In the case of motion pictures, the terms range from 10 years in China and Russia to 50 years in Great Britain and the Netherlands, measured in some cases from the date of making of the film,30 and in others from the date the film is made public." 31 In the case of sound recordings the term is measured from the date of manufacture 32 or from the date of compliance with some formality,33 and the terms range from 30 years in Austria and Spain to 50 years in Australia, Canada, Great Britain, Eire, New Zealand and the Union of South Africa. In the case of translations several countries which have been primarily importers of intellectual materials either limit the term of protection for translations-e.g., 20 years in China, 50 years in Ecuador, from publication of the translation; or they provide for termination of the translation right if no translation is made within a specified term, ranging from 3 years in Mexico to 10 years in India, Japan and Turkey. B. INTERNATIONAL CONVENTIONS Three multilateral copyright agreements are significant in discussing duration: the Berne Convention of 1886,34 subsequently revised at Berlin in 1908, Rome in 1928, and Brussels in 1948; the Buenos Aires Convention of 1910; and the Universal Copyright Convention of 1952. The Berne Convention and its revisions are in reality several different conventions rather than one uniform convention. Only those countries which adhered to a particular revision are bound by that revision. The latest revision (Brussels, 1948) provides in Art. 7 for a term of the life of the author plus 50 years. Countries bound by earlier revisions may apply a shorter term. Term was left to domestic law under the original convention and the Berlin and Rome revisions. The Brussels revision contains exceptions for cinematographic and photographic works (the term to be governed by domestic law), anonymous and pseudonymous works (50 years from the date of publication), and posthumous works (50 years from the date of death of the author). Here again previous revisions allow various terms in different countries under domestic law. There is no separate provision in any of the revisions dealing with works which, in the United States, would be considered authored by organizations or employers for hire. Though there is no exception in the Brussels revision for translation rights, there were exceptions in earlier revisions and these may permit a shorter term for translation rights. In the Berlin revision of 1908, for example, it was provided that the right to authorize a translation might expire after ten years if no translation had been made or if, a translation having been made, it was out of print. Under Art. 6 of the Buenos Aires Convention term is governed by domestic law with the limitation that the term will not be allowed 30 Thailand and the countries of the British Commonwealth. Argentina, Bulgaria, Austria, China, Czechoslovakia, Dominican Republic, Germany, Italy, Japan, Poland, Turkey and the U.S.S.R. Australia, Austria, Canada, Great Britain, New Zealand, Eire, Thailand and the Union of South Africa. 33 Italy and Spain. International Union for the Protection of Literary and Artistic Works. to exceed the term granted in the country of origin. No minimum term is specified. The Universal Copyright Convention, in Art. IV, provides that term shall be governed by domestic law on the basis of national treatment, but then proceeds to enumerate three alternative minima, one of which must be met if a country wishes to adhere to the convention. The first is that the term be not less than the life of the author plus years after his death. The others are that the term be not less than 25 years from the date of publication or from the date of registra tion prior to publication. 25 Since the United States adheres to the Universal Copyright Convention, one of these minima must be provided for in the U.S. law for foreign works entitled to protection under the U.C.C. In addition to these general provisions the Universal Copyright Convention makes exceptions for photographic works and works of applied art (a minimum of 10 years if these classes of works are to be protected at all), and has special provisions for translation rights (a minimum of 7 years and a compulsory license arrangement thereafter if a translation has not been published during the 7 year period.) III. PROPOSALS SINCE 1909 FOR REVISION OF PRESENT LAW In 1922 efforts were begun in Congress to make it possible for the United States to become a party to the International [Berne] Union for the Protection of Literary and Artistic Works. The latest revision of the Berne Convention at that time was the Berlin revision of 1908. That convention permitted reservations on the part of adhering countries and it was thought by some that the United States should become a party, adopting the minimum number of necessary changes in domestic law. Some of the changes would, of necessity, have been substantial and in conflict with previous copyright theory in the United States. A series of bills was introduced in both houses of Congress in the years 1922, 1923 and 1924 to accomplish this purpose. These bills would have made little change in the provisions concerning duration, providing that duration would be governed by Section 23 (now 24) of the law, and adding only that no foreign author would be entitled to a longer term than he received in the country of which he was a national, a feature which was also incorporated in several subsequent bills. In 1924 Rep. Dallinger introduced a bill also designed to make possible United States adherence to the Berne Convention. This bill, however, was a general revision bill and included changes which were not required for the purpose of adhering to Berne. The duration provisions of this bill were contained in Sections 22 and 23. The term for works by individual authors was to be the life of the author plus 50 years; for works of corporations and partnerships, 50 years from the date of "production"; and for works by joint individual authors, either the life of the author who died plus 50 years, or the life of the author who survived, whichever should be longer. The bill provided 35 H.R. 11476 and S. 4101, 67th Cong., 1922; H.R. 18676 and H.R. 14035, 67th Cong. 1923 H.R. 573, H.R. 2663, H.R. 2704 and 8. 74, 68th Cong., 1923. 88 H.R. 8177 and H.R. 9137, 68th Cong., 1924. also that no assignment or transfer, except by will, would be operative beyond 25 years after the death of the author, with a reversionary interest in the surviving spouse or heirs at law in the last 25 years of the term. No extensive hearings were held on this bill. In 1925 another general revision bill 37 was introduced by Rep. Perkins. This bill also had as one of its objectives adherence of the United States to the Berne Union. Sections 20, 21, 22 and 23 contained the duration provisions. The term was to be the life of the author plus 50 years in the case of individual works; in the case of works of individual joint authors, the life of the author to die first plus 50 years, or the life of the last survivor, whichever should be longer; in the case of posthumous works, works of an employer for hire, composite or cyclopaedic works, compilations, abridgments, adaptations or arrangements, 50 years from first publication; in the case of newspapers, 50 years from the date of publication, but the life of the author plus 50 years for individually authored contributions to newspapers; and in the case of motion pictures, sound recordings and piano rolls, 50 years, from the date of first sale or exhibition in the case of motion pictures, from the date of first sale, offer of sale, or other public distribution in the case of recordings or rolls. At the hearings 38 on the Perkins bill there was little discussion of duration. That the problem had not been considered thoroughly by at least one member of the committee is indicated by the opinion expressed by Rep. Reid that a term of life plus 50 years would be shorter on the average than a term of 56 years from the date of publication. J. G. Paine, speaking for the Victor Talking Machine Co., expressed the opinion that the renewal feature of the 1909 Act should be retained to give the author or his family a second chance in the event of a lump sum assignment. Arthur Weil, representing Motion Picture Producers and Distributors of America, Inc., proposed that the term for corporate works (50 years in the bill) run from the date of creation rather than from the date of sale or distribution. He expressed the opinion that the former would give certainty to the term whereas the latter would cause problems in ascertaining the starting point and would not provide for unpublished motion pictures. 39 Hearings and subsequent discussions on the Perkins bill resulted in a new general revision bill, introduced in 1926 by Rep. Vestal. The provisions concerning duration were contained in Sections 13 and 14. The term for works authored by individuals was to be the life of the author plus 50 years; for works authored by other than individuals, 50 years from the date of completion of creation; for individual joint works, the life of the survivor plus 50 years; for works based on other works which latter had a longer term, 50 years or the duration of the copyright of the basic work, whichever should be longer; and for posthumous works, 50 years from the death of the author. 40 This bill, as subsequently revised in other respects 10 but containing the duration provisions described above with one insignificant amend "H.R. 12258, 68th Cong., 1925. Hearings Held Before the Committee on Patents, House of Representatives, on H.R. 11258, 68th Cong., 1925. H.R. 10434, 69th Cong., 1926. H.R. 8912, 70th Cong. 1929 and H.R. 6990 and 12549, 71st Cong., 1930. ment, passed the House of Representatives in 1931. Sen. Hébert introduced the Senate version 41 which provided for a single term of 60 years "from and after creation." The Senate bill was reported out by the Committee on Patents of the Senate,42 but the Senate adjourned before a vote was taken. At the 1926 hearings 43 on the Vestal bill, the Authors' League of America supported the term of life plus 50 years on the theory that a longer term was necessary and just for authors and that the author's life was the natural measure of the term, insuring care for his family after death. J. D. Phillips, representing Houghton Mifflin & Co., supported life plus 50 years as an advantage to both authors and publishers. He said that from the publisher's standpoint two terms are undesirable because the proprietor of the second term might choose a different publisher and the plates of the first publisher would be wasted, particularly in the case of textbooks. M. S. Raney of the American Library Association expressed the opinion that life plus 30 years would be enough to take care of the author's family and that there ought to be a break somewhere in the term to give the author and his family a second chance. Karl Fenning of the American Patent Law Association advocated a term with definite starting and ending dates to prevent uncertainty in ascertaining the date of death of the author and the holder of the rights after his death. At the 1930 hearings before the House Committee on Patents " and the 1931 hearings before the Senate Committee on Patents, both of which were again considering the Vestal Bill, the Authors' League of America advocated life plus 50 years because under the 1909 statute an author who produced his best work at an early age would not be protected in his old age; because the norm in other countries was life plus 50 years; because the author's return was usually not large and therefore the term should be long to compensate for the small return; and because authors want to be responsible citizens, educate their children, etc. The Committee on Publication for the Mother Church favored life plus 50 years because it would extend the term for the works of Mary Baker Eddy. Several witnesses opposed the term of life plus 50 years on the ground, inter alia, that it would be difficult or impossible in many cases to determine the date of death of the author, and, consequently, the date at which the work would fall into the public domain, as well as with whom to deal when it could not be ascertained whether the author was alive or dead. These witnesses represented the John C. Winston Co., Radio Protective Association, National Association 41 S. 176, 72d Cong., 1931. 42 S. REPT. NO. 1732, 71st Cong., 1931. 43 Hearings Held Before the Committee on Patents, House of Representatives, 69th Cong., 1st Sess., on H.R. 10434, a bill to amend and consolidate the acts respecting copyright and to permit the United States to enter the international copyright union. (1926). 44 Hearings Held Before the Committee on Patents, House of Representatives, 71st Cong.. 2d Sess., on H.R. 6990, a bill to amend and consolidate the acts respecting copyright and to permit the United States to enter the international copyright union. (1936). 45 Hearings Held Before the Committee on Patents, United States Senate, 71st Cong.. 3d Sess., on H.R. 12549, a bill to amend and consolidate the acts respecting copyright and to permit the United States to enter the convention of Berne for the protection of literary and artistic works. (1981). of Broadcasters, Victor Talking Machine Co., and the American Book Co. Also taking this position were Karl Fenning and Charles Shepard, patent attorneys. John W. Ziegler, speaking for the John C. Winston Co., also argued that the term of life plus 50 years was unfair to the older author because he would receive a shorter term, and to the public which would be deprived of cheap editions for an additional thirty years on the average. Karl Fenning and Charles Shepard argued also that the term of life plus 50 years was too long in that it would benefit grandchildren, great-grandchildren or more remote heirs in addition to the author's immediate family. Another bill 46 was introduced in the Senate in 1931 by Sen. King. This bill would have amended Sec. 23 (now 24) of the 1909 Act to provide a single term of 17 years for all copyrightable works. This bill was limited to amending Sections 23 and 28 and repealing Section 24 and was not designed to permit United States adherence to the Berne Union. No hearings were held. In 1932 Sen. Dill introduced a bill 47 which provided for a term of 56 years from the date of completion of the work. No hearings were held. 1932 also marked the beginning of a strenuous effort (strenuous, at least, as to the number of bills introduced) by Rep. Sirovich, who in that year succeeded Rep. Vestal as chairman of the Committee on Patents, to produce an acceptable general revision bill which would also make it possible for the United States to join the Berne Union. The first Sirovich bill 48 provided for a term running from creation of the work until 56 years after the first public presentation. Five additional versions of this bill were subsequently introduced by Rep. Sirovich. As to duration, the third and fifth 50 versions contained some changes, while the second,51 fourth 52 and sixth 5 versions were identical with the bill immediately preceding. 53 The third and fourth versions contained some additional provisions, no doubt because it had been pointed out that many works would not be publicly presented and the resulting gap in the original version had to be filled. It was therefore provided in the third and fourth versions, in addition to protection from creation and for 56 years from the date of first public presentation, that, if the work was not publicly presented, protection would continue for three years after the death of the author, or after the death of the survivor of joint authors. It was also provided that, in the case of corporate authors, protection would continue for three years from the date of creation if the work was not presented publicly. Finally, it was provided that registration of a claim in the Copyright Office was to be deemed a public presentation. 40 S. 5687, 71st Cong., 1931. |