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stations, satellites and other means. Hence it limited this exemption to broadcasts within a hundred-mile radius of the transmitter. We urge that this limitation be preserved in the Bill.
Section 112(2) of the Bill permits non-profit, open-circuit broadcasting stations to make recordings of any program, subject to limitations on the number and period of use. This recording right, which non-profit public (or other) television stations do not now have, greatly increases the audience reached by their use of musical and non-dramatic literary works on broadcasts which are exempt from copyright under section 110(2). Recordings of these exempt broadcasts can be sent from station to station, thereby disseminating the author's work to vastly greater audiences than are reached when a broadcast is done "live."
The limitations on recordings provide at least some safeguard for authors and should be preserved in the Bill.
Except for the foregoing exemptions, the Bill grants the authors of musical and non-dramatic literary works the right to be compensated when their work is performed by non-profit, television and radio broadcasters (a right which the present law has always granted for dramatic and dramatico-musical works). As the House Committee concluded, authors are entitled to this right. The use of a book, poem or composition on an open-circuit broadcast has the same consequences whether the station operates for profit, or not. In either case it reaches a wide audience. In either case the author's work has value to him, the public and the broadcasterit is program material for which an educational station would pay if it were written to order. In either case, the broadcast can diminish the value of the author's work in other media. The labels "educational" or "non-profit" do not justify depriving the author of the right to be paid for use of his work in this public medium. Indeed, as the Carnegie Commission on Educational Television points out, the term "public television" is really more appropriate for the medium. A performance of a symphony by Aaron Copland, or the reading of poetry by Marianne Moore, is as much educational when broadcast by a commercial station that pays for the right, as it is when broadcast by a "non-profit" station that does not; and as much entertainment to the audience of the non-profit station as to that of the commercial broadcaster.
As a stimulus to the creative arts, an exception that permits such unauthorized uses of non-dramatic, literary and musical works is completely self-defeating. Public broadcasting of classical music, poetry and similar works is one of the few means by which they are communicated; and therefore one of the few possible sources of compensation to their authors. These artists can least afford to lose income from these uses because so few others are available to them. A "for profit" exception would, therefore, pose the paradox that the expansion of "non-profit" public broadcasting will increase the uncompensated uses of many authors' worksand also diminish their earnings from other sources.
To deny an author compensation for the use of his liteary or musical works on a public broadcast seems to us patently unfair. These stations pay salaries to their staffs and pay for all of their other services and facilities, which are used to transmit the author's work. Certainly he is equally entitled to reasonable compensation for the contribution he makes to this medium. We think that this is particularly important to recognize at a time when serious proposals have been made to provide a very substantial increase in funds for the use of public broadcasting and Federal monies being appropriated for that purpose.
The fear that non-profit broadcasters would be overcharged by authors and composers is unwarranted. Royalties will, as they do in other media, find a level appropriate to the nature of the use. Thousands of copyrighted works compete in the marketplace; there are thousands upon thousands more available in the public domain. Arrangements for the licensing of uses can be developed, as they have been elsewhere. And, the fact that some authors may not authorize the use of a work at a particular time is hardly a reason for depriving them of their rights in their literary property. An author may refuse to permit his work to be used in one medium to protect valuable commercial rights in other media. This is not an heinous offense. Nor does it diminish to any meaningful extent the inexhaustible reservoir of available copyrighted, and public domain, works, which could be used.
The Manufacturing Clause: Section 601.-The Manufacturing Clause (sec. 16 of the present act) imposes upon American authors the severe penalty of loss of copyright as a means of enforcing a tariff-restriction on the importation of copies of their works from abroad. For the reasons noted in our statement to the House Committee, the manufacturing clause is utterly inequitable. Moreover, it discriminates against American authors of books; it does not impose these restrictions or penalties on foreign authors, nor on American authors of other types of works.
The Revision Bill makes substantial modifications in the present clause which eliminate most of these inequities. We strongly urge your Committee to accept section 601 in its present form and to reject any proposals to reintroduce any of the onerous provisions of the present clause.
Other Exceptions to Copyright Protection: We have addressed ourselves primarily to those exceptions to copyright which primarily affect writers and dramatists, whose works are first disseminated by publication or performance of the stage. This does not mean we are unconcerned or unmindful of the need for correcting certain basic inequities in the present law which affect our fellow authors, especially composers.
We only comment on these briefly because they will be discussed by representatives of other authors' and publishers' organizations.
The Juke-Box Exemption: We urge that the Revision Bill adopt a solution to the "Juke-Box" exemption (Sec. 1 (e)) which will permit the composers of music to obtain equitable compensation for the use of their music in this commercial and highly profitable medium of communication. We believe that the organizations representing American composers have made every effort to work out a reasonable solution to this problem; and we earnestly hope that Sec. 116 of the Revision Bill will be drawn in a manner that allows them to obtain reasonable payment for their works.
The Compulsory License Clause: Section 115 of the Bill provides for an increase in the statutory 2¢ fee payable to composers for recordings of their works made under the compulsory license clause. This is a maximum fee-the composer cannot demand more; and the recording company is free to bargain for less, as it is (and does) today. The increase proposed by the Bill is modest and represents, in our view, the very minimum to which composers are entitled under this clause.
Community Antennae Television and Other Secondary Transmissions: Section 111.-We believe that any clause dealing with the problem of CATV must take account of Judge Herland's realistic appraisal of the nature of the CATV industry and its operations. He noted that CATV companies are "large scale commercial enterprises, advertising and promoting television programs and making profit out of the exhibition of television programs." Their function is not "simply that of passive 'antennaes' used only to receive telecasts." As he noted, the function they perform is "substantially identical to that of a network affiliated station." For the reasons noted in the statement we submitted to your Committee during its hearings last year, we believe that the provisions of Sec. 111 would serve to prevent creators of copyrighted works from negotiating for reasonable fees for the use of their works by CATV systems. We believe that more equitable and workable provisions could be drawn.
Termination of Transfers and Licenses Granted by an Author: Section 203.—The Revision Bill places a 35-year time limit on long-term transfers of an author's rights in his work. The termination clause is one of the most i nportant provisions in the Bill. Like the present renewal clause, its purpose is to safeguard the author against being compelled to transfer his rights for the entire copyright term. Often, these transfers deprive him, and his family, of income from uses of a work during the latter part of its copyright. (The present copyright renewal clause automatically terminates any transfer of rights at the end of the first copyright term, where the author has died before the renewal year. This permits his heirs to make new dispositions of the work during the second 28 years of copyright.) As the House Report notes (p. 119) this clause represents a compromise between those concerned with the problem. The Section appears to have been accepted by all interested groups. However, should there be any opposition to it, we respectfully urge your Committee to consider our views on the problem set forth in our statement to the House Committee.
Statutory Damages: Section 504 (c)(2).—The Revision Bill adopts a $20,000 maximum for statutory damages awarded by the Court in the case of a wilful infringement. There is no limit in the present statute. The remedy of statutory damages, fixed in such amount "as the Court considers just" is an essential remedy for the protection of copyrighted works against wilful infringement. Often actual damages are difficult to ascertain, although the evidence makes it clear that the copyright owner has been seriously injured. It is unquestioned that the District Courts have not abused their discretion in awarding statutory damages, and that the Circuit Courts of Appeal are available to correct any errors of judgment by the Trial Judge. We believe that the imposition of a fixed ceiling may encourage infringements. Since the present Law has functioned fairly without any limitation in such cases, we urge that the maximum be deleted from section 504(c) (2).
We thank the Committee for the opportunity of presenting this statement of our views on the Revision Bill. We respectfully and earnestly urge that the basic reforms which it would make in the United States Copyright Law be enacted. These reforms meet the legitimate needs of authors, of publishers and other copyright users, and of the educational and scientific communities. They would preserve the author's fundamental rights in his work. And, they would more effectively serve the public interest in copyright-which is to stimulate progress in literature and the arts-by securing sound copyright protection for authors.
Mr. BRENNAN. Our next witness is, Mr. James Blish, vice president, Science Fiction Writers.
STATEMENT OF JAMES BLISH, VICE PRESIDENT, SCIENCE FICTION WRITERS OF AMERICA
Senator MCCLELLAN. Mr. Blish, you may identify yourself for the record, if you would, please, sir.
Mr. BLISH. My name is James Blish. I am vice president of the Science Fiction Writers of America, which is the professional organization of most of the writers of science fiction in the English language, numbering about 270 members. I have been a writer for some 20 years, I have 26 books to my credit and about 175 other kinds of productions. I would be happy to submit a detailed statement of my personal record to the subcommittee if it wishes.
Senator MCCLELLAN. I note you have a prepared statement. Would you like it to be printed in the record in full?
Mr. BLISH. Yes sir.
Senator MCCLELLAN. Without objection, that may be done.
Mr. BLISH. Actually, I have only two further comments, aside from saying that we are substantially in agreement with our colleagues in the Authors League. I certainly am, as a member of the Authors League.
We do have two points wherein we think the bill should be changed. Both of them are covered in my statement.
Senator MCCLELLAN. On what page of your statement?
Mr. BLISH. Beginning on page 2 we discuss section 601, called the manufacturing clause, mentioned by preceding witnesses. We feel that this ought to come out. My statement does not say what I shall say here, that the bill as it is written now provides that the importation of copies printed in a foreign country shall be made a matter of contract between the importer and the writer, and that if the importer violates this clause he is also in violation of the contract and in that case the author does not lose his copyright. This affords some protection which I did not take into sufficient account in my statement, but I would like to add that this still seems to us to be a very cumbersome procedure and protection, the protection being afforded here is still largely aimed at printers rather than at writers. We can see no particular reason why this clause has to be in the bill at all. We understand that this is a matter that has been battled out in the House hearings, that we unhappily did not attend because we were not then organized to do so. But we do think that the matter ought to be considered.
My statement points out that this restriction in the manufacturing clause applies to American authors exclusively; that is, American nationals whose work is first published in the English language in a
foreign country. I have cited in my statement an example of a man who was hurt under the present manufacturing clause, even though he is an English writer, Prof. J. R. R. Tolkein. But it is essentially the American writer that is hurt by this clause. We think it is an anomalous clause and ought to come out.
The second point which is covered in my statement, beginning on page 7, the last incomplete paragraph, this is the section of the bill which deals with copyrights which are still in their first term at the time that the new law goes into effect. I shall read a little portion of my statement here, because I believe I can do it with great personal feeling.
It so happens that my earliest published work will have been in print just 28 years when the new law is scheduled to begin. This means that for every year of the next 28 years, I will be busily filing renewal applications for my past published works, more than 200 of them. This is at considerable expense and an even more considerable nuisance.
More generally, this means that under the new law, only a very small segment of living writers are going to benefit from the abolishment of the renewal privilege which-renewal requirement, I should say which the new law will put into effect. It seems to us it would be more sensible and it would be fairly quickly done if renewal under the new law were simply made automatic.
Under those circumstances a work of mine, let us say, on which I would have to file a renewal application next year would simply automatically be renewed and I would not have to pay any attention to it. I do not particularly object to paying attention, but on the other hand, it has happened in the past, and I am sure it will happen in the future, that authors have lost very considerable properties, either through their own inattention or, more seriously, through the inattention of their heirs.
I have cited in my statement the peculiar case of the heirs of Edgar Rice Burroughs.
Senator MCCLELLAN. At the end of 28 years, how often do you have to file for renewal or extension?
Mr. BLISH. Just once, sir. That gives you another 28 years, at which time the work goes into public domain.
Senator MCCLELLAN. Is that very expensive?
Mr. ВLISH. It is $4 a shot, sir.
Senator MCCLELLAN. Would you repeat that?
Mr. BLISH. $4 per renewal at the present time. The problem really is not the $4. In my own case, for instance, the total cost over 28 years would be about $800. It is simply that if you have something like 200 works in print you are put to the task of maintaining a rather extensive calendar, and you have only a given calendar year in which you can file a renewal application.
Senator MCCLELLAN. I am trying to rationalize. If it is not expensive why the serious objection? The second case is, if the renewal is granted pretty much as a matter of course, there is no real issue; what is the necessity for making the period so short, 28 years? I believe the bill before us makes it the lifetime of the author plus 50 years, does it not?
Mr. BLISH. Yes, sir, it does.
Senator MCCLELLAN. That certainly should be adequate.
Mr. BLISH. That is more than adequate.
We are highly in favor of that. I simply wanted to point out, sir, that under the new law all copyrights which are presently in their first term of 28 years would have to be renewed. That part of the renewal
Senator MCCLELLAN. It seems to me that if a larger fee is charged than $4 for a renewal the cost to the Government is far more than $4; it is going to be granted as a matter of course. I do not know-did you ever know of one being rejected?
Mr. BLISH. No, sir; I do not believe that has ever happened.
Senator MCCLELLAN. Well, it seems to me that the whole requirement is more or less a nuisance to the author and an expense to the Government.
Mr. BLISH. I believe the new bill recognizes that fact, sir, in that it actually abolishes the renewal provision.
Senator MCCLELLAN. It would make all authors happy, then, if we adopt the new bill and put it into law?
Mr. BLISH. I think except, sir, for this transitional provision, which requires that copyrights now in their first term must still be renewed. We can see no reason why, within the philosophy of this bill, this should not be made completely automatic. Nobody else is going to be required to renew.
Senator FONG. In other words, what you are saying is this: If we pass this bill every copyright will extend for life plus 50 years.
Mr. BLISH. From the date of its filing, sir, without the necessity of renewal.
Senator MCCLELLAN. Anything further?
Mr. BLISH. No, sir. We would like to thank the committee for this privilege.
Senator MCCLELLAN. You are very welcome. We are glad to hear
Senator Burdick, do you have any questions?
Senator BURDICK. Yes; I am perhaps remiss here in not having read the House section very carefully. I was under the impression that when this bill became law, it would extend the existing copyright and extend it for life plus 50 years. Is that correct?
Mr. BLISH. This is correct. But the provision is that all copyrights now in their first term must be renewed and that the second period of copyright then becomes sufficiently long to make the total period of copyright a great deal longer than the original 56 years. I do not think it goes to life plus 50 years, no, sir. I cannot now remember exactly what the provision is. But I think the second term of copyright would then be extended by 19 years.
Senator BURDICK. We are not talking about the present law, we are talking about this bill. If this bill goes into effect, do not all copyrights extend for the life of the author plus 50 years?
Mr. BLISH. No, Senator, that is not the case.
Senator BURDICK. Would you like to have that apply?
Mr. BLISH. Yes, sir. I think existing copyrights which are in their first term should be so extended automatically.