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S. 2044, if passed, would eliminate from the categories of commissionable works collective works (which include by definition in the Act periodicals, anthologies, and encyclopedias), motion pictures and other audiovisual works, and instructional texts.

The effect of such amendment would be in the eliminated categories to bar a commissioning party from being considered the author of a work as a matter of law. While the present Act permits (although does not obligate) the parties to create a work made for hire status for works falling within these categories, the bill would preclude the parties from so doing despite any intentions or agreement to the contrary. Such an amendment will cause serious repercussions on the educational publishing industry and the educational community which it serves. While it is true that pursuant to Sections 201 (d) and 204 (a) of the Act the commissioning party could obtain from the author an assignment of all rights in the author's work, the author would be entitled pursuant to Section 203 to recapture all rights in his/her work forty (40) years after the date of the assignment or thirty-five (35) years after the work is first published, whichever is first.

It is rare these days that instructional materials for our schools are conceived and created by the lone author sitting at a desk to fulfill an educational need by writing a textbook on speculation, as it were, that a publisher will accept and distribute his work. To the extent that this was a method of creation of instructional materials in the past, an author's work tended not to fit a specific grade and was not integrated in the succession of books marked by methods of learning, much less in other parts of the main or whole school curriculum. Modern instructional materials are in fact the main means by which a national curriculum has been established in most learning skills and academic disciplines. Publishing programs, involving many hands and the beneficial aid of a publisher's professional staffs respond to curricular needs in most states and communities. Creation of instructional materials to meet curricular needs has indeed become a main responsibility of the publishing industry.

The creation of a new instructional program for elementary and secondary schools and for freshman and second-year courses in community colleges and other colleges is usually an enormous undertaking. If it is to meet learning needs, it must be substantially revised every three to five years. The revision is itself a large undertaking. Each revision builds upon the scores of individual contributions of staff members of the publishing house, of paid consultants, of freelance contributors to the previous editions of the program.

HBJ publishes numerous elementary school textbook programs in reading, language skills, spelling, literature, mathematics, science, health, social studies, foreign languages, and humanities/art. It publishes secondary school and college course programs in history, literature, science, language arts, civics, foreign language, economics, sociology and psychology. HBJ is continuously involved in revisions of these educational materials. HBJ has just completed substantial revisions of its reading and language arts elementary school program from kindergarten through eighth grade involving hundreds of

individuals, including in-house editors, book designers
and production managers; freelance teacher-consultants,
writers, illustrators, map makers, editors, copy editors,
and indexers. Teachers and students have contributed to the
authorship of the materials in each edition of each of
these programs.
In the course of each revision of each
program, not only is there incorporated material from prior
editions but scores of new individuals may participate in
the creation and development of the revised program.

A graphic illustration is HBJ's Eagle edition of its Bookmark reading program which comprises 266 separate, although integrated, components.

The Bookmark reading program was conceived in the late 1950's. Components of the first edition were published in 1968. The original editors who worked on the first edition are no longer with HBJ; indeed, for each edition, there is generally a new set of editors in charge of developing and preparing the program. More than one hundred in-house editors have successively participated in what now becomes the Eagle Edition, the fourth edition of the work. The Eagle Edition represents a capital investment by HBJ in excess of $10 million.

It should be noted that a publisher such as HBJ, which is typical of other houses which publish many school textbooks and series in the elementary and secondary school and college subject areas, does not have the capacity to employ, and to supervise on a full-time basis, all the writers, editors, copy editors, artists, map makers, layout editors, photographers, and consultants needed to prepare all of the school textbooks and attendant teaching and learning aids. It must use freelance talent; and the current trend is to engage certain small businesses, which themselves commission writers, editors and illustrators who are not full-time employees. Moreover, HBJ as well as most publishers seek out the finest experts, schools and universities to act as consultants in the creation of educational works. Obviously, scholars and experts in particular fields are rarely available, or willing, to become full-time employees. However, their contributions, while seldom separately identifiable portions of the collaborative effort, are extremely valuable.

With few exceptions, most contributors to the instructional programs who are not full-time employees of HBJ are commissioned by HBJ and sign work for hire agreements vesting authorship in their contributions in HBJ. In addition to individual freelancers, HBJ contracts with independent freelance houses, which have their own staffs of writers and editors and who, themselves, commission third parties to handle assignments received from HBJ. Thus, in many instances, the HBJ project supervisors have never met nor know the identity of writers who have participated in the creation of the programs.

It is helpful to summarize briefly the evolution of another recently revised HBJ textbook program, the Phoenix Edition of Language For Daily Use, the original edition of which was first published in 1948. (Subsequent ions were published in 1957

1978). The current edition includes the following works for each grade level: (1) pupil's edition; (2) teacher's edition; (3) pupil's workbook; (4) teacher's edition of pupil's workbook; (5) extra practice masters; (6) testing book; (7) teacher's resource book; (8) microcomputer management system of tests (includes diskettes, answer cards and manual). In total, there are 74 separate but integrated works in the program; and HBJ is at present preparing audio cassettes of poetry for each level.

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Such a program is developed as follows:

1. Editors from the School Department of HBJ, some of them former school teachers, hold periodic meetings to discuss whether the existing program can be revised to meet the current identifiable needs of students in schools in highly diverse communities. HBJ editors receive from its sales personnel statements of needs and requirements of school districts around the country. Moreover, paid consultants with expertise in the subject matter of a particular series are enlisted. Educational trends are discussed and analyzed, as well as the sales record of a particular series. In the case of Language For Daily Use, a substantial revision was prepared approximately three years ago.

2. Once the need for a new program or revision has been determined, a detailed pedagogical plan, known as a "scope and sequence," is created by editors at HBJ together with outside consultants engaged by HBJ. The scope and sequence document is the blueprint, the pedagogical heart of an instructional program. The scope and sequence is sent for review and contributions by teachers and supervisors in the field who are often under contract with

HBJ.

3. In-house editors, as well as commissioned freelancers, write sample material for chapters in the program for both pupil and teacher texts based on the outline and specifications furnished by HBJ.

4. Under the supervision of HBJ's Division of Verifiability and Testing, sample chapters are distributed for testing by many representative school districts throughout the country. Hundreds of students, teachers, and administrators review the materials and these are returned with critiques and suggestions. Many of these teachers and administrators are under contract to HBJ to provide such contributions to the program.

5. HBJ contracts individual freelancers and freelance houses for the preparation of a first draft of the pupil textbooks and other components of the program.

6. The first draft is reviewed, analyzed, and edited, both in-house and by freelance editors, and portions are revised and/or rewritten. The revised first draft materials are then distributed to teachers and administrators again for review and comment.

7. The second draft is edited and rewritten, often several times, in-house and by freelance editors. Consultants are also engaged to review and contribute to the draft.

8. Photographs and illustrations and page designs are prepared, both by in-house and commissioned persons, during stages (5), (6), and (7), above and (13) and (14), below.

9. After changes resulting from the editing are discussed and incorporated, the manuscript goes to production staff at HBJ which designs the works, selects the type specifications for typesetting by an outside compositor, and integrates all graphics and "front" and "back" matter.

10. Galley proofs are then edited by in-house editors and reviewed by commissioned freelance proofreaders.

11. The revised galleys are sent to HBJ's production department which prepares a dummy layout of the works. The dummy includes text and spaces for illustrations and photographs. HBJ staff places illustrations and photographs. Freelance artists who were commissioned to create such artwork are often asked to revise their work or add to it. Freelance design houses and photograph suppliers, and the individual freelance artists and photographers all make individual contributions to the programs. They number in the hundreds.

12. The work goes into final production. More sets of galleys are followed by page proofs and "blues," which contain final artwork and text. When approved by HBJ editors, the work goes on press.

13. In order to prepare microcomputer components

of the program, components are furnished to computer software houses which convert elements of the program for computer use. Since different models of computers operate on different systems, different manuals are prepared for each computer.

14. Where filmstrips are included in a program, as in HBJ's Bookmark, visual and audio components based on HBJ's detailed scripts and specifications are contributed by freelancers and outside houses providing such services. What is clear from the creation of the most recent edition of Language For Daily Use, or the creation of Bookmark, and is representative of other school programs, is that it is the product of authorship of hundreds of people. No one individual or handful of individuals is the "author" of the works. For the most recent edition of Language For Daily Use, HBJ's files contain 760 separate contracts with individual freelance contributors and freelance houses covering individual contributions of textual and graphic materials. This does not include the contributions by full-time employees of HBJ. The named authors contribute only some textual elements of the program and do so on the basis of the publisher's creative initiative, outline, editing, written contributions and approval: The principal creator, and hence the principal author, is HBJ, which conceives, develops, and is responsible for the final product.

Moreover, the publisher's authorship does not end here. A single edition of a school program is often reprinted, and it is not unusual for an edition to be reprinted more than five times. Such reprintings contain corrections, changes, deletions and additions resulting from the experience of use of the works in schools.

Reprintings are to be distinguished from revised editions such as the most recent edition of Language For Daily Use. The frequency of revision is dictated by evolving changes in educational approaches and by the demands of state curriculum adoption agencies. Full revisions are currently made every three to five years. New materials in revisions, and even in reprintings, are often contributed to a large extent by in-house personnel and by freelancers who did not participate in the original edition. Thus, as a program evolves, hundreds of more people will contribute authorship to the individual components.

The final product bears the approach, concept, and the creative stamp of HBJ. It is virtually impossible to isolate the contribution of any one particular individual. That is why such works are traditionally and virtually exclusively prepared pursuant to work for hire contracts. Allowing each contributor to be considered the author of his/her work will wreak havoc on the publisher and on the curriculum of American schools.

HBJ could obtain assignments of copyright instead of work for hire agreements from each contributor. Thirty-five or forty years hence, however, any or all of these contributors could by law terminate their grants of rights. This raises the insuperable problem-how to isolate the particular contribution an author made 35 or 40 years ago? Due to increased reliance on freelance houses, the publisher does not even know who many of the contributors are. Even known direct contributors are many people who often sit together at the editor's conference table. Contributions are edited, rewritten, and changed so many times before and after publication, such that a particular author's contribution can no longer be identified either quantitatively or qualitatively. This is especially so where 35 or 40 years later, the current editors are not themselves the editors at the time the works were first published. Further, HBJ has no facilities to retain copies of each and every submitted contribution during the course of the creation and development of a program. It has no way of ascertaining at the time a program is published, let alone 35 or 40 years later, which individual or individuals can clearly and discretely be credited with the authorship of any particular part in a program.

By requiring that each such contributor must retain copyright ownership, the bill would threaten that a contributor or his statutory successors can seek to enjoin any further publication of the program.

The contributor or his successors could serve a notice of termination on the publisher and then either demand whatever sum they want to allow the publisher the right to continue using the contribution, or else threaten to sue or take the "contribution" to a competitor. This would impose an impossible record-keeping burden on the publisher. After 35 years, the publisher would have to determine the extent of the authorship contribution of the terminating contributor and review same, assuming it can be identified after so many years. Every author believes his work is a significant and primary contribution, even if the particular contribution is in fact minor, or was published in a form dissimilar from what was submitted. The costs of a number of potential litigations would be a significant "chill" to keep publishers from making the financial investment to meet instructional needs of our schools.

Instructional programs are improved by incremental development. Successful portions of the programs are retained and refined, while those that do not appear to be working properly are redeveloped or replaced. By borrowing from and improving upon prior editions, the publisher is able to improve the quality of its product. If, after 35 years, the publisher were forced to start completely from scratch, the prior efforts and investment would no longer be available to it.

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