Under the definition found on page 4 of the draft bill, 4347, lines 26 to 30, it would appear necessary that a work made for hire be one that is

specially ordered or commissioned for use as a contribution

and then I am skipping

if the parties expressly agree in writing that the work shall be considered a work made for hire.

I think the essence of our criticism of that definition is that it would require not only that the work be expressly one made for hire, but that it be memorialized, that it be in writing. We feel that if the facts are such as to justify the court in concluding that it is a work made for hire, it could reach that status, and it should be able to reach that status, even though the parties haven't expressly so agreed, and certainly haven't memorialized their agreement, haven't put it in writing.

Mr. POFF. It occurs to me that the proposed amendment would broaden the definition in two particulars: one, as just described by the witness, and the other by excluding from the definition what is now restrictive language, and I quote

for use as a contribution to a collective work, as a part of a motion picture, as a translation, or as a supplementary work * * *.

Is this what you intended?

Mr. WASSERSTROM. Yes. We feel that if the section, subsection 2, were merely to provide-in other words, there seems to us no reason for singling out these particular kinds of works: the contribution to the periodical, the motion picture, the translation, the supplementary work. Of course, it touches our clients directly, insofar as it would cover contributions to collective works. It is only that facet of it that touches our clients directly, but we feel that those particular works should not be separately treated, and that the only definition one needs to make, and one should make, with regard to a work made for hire, is to use the language we suggest, and that is to say, any work specially ordered or commissioned if the parties agree that the work shall be a work made for hire, and that would cover all areas of contemplated use, not just those that are herein enumerated. Mr. POFF. That is all, Mr. Chairman.

Mr. KASTEN MEIER. Mr. Hutchinson?
Mr. HUTCHINSON. No questions.

Mr. KASTEN MEIER. In connection with Mr. Poff's question, what is the practice in the magazine industry with reference to which this may have application? What relationship do you have with the contributor of an article? Do you hire him, or is he a free agent who sells you a piece? Sometimes the distinction is difficult to make, and not expressed in writing?

Mr. WASSERSTROM. Yes, Mr. Chairman. I think what we are thinking primarily of is the independent author, and the contribution to the periodical, of course, not the work made by a staff employee or a worker employee under the usual acceptation of the term "a work made for hire." But the individual author may make, may enter into a contractual arrangement with a magazine, without putting anything in writing, and that, as a matter of fact, I think, is not the exception, but the rule.

And even on specially commissioned works, I think that might be the case. But the practice, it seems to me, is not consonant with an expressing in writing that the work be made for hire, and we don't think it should have to be so expressed in order for it to be a work made for hire. We should prefer to have the facts, the pertinent, relevant facts, laid before the court, and have the court, if the matter were to reach litigation, decide whether in this particular instance it was a work made for hire.

Mr. KASTEN MEIER. I have only one other question, and that is a very general question which I am asking you as a lawyer. I assume, ordinarily speaking, you would prefer statutory guidelines and definitions as opposed to judicial ones.

Mr. WASSERSTROM. Well, not necessarily. I think you can have an overdose of that. I think you have a good illustration of it in this particular bill, with regard to the question of fair use. I think there is considerable agreement, very substantial, clear-cut agreement, that it is desirable not to define fair use. At least, I haven't addressed myself to that in this memorandum, but I think the bill wisely omits a detailed definition, and I think it would be better to have the court pass upon that, in the context of the particular facts presented to the court, as to whether or not a particular use was a fair use.

Mr. KASTENMEIER. Yes, and you are also recommending that section 105, subsection (b), also be stricken and that issues related to it be judicially determined.

Mr. WASSERSTROM. Well, we feel that if you were to adhere, if you were to maintain the statutory definition-and I noticed from the supplementary report that came to my office only the other day, on Tuesday, that a work made by a governmental employee "in the Scope of his employment" is substantially the same as saying that it is made as a part of his employment, although it may have been felt that the phrase "within the scope of one's employment" was not quite as restrictive as "in the course of one's employment."

Now, maybe this is a semantic piece of legerdemain, or overrefinement of language, but I think it seemed that there was somewhat, something of a difference, between "in the scope of one's employment," and "in the course of one's employment." However, as I understand the supplementary report, the Copyright Office did not intend to make any difference. I think the scope of one's employment means, at least in the minds of the draftsmen, that that would be work made as a part of one's employment, and it is on that particular phase of the matter that we feel the definition might be unduly restrictive and come under copyright, whereas we feel it should not be under copyright. I think there should be ready, free access to those works, if they are works of the U.S. Government.

Mr. KASTEN MEIER. Yes. Of course, my question didn't go to the merit of that, but only as to what guide we might use in copyright revision to determine whether or not we should have statutory language for definitions and for guidelines, as opposed to leaving it to the judicial process.

Mr. WASSERSTROM. I would not recommend-I do this most respectfully-I would not recommend that the language excluding from copyright protection works of the U.S. Government be eliminated.

I think that should necessarily remain, imperatively remain; that is, the exclusion of works of the U.S. Government, the exclusion of them from copyright protection.

But I think whether a work is one of the U.S. Government should be left to the courts, rather than to follow the definition that is in the bill, in any case. We tried to suggest, among ourselves, some other definition that would give us the objective that we think the public should have, and we concluded that it would be better to leave the matter at large for the courts.

Mr. KASTENMEIER. Thank you, Mr. Wasserstrom.
Mr. POFF. I have a question.

Mr. KASTENMEIER. One final question.

Mr. PoFF. Mr. Wasserstrom, to return to the initial inquiry about your paragraph No. 3, this committee has been told that section 109 does not enlarge upon the area. Yet you seem to feel it is an undue enlargement. That is why I think it is important that you supply this information.

In what objectionable particular do you feel section 109 broadens the existing situation?

Mr. WASSERSTROM. Well, I would prefer to be accorded the opportunity to give the matter further thought, especially with the advice and aid of the other members of the committee of which I happen to be the chairman.

But one section that, to my mind at least, would go beyond present law in exempting from infringement, even though it is for a charitable purpose, or an educational purpose, involves the making of a copy. Unless you can bring yourself within the confines of the fair use doctrine, under present law, the making of a copy is an infringement. In my judgment, if you copy the whole of a work, I don't think the fair use doctrine would apply under decisions as I understand them today. It is only certain relatively unimportant portions of the work that may be copied with impunity, under the defense of fair use. But I think under this section, the whole of the work, the whole of a copyrighted work could be copied under the definition of exhibition of a work, rather than the performance. It is the exhibition that I think opens the door to the copying by certain devices, or the making of copies by certain types of mechanical devices, of showing images of the work. Mr. POFF. Well, I don't want to press the witness on this point, because I realize it is very intricate, and you want time to reflect. Mr. WASSERSTROM. Yes, sir.

Mr. POFF. And, yet, I must say that there are many people who feel that section 109 is not liberal enough to our educators, and our committee will be vitally concerned about striking the proper balance in this area.

Mr. WASSERSTROM. Well, I would welcome the opportunity to supplement that statement.

Mr. POFF. Thank you, Mr. Chairman. I have concluded.

Mr. TENZER. Mr. Chairman?

Mr. KASTENMEIER. Mr. Tenzer?

Mr. TENZER. Unless Mr. Hutchinson has a question.

I don't know whether I understood you correctly. You said that in your opinion, the making of a copy of a whole book or a whole work would not be intended under this section.

Mr. WASSERSTROM. No. It is doubtless my fault. That isn't quite what I mean. I said that—and I was speaking to the question of the fair use doctrine, as decisionally shaped today, under existing lawin my judgment, the copying of the whole of a work would not generally be exempt from liability, even under the broadest definition of fair use. But I think, under this section, it would be exempt from liability.

Mr. TENZER. Thank you.

Now, I thought you said that under the fair use doctrine, it was intended that an unimportant section of a work-I think you used the word "unimportant.'

Mr. WASSERSTROM. I did.

Mr. TENZER. Well, where would the distinction be if you took out an important section of a work consisting of one page, and a teacher copied that for use in a class? I don't think you intended to use the word "unimportant.'

Mr. WASSERSTROM. I think perhaps that was an unfortunate_term. Mr. TENZER. I just want the legislative record to be clear on that. Mr. WASSERSTROM. But the point I want to get across, Mr. Tenzer, was that the court-that is, the importance of the part taken is one of the factors, one of the elements, filling in the picture of fair use.

Mr. TENZER. Fair use. I just wanted to correct the phrase "unimportant section" as distinguished from the copying of a whole work. Mr. WASSERSTROM. All right.

Mr. KASTENMEIER. Counsel has some comment on section 109.

Mr. FUCHS. Mr. Wasserstrom, it is a fact, isn't it, that you are really talking about fair use, and that section 109, clauses 1, 2, 3, and 4 have nothing to do with making copies? They have to do with a performance or an exhibition?

Mr. WASSERSTROM. Well, as I understand it, Mr. Fuchs, even though fair use—well, if I understand your statement, you are saying that the fair use doctrine would be applicable to the uses contemplated by section 109 or it would not be.

Mr. FUCHS. I hadn't any intention with respect to that.

Mr. WASSERSTROM. Well, I adverted to the fair use doctrine when one of the Congressmen asked for some suggestions, and I recognize the basic soundness of that, because we are opposing the section, and we should come forward, although we are not legislators, but we should come forward with some suggestions as to the drafting of an appropriate provision.

Mr. FUCHS. I must have misunderstood you. I thought you said that 109 permitted copying.

Mr. WASSERSTROM. I think 109 permits copying, as I read it, because it permits copying with impunity when the use is as contemplated by 109, because it says that a work-it provides exemptions for certain performances and exhibitions-it says to show a copy of it, either directly or by means of motion picture films, television images, or other devices.

Mr. FUCHS. That is not copying, is it?

Mr. WASSERSTROM. Well, it might be copying under present law. Mr. FUCHS. Not copying under the definition of copying in the bill. Mr. WASSERSTROM. Well

52-380-66-pt. 1- -12

Mr. POFF. Mr. Chairman.

Mr. KASTEN MEIER. Yes.

Mr. POFF. Maybe I can throw some light on this, if the gentleman will permit me.

Mr. WASSERSTROM. Why, of course.

Mr. POFF. We must recognize that the legislative history behind this bill is going to play an important part in building the entire package, and I believe the testimony of a witness delivered yesterday pretty much negatives the point the witness is making today. That witness to whom I have reference was one of the draftsmen of the bill. Mr. WASSERSTROM. You mean Mr. Cary.

Mr. POFF. And I will read part of the testimony he gave. From page 32 of Mr. Cary's testimony, I read:

The reproduction of an entire book or multiple copies of excerpts and quotations would tend to displace the purchase of authorized copies. If, for example, it were permissible for every teacher to make a single copy of an entire work, one copy for each of many teachers would quickly add up to a substantial part of an author's potential market for his work.

So, it clearly appears that the purpose of the draftsmen was not to permit such copying within the framework of 109.

Mr. WASSERSTROM. Well, that may very well be the objective and purpose, but as we read the bill, and we may be reading it erroneously that is more than a bare possibility-but under our reading, it would be susceptible of an interpretation, going beyond that, by reason of the definition of exhibition, and it says that an exhibition-now, it may not say it, in haec verba, but the effect of allowing an exhibition may not be the same definition as making a copy, but it seems to me that you could, under the definition of exhibition, get the same result under 109 as it is presently worded.

But, as I say, I would welcome the opportunity of presenting additional views if, on reflection of my committee, it feels that it has anything of value to suggest to the subcommittee, that we be permitted to submit it to you on this point.

Mr. KASTEN MEIER. The committee will be happy to receive anything further on this point.

Thank you and your colleagues for appearing this morning.
Mr. WASSERSTROM. Thank you.

Mr. KASTEN MEIER. The next witness is Mr. Herman Finkelstein, representing American Society of Composers, Authors, and Publishers. Welcome to the subcommittee.

STATEMENT OF HERMAN FINKELSTEIN, AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS

Mr. FINKELSTEIN. Mr. Chairman and members of the committee, my name is Herman Finkelstein. I am a member of the New York and Connecticut bars, and I am general counsel for the American Society of Composers, Authors and Publishers.

I should like, if I may, to do two things. One, to streamline my own statement, and have the statement go into the record as presented; and two, may I take this occasion to comment on just two points of the last witness?