Mr. KARP. Even so, you have to put the question to whatever system you use, from which it keys its searching of the documents to get the reports you want. If you know the cases and you have it on cards, you can, of course, just turn to them.

Senator BURDICK. Then, of course, digests are protected?
Mr. KARP. Yes.

Senator BURDICK. But not the case book, not the reporter?
Mr. KARP. That is right.

Senator BURDICK. Then the digests and the individual works would be protected?

Mr. KARP. Yes, and it is well they should be, because the great work that goes into preparing the digest, doing all of the work that puts the cases into the logical arrangements and categories.

Senator BURDICK. All the Senate would have to do would be to make a deal before they put that on their machine; is that right? Mr. KARP. That is right.

Senator BURDICK. That is all.

Senator MCCLELLAN. Senator Fong?

Senator FONG. I, too, would like to commend the witness for a very fine discussion of the subject. I note that you will call about a hundred witnesses and there are so many things I do not know about the copyright law, I would like to ask a lot of questions, but I think in time, after listening to the hundred witnesses I shall be educated. I would like to ask just one question. I note that in the bill which was passed by the House, the computer phase of it has not been gone into; is that correct?

Mr. KARP. It has only been gone into, Senator, in that the rights to record a work so that it can be put into a computer and taken out are protected by copyright. What the House committee has suggested is that intensive study be made so that methods can be made by which the creators of the material and those who operate the systems can clear the material to make arrangements to pay the necessary royalties.

Senator FONG. There are still a lot of things to be done as far as the computer relationship is concerned?

Mr. KARP. In the sense of writing specific legislation I would say no. In the sense of working out arrangements, yes.

What the House has really done, in a way, is what is done, what the Congress has done in the past in the copyright law in dealing with technological revolutions. This is not the first one, by any means. In the field of music, for example, radio, records and television and talking motion pictures were all tremendous technological revolutions. Radio is not even dealt with in the 1909 act. But the broad rights to perform music are, so that the composer was protected when radio came along as a new electronic means of performance, and composers and broadcasters worked out systems for arranging permissions and payments. I think what the House committee is suggesting is that the best way to approach the computer problem is the same; observe the author's rights, but let us all get to work to solve practical problems as to how you clear these uses and make the material available and

so on.

Senator FONG. Outside of the extension of the copyright time from 56 years to life plus 50 years, would you give us in a very few para

graphs what some of the protections which this new law gives you are, and which you do not have under the present law.

Mr. KARP. Yes. I think one of the most important things to American authors of books is the modification of the manufacturing laws, which now results in forfeiture of copyright if the American author happens to have a book printed abroad and more than 1,500 copies are brought into the country. That is one.

In the field of public television, nonprofit public television, the law, the bill recognizes the right of composers and authors of literary material to be paid when their material is used for public televisionnot closed-circuit television, but in public television.

Senator FONG. Under the present law, you do not

Mr. KARP. We do not have them. What we think authors do have under the present law is the right to record material if it is going to be used in television-educational or commercial. An exemption from that right would be given to public instructional television. I consider it a trading off of advantages. They have something which I do not believe they had under the present law. On the other hand, they would pay for certain use of material in these areas.

In terms of school uses, I think the law preserves all the privileges that education had to perform in the classroom and under fair use to copy. I do not think there has been any change there.

In terms of dramatic works and performance of dramatic works there has been no change.

In the field of music, there would be changes in the rates which have to be paid by recording companies when they make a recording of a composer's song without his permission under the compulsory license laws. In the jukebox, coin-operated phonograph industry, composers would be entitled to be paid, whereas now they are not because of the specific exemption in the present law, which does not permit them to ask for it.

I think these are probably some of the more important changes in the bill.

Senator FONG. This bill includes composers of music?

Mr. KARP. Yes; it includes, Senator Fong, anybody who created any form of copyright at work-authors, composers, dramatists, poets, choreographers, architects; any sort of work, writing, that can be copyrighted under the law.

Senator FONG. Thank you.

Senator BURDICK. Mr. Chairman, I have one more question. I consider this presentation to be an excellent one and, for the most part, very forthright. Counsel, do I assume from the statement that appears on page 36, referring to the jukebox exemption, where you say, "We earnestly hope that section 116 of the revision bill will be drawn in a manner that allows them to obtain reasonable payment for their works."

Do you mean by that that is all left in our laps as to what is reasonable?

Mr. KARP. No, I think what we are trying to do first of all, was to avoid an intensive discussion by commenting on something that is really of greater concern to other people, who are composers of music used in the jukebox industry. And that we do not believe that the clause as it is now drawn is equitable. We think that probably

would be cumbersome to operate and the fees provided in the House bill are not adequate. But far be it from us to say that to the composers of music, that is they in their wisdom accept this or can work out something else with the jukebox industry or propose some other alternative, that we should tell them, prescribe to them, how the clause should be drawn.

Senator BURDICK. Is that not essentially what I said; without a recommendation from you, we will have to use out best judgment as to what is reasonable?

Mr. KARP. I think you will have the advantage of recommendations from both composers and the jukebox industry. We, do not offer a recommendation.

Senator BURDICK. Thank you.

Senator MCCLELLAN. Thank you very much. You have made a fine presentation and it will be very helpful to this committee. (The prepared statement of the Authors League of America follows:)

STATEMENT OF THE AUTHORS LEAGUE OF AMERICA

My name is Elizabeth Janeway. I am a member of the Authors League of America, the national society of professional writers and dramatists. With me are Mr. Herman Wouk, Mr. John Dos Passos, and the League's Counsel, Mr. Irwin Karp. We appear on behalf of the Authors League to present its views on S. 597. The Bill would rewrite the laws of literary property in the United States. Not only does it provide basic changes in the Copyright Act, it also abolishes the author's extensive rights in his work under common law. The Authors League strongly supports the Revision Bill. There are a few provisions which we believe should be modified. There are others which we think should have been written differently-but to which we do not object. The Revision Bill is a complex law which affects many interests; and in the arduous process of bringing it to its present form, adjustments and compromises have been made on several provisions. We recognize this and are willing to accept many of them.

During these hearings your Committee will hear testimony from various organizations and groups which publish, produce, disseminate, program or otherwise use the writings of authors. The Authors League speaks for the self-employed authors who create much of this material: novels, plays, poems, histories, biography and similar works. As in the House hearings, some witnesses representing users, rather than creators, of copyrighted works will probably oppose provisions which preserve the author's right to be paid for the uses of his work they happen to make. As in the past, they may see in these provisions, threats to "the public interest." However, we submit that the public interest is best served, as the House Committee's Report frequently demonstrates, by a copyright law that recognizes the author's right to be compensated for the various uses that are made of the works he creates.

The ultimate public interest in copyright is to aid, stimulate and encourage the production of literature and art and in this country the great creative accomplishments have been made in these fields by the individual author, working alone. A sound and adequate copyright law is by far the most important action our nation can take to further this important, indeed indispensable, creative activity; important, and indispensable to those who exploit the author's work commercially, and to the educators, librarians and others who need and use it.

Copyright is the legal foundation on which rests the author's right to earn his living. He must, for a reasonable time, possess the exclusive rights to publish, perform, broadcast and otherwise present his work in order to obtain compensation for the time and effort which he has invested in it. These are fundamental rights to which he is entitled under the Constitution and at common law. If these rights are diminished by exceptions to his copyright, so is his livelihood. And so is the public interest in maintaining a free flow of ideas and of independent thought. What is at stake here is the rights of an author in something he created, something which would not have existed without him. He is not asking for special privileges in already existing public resources or facilities. Rather, he is a public

resource, if you want to put it that way. The best way to keep him productive and to ensure his contribution to the public welfare is to let him receive a return on the values he produces. Under the protection of copyright, authors have freed themselves from dependence on patrons and subsidies and from subservience to interests other than those of the general public.

Both the Copyright Office, in preparation of this Bill, and the Judiciary Committee of the House in its hearings, listened carefully to arguments which seek to dilute the right of an author to receive a proper return on the work he creates. (That return, incidentally, is not large. A study done for the Authors League in the not too distant past reported that the average income of professional writers is about $3000 a year.) In each case, these arguments to dilute copyright were rejected. But it is probable that they will once again be brought up in these sessions, and I would like now to explain briefly why it seems to authors right that they should be rejected.

The Monopoly Argument: The first argument of this kind advanes the theory that copyright is a monopoly. But copyright does not give an author control over anything except the property he has created. He can sell it or lease it, but if he holds it off the market no one is hurt except himself.

He is no more a monopolist in the antitrust sense than millions of other Americans who own land or buildings, businesses, securities, natural resources, or any other kind of property. Each one possesses the exclusive rights to use that which he has created, purchased or inherited. It is not "monopoly" as the term is used under the Sherman Act.

A monopoly exists when someone owns enough property or has enough economic power to control an industry or to prevent the free play of competition. If I write a novel (and I have written six) I can't control the market for novels or the price of novels. I can't tell people to read my novel instead of someone else's. My publisher can advertise it and I certainly hope he will!-but he must sell it in a free and competitive marketplace.

The Patent Argument: Another argument for diluting the rights of authors draws an analogy between copyright and patents. A copyright differs from a patent because patent protects an idea and can prevent public use of that idea,1 while a copyright protects only the author's expression of an idea. Any other writer is free to use the same idea and to express it in his own way.

Let me give you an example of this that is rather close to my own heart. My last novel appeared under the title ACCIDENT. It begins with a car crash on a highway in which two young men are hurt. The book then goes on to investigate and evaluate the events following this accident and to attempt to discover why it took place in terms of how life went with these young men and their families afterward.

My book was published also in England, but it appeared under a slightly different title because another novel entitled ACCIDENT, by a writer named Nicholas Mosely, appeared in England two months before mine did. Mr. Mosely's novel begins with a car crash, and it goes on to investigate and evaluate the reasons leading up to the crash, and what happened afterward.

Neither Mr. Mosely nor I have the faintest claim against each other. We each hit on the same idea, but we produced different expressions of it, and both books were published here and in England, bought and read, in competition with each other.

The same situation exists in the field of nonfiction. In 1963, two excellent biographies of the poet John Keats were published, and each was considered for the National Book Award. Aileen Ward's received the prize, but some experts preferred, and recommended, Walter Jackson's. In 1957, Houghton Mifflin published a biography of Bernard Baruch by Margaret Coit, the Pulitzer Prize biographer. Mr. Baruch had authorized Miss Coit's book, but while she was still at work he took exception to her approach, and went at the job himself.

Holt published his autobiography at about the same time Miss Coit's book came out, and the two volumes certainly competed for sales. I need hardly remind you of the number of cookbooks on the market, or the different dictionaries and encyclopedias which can be purchased. Professional writers and the publishing industry are prepared for-perhaps I should say resigned to such coincidences. They emphasize the point that ideas are not subject to copyright, but only the specific language which a writer uses to embody his idea.

1 It even prevents use by other inventors who discover the same thing independently and without copying from the patent owner.

The "Special Privilege" Argument: Another argument advanced to dilute the author's hold on his properties is that copyright is merely a special privilege granted by Congress to authors. I realize that writers may be prejudiced in feeling that this is an argument which doesn't stand up very well, but it is as difficult for me to understand as if you told me that my children weren't mine.

We do create these books and stories and poems, and they would not exist without us. True, we create them because we hope other people will be moved by them, or amused, excited, interested, informed. They are not made for ourselves alone, but they are made by us.

The common law at present recognizes this right of creation. In Ferris v. Frohman the Supreme Court of Illinois said:

"At common law the author of a literary composition has an absolute property right in his production which he could not be deprived of so long as it remained unpublished, nor could he be compelled to publish it. This right of property exists at common law in all productions of literature, drama, music, art, and so on."

That decision was affirmed by the Supreme Court of the United States in 1912 after the passage of the copyright legislation which is now in effect, and it has been ratified by other decisions in other courts. As the Register's 1961 Report reminds us, these "exclusive rights under the common law" in unpublished works "continue with no limit even though the work is used commercially and widely disseminated." Under the proposed Copyright Revision Bill, the author will surrender his common law right. How vital, then, is his interest and how urgent his plea that his property rights should now be firmly protected by statute!

Our American society is founded on the principle that the one who creates something of value is entitled to enjoy the fruits of his labor. If that labor is in the public interest, surely the laborer is more than ever worthy of his hire.

The gist of arguments to dilute the property right of the author, his copyright, comes down to this: "We admit the work of the author is in the public interest. In fact, it is so important, so vital, so useful to the public interest that-it should be taken away from the author without payment to him! It is so valuable that the people who create it should not receive recompense for their labors!"

I believe the Senate will reject the obvious paradox of this absurd argument.

TERM OF COPYRIGHT-SECTION 302

The Revision Bill would establish a single term of copyright lasting for the author's life and 50 years after his death. This is the copyright term employed by most other countries. Copyright on works written "for hire" for employers would be 75 years from publication (or 100 years from creation, whichever is shorter). Existing copyrights would be extended for 20 years.

As the House Committee's Report indicates, there was "overwhelming support for a life-plus-50 system among all those concerned with copyright law revision" (p. 131). The Report analyses the advantages of a life-plus-50 copyright term (pp. 129-135); and in our statements to Sub-Committee #3 during the House hearings, we discussed the various considerations which justify its adoption. We will summarize the more important ones here and not repeat in full our earlier discussion. We would also like to refer to those earlier Statements on other points in the Bill that we will not discuss at length today.

Adequacy of Protection: The present 56-year period of protection has proved too brief. With an increasing lifespan, some authors are outliving their copyrights. Moreover, copyrights frequently expire shortly after an author's death, terminating the sole legacy he can leave for the support of his family. The widow and children of many an author have had the bitter experience of seeing his work published and performed, to the profit of others, without receiving any part of the income it produces.

Life-plus 50 years assures that no author would outlive his copyrights. It assures that an author will be compensated for uses of his work as long as he lives; and that he could provide his family with income, from his work, for a reasonable period after his death. Moreover, it provides more certain protection for the author and his family than would a longer term from publication. Even if the present term were extended to 75 years, copyrights on valuable works written early in an author's career would expire soon after his death, should he live out his life expectancy, leaving too brief a period of protection for his family.

As the Register has pointed out, a term of life plus 50 years would on the average add no more than 20 years to the present term (H. Rept., p. 131). For works published late in an author's life, it would add very few years. Moreover, it would substantially decrease the period or protection for works that are not published