- 4 Question 3: Mr. Oman, you've referred to the nine enumerated categories that are considered work for hire if designated as such by written agreement. This list was worked out as part of a compromise leading to the current work for hire statute. However, new categories of copyrightable works have come into existence since that compromise. This committee recently heard testimony from a prominent computer lawyer advising that computer software should be added to the list as a tenth category. Would you comment on the advisability of such an addition to the list? Are there other new types of works that should be considered for addition to the list? Are there any types of works now on the list that you would recommend be deleted? Answer: As noted above, the current list of works found in subsection (2) of the work made for hire definition was a result of a comprise struck in the mid 1960's, almost ten years before the current Copyright Act was enacted. The categories that made the list were championed by copyright interests at the time who believed that these categories presented special problems not covered by the language of the first part of the work made for hire definition. Thus, a second part was crafted and added to the work made for hire definition to assure that certain types of works would not be statutorily precluded from work made for hire treatment under the copyright laws. Computer software was clearly not before the drafters of the 1976 Copyright Act since computer software was virtually an unknown quantity at the time the compromise was reached in the mid-1960's. The software industry has blossomed in recent years, however, and the same work made for hire problems that faced the copyright holders and creators of audiovisual works, periodicals, etc., in the 1960's face software producers today. - 5 The Copyright Office is aware that much of the software marketed today comes from those in academia as well as freelance creators. The manufacturers who commission these individuals to create new programs have an interest in assuring that they secure all the rights granted to the copyright holder of such works. This interest is just as viable and as real as the interest of those parties who were fortunate enough to be present when the work for hire compromise of the Copyright Act was reached. The Copyright Office would, therefore, support amendment of subsection (2) of the work made for hire definition to include computer software. Another category of work that the Office recommends for consideration is sound recordings. Like computer programs, sound recordings are often the result of one or more creators operating under the aegis of a controlling body that seeks to own all the rights to the resulting product. Since sound recordings were not protected under the federal copyright law until 1972, this category was not included in the work made for hire compromise. Producers of sound recordings face circumstances similar to those of computer software and therefore warrant like treatment under the Act's work made for hire provisions. As to the possibility of deleting categories from subsection (2), the Office would oppose any deletions absent clear and convincing evidence of repeated abuse by copyright holders in any of the nine categories. The current categories were the result of a hard-fought battle between creators and those seeking to obtain the title of statutory author of the work. Those categories are just as viable and as of great a concern to the interested parties today as they were when the Copyright Act was drafted. 6 Question 4: Several of our upcoming witnesses refer in their written statements to the impact S. 1253 may have on freedom of speech. It is unclear to me whether the provisions of S. 1253 will impede the free flow of information by imposing additional constraints on employer, or whether it might actually promote speech by protecting the artist. How would you expect these first amendment concerns to play out against one another? Answer: It has been argued that the copyright law, in effect, implements the First Amendment. Copyright insures enterprises an economic return on copyright material which is popular and in demand. Without copyright, copyright enterprises would likely go out of business, and First Amendment expression would be reduced to the expressions of the wealthy who could afford to distribute works at a loss. The "for hire" policy that best implements the First Amendment is the policy that produces the least litigation. The "for hire" policy that produces the least litigation is, in my opinion, the policy whose governing principles are easiest to understand. Complexity inevitably leads to misunderstanding and litigation. As long as parties involved in the exploitation of intellectual property understand the governing principles, the proper steps will be taken to insure the necessary rights are secured. Moreover, the basic purpose of copyright law is to stimulate the creation of new works for the enrichment of society. S. 1253 should tend to encourage authors to create new works, and this diversity carries forward the purposes of the Copyright Clause and the First Amendment. - 7 Question 5: Mr. Oman, with regard to moral rights provisions generally, the written testimony of one of our upcoming witnesses suggests that the introduction of moral rights into the American copyright system would impair the right of fair use. The fair use provisions of copyright law allow limited taking from a copyrighted work for purposes such as education. Appellate courts have held that fair use is a First Amendment right. However, it has been suggested that taking short quotations or excerpts of an artist's work, as permitted by fair use, would violate the moral rights of integrity and paternity. Would you expect the introduction of moral rights into our system to cripple fair use? Answer: In essence, both fair use and moral rights are rules of reason. While the doctrines focus on different issues, it is extremely unlikely that they would ever conflict, except possibly in the case of unpublished works. The fair use doctrine establishes a rule of reason for third party use. Section 107 of the copyright law carefully delineates the criteria governing fair use. A third party user who clearly falls within the criteria will have such a limited taking that a charge of a moral rights infraction will usually be unsustainable. For example, in connection with the paternity right, what is the value of classroom study of an author who is unidentified? Moral rights infractions generally involve major takings that threaten the honor or reputation of the author. The limiting takings that are identified in section 107 would not generally meet this threshold. However, if the Congress concludes that there is any doubt on the point, it could clarify that the moral right is subject to the fair use limitation. The visual artists' rights bill, S. 1198, contains such a clarification. RESPONSES TO SENATOR'S LEAHY'S QUESTIONS RELATING TO THE HEARING ON S. 1253 WORK FOR HIRE September 20, 1989 Question 1: Senator Cochran's bill would revise the definition of employees under Section 101(1) of the 1976 Copyright Act so that it reaches only "a formal, salaried employee" and would discard the agency test adopted by the United States Supreme Court in Community for Creative Non-Violence v. Reid. You have testified in favor of the "formal, salaried employee" test established by S. 1253. Why is that standard preferable to the Supreme Court's standard? Answer: I favor the formal, salaried employee standard because it is simple, predictable and fair. Moreover, its clarity should discourage litigation, and promote order and certainty in business relations. Since, in this context, the only real difference between authorship and ownership status is the possibility for reclaiming the copyright after 35 years under the termination provisions of the Act, this interpretation does no harm to the commissioning party. A transfer of all rights under the copyright gives an owner sufficient exploitation rights during the ordinary commercial lifespan of copyright works. This legislative solution promises to provide an equitable, common sense clarification in a previously obfuscated area of the law. Question 2: S. 1253 also requires that work for hire agreements under Section 101(2) must be signed prior to commencement of the work. How will it be determined when work on a project begins? If a contributor, intrigued by a commissioning party's idea, commences sketches or notes for a project before an agreement is reached, when does the project begin? |