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with a variety of attacks on copyright. Some of these we discussed yesterday: the "monopoly", "restraint of information" and "mere privilege" claims. As to the others:
Ad Hoc spokesmen contend that uncompensated educational copying beyond the limits of fair use must be legislated because it allegedly "promotes" the progress of science and art. This misses the very point of the Constitution's copyright clause, which intended that authors be granted "valuable, enforceable rights" to encourage them to produce works of lasting value. Granting rights, not destroying them, was how the Constitution intended to promote the progress of science and art. Compensating authors for uses of their work, not depriving them of remuneration, was the method chosen by the Constitution. Authors Whose works are used in schools make a positive contribution to the educational process, and for reproduction beyond fair use, they are entitled to compensation.
is your Report noted, "the educational groups are mistaken in their argument that a 'for pront' limitation is applicable to educational copying under the resent law."
Ad Hoc Committee spokesmen have argued that any copyright limitation on uncompensated educational copying beyond fair use restrains "freedom" to read under the First Amendment. This utterly fallacious argument was made by them in the Williams & Wilkins case, and was completely ignored by majority and iuinority opinions. The First Amendment was fashioned to assure unfettered interchange of ideas (Sullivan v. W.Y. Times) and it is axiomatic that an author's copyright does not prevent anyone from discussing or repeating his ideas (Rosemout v. Random House). The Supreme Court has never interpreted the "freedom to read" under the First Amendment to mean that copyrighted works must be provided free of charge; and it has frequently emphasized that there is De conflict between publication for profit and the First Amendment. Under the Ad Hoc theory of “freedom to read", teachers and librarians should work without pay, colleges should cease charging tuition and the Xerox Corporation should be denied copying fees when its machines reproduce "educational” materials.
Our disi'ussion has focused on the copying aspects of the Ad Hoc Committee's proposed exemption, but the Authors League opposes its other provisions as well. It would be highly dangerous to add an "input" exemption with respect to computers. And the educational community is not entitled to further additions to an already toe-broad television exemption.
LIFE-PLUS-50 YEARS The Revision Bill would establish a single term of copyright for new works, lasting for the author's life and 50 years after his or her death. This is the copyright term employed by most other countries. Existing copyrights would continue under the present system: a first term of 28 years which can be renewed for a second term, that would be enlarged from 28 to 47 years. (Secs. 302, 301]
As in prior bearings, the Authors League strongly supports these provisions. We urge your Subcommittee to retain them and to reject demands by Ad Ilor Committee spokesmen to turn back to the present two term system, and proposals for a single term of shorter or different duration, Your Committee's Report noted there *was overwhelming support for a life-plus-50 system", and this was based on sound reasons which are analyzed in the Report.
THE "INCREASE" IN TERM The Report cited findings by the Register of Copyright that a life plus-50 term would, on the average, add no more than 20 years to the present 56 years. It would add very few years, soinetimes none, to a work published later in an author's life.
On the other hand, life-plus-50 would drastically reduce the period of protection now available to unpublished works and those published long after an author's death. I'nder our dual system, a work is protected absolutely until it is published. 200 year-old diaries, 150 year-old letters cannot be used by historians or scholars berause their owners have absolute property rights under common law. And when any unpublished work, no matter how old, is published-it receives another 56 years of protection under the present Act. Mark Twain's Letters From the Earth was published decades after he returned to it. The memoirs of a Civil War reporter, who wrote here in Washington, was first published in the 1960's. Both received 60 years of statutory protection on publication. Under the proposed life-plus-50 term, copyright would have terminated 50 years after the
author's death, as it would for all unpublished (as well as published) journals, books, letters and other works. Authors like Ernest Hemingway would no longer be able to provide for their families by leaving unpublished novels to be issue) years after their death.
THE NEED FOR MORE ADEQUATE PROTECTION With an increasing lifespan, authors outlive their copyrights. Many are unable to provide for their immediate families since their renewal copyrights expire won after their death. Their wives, husbands and children are denied any share of the income their works continue to produce for others---compensation their families would have under a life-plus-50 term.
Widows of illustrious American authors have outlived their husbands by »reral decades. In their advancing years, the only income which permits some of these widows to live in dignity and a semblance of comfort are the royalties from great works written by their husbands. This income is taken from them when the rem newal copyright expires. Under life-plus-50 they would continue to receive this desperately-needed income. Ours is the only western country which denies aging authors or their surviving families this income. All the others have a copyright term of live-plus-50 (or more) years.
It should be remembered that life-plus-50 years benefits only those authors who created books, plays and music of sufficient value to survive. And I should stress that it is authors, and the families of deceased authors, who will benefit from the longer term. They would receive at least 50%, and often all, of the copyright income from their books, poetry or plays during the extended period of proten tion because of the "reversion" provision, and the nature of publishing arrange ments most professional authors make. Life-plus-50 years would not provide windfalls for book publishers, and is not a matter of grave concern to them.
LIFE-PLUS-50 IS JUSTIFIED BY THE ECONOMIC/LEGAL REALITIES OF THE COPYRIGHT
As we stressed in our testimony yesterday, the instrument chosen by the Codstitution to serve the public interest--to secure literary and scientific works of lasting value is an independent, entrepreneurial, property rights system of writ. ing and publishing. The free-lance author must earn his living from income prima duced by the books, plays, articles, poems, etc. he creates. He must look for his income to the payments made for their various uses-so long as he retains bis copyright.
Whether or not copyright is "property" (and it is), the author is required to survive as a property owner. He is not paid an annual salary. He writes at his own risk. Some of the greatest literary, dramatic and musical works contributed to our society and posterity would not, even under life-plus-50, provide their atzthors with adequate compensation for the value of their contributions to society. But these authors are entitled to at least that much for themselves and their families. In this connection, it should be stressed that an author's compensation consists of an accumulation of royalties, often small, for uses of his work over a period of many years. These uses are made by reprint publishers, book clubs, anthologists, periodicals and others, as well as by his initial publisher. Once his copyright is lost, all of these other users are free to produce income from biy books or other works without paying any compensation to him or his family.
Often an author's works do not commence to earn income for him until fears after they are published, when he has finally won recognition. Often a book is discovered or rediscovered thirty years or more after it was originally published and for the first time becomes a commercial success. Its useful copyright life under our present system may be only 15 or 20 years near the end of the termnot 56 years.
Moreover, the author faces the constant risk that two or three years of work may go down the drain--his book or play may be a literary success but a financial failure. Throughout his career, only two or three works may produce substantial income for him. These must compensate him for a lifetime of writingwhich may have produced several works which, although financially unsuccessful, are of lasting value to society.
Under these circumstances, the Authors Lengue does not believe a term of copy. right ending 50 years after the author's death is "too long". The author must produce his works under the risks and hazards of an entrepreneurial system. He is entitled to receive a small measure of the protection accorded to other, often less productive, entrepreneurs who are entitled to hold property rights not merely for life plus 50 years, but for 5, 10 or 20 generations.
THE PUBLIC INTEREST Alife-plus 50 term does not damage the public interest. Opponents argue that it would sharply curtail availability of works; and that it increases prices too much. Veither argument has substance.
Copyright does not diminish the availability of books, plays, music etc. Indeed, as this Committee's report noted, the loss of copyright is often likely to have that eilect. Actually availability of copyrighted works has increased in recent years. Mass-market and "quality" paperbacks offer a myriad of titles. University Microolms and similar organizations now fill orders, on demand, for countless books that formerly were out-of-print ; under licenses from authors and publishers. We approach the point when a few copyrighted books will be out of print. And these companies also provide entire back issues of countless journals and other publications on microfilm and microfiche. These techniques are also used, increasingly, to keep technical, scientific and other books available.
It works were protected for life-plus-50 years rather than 50 years, their cost to the public would not increase substantially, if at all. As the Committee report stated: “The public frequently pays the same price for works in the public domain as it does for copyrighted works, and the only result (of copyright termination after 56 years) is a commercial windfall for certain users at the author's expense." The price of a paperback book is not reduced, for example, when the author's copyright expires. But the share of the income it produces, previously paid to the author or his family, can now be pocketed by the publisher or other
Moreover, this "cost" argument should be put in true perspective. Copyright opponents do not propose that when a work goes out of copyright, a publisher who reprints it must sell it at a lesser profit, or at a price fixed to assure that the public will be able to buy it more cheaply than copyrighted works; or that broadcasters or theatres be required to charge the public less for performances of works whose copyrights have expired; or that actors, teachers or musicians work at a lower salary when performing or teaching works which have fallen into the public domain--to reduce the cost to the public.
DETERMINATION OF COPYRIGHT STATUS
For many reasons, copyright status is not easy to determine under the present two-terin system. It is simpler to determine under life-plus-50. We have discussed this issue in our previous testimony and beg leave to refer to it. As your Committee's report noted, the system of life-plus-50 years "has worked well in all other countries, and on the whole it would appear to make computation of (copyright) ternis simpler and easier."
THE REXEWAL CLAI'SE
Life-plus-50 years would eliminate our present renewal system which has caused several authors to lose copyright after the first term through failure. due to ignorance or inadvertence, to file renewal applications. The "reversion" clause in the new Bill would give authors protection against long-term assignmients of their rights--the purpose for which the renewal system was chosen by Congress in 1909 over life-plus-30. And a purpose which was largely frustrated by the Supreme Court's decision in Fixher v. Witmark, and subsequent decisions.
While the renewal clause puts material into the public domain after 28 years If the proprietor does not renew, most of this is actually worthless-catalogs, advertisements, labels and the like. As your Report mentioned statistical studies be the Copyright Office indicate that “most material which is considered to be of continuing or potential commercial value is renewed."
OTHER ADVANTAGES OF LIFE-PLUS-50
Life-plus-50 would establish a single copyright system in the United States, replacing the present dual common law-statutory system. It would also provide uniformity with the laws of other countries, a matter of increasing importance as many classes of works are disseminated, often simultaneously, in several nations. The advantages of both consequences have been reviewed in our previous testi. mony and undoubtedly will be described to you by the Copyright Office. Several of these benefit users.
For the reasons discussed above, the Authors League respectfully urges that the adoption of a life-plus-50 copyright term is completely consistent with the letter and spirit of the Constitution's copyright clause. The first, most important and indispensable contribution to the public interest-i.e. securing the produe tion of works of lasting value is made by the author. Until he creates his book, play, music or poem, no one can disseminate it, exploit it, teach it, or systematically copy it-without paying him. The Constitution intended that he have staluable enforceable rights" to encourage him to serve this public interest and to permit him to be compensated for his talent and labor. The period of protection provided by life-plus-50 is a reasonable and necessary method of accomplishing that Constitutional purpose. And until some author discovers the secret of immortality life and 50 will be a limited term of protection, much more limited than the 100 or 200 or more years of protection possible under our present common law-plus-56 years of protection.
TESTIMONY OF IRWIN KARP, COUNSEL, THE AUTHORS LEAGUE
Mr. KARP. Mr. Chairman, thank you very much.
My name is Irwin Karp; I am counsel for the Authors League of America which is a national society of professional writers and dramatists.
In my prepared statement, which I respectfully submit for the reord, I mention briefly at the outset the types of works that our members write. It covers the whole range of creativity.
In my testimony this morning, I address the educational exemption as it has been offered to the House and Senate, and has been rejected, for the sound reasons in your previous report and in the Senate's report. I would also like to speak, in the very limited time available, to the problem of the life-and-50-years term of copyright, unless that is to be discussed at some later date.
I think perhaps I should put something into the record at this point on that. It is a much-abused concept, and as was pointed out when the educators were propounding their opposition to life-and-50, and placing their opposition on grounds that have no basis in reality, or even in decency or common sense.
First of all, Professor Raskind told us we are talking about the scholar copying by hand. That is not so. We are talking about exemption and what has been proposed to you in the light of a technological revolution that created, as I described yesterday, and as Mr. McKenna of the Special Library Association named, a medium of one-at-a-time reprinting or one-at-a-time publishing.
I put into the committee's hands, some semblance of what the technology has accomplished, including an entire book that is reproduced on demand by the Xerox machine.
When we get to multiple copy, unless there is some prodigious penman out at the University of Minnesota law school, I do not know how anybody is going to copy by hand 40 or 50 copies of a short story or a poem. The technology has also armed the educational system of this country with various ways to very cheaply copy various works of instruction.
Your committee, in its report, and the Senate committee, using that work--I am talking about the work you did so well—said the case for an educational exemption had not been made. Under the doctrine of
fair use as expounded very specifically in your report, guidelines were set up for what was and was not fair use.
If you examine the guidelines, and examine the proposed amendment, your guidelines are much more explicit and useful than the amendment proposed by the educators. If clarity is the objective, they have certainly failed miserably. Certainly their amendment does not teach us how short a short story, or how short a poem, can be copied.
Teachers will be coming back to you in a short time, asking you to write into law, the lengths of particular works.
What you then suggested to us, and something we have sought to (lo in the interim, is to sit down with the educators and work out guidelines of fair use. This is the only useful way of dealing with this problem. Practically every example given to you today, from the picture of the frog, up or down, is fair use. And the people who give you the examples know it is fair use. They know that we think it is fair use.
If we sat with them periodically, as you propose, reviewing in the context of current condition of education, the current condition of publishing and writing, the problems of fair use, we could work out guidelines that would be helpful and direct and useful to everybody.
If we sat down periodically, none of us would be frozen with fear that what we conceded or opposed as fair use today would be a dangerous precedent to plague us forever.
In other words, an ongoing review that would consume much less time than our colleagues who testified before us and we now have consumed on the problem of copyright revision would be much more useful.
You also propose that where copying exceeds the bounds of fair use, as it often does, and as our educator colleagues would like to have it do, that reasonable clearance arrangements be worked out for the payment of reasonable compensation. That is a suggestion picked up by one of the witnesses in the preceding panel. I think it is one that is easily workable.
The alternatives are not, as Professor Raskind said, either copy the convrighted work without payment or not use it at all.
There is a third alternative. That is where it exceeds fair use to obtain permission and pay a reasonable fee for it, as I will point out, and not something extravagant. May I also point out in elaboration of the point Mr. Pattison made, it is the author's right, where the work is being used beyond the limits of fair use, to say what his compensation will be.
Our educational brethren turn their backs on the open market, the free market, and ignore the play of economic force. The Constitution wrote for us a copyright clause that according to the Supreme Court was to establish authorship and publishing on a profit motivated basis.
is expected, what actually has happened, when an author of a short story or poem or publisher grants a right to use it in an anthology, is that he grants a nonexclusive right to use that work that may appear in 30 anthologies. The price is a competitive price. The competition in the marketplace actually produce fees that are very reasonable. Sometimes, $25. sometimes $50, sometimes less per use, sometimes more.
Let me point out that the American author, most American authors, do intend to make income when they write a work, whether they are full-time professionals or not. The use of their work in anthologies is a major source of income to them. For poets and short story writers, as we testified before, and many of our author members have testified,