it is no accident that the United States is the world's leading producer of these products and services. Much of that lead is attributable to our copyright system; a system based on property rights that, in keeping with longstanding Anglo-American principles, may be transferred, licensed, waived or otherwise dealt with freely by their owners, without unreasonable restraints on alienation. AAP, along with several other organizations and firms, has funded an exhaustive examination by three copyright - of the doctrine and effect of moral rights. I am the only one we know - submitting copies of this study for the record. It demonstrates the extent to which the application of moral rights would conflict with copyright and business traditions in the United States. It makes it clear that moral rights on the European model would place AAP members in the position of literally never knowing with certainty whether and to what extent they could market the works for which they have, often at great expense, acquired copyright rights or licenses. The possibility that an individual author or his heirs might, many years after a traditional publishing contract was signed, have a legal basis by which to prevent the preparation or marketing of a publisher's new abridgement, revision, or translation of a work, or even the design of a book jacket for a new edition, would unacceptably increase the uncertainty now inherent in AAP members' lives. There is already enough risk in book publishing. Today our members must concern themselves, in publishing a trade book, with whether a particular manuscript will result in a book for which the public has an appetite, how best to edit such a manuscript, how to ensure that it contains no libellous or copyright-infringing material, how to have high quality copies timely produced in the proper quantity at a reasonable price, how to deliver those copies to the public in an efficient and cost-effective manner, and, if all goes well, how to proceed with respect to subsidiary rights, such as foreign language, electronic format and magazine excerpt rights. In publishing a textbook, a publisher faces additional risks in deciding how best to satisfy the diverse and sometimes inconsistent criteria of multiple textbook adoption authorities and how to integrate multiple contributions into a unified work. - The added uncertainty engendered by inserting new noneconomic rights into our law could easily alter publishers' assessments of the risks attending a particular project. Increased risks mean, invariably, increased costs, as new risks must be evaluated and insured against. Funds that might have been invested in new or untried authors would have to be paid to lawyers, insurance carriers, or escrowed against the inevitable unpleasant surprise. As a result some titles would likely never be published. The problem with moral rights, as they have developed in Europe, is that, unlike the rights known there as "economic rights" (and here as "copyright"), their shape is largely unclear and their invocation seems at times, frankly, almost whimsical. I do not mean to suggest that I treat or take moral rights lightly; nothing could be further from the truth. I simply mean that to give authors veto power that they may exercise according to their own subjective beliefs about the appearance or content of copies of works in which they no longer own the copyright because they have freely - - would be to invite some contracted it to a publisher In response to such obstructionism, courts would be required to do that which Justice Holmes correctly and eloquently argued that they ought not engage in: the allocating of legal rights based on aesthetic judgments.8 For book publishers, an expanded moral rights regime affording perpetual inalienable rights of paternity and "It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation . . . . At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value -- it would be bold to say that they have not an aesthetic and educational value -- and the taste of any public is not to be treated with contempt." Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903). integrity would in many instances be disastrous. In many projects, particularly those involving the collaboration of many contributors, publishers must heavily edit the many contributions to permit them to fit comfortably into an anthology, textbook, encyclopaedia, or other work. They must also have the right, over time, to refine, revise, or update such modifications. For example, in school book publishing, editing is often required to meet the requirements of state textbook commissions, or to remove material that could generate libel, copyright infringement, or other legal liability. If the changes made by editors were subject to after-the-fact veto by the authors or contributors, many works would either be much more time-consuming (i.e., expensive) to prepare, or would disappear from the market altogether. 9 Finally, I think it is important to consider the history of moral rights abroad. Those rights are rested in the civil law systems of Continental Europe and the bureaucratic and technological environment of earlier centuries. By contrast, book publishing operations today necessarily involve the collaboration of numerous people, including - 9 The important issues discussed in Part II of this statement concerning works made for hire are essentially independent of the "moral rights" question whether the person creating or contributing to a work (who does not own any copyright interest therein by virtue either of a contract or application of the work-for-hire doctrine) should have an aesthetic veto over future lawful -- under copyright principles - reproductions or other uses of the work. authors, editors, illustrators and designers and require prompt decision-making. In addition, European moral rights regimes have developed in an environment having no strong notion of freedom of speech and press, and thus often conflict with the strong First Amendment tradition in the U.S., which has allowed American creativity to flourish. The insertion of foreign moral rights notions into the publishing process, especially when American traditions run counter to these notions, would create unnecessary confrontations and litigation. There is simply no compelling need to graft a foreign scheme of ancillary rights onto our present, singularly successful system. AAP strongly opposes any such changes in our law. II. Works Made For Hire The work-made-for-hire doctrine, as developed in Congress and the courts, has proven to be an indispensable tool for AAP's members who publish works (such as books, instructional materials, and tests) that are the product of a collaborative effort involving large numbers of people who, for very practical reasons, cannot all be employees of the publisher. These contributors work under a wide variety of compensation arrangements -- royalties, flat fees, and hourly as determined by negotiations. rates among them - The doctrine has been shaped by complex negotiations between publishers and contributors, the compromises to which both sides agreed (which are reflected in the statute), |