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amount not less than $250 nor more than $5,000. Section 504(c) (1) of the bill provides that the copyright owner may elect to receive statutory rather than actual damages and profits, and the limitation upon such damages has been increased to $10,000.
This association is strongly opposed to the deletion of the special limitation applicable to newspaper reproduction of copyrighted photographs and asks that this provision be reinserted in section 504 by striking the period in line 8, inserting a colon and adding the following language : “Provided, however, That in case of a newspaper reproduction of a copyrighted photograph, such damages shall not exceed the sum of $200 nor be less than the sum of $50."
The ANPA is convinced that the special considerations which prompted the enactment of this provision are still present today and that this provision should be retained in the law. In our opinion, the proposed "innocent infringer" provision is wholly inadequate and does not protect the legitimate interests of newspapers in cases of innocent infringement.
The report of the House Committee on Patents on the 1909 Copyright Act (H. Rept. 2222, 60th Cong., 2d sess., 1909), at page 15, stated that the special limitation of damages relating to the newspaper reproduction of copyrighted photographs was made “because such reproduction has little permanent value or usefulness and a reproduction in this form does not damage the copyright proprietor to as great an extent as would the reproduction and sale of copies of the photograph in a different form.”
This is equally true today. In fact, where proper credit is given, the usual case involving the newspaper reproduction of copyrighted photograph would confer a benefit rather than inflict a legal injury upon the owner because of the promotion value of such a publication. In any event, it is extremely doubtful that the publication of any single photograph would result in profit to the newspaper which could be recovered by the copyright proprietor. Accordingly, the proprietor would be certain to elect statutory damages under the provisions of the bill. At this point, the court before whom any such action is pending would be authorized to award not less than $100 nor more than $10,000 for the single photograph. No standards are provided for guidance of the court except its discretion in light of the circumstances of the case. In our opinion, the permissible damage limitations are fictitious when applied to photographs. The situation thus created presents a legalized means of forcing a newspaper publisher who inadvertently uses a copyrighted photograph to pay up or face litigation with no reasonable means of predicting the amount which will be awarded by the court. This was the very thing the existing limitation was designed to prevent.
It is important to understand the circumstances under which photographs are used and handled by newspapers. While care is used in the handling of photographs submitted for publication, the pressures of time inherent in the newspaper business make it impossible for newspapers to make appropriate copyright searches before publishing each photograph submitted for publication. In view of the risk of such substantial financial penalties as could be imposed under provisions of the bill, the deletion of the special damage limitation regarding photographs and the substitution of the innocent infringer provision could have far-reaching consequences for daily newspapers. For the reasons we have stated, we believe it would be in the public interest to retain this special damage limitation in any revision of the copyright law of 1909.
We respectfully urge that in considering the merits of bill H.R. 4347 the subcommittee consider the foregoing matters which are of vital concern to American newspapers. Very truly yours,
STANFORD SMITH, General Manager. Mr. KASTEN MEIER. Do you in behalf of the National Newspaper Association feel that otherwise you are in complete accord with that statement ?
Mr. CARDWELL. Yes.
Mr. KASTENMEIER. Do you feel that other newspapers that are not members of your group, presumably metropolitan dailies and others would also agree with that, with what was said in behalf of the newspaper industry
Mr. CaRDWELL. The American Newspaper Publishers Association is primarily the organization of the large metropolitan papers and that is its policy statement.
Mr. KASTENMEIER. I gather then your association is primarily made up of smaller newspapers? Mr. CARDWELL. That is primarily correct; yes,
sir. Mr. KASTENMEIER. Other than the exceptions you take in your statement, do you agree with the proposed revisions and urge its adoption?
Mr. CARDWELL. Absolutely. From the testimony you have received orer the past month, it is quite obvious that the copyright law needs adaptation to some modern problems.
I have gone through the bill several times and certainly the Register of Copyrights is to be congratulated on the intelligent manner in which he has gone about attempting to reconcile some of the competing interests.
However, as I did point out on the question of whether a newspaper is copyrightable, the accommodation of conflicting interests, I think, has conceivably resulted in some rather vague language which is going to make some business for lawyers.
Mr. KASTENMEIER. What is the general practice in the newspaper industry? Is it to copyright certain features and certain supplements as opposed to the entire newspaper ?
Mr. CaRDWELL. I would say beyond any question that would be true. Some columnists have copyrighted columns. I know of only two or three newspapers in the United States which copyright the edition of the paper as a general practice.
Normally, a newspaper as a whole would be copyrighted only when it is faced with an infringement situation; in other words, when a radio station perhaps is reading the news that its reporters wrote over a morning broadcast or when an offset publication perhaps is lifting the advertising layouts that it has created.
I would say that newspaper copyright is a reaction to an infringement situation.
Mr. KASTENMEIER. In the case where a newspaper copyrights the entire edition, I assume that the copyright notice purports to protect the material which is really not copyrightable. That is to say, there would be many parts of a newspaper which are not original material with that newspaper.
Mr. CARDWELL. The general copyright notice protects everything in the paper that is copyrightable, for example Mr. KASTENMEIER. An AP dispatch, for example?
Mr. CARDWELL. Unauthorized use of an AP dispatch could be enjoined if a newspaper which uses it is not a member of the AP.
For example, part of a paper which would not be copyrightable would be a press release sent by any group to several papers. Certainly if one of them copyrighted the paper, it would not then be able to protect it against use elsewhere.
Copyright notice is generally to protect editorial cartoons, which may be plagiarized, to protect unique stories and an attempt to protect advertising.
Mr. KASTENMEIER. Do you foresee any change in newspaper publishing from the technological standpoint which in any sense might have to be reflected in consideration of a copyright provision?
Mr. CARDWELL. I would say that the prospective technological changes in the field are considerably prospective and it would probably include direct electronic transmission of the news into the home and received on a screen. At that point conceivably we could come back to Congress but I think before that is in general practice many, many years will have elapsed.
Mr. KASTEN MEIER. Actually I can recall a good many years ago a scheme that was at least thought of where an individual subscriber would have something like a press service machine in the home which could receive both features and news according to the subscriber's
Ultimately this could replace the newspaper, but I don't know whether it will ever be perfected or not.
Mr. CARDWELL. Neither do I.
Mr. KASTENMEIER. As to advertising, on page 3, section 403, do I understand that your assertion is that the way it is now written advertisements are not protected for newspapers within the copyright law?
Mr. CARDWELL. No, this section 403 relates to the notice requirements. But my impression is that the Copyright Office does not feel that advertisements in collective works are protectable.
I might say that this almost “aside” in parentheses is really speaking to one of the most controversial questions in the entire newspaper field today. I have tried to decide what they are attempting to do here. I do not know whether they are saying an advertisement has no copy, right protection or that by inserting this clause in parentheses it would mean anyone lifting the advertisement would then fall within the
scope of an innocent infringer as having no notice that the copyright applied.
In other words, I don't know exactly what it means. I assume that the latter would be the situation.
There is litigation at this time on this very question. It is certainly a developing field.
Mr. TENZER. Would the chairman yield ?
Mr. TENZER. Would the witness give us the citation of the cases referred to on page 3, referring to "un resolved litigation”?
Mr. CARDWELL. That has currently been filed and it is coming up for trial. It is the Brattleboro (Vt.) Daily Reformer v. Roger G. Miller, d/b/a Town Crier.
It is in the U.S. district court in Vermont. The letterpress paper set up a copyright situation against the alleged infringement and has sued
upon Mr. KASTENMEIER. Mr. St. Onge. Mr. St. ONGE. Thank you, Mr. Chairman. .
. On page 1 you use the term “'passing off concept." Would you define that for me?
Mr. CARDWELL. That is an unfair competition phrase where one person or company attempts to pass off its product or work as its own when in reality it is someone else's. It is misleading the public as to the source of a work or product. For example, let's say there is a Lake Auto Sales, using a generic name, and someone opens a shop in the same town and calls it Lake Auto Sales which would result in confusion in the minds of the public. Perhaps it also simulated the
advertising of the first company; then it would be a passing-off situation where it would attempt to trade off the goodwill of the other company.
Mr. St. Onge. On page 4, the paragraph in the middle of the page, I read in your statement an inference that certain governmental bodies are avoiding the copyright law.
Do you intend that inference? I mean deliberately?
Mr. CARDWELL. That statement was taken from the report of the Register of Copyrights on copyright law revision of July 1961. I did not originate it. It came from the Register of Copyrights.
Mr. Sr. ONGE. But you adopt it?
Mr. CARDWELL. Well, I assume he knows what he is talking about. I would adopt it if it is a correct statement. I took it on that basis.
Mr. St. ONGE. That is all; thank you.
Mr. TENZER. In referring to section 403 under notice of copyright, and when you were discussing that portion of the section in parentheses, you said you were in doubt as to what it referred to. Is it not a fact that sometimes an advertiser may copyright his advertisement before it is given to the newspaper for publication?
Mr. CARDWELL. He certainly may.
Mr. TENZER. So is that not what the portion in parentheses refers to, when you submit a collective work for copyright, and when such works have been submitted by someone else. The same would be excluded from your copyright?
Mr. CARDWELL. As I understand it from the discussion on page 104 of the copyright revision report, part 6, this was included on the assumption that the advertiser is the owner of ordinary advertising. And, since the assumption made is that the advertiser owns the copy, then a person who copyrights a collective work could obtain no interest in it because he would not be the owner.
Mr. TENZER. Is that not as it should be? Mr. CARDWELL. The revision report refers to ordinary advertising. I would say in a great many or in most areas this would be correct, that the advertiser is the owner of the copy, and that the work that the newspaper does to prepare it is a service to the advertiser.
However, the assertion has been made by letterpress papers—these are the ones which use a hot metal process and cannot photographically reproduce advertising layouts—that they produce advertising layouts with their own skill, resources, and equipment.
This is the point of controversy in the litigation. In other words, a newspaper is asserting a protectable property interest in a newspaper advertising layout.
Mr. TENZER. If was the owner of a company and prepared an advertisement which I placed in a daily newspaper published in the area of my marketing and distribution program and then took a mat of that advertisement and placed it in 20 or 30 of the smaller newspapers whom you represent, you would not suggest that each of those newspapers would own a share in that copyright, would you?
Mr. ČARDWELL. I would not suggest it. There is no question that the
newspaper would not own an interest in it. However, what if you were a nonadvertiser and the newspaper salesman worked up an advertisement, laid out a really pretty one and brought it to you? You think it looks good and you buy it. He puts it in the paper. He has put a lot of time into it and has used his own skill and resources, perhaps has not even asked you for information about your company.
Then, at this point, some newspapers are asserting an ownership interest in the layout when they have done the work, at least as against a competitor which may lift it photographically and resell it without any proportionate investment. This is the point of litigation.
Mr. TENZER. Without going into the subject of the litigation specifically because I don't know the facts in the case, can you tell us what one of your papers would do in the case of a competitor of one of your advertisers from a neighboring town who picks up the ad and duplicates it exactly. Would the newspaper proceed to sue for unfair competition under the State laws or under Federal laws? Or would he leave it to the advertiser?
Mr. CARDWELL. I do not think the newspaper would have any standing in court.
Mr. TENZER. Thank you.
Mr. KASTENMEIER. Our last witness today is a gentleman who has been very patient and waited while two other witnesses who were listed after him proceeded ahead of him, Professor Meyerhoff, representing the Committee To Investigate Copyright Problems. Professor Meyerhoff, the committee welcomes you.
STATEMENT OF PROF. HOWARD A. MEYERHOFF, DIRECTOR AND
PRESIDENT, COMMITTEE TO INVESTIGATE COPYRIGHT PROBLEMS AFFECTING COMMUNICATION IN SCIENCE AND EDUCATION; ACCOMPANIED BY LAURENCE B. HEILPRIN, DIRECTOR AND CHAIRMAN, CICP STUDY GROUP; AND GERALD J. SOPHAR, DIRECTOR AND SECRETARY-TREASURER, CICP
Mr. MEYERHOFF. I wish to introduce Gerald Sophar to my right and Laurence B. Heilprin to my left. They are both directors of the Committee To Investigate Copyright Problems.
Mr. KASTEN MEIER. Mr. Baptie is not here today?
Mr. Chairman, the testimony that was presented by Mrs. Linden covered quite a little ground that we proposed to cover. reason, I think it would save your committee considerable time if I merely submitted the prepared testimony for the record and then summarized some of the points that were not covered by any of the previous witnesses this morning.
Mr. KASTENMEIER. The Chair will be pleased to, without objection, accept your statement and make it part of the record.
(The statement is as follows:)
STATEMENT BY THE COMMITTEE TO INVESTIGATE COPYRIGHT PROBLEMS AFFECTING
COMMUNICATION IN SCIENCE AND EDUCATION (CICP), ON H.R. 4347 My name is Howard A. Meyerhoff. I am president of the Committee To Investigate Copyright Problems Affecting Communication in Science and Education, and chairman of the board of directors. CICP is a nonprofit corporation in