COMMENTS AND VIEWS SUBMITTED TO THE COPYRIGHT OFFICE ON WORKS MADE FOR HIRE AND ON COMMISSION This is in reply to your letter inviting comments of the members of the panel with regard to the study by Borge Varmer on "Works Made for Hire and on Commission." In my opinion, the proposed statute should provide that copyright in a work made by an employee should-in the absence of an agreement to the contrary-vest initially in the employer. While the present statutory provisions in this regard have as a whole proven fairly satisfactory, I think it would be an improvement to change the concept of "employee for hire" to "work created by an employee within the scope of his employment." I further believe that the employer in such cases should be treated as the copyright owner rather than as "author," although I do not believe that if other proposed revisions of the copyright law will be undertaken, the differences between "author" and "copyright owner" referred to at page 128 of the study will remain as significant as they may appear now. More particularly, the difference with regard to the renewal referred to in point (2) at page 127 would not concern us if the renewal term as such would be abolished as had been suggested. It is true, of course, that if we should substitute a term of copyright based on the life of the author, then the question of the author's nationality and the period of protection based on his life would become important. This problem, however, already exists with regard to corporations and other juristic persons in all those countries which presently measure the term of copyright on the life of the author and a certain period thereafter. It is true that it is somewhat fictitious to refer to a corporation as "author" and for that reason it may be better simply to provide that the copyright should initially vest in the employer. In any event, it should not be necessary to provide that in cases of this sort the employer acquires the status of copyright owner in a derivative way, i.e., by assignment from the author or a number of authors. I believe that it is desirable and necessary to provide that copyright in a collective work, such as a motion picture, which may include literary and artistic contributions from numerous sources initially vests in the producer-employer unless otherwise provided by agreement between the parties. The laws of most foreign countries provide that the term of copyright in such collective work owned by a corporation should be limited to 50 years from publication and no yardstick based on the life of the "author" should be used. I would also favor a special provision with regard to works made on commission along the lines that the general provision regarding works created by an employee or a group of employees should not apply to works created under special commission in the absence of an employer-employee relationship, unless the parties agree otherwise. It may also be well to add some special provisions with regard to newspaper contributions of photographs, although I would not favor legislation which would go into as much detail in this regard as does the new British Act. Sincerely yours, WALTER J. Derenberg. The stud[y] on *** "Works Made for Hire" do[es] not seem to me to raise any serious problems, and I would be quite content to see no change made in the law except possibly to provide a more elegant definition * * * as suggested on page 141 of the Varmer study. RALPH S. BROWN |