tion of a foreign country pursuant to any law, decree, regulation, order, or other action of the foreign government requiring such transfer, shall not be given effect for the purposes of this title."

As proposed in S. 1359, this provision could be inserted as a new subsection (d) to section 9 of the present statute. It could also be added to section 104 of S. 1361 as a new subsection (c).

PUBLIC DISPLAY OF WORKS OF ART; NOTICE REQUIREMENT

Your letter refers to an article in the Summer 1973 issue of Art News which suggests that the notice requirement in section 401 of S. 1361, coupled with the definition of "publication" in section 101, would place artists in a less favorable position than they have under the existing statute, particularly when original works of art are displayed publicly.

We consider it unnecessary to amend the definition of “publication" in S. 1361 in order to exclude the public display of an original work of art, as suggested in the article in Art News. In our view, the public display of an original work of art would not constitute publication of that work under the bill. "Publication" is defined in section 101 in terms that exclude public display of the single original "copy" of a work. Distribution of copies or the offering to distribute copies are the operative acts. The "offering to distribute copies . . . to a group of persons for purposes of further distribution, public performance, or public display" would constitute publication; this would cover, for example, the offering to supply copies of a motion picture to a number of theaters or broadcasters for public "performance" or "display." Public performance or public display itself would not constitute publication.

...

The concern on this point expressed in the artice in Art News appears to be founded on the supposition that the notice requirement in section 401(a) of S. 1361 might be held to apply to an original work of art when it is publicly displayed. To put to rest any such supposition, we suggest that the Committee report include a statement similar to the following one that appeared in House Report No. 83, 90th Congress, at pages 110-111:

"Sections 401 and 402 set out the basic notice requirements of the bill, the former dealing with "copies from which the work can be visually perceived," and the latter covering "phonorecords" of a "sound recording." The notice requirements established by these parallel provisions apply only when copies or phonorecords of the work are "publicly distributed." No copyright notice would be required in connection with the public display of a copy by any means, including projectors, television, or cathode ray tubes connected with information storage and retrieval systems, or in connection with the public performance of a work by means of copies or phonorecords, whether in the presence of an audience or through television, radio, computer transmission, or any other process."

For further assurance, we suggest that the Committee report add, after the statement quoted above:

It should be noted that, under the definition of “publication" in section 101, there would no longer be any basis for holding, as a few court decisions have done in the past, that the public display of a work of art under some conditions (e.g., without restriction against its reproduction) would constitute publication of the work. And, as indicated above, the public display of a work of art would not require that a copyright notice be placed on the copy displayed.

The article in Art News also proposes that the notice for works of art should consist only of the signature of the artist and the date of execution, and that the notice may appear on the front, back, base, frame or on any other readable part of the work.

The Copyright Office is aware that many artists fail to take advantage of the opportunity to secure copyright for their works, and do not comply with the notice requirements of the present copyright statute. The general revision bill incorporates liberalizing provisions that should enhance the opportunity of artists to claim copyright protection. For example, as already indicated, copyright would not be lost (as it may be in some cases under the present law) when an original work of art is placed on public display in galleries, museums, etc., without a convright notice. Where the work is reproduced in copies that are publjely distributed. a copyright notice on those copies would still be required; but the provisions in sections 401-406 of the bill as to the notice requirement are much less stringent than in the present statute, with respect to both the position of the notice and

the consequences of errors and omissions. The Register of Copyrights would be authorized to prescribe by regulation, as examples, specific positions of the notice on various types of works that would be adequate, and we have no doubt that the front, back, base, or frame of a work of art or other readable position would be acceptable.

We would not favor a notice consisting only of the signature of the artist and the date of execution. The symbol "," the word "Copyright," or the abbreviation "Copr." constitutes an essential element in giving notice that copyright is claimed. In effect, to eliminate this element would be tantamount to eliminating the notice requirement. We see no valid reason for excluding published copies of works of art from the general notice requirement.

SECTION 112 (C)

The Copyright Office agrees that the phrase "or of a sound recording" in section 112(c) of S. 1361 is unclear in scope and could be construed, as it stands, as including all sound recordings of any nature. We assume that the exemption in section 112(c) for the inclusion in certain transmission programs, under stated conditions of a performance of a nondramatic musical work of a religious nature, was intended to allow also the inclusion in those programs of a performance of a copyrighted sound recording of such a musical work. If this was the intention, we suggest the insertion, after the phrase "or of a sound recording," of the words "of such a musical work."

We see no need for an explicit definition in the bill of the term "transmitting organization" which appears in section 112(a) as well as in section 112 (c). The term "transmit" with respect to a performance or display is defined in section 101; thus, paraphrasing that definition, a "transmitting organization" under section 112 (a) and (c) would be an organization that communicates a performance or display of a work by sending images or sounds from one place to another. It is important to note that section 112 (a) and (c) both relate only to "a transmitting organization entitled to transmit to the public a performance or display of a work, under a license or transfer of the copyright." This limitation serves to define further the “transmitting organizaions" to which those sections refer. We shall be glad to assist you further in any way you may wish. Sincerely yours,

ABE A. GOLDMAN, Acting Register of Copyrights.

U.S. SENATE,

Washington, D.C., August 1, 1973.

Hon. JOHN L. MCCLELLAN

Chairman, Subcomittee on Patents, Trademarks and Copyrights,

Committee on Judiciary,

U.S. Senate,

Washington, D.C.

DEAR JOHN: I would appreciate it if you would make the enclosed statement part of the hearing record on S. 1361 which is currently under consideration by your subcommittee.

With best wishes.

Sincerely,

Enclosure.

ALAN CRANSTON.

STATEMENT BY SENATOR ALAN CRANSTON ON S. 1361

I would like to commend the members of this committee for their hard work and persistence in undertaking a revision of the Copyright Law.

I am particularly interested in Section 111 of the bill, S. 1361, which concerns copyright fees connected with the carriage of television signals. There has been considerable debate and disagreement over the setting of fees paid by cable TV operators for material taken from distant commercial television signals and rebroadcast to cable subscribers.

I believe it is important that viable ground rules be established to deal with this complex issue, and I congratulate this committee for taking forthright action to try to resolve the matter in the new copyright bill. The establishment of a fixed fee schedule in the legislation is one approach to the problem. Perhaps the fees outlined in Section 111 are fair and realistic. I do not suggest that they are not.

But I do question whether sufficient study has been made of appropriate fee levels to be certain that those contained in the bill are the fairest and most equitable for all parties.

I would feel better able to speak to this point if hearings had been held on fee levels. Without the benefit of such hearings, I question whether the copyright bill should mandate specific fees to be paid to copyright holders.

I understand that intensive efforts and long hours of exchange and discussion took place in 1971 between all interested parties in this matter-the motion picture industry, the commercial broadcasting industry, and the cable TV association. With the assistance of the Chairman of the Federal Communications Commission and the Director of the President's Office of Telecommunications Policy, these parties agreed to a so-called Consensus Agreement. Due to the difficulty and complexity involved in arriving at mutually acceptable copyright rates, the Consensus Agreement provided for compulsory arbitration on the matter of fees if the parties were not able to reach agreement on their own.

It seems to me this approach to fee setting would be a fair and reasonable approach. Compulsory arbitration has no built-in advantages for either side-the copyright holders or the users. An Arbitration Tribunal, composed of experts without bias, would seem to me to afford the best chance for arriving at a fair and reasonable settlement of this complex, difficult problem.

Assurance of a reasonable rate of return for the producers of copyrighted material is of particular interest to me. The holders of copyrights and producers of copyright material represent the creative elements in our society who through their talents and labors make available to the public artistic and educational programs. They are entitled to a realistic schedule of copyright fees.

But even more important than reward is encouragement for them to produce more and better.

The motion picture industry in California makes a significant contribution to the entertainment of our nation. Cable television is likely to be an extremely influential and important segment of the broadcast media in the years ahead. The ground rules set by this copyright legislation will undoubtedly have a lasting influence on both these industries.

I urge my colleagues to examine carefully in the course of these hearings whether the prescribed fee schedule for copyright material in Section 111 is the wisest course for Congress to follow.

FEDERAL LIBRARIANS ASSOCIATION,
Washington, D.C.

STATEMENT OF THE FEDERAL LIBRARIANS ASSOCIATION TO THE SUBCOMMITTEE ON PATENTS, TRADEMARKS AND COPYRIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY ON S. 1361

The Federal Librarians Association is a fledgling organization of professional employees in library, information and documentation centers of the United States government. Membership embraces librarians from Okinawa to Germany, as well as those in the continental United States.

The purpose of the organization is to provide a forum for the exchange of ideas and techniques in the library sciences as they are exercised in Federal agencies, and to provide mutual cooperation and support between these libraries with a common goal-to serve the United States government by providing the best possible library, information and documentation service to the general public.

The issue of library photocopying is a concern that this organization shares with others, and a common desire that justice and equity prevail. We are well aware that legislative drafting, especially in this field, is a difficult and often inconclusive art. Nonetheless, we believe that revision is necessary in the two subissues to which you have addressed yourselves, viz. what constitutes fair use, and the liability of the librarian and the user in ascertaining the requirements for making single copies.

We, the Board of Directors and the Executive Committee of the Federal Librarians Association, meeting in Alexandria, Virginia, on August 6, 1973, unanimously agreed that the language of sec. 107 in S. 1361 is necessary in the public interest, and provides statutory support to what "bench law" has often decided, viz. that the primary purpose of copyright legislation is "to promote the progress of Science and the useful Arts".

In regard to section 108 (d) we endorse without reservation the amendment recommended by the American Library Association in their statement presented

to you in the hearings on July 31, 1973, a copy of which is attached. We are happy to join our colleagues in the American Library Association in this recommendation which will not only protect librarians from undue and unjust liability, but also permit them to advance the public interest and to satisfy the national need for intellectual and scientific information.

STANLEY J. BOUGAS,

President, Federal Librarians Association.

STATEMENT OF EVAN H. FOREMAN, JUNE 15, 1973

I appreciate the opportunity of presenting testimony to this Subcommittee on Senate Bill 1361, designated a General Revision of the Copyright Law of the United States. Although I own several dozen copyrights on forms used in connection with a small family business, I oppose this bill on the grounds that it drastically and unfairly extends the rights of copyright holders to the detriment of the public.

As I understand this bill, the concept of publication, which under the present copyright law marks the beginning of the term of statutory copyright, would be abolished. The term of copyright would commence with the date of creation of the work and would last for a term measured by the life of the author plus fifty years in the case of individuals, and seventy-five to one hundred years from the date of creation for corporate copyright owners. (Sec. 302a S. 1361)

The Constitution, Article I, Section 8, Clause 8, provides that Congress shall have the power "to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries" (Emphasis supplied). This clause, which forms the Constitutional basis for all copyright legislation, was intended by the framers of the Constitution to benefit the public by encouraging invention and artistic expression through the grant of a limited monopoly.

Prior to the passage of the current act, the term of protection for published works was fourteen years, with a renewal period of an additional fourteen years. The current law doubled this period so that now copyright owners may claim two twenty-eight year periods of protection. As you know, Congress has, for some years, extended this protection so that works which would have otherwise fallen into the public domain remain copyrighted. Now, advocates for copyright in dustries, in seeking passage of S. 1316, argue that even fifty-six years is not sufficient time in which to exploit their works. These arguments are not only contradicted by the facts, but they are also offered in support of legislation which would work a grave injustice on the public.

Movies, songs, books and other copyrighted works reap the greatest financial benefits for their creators during the first year or so of their existence. After that, the pecuniary returns fall off drastically. The same copyright industries which seek to persuade Congress that a half century is too brief a period in which to exploit songs, movies, books and other copyrighted works have, however, successfully argued just the converse to the tax collector in securing for themselves the fastest possible depreciation write-off on their copyrighted properties. They have successfully convinced the tax collector that their work is more than ninety percent exploited within the first three years of its life.' Their contention therefore, that a half century is not enough to enjoy the financial rewards of their creation is contradicted by their own successful arguments to the Internal Revenue Service.

No proponent of this bill can convincingly contend that the public would benefit from further extension of the copyright holders' period of protection. To be sure, authors, composers and other creative persons must be given sufficient motivation to produce works which will enrich society's cultural pool. But it is only this benefit to the public which justifies the limited monopoly of copyright. The inclusion or extension of any rights in copyright which do not ultimately benefit the public is contrary to Constitutional intent in that it unduly rewards copyright owners at the public's expense. I therefore urge the Subcommittee to retain the present term of copyright, with the same renewal period, and bring to an end the temporary extensions which have heretofore been granted, and allow these many works, which are long past due, to fall properly into the public domain.

It is also suggested by copyright industry advocates, with equal vigor, that we should do away with the concept of publication, and have the period of copyright 1 Daily Variety, May 15, 1972, Pages 1 & 14, Exhibit 1.

commence, not with the date of publication, but with the date of creation of the work. It is argued that the concept of publication is outmoded and no longer serves a useful purpose. A logical analysis of the function of publication demononstrates that just the contrary is the case.

Presently a work must be published with proper notice to establish copyright protection. It is this publication which perfects the copyright-not the registration of one's claim of copyright with the Copyright Office, which must come after publication. The present act nowhere defines publication but Section twenty-six refers to the date of publication as the "earliest date when copies of the first authorized edition were placed on sale, sold or publicly distributed . . ." While this is not necessarily a literal definition of publication, it amply conveys the true meaning of publication; i.e., a dedication to the public. But, the proposed bill, S. 1361, by abolishing the requirement of publication, would mean that one could secure the protection of a statutory copyright without ever making his work public or without ever placing tangible 'copies in the hands of the public. Under such a system the copyright owner could reap the benefits of the copyright law but deprive the public of the eventual free and unfettered use of the copyrighted work. Where tangible copies of the work are sold to the public, as is the case now with most books and magazines, there is no danger. But, all too frequently, as in the case of motion pictures, the works are not usually sold to the public, but are merely shown temporarily and then recalled permanently by the owner. However profitable this may be, the actual and practical effect is to render the term "for limited times" a nullity, because without publication (meaning the sale of tangible copies to the public), at the end of the statutory period, the copyright would continue in perpetuity, since only the copyright owner would have lawful possession of any of the tangible copies. The intent of such copyright owners is amply demonstrated by a statment of Mr. E. Cardon Walker, President of Walt Disney Productions, quoted in the newspaper supplement "Parade," March 18, 1973, page 4, "A large share of our product is timeless, which means that we can re-release our pictures generation by generation." This industry practice does violence to the Constitutional mandate that copyrights shall be "for limited times" by insuring that "Snow White and the Seven Dwarfs" will never fall into the public domain and that our great-grandchildren, and theirs as well, will perpetually be paying Mr. Walker's stockholders to enjoy it.

2

Unless Congress enacts a law requiring publication and defines it as the distribution of tangible copies of the work to the public, like books and magazines, I submit that S. 1361 would be unconstitutional since the public would be denied its remainder interest in the copyrighted works. Without the requirement that tangible copies be distributed in order to perfect one's copyright, large copyright owners will continue to band together, file repressive lawsuits against private, individual citizens, claiming that their copyrighted products are never distributed to the public and ask for seizure of the copyrighted item.3 This would allow such a group to maintain perpetual and absolute control of copyrighted items. This is not what the Constitution intended and should not be sanctioned by Congress.

The above is not hypothetical. It is a reality under the present law, and the proposed law goes even further in extending protection to copyright owners. Under the present law the major motion picture companies, for example, have exercised almost complete control over nearly all their films in the United States. Through a small law firm on retainer to all the major U.S. film distributors, the motion picture industry has repeatedly threatened numerous film collectors with lawsuits in an attempt to discourage their collecting films. Through this same firm the industry has initiated extraordinary lawsuits against numerous others involving seizure without notice of the collectors' film prints and issuance of Temporary Restraining Orders. The effect of these actions has been to deny many citizens their property and because the defendants in such lawsuits are usually selected to be middle income film collectors, they are unable to compete with these corporations on an equal financial footing.

No matter how economically profitable it may be from the viewpoint of large corporate copyright holders, not to sell, but only "license for use" their copyrighted products, the unalterable result of such a method is to render perpetual control over the copyrighted item. This cannot be squared with the "for limited

2 Exhibit 2.

3 Memorandum Statement by the Copyright Committee of the Motion Picture Association of America, Inc. at page 1001, Hearings before Subcommittee No. 3 of the Committee on the Judiciary, House of Representatives, First Session, 89th Congress, Copyright Law Revision, Serial No. 8, Part 2, Exhibit 3.