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the reasons for its enactment, and how it was derived. I really think that alternatives, and I haven't given much thought to the alternatives, but I think clearly there would be difficulties with the GATT Treaty with the imposition of tariffs and with the Florence agreement.
As I say, I haven't thought this subject matter through, but I can foresee that an effort to find alternatives would lead to far more confusion and difficulty than the continuation of what has been the law for a number of years.
Mr. KASTENMEIER. At this point, I would like to yield to Mr. Railsback.
Mr. RAILSBACK. No questions.
Mr. DRINAN. I want to thank all of you gentlemen for your statements, and I raise the question whether or not this manufacturing clause violates the Helsinki agreement. I read that very carefully, and toward the end there are several sections about the diffusion of knowledge and the guarantee that we will not block access to knowledge in any language. I wonder whether anybody would want to make a judgment on that?
Mr. Karp, would you feel that Helsinki supports your case? It is a new argument for you, I hope. ,
Mr. KARP. No; I am not arguing with you. I wish I was better prepared to agree with you. Mr. Drinan. It is a new argument I am offering you. Go ahead.
Mr. KARP. I think you are right in principle, but I haven't prepared myself on the Helsinki agreement to comment in detail.
Mr. DRINAN. It might be a very good argument for you. Mr. KARP. I will certainly look at it. . Mr. DRINAN. Any of you other gentlemen ? Mr. VAN ARKEL. I can only reiterate, Mr. Drinan, what I already stated. There is presently no law of any kind on the books which prohibits, in any manner, the importation of books into this country. To that extent, I think it is completely consistent with the freedom which the Helsinki agreement talks about in its agreement, and really goes beyond what that agreement contemplates. I can only emphasize that you are talking here not about free trade, not about free exchange; you are talking about the grant of an American monopoly of this market through copyrights. Now, there is certainly nothing in the Helsinki agreement that says that this country has got to give an unconditional amount of access to this market to all foreign publishers, whoever they may be.
Mr. DRINAN. Let me quote to you from a manual on copyright law done by Arthur Hansen. This is his conclusion, on page 150:
In general, most experts find no logic in denying copyright protection to authors as a means of protecting printers against foreign competition. In fact, all groups concerned—with the possible exception of the printers-appear to agree that manufacture in the United States should not be a condition of copyright.
Anything to comment on that?
Mr. VAN ARKEL. I can only ask that you read my statement for the reasons
Mr. DRINAN. I did, sir. I read it last night, and I reread it again this morning. I have practically memorized it. But give me somebody be
with think thin, do yo well qualit.
sides the printers. I mean, you disagree with it, but he said "with the possible exception of the printers." Well, are there other groups ?
Mr. Vax ARKEL. One of the staunchest supporters was a former Register of the Copyrights, Mr. Sam Warner, who wrote at length on this, and testified against it very strongly.
Mr. Drinan. Well, he is not exactly a whole class of people. He is just a former Register of the Copyrights.
Mr. VAN ARKEL. Well, he is a well qualified expert.
Mr. KARP. I think that the more recent Registers of Copyrights have disagreed with Mr. Warner. To my recollection, Mr. Kaminstein and Ms. Ringer both opposed the manufacturing clause.
Mr. DRINAN. Would it be your judgment that Mr. Hansen here is correct that all groups concerned, with the possible exception of the printers, appear to agree this is without foundation ?
Mr. KARP. I certainly think that is a correct statement.
Mr. SANDLER. May I make a statement? Obviously, I was one of those that was referenced as a printer there, so I am not addressing myself to that portion of it, but I quickly scanned the testimony by Mr. Hoopes. I think he is stating a compromise. I think I want to refer this committee to his testimony.
Mr. DRINAN. Well, is that the compromise already in the bill?
Mr. SANDLER. No, I mean recognizing the need of a compromise on the parts of the opposed parties and the fact that there is a need, at least on a temporary basis, for the manufacturing clause.
Mr. DRINAN. Is he recommending a compromise different from Section 601 now, which is a compromise?
Mr. SANDLER. No.
Mr. DRINAN. Would you state in your terms, sir, how 601 is a compromise? Mr. Karp says it is a compromise, but give us, if you would, the two or three things that you think compromise 601?
Mr. SANDLER. Well, there is the opportunity for books to come in. Certainly, it does not restrict these books from coming in. There are portions of manufacturing that it is my understanding can still be done in foreign countries. My understanding is plates—well, identification ofthese products may have some misnomers. We say “plates” in letterpress type terms. We talk about type-setting, reproduction, these types of things. Now, these types of things are allowed to be brought in.
Mr. DRINAN. And does it phase out at a moment in time?
Mr. DRINAN. You recommended that, Mr. Karp, but that is not in 601?
Mr. KARP. No, it isn't. We also recommend a very important thing which I think you gentlemen ought to consider seriously. This is a fight between American publishers and American printers, and we are in the middle. We have been in the middle for over 50 years, and it is unconscionable. What goes abroad and what they are really concerned about is the American publisher who sends abroad printing work on a very big, multicolored book, for example, where the setting or the illustrations or the color work is too expensive to do here. And American publishers shop around. They used to send it to Switzerland
and they sent it to Italy and now they are sending it to Japan. Ironically, that is not literary material and they can do that, under the new law. That is where the loss of business is.
No American publisher takes a 250-page novel, or a 300-page biography and ships it abroad in order to get the printing done cheaper. That is ridiculous. It may happen, but if it does it happens rarely.
But, what they are doing is saying to the American author of a novel or the author of a biography that if you can't find an American publisher, and if you have to go abroad, if you are James Joyce or even Ernest Hemingway, and you are living in Paris and you publish abroad, you can't have that publisher send copies into this country. And the only reason that those copies come in, in most cases, is because the American author abroad or here can't even find an American publisher to put the book out. All that remains in this clause of significance to American authors is they still lose their publishing rights if those copies are imported. And as you pointed out, Mr. Chairman, that is an obvious restriction on the fundamental right to distribute work in this country, to bring in intellectual works into this country. And it is only imposed on American authors. And they ought to accept at least this change because it doesn't hurt them one bit. It still keeps the clause in place, which I don't like either, but it still keeps the clause in place to protect them against the American publisher who is going to bring out an American edition and deliberately ships the printing work abroad. That is what they are really concerned about. That is the culprit.
And they shouldn't be insisting that when an American lives abroad or sends abroad to have a book published, because it is the only place they can find a publisher, they shouldn't be insisting that any number of copies of that foreign-copy edition be brought into this country, because, by God, nobody sent that abroad in the first place to cheat their members of their union or their constituent manufacturers.
Mr. KASTENMEIER. If the gentleman would yield? Do you think there should be an insistence on this?
Mr. Van ARKEL. If I understood the proposal correctly, and this is the first time I heard it, I think it would be far simpler to say we are going to repeal the manufacturing clause.
Mr. KARP. Well, I will accept that one, too.
Mr. DRINAN. Mr. Chairman, on section 601, music is exempted and it is not covered. Has anybody complained about that?
Mr. KARP. Everything is exempt except books. Any motion picture producer, American motion picture producer, can go to France or Italy and make a movie with foreign labor and import any number of copies of that film into this country and secure copyrights. And the damage done to the craft unions of California is probably much greater than is done to the printing trades in this country, but that isn't prohibited. The only class of copyright work that is covered by this clause are books and contributions to periodicals, and only if written by American authors. And I really think that if we went to court, the U.S. Supreme Court might well say that is such an arbitrary classification, that this classification is so discriminatory, that it violates the due process clause of the fifth amendment. And I cited cases in my statement where the court has said that. And I wonder whether
Use, bis of that publishers
the Judiciary Committee of the U.S. House of Representatives shouldn't consider that seriously. And I don't think it behooves the Judiciary Committee to pass a piece of legislation that may well be unconstitutional.
Mr. DRINAN. Just one last piece of information. Would the chairman tell me what the 1967 bill from this committee included? Mr. Karp says in that report you people stated, “There is no justification in principle for the manufacturing requirement.”
Was section 601 of the manufacturing clause, was that completely out of that bill ?
Mr. KASTENMEIER. No, it was not. As a matter of fact, and I think the gentlemen who are witnesses here are more knowledgeable than the Chair on this, my recollection is that bill is very much like 2223.
Mr. KARP. The report talks of the clause as it would be under 601, Mr. Drinan. It still says that is not justifiable in principle.
Mr. DRINAN. But the committee recommended that the clause ultimately should be repealed. Is that in the original
Mr. KASTENMEIER. No, the point of the report, while it suggested disaffection for that clause, but mindful that compromises and conciliations have already taken place, and that the clause as represented in this bill—and I am talking about 1965, 1966, 1967—but rather than to go and outright repeal it, or something else, that subcommittee at that time accepted more or less the language in 2223, but expressing this as a point of view.
However, the point of view was not written into the bill. In other words, if I understand the law, the present law exempts 1,500 copies and the bill exempts 2,000 copies. This particular proposal exempts Canadian publications, I think. I am not sure whether our bill did in 1967, did it?
Mr. KARP. No. That is a change.
Mr. KASTENMEIER. That is a change. And there may be certain other changes you have indicated in terms of typography and so forth that I am not clear on. I am not clear on the technical changes between H.R. 2223 and the present law. Perhaps Mr. Sandler or Mr. Van Arkel could enlighten the committee as to precisely what changes are represented from present law and 2223, from the present text? Mr. VAN ARKEL. Well, I think
Mr. KASTENMEIER. Does anyone at the table have knowledge on that?
Mr. VAN ARKEL. Well, I think you touched on the important ones, Mr. Chairman.
Mr. DRINAN. Mr. Chairman, I would just urge these two contending parties have a long lunch and study their difficulties on section 601 and come to the best compromise they can make.
Mr. STRÁCKBEIN. May I say, the impression seems to be entertained by some people that this manufacturing clause would prevent the importation of books, this language, from abroad. Of course, it does nothing of the kind. It is only if they want to enjoy a copyright in this market that they must manufacture in this country.
Mr. KASTENMEIER. Yes, I think everyone understands that.
Mr. STRACKBEIN. In other words, if you want to manufacture abroad, you have access to this market, but you don't get the copyright. ;.
Mr. KASTENMEIER. Do I understand the effect of the present law is to enable foreign book manufacturers and publishers to import into this country 1,500 editions, which are protected by copyright, and then having tested the market, they may not thereafter import more into this country, but then they would have tested the market for an American manufacturer and that
Mr. STRACKBEIN. That is correct.
Mr. VAN ARKEL. No, there is no prohibition on importing any number he wants to. The only consequence is that, if he imports more than 2,000, as provided in this bill, he will not receive later copyright protection. He has a 5-year period of testing the market to find out whether or not he wants to put out an edition in the United States.
Mr. STRACKBEIN. I think the 5 years is not in this bill.
Mr. KASTENMEIER. But the bill is predicated on the notion that copyright protection for authors for publishing and, indeed, as affects book manufacturing, is an essential economic protection.
I yield to the gentleman from California. Mr. WIGGINS. This is addressed to any one of the gentlemen who can answer this question. Do the copyright laws of other countries contain similar restrictions?
Mr. Karp. I don't know of any Western European country; I don't know of any country that has a manufacturing clause.
Mr. VAN ARKEL. Mr. Chairman, the British, and I feel quite sure other countries as well, have the exact equivalent of a manufacturing clause for copyrights. That is to say, in order to achieve a patent on anything, on any invention, you must manufacture in Great Britain or some other country in order to retain your patent.
Mr. WIGGINS. Do you disagree with the gentleman with respect to copyrights, however?
Mr. VAN ARKEL. I know of no other country that has a similar provision with respect to copyright; no. Mr. KASTENMEIER. The gentleman from New York?
Mr. PATTISON. I think we have pretty much exhausted the subject, but let me just follow up the notion you can import all you want, but all you lose is your copyright protection. Wouldn't the effect of that be that anybody who imported, let us say, 3,000 copies and thereby lost his copyright protection after the 2,000 copies, the effect of that, wouldn't it be, that any printer or any person could simply copy that book and sell it without any liability ?
Mr. VAN ARKEL. Well," Mr. Congressman, if we didn't think this clause had some economic effects, we wouldn't be here in support.
Mr. PATTISON. So that, in effect, really, as a practical matter, it does prohibit the importation of more than 2,000 copies?
Mr. Van ARKEL. No, it prohibits nothing.
Mr. PATTISON. I understand it doesn't actually prohibit it, but in effect it prohibits it?
Mr. VAN ARKEL. Well, in effect, it says you may not have a monopoly in the American market if you import more than 2,000 copies.
Mr. KARP. Mr. Pattison, may I respond to that? It is obvious that when an act of Congress inhibits somebody from acting because of a severe penalty if he acts, then it acts the same as a restraint. The Supreme Court decisions are full of examples of self-censorship, of coercing somebody into not doing something because of the serious