2. No other country in the world imposes this penalty upon its own or foreign authors. Publishers and authors of most Western countries look upon the clause with abhorrence. Its continued existence raises the threat that other nations may adopt similar restrictions against American authors in retaliation.

3. The clause harms American authors most in circumstances where little benefit results to the American book manufacturer or his employees. They seek to prevent the American publisher from having all or part of the manufacture of a book done abroad. However, the American author is most critically affected in another situation-when he is published abroad by a foreign publisher. This usually occurs because he is residing or studying in a foreign country, or working there for our Government, a newspaper or magazine, or other employer; or, occasionally, when he cannot find an American publisher.

The limitations of the manufacturing clause make it more difficult for American authors to have their works published in these circumstances; and where they are published abroad, it has resulted in forfeiture of copyrights. The American book manufacturer and his employees derive little benefit from this injury to the author. The author does not publish abroad because it is cheaperbut because he wants to be published. Often the choice facing him is not between publishing here or abroad-it is between publishing abroad, or not being published at all.

The manufacturing clause is completely discriminatory:

1. It discriminates against American authors. It does not require that authors of any other country-although they write in English-have their books published here as a condition for retaining U.S. copyright protection.

2. The clause discriminates against authors of books. It does not require that the American author or copyright owner of any other type of work—e.g., a motion picture-have such works manufactured here in order to retain U.S. copyright protection.

3. It discriminates between authors and other American citizens who import products from abroad. Other citizens are not threatened with confiscation of their property rights in this country as a penalty for avoiding import restrictions. In view of these unjustified discriminations, it is indeed likely that the manufacturing clause violates the Constitution of the United States.

REVISIONS OF SECTION 601

If the manufacturing clause is retained in the act, we respectfully urge that further revisions should be made in it.

Section 601 does modify some of the harsher aspects of the manufacturing clause. It raises the import limit on foreign copies from 1,500 to 3,500. Importation of foreign-manufactured copies above the allowable 3,500-copy limit would no longer result in a total forfeiture of copyright. It would still, however, permit anyone to issue an unauthorized edition of the work until an authorized American edition were published by the author.

Another important change made by section 601 is to eliminate the present ad interim clause under which an American author must now have an edition published here within 5 years after a first publication abroad.

These changes, proposed in section 601, should be adopted. However, we submit that three further revisions are required.

First, we believe that the clause should not apply to works of American authors which are published by foreign publishers. As we have noted, this sort of publication does not pose even a theoretical threat to American book manufacturers and their employees. At the very least, the clause should not apply to works of American authors published by foreign publishers when the author resides abroad at the time the publishing contract is executed. Second, the provisions of section 601(d) should be modified. This clause provides that where more than 3,500 copies are imported-by anyone-the author must prove he did not authorize the importation in order to prevent, or collect damages for, an infringing edition. This would place on the author or his heirs the often impossible burden of proving a negative to protect his copyright. The additional copies might be exported to the United States by a foreign publisher or wholesaler, without his knowledge; they might even be imported by a potential infringer to lay the groundwork for an unauthorized edition. The author may be unable to prove that he did not authorize, or acquiesce in, the importation. It might occur years after the authorized pub

lication abroad. It might occur after the author's death-when even his testimony would not be available to his heirs. To prove the negative, the author might be required to seek evidence abroad from the original foreign publisher. This is difficult and expensive. It would also be impossible if the publisher had gone out of business.

Certainly, if others are to be given the privilege-under the clause of publishing an author's work without his consent or compensation, they should be required to sustain the burden of proving that he authorized the importation of more than 3,500 copies. If the evidence that he did exists, they can obtain it by pretrial examination. But the inability of an author, or his heirs, to prove the negative should not create the privilege. If doubts are to be resolved, justice requires that they be resolved in favor of the author of a work-and not in favor of the manufacturers who seek to hold his rights hostage for the enforcement of import restrictions, or poachers who wish to issue unauthorized editions of his work, for their profit.

Third, for the same reasons, we urge that the 3-month grace period, granted potential infringers in clause (B) of section 601(d), be eliminated (line 17, p. 33). This is an open invitation to infringement, after an authorized American edition has been published. We submit that once the author has filed a registration of an authorized American edition of his work, no one should be permitted to issue an infringing edition.

Mr. KARP (resuming). On the jukebox exemption, on the revision bills' proposal to eliminate the exemption, we simply could not add anything to the overwhelming argument in favor of abolishing the exemption and we will rest on that.

The compulsory license clause would be modified in the revision bill to provide that a higher rate be paid to composers when their music is recorded without their consent, under this clause, by any record company who chooses to use it.

The compulsory license clause does not require the recording company to pay a minimum fee: a recording company is free to bargain for as low a fee as it wants for the privilege of using any author's work, and can use all of the force of competition in the marketplace to do that. The clause does impose a maximum fee on the author. He has no choice beyond the statutory fee he cannot go, he must take it, he can never get more. Therefore, we think that the proposed revisions in the rate, set forth in the bill, are reasonable and we hope that the committee will find them So, too.

Lastly or next to lastly is the troublesome subject of termination of long-term transfers, of reversion. We are happy to report that the Authors League has reached an accord with various users' organizations, with the American Textbook Publishers Institute, with the American Book Publishers Council.

I understand that certain organizations of music publishers also find acceptable the proposals in the bill as modified by changes agreed to jointly by these organizations which are contained in the memorandum we submit. There are one or two industry groups that are still opposed to the clause even though the rest of us on both sides of the fence have found a way of modifying it to work out our differWe hope that they will see the light of reason and withdraw their opposition to a clause that is both reasonable and, ironically, an improvement over the present law in their industries.

ences.

We have written at length about reversion in our long paper. I would not try to repeat the arguments here. I would like simply to point out the proposal in this revision bill is that where an author grants away his copyright in perpetuity (in other words, makes a

contract with the first business that makes a use of his work, giving it rights for the duration of the copyright) he may, at his election, terminate that grant 35 years after it is made.

Now this clause would replace the present renewal clause of the 1909 act. This was specifically designed to permit authors to make grants of rights in their work for a 28-year term and be able to reserve the rights to the second 28 years of copyright because it is not only imprudent but also impossible to bargain sensibly over rates and terms of compensation for literary property on a perpetual basis.

These long-term assignments, or assignments in perpetuity, are imposed ordinarily on authors as the result of the superior bargaining power of users. The restraint on them we find in the present act (and the type proposed in the revision bill) are in a sense a sort of RobinsonPatman and Clayton Act protection in the literary marketplace against this inequitable use of superior bargaining power.

Lastly, as to the formalities that are required to secure copyright, the revision bill makes significant improvements both in terms of the type of placement and wording of notice that are required to preserve copyright in this country, a provision by the way which is not required in other countries of the Western World. It also makes new provisions for curing defects in the copyright. On this again we have made certain proposals for changes to the Copyright Office and to the committee, and I will leave the statement of these to our memorandum.

Mr. STOUT. Mr. Chairman, I would like to add a word or two to the answer that was given you, Mr. Hutchinson, to a question you asked about the loss of the common law right without limitation." I would like to comment, on that, that actually that change regarding the loss of the common law property right in something you have written means very little, next to nothing to professional writers of books.

I would like to call to your attention that it may mean something to a few citizens. For instance, if a man, not a professional writer at all, he may be a great industrialist, he may be chairman of a House committee, he may run a drugstore, he may be anybody, he is a citizen, and he decides to write his memoirs and spill everything, but he decides that should not be published until a hundred years after he dies, under the present existence of the common law right he can do that.

Under the new law if he does that and leaves strict instructions it is not to be published for a hundred years after he dies, for the expiration of the term under the new law his instructions need no longer be obeyed by anybody because even his heirs possess no common law proprietary right in that material. Anyone who got hold of it legally could go ahead and publish it against the wishes of the man who originally wrote it. I doubt if that is a terrifically important thing, but I did think it was proper for me to call attention to the fact that that change probably is of no great concern to professional writers but it may be in the coming years to a few other American citizens. Isn't that correct, Irwin?

Mr. KARP. It is my painful duty to say, Mr. Stout, that it is only partially correct.

Mr. STOUT. That is what lawyers are for.

Mr. KARP. Actually, Mr. Hutchinson, there are being published in the United States today many books not only by amateur but by pro

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