Mr. FISHER. I can only say what I have told you, what I think the law is, how we apply it. And I think that, however, it is a separate problem again, as a problem of fair use, from anything in this law. The question whether we should issue certificates for a contractor who was merely subsidized would depend upon what Congress does as to a change or clarification of the present prohibition; the copyright law, unlike the patent law, against issuing copyrights for Government publications.

Mr. GREEN. Well, if I understand you correctly, then, there is consideration given as to whether or not a particular article or document of that type is a Government publication, and on the basis of that finding it is determined whether or not a copyright will or will not issue; is that correct?

Mr. FISHER. Yes.

Mr. GREEN. And that is made in each individual instance?

Mr. FISHER. That is right.

Senator HART. Well, if a Government agency engaged an educational institution to prepare this work on bird banding that you mentioned, and the work was prepared, and the Government pays for the time and talent that went into it, would that institution, or would the authors of the document, nonetheless be able to get a copyright against all save the Government?

Mr. FISHER. If they operated as a Government author and it was a Government publication, they could not get a copyright against anyone. We would not issue a certificate. Now we issue a great many certificates. We issue a thousand certificates a day and act upon the information before us in the application.

However, as I understand it, this bill has in the case of what is fair use, these minimum cases you spoke about, or what constitutes an infringement-this bill would not affect whatever the law was there. I only was bringing out, in answer to your question, in the copyright field you do not have the problem in the patent field, and it is a minimal problem because there is this doctrine in copyright where we do not issue certificates for Government publication.

However, that carries forward where, say, the Government partially assisted in education of a young scientist, and gave him a percentage. That would make him a Government employee. This becomes an issue of fact, just as it is an issue of fact as to whether Admiral Rickover was or was not acting in his capacity as an admiral or writing as a private author. And we cannot decide all those questions of fact. Every case is different. We only know what the broad line of the law is.

Senator HART. Perhaps most important, then, for the purpose for which we assembled this morning, is the question, and I think I understood your answer as "No," that whatever the law is with respect to the bird banding work done by contract, H.R. 4059 does not affect it?

Mr. FISHER. I think that is true so far as the general issuance of copyrights. That would remain exactly the same. Only on occasion where there was a certificate issued and it was held an infringement would there be a right of action against the Government, rather than one against the private employee who infringed.

Senator HART. But so far as H.R. 4059 is concerned, it would not affect the law so far as the right of the educational institution, or the authors of that bird banding work, is concerned?

Mr. FISHER. Yes, exactly. And that is equally the same answer with respect to fair use, constituting an infringement, and several other issues of the copyright law as a whole. This law only says, this bill only says, that where under the law as it is now, or as it may develop, there is an infringement, there may be a suit in the Court of Claims, rather than against the employee, and the Government will have authority, as in this Defense Department bill, to pay a settle

ment.

Senator HART. Well, in explanation for what may have seemed then an irrelevant track that we were heading down, I think it is important that the record show that this bill does not affect this other situation because there is increasing interest on the part of the committee, and I am sure on the part of Congress, with respect to the general proposition, what the Government should do with respect to both inventions and written material developed on contract.

Mr. FISHER. I think it was very desirable to bring that out.

Senator HART. You indicated, sir, that Mr. Cary might care to

comment.

Mr. FISHER. He has certain other points that he is prepared to make.

STATEMENT OF GEORGE D. CARY, GENERAL COUNSEL, COPYRIGHT OFFICE, LIBRARY OF CONGRESS

Mr. CARY. My name is George Cary. I am General Counsel, Copyright Office.

First of all, I would like to just bring into focus an aspect of this bill which probably may have been overlooked in our discussion of general technicalities, and that is this:

This is essentially a bill to waive the sovereign immunity of the Government in copyright infringement cases. In the past this sovereign immunity has been waived in other fields. We are all familiar with the patent provision which Mr. Dodds has mentioned. If I remember correctly, the date of that enactment was about 1910.

In other words, some half century ago. We all, of course, are familiar with the Tucker Act, which is even older, I believe. There are provisions also of waiving immunity in case of admiralty actions. So what we are in effect doing here, I believe, is merely putting the copyright owners in a status which patent owners and owners of tort claims, contract claims and admiralty claims, have had for some many years.

I forgot to mention, of course, the Tort Claims Act. So this is merely plugging a very small, tiny loophole in this whole field of rights. I think if it is looked at in that light, the equity and justice of the bill becomes quite apparent.

I might also add that this bill, or a predecessor of it, was first brought to light back about 1955, I believe, by Congressman Crumpacker, and the hearings that we have here, the ones Senator Hart referred to, Report No. 624 of the House, is based on the original report back in those 1955 hearings.

At that time the bill was somewhat different than it is now. It contained, for example, a provision, I believe, that you could either go to the Court of Claims or you could bring action under the Tort

Claims Act. This was a specific provision. And the Department of Defense at the hearings pointed out some valid objections to that.

The USIA testified at length on this problem, and in the House hearings at that time there was considerable discussion of all of the various aspects. So the bill that finally was reported out by the House, and which the present bill is merely a successor to, does incorporate all of these points that the various Government agencies have brought to light.

So the bill that we have before us this morning is one that has been considered by all of the Government agencies involved, and this represents, I believe, their best views.

I would like to make one other diversion, if I may. This is in connection with the point which I do not believe has been discussed today, but which has, from time to time, been raised.

That is whether or not this bill would have any effect upon the congressional immunity clause. There has been some fear expressed, I believe, that if a Congressman or Senator makes a statement on the floor and incorporates in the statement a copyrighted article, that this might, in itself, under this bill, permit a suit to be brought.

I do not believe that that is the case here. I think in brief the congressional immunity clause of the Constitution, which is article I, section 6, as interpreted by the Supreme Court over many years, affords a broad immunity, not only for the words spoken during congressional debate, but for matter contained in committee reports, and other general business coming before the Congress.

Although I do not believe there has been any specific case that has dealt specifically with the copyright aspect of this problem, I would have no doubt that the insertion in the Congressional Record by a Member of Congress of a copyrighted work would be judicially interpreted as coming within this provision.

In that connection, I may add that just about 2 months ago, here in the District of Columbia, there was a case, McGovern v. Martz being the title, which came before Judge Youngdahl, an action brought by a Member of the House against a publisher for liability.

In the case the publisher counterclaimed for libel by a statement the Congressman had made in some extension of remarks. And Judge Youngdahl strongly asserted in that case. that the congressional immunity does not extend only to material that has been stated on the floor of the House, or in the Congressional Record, but also to material that is inserted in the Congressional Record with the consent of the body. He made it very clear that that privilege is absolute.

Of course, this was a libel action, but I think this is quite analogous to the problem we have here, that the privilege of congressional immunity is one that is quite broad and quite absolute.

And I do not think this bill in any way would interfere with that right.

Mr. GREEN. May I ask a question at this point, sir?

Senator HART. Yes.

Mr. GREEN. It is true, I believe, under the Constitution, that such immunity does exist, but would the passage of this legislation amount to a waiver?

Mr. CARY. I do not see that it would at all, no. I do not think there is any intent. Furthermore, if you look at the language of the bill, it

says it has to be infringed by the United States, or then they go on down further, by contract with a subcontractor or a person acting for the Government, and with the authorization and consent of the Government.

And I do not see how a Congressman or Senator would fit into that provision. So the bill, by its language, it seems to me, would exclude any inference that the congressional immunity is in any way affected. Senator HART. What if you inserted something in the Record, and had obtained unanimous consent to do it, would there be any basis for arguing that you were a person acting with the consent of the Government?

Mr. CARY. I should not think so, no, sir. I think Judge Youngdahl's statement of the privilege of immunity as being absolute would come into play right here.

Senator HART. You feel so strongly in the position that you are taking, that you would recommend to the committee that there is no need for the addition of an experss exemption?

Mr. CARY. I do not think the bill would have to be changed in any way. I do see no harm, if the committee so desires, in putting a statement in the committee report making it clear that in the committee's mind this is not intended to. It would be good legislative history.

Senator HART. All right.

Mr. CARY. That is about the extent of my remarks. If you have any further questions I would be glad to answer them.

Senator HART. Mr. Green?

Mr. GREEN. No further questions.

Senator HART. Mr. Wright.

Mr. WRIGHT. I just have one question with respect to a followup on Senator Hart's question as to the extent of the probable liability under the statute here.

I gather the principal liability contemplated is probably innocent infringement, and there was some reference to some legal principles which might minimize that liability for innocent infringement. What are those principles; what is the extent of liability for innocent infringement?

Mr. CARY. I assume you have reference to the doctrine of fair use. The doctrine of fair use is not written into the copyright laws. It is a doctrine that has been adopted by the courts. In effect, it says if you use a small amount of the work, not the whole work, and it is for a legitimate purpose, there is no liability.

Mr. WRIGHT. I was not referring to that. I assume in cases of fair use you have a finding of no infringement really. What I was talking about were cases where there is infringement, but there is not willful infringement, a so-called clear infringement, but nonmalicious, let us say, nonwillful.

You still may have substantial liability for damages, may you not, even though you do not willfully intend to infringe, if you do in fact infringe?

Mr. CARY. Well, the damage provisions of the copyright law which would apply, incidentally, to this legislation, in certain cases give the judge the right to determine damages, and if it is an innocent infringement, I think it is highly likely that the judge is not going to slap on any maximum damages. He will use minimum damages. This has been done in the past.

As a matter of fact, I recall once a case where there was innocent infringement involved, and the court held they were bound to say that the copyright had been infringed. They gave the minimum amount of damages possible.

Mr. WRIGHT. You do not think there is anything about the Court of Claims' jurisdiction which would prevent it from applying these same applicable principles that might apply in private actions?

Mr. CARY. NO. The bill specifically states that the claimant may recover his entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 101 (b) of title 17. So this is the provision of the copyright law about which I was speaking. So this would be applicable.

Mr. WRIGHT. Even in the case of innocent infringement, the Government would not be relieved, would it, of liability for the minimum statutory damages, right?

Mr. CARY. Well, it would depend on the facts, I would think. They could get it.

Mr. FRASE. If I might interject there, it would not be worth the copyright owner's time, probably, to file suit in a court for a claim of minimum damages.

Mr. CARY. The minimum damage is $250.

Mr. FRASE. The legal fees and so forth would be excessive.

Mr. CARY. This, I think, illustrates the wisdom of another provision of the bill, and that is the administrative settlement here.

Mr. WRIGHT. Thank you. I have nothing further.

Senator HART. Thank you very much.

Mr. WRIGHT. Are there any other witnesses here who wish to be heard?

Anyone from the Attorney General's Office? Any of the other agencies?

Then you are Mr. Curtis?

Mr. CURTIS. Yes, sir.

Senator HART. Before proceeding, Mr. Curtis-does the Department of Justice have a report?

Mr. GREEN. No, sir. I talked to the people down at the Justice Department, Senator, and they informed me that they would not appear, but would attempt to have a report to us by this time. As yet I have not seen it, sir.

Senator HART. I assume we will keep the record open for the usual period of 5 days?

Mr. GREEN. I would suggest a week.

Senator HART. Seven days.

Mr. GREEN. Yes, sir.

Senator HART. I would hope they would have a report.
Mr. GREEN. Yes, sir; I will check on that again, sir.

Senator HART. Excuse me, Mr. Curtis.

STATEMENT OF ARTHUR S. CURTIS, ATTORNEY, NATIONAL PRESS

BUILDING

Mr. CURTIS. Mr. Chairman, I would like permission to distribute some stuff first. This is for the chairman, and I will give a comparable set to anyone else any of the other Senators, I mean.