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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
30th Floor

New York, New York 10022
Telephone: (212) 758-1100

Dated:

September 28, 1982
New York, New York

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
DISTRICT OF NEW YORK, BEFORE THE SENATE SUBCOMMITTEE ON
CRIMINAL LAW ON OCTOBER 1, 1982, ROOM 2228 DIRKSEN BLDG.
9:30 A.M.

I THANK THE DISTINGUISHED SENATORS FROM MISSISSIPPI,

MR. COCHRAN, AND FROM MARYLAND, MR. MATHIAS, FOR THE OP-
PORTUNITY OF SUBMITTING TESTIMONY IN THIS HEARING INVESTIGATING
THE PRACTICES RELATED TO THE WORK-FOR-HIRE PROVISIONS DEFINED
UNDER THE PRESENT COPYRIGHT ACT AND THEIR EFFECT ON THE NEED
FOR LEGISLATION LIKE S. 2044. I STRONGLY SUPPORT SENATOR
COCHRAN'S BILL AND PLAN TO INTRODUCE SIMILAR LEGISLATION IN
THE NEAR FUTURE IN THE HOUSE.

I COMMEND THE SENATORS FOR THEIR EFFORTS ON THIS ISSUE
AND FOR THEIR DILIGENCE IN HOLDING HEARINGS, WHICH HAVE BEEN
SO DESPERATEDLY NEEDED. I HOPE THAT THESE HEARINGS WILL IN-
VESTIGATE WHETHER THE 1976 COPYRIGHT LAW'S REDEFINITION OF
WHAT CONSTITUTES "WORK-FOR-HIRE" SUFFICIENTLY PROTECTS THE
CREATOR'S FREEDOM OF CONTRACT AND OWNERSHIP RIGHTS IN HIS OP
HER CREATIVE WORKS. IN ENACTING REVISIONS TO THE WOPK-
FOR-HIRE SECTION OF THE COPYRIGHT ACT OF 1976, CONGRESS INTENDED
TO GIVE GREATER CLARIFICATION TO WHAT CONSTITUTES A "ORK"
MADEL FOR HIRE AND TO GIVE GREATER PROTECTION TO AN INDIVIDUAL
WHO IS NOT AN EMPLOYEE OF A PUBLISHER BY REQUIRING THAT THESE
INDIVIDUALS GIVE EXPRESS CONSENT TO HAVE THEIR WORK CONSIDEPED
A "WORK MADE FOR HIRE."

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
INDIVIDUAL, ARTISTIC, MUSICAL AND LITERARYWORKS BY ASSURING
THAT THE CREATORS ARE GIVEN ADEQUATE COMPENSATION AND CONTROL
OVER THESE WORKS, THEN WE MUST CAREFULLY EXAMINE WHETHER THE
PRESENT DEFINITION OF "WORK-FOR-HIRE" SATISFIES THIS LEGIS-
LATIVE INTENT. IF A PREREQUISITE TO FREE-LANCE PUBLICATION IS
THE SIGNING OF A "WORK-FOR-HIRE" CONTRACT, THEN THEPE ARE
SERIOUS PROBLEMS WITH THE CURRENT LAW, AND IT MUST BE CHANGED.
OUR NATION IS BASED ON THE PRINCIPLES OF INDIVIDUAL
FREEDOM AND CREATIVITY, OUR LAWS SHOULD PROTECT TO THE FULLEST
THE RIGHT OF FREEDOM OF EXPRESSION. FOR THE FREE-LANCE

WRITER, PHOTOGRAPHER, AND GRAPHIC ARTIST TO FLOURISH AS
INDIVIDUAL CREATIVE VOICES IN OUR LAND, THEY MUST BE TREATED
FAIRLY. IN AN AGE WHEN THE COMMUNICATION AND MEDIA FIELDS
HAVE BECOME SO IMPORTANT AND ENORMOUS ENDEAVORS, IT IS CRUCIAL
THAT THE VOICE OF THE INDIVIDUAL CREATOP. IS NOT SNUFFED OUT
NOR SUBORDINATED TO THOSE WITH THE LARGEST FINANCIAL INVEST-
MENTS. IT IS TRUE THAT PUBLISHERS IN OUR LAND TAKE GREAT
RISKS, BOTH ECONOMIC AND SOCIAL, TO SEE THAT AMERICANS AND
THE WORLD HAVE ACCESS TO ALL POINTS OF VIEW AND TO THE CREATIVE
GENIUSES IN OUR MIDST, THOSE WHO WORK FOR THESE EMPLOYERS ARE
REIMBURSED ON A STEADY BASIS, IN ADDITION TO HAVING ALL OF THE
PRIVILEGES AND BENEFITS THAT GO ALONG WITH WORKING FOR A REPUTABLE

EMPLOYER.

ON THE OTHER HAND, THE FREE-LANCE AUTHOR, COMPOSER, AND
INSTEAD THESE CPEATOP.S

ARTIST DO NOT HAVE THIS ASSURANCE.

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