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other contributions to periodicals. The restrictions and penalties of the "manu. facturing clause" apply only to these classes of copyrighted works, and only to those authored by United States citizens or domiciliaries.
Although American authors are primary victims of the manufacturing clause, they are innocent casualties of an economic conflict between publishers and the American printing industry and unions. The present clause, and the proposed modification, seek to compel publishers to manufacture U.S. editions of American authors' books in this country. Both use the author's rights as a hostage for that purpose.
As your Committee's 1967 Report stated, "there is no justification on principle for a manufacturing requirement in the copyright statute ..." Sec. 601 is a "compromise" provision. As your Committee recommended, the clause ultiniately should be repealed. The Authors League agrees. It believes that the manufa'turing limitations should be phased out of the Copyright Act, eliminated before a specified date-e.g. December 31, 1982. Although Sec. 601 eliminates some inequities of Sec. 16, it nonetheless imposes harsh and unjustifiable restrictions on American authors' rights. Moreover, both sections may violate the Fifth and First Amendments. And the Authors League believes that changes should be made in Sec. 601 to eliminate pointless injury to American authors.
THE PRESENT LAW
Sec. 16 prevents an American author from securing U.S. copyright in a book or periodical contribution if the first edition is manufactured abroad. If ad interim copyright is secured, the author has a 5 year reprieve to have an edition manufactured and published here. Failing that, all U.S. protection is lost. Sec. 16 also deprives American authors of all U.S. protection if foreign-made copies are distributed here, even though U.S. copyright was previously secured by publishing an American-made edition in this country. Many American authors have been deprived of U.S. copyright protection by the manufacturing clause.
TIIE REVISION BILL
Sec. 601 would eliminate some of the onerous provisions of Sec. 16. American authors would obtain U.S. copyright in books and other nondramatic literary material, whether manufactured here or abroad. The new manufacturing requirements would be satistied by production in the United States or Canada. And the Authors League strongly supports the inclusion of Canadian manufacture as some relief from the limitations that remain in Sec. 601.
Sec. 601 still imposes manufacturing restrictions on the rights of American authors of books and other nondramatic literary material. No more than 2.000 foreign-made copies may be imported. If additional copies are distributed here with the author's permission, he loses protection for his U.S. publishing rights. Anyone could publish his book without his permission, and without paying him. Protection against further infringements can only be recovered by publication of an authorized edition manufactured here or in Canada.
Importation of more than 2,000 copies would not completely destroy an American author's copyright, as Sec. 16 now provides. The right to make motion picture or television versions, and other non-publishing rights would not be impaired. But most American authors of books earn their income solely from their publishing rights. Thus, the new clause would continue to penalize those U.S. writers whose books were published abroad.
THE DAMAGING EFFECTS OF SEC. 601 American authors do not have their books published abroad in order to have the printing done more cheaply. The production of a book, including the printing, is the publisher's responsibility. The publisher, not the author, selects the printer and negotiates the price for manufacturing the book; the publisher, not the author, pays this and the other costs of production.
American authors turn to foreign publishers when they reside, work or study abroad. They choose publishers in the same country because the relationship is too personal to conduct at long distance. Sec. 601 recognizes this reality by erempting from its restrictions all foreign authors and any American author domiciled abroad for more than one year preceding importation and distribution of foreign-made copies of his book in this country. There is another reason why American authors turn to foreign publishers--they cannot find an American publisher willing to issue their books,
Sec. 601 would deny many of these authors the right to disseminate their works to American readers, An author who published abroad, and could not find an American publisher to issue his book here, would be barred from distributing more than 2,000 foreign-made copies-on penalty of losing protection against infringing editions.
Vioreover, Sec. 601 would deny some American authors protection for their t.8. publishing rights. Foreign publishers sometimes may insist, as a condition for accepting a manuscript, on authorization to export copies to this country; and will n:anage to distribute them here. American authors who must publish abroad would thus face two alternatives: (i) granting that authorization, and losing protection against infringing American editions ; or (ii) denying authorization, losing the sole opportunity of publication which the foreign publisher represents. Other American authors, ignorant of the manufacturing requirements, will grant foreign publishers these export rights. Sec. 601 will prove, as Sec. 16 has, a trap for unwary U.S. writers.
THE MANUFACTURING CLAUSE AND THE FIFTII AMENDMENT
The classification of authors and types of works subject to the manufacturing clause is so arbitrary and discriminatory that it well may violate the Fifth Amendment. Shapiro v. Thompson, 394 U.S. 618 (1969) repeated this quotation from two prior opinions :
"[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process.'" Schneider v. Rusk, 377 U.S. 163, 168 (1964); Bolling v. Sharpe, 347 U.S. 497 (1971). (at. p. 642)
In Shapiro v. Thompson, the Court ruled unconstitutional an Act of Congress which established a one-year residence requirement for welfare assistance in the District of Columbia, because the discrimination involved in the statutory plan of classifying new and old residents violated the Due Process Clause of the Fifth Amendment. In Schneider v. Rusk, the statute was held to violate the Due Process Clause because it discriminated between two classes of American citizens who rexided abroad, favoring the native born over the naturalized.
Sec. 601 (and Sec. 24) impose two sets of discriminatory classifications on one class of American authors. First, American authors of books are subjected to their restrictions and penalties. Sec. 601 exempts from those provisions all foreign authors (except those domiciled here). Under Sec. 9 of the present law: British, French, Soviet and other authors from the nations belonging to the Universal Copyright Convention are exempt from the restrictions of Sec. 16 (except those domiciled here). Under Sec. 601, and the present law, books in English by these foreign authors, made abroad, may be imported and distributed in the United States-without any limitation on quantity, without any diminution of C.S. pul). lishing or other rights.
This utter discrimination finds no justification in the Copyright Clause of the Constitution which authorizes the granting of exclusive right(s) to “Authors", without excluding any nationality. Nor does the discrimination find justification in economic reality. Books by foreign authors, when sold in this country, can be made here or abroad. Importation of foreign-manufactured copies of books ly those authors will deprive American printers of the work they would have if the copies were produced here.
Second, the manufacturing clauses unjustly discriminate between American authors of books (and periodlical contributions) and all authors of other classes of copyrighted works. American and foreign producers of film and television programs (the "author" for copyright purposes) can manufacture these works abroad and import unlimited numbers of copies into the t'nited States without im; airing the complete protection of all of their rights under the l'.s. Copyright Act. Foreign-made copies of sheet music, records, graphic works and other copyrighted works-by American authors-also can be imported into the t'nited States without diminishing the protection afforded by our copyright statute.
There is no constitutional justification for this arbitrary discrimination against Airerican authors of books and other literary works. In its last Amendment of the Copyright Act dealing with Sec. 16, the Congress found that foreign manufacture of books in English no longer represented any threat to the "domestic printing industry." (Wo. 2608, 83rd Cong. ; 2d Sess., p. 3631)
By contrast, the production abroad and importation of motion pictures and television programs, by American "author"-producers, has had a serious effect on American workers engaged in the production of such copyrighted works.
THE MANUFACTURING CLAUSE AND THE FIRST AMENDMENT As we have noted, Sec. 601 (and Sec. 16) would effectively prevent some American authors from disseminating their works in the United States. Only books, and only those by American authors, are singled out for this restraint. This "legislative classification is strikingly underinclusive." Erznoznik v. City of Jacksonville, U.S. Supreme Court (June 23, 1975; 422 U.S. 205, 215). Although a legislature may, ordinarily, "deal with one part of a problem without addressing all of it" said the Court,
*This presumption of statutory validity, however, turns upon the subject matter of expression. ‘Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'” Police Dept. of Chicago v. Mosley, 408 C.S. at p. 95.
The manufacturing clause, new version and old, restricts the distribution of certain works because of their form--applying to books but not to films, television or radio programs, pictures or illustrations. The clause restricts the distribution of books because of the nationality or domicile of the author. Books by American authors are restricted, books by foreign authors are not. These restrictions curtail the author's right to disseminate his books, protected by the First Amendment. Smith v. California, 361 U.S. 147 (1959); Bantam Book: v. Sullivan, 372 U.S. 58 (1963). The restrictions of the manufacturing clause, discriminatory and "underinclusive", violate the First Amendment as well as the Due Process Clause of the Fifth Amendment.
CHANGES IN SECTION 601 As we have noted, the primary purpose of the manufacturing clause is to compel book publishers to manufacture here the copies they distribute in this country. That purpose is not served by prohibiting the importation of foreignmade copies of books by American authors which are published abroad by foreign publishers. American authors do not have their works published abroad to obtain lower printing costs, or to deprive American printers of work. Those consequences occurred when American publishers arranged for the foreign composition and printing of books they produced for sale in the United States, So long as the manufacturing clause remains in the Conyright Act, it should be limited to those circumstances. Therefore, the Authors League recommends that Sec. 601 (b) be amended by adding a new clause reading:
“(7) where the copies were produced by a publisher who had previously published the work outside the United States and is not a national or domiciliary of the United States or a domestic corporation or enterprise."
This clause would permit the American author who had published his book abroad, by a foreign publisher, to authorize the importation and distribution of that publisher's copies in the United States without limitation on the number of copies, and without losing protection for his publishing or other rights.
The Authors League also recommends that Sec. 601 be amended to exempt periodicals and contributions to periodicals. Many foreign periodicals are sold here from their original, foreign-made editions. They are not even subject to the manufacturing clause if they do not contain contributions by American authors. And the pressure of the manufacturing clause will not compel them to print in this country the copies they sell here. Its only effect can be to deny American authors the opportunity of having their contributions published in those periodicals. Indeed, one of the primary consequences of the clause is to deprive American authors of work opportunities in various areas. For example, American publishers frequently have contracted for the foreign production of art books, chil. dren's books and other works requiring good-quality color photographs or illustrations. Under Sec. 601, this practice would not be restricted so long as the publisher hired a British, Australian or other foreign author (from a U.C.C. country) to write the text. For Sec. 601 does not apply to foreign production of graphic material, and would not apply where the text was written by such a foreign author,
Mr. KASTENMEIER. Thank you. Actually, we have some questions of the witnesses. Mr. Karp, would you remain at the table, and perhaps we will have Mr. Strackbein and Mr. Van Arkel and Mr. Sandler join you for any questions that the committee may have.
PANEL DISCUSSION: MR. STRACKBEIN, MR. VAN ARKEL,
MR. SANDLER, AND MR. KARP
Jr. KASTENMEIER. For a country that holds itself out as having freedom of the press and freedom of speech and peoples with various ideological persuasions, is it consistent for us to deny foreign publications into this country by using this economic device in the copyright law to limit or, in fact, prohibit equal protection for such copyright materials, Mr. Karp?
Mr. Vax ARKEL. May I address myself to that?
JIr. Vax ARKEL. There is presently no law of any kind that prohibits any foreign publisher from sending into the United States any number of books that he desires to send in. We are not talking about a limitation on books or other periodicals into the United States. We are talking about the conditions under which such a foreign publisher can achieve a monopoly by law of the entire American book economy. We think that the Congress has not only the right, but the duty, to see to it that there are reasonable conditions on the grant of this copyright and that the use of the manufacturing clause is a totally appropriate means to that end.
Mr. Karp. May I answer the question, which you addressed to me, Mr. Chairman?
Mr. Vax ARKEL. I am sorry. I didn't know I was interrupting.
Mr. Chairman, the answer to your question is obviously that it is not proper for the Congress of the United States to enact a statute, which it has done, which prevents foreign editions of works from American authors from entering the country. I think it violates the first amendment. The classifications in the present law and in the bill are so inclusive and so arbitrary and so discriminatory as probably to fall under the first amendment.
Moreover, it ill-behooves the labor unions to sit here talking about an author's monopoly. If it weren't for a particular section of the Clayton Act, every union in this country would be illegal as a monopoly.
Third, if the Department of Justice were able to sue Congress for violating the antitrust laws, they would be suing you for enacting the manufacturing clause. They have a suit going against American publishers right now for conspiring with British publishers to keep foreign editions of books out of this country. And a most effective method of keeping those books out of this country is the clause we are discussing today.
Mr. KASTEN MEIER. Thank you. Mr. Van Arkel, are there not other means or devices than the manufacturing clause in the copyright law, such as tariffs and duties on foreign publications, which ought to govern as an economic matter, whether it is protectionist or not, that ought to govern in this area?
Jr. V'AN ARKEL. If I may, I would like to refer to my original statement for the history of the introduction of the manufacturing clause, 'the reasons for its enactment, and how it was derived. I realls tin that alternatives, and I haven't given much thought to the alternative but I think clearly there would be difficulties with the GATT Treats 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 confu-ion and difficulty than the continuation of what has been the lat for a number of years.
Mr. KASTENMEIER. At this point, I would like to yield to Mr. Railsback.
Mr. RauLSBACK. No questions.
Mr. DRIYAN. I want to thank all of you gentlemen for your state ments, and I raise the question whether or not this manufacturing clause violates the Ilelsinki agreement. I read that very carefully, ad toward the end there are several sections about the diffusion of knowl. edge and the guarantee that we will not block access to knowledge in any language. I wonder whether anybody would want to make a julge ment on that?
Mr. Karp, would you feel that llelsinki supports your case! It is a new argument for you. I hope.
Jir. Karp. No: I am not arguing with you. I wish I was better pre. pared to agree with you.
Mr. DRISAN. It is a new argunent I am offering ro'. Go ahead.
Mr. Karp. I think you are right in principle, but I haven't prepared mr-elf on the Helsinki agreement to comment in detail.
Mr, DRINAN. It might be a very good argunent for you.
Mr. VAN ARKEL. I can only reiterate, Jr. Drinan, what I almu-i stated. There is presently no law of any kind on the books which pre hibita, in any manner, the importation of books into this country. To that extent. I think it is completely con-i-tent with the freedom with the llelsinki agreeinent talks about in its agreement, and rrallr gir beyond what that agreement contemplates. I can only emphasize that you are talking here not about free trade, not alont free prchan; vou are talking about the grant of an American monopoly of this inarint through copyrights. Now, there is certainly nothing in the Ne-in:ki agreement that says that this country has got to give an uncollational amount of access to this market to all foreign publisher Wlper they may be
Vr. IRINAx. Let me quote to you from a manual on coprright law done by Arthur Han-ın. This is his conclus!0!), on page 1.41;
In general, most experts find no lopie in densing marricht protein t o AAA 11.11 pretenting titter a nst far"
mitan. In fact, a'l T tered with the ph Ible *** on of the printes. Apar to nerve that trend taufature in the l'nited Statrs shutuld not in a condit! in of copyright
Inutling to comment on that!
Nr. VAN ARKFL. I can only ask that you read my statement for the Tin
Mr. Der av. I did, sir. I read it in-night, and I read it again this morning. I have practically memorized it. But gire me somebody be