operating pursuant to Government instructions on procurement might delay Government procurement, both in times of peace and times of war, and the bill follows that suggestion.

With reference to the question that was raised as to the Rickover case and the situation where an employee of the Government might or might not be acting pursuant to Government instructions, it seems to us, and we have been very close with the Rickover case, which has been of great interest to us, that that is essentially a factual situation as to whether the Government employee or officer was operating in his individual capacity or as a governmental employee.

And I believe nothing in this bill would change that factual situation. In addition, as Mr. Wright has already suggested, the bill is perfectly clear that it has no retroactive effect and only looks to the future, and would have no effect whatsoever back to that case.

The real crux to that case, as I see it, is a factual situation. For example, we have been asked, I might say, to participate in the case, amicus curiae, or otherwise, and we felt this was a matter of fact as to this particular work and it was not for us to express a view on a factual situation as to the admiral of the Navy. That is really the crux of the case and that would be totally unaffected by this bill, even if it did look to a case already in being, which it does not.

Mr. Wright also asked a question with respect to this problem of photocopying and fair use. I would like to stress that, as Mr. Frase has already suggested, this equally is a very important problem. It is of great concern to the Library. In the report of the House committee, there is particular reference to this point in the letter of the Librarian of Congress, and we feel that whatever is the law of fair use, as to whether making a single copy for scholarship does or does not constitute an infringement, this would be completely unaffected by the bill.

In other words, the test of what constitutes limited fair use, that is not an infringement, is part of the law of copyright and is totally unaffected by this bill. This bill simply says that where there is an infringement under the law as it exists today, or as it may develop, there the Government shall assume the responsibility rather than the employee.

I would like to emphasize one other point in this connection; namely, that a number of the Government agencies, and I suppost perhaps most conspicuous with the Defense Department, one of the largest operators in this field, has often been faced, as we know, for a good many years, with the problem where they would like to settle the case, or take work and protect their employee and make reasonable payment, but their liability not being clear, and the general policies of the Government Tort Claims Act not applying, they have not felt free up to now to do the very thing that they want to do and think ought to be done. And you will find that, I think, in the letter of the Defense Department, and you will find it in the bill itself.

You will note that in the bill, the last thing, section 2 amendments, title 10, section 2386, by adding the words "or copyrights," the procurement appropriations will make it possible, where there is a reasonable amount of taking, to make payment.

Today, even agencies that want to pay to protect their individual employee, because they have used the copyright work, the same as they

might have used the patent, do not feel free to make an adjustment of the case as they would in any other situation.

This is one of the things also that this bill would correct.

Senator HART. Mr. Fisher, at that point, is it possible to make any sort of estimate of the money which would become an obligation of the Government if this was adopted?

Mr. FISHER. I think it would be so minimal, probably, that it is— as I see it now, from operations, only in the rarest case would any money be paid at all. Today what happens to a very large degree is free permission to secure for Government use. In the Library of Congress we have a very extensive system of free permissions by major periodical publishers and book publishers. Where the Government is using, particularly in the Legislative Reference Service, and I know this is true of other departments, it is very common to give free permissions.

Now in other areas, as Mr. Frase suggested, USIA, where they may be using popular music or something, there there is more of a tendency to pay the given rates in a cultural program, and I do not think that would be affected by this because they now commonly make arrangements for purchase and use of their materials.

Senator HART. Mr. Fisher, did I understand you to say that following infringement it is not permissible for a department to make a settlement, why is USIA permitted to make payment in advance? Mr. FISHER. They simply make a contract for the purchase.

Mr. FRASE. They have authorization in the appropriation, the appropriation act.

Senator HART. They do. Thank you.

Mr. FISHER. This is a different field. We are only dealing now where there has been an infringement. With other authorities, where people buy in advance, you have another situation.

I would like to say along the same lines there is the provision of the bill that was put in after considerable discussion with USIA and the State Department, providing in section (c):

The provisions of this section shall not apply to any claim arising in a foreign country.

We had much discussion of this over the several years when the bill was in development in the House with all the agencies of the Federal Government. I believe it was originally felt this was unnecessary, that a tort committed abroad would not be subject to suit under the

act.

But the State Department felt, and I think the USIA also felt, it was desirable to make this additionally clear, and this provision has been added. This is the first time in the three times the bill has passed the House this has been in.

But in any event, I think it is quite clear that whatever is the situation with respect to infringements committed abroad, this act leaves the situation in status quo; it does not affect it.

The provision simply says this setcion shall not apply to torts committed abroad, and leaves it at that. So if there is any argument as to whether it should or should not apply to an infringement committed abroad, the situation remains the same.

There are two or three other questions that Mr. Cary is more prepared than I am to answer, and I would hope you would call upon

But I would simply say it seems to us, to the Government, in the Copyright Office of the Library of Congress-there were several meetings with principal committees of the American Bar Association, and I believe the house of delegates has endorsed the bill, and that appears on the House report that this is something that really should have been done long ago.

It is not, perhaps, as important as in the field of patents, but nevertheless, it is a hole and it is simply normal and reasonable that if that hole is not plugged by the polícies of the Tort Claims Act, it ought to be dealt with by this bill. And it seems to me it is to the advantage of everyone that this be done.

Senator HART. It is your judgment that this is not plugged by the Tort Claims Act?

Mr. FISHER. Yes. The best opinions we have had, and several of the counsels of Government agencies have looked at that, and have felt that the Government Tort Claims Act would not plug it. And there has been some doubt about that. But the other agencies have not felt safe in operating under the Government Tort Claims Act, and that we should simply follow along with substantially a paralleĺ position to the patent law.

I might add, to the patent law, in addition to what I have said before, the reason that was acted on first, that there is a different situation. That is one reason for the slight discrepancy in language. I think the purpose, as I replied to Mr. Wright's question, of this provision in this law, and the patent law, is the same, but of course in patent development there is more organized research. The writing of the copyrights is rather different, especially where Government employees are concerned.

And also, the situation of the employees in patent work is much more likely to be covered by special departmental regulations and contracts with the employees will enter into the work in the copyright field. It is much broader in scope and probably much minor in the amount of damages of individual infringement actions, and that is the reason why I think it is appropriate to try to clarify the situation, as has been done with great care after several years of work with all the agencies concerned in this bill.

I would be glad to answer any questions.

Senator HART. In recent weeks, and I think we should raise this for the record, there has been discussion and criticism of the practices with respect to patents derived from research and development work financed by the Government.

The chairman of this subcommittee, Mr. O'Mahoney, held hearings on a bill introduced by him.

Mr. GREEN. S. 3156.

Senator HART. S. 3156. And as you all know, the argument there is whether the Government ought not to have title to, and there be released to free and public use, patents resulting from research activities financed by Government grant.

What is the practice with respect to materials copyrighted as a part of work done by outside contractors for the Government?

Mr. FISHER. Senator Hart, the situation in the copyright law, in the copyright field, in the United States is rather distinctive and is different from the patent law, and different from the copyright laws

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in many other countries of the world with respect to work performed by Government agencies.

We happen to be working under a 3-year appropriation on the comprehensive revision of the U.S. copyright law and we have had occasion recently to make a study of the particular point your question raises.

The U.S. copyright law provides that there shall be no copyright in the Government publications. We have recently reviewed this with most of the Federal agencies, and we find that despite the unique position of the United States, they in general wish to retain this provision with the possible escape clause under very strict provisions for peculiar situations.

In other words, the feeling is that a Government publication in the United States should be in the public domain and there should be no claim. And one of the considerations is also so the United States, in case of copyrights, will not get into the problem of having to handle, license, dispose of, patents, which has become a great problem in itself, merely as a matter of administration and compensation.

This argument of simplicity, as well as the public interest, is one reason that has led to that decision, and I believe in our report we are going to recommend a continuance of that policy.

Now you do come upon cases where a Government contractor may be involved in the question of the definition of publication. This is a question drawing a more precise line. In general, my feeling would be that the Government policy, being not to have copyright in Government publications, where the research work was exclusively financed by the Government, the same policy should apply and should be carried over into the contract.

But at any rate, the policy on copyright is very broad and very distinct. There should be no property in such work.

Now I believe also the bill before us undertakes to preserve that situation. One of the provisos says that this subsection shall not confer a right on any copyright owner, and so on. It is, of course, true that there may be institutions not operating strictly under Government instructions and policy, where a different situation would arise, but certainly this whole problem is minimized in the case of the copyright as compared to patents.

Senator HART. Do I understand, sir, that this bill would provide that materials copyrighted by a Government employee, or by a contractor, working under Government grant, would be in the public domain?

Mr. FISHER. I think if you read the

Senator HART. You have reference to the proviso beginning on line 12?

Mr. FISHER. Beginning on line 12:

Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee

now here is the broader section—

or in the preparation of which Government time, material, or facilities were used:

In other words, this is intended to be very broad, to carry over into the field we are concerned about, and I think quite properly, with the section which is now part of the U.S. Copy Act.

Mr. GREEN. Does that mean, though, Mr. Fisher, right of action against the United States and anyone else?

Mr. FISHER. I do not believe it affects whatever would be the factual situation, other than with respect to actions against the United States. Mr. GREEN. The purpose of this bill generally is to allow actions. against the United States; is it not?

Mr. FISHER. Yes; and limited to that.

Mr. GREEN. So would this proviso be limited to action against the United States, actions by an employee who had a copyright, against an individual?

Mr. FISHER. Where the employee actually did the work on his own time, his rights would be unaffected. Where he acted as a Government employee

Mr. GREEN. Where he used Government time, material, or facilities? Mr. FISHER. Yes. If he did this on weekends, wrote a work on bird' banding, he would still have the same rights he would have as an individual, as any other copyright owner would have.

But the general policy of the law, Mr. Green, is as you stated, namely, this is limited to the situation of actions against the United States, and whatever other rights would exist I do not believe is in general affected by the bill.

Mr. GREEN. Well, in your experience, where certain matters of this nature were financed by the U.S. Government, have copyrights been' issued to the individual contractors or employees, as the case may be? Mr. FISHER. As I tried to say earlier, you get into a question of whether the prohibition of the present law against copyrighting Government publications, works authored by Government employees, shall extend to cases where it was mere financing, subsidy. In general, our test is whether this is a Government publication in the sense it was authored by a Government agency or employee.

I see that Mr. Kamin Stein, head of my Examining Division, is here. He works in this field every week. He could probably tell you exactly how the Examining Division functions with respect to the case of contractors who might merely receive a subsidy.

We take a pretty stiff line on the whole and decline to issue copyrights in a case where the publication is a Government publication. Where it becomes a factual issue, as it is in the Rickover case, as to whether the admiral was operating as a Government employee or on his own time, dealing, say, with his papers on education, we sometimes give the benefit of a reasonable doubt on the theory that our certificate is only prima facie evidence.

But where it is clear to us that this is a Government publication authored by a Government employee in the course of his duties, we decline to issue a certificate.

We happened to have a very important case in the Library of Congress in recent weeks, while I have been away, where we have been quite firm in declining to issue a certificate for copyright because we felt this came within the prohibition of the present law.

Mr. GREEN. That is what I wanted to get to, not necessarily whether or not a copyright should issue if it is a Government publication, but whether or not in fact they have issued.