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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.
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. 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
» Exhibit 2.
3 Memorandum Statement by the Copyright Committee of the Motion Picture Association of America, Inc. at page i001, 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.
times" language of the Constitution. The history of motion pictures under the present law provides an example. While theoretically, under the present law, the fruit of the tree drops into the public domain at the termination of the statutory period to enrich the cultural pool of the public, this has not, in fact, happened. The majority of motion pictures created in the United States have disappeared altogether, many prior to the expiration of even the first twenty-eight year term of protection. The public has forever been deprived of this part of its cultural heritage which its ticket purchases have financed and the Constitution has held is its due. This harm is irrepa rable. Such works cannot and do not fall into the public domain because not a single tangible copy remains in existence. Copyright here has become a chess game in which the public is permanently checkmated.
For the foregoing reasons I respectfully urge that no legislation be approved by this Subcommittee or by Congress which lengthens the term of statutory copyright, or which fails to make publication, defined as the sale of tangible copies to the public, à specific requirement to perfecting copyright protection.
(Note: The Exhibits referred to by Mr. Foreman are in the files of the Committee.)
AUGUST 7, 1973. STATEMENT BY MORTON I. GROSSMAN, VA WADSWORTH HOSPITAL CENTER, Los
ANGELES, CALIF. I am Morton I. Grossman, MD, PhD, Senior Medical Investigator, Veterans Administration Wadsworth Hospital Center, Los Angeles ; Professor of Medicine and Physiology, UCLA School of Medicine, Los Angeles ; former president of the American Gastroenterological Association; former member of the editorial boards of American Journal of Physiology, Gastroenterology, Handbook of Physiology, UCLA Forum in Medical Sciences, and others; currently Chairman of the Editorial Board of the official journal of the American Gastroenterological Association, Gastroenterology.
I appreciate this opportunity to present my view of the copyright bill, S. 1361, and request that this statement be made part of the official record. I speak as a private individual, not as a representative for any of the organizations listed above.
Any new provision of the copyright law that impaired the ability of individual scientists to obtain copies of individual articles published in scientific journals would be a serious impediment to the flow of information that is essential for scientific progress.
I oppose any plan that would require the payment of royalties for photocopying individual articles in scientific journals. Such royalties cannot be viewed in the same light as royalties on literature for the writing of which the author earns part or all of his living. Scientists are not paid a fee for publishing their results in scientific journals. No fee should be charged for making individual copies of such articles. Copyright privileges in the case of scientific journals should be used only to safeguard against unethical use, not as a means of providing income to publishers or scientific societies.
The proposal by the American Library Association to substitute section 108 (d)(1) of the present Bill with this new wording :
"The library or archives shall be entitled, without further investigation, to supply a copy of no more than one article or other contribution to a copyrighted collection or periodical issue, or to supply a copy or phonorecord of a similarly small part of any other copyrighted work.” would accomplish the purposes I have set forth.
SUPPLEMENTAL STATEMENT OF BELLA L. LINDEN, Ox GENERAL REVISION OF THE
U.S. COPYRIGHT ACT, SUBMITTED ON BEHALF OF HARCOURT BRACE JOVANOVICH, INC., AND MACMILLAN, INC.
The particular impetus for this Supplemental Statement is the inquiry made by Senator Burdick into precisely how libraries can be expected to record and transmit compensation for numerous individual photocopying uses, and his request for a description of the administrative techniques and budgets which would be involved. Accordingly, this submission will be directed towards the issue of compensation for library photocopying. Insofar as compensation for the use of copyrighted materials in information storage and retrieval systems is concerned, most technologists seem to agree that there is no significant administrative or financial burden in programming computer systems to identify and record the various works stored, manipulated and retrieved. The current issues with respect to use of copyrighted materials in information storage and retrieval systems do not appear to be those of the mechanism of compensation, but rather the points at which the obligation of compensation should attach-i.e. at input, during manipulation, or upon retrieval—and whether a rate making authority, such as that discussed in connection with CATV, should be created. We believe these are issues best suited to consideration by the proposed National Commission on New Technological Uses of Copyrighted Works.
* Films In Review, April, 1973, at page 224, Exhibit 4.
With respect to library photocopying, it appeared to me that the hearings on July 31st revealed a general agreement among the parties and the Members of the Subcommittee that library photocopying can be a valuable research tool which should not be prevented, but that copyright proprietors are entitled to a fair compensation for such use of their works. The library representatives, however, appear to take the position that although copyright proprietors are entitled to such compensation the presence of an obligation to pay such compensation will involve unbearable administrative burdens of identifying and recording uses. Their objection, in sum, appears not to compensation per se, but rather to the manner in which it could be provided.
Among the mechanisms of compensation for library photocopying which have been discussed are blanket licenses, subscription fee increments, clearing houses, per-use charges to requesting users, and others. Several, but not all, of these devices would admittedly involve "clocking” of individual uses. However the photocopying devices used by libraries today generally do record the number of pages copies and in many cases hardware manufacturers receive payment from libraries based upon such clocked uses. There is little doubt that any photocopying equipment can be adapted to use with similar clocking devices at nominal costs. Obviously, compensation schemes which will depend upon the number of pages copied by individual users will involve questions of identifying and segregating public domain and copyrighted materials. Similarly (and regardless of the particular compensation scheme envisaged) not all objects of photocopying must or should be treated in the same manner. Thus the copying of technical journals, of single encyclopedia entries, of text books, or of novels, poetry or music involve varying considerations and hence potentially varying forms and amounts of compensation. However these are problems which, again, the copyright proprietors themselves will have to resolve--and they will quite clearly be forced to resolve them in a manner which will assure a workable recordation and transmission of the compensation which they have stated they require in order to survive.
To attempt to calculate specific budgets for the implementation of various compensation systems at this time is a rather fruitless task. Any realistic estimate of the amounts which would be involved will depend not only upon the particular system—such as blanket licensing or per-use charges—but would require clearly defined samplings of the current practices of libraries, their photocopying procedures, and the nature of the copied works.
In all of American commerce the establishment of devices for payment of obli. gations has always been a problem of the entity to whom the obligation is owed, provided however that the law recognizes the product or service as private property and precludes preemption without the authorization of the owner. So too in connection with library photocopying the creation of workable devices for compensation is a problem which will have to be faced by those copyright proprietors who desire compensation. If their proposals and devices prove unworkable, the pressures of the marketplace will provide appropriate adjustments.
It is submitted that there is no justification for vitiating the authors and publishers rights by including the librarians' proposed Sec. 108 in the Revision Bill. It is respectfully urged that Sec. 108 of the Act as passed by the House plus leaving the unresolved issues to the National Commission proposed under Title II of the Bill would be an appropriate alternative in the event this Subcommittee considers that the appropriate adjustment between users and men. prietors cannot be left to the marketplace.
DETROIT PUBLIC LIBRARY,
Detroit, Mich., August 6, 1973. Hon. PHILIP A. HABT, U.S. Senate, Senate Office Building, Washington, D.O.
DEAR SENATOR HART: I am wriing to you in your capacity as a member of the Subcommittee on Patents, Trademarks and Copyrights—Senate Committee on the Judiciary, and asking if this letter can be placed in the record on Senate Bill 1361 (the copyright revision bill), Section 108(d), Photocopying for Libraries.
At a hearing held July 31, 1973, Senator McClellan proposed that the record be held open until the 10th of August so that additional testimony could be given concerning the amendment proposed by the American Library Association. I am writing in support of that amendment, that libraries need more protection under th provisions than "fair use." The bill should specifically state that libraries are free to make single copies to aid in teaching, research, and particularly in interlibrary loan. This act should be permissible and not subject to possible suit on behalf of the public good.
Thank you for your help in ing this endorsement part of the record. The Detroit Public Library and its Commission feel strongly that this protection is essential in order to continue quality library service. Sincerely yours,
MILDRED M. JEFFREY, Member, Detroit Library Commission.
INFORMATION INDUSTRY ASSOCIATION,
Bethesda, Md., August 10, 1973, Senator JOHN L. MCCLELLAN, U.S. Senate, New Senate Office Building, Washington, D.C.
DEAR SENATOR MCCLELLAN: We are pleased ot submit this letter as a supplemental statement on the Copyright Revision Bill, S. 1361.
We respectfully urge that the library and education exemption proposals be referred to the National Commission on New Technological Uses of Copyrighted Works to be established by Title II of the Bill. These exemptions raise serious and far-reaching queestions bearing directly on the ability of the copyright laws to fulfill its original constitutionally mandated purposes in informaton technology areas.
The proponents failed to provide any supporting economic data as to the impact of the proposed exemptions on suppliers of information and publications. The proponents failed completely to establish a sound case for their proposals.
The information industry is the only industry with any significant experience in the day-to-day business of creating and supplying information services of the kind libraries and schools would be in position to perform free of copyright if the exemptions were to be adopted. Great private resources are being applied to obtaining permission to use copyrighted materials, to account for their use and to fulfill user needs in creative and meaningful ways. It is the burden of the proponents of the exemptions to demonstrate by econojnic data that these efforts would not be damaged by their proposals.
They have failed to do so.
(1) The information industry is new and has grown u) in the years since the Senate, in 1967, first passed legislation to create the Nazional Commission. The Information Industry Association came into existence in 1969.
(2) The Library exemption proposal has been resurrec ed from a much earlier phase of the copyright revision effort and it is patently lear no effort has been made to accommodate its language to the fact of the new information technology applications and capabilities represented by information industry activities.
We believe this industry offers the most stimulating, ci eative and economically productive means for harnessing the new technologies to the dissemination of information and for the fulfillment of the purposes of the copyright law. There is no question that the effect of the proposed exemptions, together or separately, would be to destroy the economic foundations of this industry.
We recognize that that is not the intent of the exemption proposal. But that nonetheiless would be the result.
The development of the full potential of information technologies to store, search, find and deliver the precise information you want, when you want it, where you want it and in the form you want it is a costly and complex effort. The effort has only been started.
Private risk capital is being devoted to developing and refining information services designed to deliver just the single copy desired. Granting exemptions to provide alternative sources for similar services free of copyright would not only construct and eliminate opportunities for the industry, but it would also deny the people of the United States the benefit of the innovations in products, services and systems currently being funded by private risk capitál.
It should be noted that no evidence was submitted as to the financial or other capabilities of publicly funded schools and libraries to perform these costly and sophisticated activities in place of the efforts currently being made with private risk capital.
In this phase of technological development affecting the information service structure of the nation, the single copy and free-input exemption proposals far transcend the claim that they merely codify "Fair Use" in library and educational settings.
Section 107 of the bill restates the fair use doctrine and provides guidance for individual users in schools and libraries. It is far better that there be some uncertainty about occasional individual uses that come close to the line in exceeding the known boundaries of fair use, than that the creative and economic resources devoted to developing economically sound information services for all aspects of our society be undercut and eliminated. No broadening of the fair use concept should be undertaken until the role of industry in this process is understood and taken into account.
The appropriate mechanism for resolving the new technology questions raised by the exemption proposals is to refer both to the National Commission. They clearly fall within the jurisdiction and purposes of that Commission. The experience and existence of the information industry underscore the wisdom of establishing the Commission and the need to develop further information and economic data prior to legislation on these proposals. If necessary, the mandate to the Commission might be so defined as to ensure that these matters receive priority consideration.
Without supporting economic data on which to evaluate their effect and on which to base a sound decision as to their effect on the operations of the copyright law of the United States, there is no basis for the enactment of these farreaching proposals. Thank you for this opportunity to share our perspectives with you. Sincerely,
PAUL G. ZURKOWSKI,
THE JOURNAL OF INVESTIGATIVE DERMATOLOGY,
Boston, Mass., July 19, 1973. Hon. John McCLELLAN, Senate Office Building, Washington, D.O.
DEAR SENATOR MCCLELLAN: It has come to my attention that the Copyright Revision Bill will in the near future be considered by your Subcommittee on Patents, Trademarks and Copyrights. As the editor of a limited subscription, highly specialized medical journal I would like to express some thoughts concerning this bill.
Evidence has been developed, particularly by the Williams and Wilkins Company, that the increasing use of photocopying has led to a definite decrease in subscriptions to journals such as ours. I have examined this evidence and believe it to be valid. My basic feeling is that the cost of production of materials such as that which we publish should be spread as broadly as possible among the users of the material. For that reason, I feel it imperative that the new copyright bill be written in such a way that some royalty for use of the material can be returned to those who take primary responsibility for publication of the material. If this