Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices 15605

modifications issued, must be made a

part of every contract for performance of

the described work within the

geographic area indicated as required by

an applicable Federal prevailing wage

law and 29 CFR part 5. The wage rates

and fringe benefits, notice of which is

published herein, and which are

contained in the Government Printing

Office (GPO) document entitled

‘‘General Wage Determinations Issued

Under The Davis-Bacon And Related

Acts,’’ shall be the minimum paid by

contractors and subcontractors to

laborers and mechanics.

Any person, organization, or

governmental agency having an interest

in the rates determined as prevailing is

encouraged to submit wage rate and

fringe benefit information for

consideration by the Department.

Further information and selfexplanatory forms for the purpose of

submitting this data may be obtained by

writing to the U.S. Department Labor,

Employment Standards Administration,

Wage and Hour Division of Wage

Determinations, 200 Constitution

Avenue, NW., Room S–3014,

Washington, DC 20210.

New General Wage Determination

Decisions

The number of the decisions added to

the Government Printing Office

document entitled ‘‘General Wage

Determinations Issued Under the DavisBacon and Related Acts’’ are listed by

Volume and State:

Volume V

Oklahoma

OK950037 (Mar. 24, 1995)

Modification to General Wage

Determination Decisions

The number of decisions listed in the

Government Printing Office document

entitled ‘‘General Wage Determinations

Issued Under the Davis-Bacon and

Related Acts’’’ being modified are listed

by Volume and State. Dates of

publication in the Federal Register are

in parentheses following the decisions

being modified.

Volume I

New Jersey

NJ950003 (Feb. 10, 1995)

NJ950004 (Feb. 10, 1995)

Massachusetts

MA950007 (Feb. 10, 1995)

Rhode Island

RI950002 (Feb. 10, 1995)

Volume II

None

Volume III

Florida

FL950002 (Feb. 10, 1995)

FL950014 (Feb. 10, 1995)

FL950017 (Feb. 10, 1995)

FL950069 (Feb. 10, 1995)

Georgia

GA950050 (Feb. 10, 1995)

Volume IV

Illinois

IL950001 (Feb. 10, 1995)

IL950002 (Feb. 10, 1995)

IL950015 (Feb. 10, 1995)

Michigan

MI950001 (Feb. 10, 1995)

MI950002 (Feb. 10, 1995)

MI950003 (Feb. 10, 1995)

MI950004 (Feb. 10, 1995)

MI950005 (Feb. 10, 1995)

MI950007 (Feb. 10, 1995)

MI950012 (Feb. 10, 1995)

MI950017 (Feb. 10, 1995)

MI950031 (Feb. 10, 1995)

MI950046 (Feb. 10, 1995)

MI950047 (Feb. 10, 1995)

Volume V

Kansas

KS950011 (Feb. 10, 1995)

KS950012 (Feb. 10, 1995)

KS950013 (Feb. 10, 1995)

KS950015 (Feb. 10, 1995)

KS950018 (Feb. 10, 1995)

KS950019 (Feb. 10, 1995)

KS950020 (Feb. 10, 1995)

KS950021 (Feb. 10, 1995)

KS950022 (Feb. 10, 1995)

KS950023 (Feb. 10, 1995)

KS950028 (Feb. 10, 1995)

Oklahoma

OK950013 (Feb. 10, 1995)

Texas

TX950034 (Feb. 10, 1995)

TX950063 (Feb. 10, 1995)

Volume VI

Alaska

AK950001 (Feb. 10, 1995)

Nevada

NV950002 (Feb. 10, 1995)

General Wage Determination

Publication

General wage determinations issued

under the Davis-Bacon and Related

Acts, including those noted above, may

be found in the Government Printing

Office (GPO) document entitled

‘‘General Wage Determinations Issued

Under The Davis-Bacon and Related

Acts’’. This publication is available at

each of the 50 Regional Government

Depository Libraries and many of the

1,400 Government Depository Libraries

across the country.

The general wage determinations

issued under the Davis-Bacon and

Related Acts are available electronically

by subscription to the FedWorld

Bulletin Board System of the National

Technical Information Service (MTIS) of

the U.S. Department of Commerce at

(703) 487–4630.

Hard-copy subscriptions may be

purchased from: Superintendent of

Documents, U.S. Government Printing

Office, Washington, D.C. 20402, (202)

512–1800.

When ordering hard-copy

subscription(s), be sure to specify the

State(s) of interest, since subscriptions

may be ordered for any or all of the six

separate volumes, arranged by State.

Subscriptions include an annual edition

(issued in January or February) which

includes all current general wage

determinations for the States covered by

each volume. Throughout the remainder

of the year, regular weekly updates will

be distributed to subscribers.

Signed at Washington, D.C. this 17th day

of March 1995.

Alan L. Moss,

Director, Division of Wage Determinations.

[FR Doc. 95–7080 Filed 3–23–95; 8:45 am]

BILLING CODE 4510–27–M

LIBRARY OF CONGRESS

Copyright Office

[Docket No. 95–3]

Registrability of Pictorial, Graphic, or

Sculptural Works Where a Design

Patent Has Been Issued

AGENCY: Copyright Office, Library of

Congress.

ACTION: Policy decision and amendment

of regulations.

SUMMARY: The Copyright Office of the

Library of Congress issues this policy

decision to clarify its practices and to

amend the regulations regarding the

registrability of claims to copyright in

pictorial, graphic, and sculptural works

for which a design patent has been

issued. Under the current regulations, a

copyright claim in a patented design, or

in a scientific or technical drawing in an

application of an issued patent is

refused registration under the so-called

‘‘election doctrine.’’ We believe there is

no longer any legal justification for the

continuation of this practice.

EFFECTIVE DATE: April 24, 1995.

FOR FURTHER INFORMATION CONTACT:

Marilyn J. Kretsinger, Acting General

Counsel, Copyright GC/I&R, P.O. Box

70400, Southwest Station, Washington,

D.C. 20024. Telephone: (202) 707–8380.

Telefax: (202) 707–8366.

SUPPLEMENTARY INFORMATION: Under the

current Copyright Act, copyright is

secured at the time of creation of the

work without the necessity of any

formalities, such as registration of an

eligible unpublished work or

publication with copyright notice,

required under the 1909 Act. A patent,

on the other hand, must be pursued

through the process of examination in
15606 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices

1 David Nimmer and Melville B. Nimmer,

Nimmer on Copyright § 2.19 (1994).

the Patent Office. The Commissioner of

Patents actually determines the

patentability of an invention or design

and grants the patent.

The current regulations, 37 CFR

202.10(a) and (b), reflect the Copyright

Office’s policy of accepting the doctrine

of ‘‘election of protection.’’ For many

years, the Copyright Office required

claimants to elect between patent or

copyright protection of useful pictorial,

graphic, or sculptural expressions. The

origin of this policy can be traced to a

1910 decision, Louis de Jonge & Co. v.

Breuker & Kessler Co., 182 F. 150

(C.C.S.E.D. Pa. 1910), aff’d, 191 F. 35

(3d Cir. 1911), aff’d, 235 U.S. 33 (1914),

wherein the court held that a claimant

could elect to secure protection under

either patent or copyright but could not

secure both. Similarly, in 1927, the D.C.

Court of Appeals, in In re Blood, 23 F.2d

772 (D.C. Cir.1927) embraced the

election doctrine.

The primary basis for the existing

Copyright Office policy was the Second

Circuit’s decision in Korzybski v.

Underwood & Underwood, Inc., 36 F.2d

727 (2d Cir. 1929). The court ruled that

‘‘[a]n inventor who has applied for and

obtained a patent cannot extend his

monopoly by taking out a copyright.’’

‘‘The filing of the application for the

patent * * * was a publication [and full

disclosure of the invention] that entitled

anyone to copy the drawings

[representing the invention].’’ Id. at 729

(parenthetical added). However, in a

landmark decision, Mazer v. Stein, 347

U.S. 201 (1954), the Supreme Court

ruled that the same disclosure or

publication might support a design

patent and a copyright. ‘‘Neither the

Copyright statute nor any other says that

because a thing is patentable it may not

be copyrighted.’’ Id. at 217. The Court,

however, expressly refused to entertain

the issue of whether the grant of either

monopoly precluded that of the other. A

few years later, in Vacheron &

Constantin-LeCoultre Watches, Inc. v.

Benrus Watch Co. Inc., 155 F. Supp. 932

(S.D.N.Y. 1957), modified, 260 F.2d 637

(2d Cir. 1958), the district court rejected

arguments that seeking copyright

protection precluded securing design

patent protection. Indeed, the

overlapping protection concerns two

distinct statutory monopolies; and the

doctrine of Korzybski ‘‘must rest upon

the assumption that the owner of the

statutory monopoly has some power to

protect his ‘work,’ for otherwise any

dedication would be without

consideration.’’ 260 F.2d at 642.

In 1968, the Copyright Office

reviewed the election policy and

reaffirmed its position on two grounds—

public policy considerations and the

publication with notice requirement.

The public policy ground was based on

the theory that it is an undue extension

of the patent monopoly to allow, after

the patent has expired, a copyright for

the same design. If copyright protection

were allowed to subsist, the public

would be deprived from exploiting the

work for the duration of the copyright.

The second ground was a more practical

one. The patent procedure required

publication in the Official Gazette

without notice of copyright. Since the

1909 Copyright Act required a notice of

copyright on all published copies to

secure and maintain copyright

protection, this requirement foreclosed

copyright protection for the patent

drawings and placed the work in the

public domain.

Prior to 1974, The United States

Patent and Trademark Office had an

election policy similar to that of the

Copyright Office. The Patent Office

discontinued this requirement in view

of the decision in In re Yardley, 493

F.2d 1389 (C.C.P.A. 1974), wherein the

court stated that even though there is a

definite overlap, ‘‘Congress has not

provided that an author inventor must

elect between securing a copyright or

securing a design patent.’’ Id. at 1394.

‘‘[T]he mere fact’’, said the court ‘‘that

the copyright will persist beyond the

term of any design patent which may be

granted does not provide a sound basis

for rejecting appellant’s patent

application.’’ Id. at 1395. Reassessing its

policy, the Copyright Office chose to

follow Korzybski instead of Yardley, on

the rationale that the latter case was

limited to an interpretation of the design

patent act while Korzybski interpreted

the Copyright Act.

The Copyright Office regulations

based on the election doctrine have

been criticized. In his treatise on

copyright, Nimmer observes:

Without offering the rationale of

publication or any other basis, Copyright

Office Regulations under the 1909 Act simply

provided that once a patent has been issued,

copyright registration would be denied to a

work of art and to a scientific or technical

drawing. There appears to be no statutory or

other justification for this position. It would

seem on principle that if a work otherwise

meets the requirements of copyrightability, it

should not be denied such simply because

the claimant happens to be entitled to

supplementary protection under other

legislation.1

We agree.

In consideration of the foregoing, the

Copyright Office is issuing this Policy

Decision and amending 37 CFR chapter

II in the manner set forth below.

PART 202—[AMENDED]

1. The authority citation for part 202

continues to read as follows:

Authority: Section 702, 90 Stat. 2541, 17

U.S.C. 702.

2. In § 202.10, paragraphs (a) and (b)

are removed, the existing paragraph (c)

is redesignated as paragraph (b), and a

new paragraph (a) is added to read as

follows:

§ 202.10 Pictorial, graphic, and sculptural

works.

(a) In order to be acceptable as a

pictorial, graphic, or sculptural work,

the work must embody some creative

authorship in its delineation or form.

The registrability of such a work is not

affected by the intention of the author

as to the use of the work or the number

of copies reproduced. The availability of

protection or grant of protection under

the law for a utility or design patent will

not affect the registrability of a claim in

an original work of pictorial, graphic, or

sculptural authorship.

Marybeth Peters,

Register of Copyrights.

Dated: March 14, 1995.

Approved by:

James H. Billington,

The Librarian of Congress.

[FR Doc. 95–7363 Filed 3–23–95; 8:45 am]

BILLING CODE 1410–30–P

NATIONAL FOUNDATION ON THE

ARTS AND THE HUMANITIES

Meeting; Arts in Education Advisory

Panel

Pursuant to section 10(a)(2) of the

Federal Advisory Committee Act (Public

Law 92–463), as amended, notice is

hereby given that a meeting of the Arts

in Education Advisory Panel (Arts Plus

Section) to the National Council on the

Arts will be held on April 10–14, 1995.

The panel will meet from 10:30 a.m. to

5:30 p.m. on April 10; from 9:00 a.m. to

6:00 p.m. on April 11; from 9:00 a.m. to

2:00 p.m. on April 12; and from 8:30

a.m. to 5:00 p.m. on April 13. This

meeting will be held in Room 730, at the

Nancy Hanks Center, 1100 Pennsylvania

Avenue, NW., Washington, DC 20506.

A portion of this meeting will be open

to the public on April 13 from 3:15 p.m.

to 5:00 p.m. for a policy discussion

including a discussion of the FY 96 and

97 Arts Plus guidelines.

The remaining portions of this

meeting from 10:30 a.m. to 5:30 p.m. on

April 10; from 9:00 a.m. to 6:00 p.m. on

April 11; from 9:00 a.m. to 2:00 p.m. on

April 12; and from 8:30 a.m. to 3:15