Committee Prints

By Joseph S. Dubin

(Re: "Protection of Unpublished Works")

APRIL 1, 1958.

In connection with the study covering the above matter, you will recall that I have always been of the opinion that the Federal system should cover all works, and the so-called common law protection should be eliminated. This would do away with the conflict in decisions rendered in the various state jurisdictions, and would eventually result in a uniform series of rulings.

The term should be for a period after the death of the author, and should not be restricted to the antiquated definition of publication. In other words, as long as the work is made available to the public, whether in copies or otherwise, that should be the test of publication. If, of course, the work is not made available to the public, then the period should run from the time the work is so made available.

JOSEPH S. DUBIN.

By Irwin Karp

(Re: "Protection of Unpublished Works")

APRIL 4, 1958.

There is no reason, either in history or considerations of policy, to bemoan the fact that an unpublished novel, a personal letter, or an unperformed play, may be protected by common law for periods exceeding the term of statutory copyright.

Congress in 1909 was aware that dramatic and other works were widely disseminated to the public through performance rather than publication. Although in some fields "performance" more recently replaced "publication" as the principal means of "dissemination," this represents merely a shift of emphasis. Dissemination by records today simply replaces the widespread dissemination by other non-published media (minstrel shows, vaudeville, etc.) in 1909. In the theatre, there has been no change. Plays were disseminated by performance in 1909 Congress was aware of it; they are disseminated by performance today. From a practical point of view, there is no substantial reason to fear that an author may retain his property rights in a publicly performed play for more than the limited statutory term; most plays (and other works) are registered prior to performance and are published during or after performance; publication of copies is essential for the licensing of stock and amateur uses.

I believe that the nub of the problem lies in the distinction between "disseminated" and "undisseminated" works, rather than between "published" and "unpublished" works. It would be consistent with the purpose of the Copyright Act, and with prevailing common law of property rights, to clarify and broaden the statutory definition of publication to include all means by which a work is “published” in the dictionary sense of the word, i.e., made public or disseminated. The problem of “unpublished" works could be solved by (i) extending the privilege of registration-prior to dissemination-to all works; (ii) providing that publication shall mean any means by which the work is made public or disseminated; (iii) restricting the notice requirement to those forms of work in which notice is now mandatory (not to include records); and lastly (iv) retaining the provision that common law rights in undisclosed works are preserved.

It seems to me that the common law property rights in undisclosed works should be preserved. This right is in accordance with a fundamental concept of the democratic form of government; the right of privacy (even though it is not specifically granted in the Constitution). To me, it is also an inevitable concomitant of the right of free speech-that right should include not only the privilege of speaking but of withholding speech.

If an author does not choose to publish something he has conceived and written, that is his own business and nobody else's. The theoretical loss of valuable works to the community is a risk that must be taken to preserve freedom of thought, speech and privacy-at best it is only a theoretical risk. For every author who may exercise the right of withholding his work, there are a hundred who are only too anxious to disclose the fruits of their minds to the public at the earliest possible opportunity. There is little danger that much will be lost to posterity by permitting those who do not choose to disclose to exercise that privilege.

By William P. Fidler

(American Association of University Professors)

ОСТОВЕР 30, 1959.

As copies of the various studies on the general revision of the copyright law have been received, I have sought the advice of competent scholars concerning the relationship of the academic profession to the issues raised by these studies. At this time I am presenting some of the points of view expressed by professors who are competent to judge the technicalities of copyrights.

As to protection of unpublished works, the present law is reasonably satisfactory so far as we know; but a statute that would spell it out more clearly than at present, supplanting the common law while embodying its substance, seems to us to be desirable.

[The answers below were given by Judge Learned Hand in response to the following three questions presented to him by the Copyright Office.]

1. Q. Should the public dissemination of a work be equated with publication so that common law literary property would then cease and copyright protection for a limited time thereafter would be afforded by the federal statute?

A. I answer yes. In the case of music, pictures, drama, or lectures, I mean by "public dissemination," to an unselected public at large, either with or without payment. I should of course include any form of mechanical broadcasting, as by radio or television or the like, if there turns out to be any.

2. Q. Should works not publicly disseminated in any manner (e.g., private manuscripts, diaries, letters, family photographs, etc.) be left to protection under the common law; or, alternatively, should they be brought under the federal statute upon creation (common law protection and state court jurisdie tion thus being abolished altogether).

A. On the whole I am disposed to leave to the state courts the protection of "undisseminated works." That seems to me a fair compromise between conflicting interests provided that some period be fixed after which they come into the public demesne. An author should be privileged to keep his compositions rigidly within his own power until the "common-law literary property" expires: and I am for reserving all regulatory power to the states, so far as no national interest is involved. Of course, I know that it begs the question to say that no national interest is involved while the author lives; but I would choose to leave this much to the state courts.

3. Q. If works not publicly disseminated are left to protection under the common law, should the federal statute impose a time limit on such protection? If no time limit is so imposed, should the owner of the physical manuscript be presumed to have the right, upon the author's death (or after a certain number of years therefrom), to make public dissemination of the work in the absence of any specific reservation to the contrary?

A. I would impose a time limit, say for 100 years after the work is created or for 50 years after the author's death. As an alternative in case no absolute time limit is imposed, I would transfer the "literary property" to the owner of the physical manuscript at the end of say 50 years after the author's death.

LEARNED HAND.