Senator BURDICK. I see. I understand now.

This House bill then applies only to new copyrights?

Mr. BLISH. Correct, sir.

Senator FONG. On the matter of manufacturing requirements the House bill has allowed the printing of 1,500 and raised it to 2,000, is that correct?

Mr. ВLISH. That is correct.

Senator Fong. Do you feel that provision should not be in?

Mr. BLISH. We do not see why the entire Section 601 should be in there at all. It was originally inserted in the old law historically, largely as a matter of protecting the American printing industry from the rather lower wages and costs of the foreign printing industry. I believe that is still primarily its intent and as such it does not really seem to have any place in a copyright law. It is not really a matter of copyright at all. It is very cumbersome. To the best of my knowledge, no other copyright law in the world has such a provision. It is an anomolous clause. We think it should go.

Senator FONG. You say there is no other copyright law in the world that has this provision?

Mr. BLISH. I do not-I believe that to be the case, sir.

Senator FONG. Thank you.

(The prepared statement of Mr. Blish on behalf of the Science Fiction Writers of America follows:)

STATEMENT OF JAMES BLISH, VICE PRESIDENT, SCIENCE FICTION WRITERS OF AMERICA

Mr. Chairman and members of the Committee:

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. The name of our group is not intended to exclude writers of nationalities other than Americanwe have some important foreign members-but only to imply that our primary interest is in works published in the United States.

We are writers of novels, short stories, screen plays, television plays, and works in most other forms of expression. Though we specialize in the production of works which speculate upon the future impact of scientific discovery on human life and customs, we write other kinds of copy as well, including fact articles about the sciences. Our problems as writers, and our interests, do not differ except marginally from those of other free-lance writers.

My own qualifications for appearing before you may be briefly stated. I am the author of 26 books and about 175 other literary productions, including short stories, stage dramas, poetry, screen plays, television scripts, and various kinds of non-fiction as well, much of which is currently in print in some 18 countries. I shall be glad to submit a more detailed summary of my background if the Committee wishes it.

On behalf of the Science Fiction Writers of America, I wish to say that we are heartily in favor of almost all of the provisions of S. 597 and H.R. 4347. It seems to us that these Bills are largely fair to all the interests affected by them, and reflect much credit upon everyone who helped in their drafting. We hope that this joint Bill will be reported out and passed well in advance of its proposed effective date of January 1, 1968. As the Report of the House Judiciary Committee (no. 2237) notes (p. 31), revision of the existing copyright law has been hanging fire since 1955; and in view of the admirable new version prepared by the House Committee, the Register of Copyright and contributing witneses, we hope that enactment will not be further postponed.

At the risk of inviting just such a delay, however, we are impelled to enter firm objections to one feature of the Bill. It seems to us that Section 601, called by precedent the "manufacturing clause," has no place in a copyright statute. This section, like its predecessors, is designed solely to protect the financial

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interests of printers, and so is remote from the real purpose and intent of a copyright statute. The House Committee admits explicitly that this is the sole intention of the clause, and furthermore that it has no place in principle in a copyright statute (Report, pp. 166-7).

We agree with the House Committee. We can see no justification for shadowing the copyrights of authors and other such proprietors, whose interest in literary property is real and primary, solely for the economic advantage of workmen who only handle literary material incidentally—that is, by changing it from one set of marks on paper to another set of marks on paper-and who have nothing to do with the act of creation which gives literary property its unique value to society, the value Madison proposed to protect through the patent and copyright amendment to the Constitution.

Insofar as we are able to anticipate the practical impact of Section 601, it would permit a U.S. publisher to pirate a work with near-impunity if he can prove that the manufacturing requirements have been violated on the work infringed-that is, that more than 2,000 copies of a foreign-produced English-language edition of the work have been imported. All the infringer would be required to do in addition would be to prove that his own edition of the work had been manufactured in the United States within the definition of "manufacturing" laid down in the Bill. The copyright owner's only recourse thereafter would be to publish and register a new edition of the work in the United States-by which time, in the usual course of events, the infringing edition might well have already saturated the market for the work.

This is not merely a presumption. It has already happened under the manufacturing clause of the existing law. One such instance involved one of our own members (of the Science Fiction Writers of America), Prof. J. R. R. Tolkein of Oxford (England). Because of a publisher's violation of the import requirements of the existing law, Prof. Tolkein's life work-an intensely serious (and, as it turned out, highly popular) three-volume novel called THE LORD OF THE RING was thrown into the public domain in the United States, and was subsequently published by an American reprint house. This house has since announced that it has voluntarily made full recompense of royalties to Prof. Tolkein for its edition, and so that particular inequity can be presumed to be resolved; but the fact remains that Prof. Tolkein's huge property, one of enormous value and one representing a lifetime of study and effort, is permanently in the public domain in the United States and may legally be published here without compensation to him by anyone who chooses to do so-all because more than 1,500 copies of the British edition of his work were imported, a matter over which the author had no control at all.

This is grossly unfair, and it could-and almost certainly will happen again to other authors under the provisions of the present Bill. Section 601 raises the import limit on copies of foreign English-language editions to 2,000; but we fail to see that this additional 500-copy leeway would protect the author against the inattention or indifference of an importer, or against other factors outside the author's control. We certainly fail to see why an author shoud be at risk of losing either nearly his whole equity in his work (as in Prof. Tolkein's case) or any part of it, in support of the profits of those who might otherwise have set the type on it. The printers could not have created the work, and should have no statutory interest in the resulting literary property. Indeed, the present Bill recognizes this in Section 101 by moving statutory protection all the way back to the creation of the work; publication (at which point the printers enter the picture) would no longer be a pre-requisite of copyright protection, except under this one anomalus clause.

I have cited as an example a case dealing with an English national because the case became something of a cause celebre in 1966 (after the House hearings). It involved a work which was (and is) a best-seller, and created much controversy outside the publishing industry proper (e.g., in such general magazines as The Saturday Review). It should be noted, however, that the author who would continue to be most hurt by this anomalous provision would be the American author, particularly the one who finds that he cannot sell a work to a U.S. publisher, but but can find a foreign publisher for it. This means that until or unless he does find a U.S. publisher, he stands constantly at risk of losing the literary property involved to the public domain.

Under the ad interim provision of the existing law this loss becomes mandatory after five years if the work has not been published in the United States; but it can also happen immediately, if the import restriction is violated. Under the new Bill, it could still happen immediately, for the same reason.

Several members of the Science Fiction Writers of America have found themselves in this Damocletian position; I have myself, not once but twice. In the first instance, I published in England a novel about two-thirds of which had appeared in an American magazine, and a third of which was new. Through ignorance of the ad interim provisions of the existing law, I failed to register this work in the United States within six months of its British publication, so that the new one-third of it fell into the public domain. When it was finally reprinted here, I was forced to add substantial additional new material in order to claim a U.S. copyright on this part of the book. Obviously the ignorance involved was my fault, not that of the law; but I do not see the justice of having been at such a risk in the first place.

In the second instance, I have recently published in England a long historical novel which because of its specialized subject matter seems to be of no immediate interest to American publishers. Hence unless the revision of the law now being considered here becomes effective next year, this book-which took me four years to write-will go into the public domain in its entirety. This example makes it plain that the risks involved are not peculiar to science fiction.

Whatever the effect of the manufacturing clause upon printers, from the writer's point of view it is an open invitation to piracy. In addition, it proposes to penalize the author for lawful acts committed by third parties (i.e., importers) of which the writer may be innocent even by omission. We do not agree that any statute should require than one man's property (a work) must be taken from him because another man, unbeknownst to him, has legally vended a material object (a book) made from that property. In this light, Section 601 of the present Bill runs entirely counter to Section 202, which explicitly codifies and sanctions a distinction between the literary property and the material object. This conflict, if retained and enacted into law, gives promise of much useless and expensive litigation in itself-exactly the outcome which Section 202 was drafted to avoid.

We recommend, therefore, that Section 601 of the present Bill be stricken in its entirety, as being inappropriate to both the scope and the spirit of the Bill, and likely to produce controversies and inequities just as grave as those which have been generated by section 16 of the existing law; and that, instead, the new Bill repeal section 16 of the existing law outright.

We do, however, favor retention of Section 7 of the Bill, which falls under the heading of "Transitional and Supplementary Provisions" and deals with the fate of subsisting ad interim copyrights. This provision rectifies one injustice of the existing statute embodied in its manufacturing clause. We see no reason why, having done away with this particular source of inequity stemming from the manufacturing requirements, the Congress should re-enact all the other such provisions.

Another of the transitional provisions of the new Bill is rather less attractive: the section which retains the renewal requirement for works still in their first term of copyright when the new statute goes into effect. I speak with some personal feeling here, because it happens that my earliest published work will have been in print just 28 years when the new law is scheduled to become effective. 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, which is both a considerable expense and an even more considerable nuisance.

More generally, this means that under the new law, any writer who has reached the age of 30 in 1967 can expect to spend the rest of his life without benefiting from the new law's dropping of the renewal requirement (based on a life expectancy of 58 years for those born in 1937, as calculated by the Metropolitan Life Insurance Company). Since most writers do not begin to publish until at least the age of 20, it can be seen that the renewal requirement under the new statute as drafted will remain in force for the remaining lifetimes of virtually every American writer now alive, except for that small segment which first began publishing just ten years ago.

In testifying to this point before the House Committee, a number of witnesses, including the Register of Copyright, assumed that nearly every property worth renewing is in fact renewed, but there have been some notable exceptions. While we must reluctantly agree that the author who cares about his property can reasonably be required to keep an eye on the renewal dates, his heirs may not be so attentive. Only a few years ago, for instance, the estate of Edgar Rice Burroughs-author of much science fiction as well as of the famous "Tarzan" books-forgot to renew not just one book but his entire output, thus throwing an accumulated property worth millions of dollars into the public domain and creating a huge windfall for

several publishers who had done nothing to earn it but keep an eye on what year it was. Thus we cannot assume that this provision is relatively minor in its potential, as on first glance it might seem to be; and in view of the fact that it affects most living writers, to call such an arrangement "transitional" rather stretches what one usually means by that word. We propose instead that all copyrights subsisting in their first term at the effective date of the new law be automatically renewed for their extended second term, as their first 28-year term ends. This principle is already embodied in the Bill in Section 7 for subsisting ad interim copyrights.

We wish to emphasize that the Science Fiction Writers of America approve of most of the Bill's provisions. We are aware, in addition, that it may be difficult to eliminate the objectionable Sections, Section 601 in particular. Should this prove to be the case, we would rather see the new Bill enacted into law as it stands than be forced to operate any longer under the present statute. Even with its deficiencies, the Bill is a great improvement upon what we have now, and we ask your help in obtaining its passage.

This concludes our formal presentation. We wish to thank the Committee for the privilege of appearing before it. If there are any questions, I shall be pleased to do my best to answer them.

Senator MCCLELLAN. Thank you, Mr. Blish.

Mr. BRENNAN. The next witnesses appear on behalf of the American Textbook Publishers Institute and American Book Publishers Council.

STATEMENTS OF PROF. JESSE W. MARKHAM, HORACE S. MANGES, LEE C. DEIGHTON, AND BELLA L. LINDEN ON BEHALF OF THE AMERICAN TEXTBOOK PUBLISHERS INSTITUTE AND AMERICAN BOOK PUBLISHERS COUNCIL, INC.

Mr. DEIGHTON. I am Lee Deighton, chairman of the MacMillan Co. and chairman of the Joint Copyright Committee of the American Textbook Publishers Institute and the American Book Publishers Council.

Mr. Markham is appearing as our first witness in this hearing on behalf of our organizations.

Senator MCCLELLAN. All right, Mr. Deighton.

Will you identify the others who are appearing with you here?

Mr. DEIGHTON. On my left Mrs. Bella Linden, copyright counsel for the American Textbook Publishers Institute. On her left Mr. Horace Manges, counsel for the American Book Publishers Council. Senator MCCLELLAN. Are you submitting a joint statement for all these, or do you have four separate statements?

Mr. DEIGHTON. We have four separate statements, sir.
Senator MCCLELLAN. We shall start with you, Mr. Markham.
Shall we insert your statement in the record and you highlight it?
Professor MARKHAM. If you will, please.

Senator MCCLELLAN. That will be done.

You may proceed.

Professor MARKHAM. Well, I will, I think, follow the procedure if it is all right with you, of the authors who preceded us and I may read portions of the statement, but in the interest of time, I shall try to hold it down to as few minutes as possible.

I think I should state for the committee that what I say does not go to specific provisions of the copyright law. As Mr. Deighton has said, I appear here on behalf of the membership of the American Book Publishers Council and the American Textbook Institute. I

appear here for the reason that I acted as coordinator and economic adviser to both of these organizations in a comprehensive study of the present and future effects of information-transfer technology on book publishing. The findings of these studies appear in an economic-media study of publishing, copies of which have been made available to the committee. Even in my written statement I do not go into all of the findings of those studies. As I say, I think you have full copies of "An Economic-Media Study of Book Publishing."

Senator MCCLELLAN. They have been filed with the committee. Professor MARKHAM. I believe that is correct, yes, sir.

Senator MCCLELLAN. Then they may be made exhibits for reference, Mr. Counsel. You may appropriately designate them as exhibits for reference.

(The document referred to was made an exhibit and will be found in the files of the subcommittee.)

Professor MARKHAM. I will begin by reading a little from the bottom of page 2. I should state that most of my comments do go to one of the issues raised by Mr. Wouk in his presentation.

The studies that I had something to do with were mainly involved with the new technologies of reprography, copying, and the computer. In the simplest possible terms, the economic function of copyright is the incentive it provides those with the requisite ability to create intellectual property and the incentive it provides publishers, recording firms, and similar enterprises to package and distribute these intellection creations.

I think this statement puts the economic case for copyright much to simply so I would like to elaborate on this a bit.

I am now summarizing what appears on pages 2 and 3. I do not want to imply from this statement that the creation of all intellectual property does depend on the existence of copyright protection. I think the history of publications would clearly demonstrate it does not. However, I would suggest that the wide distribution of many of the creations, not prompted by copyright, was protected by copyright. Also, I think many of us who are authors and who do not visibly give the impression of creating because of the incentives of copyright or because of financial reward, do create because we are interested in publication. Publication, in turn, is the incentive which is provided by copyright. So indirectly, the copyright provides an incentive for some of these creations.

In the area of textbook publications, I would argue that both publisher and author are very strongly motivated by the existence of copyright protection, for the very simple reason that they are motivated by the prospects of financial reward, and the financial reward of both author and publisher is greatly dependent upon copyright.

Now, in sum, then, from an economic point of view, while all intellectual creations do not come about because of copyright, it is clear that copyright plays a very important role in stimulating creative activities and in the packaging publication and wide distribution of the results that follow from it.

I have asserted that copyright protection seems to be essential for the publication and distribution of scholarly work, and I would like to spell this out a little bit more in the way of demonstrating why it is so.