I am accompanied by E. Kendall Gillett, Jr., Esq., a member of the law firm of Whitman, Ransom & Coulson, New York, N.Y., counsel to MPA, and by Charles D. Ablard, Esq., vice president of MPA in Washington, D.C.

The Magazine Publishers Association is a publishers' association of 113 members who publish over 300 magazines of national circulation. Consumer magazines published by MPA members account for 79 percent of the total circulation of magazines of that class, as audited by the Audit Bureau of Circulations.

The Audit Bureau of Circulations, incidentally, is an independent bureau, whose figures, I think, may be very safely relied upon. There is no special interest that lies behind padding any such figures. That is why I advert to the Audit Bureau of Circulations.

I have been privileged, during the past several years, to serve on a Panel of Consultants to the Register of Copyrights which has studied the copyright law with a view to its needed revision. This Panel has helped in the preparation of the bill now under consideration by this subcommittee. This bill has emerged from careful studies and thorough discussions conducted over the years by the Copyright Office of the United States.

I wish to take this opportunity to thank the Register of Copyrights, the Honorable Abraham L. Kaminstein, and his able associates in that office for the valuable work they have so conscientiously performed in this important area of the law.

Speaking for the Magazine Publishers Association through its copyright committee, which committee is composed of legal counsel to several of the members of the association, we respectfully submit our views on certain provisions of H.R. 4347, a bill now under consideration of this committee, and one that is designed to effect general copyright law revision.

In the ensuing expression of views we, as members of said copyright committee, have addressed ourselves not only to those relatively few sections of said bill which expressly and significantly affect magazine publishing but also to certain other sections which bear no less significantly upon that activity but which because of their general import touch magazine publishing less directly.

In the main, however, the focus of our concern in this communication is magazines or periodicals (or, as the bill itself names those media, "collective works") and the relation of the bill to those media.

We will, not in logical sequence, but more in the sequence of the bill, itself, address ourselves to making some 11 points, that I would like to amplify as I proceed. But if I may be permitted, gentlemen, at the outset, I would like to say that the bill, itself, in its overall aspect, is one that we are in favor of.

We subscribe to its general purposes, and, particularly, if no other sections of the bill were involved, other than 301, which, in our judgment, would make for a uniform system of copyright law, we would be moving in the right direction most significantly. This would enable the Federal courts to fashion a uniform body of law, which seems to us highly desirable, because we would then overcome the duality that we presently have with the Federal law on the one hand stemming from publication or registration, and, on the other, the common law rights as determined by the laws of the individual States.

Hence, the pre-emption provision of 301 is of singular significance, in our judgment.

I wanted to make mention of the fact that, on balance, even though we are taking issue with some of the provisions of the bill, we feel that the bill is a desirable bill, and would support it in its overall aspect as a significant step in the right direction, making a judgment on balance.

With regard to point 1, in the bill's own dictionary, which is section 101, works made for hire are defined. Definition 2, found in lines 26 to 30 of page 4 appears, in our judgment, too restrictive. In lieu thereof, we submit that that particular definition should be enlarged to read "a work specially ordered or commissioned, if the parties agree that the work shall be a work made for hire."

There are certain significant, in our judgment, changes in that language that would open the door to works made for hire, and we believe that that door should be opened to a greater degree than it presently would be if we were to follow the language of the bill.

Section 105 of the bill would exclude from copyright protection works "of the U.S. Government." However, subsection (b) appearing in lines 11 through 13 of page 6 appears susceptible of an interpretation which might too narrowly define such works because under that subsection the excluded works must perforce be

prepared by an officer or employee of the United States Government within the scope of his official duties or employment.

We think it better to follow the formula of existing law by leaving open for judicial determination the question of what constitutes a work of the U.S. Government. Of course, under the bill in contradistinction to existing law "works" and not merely "publications" of the U.S. Government would be disentitled to copyright status.

We are prepared to accept that enlargement, but we submit that what is or is not such a work should depend upon judicial decision rather than statutory definition. Hence, we request the deletion of subsection (b) of section 105 and, Mr. Chairman, with regard to this point, I think we approach the position taken by the American Newspaper Publishers Association. I feel that we are in line with the view taken by that body, and the goal of that body as well as of the association that I presently represent is that there should be greater access to governmental publications, or works of the U.S. Government.

Freer access, we think, is in the public interest, and we are fearful that the definition under the bill would too narrowly define the excluded works, and we would prefer a broader definition of the excluded works, but we are prepared to allow the courts to determine that in the last analysis.

We believe that subsections (1) through (4) of section 109 of the bill go too far in exempting from liability for infringement certain educational, religious, and charitable performances and exhibitions of copyrighted works. While the worthiness of purpose and nonprofit nature of the endeavor should be taken into account, it does not seem to us to be in the wise public interest to immunize as completely as these subsections would those particular uses of works otherwise protected.

(Mr. Wasserstrom's prepared statement is as follows:)

STATEMENT OF THE MAGAZINE PUBLISHERS ASSOCIATION, INC., BY ALFRED H. WASSERSTROM, Esq.

Mr. Chairman, distinguished members of the subcommittee, my name is Alfred H. Wasserstrom. I am a member of the law firm of McCauley, Henry & Brennan, of 959 Eighth Avenue, New York, N.Y. I serve as chairman of the copyright committee of the Magazine Publishers Association, known as MPA, and which association has its main offices at the Magazine Center, 575 Lexington Avenue in New York City. I am presenting testimony today on behalf of that association in my capacity as such chairman.

I am accompanied by E. Kendall Gillett, Jr., Esq., a member of the law firm of Whitman, Ransom & Coulson, New York, N.Y., counsel to MPA, and by Charles D. Ablard, Esq., vice president of MPA in Washington, D.C.

The Magazine Publishers Association is a publishers' association of 113 members who publish over 300 magazines of national circulation. Consumer magazines published by MPA members account for 79 percent of the total circulation of magazines of that class, as audited by the Audit Bureau of Circulations.

I have been privileged, during the past several years, to serve on a panel of consultants to the Register of Copyrights which has studied the copyright law with a view to its needed revision. This panel has helped in the preparation of the bill now under consideration by this subcommittee. This bill has emerged from careful studies and thorough discussions conducted over the years by the Copyright Office of the United States. I wish to take this opportunity to thank the Register of Copyrights, the Honorable Abraham L. Kaminstein, and his associates in that Office for the valuable work they have so conscientiously performed in this important area of the law.

Speaking for the Magazine Publishers Association through its copyright committee, which committee is composed of legal counsel to several of the members of that association, we respectfully submit our views on certain provisions of H.R. 4347, a bill designed to effect general copyright law revision. In the ensuing expression of views we, as members of said copyright committee, have addressed ourselves not only to those relatively few sections of said bill which expressly and significantly affect magazine publishing but also to certain other sections which bear no less significantly upon that activity but which, because of their general import, touch magazine publishing less directly. In the main, however, the focus of our concern in this communication is magazines or periodicals (or, as the bill itself names those media, "collective works") and the relation of the bill to those media.

1. In the bill's own dictionary, which is section 101, works made for hire are defined. Definition (2) thereof found in lines 26 through 30 of page 4 appears too restrictive. In lieu thereof we submit that that particular definition should be enlarged to read "a work specially ordered or commissioned, if the parties agree that the work shall be a work made for hire."

2. Section 105 of the bill would exclude from copyright protection works "of the U.S. Government." However, subsection (b) appearing in lines 11 through 13 of page 6 appears susceptible of an interpretation which might too narrowly define such works because under that subsection the excluded works must perforce be "prepared by an officer or employee of the United States Government within the scope of his official duties or employment." [Italic supplied.] We think it better to follow the formula of existing law by leaving open for judicial determination the question of what constitutes a work of the U.S. Government. Of course, under the bill in contradistinction to existing law "works" and not mere "publications" of the U.S. Government would be disentitled to copyright status. We are prepared to accept that enlargement, but we submit that what is or is not such a work should depend upon judicial decision rather than statutory definition. Hence, we request the deletion of subsection (b) of section 105.

3. We believe that subsections (1) through (4) of section 109 of the bill go too far in exempting from liability for infringement certain educational, religious, and charitable performances and exhibitions of copyrighted works. While the worthiness of purpose and nonprofit nature of the endeavor should be taken into account, it does not seem to us to be in the wise public interest to immunize as completely as these subsections would those particular uses of works otherwise protected.

4. In subsection (c) of section 201 contributions to collective works are dealt with. The second sentence thereof contained in lines 18 through 23 of page 12

of the bill discriminates invidiously, in our view, against owners and publishers of those works. Provisions of like import are not found elsewhere in the bill. We submit that these provisions are neither necessary to protect the private interest of the independent author of the contribution to the collective work nor desirable in terms of overriding public interest. Hence, we request that the second sentence of subsection (c) of section 201 be deleted.

5. Section 203 of the bill would effect termination of certain copyright transfers and licenses by operation of law and notwithstanding express terms to the contrary in the transfers and licenses. Such "afterthought" breach of a freely made promise is, we submit, wrong in principle, and it is no less so because the voluntary act may be nullified only after 35 years from publication or 40 years from execution (whichever first occurs) and then only within a 5 years' period. There appears to be no sufficient reason for treating an author as the feckless "darling" of the law, as one who must be saved from the consequences of his own jural acts. We submit that section 203, which would accord to the author and his family a reversionary interest, should, as a matter of sound public policy, be omitted from the bill.

6. Section 205 of the bill, to the extent that it would apply to transfers to magazine publishers of then unpublished works (including those then incomplete and only partially "created") could impede magazine publishing by subordinating such grants to conflicting subsequent ones, absent recordation within the allotted time. We find no justification for the requirement that grants of this nature be recorded on pain of losing rights to subsequent grantees who are bona fide purchasers for value without notice, and who first record.

Moreover, we fail to see the need for recordation as a prerequisite to suit, as subsection (d) of this section provides. Under present law no such requirement obtains.

Accordingly, we submit that subsection (d) of section 205 be deleted from the bill and that subsection (e) of this section be limited in its reach to published works.

7. Chapter 3, particularly sections 302, et seq., covers copyright duration and provides, we think unwisely, for a term of copyright running for the life of the author plus 50 years. It is our considered judgment that the public interest would be better served if we were to preserve the basic pattern of existing law to the extent that copyright should endure for a definite and ascertainable period rather than for an indefinite and unascertainable (at least until the demise of author is ascertained) time.

We propose that copyright should run for a single, uniform, and fixed term to begin with creation of the work, as evidenced and confirmed by prompt registration, and to continue for a limited and specified number of years from such creation or from subsequent initial publication or public dissemination of the work. What should be the length of the term is, of course, debatable with the desideratum being the striking of a fair balance between private need and public interest. Some of us strongly suggest that the term of copyright should run for 50 or at most 56 years, thereby keeping the work sufficiently long in the private domain without excluding it too long from the public domain.

In passing we wish to observe that the arguments in favor of the principle of a fixed term measured from a reasonably ascertainable base point, as opposed to a term measured by the life of the author plus X number of years, were persuasively marshaled by the Register of Copyrights himself in his commendable and exhaustive report on the General Revision of the U.S. Copyright Law of July 1961, which was published that year as a House committee print of the 87th Congress, 1st session.

8. In section 403 of the bill we find another instance of specific reference to contributions to collective works. Here too, we feel, with particular reference to subsection (b), that the magazine or periodical publisher might quite likely be unreasonably disadvantaged were this subsection to be enacted into law. We say that because if a general or blanket notice of copyright is relied upon (and quite properly it might be under this section which to that extent reflects industry practice), then the absence of specific notices of copyright on the separate contributions contained within the magazine or periodical would enable the publisher (i.e., the putative copyright owner of those contributions) to effectively convey to an innocent purchaser more than the publisher had a right to convey under the terms of the limited grants made to him by the authors of the contributions. That hazard, we fear, is likely to induce authors to insist upon specific notices even though specific notices of copyright are rare

indeed and their appearance, especially a plurality of them in a single issue of a magazine or periodical, runs counter to settled editorial and industry practice. Hence, we request that subsection (b) of section 403 be deleted. 9. We have one slight change to propose in subparagraph (1) of subsection (a) of section 406 in respect of the copies of published works which are to be deposited. We suggest that there be added to the word "edition" therein appearing the phrase "then published." This phrase is found in existing law on this subject.

10. Chapter 5 deals with infringement and remedies. We are gratified to find that this bill recognizes the role of innocence as evidenced not only by subsection (b) of section 404 which would exempt innocent infringers from liability for damages and profits under section 504 but also by subparagraph (2) of subsection (c) of section 504 which would empower the court to reduce the statutory damages otherwise recoverable under that subsection to $100 against an infringer who proves that he was unaware and had no reason to believe that he had committed an infringement.

11. We wish to express opposition to chapter 6 of the bill which would maintain what we believe to be certain of the undesirable and unfairly discriminatory features of the "manufacturing clause" of existing law. The brunt of existing law on this subject is borne by particular works in English of American origin. Admittedly, the thrust of the bill's manufacturing clause is in certain respects less sharp and the effect, therefore, less onerous than the comparable clause of the Copyright Act. However, the reach of the bill's clause seems greater than that found in existing law at least to the extent that it would apply to the English language portions of all works which consist "preponderantly of nondramatic literary material" and not just to English language books and periodicals specified in subsections (a) and (b) of section 5 of the act. We submit that section 601 of the bill should be omitted.

I wish to state in closing that, in addition to the undersigned, the members of the Magazine Publishers Association's Copyright Committee are: John J. Cooke, Esq., 330 West 42d Street, New York, N.Y.; John S. Harding, Esq., 488 Madison Avenue, New York, N.Y.; Charles E. Oberle, Esq., 230 Park Avenue, New York, N.Y.; and E. Gabriel Perle, Esq., Time & Life Building, Rockefeller Center, New York, N.Y.

Mr. POFF. Mr. Chairman.

Mr. KASTENMEIER. Yes, sir.

Mr. POFF. Would the witness prefer to complete his statement, or would he like to be interrupted at this point for questions?

Mr. WASSERSTROM. I will defer to the members of the subcommittee. Whichever procedure is preferable to them is fine with me. Mr. Poff. Mr. Chairman, may I inquire?

Mr. KASTEN MEIER. Yes, Mr. Poff.

Mr. POFF. In your paragraph No. 3, you are, I am sure, aware that you are treading upon some rather delicate ground, and I think if the statement you made there is to be helpful to us in striking a proper balance, you will have to be a little more definitive.

Mr. WASSERSTROM. I recognize that, Mr. Poff, and it is not easy to be too definitive, but I think that the position of the committee that I represent and of the association that I represent is this: while we have nothing specific to suggest to the committee, we think that this area of the law should be left to fair use. Let the courts decide whether, in this particular instance, a copyrighted work has been infringed, which will depend upon the context of the facts that are taken into account in determining whether fair or unfair use is involved. That should be determinative.

Mr. PoFF. Do I understand, then, that you are recommending that subsections (1) through (4) of section 109 would be eliminated from the bill?