jukebox compulsory license and more about registration requirements in which you might have a say. But, in any event, we are delighted for your coming today to represent your organizations. Thank you very much. Now, our second and final panel this morning will focus on Berne and two other specific issues, formalities and architectural works. The first panelist is Mr. David Walch, Dean of Library Services, California Polytechnic State University, San Luis Obispo, California. Dean Walch, who will be presenting the views of the American Library Association, is a member of the Association's Copyright Committee. Dean Walch's testimony will focus primarily on the subject of formality. Now the second panelist, on a somewhat different issue, is Mr. David E. Lawson, who will be testifying for the American Institute of Architects. The most complimentary thing I can say about Mr. Lawson is that he is from Madison, Wisconsin. He is an AIA Fellow, a fellow vice president of the Institute and Mr. Lawson's testimony will center on the issue of Berne and architectural works. Dean Walch, you may proceed first, sir. We have your statement, which is a relatively short five-page statement. You may proceed as you wish, and, we will accept your statement for the record. TESTIMONY OF DAVID B. WALCH, DEAN, LIBRARY SERVICES, CALIFORNIA POLYTECHNIC STATE UNIVERSITY, ON BEHALF OF THE AMERICAN LIBRARY ASSOCIATION; AND DAVID E. LAWSON, FAIA, FORMER VICE PRESIDENT, AMERICAN INSTITUTE OF ARCHITECTS Mr. WALCH. Thank you, Mr. Chairman. Good morning to you and members of the subcommittee. I would like to note that CalPoly belongs to the 19-campus California State University System that has a combined enrollment of more than 250,000 students. And as you have already noted, I am representing the American Library Association, an organization of some 45,000 members whose membership consists not only of librarians, but also citizens who serve as library trustees, Friends of Libraries, and others dedicated to the improvement of library and information services for all people. I am a member of the Copyright Subcommittee of the ALA Legislation Committee. The Association has had a long-time concern over the implementation of U.S. copyright law and was an active participant in deliberations which led up to the general revision of the law in 1976. Subsequently, various ALA members have been involved in meetings and discussions which resulted in publications and programs, including a televised copyright seminar by satellite, all designed to inform and educate our members on the implementation of the new copyright law in 1978. It would be inappropriate to suggest to this subcommittee that the United States' adherence to the Berne Convention is a matter of grave concern to the majority of librarians. Many of them have been so intent this past decade on working toward an understanding and an accommodation of the Copyright Act of 1976 that due and deserving consideration of the implications of the Berne Convention may not have been fully given. ALA believes that a fair balance has been achieved under the 1976 law. A great deal of time, effort, and energy were expended by librarians in order to become acquainted with it and adhere to its principles. Just as librarians and publishers have reached the comfort zone of that law, we now find it necessary to assess the implications of the United States' adherence to the Berne Convention. ALA does not condone international piracy, and compliance, i.e., being in step with the regulations embraced by other countries, is to be encouraged. There are, however, questions that adherence to the Berne Convention precipitate. We have been asked today to comment on our concern for formalities in the copyright law. For example: Notice of Copyright. Section 401 of the 1976 Copyright Act (title 17 U.S. Code) requires a notice of copyright in published works as a condition of copyright protection and is incompatible with the Berne Convention Article 5(2), with respect to works of foreign origin. As it now stands, journal articles and other textual material photocopied in academic libraries normally include a notice of copyright. The inclusion of that copyright notice has a salutary effect in making faculty, students and other users sensitive to the fact that the material has, indeed, been copyrighted and should not be copied indiscriminately. Hence the non-inclusion of that notice as a mandatory requirement may precipitate some concern within our libraries. However, with the implementation of the 1976 Copyright Act in 1978, all publications, except those in the public domain, are considered to be copyrighted. Therefore, librarians no longer find this notice essential in all cases to ascertain the copyright status of a work. The assumption is that most recent publications are copyrighted, and if a photocopy is made for a user, it should bear a warning of copyright. Registration. Section 408 of the 1976 Copyright Act (title 17 U.S. Code) would be amended by Section 12 of H.R. 1623 in such a way as to make registration a procedural matter and no longer a substantive formality, and, therefore, compatible with the Berne Convention. Section 412 is already compatible with Berne since registration is not a requirement for all copyright protection, but merely an incentive for certain remedies for infringement. ALA does not have any position on this issue. As far as deposit is concerned, Sections 407 and 408 of the 1976 Copyright Act (title 17 U.S. Code) are not addressed in either H.R. 1623 or H.R. 2962 and appear to be compatible with the Berne Convention. The Association does not have any position on these provisions, but they seem to be highly desirable for the continued collection development of the Library of Congress as well as for the protection of domestic authors. The registration and deposit of copyrighted works within the Library of Congress has enabled that library to provide a collection of materials that makes it a national library without equal. For libraries throughout the country, the vitality of that collection is of critical importance. Will the repeal of registration result in the absence of a consistent and complete record of materials being produced in this nation as well as an ab sence of depository materials? Such a result could have profound inimical effects on other libraries who frequently look to the Library of Congress as a collector of these materials. Another matter of concern is new technology. As previously noted, it is felt that a fair balance has been achieved as far as photocopying and the Copyright Act of 1976 is concerned. The newer technologies, however, such as video, computer software, digital audio tape, and the electronic transfer of information are matters that now require much attention of libraries. How does the Berne Convention address them? What result will adherence to the Berne Convention have on future and developing copyright issues, particularly those related to newer and developing technologies? Some months ago, Donald Kennedy, President of Stanford University, issued the following statement concerning his school's policy on the copying of computer software: There is widespread perception that unlawful copying of computer software is a common-place event in universities. Although I think this perception is unfair when applied to Stanford, I want nevertheless to make our policy clear: unlawful software copying is not permitted. We are all obliged to comply with valid laws and contractual obligations. In this country, many libraries have found the guidelines, “Library and Classroom Use of Copyright Videotapes and Computer Software", published by the American Library Association in 1986 to be a valuable aid in determining the fair use of these types of materials and meet the spirit of President Kennedy's desire to "comply with valid laws". One must ask, however, will the Berne Convention have an impact on such guidelines or their interpretation? Will Berne be able to accommodate these technologies adequately? The issues raised here are a sampling of those that deserve appropriate consideration as you ponder United States adherence to the Berne Convention. Certainly, the strides made toward equity this past decade are substantial, and we would hope that any new international agreements would strengthen and maintain that bal ance. Thank you, Mr. Chairman, for the opportunity to express the views of the American Library Association. I would be pleased to respond to any questions. [The statement of David B. Walch follows:] Statement of David B. Walch on behalf of the American Library Association before the Subcommittee on Courts, Civil Liberties, on H.R. 1623 and H.R. 2962 The Berne Convention Implementation Act February 9, 1988 My name is David B. Walch. I am Dean of Library Services at California Polytechnic State University in San Luis Obispo, California. Cal Poly belongs to the 19-campus California State University system that has a combined enrollment of more than 250,000 students. Today, I am representing the American Library Association, an organization of some 45,000 members whose membership consists not only of librarians, but also citizens who serve as library trustees, Friends of Libraries, and others dedicated to the improvement of library and information services for all people. I am a member of the Copyright Subcommittee of the ALA Legislation Committee. The Association has had a long-time concern over the implementation of U. S. copyright law and was an active participant in deliberations which led up to the general revision of the law in 1976. Subsequently, various ALA members have been involved in meetings and discussions which resulted in publications and programs, including a televised copyright seminar by satellite, all designed to inform and educate our members on the implementation of the new copyright law in 1978. We also participated in the development of the -2 process leading to the first five-year review of Section 108 (Reproduction by libraries and archives) and presented testimony for both the first and second five-year review hearings by the U. S. Copyright Office. It would be inappropriate to suggest to this Subcommittee that the United States' adherence to the Berne Convention is a matter of grave concern to the majority of librarians. Many of them have been so intent this past decade on working toward an understanding and an accommodation of the Copyright Act of 1976 that due and deserving consideration of the implications of the Berne Convention may not have been fully given. ALA believes that a fair balance has been achieved under the 1976 law. A great deal of time, effort, and energy were expended by librarians in order to become acquainted with it and adhere to its principles. Just as librarians and publishers have reached the comfort zone of that law, we now find it necessary to assess the implications of the United States' adherence to the Berne Convention. ALA does not condone international piracy, and compliance (i.e., being in step with the regulations embraced by other countries) is to be encouraged. however, questions that adherence to the Berne Convention precipiWe have been asked today to comment on our concern for formalities in There are, tate. the copyright law. For example: Notice of Copyright. Section 401 of the 1976 Copyright Act (title 17 U. S. Code) requires a notice of copyright in published works as a condition of copyright protection and is incompatible with the Berne Convention Article 5 (2), with respect to works of foreign origin. As it now stands, journal articles and other textual material photocopied in academic libraries normally include a notice of copyright. The inclusion of that copyright notice has a salutory affect in making faculty, students, and other users sensitive to the fact that the material has, indeed, been copyrighted and should not be copied |