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about. And I do believe some decision should be made structurally as to how this should be handled. I don't think this is anything that need concern us deeply, but I do make that observation, because, in all candor, Mr. Chairman, the title was grafted onto this bill for strategic reasons rather than in an effort to try to enlarge the subject matter of general revision as such.
Chapter 1 of title I covers almost all of the testimony that you heard in bulk. I would say that the vast majority of the testimony you heard is covered under chapter 1 someplace or another. In fact, the vast majority is covered between sections 106 and 116. And I do think this can be a little misleading, because the guts of the bill are not confined to those big money sections. The bill is a reform bill and it is not a bill that is intended to give people more money. It is an effort to try to bring the law up to date. In fact, I think that anyone simply reading the testimony that was given here in the first 13 days would get the impression that the issues were simply that certain interests want more money, or don't want to pay more money. That is not, basically, the issue that is presented by this bill, of course. And I believe in going through this I can convince you of this, if you are not already convinced.
Chapter 1 falls into four parts. The first section, obviously, is definitions, which I think would be wise to include at the very beginning.
Sections 201 to 205 cover the subject matter that can and cannot be copyrighted. Section 106, which is a very fundamental provision of the bill, lays out the exclusive rights of the copyright owner in general terms. Then sections 107 to 117, are the limitations or qualifications on those exclusive rights, and inevitably, that is going to be what is most of what we are talking about.
With respect to the definitions, these have evolved very slowly, and in some cases torturously over the legislative process, but I think that most of them are now fairly well settled. I don't recall that there was any extensive challenge to any of the language in 101. There are some separate definitions in the cable and jukebox sections, namely, sections 111 and 116, because those are the only sections in which the terms that are defined are used.
The definitions in 101 are there because they are used in more than one section. Now, this can be a little tricky, because, for example, you may look at section 105 on U.S. Government works and, for instance, say you are talking about a work of the U.S. Government, then what do you mean? Well, the definition is in 101. And it is there only because the term is used in a not terribly important way in charter 4. And we already had a letter to the Washington Post saving that the bill is faulty because works of the U.S. Government is not defined. However, it is defined, but it is defined in section 101, and you have to look for it.
Now, some of the definitions are extremely important in connection with substantive issues, but I will try to discuss them in relation to those issues.
The subject matter of copyright, as such-the scope of the copyrioht law in terms of the works it covers, as distinguished from the rights it gives is covered by sections 102 to 105.
In the report that you have before you in draft form I have singled out four issues that were raised in hearings and elsewhere in relation to these four sections. Actually, there were no issues raised in connection with section 103. I have tried to put them forward to you in the form of four questions or issues to be considered. It is hard for me to say, Mr. Chairman, how I ought to handle this. A lot of this is not of overwhelming importance. I would ask that, if you could, you would look at the questions I have put forward on that first page. I will cover the ones that I think are worth mentioning here. I would hope that you would consider them in the markup, if you don't consider them now.
I think that the main one, the one that you should consider most directly, is question No. 4, which has been raised by several witnesses for the Government, most particularly in a letter, which you may have received, from NASA. This is a section which has been very, very controversial in the past. I think that you would find the legislative history of this surprising in view of the shortness of the section and the fact that you didn't hear more public testimony on it.
The question is essentially whether the prohibition against copyright in U.S. Government works is too broad or too narrow. It had been an inflammatory provision at one time, but I do believe that a great deal of the heat has gone out of it.
The Commerce Department, in its testimony on the second day of hearings, called attention to the National Technical Information Serv. ice, the NTIS, which does have a statutory mandate to operate a clearinghouse for the collection and dissemination of scientific, technical, and engineering information. I would say, on the basis of my own knowledge, that most of the material they publish is not written by Government employees. It is written by independent contractors. Therefore, there is a question, initially, in my mind, as to whether or not a lot of the stuff they do publish isn't copyrightable if the Government, if the executive branch, chooses to make it subject to copyright. However, NTIS does not feel that way. And under its statutes, it is required to be as self-sustaining as possible and not to force the general public to bear the publishing costs that are essentially for private benefit for the benefit of the research and development community. The lack of copyright prevents NTIS from combating very extensive photocopyrighting. And they are mainly concerned with that, both in the United States and abroad.
The Department of Commerce therefore urged an amendment to section 105 that would allow it to secure copyright in NTIS publications, noting correctly that a precedent does exist for this in the Standard Reference Data Act involving Bureau of Standards publications.
The XASA letter, which came in not too long ago, made three spe. cific recommendations with respect to this section. One is an old issue that in my report I attempted to cover historically, and that is to allow exceptions to the prohibition. The 1964 bill did contain a provision that would have allowed the Government to secure copyright in publications by Government employees or officials written as part of their duties in exceptional cases and under certain circumstances. This was strongly opposed, and was dropped, I believe, in the first bill that was the subject of your hearing in 1965.
Second, NASA would like to make clear that the prohibition applies only to domestic copyright protection. They argue that the rationale for denying copyright in U.S. Government publications is intended to have no effect on protection of those works abroad. If the rationale is that the public is paying for the work and therefore ought to have it free, this certainly doesn't apply to publication in foreign countries. And there is, apparently, a desire, and a very strong desire, to license foreign governments and foreign publishers to publish C.S. Gorernment publications. Their argument is, and I am quoting, not to "require a giveaway of U.S. Government works to foreign nationals and foreign governments.”
Mr. KASTEN MEIER. Let me just ask this, although it is a different question. Does, in fact, NASA sell these compilations or periodicals as the U.S. Government Printing Office sells its publications?
Ms. RINGER. NASA has an extensive licensing program and does collect money, both here and abroad. NTIS is the one that is wanting the copyright in their publications domestically and internationally, too. I think that NASA's interest goes to a lot of other things besides publications, such as the badges that the astronauts wore and that sort of thing. And I think that they are not seeking domestic copyright. They want the bill or the report, preferably the bill, to make clear that nothing in section 105 a ffects their right to license and collect rovalties for foreign uses of works, publications and other things.
Third, there is in section 8 of the present law a saving clause that indicates that if private works are published by the Government, that doesn't throw them into public domain. We didn't see any real need to keep this. We felt it was self-evident, under the revised provisions, but NASA still is worried about this. And I would say on that, that the ('opyright Office can't see much ohjection one way or the other. If they feel it is important, then we would not object.
The Postal Service is also putting forward some proposals which have not yet been put forward officially to either House of Congress. I have summarized the gist of their proposals. They boil down to a desire to protect exclusive right in postage stamp designs. The argiment is that since the Postal Service has ceased to be technically a government agency, it should be entitled to operate as a private corporation in the copyright area.
I will give you, very briefly, what I indicated in the report is our position on some of this material, as follows:
The Copyright Office prefers to take no position on the request of the Department of Commerce for a specific exception allowing copyright in NTIS works. I feel this is strictly up to Congress.
We adhere to our position opposing a provision for setting up machinery to allow copyright in government works under exceptional circumstances.
We agree with NASA that the copyrightability of U.S. government works in foreign countries should be made clear, but we should prefer to accomplish this in the report.
We have no real objection to retaining the saving clause now in section 8, but we still doubt whether it is necessary.
We have no objection to a construction of the statute that would treat works of the U.S. Postal Service as private publications, eligible
for copyright, but we believe that all those works, including the designs of postage stamps, should be subject to the same conditions, formalities and time limits, as other copyrightable works. In other words, we are not disagreeing essentially with the argument that since the Postal Service is now a private corporation in some respects that they should, potentially, be able to secure copyrights and exploit them and I suppose this should be expanded to postage stamps. But, I don't think this should be completely unlimited. I don't think they should be able to get an automatic copyright against the world without the use of a copyright notice and with no limitations on term and so forth. And I think that since the issue has been raised, it might be wise to include something in the report on the subject.
Mr. Chairman, the other material I have in chapter 1 is important. And I think it does (leserve consideration, but I am wondering whether we should take the time of the committee on things like architectural works and this loop-hole concerning stateless persons under section 104 at this point. The expropriation question, which is now in section 104, has been moved by the Senate in the subcommittee and now in sertion 01. I would prefer to discuss it in the context of ownership of copyright, rather than protection of foreign works. It was really mispared before, in my opinion.
Jir. KASTENMEIER. In the interest of time, I think you ought to move on and we can take due note of the issues as you note them, as they arise at each point in each of the sections and chapters. And if you have not covered them, we can look at them. So, I would proceed so that we may, indeed, cover as much ground as time permits.
lis. RivGER. Thank you, Mr. Chairman
Chapter 2 of my report--and I would identify the issues under it as fair use and reproduction for educational and scholarly purposes-was the subject of a rather lively debate before your committee. This was, for somebody who has been through the wars on the issue, a little curious, because it was, in my opinion, somewhat difficult to identify a single educational position. I think your questioning, the subcommittee's questioning of the educational witnesses, brought this outthat there seemed to be several positions being put forward there, and ther wern't necessarily consistent with each other. I think there is a pattern to them however. And, in fairness, I think that a solution to this problem can be found.
The sections that are involved are principally 107, concerning fair use and sctions 502 and 501, concerning remedies for infringement, namely, the injunctions section and the damages section.
The issue that we are talking about now has an enormously long and difficult history. I don't think anyone can really understand the testimony that was put forward in mid-May on this without knowing something about that history. I will summarize it as briefly as I can, hv saving that the educators, in the mid-1960's felt very strongly that fair use was not a sufficient guarantee with respect to classroom teaching and that obviously photocopying machines were being used extensively in day-to-day and face-to-face teaching activities. They were very concerned that broad language on fair use or the lack of any language with respect to fair use would imperil their present activities and would endanger individual teachers, and would subject them and
their superiors in the school system to the possibility of infringement suits. They felt, as they expressed to you, that the most imaginative teaching that is done involves using this whole range of new inventions that have been adapted, in some cases very ingeniuosly, for dar. to-day teaching. These include, but are obviously not limited to the photocopying machines.
There was a quite sharp confrontation in 1965 in the hearings between the authors and publishers on the one side, and the Ad Hoc Committee of Educational Organizations and Institutions on the other. And the center of the issue was section 107. The ad hoc committee was urging that it contain a more expanded language, which referred to teaching, plus a very broad educational exemption, which wasn't exactly the same as the proposal that you had put before you, but was similar in many respects. And the crux of that proposal was that if the activity was nonprofit, was for no commercial purpose of any kind, and if it was for the purpose of teaching or scholarship or research that it be allowed, without any limitations. This was combated very vigorously by the authors and publishers, as you saw in May.
A long and very difficult series of negotiations ensued. And your subcommittee played a very creative role in trying to work out a solution. Mr. Fuchs, your majority counsel, chaired a meeting which was a turning point and at which there was a considerable degree of accommodation and consensus achieved. It covered the whole range, at least as it was then viewed, of educational activities, in an effort to figure out what was fair use and what was not. The thrust of the meeting was that we will retain the fair use provision. It had been pared down to its bare essentials. But the basic compromise was to restore it and perhaps augment it a bit, especially by referring to teaching, and to include in the report a very long and detailed and explicit discussion of what the subcommittee viewed as fair use in the context of educational photocopying and other forms of classroom activity. This succeeded, and it succeeded after your hearings were finished, but the success was reflected in the Senate hearings that were going on in 1967 at exactly the same time the House passed a bill. And at that time, the ad hoc committee indicated a willingness to adhere to the agreement, if certain things were done. They had a menu of things that they wanted changed, but they weren't of a fundamental nature. Well, obviously, the Senate could not change the House report. So this was left a little bit dangling, because the Senate had had nothing to do with your subcommittee's report, which had been adopted by the full committee. That report language was obviously a major part of the compromise.
And also, there were a few things that they had asked for and that, when the Senate acted, it didn't do. They were not major, but the Senate didn't do them. They did do some of them, but not all of them.
There were, I might say, some changes in the remedies section, not the injunction section, but with respect to statutory damages that did insulate, in a sense, infringement by teachers, up to a point. It wasn't as much as the ad hoc committee asked, though.
And then the cable issue came into the picture. There was this long hiatus. And the subject was barely discussed at all during this time.