The more people who contribute to a program, the greater the chances that the publisher will be unable to use the works or face the threat of copyright infringement litigation in the future. This is not a trivial or hypothetical fear. Revisions borrow from their predecessors. While approaches in expressing learning change, many elements in a work do not. It has been the experienceand can be expected to be so in the future-that portions of textbook materials, whether paragraphs, exercises or whatever, or concepts and approaches, may still appear in the same or modified form in future editions. Indeed, with today's "back to basics" philosophy, approaches, techniques, and exercises of years back suddenly are better accepted than they were a decade ago. Material published today-or perhaps in its revised form in the future-may still be relevant, and sought, 35 or 40 years from now. Indeed, revisions of venerable HBJ programs are still being published today. Adventures in Literature was first published in 1927. Warriner's English Grammar and Composition was first published in 1948. Language For Daily Use was also first published in 1948. College programs also have persisted over twenty or thirty years. Moreover, a school or junior college program is a carefully integrated system. Deletion of any portion causes an unraveling of curricular thrust. For example, if a publisher were required as a result of termination of rights by a contributor to drop portions of a pupil text, the exercises in connection therewith and the teacher's edition, and other ancillary components of the program would have to be revised. In order to attempt to protect themselves against such risks, two options appear to be open to publishers, either of which would be greatly detrimental to our schoolchildren and schools. One is to go out of the business of producing significant instructional programs as distinguished from individual, random, and largely unrelated textbooks, thereby decreasing the competition in the marketplace and limiting the choices available to educators. The other is to minimize the risk by severely curtailing the use of freelance contributors and consultants to assist in the preparation of programs and thus drastically reduce the quality of work that can be expected to be produced or the number of programs developed. In the end, the public would lose. There would be less diversity of instructional materials, and less excellence. Others would be significantly injured besides our school children. If fewer publishers publish school programs and the remaining publishers publish fewer programs, fewer freelance writers and artists will be hired and less paper and printing and binding businesses will be available to other entepreneurs. It is not viable to suggest that the publisher employ all of the people involved in the preparation of school or even college materials. The publisher does not have the resources to hire all of these individuals. Many freelancers and consultants do not want to be employees of a publisher for various reasons. Many are engaged in writing and preparing works other than school materials; many work on projects for competitive publishers. The effect of the bill is to increase the regulation of both a business and a cultural industry. Rather than allow the parties the freedom to negotiate terms which they believe to be acceptable and suitable for the work involved, the law would preclude a practice vital to producing quality instructional material. One recalcitrant contributor could prevent the continued collaboration and distribution or revision of works-even if no individual contributor really can be called the "author" of the final product. The present work made for hire definition recognizes the reality of curricular needs and their fulfillment. It is respectfully submitted that the proposed amendation of the work made for hire definition would prevent the future development of high quality instructional materials to the detriment of our educational system for the sake of a hypothetical but improbable benefit to a few individual authors. Respectfully Submitted, Belle L. Liber Bella L. Linden Linden and Deutsch 110 East 59th Street New York, New York 10022 Dated: September 28, 1982 Senator MATHIAS. I had hoped that the author of the bill, Senator Cochran, would be able to be here. But, as all of you who are familiar with Senate procedures will realize, the Senate is now in session. Senator Cochran has been detained on other business. However, he has sent a statement in support of his own bill. I will include that as a part of the record, without objection. [Material referred to follows:] PREPARED STatement of SENATOR THAD COCHRAN Mr. Chairman, last February I introduced legislation to amend the Copyright Act of 1976 regarding the definition of a "work made for hire." The need to amend the law was brought to my attention by Mr. Bern Keating of Greenville, Mississippi, who was President of the Travel Journalists Guild. Mr. Keating is also a member of the Authors Guild, the Society of American Travel Writers, the American Society of Journalists and Authors, and the Overseas Press Club, and his views reflect the widespread interest and concern of writers and artists in securing an amendment to the work for hire provisions. The general intent of Congress when it enacted the Copyright Act of 1976 was to secure copyright ownership in the author or creator of a work except with regard to employees and certain works specifically commissioned by publishers. My amendment would alter the definition of a "work made for hire" in Section 101 to exclude from its coverage a work composed as (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, and (3) an instructional text, areas thought most subject to abuse. Since February I have been contacted by representatives from various organizations ranging from the Graphic Artists Guild, the American Society of Journalists and Authors, and the Washington Independent Writers to the Association of American Publishers, the Motion Picture Association, and the Magazine Publishers Association concerning their views on the issue of work for hire. Publishers argue that work for hire should apply to contributions to collective works, instructional texts, etc. where the publisher exercises close supervision and direction over the development of the work. Otherwise, the publisher cannot bear the development risks involved in the creation of a copyrightable work. Publishers further state that creative artists are protected by the law's requirement of an express agreement in writing. Freelance writers and artists counter that they are being presented with work for hire contracts on pieces that, contrary to the intent of the Act, are neither supervised or directed by publishers as to content or style. Because they do not acquire the status of an employee under such work for hire contract, they receive none of the benefits that employees would as compensation for surrendering copyright ownership to the publisher. They further cite overreaching on the part of the publishing industry in forcing work for hire contracts and instances of restrictive endorsements on payment checks. Mr. Chairman, it is apparent that there is much dispute as to what the problems are and how they should be resolved and that a hearing to explore the issues is greatly needed. I commend the Chairman for providing this opportunity for these groups of writers, artists, publishers, and others to fully discuss their views on this particular aspect of the Copyright law. Mr. Chairman, it is my hope that this hearing will prove productive and result in a solution, either legislative or in industry practice, satisfactory to all parties. Senator MATHIAS. I want to thank all of you who are here. Some of you traveled great distances to be here. I think it is important that you came. We in the Congress are necessarily generalists in the broadest sense. If the business community, the artistic community, and the general public, for that matter, does not come to Congress and tell us what the facts are in a given situation, we will never know. We have to depend on you for the knowledge that only you hold. So, by attending here today and by laying the story on the record, I think you have given the committee an opportunity to become acqua:inted with the situation, to make some judgment on the nature of this problem and how widespread it is, how many people it affects, and to draw what we hope will be the proper conclusions. Thank you very much. The committee stands in adjournment, subject to the call of the Chair. [Whereupon, at 11:18 a.m., the committee was adjourned, subject to the call of the Chair.] APPENDIX TESTIMONY OF BENJAMIN A, GILMAN, REPRESENTATIVE FOR THE 26TH I THANK THE DISTINGUISHED SENATORS FROM MISSISSIPPI, MR. COCHRAN, AND FROM MARYLAND, MR. MATHIAS, FOR THE OP- I COMMEND THE SENATORS FOR THEIR EFFORTS ON THIS ISSUE HOWEVER, NUMEROUS REPORTS FROM FREE-LANCE WRITERS, PHOTOGRAPHERS, AND GRAPHIC ARTISTS INDICATE TH 1976 WORK-FOR-HIPE PROVISIONS DO NOT SUFFICIENTLY PROTECT THEIR RIGHTS AS CREATORS TO OWNERSHIP OF THE COPYRIGHT ON THESE WORKS AND TO ALL SUBSIDIARY RIGHTS ATTACHED. IF WE TRULY BELIEVE THAT THE PURPOSE OF OUR COPYRIGHT LAWS IS THE ENCOURAGEMENT OF THE CREATION OF WRITER, PHOTOGRAPHER, AND GRAPHIC ARTIST TO FLOURISH AS EMPLOYER. ON THE OTHER HAND, THE FREE-LANCE AUTHOR, COMPOSER, AND ARTIST DO NOT HAVE THIS ASSURANCE. |