The fifth and sixth versions of the bill were identical with the third and fourth versions in regard to duration except for special provisions for dramatic and dramatico-musical compositions. It was provided that, in the case of works in these two categories, an assignment would be effective for only 28 years or less. After 28 years there would be a reversion of the copyright to the author, to those named in his will, or to those named in the applicable statute of succession in the event of intestacy.

Rep. Sirovich began hearings prior to introducing any specific legislation, stating his purpose to be to discover what those interested in copyright wished to have incorporated in the legislation. The hearings 54 continued on and off through the period during which the six versions of the Sirovich bill were introduced.

The testimony, at hearings on the previous bills mentioned above, that a term of life plus 50 years would lead to uncertainty, Senator Dill's opinion that such a term would require the United States government to keep records of author's deaths, families, etc., and testimony that such a term was not necessary in order to adhere to the Berlin or Rome revisions of the Berne Convention, led Rep. Sirovich to suggest initially a single term of 60 years from the first public presentation.

Miss Sillcox, Secretary of the Authors' League of America, and other representatives of the League stated that this term would be satisfactory to the League if other provisions which they supported were adopted.

The proposed single term of 60 years was reduced to 56 years after testimony of Thorvald Solberg that the additional four years for subsisting copyrights would result in more disadvantages than advantages. Mr. Solberg also argued in favor of a term of life plus 50 years, citing the following arguments: uniformity with other countries; the term would endure for life in all cases; the term would end on the same date for all works of the same author; there would be only one date to be determined for all the works of each author, i.e., the date of his death, rather than at least one for each work, i.e., the date of registration, publication or public presentation. Mr. Solberg expressed the opinion that the difficulty of determining the date of death had been greatly exaggerated at the hearings and that the greatest criticism of the existing term was in regard to the renewal provisions.

Nathan Burkan, representing the American Society of Composers, Authors and Publishers, presented an argument that abolition of common law rights (a feature incorporated in the earlier versions of the Sirovich bill) was unconstitutional. This resulted in amendments to the bill to retain common law rights and also the provision, mentioned above, that if the work were not publicly presented the term would expire three years after the author's death.

54 Hearings Held Before the Committee on Patents, House of Representatives, on General Revision of the Copyright Laws, 72d Cong., 1st Sess., Feb. and Mar. 1932; Hearings Held Before the Committee on Patents, House of Representatives, 72d Cong., 1st Sess., on H.R. 10976, a bill to amend and consolidate the acts respecting copyright and to codify and amend common-law rights of authors and their writings. (Mar. 1932); Hearings Held Before the Committee on Patents, House of Representatives, 72d Cong., 1st Sess., on H.R. 10976. (May 1932); and Hearings Held Before the Committee on Patents, House of Representatives, 72d Cong., 1st Sess., on H.R. 11948, a bill to amend and consolidate the acts respecting copyright and to codify and amend common-law rights of authors and their writings. (1932).

Mr. Burkan also wished to retain the renewal feature of the law to protect "improvident authors," pointing out that under all of the versions of the Sirovich bill the author could assign his rights for a lump sum and have no second chance, a fact of which the Committee was apparently not aware. The result of this testimony was a limit of 28 years on assignments in the case of musical and musico-dramatic works in the final version of the Sirovich bill. The Authors' League had previously favored abolition of renewals as a result of the erroneous belief that the earlier versions of the bill would somehow change the 1909 law with regard to lump sum assignments.

Although there were hearings and considerable discussion of these various bills, they suffered the same fate as the earlier bills mentioned above and those which were to succeed them. All died at one stage or another of the legislative process and none became law.

Also in 1932 a bill 55 was introduced in the Senate by Sen. Dill which provided for a single term of 56 years from the date of completion of the work. No hearings were held.

In 1933 Sen. Cutting and Rep. Luce introduced identical bills 56 in the Senate and House with the stated purpose of making it possible for the United States to join the Berne Union. The bills were limited to this purpose and did not purport to be general revision bills. It had then become impossible for the U.S. to join the Berne Union with reservations. The 1928 Rome revision of the Berne Convention which was in force created more problems for some interests in the U.S. than the earlier 1908 Berlin revision. Under the Cutting-Luce bill protection was to be from creation without formalities, but duration was to be governed by Sec. 23 (now 24) of the 1909 Act. The term for unpublished works would presumably have run from creation until 28 years from the date of registration of a claim in the Copyright Office.

In 1934 the President submitted the 1928 Rome revision of the Berne Convention to the Senate for possible ratification.57 After hearings 58 and discussion of the Convention and the Cutting-Luce bill, a new bill 59 was drafted and introduced in the Senate by Sen. Duffy in 1935. The Senate ratified the Convention prematurely in 1935 before the necessary legislation had been passed, but on reconsideration the Convention was returned to the executive calendar pending further consideration of the Duffy bill.

The Duffy bill provided for a term of 28 years from the date of publication for published works, and 28 years from the date of creation for unpublished works. In both cases a second term of 28 years was permitted under substantially the same provisions as in the 1909 Act.

In 1936 Reps. Daly and Sirovich introduced bills 60 in the House. Both of these bills and a slightly revised version of the Duffy bill contained provisions which would have made it impossible for the U.S. to adhere to the Berne Convention.

S. 3985, 72d Cong., 1932.

56 H.R. 585 and S. 1928, 73d Cong., 1933.

87 Executive E., 73d Cong., 1934.

Hearings Held Before the Committee on Foreign Relations, United States Senate, 73d Cong., 2d Sess., on S. 1928. (Mar. 1934).

5 S. 2465, 74th Cong., 1935 and H.R. 10632, 75th Cong., 1936.

H.R. 11420, 74th Cong., 1935 and H.R. 10632, 75th Cong., 1936.

The Daly bill provided for a single term of 56 years from the date of creation for unpublished works, from the date of publication for published works. The Sirovich bill provided for a single term of 56 years from the date of publication or registration, whichever should be first. Hearings and discussions were held on all three bills but none was passed, nor was any further action taken when the bills were again introduced in later sessions.

Hearings were held jointly on the Duffy, Daly and Sirovich bills. Most of the discussion with regard to duration, and there was very little, was concerned with the renewal problem.

Gene Buck, speaking for the American Society of Composers, Authors and Publishers, favored the provisions of the existing law, stating that a second chance for the author was necessary.

Mary Greer Conklin of the Authors League of America favored a longer term, asking why, if copyright was to be forfeited after 28 or 56 years, other property should not be treated in the same manner. Sydney Kaye and Louis G. Caldwell, representing the National Association of Broadcasters, favored the abolition of renewals and no limit on assignments, arguing that such provisions may be to the disadvantage of authors who will be prevented from selling what they wish to sell when purchasers are willing to pay. Both favored a single term of 56 years.

William Arms Fisher, representing the Boston Music Publishers Association, expressed the opinion that a single term of 56 years would be better than 28 plus a 28 year renewal because it would do away with the renewal problem, but argued for a term of life plus 50 years.

Edwin P. Kilroe, speaking for 20th Century Fox Film Corporation and the Hays Organization, favored life plus 50 years, but, if that were not possible, favored a single term which would vest immediately so that the entire commercial value would be available at once.

R. S. Ould, a patent attorney, favored retention of renewal for the benefit of the author and his family.

In 1940 Sen. Thomas introduced a bill 62 in the Senate which represents the last effort to date to achieve a general revision of the law, and at the same time incorporate provisions which would make it possible for the U.S. to adhere to the Berne Union. The bill was known as the Shotwell bill, named for the chairman of the committee which drafted it. In Section 6 it was provided that protection should exist from and after creation; that the term for works created by natural persons should be the life of the author plus 50 years; for works of individual joint authors, the life of the first to die plus 50 years or the life of the survivor, whichever should be longer; for works by authors who were not natural persons, 50 years from creation; for anonymous and pseudonymous works, 50 years from publication unless the name of the author were recorded in the Copyright Office; and for foreign works, the same provisions, except that protection should be no longer than that afforded to the author by the country of which he was a national.

61 Hearings Held Before the Committee on Patents, House of Representatives, 74th Cong., 2d Sess. (Feb., Mar. and Apr., 1936). ea S. 3043, 76th Cong., 1940.

The bill also provided that an assignment would be effective for no more than 25 years unless accompanied by a continuing royalty agreement, in which case the assignment could be for as much as the full term. In the event of an assignment for a lump sum the rights would revert to the author or his successors after the 25 year period. No hearings were held on the Shotwell bill.

The Shotwell Committee had solicited opinions from various interests which were concerned with copyright before drafting its bill. In a summary of the suggestions of these interested groups the Committee stated that the book publishers and the Authors' League of America favored a term of the life of the author plus 50 years, and the motion picture industry any term so long as the beginning and end of the term might be easily ascertained. The radio broadcasters, American Society of Composers, Authors and Publishers, the periodical publishers and the group known as Scholarship and Materials for Research were the remaining interests invited to comment but they apparently made no specific recommendations as to duration.

63

In a comparison of drafted proposals 6 prepared later for the Committee it is stated that the book publishers and radio broadcasters proposed a single term of 56 years from publication for published works, and from creation for unpublished works; ASCAP, a 28 year term, plus a 28 year renewal term, based on publication for published works and creation for unpublished works; the Authors' League of America, life of the author plus 50 years; and the motion picture industry, 56 years from public presentation for works publicly presented, life plus a short term of years for individual works not publicly presented, and a short term of years after creation for corporate works not publicly presented.

Some general conclusions in regard to duration may be drawn from the provisions in the various bills described above, and the hearings conducted in connection with them. Perhaps the most significant is that there was comparatively little controversy over the various provisions on duration. Discussion of them occupies only a minor portion of the hearings. Heated debate occurred on such subjects as formalities, the manufacturing clause, statutory damages, divisible copyright, compulsory license, and innocent infringers. The various bills seem to have failed because of the failure to compromise conflicting interests on one or more of these issues rather than on the issue of duration. The Vestal bill might well have become law had the Senate remained in session. That bill provided for a term of the life of the author plus 50 years, in the version which passed the House, the provision on which there was more controversy than any other proposed provision on duration. It might be concluded, therefore, that if other problems had been solved, a bill containing any one of the proposed terms, with the exception of Senator King's 17 year proposal, would have been acceptable to the different groups concerned. Generally speaking, the individual creators and their publishers supported a longer term and favored the life of the author plus 50 years, although they were willing to agree to a term of 60 or 56 years from creation or publication if some of their other aims could be

63 Sargoy, Comparison of drafted proposals of the various interested groups submitted to the Committee for the Study of Copyright in respect of proposed amendments to the Copyright Law of the United States. (1938).

62348-61

achieved. The authors, with some exceptions, seemed to favor the abolition of renewals but, apparently, under the misapprehension that the lump sum assignment problem would be overcome by the proposed legislation. The only proposals which might have had this result were the limitation in time placed upon lump sum assignments in the Shotwell bill and the similar provision for musical and dramatico-musical works in one of the Sirovich bills. The publishers favored the abolition of renewals.

On the other side, favoring no extension of the term, were such users as radio broadcasters and record manufacturers. They also favored abolition of the renewal feature of the existing law.

IV. ANALYSIS OF BASIC ISSUES

A. DATE FROM WHICH THE TERM IS TO BE MEASURED

1. Present law

At the present time the duration of statutory copyright in the United States is measured, in the case of published works, from the date of publication and, in the case of unpublished works which qualify for statutory protection, from the date of registration of a claim to copyright in the Copyright Office.

There are several arguments, based for the most part on continuity, in favor of retaining the date of publication as the starting point of the term for published works. Even though the law is cloudy with regard to what constitutes publication, there is a considerable amount of case law upon which to rely, and it may be argued that to abandon the concept now might result in creating more problems than it would solve. Also, publication as a basis may be unavoidable for some kinds of works such as works authored by organizations and anonymous and pseudonymous works.

Also important is the connection between the date of publication and formalities under the present law.

The primary objections to the date of publication as a starting point are two: first, it is difficult in many situations to determine whether or when publication occurred; second, because of the interpretation which has been placed upon the word "publication" by the courts, the word does not include many types of disseminations which, as a practical matter, have the same effect as publication.

64

It is not within the scope of this paper to explore in detail the problems of what constitutes publication. Some examples will illustrate the problems. No one knows at this time just what is the status, in regard to publication, of works first disseminated by means of sound recordings. Works which are performed for millions through the medium of radio and television are thought to be unpublished in the copyright sense if no copies through which the work can be visually perceived have been distributed.65 It is not clear whether a somewhat limited distribution which precedes a general distribution may or should be considered to constitute publication. Some courts have held that a quite limited distribution constitutes publication which will

See Kaplan, Publication in Copyright Law: The Question of Phonograph Records, 103 PA. L. REV. 469 (1955).

65 Ferris v. Frohman, 223 U.S. 424, 32 Sup. Ct. 263 (1912); Uproar Co. v. National Broadcasting Co., 8 F. Supp. 358 (D. Mass. 1934) modified, 81 F. 2d 373 (C.C.A. 1936); and see Kaplan, supra, note 64.