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in connection with the submission of H.R. 1347. In light of these facts and the wording of the proposed bill it must be concluded that these sections, despite their importance, have not been studied by the subcommittee prior to this time. This statement attempts to introduce the subcommittee to these problem areas and includes suggestions for correcting the defects noted.
Matters which have been adequately discussed by others before this subcommittee are not discussed herein. Section 106 of the proposed bill sets out the exclusive rights of the owner of a copyright. Sections 107 through 114 place limitations upon these general rights. Objections to the manner in which compromise has been made between the interests of the copyright owner and the interests of the public in free access to copyrighted works for educational and charitable purposes, as set out in section 109, have been enumerated and discussed before this subcommittee by other parties having interests similar to those of Encyclopaedia Britannica and Encyclopaedia Britannica Films. We generally agree with and support the positions expressed by those speakers and will not repeat them, believing that they have adequately expressed our interests in those areas. In particular we refer you to the statements of Lee Deighton, chairman of the board of the Macmillan (0., speaking on behalf of the American Textbook Publishers Institute, and of Don White, executive vice president of the National Audio-Visual Association, Inc.
To return to the unconsidered problem areas, the making and distributing of prints of an educational motion picture or filmstrip without authorization of the copyright owner can result in a substantial reduction of the market available to the copyright owner. This problem becomes particularly serious when the print is distributed to educational organizations. Even when such distribution is limited to organizations for their library use only, the limitation would have little effect.
An ordinary library having an audiovisnal section, or a library which is commonly called a tilm library, whose chief purpose it is to make such materials available for use, is granted certain privileges under the proposed bill. A film library in a particular school or school system would be able to obtain prints made without authorization of the copyright owner and thus diminish the market available to the U.S. copyright owner-producer. This problem is much more acute in its effect upon educational audiovisual materials than in its effect on educational printed materials, due to the small number of prints required to satisfy the market for films throughout the country, and the high cost of production. Use of a very small number of unauthorized prints would result in a substantial percentage depletion of the market. Necessarily this fact requires care lest exemptions which would have little import in the printed materials market may destroy the market for copyrighted films.
Let us look at particular problem areas. Copies of works printed abroad may be imported without permission of the copyright owner and even against his will, under section 602 of the proposed bill. Section 602 concerns importation of copies for public distribution irrespective of the location of manufacture. Suhsection (a) prohibits importation, without consent of the owner of the copyright. of either lawfully or unlawfully made copies. The provisions of that subsection are expressly inapplicable to scholarly and educational organizations when they import for their own library uses. Subsection (h) prohibits importation, with or without permission of the owner of the copyright, where making of the copy would have been unlawful if the proposed bill had been applicable. This means that unlawfully made copies may not be imported at all and that lawfully made copies may be imported only with permission of the copyright owner or under the educational and scholarly exemption. This still leaves unrestricted the importation of copies lawfully made when imported by scholarly, educational, or religious organizations for their own library use. As seen below in the discussion of sections 108 and 110, it is possible to lawfully make copies without permission of the owner of the copyright. Importation of copies for educational. scholarly, and religious uses is thus possible without permission of the owner of the copyright to either make or import the copies. Similarly, if the owner of the copyright grants permission to a foreign concern to make copies of a work for foreign distribution but not for importation, such importation by educational organizations would be permissible even though expressly against the intent of the copyright owner.
These important areas left unprotected by section 602 could be covered by other provisions in the proposed bill but are not. In fact, the other sections clearly leave the problem areas open. Since these areas all concern importation they could be given considerable protection through the manufacturing clause.
The 1891 forerunner of section 16 of the present copyright law was enacted to protect the American printing industry from foreign competition. Section 601 of the proposed bill, commonly referred to as the manufacturing clause, is a revision of the provisions in the present law in accordance with the drafter's belief that the protective requirements should be substantially narrowed. The purpose of the proposed manufacturing clause still is protection for the American printing industry. While the provision may well give protection to that industry, it does not protect the owners of copyrights, and particularly not the owners of copyrights on nonprinted works.
Section 601 prohibits, except as enumerated in subsection (b):
"* * * importation into or public distribution in the United States of copies of a work consisting preponderantly of nondramatic literary material that is in the English language and is protected under this title * * *.” unless manufactured in the United States as prescribed in subsection (c). The term "nondramatic literary material" used in section 601 "would not cover: (a) dramatic, musical, pictorial, or graphic works” according to the studies prepared by the Register of Copyrights (p. 141). This is particularly important to producers of films and motion pictures since:
"Pictorial, graphic, and sculptural works, include two-dimensional and threedimensional works of fine, graphic, and applied art, photographs, prints and art reproduction, maps, globes, charts, plans, diagrams, and models" (sec. 101).
Another reason for concluding that these provisions do not apply to motion pictures is that motion pictures are distinguished from literary works in section 102 setting out the subject matter of copyright protection, and section 601 applies only to literary material. Therefore, the restrictions of section 601 do no apply to either films or motion pictures.
This means that importation of copies of dramatic, musical, pictorial, and graphic works lawfully reproduced in foreign countries is not restricted by section 601. While this omission is not unlikely in light of the purpose of section 601 to protect the American printing industry, at the very least, the language of section 601(a) should be changed to include dramatic literary material and motion pictures within its coverage. If such protection against the broad sweep of section 602 is not afforded to copyright owners through this section it must be done elsewhere.
Even if section 601 (a) were corrected so that it included films and motion pictures in its coverage it would not begin to give adequate protection to the makers of educational films and motion pictures. Subsection (a) prohibits importation of copies generally while subsection (b) enumerates the exception situations in which importation into and public distribution in the United States of copies is not prohibited.
"(b) The provisions of subsection (a) do not apply:
“(2) where the Bureau of Customs is presented with an import state ment issued under the seal of the Copyright Office, in which case a total of no more than 3,500 copies of any one such work shall be allowed entry;
“(4) where importation, for use and not for sale, is sought;
“(C) by organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to copies intended to form a part of its library ;
“(6) where, in addition to copies imported under clauses (3) and (4) of this subsection no more than 3,500 copies of any one such work, which have not been manufactured in the United States, are publicly distributed
in the United States." Subsection (b) (4) (C) authorizes a scholarly, educational, or religious institution to import, or receive from an importer, copies intended to form a part of its library. The importation may be made without permission of the copyright owner and there are no limitations placed upon the number of copies which may be imported. Foreign copies of educational films and motion pictures produced in the United States could be imported freely for and circulated by an educational institution through its library. Similar action could be taken by a public library as “an organization operated for scholarly * * * purposes.” This creates a situation in which there is effectively no copyright protection for educational films and motion pictures, a situation which might well result in the drying np of the sources of these creative and recessary educational aids.
The Register of Copyrights justifies these provisions by stating that "[t]hese exemptions are similar to those in section 107 of the present statute” (p. 145). This statement is not completely accurate. Section 107(d) third in the current copyright law is the sister section to proposed section 601(b) (4) (C). The current section allowing importation for library uses, is conditioned on the require ment that the book be published abroad "with the authorization of the author or copyright proprietor.” This authorization is the major distinction between the present and proposed sections, and the key to the problem in the proposed section. The justification is not effective, and apparently the variation which creates the problem is an unintentional oversight causing an undesired result.
Another dangerously worded provision is subsection (b) (6). According to the Register of Copyrights “clause (6) would permit the public distribution in the United States of copies imported in conformity with the other clauses of that subsection (p. 145). If this is the purpose of subsection (6), it certainly is not clear from the wording of that subsection. The subsection appears to state that 3,500 copies of any work covered by subsection (a), not just copies imported under other clauses of subsection (b), may be publicly distributed in the United States. While the subsection does not state that the copies may be imported, it implies this fact since importation would be necessary for distribution. If it were intended to be merely a supplement to subsection (2) allowing public distribution of the 3,500 copies imported under subsection (2) it should be included in that subsection and not as a parallel statement describing a situation in which subsection (a) provisions do not apply. When read as parallel to subsection (2) it appears to allow importation of 3,500 copies without the permission of the copyright owner as required by subsection (2). In the case of educational films and motion pictures, 3,500 copies would exceed the normal total domestic demand. If foreign copies were allowed without the permission of the copyright owner, the owner's market for copies of his work would be severely curtailed.
If the intent of subsection (6) is merely to allow public distribution of these copies imported under subsection (2), rewording should be made under that clause to clarify the meaning. If the intent is to allow copies to be imported and publicly distributed without the approval of the owner of the copyright, this intent should be corrected.
The above discussion has concerned importation of copies to the detriment of the copyright owner. There are also provisions in the proposed bill which allow domestic reproduction with a similar harmful effect. One section which we believe affords the possibility of seriously detrimental activities is section 108 concerning the effect of transfer of a particular copy of a work: "g 108. Limitations on exclusive rights: Effect of transfer of particular copy
or phonorecord “(a) Notwithstanding the provisions of section 106(a)(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by him, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
"(b) Notwithstanding the provisions of section 106(a)(5), the owner of a par. ticular copy lawfully made under this title, or any person authorized by him, is entitled, without the authority of the copyright owner, to exhibit that copy publicly to viewers present at the place where the copy is located.
"(c) The privileges prescribed by subsections (a) and (b) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.” In essence this section provides that the owner of a lawfully made copy of a copyrighted work, as distinguished from one having only possessory rights therein, may dispose of or exhibit that copy without permission of the copyright owner.
On the surface this appears to be completely proper. An example would be a schon) which purchased a copy of an educational film from the owner of the copyright of that film and then in turn sold or leased it to another school. Ohviously very little damage would be caused to the copyright owner in this situa
52-380- 66—pt. 3---34
tion and whatever damage might be caused certainly is outweighed by the right of free alienation. However, our earlier illustration of a school or another person making an unauthorized though lawful copy of a motion picture or filmstrip and then disposing of that new copy to another school once again is a problem area. This would prevent sale by the owner of the copyright of a print of that film to the second school. The second school, since now the owner of a lawfully made copy, could repeat this process for the benefit of a third school. Repeated behavior of this type would substantially diminish the market available to the copyright owner for prints of this film. Such a situation is likely to occur in a city having numerous schools with use for the same film. The board of education, or some representative group, could purchase one copy of a film or motion picture from the owner of the copyright and subsequently distribute prints made by it to all other schools in the city. The owner of the copyright would not be free to restrict by contract the right of disposal or of exhibition granted to the owner of the copy in section 108. (See statement of Register of Copyrights, p. 29.)
If the first school or party in our illustration were not able to lawfully make a copy of its film or motion picture the problem would be avoided. The scope of the problem is thus based entirely upon what copies may lawfully be made. Section 110 authorizes the making of a copy by one having a particular copy.
According to the Register of Copyrights, in order "[t]o prevent possible abuse of the copyright owner's rights where copies are lawfully made without his authorization, safeguards have been written into section 110 (restricting the use of ephemeral recordings) ***” (p. 29). As stated the restrictions are on the use of the copy and not on the making thereof. This is affirmed by the grammatical construction of a modifying "purpose” clause and an “if" clause in the same sentence. The infringement is in the improper use after a 6-month period and not in the making of the copy. In addition the time limitation can effectively be ignored since a new copy may be made from the second cops just prior to destruction.
The right to make a copy is granted generally by section 110 to any organization “lawfully entitled to transmit a performance or exhibition of a copsrighted work to the public." The question arises as to who is lawfully entitled to transmit to the public a performance or exhibition. The owner of a copyright clearly has the right to perform and exhibit his work publicly. (See sec. 106 (a) (4) and (5).) Section 108(b) allows the owner of a particular copy lawrfully made under this title to exhibit that copy publicly without the authorits of the copyright owner. Through section 106(b) (3) (B) both of these include transmission to the public. Section 109 (2), (3), (5), and (6) permit those who are not even owners of a copyright to transmit to the public. This means that almost anyone in possession of a copy is entitled to transmit a performance or exhibition to the public, and thus may make a lawful copy.
The number of lawful copies which may be made without authorization of the copyright owner and the number of different parties who can make such copies is essentially limited only by the number of parties in possession of a copy of the copyrighted work. This is much too great a power and one too universally al. lowed by the proposed bill. It allows extensive reproduction under section 110 and free transfer and distribution under section 108, thus affording much too great an opportunity for reduction of the available market for educational audiovisual materials.
It is essential that the new copyright law be designed to protect the interests of the copyright owners and the public in all areas of copyright, in nonprinted works such as motion pictures and filmstrips as well as in printed works. The proposed provisions which afford drastic reductions in the available markets for nonprinted educational materials would result in an eventual withering up of the sources of such materials. Such an eventuality would be diametri. cally opposed to the public interest as well as to the interests of the copyright owners. These areas must be fairly protected by appropriate changes in the proposed provisions.
The following modifications to the proposed bill are suggested. Since all of the problems discussed above are dependent upon access to copies lawfully made without authorization of the copyright owner, they can be corrected by eliminating such copies. The following changes in sections 110, 601, and 602 will eliminate unauthorized copies.
9"$ 110. Limitations on exclusive rights: Ephemeral recordings
"Xotwithstanding the provisions of section 106. it is not an infringement of copyright for an organization lawfully entitled to transmit a performance or exhibition of a copr. righted work to the public to make no more than one copy or phonorecord of the work solely for purposes of the organization's own lawful transmissions or for archival preserration, if the copy or phonorecord is not used for transmission after six months from the date it was first made, and is thereafter destroyed or preserved for archival purposes only."
(1) Change section 110 to read as follows:
"Xotwithstanding the provisions of section 106, an organization lawfully entitled to transmit a performance or exhibition of a copyrighted work to the public may make one, and only one, copy or phonorecord of the work. Only that organization may use the copy made and it may use it only for archival purposes or for purposes of the organization's own lawful transmissions, the latter only for a period of 6 months from the date the copy was first made, at which time the copy must be destroyed. If a copy is made for any other purpose or used in any other manner than specified above, the making of that copy will be considered unlawful for purposes of this title."
(2) Delete the last sentence in section 602(a).
(3) In section 601 (b) (2) after the word "copies" in line 11 insert the following: ", in addition to copies imported under clauses (3), (4), and (5) of this subsection;".
There is no need for an express authorization for public distribution since the prohibition in subsection (a) of public distribution is expressly made inapplicable to the importation allowed in subsection (b).
FRIENDS HISTORICAL LIBRARY,
OF SWARTH MORE COLLEGE,
Suarthmore, Pa., May 14, 1965. The HOUSE JUDICIARY COMMITTEE, U.S. Congress, Washington, D.C.
DEAR FRIENDS : In revising the copyright law (S. 1006 and H.R. 4347) we want to encourage you to make the changes suggested in the resolution of the Society of American Archivists as follows:
1. That the new copyright law include a provision that will permit libraries, archives, and other repositories to microfilm or otherwise make facsinilies of manuscripts for the purpose of depositing copies in other institutions.
“This would not adversely affect copyright interests in the manuscripts in any way. It would, in effect, merely extend the repository's ability to show its manuscripts to scholars and others, and, at the same time, would make it possible to house security copies at a distance from the originals.
"2. That the new law include a provision which will automatically limit the duration of literary property rights to the author's lifetime plus 25 years, or to 50 years from the date of origin of the writing, in cases where the death date of the author is unknown, unless those rights are protected by registering them with the Copyright Office, in which case the longer period of protection shall apply.
"This would make more readily available to scholars and others a vast amount of material that has little or no monetary value but which may be of vital concern for research in such fields as literature and history."
This will enable the libraries and depositories of this country to serve scholars and research workers more satisfactorily. Sincerely, your friend,
DOROTHY G. HARRIS,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
Washington, D.C., June 10, 1965. Mr. HERBERT FUCHS, Counsel, House Judiciary Committee, Subcommittee No. 3, C'annon Office Building, Washington, D.C.
DEAR Mr. Fuchs: In accordance with telephone discussion of May 24, I am enclosing 12 copies of a statement calling attention to what we believe is a serious deficiency in H.R. 4347 and similar bills. H.R. 5680 and S. 1006. Our position is premised on a rather obvious necessity for limitations on specified exclu. sive rights to also he specific. I appreciate the opportunity to present our posi. tion for the committee's considerations. Yours truly,
GORDON M. FREEMAN.