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2. Fair use has been a part of our copyright law for decades and the educational system has functioned under it. Neither it, fair use, nor the right to make copies is changed in the revision bill. It is the

same.

3. However vague the boundary lines of fair use might appear to teachers, the record is absolutely clear that they have had a very large margin for error. Teachers have not lived in terror of lawsuits should they incorrectly decide whether a particular use is fair or unfair. It is not true that every time a teacher wants to make a use he has to make a close calculation, "Am I overstepping the line or not?" Our record is absolutely clear, the record of American writers, and publishers. There is a lot of room on both sides of the line. No one has come after him for making a mistake in his judgment as to whether a use is fair or not.

On the other hand, if you write out of the law the doctrine of fair use, or if you try to supplant it with detailed exceptions, spelling out what is fair use or what is the equivalent of fair use today, what happens tomorrow? Today we are already at the point where we can do what I have shown you. That is only the beginning. The technology is exploding. We can't even begin to conceive of how cheap it is going to be tomorrow to make copies. If you were to tell a publisher 5 years ago that someone in Michigan would be publishing books to order one at a time, as the customer ordered them, which is what is happening today, simply by pushing a button on a machine, he would have told you you were crazy. Tomorrow, that is the way books will be published-by centers all over the country, by machines which grind out this material to order, one at a time.

I don't want to burden the record with too much material and I don't want to act like a salesman for the Xerox Co., but if you wish, I can give you a picture of the machine which produces the book that we hope to submit to you. I will give it to Mr. Fuchs, if I may. Mr. KASTENMEIER. Yes, we will receive that.

Mr. KARP. We believe that the rapid and constant changes in techniques of copying and disseminating what authors create make it all the more imperative that we retain the judicial concept of fair use with the advantages of flexibility and adaptability which it provides. As other witnesses have testified, it is not feasible or desirable to write a detailed definition of fair use into the Copyright Act. Aside from the difficulty of specifying the limits for every type of work and combination of circumstances that might be involved, it would mean that Congress would have to freeze definitions into a statute, perhaps for the next 56 years, which might prove inappropriate or unfair, as conditions change.

Mr. Chairman, I thank you very much for your indulgence. I realize I have taken your time again, but I feel it was important that we put these matters on the record.

(Mr. Karp's full statement follows:)

STATEMENT OF THE AUTHORS LEAGUE OF AMERICA

My name is Irwin Karp. I am counsel to the Authors League of America, Inc., a national society of professional writers and dramatists. Early in the hearings, the Author's League testified in support of the revision bill. Since then witnesses have opposed copyright for "life plus 50 years" and have asked exceptions

to the author's exclusive right to make copies of his work. Since these are matters of vital concern to authors, we feel it essential to state our position on certain aspects of these problems which were not covered in our original statement. We appreciate this opportunity to do so.

THE TERM OF COPYRIGHT

The Register's proposal for a new copyright term involves two sets of issues: (1) Should the term be extended; and (2) should the term be measured from the author's death, under a "life plus" system-rather than, as now, from publication; and, should there 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 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 these alternatives. It would, on the average, add 20 years to the present term. It would give a longer period of protection for works written early in an author's career; but a shorter term for works written at or near his deathand a much shorter term for works published posthumously.

Certainty of protection

We believe the copyright term should be extended. We support life plus 50, rather than a longer term from publication because it is a more certain method of assuring adequate protection for authors; and, because it is essential if we are to modernize and unify our copyright system.

Life plus 50 assures that no author would outlive his copyrights-as some do now. It also assures that an author can provide for his family for a reasonable period after his death. The present term often does not permit this. Even under a 76-year term from publication, copyrights on valuable works written early in his career would expire soon after an aged author's death, leaving too brief a period of protection for his family.

Determination of copyright status

Opponents to life plus 50 years claim that today the copyright notice in a work, or absence of one, tells you if copyright has expired so that it may be freely used. Under a life-plus system, they claim the job is much more inconvenient. This argument ignores the difficulties under the present system, and also ignores the simplicity of a life-plus system.

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 act. To illustrate:

(i) Music is disseminated primarily by recordings (and performance) rather than by publication. A recording does not bear a copyright notice for the compositions it contains.

(ii) The notice for prints, maps, photographs, drawings, and other works need not contain a copyright date.

(iii) Music, plays, and ballet are far more frequently disseminated by performance than publication. Whether live, or broadcast or telecast, there is no notice. Nor would there be on a transcription in the archives of a library.

(iv) Any book published abroad and imported without the copyright owner's consent need not bear a notice. It is still protected by copyright. (v) There are innumerable books in library collections, and even in bookstores, that were never "published" in the copyright sense. They do not contain a notice. They cannot be copied. They are still protected by common law, no matter how old.

(vi) Any manuscript that was not “published” need not contain a notice, and may not be copied, regardless of age.

(vii) Any book reprinted without the copyright owner's consent might omit the notice. It is still protected by copyright. It cannot be copied.

(viii) The copyright notice in a revised edition of a book, or a compilation or other derivative work published this year need only contain the date "1965." Yet much of the contents may already be in the public domain, or be protected by a copyright that will expire next year. Even if the earlier copyright dates were printed, I could not tell which portions of the book I was free to copy, unless I could find the earlier editions.

Even if more restrictive notice provisions were adopted, many of these situations could not be changed if the term is measured from "publication” (e.g, unpublished works). In these instances, copyright status can only be determined by searching the Copyright Office records; and even that is not always conclusive under a publication-plus system. It is not surprising that commercial users seldom rely on a copyright notice to determine if a work is in copyright. They make a search. And, they often must also know when the author died, since this determines the term in other countries in which they may distribute the work.

Determination of copyright status under life and 50 years

Under life and 50 years, one only needs to know the date of an author's death to determine when the copyrights on all of his works expire. None of the complications mentioned above can arise. And, the revision bill also provides a simple system of presumptions to protect users in those instances when the date cannot be readily learned.

The life-plus system of copyright is used by every country with a copyright law-except the United States and the Philippines. It has been used for decades. There is no indication that it presents any difficulties, or is more detrimental to users than our present act.

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 Hemingway less than 50. 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 prominent-are listed in standard reference works and biographical digests (e.g., the Cyclopedia of World Authors, the Encyclopedia Britannica, and so forth), which are available at most libraries-usually the same library in which a prospective user finds the book he wants to copy. Finding an author's 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. If you write, they will also give you the information by mail-elapsed time, 2 or 3 days; total cost, 5 cents (return postage is not required). Other libraries have the same service. In difficult cases, the Library of Congress can provide the information from its catalog cards. Other sources would be readily availablee.g., the records of performing rights societies (for composers), and the records of the Social Security Administration.

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 only the date of the latest revision. For unpublished works, life plus is the only system that gives you the information. Moreover, if you want to use different works by the same author-e. g., 20 or 30 of his poems-you have to make a separate copyright search for each one under our present law. Under life plus, one date determines the status of all of them-you only have to look once, or write one letter to a library, or make one telephone call.

The revision bill provides for even the most obscure situations. The copyright notice would still be required in published works (unlike Europe). On request, the Copyright Office would issue to anyone a certificate if its records do not indicate an author is still alive, or died less than 50 years ago. If more than 75 years had elapsed since publication, you would then be entitled to presume that the author was dead at least 50 years. This could be done within a few days. It is highly unlikely that the need to copy any 75-year-old book could be so compelling that the copying could not be briefly deferred until the certificate were obtained-in the rare instances where an author's death date was not more readily ascertainable.

The renewal clause

Some opponents of life plus 50 want a single term of copyright. Others ask to keep the renewal term because it throws many works into the public domain after 28 years-85 percent is the figure quoted.

The renewal system was retained by Congress in 1909 to protect authors against long-term assignments-not to work forfeitures of copyright. That protection would be given, under the revision bill, by the termination section.

Ordinarily, any work worth copying after 28 years is renewed. And, when it is not, this is frequently due to ignorance, or failure to comply with the

technicalities of the act, or the cost (which is considerable for poems, songs, and articles which must be renewed separately). The continuation of this burden on authors cannot be justified on the ground it may occasionally destroy the copyright on a worthwhile work.

We doubt that many teachers need, or use, 28-year-old patent medicine ads, or labels from canned goods, or mail-order catalogs-which are among the types of useless works that account for the bulk of unrenewed copyrights. Moreover, it is doubtful that many teachers spend $3 to order a copyright search from Washington to determine whether a copyright has been renewed-and this would have to be done. You cannot tell from a notice, even when it has a date, whether a renewal application was filed. Only the date of first publication may be there and that is all that may be required.

A single system of copyright

If we are to adopt a Copyright Act that protects all works, unpublished and published, from creation, then life plus is the simplest and least complicated method of measuring copyrights on the works of individual authors. It avoids the difficulties of defining "publication" that have created uncertainty and liti gation; it would avoid even greater complexities that would arise if the definition of "publication" were expanded to include dissemination by performance and recording.

International uniformity

We have long needed a system of measurement that conforms to that used throughout the world-ours conforms only to that used by the Philippines. As time passes the need will increase. Publishing, motion picture production, record manufacturing, to say nothing of television, all function in an international copyright community. It is pointless to behave as if it didn't exist.

The length of the term

Some opponents of life and 50 have supported a longer term. A few argue that 56 years from publication is enough. If a work has sufficient merit to live to be read, performed, appreciated-more than 56 years after it was copyrighted, how long should the term be? What term will permit the author to obtain fair and reasonable compensation for such a work-which has proven its value and worth to society? I think the issue has been misconceived by some--who think of it in terms of measuring the carrot, and deciding how short it can be cut without discouraging the donkey from moving forward. In other areas, we do not measure value that way. A fair salary for a teacher is not the minimum we can get by with without starving him, or driving him to another field.

We submit that a fair copyright term is one that assures an author he can be paid for uses of his work while he lives; and that his family will have the benefit of the works he has created for a reasonable time after his death. We believe that a term ending 50 years after death is reasonable by comparison to the term granted in most other countries; by comparison to the perpetual term of common law protection which would be eliminated by the bill; by comparison to the perpetual tenure for other forms of property.

We don't believe that the issue of term depends on whether one agrees, or rejects, the concept of a literary work as property. It unquestionably is at common law (and we think it is under the statute). What is important is that the author is expected to function and exist as a property owner. He is not paid an annual salary to write; he doesn't get a paid vacation, or fringe benefits; and no one establishes a pension fund for him. He is an entrepreneur. He writes at his own risk. He creates a literary work. His income is, essentially, rental-the royalties he collects for uses of his property, so long as it remains his property. In the case of some of the greatest literary and musical works contributed to American society and posterity, an adequate reward (one commensurate with the value of the contribution to society) would not be achieved by the royalties collected within 50 years after the author's death. But these authors, poets, and composers, and their families, are at least entitled to that much.

We think that the realities of writing, as a risk-taking enterprise, are also relevant to the question of term. Often a work does not begin to earn income

for an author until years later when he has finally won recognition. This has happened to serious composers. It often happens to novelists and poets. Often a book will be discovered or rediscovered 30 years or more after it was originally published--and first become a commercial success. Its useful copyright life under our present system may be only 15 or 20 years, not 56. As an entrepreneur, the author faces the constant risk that 2 or 3 years of work may go down the drain-his book or play may be a literary success, but a financial failure. Throughout a novelist's, or playwright's career, only two or three works may produce substantial income for him. These must compensate him for a lifetime of writing-which may produce several works of lasting value to society.

Under these circumstances, we do not believe a term ending 50 years after death is too long. Society expects the author to accept the risks and hazards of entrepreneural existence. It should be willing to accord him a small measure of the portection that it accords to other, sometimes less productive, entrepreneurs. We have heard it said that life plus 50 years is against the public interest. May we observe:

1. The first, most important and indispensable contribution to the public interest in literature and the arts is made by the author. Until he creates his book, play, or composition, no one can disseminate it, exploit it or teach itwith or without paying him.

2. The public has an interest in dealing fairly with those who create its literature and art.

3. No one has proposed that when a work has gone out of copyright, a publisher who reprints it must sell it at cost, or at a lesser profit, or at a price fixed to assure that the public will be able to buy it more cheaply than copyrighted works; or that broadcasters or theaters be required to charge less for performing works after copyright expires; or that actors, teachers, or musicians work without pay (or at a lower salary) when performing or teaching works that have fallen into the public domain-all of which might reduce the cost to the public.

THE RIGHT TO COPY

The income of most authors depends upon 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 existence of the book publishing industry in this country 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 the 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 dangerous, in fact 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. No case holds that copying a copyrighted work is fair use because the copying is done by hand. I do not think it is. But I do not believe this is relevant to the problem. There is a 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 a book, the machine does not give you a page of handwriting—it produces a printed page: an exact reproduction of the original. It accomplishes the same result as offset printing-by a more direct and sophisticated process. What the machine replaces is not a pen but a printing press; technology has made available new machines that eliminate the middlemen between a published work and the ultimate consumer. It has made possible self-service printing and "one-at-a-time publishing." In fact,

1 The type of device used does not justify the making of unauthorized copies; infringement is infringement whether it is perpetrated by a letterpress, an offset press, a mimeograph machine, a multigraph machine, or other means.

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