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1 by inserting "designs," after "patent rights," and "design registra2 tion," after "application for patent,". 3 (b) Title 28 of the United States Code is amended4

(1) by inserting “designs," after "patents," in the first sentence 5

of section 1338(a); 6

(2) by inserting“, design," after "patent” in the second sen7 tence of section 1338(a); 8

(3) by inserting "design,” after "copyright,” in section 1338 9 (b); 10

(4) by inserting "and register designs" after "copyrights" in 11

section 1400; and 12

(5) by revising section 1498 (a) to read as follows: 13. “(a) Whenever a registered design or invention is used or manu14 factured by or for the United States without license of the owner 15 thereof or lawful right to use or manufacture the same, the owner's 16 remedy shall be by action against the United States in the Court of 17 Claims for the recovery of his reasonable and entire compensation 18 for such use and manufacture. 19 “For the purposes of this section, the use or manufacture of a 20 registered design or an invention described in and covered by a patent 21 of the United States by a contractor, a subcontractor, or any person, 22 firm, or corporation for the Government and with the authorization 23 or consent of the Government, shall be construed as use or manufac24 ture for the United States. 25 “The court shall not award compensation under this section if 26 the claim is based on the use or manufacture by or for the United 27 States of any article owned, leased, used by, or in the possession of 28 the United States, prior to, in the case of an invention, July 1, 1918, 29 and in the case of a registered design, July 1, 1976.

“A Government employee shall have thc right to bring suit against 31 the Government under this section except where he was in a position

to order, influence, or induce use of the registered design or invention 33 by the Government. This section shall not confer a right of action on 34 any registrant or patentee or any assignee of such registrant or pat35 entee with respect to any design created by or invention discovered or 36 invented by a person while in the employment or service of the United 37 States, where the design or invention was related to the official func38 tions of the employee, in cases in which such functions included re39 search and development, or in the making of which Government time, 40 materials, or facilities were used."

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Sec. 333. This title shall take effect one year after enactment of this Act.

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NO RETROACTIVE EFFECT

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Sec. 334. Protection under this title shall not be available for any design that has been made public as provided in section 304(b) prior to the effective date of this title.

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SHORT TITLE Sec. 335. This title may be cited as "The Design Protection Act of 1973."

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Mr. BRENNAN. I further request that the statements of all witnesses which are not read in full be printed in full in the body of the record, and that the record remain open until August 10 for the filing of supplementary statements to be printed in the appendix to the record.

Senator McCLELLAN. The Chair sees no objection to the request; unless there is objection the Chair will so order. What is the date?

Mr. BRENNAN. August 10.

It is desirable, Mr. Chairman, that the transcript be printed during the recess so that it is available.

Senator McCLELLAN. Does that give everyone plenty of time?
Mr. BRENNAN. It gives them 10 days.

Senator McCLELLAN. Ten days, an opportunity to add, file additional statements or new statements if they like before we go to press.

Mr. BRENNAN. That will be fine.
Senator McCLELLAN. On the hearing.
Is that the purpose of it?
Mr. BRENNAN. That is the purpose of it, Mr. Chairman.

Senator McCLELLAN. I think that would be all right. I see no objection to it.

Mr. BRENNAN. Mr. Chairman, as indicated in the hearing notice, these 2 days of hearings are being conducted under a time limitation. The subcommittee has allocated equal time to the principal representatives of the various points of view on five selected issues. I wish to indicate that time consumed in answering questions from the members of the subcommittee and counsel will not be charged against the time of the witnesses.

Senator McCLELLAN. What you propose is, if they are given so much time, the Senators or counsel can interrupt them for questioning, that that period of interruption of questioning will not be charged against the time allotted to them. Mr. BRENNAN. That is correct, Mr. Chairman.

Senator McCLELLAN. That gives them the full time allotted to them to use for themselves.

Mr. BRENNAN. The subcommittee this morning will consider the issue of library photocopying which relates to sections 107 and 108 of title I of the bill and also title II of the bill.

The first witnesses are on behalf of the Association of Research Libraries, to which 15 minutes has been allocated.

Dr. McCarty, would you identify yourself and your associates for the record ?

Dr. McCarthy. Thank you, Mr. Brennan.

Mr. Chairman, my name is Stephen McCarthy. My associates are, on my right, William Budington, president of the Association of Research Libraries, and executive director of the John Crerar Library in Chicago. On my left is Mr. Philip Brown, our legal counsel and second to the left is Mr. Howard Rovelstad, chairman of our copyright committee, and director of libraries at the University of Maryland.

Mr. Brown and I have prepared statements. Mr. Budington and Mr. Rovelstad will participate in answering questions if there are any.

Senator McCLELLAN. Very well.

STATEMENTS OF DR. STEPHEN A. MCCARTHY, EXECUTIVE DIREC

TOR, ASSOCIATION OF RESEARCH LIBRARIES; AND PHILIP B. BROWN, COUNSEL; ACCOMPANIED BY WILLIAM S. BUDINGTON, PRESIDENT, ASSOCIATION OF RESEARCH LIBRARIES; AND HOWARD ROVELSTAD, CHAIRMAN, ASSOCIATION OF RESEARCH LIBRARIES COPYRIGHT COMMITTEE

Dr. MCCARTHY. My name is Stephen McCarthy. I am executive director of the Association of Research Libraries, an organization of the principal university and research libraries of the country. We appreciate this opportunity to present the views of the association on copyright revision bill, s. 1361.

Mr. Chairman, the Association of Research Libraries wishes to recommend to the committee an amendment to section 108(d) of S. 1361, in the form in which it was submitted to the staff of the committee during the past week. A copy is attached to this statement.

Senator McCLELLAN. This copy of the proposed amendment will be inserted in the record at this point.

[The information referred to follows:]

AMENDMENT TO COPYRIGHT REVISION BILL, S. 1361 Substitute for section 108(d) the following:

(d) The rights of reproduction and distribution under this section apply to a copy of a work, other than a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work, made at the request of a user of the collections of the library or archives, including a user who makes his request through another library or archives, but only under the following conditions:

(1) 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.

(2) The library or archives shall be entitled to supply a copy or phonorecord of an entire work, or of more than a relatively small part of it, if the library or archives has first determined, on the basis of a reasonable investigation that a copy or phonorecord of the copyrighted work cannot readily be obtained from trade sources.

(3) The library or archives shall attach to the copy a warning that the

work appears to be copyrighted. and renumber section 108(d) (2) to make it 108(d) (4).

Dr. McCARTHY. Thank you, sir. The purpose of the proposed amendment is to insure by specific legislative language that a customary, long established library service of providing a photocopy for a reader who requests it may be continued without infringement of copyright. Adoption of the amendment would remove the threat of suit against libraries arising out of varying judicial interpretations of what is or is not fair use. At the same time this amendment would assure libraries, which are public service agencies largely supported by public funds, that they can and should employ modern technology and methods in serving their readers. It should be emphasized further that this amendment does not seek to encourage or develop a new service. Instead, it seeks to assure beyond doubt or question the legality of a traditional service which was not challenged for two generations under the 1909 Copyright Law until a suit was brought by the Williams and Wilkins Co. against the National Library of Medicine several years ago.

The opinion of Commissioner Davis of the U.S. Court of Claims in the Williams and Wilkins case brings into question the fair use doctrine as applied to library photocopying. Despite the several criteria of fair use which have been developed by the courts and which are expressed in section 107 of S. 1361, Commissioner Davis apparently disregarded all criteria except one and focused his attention on the loss of potential income by the copyright proprietor. In view of this opinion it is apparent that fair use can no longer be considered adequate assurance for the continuation of customary library services. In our judgment, the services of libraries to their readers are sufficient importance to society and to the nation as a whole to make it desirable to remove any doubts about the legality of a long established and much used service.

Section 108(d)(1) of S. 1361 requires the user to prove or demonstrate to the library that an unused copy is not available from a trade source. How does the ordinary reader do this? How does the library know that he has done it? How does the library evaluate the evidence ? Questions such as these and others will inevitably arise, if 108 (d)(1 is permitted to remain unchanged in the copyright revision bill. Observance of its requirements will impose a substantial added burden on libraries and on library users and thus will impede access to information. The reader who is from a distant library seeking to obtain library materials through interlibrary loan will be particularly penalized by section 108(d) (1) since he will not be in a position easily and without substantial loss of time to comply with the requirements of 108(d)(1).

Library support, both locally and at the Federal level is limited. Appropriating bodies, including the Congress, have adopted measures designed to encourage the sharing of library resources. This is consistent with traditional library practices. The revision bill without the amendment we recommend would raise doubts about the continuation of this practice because photocopying has been one of the accepted ways of sharing scarce library resources.

The requirements of the bill in its present form would also add substantially to the expenses of libraries because decisions regarding photocopying requests could only be made by highly qualified personnel.

It may be noted further that the copyright laws of most foreign countries contain a specific provision permitting library photocopying for purposes of personal study and research.

Revision of the copyright law has been under way for a period of years. In that time, copyright proprietors have repeatedly stated that the library photocopying was causing serious financial damages to their enterprises. No evidence to support this contention has been presented. In the absence of evidence, it seems fair to conclude that the only studies which have been made have indicated that if damage exists it's very slight.

For these reasons, the Association of Research Libraries recommends the adoption of the proposed amendment as a means of assuring library users of the continuation of an important service.

Thank you for your attention. Our legal counsel, Mr. Brown, will now discuss briefly some of the legal aspects of library photocopying and the proposed amendment.

Thank you, Mr. Chairman.

Senator MOCLELLAN. State very succinctly what you do now, what is the practice you want to continue.

Dr. McCARTHY. What we do now, sir, is that many libraries provide a photocopying service. A reader may request a photocopy of pages

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