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All these percentages somehow don't fit. What I said before, Mr. Chairman, about absorbability applies at all levels. For instance there are retailers who will often absorb higher unit prices because of greater volume. If for instance, they feel that they can sell a larger number they will accept or apply a smaller margin. Or a manufacturer may very well absorb a higher price for an input by making certain changes in production.
As I said, for instance there was one chart about break-even pointsI believe it is exhibit 10—that shows the proportion of records that were losers, that failed to earn a profit.
For those who don't have it before them, for the 45 r.p.m. records, 74 percent of those produced now lose money, or did lose money, in the year these data were taken, at the 2-cent rate. If you
had raised it to the 3-cent rate, 76 percent would have been losers-only 2 percent more.
In other words, your marginal costs would shift so that 76 percent of the records released would lose money if you went to 3 cents. If you stayed at 2 cents, 74 percent would be losers. If you went to LP's it would also be a small difference. For classical LP's, 87 percent lose money at the 2-cent rate and 88 percent at the 3-cent rate. The higher royalty might increase risk bearing a little and recording companies might decide not to produce a few of the more risky compositions. You may say, is society harmed by this? It is possible that “My Fair Lady" might be turned down as a musical score for a Broadway show or for a recording, but I think marketing judgments are inclined to bring success to good compositions pretty quickly.
It is a very marginal item that is likely to be left out. Now I am not sure that one can put on the scale of economic values the cost of a few less compositions. Only a very small number might be dropped in order to absorb this royality of 3 cents per record as compared with 2 cents. There are a whole variety of ways it can be absorbed at the retailer's level, at the manufacturer's level, at the distributor's levels.
So this idea of taking 24 cents and adding on the margin up and down the line and ending with 53 cents is an economic dream. That is not the way life works in our economy.
Mr. KASTENMEIER. Mr. St. Onge?
Mr. POFF. I believe you pre-empted my questions, Mr. Nathan. I have no questions.
Mr. KASTENMEIER. Thank you very much.
Mr. KASTENMEIER. The next witness is the Authors League of America, represented by Mr. Irwin Karp. We are very pleased to have Mr. Karp return to the committee. We had an earlier session with him. We know the sort of contribution he can make. We are happy to have him back.
You may proceed, Mr. Karp.
STATEMENT OF IRWIN KARP, REPRESENTING THE AUTHORS
LEAGUE OF AMERICA, INC.
Mr. Karp. Mr. Chairman, I would ask permission to submit my statement, because I don't propose to read all of it. I would like to discuss only two issues, copyright for life plus 50 years and certain exceptions to the exclusive right to make copies. I beg your indulgence to do this, because these are matters of vital concern to authors. Therefore, we felt it was essential that we state our position on certain aspects of these problems that we did not cover in our original statement or did not cover in our original presentation.
The Register's proposal for a new copyright term involves really two sets of issues. There is, of course, a tendency to confuse them. The first is whether the term should be extended, and the second is whether the term should be measured from the author's death, under a "life-plus system,” rather than from publication, and, collaterally, whether there should be one or two terms.
The principal opposition to life plus 50 years involves the second set of issues. Most of those who oppose it as a system agree that the copyright term should be extended. Some have supported a single term of 75 years from publication; others have indicated they would not oppose two terms totaling 76 years from publication. Insofar as length is concerned, life plus 50 years does not differ significantly from either of these alternatives. It would give a longer period of protection for works written early in an author's career, but a shorter term for work written at or near his death and, actually, a much shorter term for work published posthumously.
For example, on three of the major works of Ernest Hemingway, life plus 50 years today gives Mrs. Hemingway and the Hemingway children a grand total of 26 years more protection in England, France, and the rest of the world than they get here. Twenty-six years is added to the term of life and 50. "On "For Whom the Bell Tolls" they will reap a tremendous windfall of 15 more years. On “The Old Man and the Sea," all that life and 50 would add to our present term of copyright is 3 years. On the other hand, 75 years from publication would add a significantly longer period—I haven't done the computation, but many times more than 3 years on the last of the Hemingway works.
Now why do we support life and 50 years rather than 75 years from publication? We do it for two reasons. First, it is a more certain method of assuring adequate protection for authors, and second because it is essential, if we are to modernize and unify our copyright system. I won't belabor the second point. Mr. Schulman and other witnesses and the Copyright Office have discussed the technical advantages and disadvantages of life and 50. Let me speak only to the problem of assuring adequate protection.
Life plus 50 years assures that no author would outlive his copyright, as some do now. Upton Sinclair, Somerset Maugham, E. M. Forster, P. G. Wodehouse, Frank Swinnerton-there are many such authors today—have outlived copyright on their early works. Some opponents say they could not under a term of 75 years from publication, and I guess in most instances this would be true, although occasionally
a Bertrand Russell comes along who may outlive even 75 years from publication.
The more important reason for life and 50 is that, even under a 75-year term from publication, copyrights on valuable works written early in an author's career would expire too soon after his death if he lived to an old age. A good example is “The Jungle," written by Upton Sinclair and copyrighted in 1926. Mr. Sinclair is still alive. On his death, with the 75-year system, there would be only 25 years more protection for his wife, if she survives him, and his children. Under life and 50, there would be 50 years. The advantage is this certainty, 50 years after death-which in many cases will be much shorter than the advantage obtained under another system-as an overall approach gives certainty of protection.
Opponents of life plus 50 years claim that today the copyright notice in a work, or the absence of a notice, tells you that the copyright has expired and that you are free to use the work. Under a life-plus-50year system, they claim, it is much more inconvenient. This, I think, is probably the nub of the controversy.
Is the public so badly injured, or are teachers and researchers and librarians put to tremendous inconvenience and expense, under a lifeplus-50 system, because they can't quickly tell whether a work is in copyright? I think this argument ignores difficulties under the present system, and it ignores the simplicity of life plus 50. On page 3 of our statement, I give you some examples, only two or three of which I will read.
Today, you cannot determine the copyright status of many works from a copyright notice. Either there is no notice, or the date is omitted, or the date may be uninformative—all perfectly proper under our present law. And it would be the situation under the new law, because you can't require notice or date in many situations.
Music is one example. The primary method of disseminating music is by recording. No recording contains notice of the copyright of the compositions it embodies. It could not under compulsory license.
The notice for prints, maps, photographs, drawings, and other graphic works is not required to contain a date. You can't tell by looking at a volume of prints when they were copyrighted.
Any book published abroad and imported without the author's consent need not bear a copyright notice. There are thousands of books, as we know them, bound, printed books, in library collections, and even in bookstores, that were never published in the copyright sense, because they were only circulated privately. They don't contain a notice. They don't have to. They are protected under the common law.
The copyright notice in the revised edition of a book, or compilation, or other derivative work published this year only has to say “Copyrighted 1965." Yet much of the contents may be already in the public domain or protected by an old copyright. You can't tell from the notice what rights you have in that work.
In these instances copyright status can only be determined by searching the Copyright Office records, and even that is not conclusive. It is, therefore, not surprising that commercial users seldom rely on the notice.
Under life and 50 years, you only need to know the date of an author's death to determine when the copyrights on all of his works expire. The revision bill provides a simple system of presumptions to protect users in those instances when the date cannot be readily obtained. The life-plus system of copyright is used by every country in the world with a copyright law except us and the Philippines. It has been used for decades. There is no indication that it presents any difficulities or is more detrimental.
It is simple to determine when an author died. Often it is a matter of common knowledge. You don't have to make a search to determine that Beethoven died more than 50 years ago or that Hemingway died less than 50 years ago. You don't have to know the date. You know the range already. Scholars working in a particular field know when an author they are interested in died.
Most works worth copying years after they are first published are by authors of some prominence. More important, the names and dates of birth and death of thousands of authors—obscure and prominentare listed in standard reference works and biographical digests which are available at most libraries, usually the same library in which a prospective user finds the book he wants to copy. Finding a death date takes only a few minutes. You don't even have to go to the library. You can get the information by telephone or letter.
I have called the Readers Advisory Service of the New York Public Library and obtained an author's death date in 2 minutes. I checked again yesterday to make sure they had not discontinued the service, and they have not. At 4:35, my secretary asked for the date of death of John P. Kennedy-not 'John F., but John P. Kennedy-whose most famous work was "Mr. Ambrose's Letters on the Rebellion," which you all remember well. We were told in 2 minutes that John P. Kennedy, pseudonym Mark Littleton, died in 1870 and was born in 1795. And in another minute, with much apology for the delay, we were also told the precise date of his death-it was August 18, 1870.
Now if you don't want to make a telephone call to the New York Public Library, you can do it by mail. You write them a letter, as we have done (here are some examples just to show you that it is not something theoretical), and in 2 days you get back the answer. You don't even have to send return postage. The whole thing costs you 5 cents. Other libraries have the same service. In difficult cases, the Library of Congress can provide you the information from its catalog cards.
I wired the Library of Congress, to see how good they were, and asked for the date of death of Jacques Futrelle, hardly a world famous author today. I only happened to know of him because 50 years ago he was a client of a late partner of mine. The next day we got a telegram saying he died April 15, 1912, according to “Twentieth Century Authors."
The point is that every library of any size—and I don't mean big ones, but even small libraries—all over the country, and universities, have these standard reference works. Other sources would be readily available—such as the records of performing rights societies. ASCAP publishes periodically a biographical digest that lists the birth and date of death of all its members.
I should emphasize that it is easier to determine an author's death date than it is to learn the copyright status of a work without a notice or a date or with only the date of the latest revision. As I have said,
even if you could not determine date of death, the bill provides a simple system of presumptions. You simply send a request to the Copyright Office. You get a certificate indicating whether the author is dead or not, and from the notice--and we will still have notice-you can make a presumption as to the date of his death.
I will not read to you the Authors League's comments in our statement on the reasons why 50 years is a fair term. I will be glad to answer any questions on that.
I will go to the second subject-on page 11 of my statement—"The Right To Copy." The income of most American authors depends on the rights granted to them in section 1(a) of the U.S. Copyright Act--the rights to print, reprint, publish, copy, and vend their works. The publishing industry's existence also depends on these rights.
Your committee has heard witnesses state that these exclusive rights are or should be subject to various exceptions permitting individuals, institutions, and business concerns to make copies of any copyrighted work, or portions of it, without the copyright owner's consent. These proposals reached an ominous climax in a suggestion that section 107 of the bill should be amended to permit anyone to reproduce a copyrighted work for personal or private use, but not for sale.
This proposal, and some of the others you have heard, represent a complete departure from the present act, and from the judicial doctrine of fair use. They pose a destructive threat to American authors and publishers. Some witnesses have told you that obtaining a copy of a book from a machine is no different from copying it by hand; that, since copying a work by hand is fair use, so is obtaining a copy from a machine.
There is no case that says this, but it is not even worth debating because of the vast difference in nature, extent, and effect between copying by hand and obtaining a copy or copies from a machine. A Xerox machine or any other copying machine is not comparable to a pencil or pen. If you use it to copy a page from the book, the machine does not give you a page of handwriting; it produces for you a printed page, an exact reproduction of the original. It accomplishes the same result as offset printing, but by a more direct and sophisticated process.
What the machines replace are not the pen, but the printing press. Technology has made available a new machine or new machinery, and there are many of them, that eliminates the middlemen-all the middlemen between the original published work and the ultimate consumer. It has made possible self-service printing, and one-at-a-time publishing. In fact, some experts have predicted that the publishing of the future will be done by one-at-a-time publishing methods.
I had hoped to be able to show you a book published by this method, by University Microfilms, which regularly publishes books by the new process from film. That is the customary way in the United States today for filling orders for all out-of-print books for most major publishers. They are not printed any more as we knew printing 5 years ago. Books are printed from 35-millimeter film transcriptions, one at a time. They come out bound. As soon as we have the copy,
I would like to give it to Mr. Fuchs to insert in the record, if you would permit us to, Mr. Chairman
Mr. KASTENMEIER. We will be pleased to receive such a book.