[From the New York Times, Sunday, May 30, 1965]

COPYRIGHT FOR CREATORS

For the last few years culture has been "in" in Washington. A playwright, a composer, even an unshorn painter may find himself only slightly below the salt in the White House. Artistic achievement is honored by East Room musicales and rose garden handshakes, duly recorded by still and film cameras, for the folks back home and the people out there.

This is admirable. But the administration and the Congress now have a splendid opportunity to add practical necessities to the social amenities for many creative persons in the United States. The House Committee on the Judiciary has begun hearings on a new bill to revise the archaic Copyright Act of 1909. For more than half a century the shortcomings in this act have contributed to the struggle of struggling writers and composers.

The key change in the revised law would protect the creator's work for the term of his life plus 50 years. The outmoded present term of copyright is 28 years, renewable by certain persons for a second period of 28 years. Ironically, many American writers have better protection abroad: in most civilized countries in the Western World, copyright already runs for life plus 50 years.

Other proposed improvements include a time limit on long-term acquisitions by publishers; compensation for certain "nonprofit" broadcasts and performances; elimination of the so-called jukebox exemption, meaning that jukebox operators would have to pay royalties to composers. Surely one area that needs exploring in the hearings is fair use and compensation for writers whose works are copied indiscriminately.

Respecting the property rights of writers, composers and playwrights is the most fundamental way for the Government to foster an atmosphere to encourage the Nation's creative elements.

COPYRIGHT AND ACADEMIC GRAVY

All efforts of the "creators" to come to a modus vivendi on copyrights with the "educators" having apparently failed, the issue has now gone to public hearings and to the tender mercies of Congress. It has long been the opinion of authors, publishers, and producers with a stake in copyright that the leaders of the "educational" lobby would actually prefer to scuttle copyright revision altogether and throw everything back to the status quo of the hopelessly outmoded 1909 statute rather than consent to the principle that educational institutions, including libraries, should respect the ownership of creative works, obtain the requisite license which expresses such respect, and, separately but relatedly, refrain from wholesale pirating of works via the modern convenience of unpoliced and unchecked photoduplicating.

The position of the educators has truly shocked the literary, musical, theatrical, and allied professions. They rebuff the most considerate of token terms. They want nothing short of uncurbed liberty to be a law unto themselves and to trample at will upon creative property rights.

It is not necessarily going to convince all Congressmen, but the creators must certainly at this time go the full limit in forthright challenge of the idea that colleges, school systems, research kingdoms, libraries, and other sources are entitled to disregard copyright. Especially invidious is the situation where academicians, living on grants, foundation largesse, Government handouts of all kinds and enjoying tax-free real estate are free to ignore the right to royalties earned by the hard work of writers, composers, adapters, and so on.

Literally hundreds of millions of dollars in research projects paid for by the public treasury in Washington are disbursed throughout the academic world. There is a lively learned society competition for this money. It enables professors to ride their hobbies, take lovely trips, go places and stay there for long periods. Why, therefore, should the campus hierarchy which pays for all other services resist payment of nominal royalties to creators?

The demand that they be free of all need to obtain consent and pay for the use of copyright material-the livelihood of the creator and publisher-on the grounds that it is a nuisance to librarians and researchers to have to concern their intellectual days with such considerations is simply preposterous. Just imagine the academic world daring to suggest that it have the right to freely tap natural gas pipelines. Congress itself would blow up. But to tap for free the creative pipelines seems not to bother the legislators quite as much.

The educators have been unbelievably stiffnecked. They have refused all negotiation. They stand in the position of declaring themselves privileged, by their own appointment, to perpetual free transportation through the areas of opinion, data, original research, and so on. And how is the royalty-supported creator to survive if photoduplicating kills purchase of books or the publisher's motive for new editions? The educators simply decline to care.

The excuse for photoduplicating is that scientific materials are needed quickly and there is no time to consult the owners of the copyright. And who says so? Only those whose convenience happens to coincide with this argument. They offer practically no proof. Moreover if there is a sudden need for, say, 1,500 copies of a work or an extract from a work, who wants this particular service? Nobody but the administrators of multimillion-dollar research grants who stand ready to buy at commercial rates and through the routines of requisition order every other commodity or service they need. Why should creative talent be left out of the academic gravy train?

[From American Bar Association Journal, August 1965]

LIFE PLUS 50 IN AMERICAN COPYRIGHT LAW

(By Leon Kellman, of the New York Bar, New York City)

Legislation is now pending in Congress to revise the copyright law. This bill includes provisions that would change the law to provide for a copyright duration of the lifetime of the author plus 50 years, instead of the present term of 28 years, renewable for another 28 years. Mr. Kellman explains the legislation and states the case for its adoption.

The present U.S. copyright law1 provides for an original copyright term of 28 years and a renewal term of 28 years, so that if a copyright is renewed its total term is 56 years.

James J. Guinan, Jr., in his study entitled "Duration of Copyright” 2 states that, “* * * most of the countries of the world, which have copyright legislation, have adopted a term based upon the life of the author. The most common provision is a term consisting of the life of the author plus 50 years."

It is submitted that the term of copyright in this country should also be for the lifetime of the author plus 50 years.

The problem has been stated most eloquently by Edna Ferber, the famous novelist, in her recently published autobiography, “A Kind of Magic." 3 Miss Ferber, in this book, states:

"The United States, the greatest and certainly the largest and richest of the democracies, alone of all the liberal lands of the world denies its professional writers the rights to and the income from their own published work still existent in the later years of their lifetime.

*

"In the liberal countries outside the United States of America the original copyright grants the author the rights to his work for lifetime plus 50 years. Thus the writer may enjoy for a lifetime whatever profits accrue from the labor of writing; and the heirs to such properties may benefit from them for whatever period up to half a century after the writer's death. An appeal against this unjust and unique copyright law in the United States now is being made.

"No writer whose work is in demand expects that this work will remain his property and the property of his heirs forever. Though I can't imagine why not. If you were the fortunate owner of Rockefeller Center it certainly would stick around in the family for more than 56 years. First built in 1932, how would you like to lose it in 1988? If New York City calls the Metropolitan Museum its property, or city hall, it definitely would expect to have claim to these edifices for more than a mere 56 years.

"But now, at the end of 56 years, whether you are alive or dead, your written property may be used, republished, distorted, sold in any desired form in the

117 U.S.C. 24.

2 Study No. 20 of the 35 congressional studies prepared for the Subcommittee on Patents. Trademarks, and Copyrights of the Senate Committee on the Judiciary, 86th Cong., 2d sess.. pursuant to S. Res. 240 (1961). These studies were made under the supervision of the Register of Copyrights and contain summaries of the facts, law, and opposing arguments relating to their respective subject matter.

3 Quoted by permission of the copyright proprietors, copyright 1963 by Edna Ferber.

marketplace by anyone who cares to present the novel or play or other written matter in a theater; as a motion picture; on television or radio; from a platform; in a tent; anywhere anyhow. All this may be done with taste and intelligence by the producer, the actor, the publisher, the editor. Or its treatment may be crude, vulgar. It may yield them profit, it may represent financial or professional loss. But in any case, whether it be tasteful or vulgar, the author, if alive, will writhe; if dead, he will be whirling like a dust storm in his urn of ashes; his heirs will experience the frustration of a child whose taffy apple has been snatched away before the first delicious bite.

"To complete the flight of fancy, just suppose, then, that the edifices I've mentioned-Rockefeller Center, city hall-were, after 56 years, by law thrown into the public domain, quite out of their owner's hands. Or, to bring it nearer home, your own house, your business, your practice, your invention, your hotel, oil field, cattle ranch. Rockefeller could be a public hall or a house of prostitution if the necessary arrangements could privately be made; city hall a hotdog stand; your house a gas station or a morgue; your oil field free to the first wildcatter to grab it off.

"No writers in the United States are considered eccentrics. Their art or profession, though it may bear in its wake a complicated and highly profitable business, is not regarded by the government as a business at all-or scarcely at all. A writer, sardonically enough, can find himself propertyless and penniless in his old age (what with all these life-prolonging high proteins, vitamins, hormone shots, health rules, and gadgets); and his heirs baffled, while the whole world is enjoying, not only the hard-earned words on the printed page but the other profits of years of the writer's work.

"For that matter, the writer of integrity who would, invariably, rather be a writer than anything in the world (or he wouldn't and couldn't be a writer of integrity) is given a rather shabby treatment in the United States in terms of everything but money. Certainly no one in his senses, writer or artisan, would argue that money is unimportant. It is the prevailing medium of exchange, it is necessary to existence.

"As has been stated, the business that results normally from the conduct of his work is not considered in ordinary terms of business as business at all-or scarcely at all. A Southwest oil well owner can annually withhold 271⁄2 percent of his entire oil income as taxfree because of a mysterious element known as depletion * * *. As for depletion-the fact that the creative and imaginative brain suffers definite depletion through the years is not acknowledged by the Government. The lake of oil beneath the surface of the land is getting lower and lower. That is depletion. The lake of ideas, of invention, of emotion, of imagination that lies hidden there in the place called the brain spirit or the spirit brain is draining away with the years. Depletion? No. The old boy's getting kooky. His stuff isn't so good any more. He hasn't written anything in-let's see-must be 5 or 6 years, isn't it? The Somerset Maughams, the Edith Hamiltons, the Robert Frosts, the Carl Sandburgs, the Ernest Hemingways, the Willa Cathers, and the Mark Twains and the Moss Harts and the Robert Sherwoods haven't merely, like the Southwest driller, made your car go and your oil burner and your plane. They have powered your thoughts, your will, your imagination, your hope, your very life. They were, or are, writers in their sixties, seventies, eighties, even nineties."

HOW LONG SHOULD AN AUTHOR COLLECT ROYALTIES?

The matter was put by Representative Hale Boggs in a hearing of a subcommittee of the Judiciary Committee of the House of Representatives, as follows:

"How long is an author entitled to collect royalties from a book, a play, or a song which he writes? That is the question which should be considered in connection with the revision of our copyright laws.

"If instead of writing a book an author were to build a house, or plant an orchard, the answer would be that he is entitled to collect rent as long as the house stands, or as long as the orchard bears fruit. No one in our form of

Hearings before Subcommittee No. 3 of the House Committee on the Judiciary, 87th Cong., 2d sess., on H.J. Res. 627, a bill extending the duration of copyright protection in certain cases, May 3, 1962.

society dedicated to the ownership of private property would assert that it was in the public interest to permit the house to be used or the fruit to be gathered by any and all strangers free of charge, and for their own profit, just because the builder or the farmer had enjoyed the property for 56 years. No one would have the presumption to say to them, as has been said to the authors, that 56 years is a fully adequate period for any owner to retain his house or his farm. Yet, equally with the builder or the planter, the author's ownership in his work is, in Disraeli's famous words, 'the most natural of all titles, because it is the most simple and least artificial. It is paramount and sovereign, because it is a tenure by creation.'

"The anomalous situation faced by the authors, composers, and playwrights of this country under the present law, is that if an author writes a book, a song, or a play, and the public likes it and buys copies or pays to attend a performance, the copyright law, after 56 years, confiscates the author's property. It becomes public property available for use by strangers for their own profit."

The New York Times of February 20, 1964, in an editorial, stated:

"There are many practical tasks for the Government in respect to the arts. Authors and other creative artists require greater protection for their work: a copyright revision bill will come before Congress this spring that will need full administration support."

Among the elements of "greater protection" for authors and other creative artists provided in the copyright revision bill, none is more important than increase in the term of copyright.

5

6

The pending bill for general revision of the copyright law, in subsection (a) of section 302, provides as follows:

"Copyright in a work created on or after January 1, 1967, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 50 years after his death."

Subsection (b) of section 302 provides that, in the case of a joint work of two or more individual authors, the copyright endures for the life of the second of the authors to die and 50 years thereafter. Subsection (c) of section 302 provides that, in the case of an anonymous work, pseudonymous work or work made for hire, the copyright endures for 75 years from the year of its first publication, or 100 years from the year of its creation, whichever expires first.

This bill was formulated after an extensive program of study and analysis, including several years of meetings of the Panel of Experts on Copyright Revision convoked by the Register of Copyrights (the members of which represented the various viewpoints of those concerned with copyright) and the Committee on Program for Revision of the Copyright Law, Section of Patent, Trademark, and Copyright Law of the American Bar Association and subcommittees of that committee. The membership of the committee represents differing viewpoints respecting various subjects included in copyright and copyright revision.

Statutory copyright in the United States is based upon the constitutional provision which empowers Congress:

"*** To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

This limitation upon length of protection is in derogation of common law copyright, under which protection is perpetual in the case of works that are not "published" in the sense of making copies or copying available to the public. Section 2 of the present copyright law provides that:

"Nothing in this title shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor."

Common law copyright, which inheres under State law, protects in perpetuity works which are not so "published," including plays, radio and television scripts, and musical compositions which, under the common law, can be performed an infinite number of times in all media without forfeiting common law protection

H.R. 4347, identical with H.R. 5680 and S. 1006.

• Title 17 of the United States Code.

common law

until and unless they are so "published." In the present bill copyright is abolished after January 1, 1967, in the large category of works which are the subject matter of copyright as provided in the bill."

U.S. COPYRIGHT TAKES AWAY FROM WRITER

It will be seen, then, that statutory copyright in the United States, in respect of duration, takes away rather than gives to a creator-a grave diminution in the case of works primarily intended to be performed rather than published.

The two most important questions with respect to duration of copyright are (1) whether the term should be measured by a number of years (with or without provision for renewal or reversion) and (2) what length of term is most advisable in order to carry out the intent of the constitutional provision.

As Mr. Guinan states in his study, "It would be impossible to determine precisely what term would best carry out the constitutional purpose."

This factor militates strongly against any attempt to measure copyright solely by a numerical term of years. Other objections to a term measured solely by years are that (a) it is desired to remove copyright protection from the common law and place it within the statute, with respect to the works covered by the statute, (b) it is desired to eliminate the problem of the determination of the acts or formalities which will commence copyright in given cases (a subject which has been the center of intense controversy in the discussions on the proposed law) and (c) if protection is measured in whole or part by the death of the author (an event which is readily ascertained, as experience has amply demonstrated in those countries where the "life plus 50" term is in force) all the works of that author enter the public domain at the same moment, eliminating doubts and difficulties in tracing the status of his respective works.

As mentioned in Mr. Guinan's aforesaid study: The provisions governing duration, in the successive copyright laws of the United States, are based upon the Statute of Anne, enacted in England in 1709. However, in England, as far back as 1814 the period was changed to one centering about the life of the author, and in 1912, the term became the life of the author plus 50 years.

It is sometimes asserted that copyright is a monopoly and hence its term should be drastically limited as in the case of a patent. A patent is a monopoly-once a patent has been granted for an invention, no one else may receive protection for or utilize a sufficiently similar invention. A copyright is not a monopoly-a copyright owner receives protection for that which he has written or acquired. Anyone else can create an identical work, with full right to copyright and utilize it, even to the point of overwhelming the copyright owner of the prior work with devastating competition.

Moreover, with respect to the nature of what is protected under a copyright, the principle which prevails has been often expressed, that in copyright it is the expression of an idea, not the idea itself, which is protected.

In the memorable Letty Lynton case 10 the court held, as stated by Judge Learned Hand, that others may "copy" the "theme" or "ideas," or the like, of a work, though not its "expression."

"*** Copyright protection does not extend to ideas; but it does extend to a 'combination' of ideas, their expression and development through incidents and sequences and the interplay of characters."

"In many areas of intellectual and artistic activity, the author consciously works with and upon the works of those who have preceded him. The law does not require that the subject of a work shall be new, nor that the materials of which it is composed shall be original." "

12

The precise material which is protected by copyright can be used by others, to the extent of fair use. The rule of fair use is stated in "Drone on Copyright" 13 as follows:

"It is a recognized principle that every author, compiler, or publisher may make certain uses of a copyrighted work, in the preparation of a rival or other

7 Bobbs-Merrill Company v. Straus, 147 Fed. 15 (1906).

• Sec. 301.

• Sec. 102.

10 Sheldon v. Metro-Goldwyn Picture Corporation, 81 F. 2d 49 (2d Cir., 1936), certiorari denied, 298 U.S. 669 (1936).

11 Warner, "Radio and Television Rights," sec. 243a at 1052-1053 (1953).

12 Howell, "Copyright Law 19" (rev. ed., Latman, 1962).

23 Pp. 386-387.