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