of the association. I think there is justification for it. I think that it may be best to have a straight out and out provision as there is in the present law, that there is no copyright in a Government publication, whether it is originally created or acquired by gift.

You will have to take into account many things in order to arrive at your own decision. I am just giving you our reaction.

Mr. KASTENMEIER. Patent attorneys have been at odds with the U.S. Government for a long time. I don't know whether this is part of a holdover feeling in respect to this of some of the panel or not.

Mr. SCHULMAN. It may well be. Even in the copyright bar there is no unanimity on that subject. I think that the Congress must make a policy decision on whether that limitation should be in or out. That is one of the things that belongs in the Government as a matter of Government policy both in this country and abroad.

Mr. KASTEN MEIER. Mr. Schulman, I listened to you very attentively this morning, and even now you made reference to the necessity for protecting individual persons in a creative work; this then recurs throughout your entire presentation.

Especially earlier I thought you devoted quite a bit of time to it. I am wondering how you regard then the principle or concept of works for hire. Really this is a completely contrary to your general feeling of protecting the initial individual creator of a work.

Mr. SCHULMAN. Mr. Chairman, that may seem at first blush to be inconsistent. Of course I am oriented toward its authors. I grew up with the authors who are my friends. I was wondering whether Mr. Middleton, who is an old friend of mine, was here. I was counsel for the American Guild of Authors & Composers for almost 30 years. I drew the first Drama Guild contract. I went to school with Oscar Hammerstein. So you see my sympathies are oriented, both philosophically and personally, toward the man who puts the words on paper, that is the author. But let us take the practical situation. Who is the author of a motion picture? It is the product of a group of people. It is a combined effort of the man who wrote the original book, the man who wrote the screen treatment, the man who directed the picture.

One cannot say that any one person was the author of the ultimate product we call the picture.

They have had that same problem in France, where the author, the individual author, is king. Everything stems from the author. They have had to solve it by creating a mandatory agent for authors so as to have some entity with whom to deal. Take the publishing field. The publisher decides to have a series of textbooks on a subject. He speaks to his editors, he speaks to other people. They decide who should write the textbooks, whom they should invite to sit in, who should advise.

When the work is finally done, who is the author? Take an encyclopedia. Who is the author of an encyclopedia or dictionary? It is a joint effort, a composite effort. I think that, leaving aside philosophy, we have reached the point in this world where joint effort is as important in invention and in the creation of copyrighted works. There are many works that are joint in the sense that a group of people contributed to their creation.

Therefore, the recognition of this doctrine of works made for hire is an important element to keep the copyright system vital,

Mr. KASTEN MEIER. I appreciate the practical difficulties, although I gather there again may be cases obviously where the author does not create the entire motion picture but he does create his contribution for that motion picture. Sometimes it can be identified.

Mr. SCHULMAN. Yes; there I agree. For instance, if John Smith writes a song to be interpolated in a picture that is a separate contribution. Those questions arise but they are usually handled by contract.

In other words, the contract between the author and the picture companies will establish the status, whether it is a work made for hire or whether it is not. We have that all the time. I believe that the writing community and the motion picture and publishing industries are alive to that. This is the kind of thing that we must recognize. May I say this?

So many of the things that were spoken about here as being difficult are not really so because if you have a sound law, the rest is handled by contract. Publishers don't publish books to put in the cellar. Authors don't write books to hide in an attic.

And when it comes to utilizing their books, contracts are made. You heard Mr. Olin, of the Walt Disney Co., speak about the licenses. that company grants. These things are done by contract and the main thing is not to write contracts in the law because conditions may change next year. The principal purpose of a bill should be to lay down a basic statutory system which will function and allow the contesting forces, the users, the writers-because a writer and a user are very often in the same category-allow them to deal with each other.

In other words, you had a young man here testifying about his difficulty with BMI and ASCAP. He said when he had the Beatles in his establishment he charged more, but he resented BMI's charging more for the use of the music.

He never realized that BMI, as the licensing agent for its publishers, had the same right to recognize the fact that the night the Beatles were there, the music was more profitable.

You see, it is that kind of attitude that has unfortunately entered into the hearings, namely that just because it is easy to reach over a fence and grab someone's apples that it is your apple. It is not, it is the other man's apple. No matter how long your arm is or how long a fishing pole you may have, you just cannot take another man's apple that is growing in his orchard.

If we only can get down to an understanding of this kind of recognition of the rights of people who work and write and the people who invest their money, I think we will have little difficulty.

Mr. KASTEN MEIER. Mr. Schulman, I have just briefly two more questions. You mentioned $7 billion as the value of the industry's contribution to the gross national product. I assume that is $7 billion a year on the part of all industries that have anything to do with copyright?

Mr. SCHULMAN. That is right. That takes into account broadcasting of all kinds, it takes in publishing of all kinds, newspapers, magazines, it takes in the income of the music people, it takes in the income of authors, composers, everybody. The computation was made.

originally in a study by the Copyright Office. At that time the gross national product was $6 billion. I think that was in 1957.

It has now increased to $7 billion. It includes all of these, I think most of them. If we were to destroy the copyright system completely all this basic product for this entire industry would dry up. That is my firm conviction. That is proven by the experience in foreign

countries.

The countries that have the strongest copyright laws, in England, France, Germany, have been the most productive in the cultural field. Mr. KASTEN MEIER. My last question, Mr. Schulman, is on term. As I understood you, you said you preferred life plus 50 years but not because it is used by the Europeans. I am wondering why then, other than to conform with the Europeans, it should be life plus 50. Why not life plus 21 or life plus 75 or something else, or in perpetuity?

Mr. SCHULMAN. Perpetuity would violate the Constitution. It says for a limited time.

I think that life plus 50 has been considered to be a logical period. It takes account of a man's full lifetime and takes care of his widow and his immediate family. That is the basic concept. If the author owns his property during his lifetime and, as Bill Dillon, continues to be supported from it, he should be able, at least, to leave it to his widow and children just as you would or I would leave an inheritance if we bought bonds or put money in the savings bank. The reason for any terminal date on copyright goes back, in my opinion, to the old rule against perpetuities which originated in the 14th century.

There are limitations which exist in some States under which property cannot be tied up for more than one or two or three lives in being. It is my opinion the origin of the terminal date on copyright stems from the same concept of avoiding perpetuities and assuring the alienability of property.

Mr. KASTEN MEIER. Thank you, Mr. Schulman.

Mr. St. Onge?

Mr. ST. ONGE. Thank you, Mr. Chairman.

Mr. Chairman, after 18 days of hearings under your very capable leadership I am afraid that the forest and the trees have become confused. I am deeply grateful to the witness for his presentation which brought me back to the happy days of law school when at the end of a difficult course a capable professor would summarize the course and the glare of logic would shine through.

I think you are to be congratulated sir. It has been very, very helpful.

Mr. SCHULMAN. Thank you. I appreciate it.

Mr. KASTENMEIER. Mr. Hutchinson.

Mr. HUTCHINSON. I too want to thank you, Mr. Schulman, for your contribution. You have been very helpful.

I have just one question. It has reference to the statement that Mr. Toomey made in outlining the provisions of the resolution adopted in Miami last week and particularly with reference to item No. 11, protection of foreign works, both published and unpublished only on the basis of treaty or proclamation.

May I ask this? Does this mean something other than the doctrine of reciprocity?

Mr. SCHULMAN. No. It means just that. It means carrying the doctrine of reciprocity through to unpublished as well as published works, because today at common law unpublished works are protected, irrespective of the nationality of the author provided he is not an enemy alien. Published works under the statute are protected under the basis of reciprocity.

The present bill suggests that the system be continued and that all unpublished works continue to be protected as they now are without regard to reciprocity.

May I say this? I agree with that section for this reason, and I might as well be candid about it. I think that the nontreaty countries, the countries which have not as yet adhered to the Universal Copyright Convention, should be induced to adhere. There is no reason why they should not. I think that if we give them the privilege of protecting their works in unpublished form it is a loophole by which they feel they don't have to adhere to the treaty. I think it should be an incentive to the Iron Curtain countries which have not adheredsome do adhere to the Universal Copyright Convention, that in preparing a new statute we should say that those who don't give us protection for our works should not expect protection of any kind for their works.

I think that is good international relations. Some people don't agree with it but to me it seems a proper approach. I should like to see all countries, no matter whether we agree with them or not, in basic philosophy, recognize that there should be no disagreement on the protection of cultural works.

They also should be always protected.

Mr. HUTCHINSON. Thank you Mr. Schulman. That is all, Mr. Chairman.

Mr. KASTENMEIER. Again let me say we appreciate your being here this morning and the statement you have made, sir.

Mr. SCHULMAN. Thank you, sir. May I leave these articles with counsel? They do not have to go in the record. You may find them of interest. I wrote one for the New York Law School boys. I wrote the other as the result of a lecture delivered before the American Patent Law Association. I would like to leave them with the committee.

Mr. KASTENMEIER. Our next witness this morning, representing the National Association of Broadcasters, is Mr. Douglas A. Anello.

STATEMENT OF DOUGLAS A. ANELLO, GENERAL COUNSEL, NATIONAL ASSOCIATION OF BROADCASTERS

Mr. ANELLO. Thank you, Mr. Chairman.

Having worked with Mr. Schulman over the years, I know he is a difficult man to follow, but I will do my best.

My name is Douglas A. Anello, and I am general counsel of the National Association of Broadcasters, the trade association of the broadcasting industry. The membership of the association consists of 2,098 AM stations, 877 FM stations, 449 television stations, and all 4 major national networks. Additionally, I have served on the panel of consultants appointed by the Librarian of Congress to work

with the Register of Copyrights on the general revision of the copyright law, and I am a member of Committee 304 of the American Bar Association charged with the same task. The National Association of Broadcasters is grateful for this opportunity to present its view on H.R. 4347.

At the outset, I would like to express our appreciation to Mr. Kaminstein, Mr. Cary, Mr. Goldman, Miss Ringer, and the many others on the staff of the Register for their dedication to an exceedingly complicated and oftentimes frustrating project. They have worked long and diligently and deserve the highest praise for their attempts to reconcile the many varied viewpoints of those affected by copyright

matters.

The interest of broadcasters in copyright is primarily that of a user of copyrighted material rather than as a creator. At this point, may I interject the fact that we pay some $50 million a year of the $7 billion that Mr. Schulman referred to in music licensing fees alone. For this reason, all aspects of the proposed legislation are not of the same concern to us. Nevertheless, as one of the major users, we do have a substantial stake in many of the provisions of the legislation presently under consideration. Primarily, these are the sections that relate to sound recordings; those concerned with community antenna television operations; the question of Federal pre-emption and its ramifications on contracts to perform granted broadcasters by copyright owners; the duration of the term of copyright; and, finally, the provisions relating to damages for innocent infringement.

Before discussing these specific problems, however, I would like to advert briefly to two of the definitions contained in section 101; namely, sound recordings and phonorecords. Sound recordings are defined as works that result from the fixation of a series of sounds, whereas phonorecords are dealt with as material objects on which sounds are fixed. With all due respect to the Register, the distinction between the two is somewhat difficult to grasp. This would not be so important except for the fact that in his supplementary report, part VI, released May 1965, the Register states that sound recordings should be carefully distinguished from phonorecords (p. 49). Perhaps some of the problem lies in the fact that within the definition of sound recordings on page 3 of the bill, lines 34-38, we find reference to the term "or other phonorecords." Since phonorecords are included under both definitions, some clarification of the distinction between the two terms might be helpful.

Turning now to that section of the bill (sec. 102) that would afford copyright protection to sound recordings. As we understand it, the purpose of this provision is to protect record manufacturers against the practice commonly known as "dubbing"; that is, the duplication of the sounds fixed in a recording and then distributing the "dubbed" copy to the public. This practice is to be distinguished from the counterfeiting of records. Public Law 87-7723, enacted in 1962, made the willful receipt or transportation in interstate commerce of any counterfeit record a criminal offense. The NAB supported this legislation.

The "dubbing" problem differs from counterfeiting in that there is no "palming off," as it were, of a product as the original. Rather