publication. The recognition of this doctrine is essential to the growth of knowledge; as it would obviously be a hindrance to learning if every work were a sealed book to all subsequent authors. The law, therefore, wisely allows a 'fair use' to be made of every copyrighted production; and this liberty is consistent with the true purpose of the law to give to the earlier author adequate protection for the results of his labors." The purpose of the constitutional provision is to encourage creation for the benefit of the public. Those who urge stringent limitation upon the term of copyright appear to believe that each author of merit is beset by an irresistible compulsion to exercise his talent regardless of reward, and that a copyright statute must take ruthless advantage of this sacrificial quality for the benefit of the public. While it is true that some inspired creators will create, come what may, most authors or other creators express their talent-ply their craft, if you will-for a livelihood. To put the matter another way, if they are unable to make a decent living from their creativity, they will relegate their talent to the status of a hobby or an unfulfilled longing. It is self-evident that the term of copyright must be sufficient so that they are able to sustain themselves and make suitable provision for their families. 14 The matter was succinctly stated by Raymond Wyman, in his article "Don't Kill the Goose that Lays the Golden "@"," as follows: "Valuable new materials will be produced only as it becomes rewarding to have them produced." Certainly, in order to provide income for an author throughout his life, the copyright must exist for his life. Certainly in order to make provision for his family and dependents, the copyright must exist beyond his life. As to how long after his life the copyright should last, there seems to be no reason why the standards prevailing in most of the countries that grant copyright should not be followed, i.e., a continuation of 50 years. There is more than one practical reason for this. Numerous creators (in common with others of the family of man) die at an early age. An author's ability to provide for those who depend upon him should not be determined by a guessing game as to how long he will survive. Indeed, an author dying at an early age will in great likelihood leave children at their most intense time of dependency. Some who oppose lengthening of the present copyright term claim that few works survive thereafter, in commercial value or public interest. The fact is that a vast number of creative compositions continue to please or interest the public and continue to earn income indefinitely beyond 56 years. Very many musical compositions, and a large number of dramatic and dramaticomusical works and literary works are much alive beyond that time, although not all these works have the potency of "Charlie's Aunt," the play that, as stated in the New York Times of January 1, 1965, was first put on 72 years ago and "has been performed somewhere in the world at least once a week ever since," or the song, "Lili Marlene," which, as recounted in Variety of March 31, 1965, written 50 years ago, has earned over $40,000 in performing fees since 1944 and is still going strong. In fact, it is used in a successful current motion picture! There is a prevalent supposition that once a work of value falls into the public domain, the public will benefit immediately and directly. Such is not the case. A book must be published, a musical composition must be performed, a play must be produced. Those who bring about these metamorphoses of manuscripts must themselves be encouraged to do so. In the case of many works, a rush to place them in the public domain could accrue to the public detriment. George Goldberg, in his article "Copyright and the Public Interest," "sets forth a comprehensive though concise review demonstrating the encouraging and constructive effect of copyright on the book publishing business, stating the facts and statistics of the history of that business. The price of a ticket to a symphony concert is not affected by the fact that all of the works performed at that concert are in the public domain. Books are not cheaper or produced in greater quantity when their contents are in the public domain. In evaluating the force and validity of arguments pro and con with respect to a longer copyright term, the identity of those who are heard, is obviously of some significance. In the words of Mr. Guinan in his study, 14 Educational Screen and Audio-Visual Guide, p. 306 (June 1964). 15 50 A.B.A.J. 56 (1964). "As will be seen from the testimony at the [congressional] hearings described above, the arguments against a longer term are usually presented by users of copyrighted materials, such as radio and television broadcasters and manufacturers of sound recordings. They believe it in their interest to have the intellectual materials which form the basis of their products, as distinct from the products themselves, free to be used by all. This is sometimes stated to be in the public interest also." It is a recorded fact that all the organizations of creators who have stated their views are in favor of a term of life plus 50 years, and this is also true of certain important organizations of users whose utilization of a given work will extend over a long time, such as motion picture companies and book publishers. A further element must be given its due weight. The international aspect of copyright today is of great importance. The relations of this Nation with its neighbors (and its neighbors today are all the countries of the world) was an important reason for our adherence to the Universal Copyright Convention. It does not make for good international relations between this country and another country, when the works of our authors are given protection there, long after protection accorded to the work of their nationals has expired here. Today the very usage of a copyrighted work can be simultaneously international, as by means of communication satellites which instantaneously transmit the sights and sounds of a copyrighted composition throughout the world. There is here involved something more than a measurement of what constitutes just compensation. What we become concerned with is an international uniformity of justice, which we would hope will not lag behind the growth of communication itself. Mr. KASTEN MEIER. Thank you very much, gentlemen, for appearing. That concludes testimony in the hearing for today, so the committee will adjourn and stand in recess until 10 a.m. tomorrow morning. (Whereupon, at 4 p.m. the subcommittee recessed, to reconvene at 10 a.m., Friday, May 28, 1965.) COPYRIGHT LAW REVISION FRIDAY, MAY 28, 1965 HOUSE OF REPRESENTATIVES, The subcommittee met at 10 a.m., pursuant to recess, in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier presiding. Present: Representatives Kastenmeier, Edwards, and Poff. Also present: Herbert Fuchs, counsel; and Allen Cors, associate counsel. Mr. KASTENMEIER. The committee will come to order. This morning at the outset the Chair wishes to state that the committee is grateful for the way the proceedings have gone thus far. This is Friday. Some of our members will have difficulty getting here or remaining here. There are other legislative responsibilities. Some members have obligations and commitments out of the city. In view of this I hope that the session today can go rather expeditiously. I suggest that witnesses, to the extent possible, may wish to file their statements and give summaries. If so, the committee will be happy to entertain this. The only other comment I might make is that witnesses try to be responsive to the question and not ramble too much, keep the record shorter, and I think more germane. I suppose writers who are in the practice of being paid by the word can be forgiven for being unduly prolix, but notwithstanding, let us try to keep the proceedings short today. The first witness will be Mrs. Harriet F. Pilpel, representing the American Society of Magazine Photographers and the Society of Magazine Writers. With you, Mrs. Pilpel, do you have Mr. Tom Mahoney? Mrs. PILPEL. Yes; Mr. Mahoney is with the Society of Magazine Writers, and I also have with me Mr. David Linton, of the American Society of Magazine Photographers. Mr. KASTEN MEIER. Mrs. Pilpel. STATEMENT OF MRS. HARRIET F. PILPEL, ON BEHALF OF THE AMERICAN SOCIETY OF MAGAZINE PHOTOGRAPHERS AND THE SOCIETY OF MAGAZINE WRITERS Mrs. PILPEL. Mr. Chairman, Mr. Poff, and Mr. Fuchs, my name is Harriet F. Pilpel. I am a member of the New York law firm of Greenbaum, Wolff & Ernst. I am a trustee of the Copyright Society of the U.S.A., and co-author with Morton David Goldberg of the book 249 52-380-66-pt. 1-17 "A Copyright Guide" published by Bowker. I also am the co-author with Theodora Zavin of the book "Rights and Permissions" and the author of the monthly column "But Can You Do That?" in Publishers' Weekly. I am deeply appreciative of all that the Copyright Office has done in exploring and analyzing its problems and what I, Mr. Linton, and Mr. Mahoney are going to say would have been impossible without their really superlative efforts. I am here on behalf of and as general counsel to the American Society of Magazine Photographers and the Society of Magazine Writers. I will be brief as to the joint positions of those groups, and then Mr. Linton on behalf of the photographers and Mr. Mahoney on behalf of the writers will also be very brief in summarizing the reasons why this bill represents a substantial step forward for these two groups. In other words, they support H.R. 4347 with enthusiasm. They have special reason to support the bill because collective works have been a sort of stepchild of the copyright law. I will first speak generally of this aspect. The new bill defines "collective work" in section 101 as a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. This, of course, is the medium in which the magazine photographers and writers operate. Their importance to life and letters in the United States is great. You all remember the statement that one picture can be worth 1,500 pages of text, and such major contributions to thought have first appeared in periodicals as Mr. Brandeis' "Right of Privacy” article. Notwithstanding the increasing importance of periodicals and other collective works in our country, the present copyright law really ignores them almost entirely. I wish specifically to mention, which is not part of my statement because it inadvertently got omitted, section 201(c) which clarifies a situation which has been most unfortunate for contributors to collective works. The second sentence states that— In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series. In the course of the meetings with the Copyright Office, we have expressed some doubt as to whether that sentence is not too broad. That is, whether the last part of it should not be left out. Basically, however, it represents what is the current practice and should be the law; namely, that the collective publisher acquires only the right to include the work in the collective publication. There are many confusions in the present situation. For example, in the absence of a separate copyright notice, there is constant uncertainty as to who owns what part of a collective work or the separate contributions in collective works, and what kind of notice the collective work should carry. These questions are resolved by the present bill. |