would have similar power to withhold a grant for the last half of a single term. If this is true, a renewal right has potential of usefulness to authors only in those cases in which (a) the author has transferred his renewal rights at the time of the original contract and (b) has died before the renewal came into being. Even in these cases, the renewal will not advantage the author unless the disposition made under the statute is similar to the disposition which he would wish to make if he had testamentary powers. I have also stated that it is my view that perpetual common law copyright has grave disadvantages, particularly from the aspect of scholarship and research. Whether 56 years is precisely the correct term does not seem to me the core of the problem. Fifty-six years was, of course, arrived at by history rather than by any scientific exactitude. There is no more reason for saying that 56 years is precisely right than for saying that some other term was precisely right. All that we can say is that our present term of copyright appears amply to have encouraged authorship. It seems to me that utilizing the date of creation for fixing the commencement of a copyright term would lead to many practical difficulties. I shall not, therefore, attempt to discuss this. Neither will I discuss the utilization of date of registration as the commencement of the copyright term for unpublished works which are statutorily copyrighted. This does not seem to me to be a crucial question. The key problem seems to be whether the copyright should commence (a) on the date of publication, as the courts presently define publication, (b) on the date of first public dissemination, regarding any general dissemination to the public as a type of publication, or (c) from the date of the author's death, where the author is an individual. The pressure of authorship today is for a term measured by life and fifty years. I do not see why authors feel that so long a term is necessary for their well being. The normal ambition of an individual today is to provide for himself and his spouse during their old age and to educate his children. I question the social utility of contributing to the support of even a posthumous child until he is forty-nine years old. I also question whether a term of this length would convey additional incentives to authorship which outweigh the disadvantages of protecting a work for, in some cases, over a hundred years. I would not therefore try to equate our copyright term with the European term. Once the desire for uniformity is removed, I see other reasons for viewing with reserve a term of copyright measured from the death-date of the individual author. One of the great advantages of our present system, it seems to me, is that it requires at least the statement upon publication of a desire to reserve rights. Where such desire is not expressed, we are entitled to believe that the rights are not wanted. If no reservation of rights were required, however, there might be many cases in which the rights were not wanted in which a waiver of rights would not be imprinted in the work. Where the rights are not wanted, no incentive to authorship is needed, and wholly automatic copyright, which seems to be associated with dating the copyright from the death-date of the author, forbids the public to use the work, even where incentive was not needed. In our country, many important copyright works, such as motion pictures and encylopedias, have their authorship so diffused among many persons, a large percentage of them employees, that the concept of individual authorship tends to break down. I see no reason why the corporate copyright proprietor of even the most useful work created by cooperative efforts should have a shorter potential term than is given to the works of individual authors. Also, while I recognize that the death-dates of authors of the first rank would readily be available, many obscure works have continuing usefulness, including value for historical and other purposes. Here the difficulty of ascertaining the date of the author's death will, in many cases, be material. On balance, therefore, I do not favor taking the date of death of the author as the commencement date of the term. On occasion I have turned over in my mind the desirability of providing that any general public dissemination of a work would constitute a publication and start the running of the term. Such a law would probably require that the first embodiment of the work in copies would require a notice with a statement of the year of first dissemination and of the year of first production of copies. This would limit common law copyright to only those instances in which the 62348-61-8 author truly kept the work in his desk. I recognize that this thought involves complexities which I have not thoroughly considered. I point out that the term of copyright is, to some extent, connected with damage provisions. When in France use is made of material that is over one hundred years old and the authorship of which is obscure, a suit based on such use would probably result in the traditional two sous damages. For this reason, uncertainty of duration does not have an impact similar to that which it would have in the United States. On the whole, I would say that our present term of copyright does not appear to have failed in giving an incentive to authors. We do not, in the United States, normally look more than fifty-six years ahead. I think that even our corporate publishing enterprises expect to realize their investments and profits within, at the most, a few decades from publication. I therefore doubt whether having a term longer than fifty-six years would encourage that creativity which our constitution expects. I am conscious that, even after this long passage of time, I have given you only random and undigested thoughts. This is a complex problem on which I am trying to keep a reasonably open mind. SYDNEY M. KAYE By Irwin Karp SEPTEMBER 18, 1957. Here are my comments on the monograph "Duration of Copyright." I believe that the term of copyright should be measured by the life of the author, plus a period of years; and, for corporate proprietors, either (i) from the date of first publication and/or first public dissemination; or (ii) from the date of registration. The principal purpose of the Act, to encourage creative activity, would be best served by providing for the longest term possible; fifty years after death, at the very least. It would unduly complicate matters to vary the term for separate classes. However, consideration should be given to varying the term of protection, depending on the use to which others would put the work. If copyright protection is to be limited to insure the public's “free access” after the author (and heirs) have had an opportunity to earn a fair return, it would seem reasonable that consideration should be given to whether or not non-paying and unlicensed uses after termination-actually give that "free access" to the public. For example, a play might be presented-after expiration of its copyright— by a professional producer or by amateur groups. The first type of presenta tion constitutes an exploitation for personal gain, at cost to the public. The second method of presentation would ordinarily make the work available to the public cost free; in any event, the motive is not the personal aggrandizement of the producer. After copyright expiration, the professional producer (or motion picture company or book publisher) is in effect permitted to profit by the exploitation of the author's property, without paying for that privilege; there is no moral or practical reason why such uses should not be prohibited for a longer period than uses made for non-profit purposes. The public interest would not be injured. since the extended term would not deny the benefits of "free access"-these would not be made available by a profit-motivated private production. In any event, if the possibility of profit exists, it can be assumed that productions would be licensed by the author during the longer term. An author is one of the few creators of property who is compelled, for reasons of policy, to donate his property for the common good. I am suggesting that this donation should be delayed as long as possible when it might be taken advantage of for the personal gain of someone else. Protection could be terminated after a fixed period against uses made for non-profit purposes, without charge, but continued for a longer period against anyone who would use the work for his personal gain and who would charge the audience for seeing the work or hearing it or obtaining a copy of it. Such a system would make for a more reasonable adjustment between the author's property rights and the public interest. I favor a single term of copyright without any limitation as to the manner in which the author could dispose of partial or complete interest in his copyright, i.e., whether by lump sum payment, royalty agreement, or otherwise. Authors are entitled to complete freedom to use and dispose of their property; and there is no basis for assuming that they are less capable of protecting their economic interests than other groups. That authors can secure advantageous terms by their own efforts is amply demonstrated by the improved conditions of licensing which prevail in many media, e.g., the theatre and book publishing. In these areas, authors started at the turn of the century with an unfavorable bargaining position, and have gradually and greatly improved their position and the return from dispositions of interests in their work. The existence of the renewal right had little to do with this improvement. Indeed, in the early years, the assignment of renewal was frequently exacted as a condition of the grant. It is only through better bargaining that the scope of the grant has been restricted. With a single term, equally favorable contracts could be negotiated. If a single long term were provided, licenses could be, as they now frequently are, limited to a term of years; or their duration could be conditioned upon minimum annual royalties or upon the continued working of the copyright. The latter condition is now imposed within the period of original copyright in the case of book publishing contracts (in print clauses), and play production contracts (where the duration of the first class production rights are related to continued performances). One of the difficulties in limiting, by statute, the manner in which authors may dispose of their property is that conditions do, and will continue to, vary from one medium and one period to another. While statutory requirements for conditions of licensing might at a given time be desirable for certain individuals in particular media, conditions may change drastically so that an author might be handicapped if he were prohibited from making an outright assignment or from making a contract combining various methods of payment, lump sum plus percentage. Also, there are so many types of contractual provisions, differing widely from one medium to another, that statutory prescriptions would either become unduly complex, or downright harmful. It is not clear whether these proposed statutory conditions would apply only to authors or also to their heirs and next-ofkin; and whether these would prohibit an author during his lifetime from making gifts of copyrights to his children or wife. The danger of prescribing contractual terms by statute is illustrated by the compulsory license provision. Once a method of licensing is imbedded in the statute, it becomes almost impossible to change-vested interests can exert great pressure to protect their favored position under the statute and the creator is helpless, even though conditions have changed and made the statutory provisions unreasonable or unnecessary. A single term would also eliminate complications arising upon the death of an author, and would eliminate the undesirable and unnecessary restrictions, now contained in Section 24, upon the author's right to dispose of his (renewal) copyrights after death as he chooses. IRWIN KARP. By Vincent T. Wasilewski * JUNE 9, 1958. As to the issue concerning duration of copyright, I believe it would be highly advisable to retain a time certain, rather than a term tied in with the death date of the author. I would think that the present term for copyright and renewal has not been a source of tremendous aggravation in our country, and that it would be a wise course of action to leave this particular matter remain as it is. VINCENT T. WASILEWSKI. By Robert Gibbon (The Curtis Publishing Company) ОСТОВЕВ 24, 1958. Duration of Copyright. Our concern over the duration of copyright is for the benefit of our writers. It is to our advantage to have these people realize maximum financial gain for their work. Toward this end, we would not want to see the term of copyright shortened. We favor a copyright term of a fixed number of years starting at publication, because of its simplicity. Also, there is no problem with termination in the event that the date of the death of the author is unknown. The need for a precise definition of publication is too obvious for comment. We do not agree that the advantage in having two consecutive copyright periods outweigh the complications of renewal. Admittedly, these complications and pure oversight place some material in the public domain more quickly than would happen if there were a single fifty-six year term. If this is a benefit, technicalities could be expanded to assure non-compliance. If consecutive periods are to be continued, the requirements for renewal should be simple and clear. There should be no doubt that the publisher of a periodical or composite work can, by a single renewal, protect the interests of all contributors. ROBERT GIBBON. |