MS. RINGER. I think we are out of the really hairy problems for a while.

Mr. DRINAN. The hairy problems are gone?

Ms. RINGER. For a while.

The next chapter is on copyright ownership and transfer, and it covers the whole of chapter 2 of the bill. And as I say on page 2, during the prelegislative period in the current revision program, particularly between 1961 and 1965, the provisions on ownership and transfers of copyright were the subject of close scrutiny, some hot debate, and a great deal of tortuous drafting and redrafting.

Almost every provision in chapter 2 represents a compromise of one sort or another. And those involving works made for hire and termination of transfers were extraordinarily difficult to achieve.

However, by the time the bill reached the stage of hearings before your subcommittee in 1965, most of the disagreements were either resolved or on the way to being resolved. After painstakingly reviewing chapter 2, particularly the labyrinthine provisions of section 203, and after adopting some amendments, the subcommittee produced a chapter on copyright ownership and transfer together with a definitive legislative report that have remained unchanged and virtually unchallenged for nearly 10 years. I guess I should say virtually unchanged and virtually unchallenged: there has been one minor change. I do not think I will take the time, unless you want me to, to summarize the provisions of chapter 2 in detail-or in any other way. The summary that appears at pages 3 through 5, I think, covers the whole chapter pretty well. And let me summarize its effect by saying I think it is fair to say that every change from the present law on this rather important subject is in favor of authors, either directly or in general.

There were some tradeoffs, particularly on the reversion in section 203, but I would say that essentially the author gets a better shake in almost every respect under chapter 2 than he does under the present bill. I may be challenged on this, but this is my own opinion.

There are some technical issues that remain, and I tried to cover them in this chapter. I think there is a problem that has not been recognized with respect to commissioned portraits.

I find for some mysterious reason the Senate put commissioned portraits under a provision-under the definition of works made for hire which I am not sure is fair. And I want to raise this, and I hope that we will generate some comments on it thereby. But I do not think I need to divert you with this right now.

I would like to discuss the issue of involuntary transfers which are covered here on page 8.

You initially heard some testimony on this issue from the State Department on the second day of your hearings. This provision is now in section 104 (c) of your bill, and as I explained above in chapter 1. the 1975 bills as introduced contain in section 104 provisions stating that the expropriation of copyright by a governmental organization of a foreign country was not to be accorded legal effect under the U.S. Copyright statute.

This provision originated as a response to concerns arising from adherence by the Soviet Union to the Universal Copyright Convention,

and the State Department did testify in favor of a provision that would deal with the fears that were being expressed on this subject. Namely, that under the new copyright relations with the Soviet Union, works by dissident authors could be controlled, and their publication enjoined in this country.

This is overstating the argument a little bit, but essentially that was it.

Now we have taken a position in the Copyright Office consistently favoring the principle of this, but we felt that the language, and the place of the provision in the bill, was probably a little problematic. And so we have participated in a redrafting which involved moving this provision to section 201 which is where it belongs. It involves ownership and exercise of ownership and transfer. And this was adopted by the Senate Judiciary Subcommittee and by the full committee on October 7 of this year, and it now appears as subsection (e) of section 201-and you do not have this in the bill, but the provision is here on page 9, and it is broader than the other provision. But in my opinion it is a statement of the present law.

I do not think the provision alters the present law: what I think it does is quiet fears about how the present law might be misused.

The Senate report on S. 22 has not yet been published, but it will presumably use the 1974 Senate report as its point of departure. It will make clear, if I am correct, that the purpose of the provision is to reaffirm the basic principle that the individual author is the fountainhead of copyright protection, and that his copyright cannot be taken from him involuntarily.

As now worded, the provision would apply to all involuntary transfers, including but not limited to foreign expropriation. Some concern has been expressed about the effect of this, or the earlier versions, on bankruptcy and mortgage foreclosures, but the report would make clear-and I think correctly so that legal actions involving copyrights, such as bankruptcy and mortgage foreclosures, would not be affected by this subsection since the author has, in effect, taken a voluntary act that consents to the transfer. I think that is self-evident and I think that what is laid out here on page 9, which is now the Senate version, is something that we concur in and that we have also received support from the Authors' League on too. They are strongly in support of this provision, as well.

And this is all I would like to say on chapter 11 unless you would like me to go on, Mr. Chairman.

Mr. DRINAN. Would you explain just one bit. I am not certain I got that about the possible effects upon Soviet dissidents or others.

MS. RINGER. The argument ran-you see, the Soviet Union did not belong to any multilateral copyright convention until 1973. And when it joined there was a great deal of speculation as to what the effect of this would be and what the motivations behind it were. And one of the fears that was expressed was that because now the work of a Soviet author, for the first time, would be copyrightable in the United States that the Soviet Union could expropriate this was the fear, whether well-based or not, that they would expropriate the copyright and be able to sue in U.S. courts to enjoin the publication of a work that had been smuggled out, or gotten out some other way.

And the Authors' League and others supported legislation, separate legislation, in the Senate which has gone through a good deal of refinement, and I think we are finally down to this provision on page 9. Mr. DRINAN. Thank you.

I think the Authors' League as a matter of fact wrote to us-just recently wrote to me about that very point. This is among much of the copyright mail that came in in the last 3 days.

Well, I guess we are supposed to be glad that you have a noncontroversial chapter, but it is not as interesting as the others. Ms. RINGER. That is right, I am sorry to say.

Mr. DRINAN. Mr. Wiggins, do you have any questions?
Mr. WIGGINS. I have no questions.

Mr. DRINAN. Mr. Pattison?

Mr. PATTISON. I have no questions.

Mr. DRINAN. All right, Ms. Ringer, proceed.

MS. RINGER. This is the manufacturing clause, if I may leap over to chapter 14. I do not know how far I will get with this, but I will get as far as I can.

This came to me in the form of these folders this morning.

Mr. DRINAN. Yes, you may proceed if you will.

Ms. RINGER. All right, thank you. I apologize for the length of this chapter, but-and I will be honest and say at the beginning I did not include this in the seven big issues that I saw at the time when the hearings commenced. I think it is a big issue. I think it should be listed among the top, and I think that on reviewing the interrelated issues, which are very complex-and you must decide them-I decided that it might help to try to lay this all out for you-I do not plan to go through it this morning-to see how this strange animal was born and grew up and, I hope, eventually will die. The whole history of this is a part of the history of our country, and it is kind of a fascinating legal and historical study. It was-if I may make a side observation-the subject of the first long legal research paper I ever did in the Copyright Office in 1950, and really the better you get to know this provision, the more you come to loathe it. It is a terrible, terrible provision.

Let me start by reading from page 3, and I think this is really simply to set the stage. For over a century, the U.S. copyright law offered no protection whatever to foreign authors. From 1790 to 1891 no foreign author could be protected under copyright in the United States. Following the lead of State copyright laws enacted under the Articles of Confederation, the 1790 Copyright Act granted protection only to works by citizens or residents of the United States; but it became clear soon enough that what seemed on its face to be preferential treatment in favor of American authors actually amounted to devastating discrimination against them. English books and authors were popular with the American public and required no permission or payment of rovalties. Why should U.S. publishers bring out American books, for which the profit was uncertain, when they could publish sure-fire English books without seeking permission from anyone or paying anything? The problem was compounded by the lack of any international copyright relations between the United States and other countries: if an American author did manage to achieve some success

in his own country, he would find his works reprinted, translated, and published throughout the rest of the world without permission or payment.

This situation produced what became known as the international copyright movement, which proceeded without success from generation to generation throughout most of the 19th century in the United States. Beginning in 1837, Henry Clay sponsored legislation in several successive Congresses that would have granted U.S. copyright to foreign authors under certain conditions; significantly, one of those conditions was that their works must be printed in the United States to be protected here. Note the subject matter addressed was works by foreign authors. No one dreamed that American authors would ever be induced to have their works manufactured abroad. They were having enough trouble having them manufactured here. However, until the last decade of the 1800's, the economic interests of the American publishers and printers, coupled with the strong protectionist sentiments of the era, served not only to keep the U.S. tariff on imports of foreign books very high, but also to defeat every effort at international copyright reform.

What finally emerged, in the act of March 3, 1891, was a complicated compromise which had the effect of giving U.S. copyright protection to foriegn authors with one hand and taking it away from many of them with the other. The key to the compromise was the manufacturing clause, which was the price demanded by printers, book manufacturers, and particularly the labor unions in the printing trades. Under the 1891 act, U.S. manufacture of books in all languages and of graphic works was an absolute condition of copyright protection; as part of the compromise, musical and dramatic works were exempted from the manufacturing requirement entirely. I believe in the testimony during the hearings you asked about music, and I am not sure you got the answer correctly, but the fact was that music has never been in the manufacturing clause. These were trade offs at the time the compromises in 1891 were reached.

The practical effect of this provision was to make the obtaining of U.S. copyright extremely difficult for foreign authors writing in English. In other words, they had to arrange to have simultaneous publication in the United States with publication in their own country, and it was nearly impossible for foreign authors writing in other languages. How could a French author arrange to have an edition of his work published here in French before it was published in French in France? The history of the manufacturing clause since 1891 has been one of gradual legislative liberalization in regular stages, each one involving a process of confrontation and compromise. The following summary of the legislative history of the manufacturing clause from 1891 to 1955 is oversimplified, but is intended to convey in general terms what the manufacturing clause was, and how it has evolved. And I have here several pages, I think it goes all the way to page 11, in which the gradual process that I have described took place, up to the act of August 31, 1954, which was the act bringing the United States for the first time into an international copyright convention. This came into effect in 1955, and one of the key provisions of that act and the Universal Copyright Convention that it imple

mented was that for foreign authors qualifying for protection in the Universal Copyright Convention, the manufacturing clause was done away with, provided the work was published with the familiar "e" in a circle notice.

This was the key compromise in the Universal Copyright Convention, and as things have evolved, there is an enormous paradox here. This point was made, but I will make it again, that Henry Clay started out trying to deal with foreign works by foreign authors, foreign manufactured works by foreign authors; the whole structure of the evolution of the manufacturing clause has been in the direction of foreign works. We are now at the point where the principal impact, the great majority of the impact of the present law is on American works, American authors, and where, under the revision bill, the total impact would be on works by American authors; foreign works are exempted entirely.

I think I will leave you to read this, if I may, because it is just too complicated to try to summarize, but I will turn to the summary of the present law, which is on page 12, and this is what we have come to. After the original act was in 1891, there were amendments or revisions in 1904, 1905, and then the act was revised in 1909, and there have been revisions in 1919. 1926. 1949 and, again, effective in 1955.

This is the present law, not the bill. We are now dealing with books. and periodicals in English, except where the work is exempted under the Universal Copyright Convention, and, as a practical matter, this means that the requirement now applies almost entirely to American authors. There are certain provisions dealing with graphic works. They are a terrible nuisance. I am not sure they serve a great deal of purpose for anybody, but they are still a part of our law. They would be deleted under the revision bill.

It is interesting to observe now, in the light of what we have been through over the last 10 years, that one major issue seems to have receded. Section 16 of the present law is poorly worded; they were trying to cover everything, and as a result they left some gaping loop holes, and one of them was an apparent loophole that allowed U.S. publishers to have foreign manufacturing firms do the composition of the type abroad and then import certain artifacts and reproduce the copies here. The wording of section 16 was so ambiguous that this was a possible interpretation, and they were certainly doing that, and this was hotly contested in the middle 1960's.

Basically, the intention of section 16 is that all forms of book manufacturing be done in the United States. It did not have that effect. Under the present law, the principal exception. if you cannot get out from under the manufacturing clause directly, the principal exception is known as the ad interim exception, or an ad interim copyright. For books and periodicals by U.S. citizens, first manufactured and published abroad, and for the few foreign works still failing to qualify under the UCC, a 5-year ad interim copyright can be secured by making registration and deposit within 6 months after first publication. This temporary copyright can be extended to the full term by manufacture and registration of a U.S. edition within the 5-year period.

This class of registration, which was once quite widely used, is now not rare, but it is mainly American authors, and it is certainly a small