fruits of their labor and talent. Moreover, copyright provides the sole incentive and reward for the hazardous enterprise of authorship. More equitable copyright protection would effectively promote the progress of literature and the other creative arts.

3. The term of copyright.-Under the revision bill, copyright on an individual author's works would last for his life and 50 years after his death. This is the copyright term in most Western countries. It should be adopted.

The present 56-year term is not adequate. It frequently cuts off, too soon after death, the sole legacy most authors can leave their families. And some authors now outlive their copyrights and lose income at a time when it is most needed. Life plus 50 years would insure that the author will be paid for uses of his work during his entire lifetime, and permit him to provide his family with income from his works for a reasonable time after his death.

4. The author's right to compensation.-In our statement we have discussed the arguments directed against adequate copyright protection by those groups who seek special privileges in the Copyright Act in order to permit them to make uses of the author's work without his consent or compensation. As we have there pointed out, copyright is not a "monopoly," nor can the author be denied adequate protection on the claim that he is simply a supplicant for "special privileges." What is at stake are the rights an author is to have in something he created a book, or play, or musical composition-that he brought into being and from which society will benefit. He is not asking for special privileges in public resources or facilities.

A basic issue is whether the enterprises of writing and of publishing are to be encouraged and permitted to function on the basic principles which underlie our system of free enterprise. We believe that these principles do apply that an author who creates something of value is entitled to enjoy the fruits of his labor; that this is accomplished, in our society, by securing to him exclusive rights in his creation so that he may be paid when it is used; that by securing these rights we provide the incentive for independent literary creation; and that all of usprivate citizens, education, the Government-will reap the benefits of the efforts, skill, and enterprise of those who are thus induced to create and produce.

We believe that where this principle of payment for property is violated, by appropriating and withholding an author's rights and by denying him compensation for uses of his work, not only he, but society as a whole, is deprived of the benefits of his creative enterprise. If a work created by an author is valuable enough to be used, then he should not be expected to contribute it without payment.

5. Unauthorized copying is infringement.-The revision bill preserves the author's fundamental right to publish and make copies of his work. It does not make any change from the present copyright law and it does not diminish the privileges which American teachers now enjoy to use copyrighted works. However, demands have been made that educational institutions be permitted to make copies of any copyrighted works for teachers who use them in teaching and to make multiple copies of portions of copyrighted works-without the author's permission or knowledge or compensation.

These proposals, discussed in our statement, would have a devastating effect on American authorship and publishing. Schools and school systems could prepare one, or a hundred, or 10,000 copies of any book, depending upon how many teachers required it. They could prepare their own textbooks and anthologies by copying substantial portions of several copyrighted works. Purchase of books for library and teaching use would be sharply curtailed. The economic danger of these proposed exceptions is a major threat. New means of copying and duplicating are proliferating at an amazing rate and their cost decreases continually. Even now they permit inexpensive and rapid reproduction of single copies or multiple copies of any work, or a portion of a work. As the years pass, they revolutionize the publishing industry.

We believe that authors are entitled to be paid when their works are used in schools. We do not believe that the cause of education is served by appropriating their property in its name. That would be an act of rank discrimination. No one else's property or services are appropriated for purposes of education. Everyone else is paid-school builders, furniture manufacturers, teachers, public utilities, and those who supply the means of copying the author's work. There are methods by which authors can license the use of their work by schools through the new techniques of reproduction—and be paid. The burden would not be great. Education would benefit, not suffer.

American authors and publishers are an integral part of our educational system. The author contributes as much as a teacher who teaches from his book, and he is as much entitled to be paid for the use of his work in the teaching process.

6. Exceptions to performance rights.-The revision bill sets forth certain specific exceptions permitting works to be performed in face-to-face classroom teaching activities. These do not restrict privileges which schools and teachers have under the present law. We accept these provisions, but we believe that certain language should be clarified in order to carry out the intended effects of the exception and to make certain that the use of copyrighted works, particularly plays and musical comedies, cannot be practiced beyond the scope of legitimate face-to-face teaching activities.

7. Educational broadcasting for classroom teaching.-The revision bill also contains exceptions permitting the use of nondramatic literary and musical works in educational broadcasting primarily for classroom use. We believe that these provisions should be adopted, with modifications of language that will more clearly define the limits of these exceptions.

8. Public nonprofit broadcasting.-The bill does not permit unauthorized uses of copyrighted works in nonprofit public broadcasting which is not primarily for classroom use. We wholeheartedly subscribe to this approach. When an author's work is used in a public broadcast he is entitled to be paid for it. Here, again, those who demand the privilege of using his work without payment ignore the fact that no one else is required in our free enterprise system to contribute bricks, mortar, machinery, or services to a public nonprofit broadcasting enterprise on the ground that it is educating the public.

9. Performance in religious services.-Some clarification is required to prevent the use of dramatico-musical works of a nonreligious nature.

10. Fair use. We support the provisions of the revision bill concerning fair use. We believe that this is the proper method of recognizing the judicial doctrine of fair use in the act. Proposals to expand the definition and to create special presumptions in favor of any educational use of a work would be unworkable and extremely harmful to American authorship and publishing. They are also objectionable for the reasons discussed in paragraph 4, above.

11. The manufacturing clause.-We have urged that the clause, which imposes harsh sanctions on American authors, should be abolished. The revision bill proposes some modifications; among other things, total copyright forfeiture would no longer be the penalty for noncompliance. But even as rewritten the section still places unjustified burdens on American authors. However, efforts are still being made by representatives of the book publishing and book manufacturing industries, and ourselves, to reach a viable accord on this provision. Moreover, we understand that additional time has been set aside during the hearings for a discussion of the clause. In the light of these circumstances we think it appropriate to reserve our further comments and suggestions until then.

12. The jukebox exemption.-At this late date we could add nothing to the overwhelming argument in favor eliminating this totally unjustified privilege. 13. The compulsory license clause.-The provisions in the bill for increasing the mandatory 2-cent fee payable to composers when their works are recorded without their permission is reasonable and should be adopted. The compulsory license clause does not require a recording company to pay a minimum feeit is free to bargain for a lower rate. But, the clause does impose a maximum fee on a composer-he must accept it, whether a recording embodies a 1-minute performance or a 30-minute performance of a symphony or other classical work. The recording industry, which is not subject to price fixing of its records or its profits, cannot reasonably object to the increase in the recording fee proposed by the revision bill.

14. Limitation of long-term copyright assignments.-The revision bill imposes a 35-year limitation on transfers of the author's rights. Like the present renewal clause, its purpose is to safeguard the author against the compulsion to permanently surrender control of his rights for the duration of the copyright term. Without this protection, authors often would be obliged to make such transfers of their rights in perpetuity-and they and their families would thereby be deprived of income from meritorious and long-lived works during the latter part of the copyright term.

These assignments in perpetuity are unreasonable and unnecessary. They are imposed solely by virtue of the superior bargaining power of those who use copyrighted works. The termination clause is essential to insure fair dealing in the literary marketplace and to prevent the use of superior economic power to exact unfair advantage from the author. In purpose and operation it is similar to many other provisions such as those contained in the Sherman, Clayton, and Robinson-Patman Acts-which also prevent the use of superior economic power to take advantage of those less powerful in the course of business transactions. The longer term of copyright is intended to benefit the author and his family. The termination clause will insure that it does. It will also make certain that the public interest in copyright protection is best served.

We urge that certain changes in the termination clause, which have been worked out jointly with organizations representing book publishers, be adopted. Among these, it is essential to modify the requirement that the right of termination can only be exercised by unanimous action of the author's heirs. This would completely frustrate the right in many instances.

15. The liberalization of formalities.-The revision bill retains the requirement of copyright notice as a condition of protection, but provides greater latitude in the place of notice and the means of correcting errors in notice without losing copyright protection. This we approve for copyright protection has often been lost because of lapses in complying with these technicalities.

As we have noted in our statement, the procedure for curing an accidental omission of notice should be revised. In its present form it is impossible to comply with and could well be used as a license for infringement.

16. Changes in the bill.-The Authors League and organizations representing publishers and composers believe that changes should be made in certain provisions of the bill. These changes are set forth in two joint memorandums submitted by these organizations to the subcommittee.

Mr. STOUT. I think now, if she will, I will ask Elizabeth Janeway to say something.

STATEMENT OF MRS. ELIZABETH JANEWAY, PRESIDENT,

AUTHORS GUILD

Mrs. JANEWAY. Thank you, Mr. Stout. Mr. Chairman and gentlemen, the Authors League of America is backing this bill because of what is in it; that is, the increase in the term of copyright to the life of the writer plus 50 years. This is vitally important to our members, both writers of books and dramatists, and indeed to all freelance writers. It's a coincidence that at the present time there is also before the Congress the question of medicare. Evidently, there is a great deal of concern about people in their later years being able to meet their expenses. As it happens with the increasing length of life, some of our members are beginning to outlive the present term of copyright, even as renewed.

This is also a good bill because of what is not in it. The Register of Copyrights listened carefully to a number of arguments diluting the right of an author to profit from the property which he creates and then rejected these arguments.

I would like to speak about some of those arguments and why it seems right to the authors that they were rejected. The first argument that was made is that copyright is a monopoly. But copyright does not give an author control over anything except the property that he has created. He can sell it or lease it but if he holds it off the market no one is hurt except himself.

He is no more a monopolist in the antitrust sense than millions of other Americans who own land or buildings, businesses, securities, natural resources, any other kind of property. Each one possesses the

exclusive rights to use that which he has created, purchased, or inherited. It is not "monopoly" as the term is used under the Sher, man Act.

A monopoly exists when someone owns enough property or has enough economic power to control an industry or to prevent the free play of competition. If I write a novel (and I have written six) I can't control the market for novels, or the price of novels. I can't tell people to read my novel instead of anyone else's. It enters into free competition.

The next argument for diluting the rights of authors makes an analogy between copyright and patents. A copyright differs from a patent because a patent protects an idea and prevents the public from using the invention created by that idea, while a copyright protects only the author's expression of an idea.

Any other writer is free to use the same idea and to express it in his own way. Let me give you an example of this that is rather close to my heart because it involves my last novel which was called "Accident." It begins with a car crash on a highway in which two young men are hurt. The novel then goes on to investigate and evaluate the events following on this accident and to attempt to discover why it happened in terms of how life went with these young men and with their families afterward.

The novel was published in England early this year under a slightly different title because last fall my publisher cabled me from England to say that a novel entitled "Accident" was about to be published in England by a man named Nicholas Mosely.

It began with a car crash. It proceeded to investigate and evaluate the reasons leading up to the crash and what happened afterward.

Now neither Mr. Mosely nor I had the faintest claim against each other. We both hit on the same idea but both of our books were published and bought and read. As I say, I did change the title of mine in England, but that was only in order to avoid confusion.

Of course, both books were fiction and you might think that, therefore, they were more completely the brainchild of the author, but the difference between copyright and patent also holds true of nonfiction. Several years ago it occurred to three publishers that it might be time for a lengthy and scholarly biography of the Russian revolutionary, Lenin. As it happened all three biographies came out and were reviewed together at the same time. I am sure that any one of the publishers would much rather not have had his biography of Lenin come along with the other two, but all three did come out and they were generally reviewed together."

There was nothing in copyright law that prevented the publication of three books on the same subject at the same time.

Another argument advanced to dilute the author's hold on properties is that the copyright is an express privilege granted by Congress to authors. Of course, I realize that writers perhaps are prejudiced in feeling this is an argument that does not stand up very well. It is as difficult for me to understand as if you told me my children weren't mine.

We do create these books and stories and poems and they would not exist without us. True, we create them because we hope other people

will be moved by them or amused, excited or interested. They are not only for our own pleasure but the claim we make for them is that we made them.

Mr. Hutchinson mentioned before, the common law at present recognizes this right. In Ferris v. Frohman the Supreme Court of Illinois said:

At common law the author of a literary composition has an absolute property right in his production which he could not be deprived of so long as it remained unpublished, nor could he be compelled to publish it. This right of property exists at common law in all productions of literature, drama, music, art, and

so on.

That decision was affirmed by the Supreme Court of the United States in 1912 after the passage of the copyright bill which is now in force and it has been ratified by other decisions in other courts.

Under H.R. 4347 the author will resign his common law right. How vital then is his interest, how urgent his plea that his property rights now be firmly protected by statute?

He is giving something up in the law as it is proposed.

If they are not protected he will risk his livelihood and he may lose it, just as any man whose property is expropriated, or who is denied his return for labor, loses his livelihood. Our American society is founded on the principle that the one who creates something of value is entitled to enjoy the fruits of his labor. If that labor is in the public interest then surely the laborer is more than ever worthy of his hire. Let me remind you that it is not only authors and artists and composers who declare that the progress of the art contributes to the health of the state and not only they who repeat the words of the proverb "Where there is no vision the people perish."

Yet, ironically there is an argument that was made to the Copyright Office and will certainly be made again to you which goes like this: "The work of the author is in the public interest. It is so important, so vital, so necessary to the public interest that it should be taken away from the author and handed over to others without any payment, any recompense to the men and women who made it." Astonishing as it may seem, paradoxical as it may seem, what we make is so valuable that we should not be paid for it.

Of course, I am talking about the demands being advanced by some educational organizations that the rights of the author in his material be suspended and that his work be made available free through the new medium of photocopying to all teachers and students in the United States.

I don't believe there is a writer in America who would not like to see his work, or at least some part of it, used for teaching in schools and universities. I expect that we are all teachers at heart. I have, myself, taught writing at writers' conferences at more than half a dozen colleges. I know I need and use examples of good writing to teach with. But it is one thing to teach from this material, it is another to hand it out, or, indeed, to sell it as it is sometimes sold to students without the author receiving a penny.

If H.R. 4347 is passed it will supersede a bill that has been in force since 1909. Many changes have taken place since then. Many more will take place in teaching methods, in reproducing methods, in publishing. But we are not going to have to wait 56 years for them.