essentially gaining the benefits of being an employer under the copyright law without fulfilling the obligations of being an employer under the social security, income tax and related laws. We would therefore change the clause (1) definition of work for hire as follows: "A work made for hire' is - (1) a work prepared by a salaried employee within the scope of his or her employment..."

D. WHICH CATEGORIES SHOULD BE STRICKEN?

We are basing the categories to be stricken from the clause (2) definition of work for hire on the experience of our members, as documented in our original submission to the Committee. Thus, we would strike "as a contribution to a collective work", "or other audiovisual work", "as a supplementary work", and "as an instructional text". In each of these categories, the creator would be the author for copyright purposes.

We would move the definitions of "supplementary work" and "instructional text" that appear in clause (2) into their appropriate places in the main body of definitions in Section 101 (so that "supplementary work" appears between "State" and "transfer of copyright ownership" and "instructional text" appears between "including" and "joint work").

As a matter of clarification, we would also want to limit the meaning of the term "atlas" by defining it in the definitional section as follows: "An 'atlas' is a bound collection of maps." Otherwise, atlas can have a broader meaning and might include a collection of pictorial representations of any subject such as an atlas of the parts of the human body.

E. APPROACHING AN IDEAL SOLUTION

Striking certain categories from the clause (2) definition can only be a first step, since neither creator nor publisher would be satisfied by such a result. The creator would simply face "all rights" contracts in every category which had previously

been work for hire. At the same time, the publishers would face a 35-year termination right retained by creators that might interfere with exploitation of projects in which the publishers would reasonably expect to have a long-term interest because such projects were very expensive to nurture or involve input from many different sources (such as encyclopedias in the former case and some specialized textbooks in the latter). An ideal solution to this tension would be to have the creator retain all the rights which the publisher did not in fact use and also to insure that the creator is compensated for any uses by the publisher beyond those originally understood between the parties when they negotiated the consideration in their contract.

This ideal solution can be approached from a variety of directions. First, it is significant to go back to the earlier part of the copyright revision process. In the 1964 Preliminary Draft for the revision of the copyright law, work for hire would not have included works prepared on commission. Moreover, under

the termination provisions, any transfer except employee's work for hire would have been terminable within 25 years (or 20 years in the case of an unjust enrichment). The wisdom of the concerns reflected by these proposals is borne out by our experience since the inception of the new law.

Another approach is to adopt certain presumptions as to what the parties intended, such as those already present in Section 201(c) with respect to contributions to collective works when no express transfer has been made. Such presumptions follow what might reasonably be implied to be the needs of the respective parties.

It has been suggested that requiring the enumeration of all rights being acquired with separate consideration for each right - would be of benefit in cases in which small independent works are being acquired to be used in larger works. This could

be joined with a principle of unconscionability much like that in the 1964 Preliminary Draft that might look to the size of the consideration in relation to the rights acquired in order to permit the reformation of certain contracts.

Finally, the concept of limiting the commissioning party's exclusive license to reasonably contemplated uses at the time of entering into the agreement could also be manifested in a system which caused unexercised rights to either revert to the creator or become nonexclusive after a certain period of time.

What was never contemplated was that publishers should be positioned to receive windfalls by the acquisition of rights that they did not contemplate using at the time payment for commissioned work was agreed upon.

F. THE PROPOSED AMENDMENT

Our approach fuses many of the foregoing concepts based on our experience with commissioned work for hire in the five years since the copyright law took effect.

First, we would expand the presumptions of Section 201(c) to cover other situations in which a larger work is made from many different contributions. We would then impose certain restrictions and guidelines on what may be done in transactions regarding such contributions. Finally, we would add termination provisions to deal with certain needs of the publishers regarding these categories of commissioned works.

Our version of Section 201(c) would read as follows:

(c) Contributions to Collective Works, Contributions to Compilations, Supplementary Works, Instructional Texts, and Parts of Audiovisual Works.-- Copyright in each separate contribution to a collective work, each separate

contribution to a compilation, in any supplementary work,
in any instructional text, and in any part of an audio-
visual work, is distinct from the copyright in the eellee-
tive larger or revised work as a whole, and vests initially
with the author of the eontribution who created the work to
be incorporated into the larger or revised work. In the
absence of an express transfer of the copyright or of any
rights under it, the owner of copyright in the collective
larger or revised work is presumed to have acquired only
the privilege of reproducing and distributing the eontribu-
tien author's work as part of that particular eelleetive
larger or revised work, any revision of that eotteetive
larger or revised work, and any later collective larger or
revised work in the same series. If an express transfer is
made with respect to an author's work in one of the cate-
gories covered hereunder, such transfer shall be in a written
instrument specifically enumerating each right being acquired
and the consideration paid for that right and shall be signed
by both parties. Such enumerated rights shall not exceed the
rights which the grantee reasonably anticipates exercising.
In the event that any enumerated rights have not been exer-
cised within two years of the first publication by the
grantee or its successor in interest with respect to any
right acquired, such unexercised rights shall be held by the
grantee or its successor in interest as nonexclusive and the
author may also transfer such rights on a nonexclusive basis.

To protect the needs of publishers whose works may last for longer than thirty-five years, Section 201(c) might continue:

A transfer by an author in one of the categories covered hereunder shall not be terminable by the author pursuant to Section 203(a)(3) if a written contract signed by both parties prior to the commencement of work specifically enumerates certain rights which may not be so terminated.

G. UNCONSCIONABLE TRANSFERS

if certain conditions

This new statutory pattern would greatly aid creators while meeting the needs of copyright users. It should be pointed out, however, that even this proposal has some drawbacks for creators. The most noticible is the fact that publishers can use work forever and pay only one fee are met. For this reason, which stems from the general inability of the creator to negotiate on a value for value basis, we would suggest that the concept of unconscionability be added to the statute. Such a concept was present in Section 16 (Alternative B) with respect to unremunerative transfers in the 1964 Preliminary Draft. We would suggest that such a remedial concept be added as a new subdivision (f) for Section 201. It would read as follows: "(f) Unconscionable transfers. An author may, at any time following the transfer of a copyright or of any rights under it, bring suit to reform or terminate a transfer in which the profits received by the transferee or his successors in title are strikingly disproportionate to the compensation, consideration, or share received by the authors or his successors. In such action the plaintiff shall have the burden of proving that, taking into consideration all factors including the bargaining position of the parties, their respective contributions to the success of the work, and changes in business practices or media exploitation, the terms of the transfer have proved to be unfair or grossly disadvantageous to the author. The court shall decide the action in accordance with the principles of equity, and shall have discretion to reform or terminate the transfer on whatever terms it considers just and reasonable."

V. CONCLUSION

Our proposals would, we believe, permit our members and creators generally to bargain on what will more closely approximate a value for value basis. At the same time, these proposals will