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that refers to more than one work, or prevents any and all works covered by the agreement from falling within the

definition of work-made-for-hire.

To illustrate this fact,

consider that the Act also states that a work-made-for-hire is "a work prepared by an employee within the scope of his or her employment." 17 U.S.C. § 101 (emphasis supplied). This language clearly does not preclude multiple works prepared by an employee within the scope of his or her employment from being works-made-for-hire.

The Copyright Office's reading of clause (2) of the Act's work-made-for-hire definition clearly contradicts the plain meaning of the Act.

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It ignores the fundamental tenet of

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context indicates otherwise . words importing the singular

...

include and apply to several persons, parties or things."

1 U.S.C. § 1. We submit that there is no such context here and that, as a result, the singular in the statute should be read to include plural.

In other parts of the Copyright Act outside of its work-made-for-hire provisions, the singular is properly and regularly treated as connoting the plural. As only one example of many that might be given, consider the provisions governing

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the transfer of the ownership of a copyright (17 U.S.C.

S 201(d)(1)) and the requirement that as a general rule, such transfers must be supported by written conveyances (17 U.S.C. § 204(a)). Although § 201(d) (1) speaks in terms of the

singular

-

"the ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession" it is clear

that multiple copyrights may be transferred under a single written conveyance.

A statutory ban on multiple work agreements would

clearly have an adverse impact on both various

copyright-related industries and the contributors that they

commission pursuant to such agreements.

The impact of such a

statutory provision is set forth in pp. 31-33 of CACC's written hearing statement, including the ramifications of such a statutory change on the educational publishing business. Today, publishers can negotiate work-made-for-hire agreements with each of the various contributing parties to a series to cover not only each individual's original contribution, but any subsequent contributions to later revisions. Because S. 1253 appears to prohibit such efficient and popular agreements, it

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would unnecessarily involve publishers in innumerable time-consuming and expensive negotiations.

Similarly, S. 1253 would eliminate the practice under which a contributor contracts to provide the commissioning party with a set number of works over a prescribed period of time. As noted in CACC's written statement, this practice is common in the motion picture and magazine industries. It serves the important purpose of permitting both the

commissioning party and the contributor to engage in advance planning that is important to to the proper functioning of our copyright system.

Finally, this provision of S. 1253 is certain to engender much litigation as courts would be regularly called upon to resolve disputes over what constitutes a "separate work."

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1. Editors and publishers often must balance sometimes conflicting responsibilities and concerns. They are faced with the task of melding together a large number and variety of contributions in a way that best conveys a story or message,

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and of doing so quite often within demanding time constraints. Ultimately, however, they are responsible for overseeing their publications, and they are held accountable for the contents. In this context, editors and publishers must make tough decisions about how best to use various contributions in a manner consistent with a publication's own standards, style, and space limitations.

In making these decisions, it may be

necessary for an editor to crop a photograph in a way that he or she believes best complements an accompanying story.

2. We do not believe any legislative changes to the work-made-for-hire doctrine are warranted at this time, for the

following reasons:

First, the practical impact of the work-made-for-hire doctrine has just been dramatically changed by the decision of the Supreme Court in CCNV v, Reid. That decision rejected the broad definition of "employee" previously adopted by most federal courts, in favor of a much narrower definition that will make work-made-for-hire inapplicable in many instances in which it was previously employed. Legislative tinkering with the balance between contributors and publishers would be particularly unwise at this time, when all interested parties are just beginning to assess the post-CCNV environment.

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Second, the practices identified by proponents of

S. 1253 as abuses of the work-made-for-hire system appear far narrower than the sweep of the remedies proposed in that legislation. Moreover, while abuses may occur in the work-made-for-hire field, they are isolated aberrations, not the norm, and they are overwhelmingly outweighed by the literally thousands of non-controversial work-made-for-hire agreements that have been used over the years and which have helped make many creative works available to the public. Attention to correcting isolated abuses must not obscure the fact that overall, the work-made-for-hire system functions well. It provides both contributors and publishers with sufficient flexibility to fulfill the constitutional goal of promoting the creation of innovative new works. All participants in the systems, and society as a whole, benefit from the availability of work-made-for-hire under the Copyright Act.

In sum, while the current work-made-for-hire system is not perfect, it is in no sense "broken," and certainly not to the extent of the drastic and imprudent "fix" proposed by S. 1253. Moreover, legislative change would be particularly untimely now, on the heels of the significant changes wrought by last spring's CCNV decision.

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