussion of the subject before our committee, I would very much like to see copies of the rules and regulations of your agency with respect to this subject. On top of page 4, you say, and I quote:

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 would like to know what those procedures are.

Mr. KASTEN MEIER. If the gentleman will yield, there is an attachment 3, numeral 5, as a part of Mr. Freudenberg's testimony, which is captioned: "Writing for Publication by Defense Personnel as Individuals."

Mr. FREUDENBERG. I think we could supplement this.

Mr. TENZER. That is just a general reference; there must be specific rules and regulations or procedures to cover the subject.

Mr. FREUDENBERG. Yes.

Mr. KASTENMEIER. And the preceding page of the attachment also relates to this question. All of attachment 3 deals with this.

Mr. FREUDENBERG. Particularly, I call the attention to section 202 of this new Executive order, because it refers specifically to this: an employee shall not engage in any outside employment, including teaching, lecturing, or writing, which may result in a conflict or an apparent conflict; and then there are other things in here about not using information related to his employment.

There are a number of regulations, but I point out that this Executive order is dated May 8, 1965. It is my understanding that this will first be implemented by the Civil Service Commission, which has the primary responsibility for reviewing all of the agency regulations which will implement this order.

Mr. TENZER. I appreciate that, and I would appreciate receiving it. It is a very interesting area. We had some discussion before our committee on the book written by General Eisenhower of his war experiences, and also one written by Mr. Hoover, and while I have no views on either one of them at the moment, I would very much like to see if this can be further developed, so that our committee will have all the information before we close our hearings.

Lieutenant Colonel MURPHY. Mr. Tenzer, if I could volunteer something else, I do have with me, and I will give to you and to the committee, considerably more detailed excerpts of the regulations of the Department of Defense, and particularly of the Department of the Army, which control the writing and lecturing activities of military and civilian personnel.

Mr. TENZER. Thank you very much.

Mr. KASTENMEIER. Mr. Cors?

Mr. CORS. No questions.

Mr. KASTENMEIER. Just one other comment on that.

The question becomes more cloudy at a higher echelon, apparently. Would these same regulations apply to Mr. McNamara, who may be writing memoirs at this time, using staff people, as it would to any other employee of the Department of Defense?

Mr. FREUDENBERG. I think we have appreciated that it does become a little bit more cloudy. Unfortunately, the famous Rickover case we had hoped might help to resolve some of this, but it went all the way to the Supreme Court, and then was remanded to the district court, and it is being retried, and whether or not there will be some judicial language coming out of this we are not sure, but it is very difficult for us to speak to this particular question.

Mr. KASTENMEIER. I can appreciate that.

Thank you both very much.

Mr. KASTENMEIER. At this point, the Chair would like to announce that the National Aeronautics and Space Administration statement has been received. Without objection it will be placed in the record.

(The document referred to follows:)

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
Washington, D.C., June 17, 1965.

Hon. EMANUEL CELLER,

Chairman, Committee on the Judiciary, House of Representatives,
Washington, D.C.

DEAR MR. CHAIRMAN: This is in further reply to your letter of February 23, 1965, requesting the views of the National Aeronautics and Space Administration 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 appears to be a revision of the bill H.R. 11947 which was introduced in the last Congress. That bill had been the subject of extensive study by the Copyright Office and by agencies in the executive branch of the Government. As more specifically indicated below, there were provisions in H.R. 11947 which this agency considers to be more workable than those in the latest form of bill.

In this report the National Aeronautics and Space Administration has restricted its comments to those specific provisions of the bill which would directly affect its activities, programs, or personnel.

Section 105 of H.R. 4347 is a substantial revision of section 4 of the comparable H.R. 11947. Generally speaking NASA feels that the earlier section is preferable.

With respect to subsection 105(a), it is recommended that the word "published" be inserted before the word "work" in line 8. This would permit the Government to continue to exercise rights in unpublished works, as is done under the current law. The proscription of 17 U.S.C. 8 that no "copyright shall subsist in the original text of any work which is *** in any publication of the United States Government ***" is not considered applicable to unpublished works of the U.S. Government. While it is recognized that H.R. 4347 proposed to establish a single national system of statutory protection for all works whether published or unpublished, we are of the opinion that this should not affect whatever rights the United States currently enjoys in its unpublished works, especially since a primary reason for the bill is to codify current law. Section 105(b) of H.R. 4347 defines "a work of the United States Government” as "a work prepared by an officer or employee of the United States Government within the scope of his official duties or employment." It is recommended that the definition in the earlier draft of bill be used, e.g., “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." The amendment would accurately reflect the case law available on the subject. The prohibition against copyright in "any publication of the United States Government" (17 U.S.C. 8) has been interpreted to apply only to works prepared by Government employees as part of their official duties. The intepretation of the phrase "within the scope of his official duties or employment" may be broader than the recommended phrase and result in reducing the opportunity for Government employees to obtain copyrights in their creative works. It might be alleged that a work not produced as part of an employee's duty is nevertheless within the scope of his official duties and would be a "Government publication."

An example might be a work prepared by an employee on his own initiative outside of his assigned duties but generally discussing an area of technology in which the employee is expert. We feel that the definition in the current draft of bill would effect a loss of incentive on the part of the Government employee and would result in fewer contributions of the type that require time and effort to prepare. It is interesting to note that the Bureau of the Budget in a letter to the Register of Copyrights, dated December 3, 1964, adopted the following definition :

"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."

Section 105 should also be amended by inserting an additional subsection (similar to section 4 (c) of H.R. 11947) directed to the right of the U.S. Government to copyright its publications in certain exceptional cases. The amendatory language would be as follows:

"In other exceptional cases, copyright may be secured in a published work of the United States Government where, because of the special nature of the work or the circumstances of its preparation, it is determined that copyright protection would result in more effective dissemination of the work or for other reasons would be in the public interest. The head of the Government agency for which the work was prepared shall make the determination in each case in accordance with regulations established by an administrative officer designated by the President, and shall publish a statement of the basis for its determination in each case in the manner specified by such regulations."

Such a provision would give the Government the opportunity to enter into competitive negotiations with private publishing firms in exceptional cases so that selected NASA publications could receive the widest possible distribution as required by section 203 (a) of the National Aeronautics and Space Act of 1958.

The negotiating position of the Government depends on its ability to provide copyright protection for a period of time to the publisher in exchange for the distribution and related services. If necessary the rights of the Government to copyright in such exceptional cases can be limited to a shorter period of time; for example, 5 years (rather than the full term), which may be sufficient time for the publisher to regain his initial publishing costs.

Permitting the issuance of copyrights to Government agencies in exceptional cases would also facilitate copyrighting of U.S. Government publications abroad. It is a commonly held opinion that the prohibition against obtaining copyright by the Government applies to domestic copyrights only. Thus, the Government may copyright abroad when that serves its best interests. While we feel that many foreign signatories to the Universal Copyright Convention would honor the copyright of the U.S. Government in their respective countries under the Convention, we are aware that article IV, paragraph 4 of that Convention provides, in essence, that the foreign country in which registration is sought is not obliged to grant protection for a period longer than that granted by the State in which the work is first published. Accordingly, if the United States does not protect its own Government publications a foreign nation may take the position that, since the U.S. Government publication cannot receive protection in the United States, such publications cannot receive protection elsewhere. Accordingly, it appears to be in the best interests of the United States to permit copyright in certain exceptional cases so as to provide opportunity for foreign copyright and to prevent loss of potentially valuable foreign rights.

We urge that a subsection similar to that appearing in H.R. 11947 as section 4(d) be restored to section 105 of the current bill, that is:

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

A similar provision also appears in the current law (see 17 U.S.C. 8). It is believed desirable to retain such a provision in the statute to provide assurances to authors and to preclude the argument that deletion of this provision from the present statute implies that such protection is no longer available.

We endorse the requirement for a copyright notice on each work for which copyright protection is sought. We feel that such notice plays a most useful role in alerting all concerned as to works protected by law and those not available for duplication and permits one to identify at a glance works that have entered the public domain without resorting to inconvenient and extensive searching.

The present statute does not contain a provision recognizing the so-called fair-use doctrine which permits the utilization of copyrighted material under certain conditions. Section 107 of H.R. 4347 is a summary provision which simply states, without definition of the term, that "the fair use of a copyrighted work is not an infringement of copyright." Section 6 of H.R. 11947 was a much more meaningful provision on the subject. This agency feels that a fair-use provision should be incorporated in the bill and that the more definitive language of section 6 of H.R. 11947 should be used.

Subject to the amendment of the bill in the foregoing respects, the National Aeronautics and Space Administration concurs in the enactment of H.R. 4347. The Bureau of the Budget has advised that, from the standpoint of the program of the President, there is no objection to the submission of this report to the Congress.

Sincerely yours,

RICHARD L. CALLAGHAN, Assistant Administrator for Legislative Affairs.

Mr. KASTENMEIER. The next witness today will be Mr. A. J. Rosenberg, vice president of and representing McGraw-Hill Book Co., TextFilm Division.

Mr. Rosenberg.

STATEMENT OF ALBERT J. ROSENBERG, VICE PRESIDENT,
MCGRAW-HILL BOOK CO.

Mr. ROSENBERG. Mr. Chairman, I am Albert Rosenberg, vice president of McGraw-Hill Book Co. and general manager of the TextFilm Division. My responsibility is primarily the production and distribution of audiovisual materials for educational purposes; motion pictures, filmstrips, transparencies, and so forth.

I am grateful for the opportunity to testify and to make a point of how important the entire copyright problem is to our field.

We at McGraw-Hill are members of the National Audio-Visual Association, the American Book Publishers Council, and the American Textbook Publishers Council; and we endorse the position presented by these organizations.

We also are in favor of a revision of the copyright law and will support the revision because we feel sure it will be fair and just, and that it will protect everyone who spends time, money, and creative talent in producing copyrighted materials. The development of our product depends primarily on this copyright protection.

However, there are two areas of great concern to us. First, section 109 (2) which we interpret as making possible the transmission of educational filmstrips, slides, and transparencies over open or closed circuit educational television without any special license or permission from the copyright owners. This will create a serious problem for

us.

Second, the recommendation has been made by previous witnesses that an exception be granted to provide for the transmission of excerpts of educational films and from other types of works without any special license, fee, or permission.

We feel that this section 109 (2) and this request will cause problems for all educational film producers.

Educational film production is a very time consuming and costly operation and necessitates the maintenance of a fairly large staff to produce such instructional materials.

Let me explain briefly how we produce educational motion pictures. We maintain an extensive editorial staff whose members belong to the various educational associations and who work with the many educational committees in the development of new areas, new plans, and new approaches to the educational field.

We also maintain a large group of sales representatives who also are responsible for keeping us informed on new trends and new needs in education, particularly on the grassroots level.

From our field staff and editorial staff, we receive suggestions and ideas for new materials for school use.

These suggestions are screened internally by the entire editorial staff and analyses are made as to the possible market. We then mail questionnaires to subject matter teachers. As a result of the questionnaires and some field interviews, we will decide to produce a certain series of motion pictures; for example, U.S. geography.

A topflight consultant, preferably one who is teaching in the field, is put in charge of the educational content and one of our editorial staff members is assigned to work with him in preparing brief outlines on the subject matter. Once the outlines are prepared, they