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fessional authors who are long since dead. Mark Twain is one of the more common examples. There have been several works by Mark Twain published long after his death. These books under the present dual system of statutory and common law copyright can be protected for 200 or 300 years. There have been many such books.
It is true, as Mr. Stout said, to a dead author it is of very little significance. But in terms of the availability of works under the present dual system, many works are much less available than they would be under the revision bill.
This is true not only of posthumous publication of professional writing, but also of use of works by scholars, historians, and so forth. There has been under the present dual system a tremendous inhibition against the use of manuscripts, historical documents, and the like deposited in libraries 50, 100, 200 years ago. They literally belong, and the rights to publish them belong, to somebody today-some heir of the original author. Were such a manuscript to be published today after having been protected by the common law for 200 or whatever it was years, it would still be protectable under the statutory copyright for another 56 years.
Under the revision bill all works would come under a common system of life plus 50 years, or in the case of works made "for hire," 75 years from creation so that the total period of protection would actually be much less than it is right now. The arguments about changes in the law making works less available is, in this important area, totally inaccurate. The revision bill would in fact make many works available much sooner than they are under the present law.
Mr. STOUT. Thank you, Irwin. I hope you will forgive me for bringing this in but I did want to give the attitude of the authors and professional writers in the answer to your question.
Mr. Herman Wouk.
STATEMENT OF HERMAN WOUK ON BEHALF OF THE AUTHORS LEAGUE OF AMERICA
Mr. WoUK. Thank you, Rex.
Mr. Chairman and members of the committee, I should make it clear that my colleagues who have spoken before me are longtime leaders of the Authors League and have been living with the problem much longer than I have. I am one of their followers and a member of both guilds. When Mr. Karp said that I would speak last I said to him, "Now look, I am not as familiar with this material as the rest of you and, Irwin, I don't know, but I think maybe you ought to speak after me because I am likely to say something stupid and you can fix it up." He said, "Well, you are right, I will speak last." I was not so flattered by the speed with which he agreed with me.
I am puzzled by this present reversal of the order and I think, Irwin, you had better stand by.
We are appearing here clearly in support of the proposed measure that has come from the Copyright Office. We come to praise the Copyright Office for an extraordinary task well done, of fulfilling their duties under the law, of keeping copyright protected-and protected in a contemporary setting-and of reconciling in years of investigation
so many diverse interests that bear on this extremely important property question.
I have been thinking what it is that the Copyright Office essentially does. "Copyright" I suggest is a shorthand word that describes the restriction of the right to copy. The restriction of the right to copy is what writers and thinkers live by. It is all we have to earn our bread and to support our families.
This restriction of the right to copy is not as old a property right as many of the property rights that you deal with in law, gentlemen. It started in the 18th century. Before that there was no restriction of the right to copy, and the intellectual and artistic community was not the kind of community that exists today. The man of intellect was either a cleric supported by the church; or he was the pet and dependent of a rich man or a prince; or he was one of a group of embittered starvelings.
The free and independent artist and thinker standing on his own feet as a member of the polis begins with the restriction of the right to copy. It gives him his living.
In the 18th century, too, a very simple principle became the basis for the founding of a free community. The principle was stated in five words, "taxation without representation is tyranny," something we all learned as schoolboys. On the basis of that phrase a new nation came into existence.
The restriction of right to copy may be phrased so: "copying without compensation is piracy." On this simple basis that copying without compensation is piracy, the free community of the arts and the intellect arose, and exists to this day. It was great wisdom in the British legislators to restrict the right to copy, a wisdom which was followed throughout the Western World and then throughout the civilized world, and which was taken over into the Constitution by the proviso that the Congress had the duty to protect and restrict the right to copy-that is, to make laws covering copyright.
My old friend and neighbor, Kenneth Keating, made a good joke when he said the disparity between the $2 billion figure and the $6 billion figure must be what the authors make. I wish that it were so.
I am not here to plead poverty personally. I am, as John Hersey said, and John is like me in this, one of the very fortunate few who can live wholly by what we write. John gave you a statistic that $3,000 a year, perhaps a little more, is what the average author earns. But the successful author and the average author may well not be the most important author. The most important authors almost by definition cannot show up at a hearing like this, because we don't know who they are. There is a permanent lag in recognizing the unacknowledged legislators of mankind, the poets and the original thinkers who are coming up and defining the life that we live and the world around us. But to these obscure thinkers and writers and poets the marginal moneys that come in from the restriction of the right to copy is the difference between their writing and their not writing, possibly the difference between their existing and not existing.
When James Joyce was changing the face of world literature, when he was already very well known, he was living from hand to mouth
on royalty checks of a few pounds and a few dollars, coming from this restriction of the right to copy.
When you were reading Thomas Wolfe, famous as he was, he was living from hand to mouth on small royalty checks.
I have a friend of whom you have probably never heard. He is a professor in a university in Vermont, an educator. His name is Dr. Raoul Hilberg. He has written a book which I think is one of the important books of the 20th century, called "The Destruction of European Jews," a thousand pages long. It took him 9 years to write it. I think the book is important because it is a permanent, profound, and complete study of what happened in Nazi Germany to the Jewish people. The book has sold, so far, 2,000 or 3,000 copies. But the money that he makes from that book is extremely important to him.
I visited him to talk about his book not long ago. He has a young, pretty wife. They live in a small apartment. Dr. Hilberg was considering embarking on another work of an equally massive nature and they were talking about whether it would be possible for him to add to his burdens as a teacher the undertaking of this huge writing task. They talked about the royalties and the differences that the royalties would make.
I happen to know Dr. Hilberg but I don't know all of the men of this quality to whom the restriction of the right to copy makes the difference as to whether they will make a contribution of unmeasurable importance to the life of the United States. That is what we are talking about here.
The Copyright Office is interested in the restriction of the right to copy so that the artistic and intellectual community can continue free and self-supporting. You are here in fulfillment of the constitutional requirement that this right be protected.
I am speaking here in the most general terms because I am persuaded that once it comes down to a fundamental understanding that the restriction of the right to copy is the floor under a free community of art and intellect in the United States that you will come to the proper determination of the details that we have been talking about here.
Let me say one more thing. A community of art and intellect that stands wholly on its own feet, that supports itself by its earnings from the restriction of the right to copy, is something that you find only in the free world.
We are not dependent on the state. We are not dependent on patrons. We live by this restriction of the right to copy. We ask only that the well-considered measure of the Copyright Office which carries this duty of protecting that right, we ask that this measure be passed because as a result of our most earnest study we find it protects us as we wish to be protected.
Thank you very much.
Mr. KASTENMEIER. Thank you, Mr. Wouk.
Thank you, Mr. Stout and your colleagues, for this presentation. I would like to ask the committee if there are any questions to ask of any of the witnesses.
Mr. ST. ONGE. I have no questions.
Mr. TENZER. I have one question before Mr. Karp leaves the witness table. I have not had much experience with the copyright law in the
past and perhaps the answer lies within these volumes that we have been discussing today, but I would like to ask this question:
Is it possible for there to be a corporate copyright owner?
Mr. KARP. Yes, there is.
Mr. TENZER. How would you determine lifetime plus 50 years for a corporate copyright owner?
Mr. KARP. You don't in the case of a work written for hire such as a motion picture or a magazine such as Time or Life, written by staff writers on salary. The term of copyright, as provided in the act, for works made for hire, which would be corporate works, would be 75 years from publication or a hundred years from creation.
Mr. TENZER. That work written for hire would be limited to 75 or 76 years and the other would be lifetime plus 50 years.
Mr. KARP. Yes, sir.
Mr. HUTCHINSON. I would like to say that I have been very much impressed by this presentation. I think it has been able and helpful and very informative. Thank you for it.
Mr. KASTENMEIER. I have just one comment on something which Mr. Hersey said. It has been repeated by a number of authors. I wonder whether or not this is a fair position with respect to teachers, that the law be written in such a way as to protect the authors but as to the teachers there really have not been and probably there won't be any suits against the teachers even though presumably they infringe in some small way. Whether this is a satisfactory result is the question; namely, should the law be written in a fashion acceptable to authors but really permitting a sort of bootleg infringement on the part of teachers? Mr. Karp, do you think this is a satisfactory solution?
Mr. KARP. Mr. Chairman, first of all, the present law and the revision bill do permit various uses by the teachers. It certainly would not be fair to say that the alternatives were no use or only bootleg use.
The problem we are confronted with by certain proposals is the writing in of exceptions to this basic right of copying that would permit massive-in some instances massive and in other instances very large amounts of copying of copyrighted works. We think that the solution is to preserve the right to copy which has never presented a problem before largely because technology did not make it so easy to abuse the right to copy, to preserve the right to copy and to arrive at one or another system, and we think there are various systems available, for licensing those who want to make copies for educational purposes; granting licenses to do so and to collect fees and the fees would have to be attuned to the educational purposes.
We have made one proposal which is rather detailed and I think would only confuse the record here but we will be glad to submit it. for the committee's consideration. There are many others.
Mr. KASTENMEIER. You understand I am not making an argument necessarily against the revision as written or the existing state of the law. What I am arguing really is that the constraint of the author is not to sue teachers where the right exists. You have a state of affairs literally where you have teachers knowingly infringing, based on the good faith of the authors not to sue. Is that a desirable state of affairs? I wonder whether it is, and whether somehow we must take this into account.
Mr. HERSEY. This is one reason why we would like to keep the fair use definition open because it seems to us that this is where the give and take has to come. What we want to be protected against, as Mr. Karp said, is the massive abuse of this right.
Mr. STOUT. May I say one word?
Mr. KASTENMEIER. Yes, Mr. Stout.
Mr. STOUT. Actually the problem has been handled heretofore by a consensus between teachers on the whole and writers on the whole as to what is fair use and what is not. I think any writer I know, and I know a lot of them, would say, I think, that he regards as fair use one or two copies of a little poem he wrote by a teacher. Now, is that legally correct? I don't know. I am merely describing how I think the problem has been handled heretofore.
I personally see no reason why, with the provisions in the new copyright law practically identical with those in the existing copyright law, I myself can see no reason why such a mutual sort of unspoken understanding should not be continued. I should think it could, provided both parties still remain reasonable and fair and decent in their attitude toward it. Isn't that true, John, or not? Mr. HERSEY. That is true.
Mr. JANEWAY. Mr. Chairman, it is the new technology, the sudden availability of new forms of copying that raises the question here. Certainly we will arrive at some accommodation with them. But they are revolutionary and we would like a chance to work out our accommodation without having our right to do that given away before we have had this opportunity to adapt ourselves to the new technology.
Mr. TENZER. Mr. Chairman, along this same line, I would like to ask Mr. Karp if an individual formed a corporation and transferred his copyright to a corporation, would that in your opinion also come under the "for hire" interpretation?
Mr. KARP. No: it would not.
Mr. TENZER. The individual would be able to assign the copyright to the corporation which he formed and thus have the benefit of a life plus 50-year protection.
Mr. KARP. Yes.
Mr. TENZER. I just wanted that to be clarified for the legislative history.
Mr. KARP. And that would be no different than an author assigning rights to any publisher which is a corporation and then which becomes the holder of the right. The important thing is that as long as he lives and for 50 years after his death, if the work is used and income is produced, he and his family will in the ordinary course of events be paid a royalty.
Mr. TENZER. The distinction we were making is that of an individual who forms a corporation and assigns the copyright and one who is employed by a corporation who writes and produces while he is in the employ of the corporation.
Mr. KARP. Yes; and the distinction is basically an economic one. The man who writes on salary is being paid, even while he is not writing. A man who creates a work independently is creating it at the risk of his own sustenance.