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tional text, as a test, as answer material for a test,
or as an atlas, if the parties expressly agree in a
written instrument signed by them that the work shall
be considered a work for hire." [Emphasis supplied.]

The foregoing section of the 1976 Act gives authors stronger rights to ownership of a commissioned article than they had in the pre-1976 Copyright Act. The presumption existed in the pre-1976 Act that the publisher and the author implicitly agreed that the publisher had the copyright where the publisher commissioned an article from an author. Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 568 (2d Cir. 1966). Section 101 of the 1976 Act also vests ownership of the copyright of a commissioned article in the publisher, but only if there is an express written agreement between the author and the publisher to that effect. See May v.

Morganelli-Henmann and

Associates, 618 F.2d 1363, 1368, n.4 (Ninth Circuit 1980).

Additionally, the work for hire doctrine for commissioned works was restricted by Congress in 1976 to certain categories: collective works (periodicals), films, translations, compilations and supplements, instructional texts, tests ог atlases. Other

kinds of commissioned work--e.g., musical compositions

and books not falling within the foregoing categories were not included as works for hire.

The report of the Senate Judiciary Committee accompanying the 1976 Act explains that the final language of the 1976 definition of works for hire was a compromise, when it stated:

Works made for hire.

Section 201(b) of the bill adopts one of the basic
principles of the present law: that in the case of
works made for hire the employer is considered the
author of the work, and is regarded as the initial owner
of copyright unless there has been an agreement other -
wise. The subsection also requires that any agreement
under which the employee is to own rights be in writing
and signed by the parties.

The work-made-for-hire provisions of this bill respresent a carefully balanced compromise, and as such they do not incorporate the amendments proposed by screenwriters and composers for motion pictures. Their proposal was for the recognition of something similar to the "shop right" doctrine of patent law: with some exceptions, the employer would acquire the right to use the employee's work to the extent needed for purposes of

his regular business, but the employee would retain all
other rights as long as he refrained from authorizing
competing uses. However, while this change might
theoretically improve the bargaining position of
screenwriters and others as a group, the practical bene-
fits that individual authors would receive are highly
conjectural. The presumption that initial ownership
rights vest in the employer for hire is well established
in American copyright law, and to exchange it for the
uncertainties of the shop right doctrine would not only
be of dubious value to employers and employees alike,
but might also reopen a number of other issues.

The status of works prepared on special order or commission was a major issue in the development of the definition of "works made for hire" in section 101, which has undergone extensive revision during the legislative process. The basic problem is how to draw a statutory line between those works written on special order or commission that should be considered as "works made for hire," and those that should not. The definition now provided by the bill represents a compromise which, in effect, spells out those specific categories of commissioned works that can be considered "works made for hire" under certain circumstances. supplied.]

[Emphasis

Under the 1976 Act, an author commissioned to write an article can veto the publisher's copyright by not signing a work for hire agreement. It is difficult to see what practical purposel is served by S. 2044 other than to upset a carefully crafted compromise.

It is the publisher who conceives of the need for a work for hire article, pays for its physical production and for its delivery to the reader. Publication of the article provides recogni

tion for the author among his professional peers and the public, a benefit not to be lightly dismissed. The work for hire doctrine promotes the dissemination of important scientific, business and technical information. As database publishing become s more common, there should not be impediments to the publisher's flexibility to determine how articles can best be

1The elimination of periodicals from the work for hire provision also would mean that after 35 years, copyright in a commissioned article would revert to the author, where the author originally assigned copyright to the publisher. Permitting authors to claim copyright after 35 years in an article originally commissioned by the publisher hardly seems worth disrupting the balance Congress wished to maintain between publishers and authors.

distributed to the public.

S.2044 will only discourage the use of outside articles and will result in a smaller quantity of needed information at a time of rapid technological change.

We urge the subcommittee to recommend that S. 2044 not be enacted into law. It is piecemeal legislation which is unfair to publishers who provide an opportunity to writers for publication which otherwise might not exist. There is no reason to change the principle, long-embodied in copyright law, that the work of an independent contractor specially commissioned to contribute an article should be treated as an article written by a staff edi

tor.

Both staff written articles and commissioned articles are created by the financial investment and creative inspiration of the publisher. Both are works for hire. The present statute should not be changed.

Respectfully submitted,

Robert A. Salzstein

M. Jaldan

Stephen M. Feldman

Wyatt and Saltzstein

1725 DeSales Street, N.W.

Suite 802

Washington, D.C. 20036

(202) 638-4485

Counsel for American Business

Press

STATEMENT OF BELLA L. LINDEN ON BEHALF OF HARCOURT
BRACE JOVANOVICH, INC. ON S.2044

I am a member of the firm of Linden and Deutsch and write as counsel to Harcourt Brace Jovanovich, Inc. ("HBJ"), a leading publisher of instructional materials for schools, colleges, and the professions.

The purpose of this submission is to express HBJ's views on S. 2044, a bill which seeks to amend the definition of "work made for hire" under the U.S. Copyright Act.

The provision of the current Act permits but in no way obligates contributors to certain categories of works from participating in the creation of works made for hire. Prior copyright laws, and our present Copyright Act, permit legal persons such as corporations-and not just individuals-to act as authors of works with all the attendant rights of authorship under law. Enactment of the proposed bill would prevent certain contributors from agreeing to have their contributions treated as works made for hire.

It is the clear intent of Article I, Section 8 of the Constitution to give authors proprietary rights in their works as an economic incentive. Our Founding Fathers recognized that in order to stimulate intellectual expression and generate a multiplicity of authorship and variegation of points of view in a private enterprise system, economic reward must be available to authors. With advances in technology, the successive copyright laws of the United States have given formal recognition-in addition to literary works-to newer forms of expression including phonograph records, motion pictures, computer programs, and other works. Moreover, as reference works and encyclopedias and other major collaborative efforts have increasingly become the products of group effort and the result of the investment of time, creative effort and money by legal persons such as corporations, e.g., publishers and publishing consortiums, our developing copyright law recognized and gives clear recognition to that form of authorship under the work made for hire doctrine as worthy of the same protection as is afforded to individual authorship.

The work made for hire concept was narrowed in the 1976 Copyright Act. The 1909 Copyright Act permitted a work made for hire to be created for any kind of work which was (1) prepared by an employee within the scope of employment; or (2) created on special order or commission. The 1976 Act excludes from work made for hire status (unless prepared by an employee within the scope of employment) all works except specifically designated categories of works (such as instructional texts, reference works, and motion pictures). The current Act further places the burden on the person or entity claiming that the contributor agreed that his/her work shall be a work made for hire by requiring that such agreement be in writing, signed by the contributor.

The history of negotiation and dialog between authors' representatives and publishers' and producers' representatives makes it clear that the Author's Guild representatives caused the narrowing of the categories of works that could be works made for hire. Publishers' and producers' representatives agreed to limit the kinds of works which could be considered commissionable works made for hire and to the further requirement of a written agreement stipulating that the commissioned work is a work made for hire. The compromise was predicated on the philosophical recognition by the Register of Copyrights, Congress, and by authors' representatives that certain kinds of works, such as instructional

textbooks, reference works, and motion pictures, logically should be permitted to be works made for hire if the

parties so agreed. The Act of 1976 does not state that all instructional materials, reference works, or audio-visual materials must be works made for hire, but it simply does not prevent or prohibit the creation of such materials as works made for hire.

The 1965 Report of the Register of Copyrights characterized the work made for hire definition as a "difficult and hotly contested issue" and explained that the "the definition now in Section 101 represents a carefully worked out compromise aimed at balancing legitimate interests on both sides." (emphasis added) The compromise approach concerning commissioned works was adopted by Congress and was reflected in a bill passed by the House on April 11, 1967, which listed the categories of commissionable works to include: contributions to collective works, motion pictures, supplementary works, compilations, and instructional texts, as well as translations, tests, and atlases. The 1967 bill definition is closely similar to the definition in the current Act.

Chapter XI of the Draft Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1975 Revision Bill (November, 1975), summarizes the development of the definition of work made for hire. The "General Background" portion of the Chapter states:

"During the pre-legislative period in the current revision program, and particularly between 1961 and 1965, the provisions on ownership and transfers of copyright were the subject of close scrutiny, some hot debate, and a great deal of tortuous drafting and redrafting. Almost every provision in Chapter II represents a compromise of one sort or another, and those involving works made for hire and termination of transfers were extraordinarily difficult to achieve. However, by the time the bill reached the stage of hearings before the House Judiciary Subcommittee in 1965, most of the disagreements were on the way to being resolved. After painstakingly reviewing Chapter 2, particularly the labyrinthine provisions of section 203, and after adopting some amendments, the subcommittee produced a chapter on copyright ownership and transfer together with a definitive legislative report, that have remained unchanged and virtually unchallenged for nearly ten years.

The following is clear from the developments leading to the present Act:

1. The definition of a work made for hire as concerns commissioned works is restricted to designated categories of works only, and only if there is a written agreement recognizing the work as such. Thus, the 1976 Act is more favorable to authors than the 1909 Copyright Act.

2. The Act's definition is permissive, not mandatory. For eligible categories of works, the parties may by contract but need not, create a work made for hire. Only if the parties agree that a commissioned work is to be a work made for hire is such a status created.

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