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JULY 1, 1959.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Mr. WILLIS, from the Committee on the Judiciary, submitted the

following

REPORT

[To accompany H.R. 4059]

The Committee on the Judiciary, to whom was referred the bill (H.R. 4059) to amend title 28 of the United States Code relating to actions for infringements of copyrights by the United States, having considered the same, report favorably thereon with amendments and recommend that the bill do pass.

The amendments are as follows:

Page 1, lines 5 and 6, strike out "a new subsection (b)' " and insert in lieu thereof: "new subsections '(b)' and '(c)' ".

Page 3, after line 14, insert the following new subsection:

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

EXPLANATION OF AMENDMENTS

The amendments provide that the provisions of this bill shall have no effect on any claim for copyright infringement against the U.S. Government arising in a foreign country. It was suggested by the Department of State. As pointed out in its letter of June 5, 1958 (set out later in this report), the State Department is unaware of any serious problems relating to actions of the United States abroad infringing copyrights which necessitate remedial action of the type contained in this bill. Moreover, the creation of a statutory right of suit against the United States for acts committed abroad, notes the State Department, would open an avenue of legal action which could give rise to further problems in related and similar fields.

HISTORY OF LEGISLATION

This legislation passed the House in the 84th Congress (H.R. 6716) and again in the 85th Congress (H.R. 8419). No action, however, was taken by the Senate in either of those two Congresses.

PURPOSE AND STATEMENT

The purpose of this bill is to provide a remedy in the Court of Claims for the infringement by the U.S. Government, or by any contractor acting with its consent, of any work protected under the copyright laws of the United States. To put it another way, the bill would waive the sovereign immunity of the United States for infringement of copyrights by extending the provisions of section 1498, title 28, United States Code, to permit an action in the Court of Claims for copyright infringements.

It has long been an established principle that the Federal Government should not appropriate private property without making just compensation to the owner thereof. For most types of property, the principle has been implemented by legislation permitting a property owner to bring suit against the Federal Government when he believes that just compensation has not been made, for example, in the field of patents (28 U.S.C. 1498). Other fields include admiralty, contracts, and torts.

There is, however, one form of property-property in copyrightsfor which existing law does not provide a definite workable and equitable procedure for the property owner. There has been no specific legislative provision authorizing suits against the Government for infringement of copyrights as there has been for patents.

When the Government deliberately publishes a copyrighted article without obtaining the prior consent of the copyright proprietor, the general assumption would be that the holder, pursuant to the principles of "just compensation" under the fifth amendment of our Constitution, should be entitled to an action against the Government for infringement. Yet no such infringement cases have been reported, so far as this committee can determine. The reason appears to be that the Government, under still another established concept, i.e., "sovereign immunity," must consent to be sued for this particular type of wrong, and as yet has not so consented. Recently there has been some discussion to the effect that the Federal Tort Claims Act may have removed this prohibition against suing the Government, but a consideration of the legislative history of that act indicates that the prohibition has not been affected.

While the Government enjoys this immunity against suit for infringements in copyright actions, it should be pointed out that Government employees, even though acting within the scope of their employment, do not. This is for the reason, according to the decisions of our courts, that "sovereign immunity" covers only the Government and does not extend to its employees. As stated by the Supreme Court in Belknap v. Schild (161 U.S. 10), a patent case:

The exemption of the United States from judicial process does not protect their officers and agents, civil or military, in time of peace, from being personally liable to an action of tort by a private person whose rights of property have been

wrongfully invaded or injured, even by authority of the United States ***. Such officers or agents, although acting under the order of the United States, are therefore personally liable to be sued for their own infringement of a patent. Again in Towle v. Ross (32 Fed. Supp. 125), defendants, acting as employees of the Government, made photographic reproductions of plaintiff's copyrighted map. The court found for the plaintiff and against the defendants, even though they ceased publication and the reproductions were never used. Regarding the immunity defense, the court observed:

The position of the defendants as employees of the United States cannot protect them from the award of damages. The immunity of the sovereign cannot in a republic immunize its agents also. The acts were done for the benefit of the Government by the employees thereof. The foundations of arbitrary power would be firmly laid if the agents could violate the rights of citizens and themselves escape unscathed.

It seems inequitable that employees of the United States, acting for the benefit of the Government, are now personally liable for copyright infringement and that the Government is not. It appears proper to this committee that the Government should assume responsibility for such acts. Furthermore, it seems illogical to treat copyright infringements by the United States differently from patent infringements, in view of the established principle that the Federal Government should not be appropriating private property without just compensation, which principle was long ago adopted with regard to infringement of patents. The instant bill is designed to correct this situation both. with respect to the copyright owner and to Federal officers and employees, and to the public generally.

EXPLANATION OF BILL

The bill is based, generally, upon provisions similar to those now existing in Federal law for patents, but with_modifications appropriate to the nature of copyright property. Provision is made for suits in the Court of Claims. In addition, it affords the right of recovery for copyright infringements by contractors and subcontractors who perform work for the United States where such contractor infringes with the consent of the Government. It protects the Government employee, acting in the scope of his employment, by providing that the copyright owner's only remedy is by action against the U.S. Government. The bill further provides that a Government employee shall also have a right of action against the Government, except in those instances where he was in a position to order, influence, or induce use of the copyrighted work by the Government. The bill does not, however, confer a right of action on any copyright owner or any assignee with respect to any copyrighted work prepared by a person while in the employment of the United States where the copyrighted work was prepared as a part of the official functions of the employee or in the preparation of which Government time, material, or facilities were used. The bill also provides for compromise settlement of any claim which the copyright owner may have against the Government by reason of its infringement.

59014-59 H. Rept., 86-1, vol. 4— 26

The bill provides a 3-year statute of limitations for filing infringement actions against the Government. The 3-year period of limitation was adopted in order to conform this bill to Public Law 85-313 (85th Cong.) which sets up a uniform statute of limitations of 3 years on civil actions involving copyright infringements. Where there is a claim against the Government for infringement, the legislation provides for the tolling of the statute of limitations during the time negotiations are underway for the compromise settlement of the claim.

Section 2 of the bill, as amended, amends section 2386 (4) of title 10, United States Code, an appropriation section, which provides generally that appropriations for the military departments available for the procurement of supplies and equipment, shall also be available for the purchase or acquisition of certain listed rights in the patent, copyright, and technical data fields.

Section 3 of the bill contains technical provisions and was adopted in order to amend the section catchline and chapter analysis of title 28, United States Code. Title 28 is one of the United States Code titles which has been enacted into positive law.

AGENCY REPORTS

There follow reports from the Department of Commerce which sponsored this legislation, and a letter from the Department of State dated June 5, 1958, addressed to the chairman of the Senate Judiciary Committee. In addition, there are communications, received by this committee at the time it considered the predecessor bill, H.R. 6716, 84th Congress, from the Library of Congress, Government Printing Office, U.S. Information Agency, Department of the Navy, and the American Bar Association.

Hon. SAM RAYBURN,

THE SECRETARY OF COMMERCE,
Washington, D.C., January 30, 1959.

Speaker of the House of Representatives,

Washington, D.C.

DEAR MR. SPEAKER: There are attached four copies of a proposed. bill to amend title 28 of the United States Code relating to actions for infringements of copyrights by the United States.

There are also attached four copies of a statement of purpose and need in support thereof.

We are advised by the Bureau of the Budget that it would interpose no objection to the submission of this proposed legislation.

Sincerely yours,

LEWIS L. STRAUSS,
Secretary of Commerce.

LEGISLATION TO AMEND

STATEMENT OF PURPOSE AND NEED FOR

TITLE 28 OF THE UNITED STATES CODE RELATING TO ACTIONS FOR INFRINGEMENTS OF COPYRIGHTS BY THE UNITED STATES

The proposed legislation would amend title 28, United States Code, to provide that in those cases where a copyright has been infringed by the Federal Government or its agents, the exclusive remedy by the

holder of the copyright would be by action against the United States in the Court of Claims unless an administrative settlement of the claim was made by the Department or Agency concerned.

At present, the only remedy available to a copyright holder in such circumstances is a suit against Government employees who take part in the infringement. Generally the employees in such cases are merely following the orders of their superiors in the general interest of the Department or Agency concerned, and it therefore is illogical and inequitable for the employees to be held personally accountable. Recovery of compensation from subordinate Government employees as though they were independent contractors of malefactors for doing as they have been directed is not, in our opinion, the correct way to compensate the copyright owner for infringement. Although actual recoveries for Government infringement have been rare, the increasing use of desk photo-copying machines in the routine administration of the departments makes possibility of infringement an ever-increasing danger.

Since the benefits of copyright infringement under such circumstances flow directly to the Government, it would appear that the Government should bear the cost of reimbursing copyright holders for the damages arising from the infringement. The proposed bill would so provide, and would relieve the employee of liability. It also would permit administrative settlement of claims, and would provide a 3-year limit within which claim for recovery could be instituted.

Hon. EMANUEL Celler,

THE SECRETARY OF COMMERCE,
Washington, D.C., February 27, 1959.

Chairman, Committee on the Judiciary,

House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: This is with reference to H.R. 4059, a bill to amend title 28 of the United States Code relating to actions for infringements of copyrights by the United States, which you introduced pursuant to the recommendation of this Department and which has been referred to your committee.

This legislation would amend section 1498 of title 28, United States Code, to add a new subsection providing that in the event of copyright infringement by the United States, the sole remedy of the copyright holder would be by action against the United States.

After this legislation was submitted to the Congress, we were informed that the Department of State suggested that it might be interpreted as subjecting the U.S. Government to suit if it committed an act of infringement in a foreign country, and pointed out that the same interpretation might apply with respect to the present section 1498 which relates to actions against the United States for infringement of patents.

There are attached copies of a report which the Department of State submitted to the Committee on the Judiciary of the U.S. Senate on June 5, 1958, with respect to a proposal similar to our draft legislation. That report fully explored this question and proposed language to avoid liability for claims arising out of infringements of patents or copyrights in a foreign country.

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