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in June, and a very few, mainly technical, points that I felt I should raise independently since no one else has mentioned them.
This supplementary report is nearing completion in draft forin, and I plan to present it to the Librarian of Congress for submission to Chairman Rodino of the House Judiciary Committee and Chairman Eastland of the Senate Judiciary Committee as soon as possible. In its final form, the report will consist of about 15 chapters organized by subject matter in roughly the same order as the bill. At the beginning of each chapter the report will identify the sections involved and the issues remaining to be decided. The body of each chapter will, in varying ways depending upon the nature of the problem, review the background and content of the provisions of the bill in question and explain the nature of the issues raised and the arguments with respect to them,
The last section in each chapter will consist of comments and recommendations put forward by me as Register of Copyrights. In some cases, I will put forward alternatives or suggested possibilities for methods of compromising disputed issues. My purpose here is not to add one more burden to the already heavy load of proposals you need to consider, but to help you to find ways of deciding among the disputed proposals and debated points you already have before you. I have opinions on some of the matters before you and I will be honest about expressing them when need be, but I have no axes to grind. You, the members of this subcommittee, are the only decisionmakers in this room. My aim is not to influence you; it is to help you, in any war I can, to do your legislative job.
During my scheduled 2 days of testimony, I will first seek to give you an overview of the bill and to show how its many parts fit together, I will then start with chapter 1 of the new title 17 of the C.S. Code, as revised by the bill, and proceed by subject matter through to the end. I am attaching to this statement the drafts of the first five chapters of the supplementary report, which I will use as the focal point of my testimony. And depending on the amount of time we have, and the way the hearing goes this morning, I will probably read some segments from that draft.
On October 23, I will do my best to give you the draft text of the remaining chapters.
Today, I will try to cover the following topics: (1) Subject matter of copyright. (2) Fair use and reproduction for educational and scholarly purposes. (3) Reproduction by libraries and archives. (4) General limitations on performing rights. (5) Secondary transmissions-CATV-normally known as cable television.
These topics include the three most important and difficult issues remaining in general revision. I believe that all of them are susceptible of reasonable solutions. My hope is that my testimony this morning will not only sum up the results of the hearings on these hard issues, but will also help your subcommitee succeed in finding these reasonable solutions and reporting a good bill.
Thank you. Mr. KASTENWEIER. Thank you, Ms. Ringer. At this point I am chagrined to observe that there is a vote going on on the House floor, a recorded vote on the question of H.R. 7706. We will have to recess briefly. We will, I hope, be back very soon. I hope you will indulge us in this difficult task of competing with the House floor for attention. We will recess for 10 minutes. Perhaps we can come back sooner.
[Recess.] Mr. KASTENMEIER. The committee will come to order. You were saying, before we were so rudely interrupted ? Ms. RINGER. Thank you, Mr. Chairman. I had just finished my short opening statement. Perhaps I could give you, at this point, a brief summary of what the Senate full committee, the Judiciary Committee, did on Tuesday. I could do it later. It is a little hard to know exactly how to fit it in, Mr. Chairman. It is going to be obtrusive any time that I do it. I think perhaps now is as good a time as any.
One of the subjects I was going to talk about this morning was directly affected by the Senate Judiciary Committee's actions, and only one.
Jir. KASTENMEIER. Well, Ms. Ringer, use your own judgment in the matter.
Ms. RINGER. All right. To summarize the information I have—and I have seen nothing in writing, for I just have notes of the conversations—the Senate full committee completed all action and ordered the bill reported, with certain amendments. The Senate will be in recess next week, and the expectation, as I am told, is that there is no prospect of floor action until November, but there is a good possibility of it then, and that the chances of any referral to the Commerce Committee in the Senate, as happened last year, are remote.
There were three amendments to section 111 on cable television, and I think I will just skip over them, because I am going to be discussing that today. They were just clarifying amendments.
There was an amendment effecting the liability provision of section 501 (c), which, as I am told, means that the subsection which permits local broadcasters to sue as copyright owners in infringement actions under section 111, would be retained, but would be limited to cases of willful and repeated violation.
The other amendment, which I think is the most important one with respect to cable, was in chapter 8 of the bill. I must confess that the information I have is slightly unclear as to the scope of this amendment, but at least as far as cable, and perhaps with respect to the other review activities of the ratemaking part of the tribunal is concerned, apparently the time limits, the so-called stretchout, was expanded from 6 months and 5 years to 3 years and 10 years. In other words, the review periods would be substantially increased, leaving the existing fees in effect considerably longer.
With respect to the mechanical royalty section, there was one clarifving amendment, which I don't think I need to go into. But, the most important thing was that the 3-cent rate was reduced to 212 cents. That was a very simple amendment.
I think the votes there were not record votes, but I canot be sure This is informal information I was given.
Most of the substantive discussion in the Judiciary Committee was over the Mathias amendment, which, as you can recall, is not before rou in the form of legislation, and was introduced only at the full committee markup session. I really don't know exactly what the language is, but, in effect, the Mathias amendment was accepted. This would set up a compulsory license for performances by a nonprofiit
public broadcasting organization. Instructional television has an ex. emption, but the public broadcasters, both radio and television, would have a compulsory license for performance of nondramatic literary and musical works. I gather that there were some minor amendments in
favor of the copyright owners, but essentially the Mathias amendment was accepted. I am told it was pretty one sided. I was told that there were three supporters of deleting or not accepting the Mathias amendment, and that probably the other eight were in favor of it.
The Bayh amendment was not put forward. I gather Senator Bayh, who was there, indicated that he had changed his mind and was withdrawing it. This is the amendment of section 112, that would take any Immit off of the number of video tape recordings that an instructional broadcaster could make and shop around. That, apparently, has been taken out of issue, as far as the Senate is concerned.
The Judiciary Committee adopted the changes that the subcommittee had suggested in section 301, which is the section dealing with the preemption of State law. But, an additional issue, which has been raised by the Justice Department, that had not been adopted by the subcommittee, was raised in the full committee. An amendment was put forward by Senator Burdick which was accepted, and this would make the preemption of State common law not applicable to sound recordings that had been fixed before February 15, 1972. In other words, these would still be subject to protection, or whatever you want to call it, under the various State laws that had been enacted since record piracy became a big problem. This is obviously something I will address myself to in detail when we come to that chapter.
Probably the most startling thing that happened was a proposal by Senator Abourezk to shorten the copyright term. I don't know all the details of this, apparently it was not accepted, but the vote was very close. I think most people had not expected it to be an issue, so what happened came as a surprise.
There was some discussion of a so-called ballroom operators' exemption, which has not been put before you in testimony but has been discussed in the Senate. I think you may have received some mail on it. It was voted down. This was a proposal that ballroom operators and similar entrepreneurs be freed from vicarious or related liability in the case of a situation where an independent contractor on their premises is actually choosing the music to be played. In this case, the vote was fairly one sided against the amendment.
There was a proposal to delete the entire royalty tribunal, and this Tras defeated by a voice vote. Apparently, this was not a widely supported amendment. I would say, of the things the Senate did, the 21,cent matter, the stretchont, and obviously, the Mathias amendment, were the most important amendments.
If you have any questions, I will try to answer them, but I must confess my information is sketchy.
Vr. KASTENMEIER. Did they not consider the performance royalty for musicians?
Ms. RINGER. My impression is that the point was not raised or discussed at all. I did ask directly and received a direct answer, that the questions of educational exemptions and library photocopying were not raised or discussed at all.
Mr. RAILSBACK. May I ask a question?
Mr. KASTENMEIER. Surely.
Mr. RAILSBACK. Well, what reason was given, or what reason ever has been given for not taking up the performance royalty in the Senate? I think there must be a reason. Is it because another committee might take it up, or what?
Ms. RINGER. No, it is somewhat complicated, but let me try to explain it, as I understand it. Section 114 of the 1974 bill before the Senate action was the most controversial issue in the Senate last year. It was one of the reasons for the referral to the Commerce Committee of the bill for the 15-day period. And the Commerce Committee did report the bill after the 15-day referral, with some changes in section 114. When it came to the floor, the issue was very vigorously debated on the first day of the debates. And it was pretty apparent that it wasn't going to go.
And after considerable discussion, 3 days later, I believe, the Senate deleted the whole provision as far as the performing rights are concerned. There is still section 114, but the performing rights went out.
In his final remarks in the Senate, Senator McClellan indicated that this did not preclude Senator Scott, who was the principal supporter, from reintroducing the bill as separate legislation. I have forgotten exactly how this was declared, but a statement was made publicly that Senator Scott would be expected to hold hearings on the separate legislation. In fact, in the 9th Congress, he did introduce this as separate legislation and Representative Danielson has done the same thing. This is the same bill. It is in the form of an amendment to the 1909 law.
And it was the subject of hearings in the Senate the day after you had hearings on the same subject. I believe that it is still being considered there in the context of separate legislation as an amendment of the 1909 law. One could infer that the managers of the bill, which include, obviously, Senator McClellan and Senator Scott, have agreed to deal with it as a separate problem and not put it into the discussion in the committee of the general revision bill.
Mr. RAILSBACK. Thank you.
Ms. Ringer. Do you have any other questions? All right, I will now seek to give you a very brief overview of II.R. 2223, to try to preface a much more detailed discussion of the individual sections and chapters and issues.
The earliest drafts of the bill were prepared in the Copyright Office after the study period was over. I believe that it is appropriate to go into a little detail of what was done. We did collect a mass of writings on the subject. The question of copyright revision, obviously, has a long history and has produced an enormous amount of commentary. We did go through all of this in an attempt to observe what it contained in a substantive way. More importantly, for this purpose, we got together all of the revision bills that had been introduced, going back to the 1920's, and most importantly, the product of a very major effort that had been conducted just before World War II, which produced what is known as the Shotwell bill. There was a blue-ribbon committee, chaired by James Shot well, of the League of Nations and Columbia University fame. It had produced an excellent bill for the 1940's but it
died when the war came. I don't think that speaks to any fault in the billitself, but the impetus just went out of it.
We also put together, by subject, all of the foreign bills we could find that bear on this. They fall into very clearcut patterns. And we attempted to try to integrate all of this information to see how all of these different things decided or proposed to decide certain questions. We did this to make sure we weren't missing anything and to see how others have tried to fit the subject matter together in some kind of rational way.
I don't think in the end we really copied anything. We integrated and absorbed it, but I don't think there is anything in this bill now that was ever really copied from anything else.
On the other hand, it is a curiosity to find that your bill has been adopted in some foreign countries and in some foreign treaties. In other words, we had legislated and made treaty law by this longdrawn-out legislative process. There is a certain irony to that. It is startling to see the language we are familiar with here turning up in translation in other laws.
In any case, patterns are detectible throughout the whole range of this previous effort and the etiort throughout the rest of the work. These things do fall into predictable categories. I think if you go back and read our earliest drafts from 1963 and the 1964 bill, which was our first essay in this field, I think you will find the structure almost the same. There have been, of course, some additions.
Title I of the bill is the basic revision of the present title 17 of the United States Code, which is the 1909 law, as amended. That is all it is. It does not contain anything else.
The title falls into eight general subject beadings, which are the chapter headings listed on the first page of the bill. I certainly don't need to go over them for this purpose. But, this does not exhaust the subject matter of the bill.
I might add in this connection, Mr. Chairman, that the eighth of these was added in the Senate after you finished your work on the bill in 1967. It does establish the Copyright Royalty Tribunal, which has grown in the scope of its duties since its original introduction into the bill. Originally, we had only seven chapters. And then tucked Letween titles I and II are a whole range of transitional and supplementary provisions which are very detailed but contain some interesting little nuggets here and there. And I will try to point them out to you, when we come to them, although I do not believe that any of them were raised in any of the testimony except that of the Government witnesses on the second day. And I will try to point those out to you when we come to them.
Then we have title II, which is a completely separate piece of legislation, namely, the Design Protection Act, which was the subject of hearings in the House and it passed the Senate three times. It passed twice separately and the third time as part of this legislation in 1974. But, it has not been integrated quite as well as it should be. It just starts out “title II” and then you have the introduction. And I think someone, and I believe it was the Department of Commerce, said that it should be integrated better, because it may not be clear in a different context, if this were enacted into law, what titles you are talking
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