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dealing with reproduction of postage stamp designs, including the limited exemptions from those statutes, now contained, as further amended, in 18 U.S.C. § 504 (1970). Section 1 of the Act originally was placed in its entirety in 39 U.S.C. §371 (1934 ed., Supp. V, 1939) by the editors of the United States Code, and remained there until the final proviso was transferred to 17 U.S.C. § 8, when title 17 was enacted as positive law in 1947. Act of July 30, 1947, c. 391, 61 Stat. 669. Neither that nor subsequent changes in the statute have been intended to accomplish substantive changes. H.R. Rep. No. 254, 80th Cong., 1st Sess. 1 (1947); Pub. L. No. 87-646, § 21, 76 Stat. 446 (1962); 8. Rept. No. 1875, 87th Cong., 2d Sess. 2 (1962); Postal Reorganization Act, § 6(1), 84 Stat. 777 (1970) ; H.R. Rep. No. 1104, 91st Cong., 2d Sess. 49 (1970).

In conferring with representatives of the Copyright Office with respect to this matter, we have delayed our presentation to the Committee in deference to their consideration of our recommendation, but have now been told that they prefer not to change the decision which was made in 1964 to recommend deletion of this provision from the copyright law revision bill. As we understand their view, it rests on the belief that the provision would be duplicative of the copyright authority which the Postal Service has exercised under the general provisions of title 17 since the Postal Service and the Copyright Office concluded that the provisions of the Postal Reorganization Act make the clause in 17 U.S.C. §8 which prohibits copyright in works of the U.S. Government inapplicable to the reorganized Postal Service. Their belief rests on the opinion that although the meaning of the 1938 Act is unclear, it should be read as providing the former Post Office Department and the Postal Service a simple exemption from 17 U.S.C. §8 for stamp catalogs published under 39 U.S.C. § 405, an exemption which would have been necessary to permit title 17 copyright in the catalogs for the Post Office Department but not for the Postal Service. This apparently was also the interpretation of the draftsmen of the original codification of title 17. although, as already stated, their action in removing the clause from title 39 has no legal effect on the provision's meaning.

Although we agree with the Copyright Office that the precise intention of the 1938 Act is not as clearly expressed as might be desired, we believe that the most sensible interpretation of the provision is that this postal statute did not intend to provide a title 17 copyright at all. It is illuminating that no Government agency had been permitted to obtain copyright under the Copyright Act before 1938, nor was any agency so authorized for the succeeding 29 years. Moreover, section 1 of the 1938 Act was part of an integrated plan enacted by Congress, on the advice of its postal committees, to regulate the use of postage stamp designs, which did not amend the Copyright Act of 1909, and indeed which states that the authority it confers may be exercised notwithstanding anything to the contrary in the Copyright Act or any other law.

In our opinion, the 1938 Act assigned authority to the Post Office Department in the nature of a general proprietary right in its stamp designs in order to enable the Department administratively to issue licenses to permit controlled private uses of the designs, to the extent found appropriate, beyond the limited statutory authorization for certain general philatelic uses permitted by the 1938 Act's amendments to the otherwise prohibitive criminal statutes. The postage stamp designs to which this authority would extend, without reference to the Copyright Act, would be those illustrated in a publication to be issued by the Superintendent of Documents, at the request of the Postmaster General, officially cataloguing the postage stamps of the United States. In so acting, we believe that Congress, on the advice of the postal committees, relied on the authority of the postal power of the Constitution, art. I, § 8, el. 7, which had long been understood to authorize federal postal monopolies, and the property power, art. IV. §3, el. 2. The use of the term "copyright" in the 1938 Act in the sense of a general literary property prerogative rather than in the limited title 17 sense is not surprising, as the governmental prerogative it defines --which subsists in the whole or any part of a catalog of illustrations of previously sold postage stampsis more analogous in many respects to common law "copyright" than to title 17

1934 edition, title 34. sec. 58), stereotype or electrotype plates, or duplicates thereof, used in the publications authorized to be printed by this section shall not be sold or otherwise disposed of but shall remain the property of the United States: And provided further, That notwithstanding the provisions of section 7 of the Copyright Act of March 4, 1909 (US C. 1934 edition, title 17, sec. 7), or any other provision of law, copyright may be secured by the Postmaster General on behalf of the United States in the whole or any part of the publication authorized by this section."

#18 U.S.C. § 8, 474 et seq., 501.

copyright, since the prior “publication" of the stamps had been limited-never dedicatory-because of the general prohibition of private use contained in the criminal laws.

In reaching the foregoing conclusion, we were influenced by the fact that accepting the alternative interpretation that a title 17 copyright was intended would mean that section 1 of the 1938 Act was completely trivial from the moment it was enacted. It is clear that under the latter interpretation no authority of any practical use would have been conferred with respect to the postage stamp designs illustrated in the catalog. Applying the principles of the Copyright Act would have meant that the prior sale of the postage stamps themselves (which had been issued and sold for nearly a century without notice of copyright) would already have irretrievably dedicated to the public all rights in their design prior to each publication of the stamp catalog. It is equally clear that section 1 of the 1938 Act-like the rest of that Act-was intended to apply to postage stamp designs, not just to the supplementary textual matter printed in the catalog. The Government long had shown-and the other provisions of the 1938 Act had reaffirmed—a compelling governmental interest in controlling the private use of the designs on postage stamps, which have properties involving the credit and authority of the sovereign and are not simply art works. Prior to the 1938 Act the most that had been permitted for any private purpose was the copying of portions of stamp borders in philatelic publications in order to illustrate the distinctive margins; the pictorial designs could not be copied at all. Act of March 3, 1923, c. 218. 42 Stat. 1437. However, unlike the illustrations, the textual matter had appeared in the stamp catalog regularly since 1927 and was not distinctive in any way that could have justified an unprecedented exception from the rule against title 17 copyright in Government agency works. See U.S. Post Office Department, A Description of United States Postage Stamps and Postal Cards (1927) (variously titled thereafter). We cannot believe, nor do we think that a court could easily conclude, that the Post Office Department in proposing, the postal committees in approving, and the Congress in enacting this statute were so frivolous as to estab lish a unique departure from this time-honored principle for no intelligible legislative purpose whatsoever.

Interpreted in the manner we have suggested, section 1 of the 1938 Act is of present value to the Postal Service and the public and should not be deleted as superfluous. The Postal Service has received a number of requests from the public for authorization to make use of the designs of past postage stamp issues, including offers to pay reasonable royalties in accordance with general commercial practices. We have begun to accept these requests, and royalties which will be useful in paying part of the cost of producing these items (a cost otherwise assumed by purchasers of postage) are now being set aside for the Postal Service. Under the criminal statutes, stamp designs may be used only for certain limited purposes or as otherwise authorized in accordance with law. 18 U.S.C. § § 474, 504. Accordingly, the 1938 Act, as we read it, permits us to expand private access to the use of stamp designs under reasonable terms and conditions; it cannot be exercised to make private access any narrower.

In short, the Postal Service proviso of 17 U.S.C. § 8 is a postal law which was proposed for postal reasons by the Post Office Department and enacted by the Congress on the recommendation of the postal committees. None of the changes that have been made in this statute since its enactment in 1938-including its codification in title 17-have changed its substantive effect. The Postal Service considers this provision to be of present use to the Government and has received indication that members of the public wish to have the benefits it can provide. It would not seem reasonable for a general revision of title 17 simply to repeal this postal statute. While its precise meaning is not finally established, it would appear that any needed clarification is beyond the scope of the copyright revision and should come either from the courts or from further legislation arising in the postal committees which first adapted it. Accordingly, we recommend that H.R. 2223 neither repeal nor attempt to perfect the interpretation of this part of section 1 of the 1938 Act. Rather, we believe that the supplemental provisions of the bill should preserve the status quo by rejoining the provision, in substantially its original form and without substantive effect, with the rest of section 1 as pres

Of course, it provides a useful civil remedy, in place of criminal prosecution, against illegal uses of stamp designs.

ently codified in title 39. Treating the provision in this manner can do no harm even if it is eventually held to be superfluous. However, deleting it would foreclose what we believe will be shown to be a beneficial provision of law,

Sincerely,

W. ALLEN SANDERS, Assistant General Counsel,

THE COMMONWEALTH OF MASSACHUSETTS, COMMUNITY ANTENNA THEVISION COMMISSION, Boston, November 6, 1975,

Hon Roment W. Kastenmeier,
Padwrn House Office Building,
Washington, DC.

DEAR REPRESENTATIVE KASTENMEIER: Enclosed please find a copy of the statement of the Massachusetts Commuraty Antenna Television Commission on copyright lability for cable systems. This statement sets forth the principles, uraniiously adopted by the Massachusetts Community Antenna Television Cotamis sa on October 2, 1975 It was presented to Senator Edward M Kennedy for inclusion in the record of the hearings before the Senate Judiciary CommatLee Which is con adering new copy rizat legislation

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The Missachusetts Community Antenna Television Commission believes that the question of copyright liability for enble systems must be considered in conJunction with the current regulations of the Federal Communications Commission which govern cable television

An approach should be taken which does not burden cable subscribers and cable operators with additional charges for the carriage and viewing of signals of local brondenst stations, but which recognizes U ́e fairness of addition al pay ments if greater viewing opportunities are provided through relaxed federal fegulation

If however, the current stringent FCC en'le rules remain in force and gretter viewing opportunities are not realized then no copyright hability #bould be li.pmed. Ise cable subscriber should not pay additional fees if no additional bereits are derived

To these ends, the Massachusetts CATV Comisisscon proposes that the fol lowing principles be adopted in the enactment of copyrig if legislation

No copyright fee should be required for the carriage of FCC mandatory local aiztain. If the cable operator must carry the s gaals of a broa fast station, the epæerator should not also be required to pay for earringe of the ghais ALY Costa't fee which is jud by a calle system ་ ན་ ་ ན་ “『

of operating the business which would be ry 'fected in the rates charged to sub MTURIH. À copyright fee for kwal ngoain devard on the cable operator wond ཀྱི་ལྡསལ པ་ཡི་ ор el die, receives his or her Ical broad ast » 21 ls by tress of a cable rather than by ra tit ears a rooftop anterna or even through a cable attached to a Pusater stiletit a muste tu servit g an a mitt te fcon ex

The tentavi est af a consnght fie for han in a aw won'd not be unfair fo either broadoawers or expyr, * 1 Hers Deepang floder wh se BiqH STN oti n low ai UHF or VHF toena

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"Breviarium Heraldicum", bimonthly column on advice, opinion & comment, in the Genealogical Acorn, the Augustan, Forbears, from February 196Spring 1974.

"Some Aspects of Heraldry in Switzerland" in: Genealogy & Heraldry, vol I, no. 2, April 1968.

"German Genealogical Symbols" in: Genealogy & Heraldry, vol. 1, no. 4 October 1968.

"Commentary by Walter Angst", ditto, both issues.

"Arms of Americans of Swiss Ancestry" in: Genealogy & Heraldry, vol. II. no. 1, Spring 1969.

"The Pelinicus, a New Heraldic Sea Monster" in: The Augustan, vol. XIII no. 1, January 1970.

"Pentasexual Heraldry" in: The Augustan, vol. XIII, no. 6, November 197 "The Flag of 'Helping Hands' " in: Report of the Third International Congress of Vexillology the Flag Bulletin, vol. X, no. 2-3, Spring/Summer 1971. "Heraldry Help!" in: Forebears, bimonthly question-and-answer columa, years 73 and 74.

"Heraldry in a Republic" in: Forebears, book 2, vol. XVI, no. 2, April 1973 "Heraldic Plan for Redesign of the State Flags" in: Smithsonian, vol. IV, no. 4. July 1973.

"Sovereignty, Identity, Morality" in: Forebears, book 5, vol. XVII, m. 1. Summer 1974.

"A Banner at Its Best" in: Maryland, vol. VII, no. 1, Spring 1975. "The Heraldry of Switzerland", embellished with history tradition & f. lore with 400 drawings; book in preparation, publication undetermined.

[From Forebears, Spring 1973]

ESSAY: HERALDRY IN A REPUBLIC

(By Walter Angst)

The following article is presented as a contribution to the continuing d. cussion of U.S. heraldry in general (see XV:4, "Thoughts Pertaining to Is Heraldry") and fraud in heraldry in particular (see XV:4, "Committee Against Fraud in Heraldry"). The author has asked that it be noted that this arts was written and sent prior to receipt of the last issue of the journal containing the reprint of the article by Barnes and Koepnick ("A Federal Herald: A thority for the United States of America", XVI:122 23).

Most people today know very little about heraldry. If they actually knew the term, they equate heraldry with a superfluous, slightly silly, antiquated, stuffy frill that has something to do with royalty and nobility, and relegate it to the dusty atties of the ones whom they think pretentious.

It seems to me that most U.S. citizens who are knowledgeable about heraldry contribute unwittingly to this attitude of disdain with which heraldry is being held by the unitiated, by consistently overlooking one important aspect of the art: the fact. that heraldry in a republic is, and must be, different that is not any less!) from the one in a monarchy. They are transfixed in their orien tation to taking most of their clues from those heraldic jurisdictions only, which are ruled by a princely sovereign, a king or queen.

Most US. heraldists are so firmly steeped in their beliefs that only those arar are acceptable as genuine which have been granted by a roval sovereign: th begin to "swim" when they are confronted with the need for a new ber creation, i e. assumption of arms. In their opinions, such are permissible confirmed by an officer duly appointed by a royal person, even though th may not hoid de facto (nor even de jure) power over the "subject who wishes to assume arms, but who may happen to live in a territe by a predecessor of the royalty.

For the purpose of establishing an accepted, healthy, regulate tion in the United States. all this is really unnecessary. In fact of a sovereign republic, to beg a royal officer of a foreign na to bear arms is rather ludicrous! We don't really need to

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