• The commissioning party is deemed to own "all of the
rights comprised in the copyright" (sec. 201 (b)). As
noted above, however, this will occur only if the
individual author so agrees, in writing (sec. 101); and
the individual author who does so agree may, in any event,
negotiate an agreement varying this effect in whole or
in part (sec. 201(b)).

• The rights acquired by the commissioning party are not
subject to statutory termination. Under the new Copyright
Act, authors are permitted by law to terminate their agree-
ments with publishers during a period beginning thirty-five
years from the date of the contract or from publication
(sec. 203). Works that are considered to be "made for
hire" are not subject to statutory termination (sec. 203 (a)).*
Although this exclusion might appear on the surface to be a
limitation on the individual author's rights, that conclusion
would be wholly superficial because: (a) again, this exclusion
cannot apply unless the author of a commissioned work
expressly agrees, in writing, that the work should be
considered as one made for hire; (b) the termination

opportunity is itself an encumbrance upon the general principle
that authors and publishers, as well as others, are free to
reach agreements (e.g., as to the term of contract) between
them; and (c) the particular circumstances of those limited classes

*The law does not preclude a negotiated termination provision in the case of "works made for hire."

of commissioned works

here, instructional texts and

contributions to encyclopedias and like collective works
that are subject to "work made for hire" treatment (with
the individual author's consent) typically render the
termination principle inapposite. *

C. Encyclopedias and Instructional Texts

As indicated above, in crafting section 101, clause (2) of the work made for hire provisions of the 1976 Act, Congress considered the particular nature of publishing efforts involved in creating specific categories of works. For present purposes we will briefly describe these considerations as they pertain to encyclopedias** and instructional texts.

The typical encyclopedia is comprised of contributions from literally thousands of individual authors. No encyclopedia publisher can employ all these experts in the variety of fields necessary

to produce a quality work.

commissioned

task

-

Instead, these many contributors are

in the terms of the Act, "hired" for a specific

at the instance and inspiration (and risk) of the publisher, and the publisher applies its creative talents to direct, review,

*This was, in fact, recognized by Congress and was a fundamental basis of the compromise that resulted in the current version of the second clause ("commissioned works") of the definition of "works made for hire" in section 101 of the Act. See generally, Angel & Tannenbaum, supra, and ¶C. below.

**Although we will refer to "encyclopedias," similar considerations apply to dictionaries, glossaries, and other reference works of a collective nature.

refine, and merge all of these efforts into discrete sections and a single work that will serve the anticipated needs of the public. In addition, these works are periodically revised after first publication. In some cases, particular portions of the whole may remain the same over long periods of time, extending well beyond the thirty-five year termination period (e.g., a biographical entry for a deceased individual or section on past history); in others, both retention of parts and revision may be necessary (e.g., a section on scientific theory or current geopolitics). In many cases, virtually every paragraph, or sentence, of a single entry will reflect the separate, integrated, contributions whether made over many months of review and editing for first publication, or many years of

Like considerations apply to the publication of "instructional texts," a category that this Committee has recognized as "one of the most important" classes of commissioned works that may be treated as made for hire.* Commonly, it is the educational publisher who engages in detailed research and determines the need for a particular work or program, analyzes and establishes the outline of materials to be covered, convenes meetings and seminars of educators to solicit their views, commissions carefully selected team of authors (usually professional teachers) to contribute to the preparation of the works, and supervises the

"hires"

-- a

*S. Rep. No. 94-473, 94th Cong., 1st Sess. at 105 (1975); accord, H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. at 121 (1976).

planning and creation of the materials.

During the preparatory stages, numerous individuals will participate under the publisher's supervision in assigned tasks relating to the submissions, review, revising, and reworking of manuscripts to meet detailed pedagogic and curriculum needs. Indeed, it will often be difficult to look at the final product and isolate a particular author's original contribution. And, after publication, similar processes of periodic, multiple-participant, revision will be necessary to continue

meeting the needs of the teaching community.

Finally, considerations combining those just discussed for both encyclopedias and instructional texts apply to single textbooks comprised of commissioned chapters by particular

specialists.

In these contexts, distinctions between staff employees and commissioned authors are, for purposes of the Copyright Act, illusory. In the absence of a single, identifiable copyright owner of the whole and its constituent parts, the processes of revision and updating would be severely inhibited, and the ability to adapt or license particular versions and uses (e.g., abridgements, special adaptations, foreign language editions, and of increasing importance microform, videoform, data base, and electronic media versions) would be significantly impaired. And subjecting discrete segments of larger interwoven units (whether paragraphs of particular entries or sections of the entire work) to myriad terminations of the publisher's rights would be virtually intolerable.

-

These concerns are not parochial, limited to the financial fate of particular publishers. They are important elements of the publishing community's ability to meet the needs of the general, special, and educational publics for reference and instructional works: to create comprehensive, accurate, and up-todate materials; to disseminate these materials in rapidly changing fashions that will adequately and effectively serve their purpose; and to maintain the economic incentive to continued creative effort that underlies our copyright laws.

D. "Abuses" Of Work Made For Hire?

Since the new Copyright

Act came into effect in 1978, there have been occasional unsubstantiated rumblings of "abuses" of the work made for hire provisions (a perjorative, by the way, that hardly pertains to the offering or negotiation of contracts or terms called for by legitimate business considerations). we are aware of no circumstances under which the rights of individual authors are being deliberately or systematically abused or disregarded by our members.

Additionally, and at the risk

However,

of repetition in part, we must point out that the revised Copyright Act already contains several safeguards for the author's interests in this connection:

• by requiring an "express agreement" that a commissioned work "be considered a work made for hire" as a condition to work made for hire treatment;

• by requiring that such an agreement be "written" and "signed" by the parties;