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Senator DECONCINI. Thank you very much.
Mr. Fishman.

STATEMENT OF R. JACK FISHMAN, PUBLISHER, LAKEWAY PUB

LISHERS, MORRISTOWN, TN, REPRESENTING THE NATIONAL NEWSPAPER ASSOCIATION

Mr. FISHMAN. Mr. Chairman, members of the subcommittee, my name is R. Jack Fishman. I am editor and publisher of the Citizen Tribune in east Tennessee. It is a daily and Sunday newspaper. I am also president of Lakeway Publishers, which owns six smaller papers in middle Tennessee. For the past year I have served as chairman of the Government Relations Committee of NNA. I have also served as president of the Tennessee Press Association.

NNA is a national trade association representing the interests of small daily and weekly newspapers throughout the United States. It was founded in 1885 and has more than 5,000 members. It is the oldest and largest national trade association in the newspaper industry. NNA is a member of the Committee for America's Copyright Community. I have a full text of my written testimony and with your permission I would like to submit it for the record, then I will briefly try to summarize.

Senator DECONCINI. Without objection, it will appear in the record.

Mr. FISHMAN. I kind of feel like the guy who came to the wrong meeting because everybody else has discussed the work for hire issue and specifically S. 1253. In preparing my remarks, I would like to more specifically talk about moral rights in the newspaper industry, which I feel is critically important.

In preparing this testimony I asked Robert Brinkmann, general counsel of NNA, to briefly summarize the legal aspects of the moral rights doctrine. I have attached that summary to this testimony as an appendix. I am not a lawyer and do not pretend to understand the intricacies of the moral rights doctrine, but I have learned enough to know that the imposition of a moral rights system would not permit the newspaper industry to continue to do business and serve the public in the same fashion that it has for decades.

Moral rights in the newspaper industry simply are not compatible, and there are three particular principal factors. One is the legal factors involved; the time factor involved; the signoff provisions; and then who actually is the author.

Many of the European countries have concluded that their legal systems cannot provide for moral rights for newspapers.

The doctrine simply is unsuitable in our business. In order to run my newspaper properly, I have to know-and I have to absolutely know that I have the unconditional rights to those stories and photographs that I plan to run and that I am free to edit and crop them as I wish and when I wish. Legally, I am the one who is held responsible under such laws as libel and privacy for the content of the stories and photographs that I run in my paper. That means I not only have to bear the consequences of my own actions, but I also have to bear the consequences of some others that do publish in our paper.

Under the moral right of paternity, an author has the right to be identified with a work, to prevent others from being named as the author of the work, and to prevent others from falsely attributing to him or her the authorship of a work which he or she did not create. On the very front end, all of this sounds very reasonable. Newspapers, after all, do run bylines. But many short stories do not have bylines. Many stories are the result of contributions from several staff members. We simply could not put bylines on every story and could not always identify on a timely basis each contributor. Further, the story may be reedited several times before it actually becomes a final product. Even if we put bylines on every story, we would run the risk of challenges concerning who actually did the major part of the story, who actually did write that particular story.

The second part has to do with integrity. Under the moral right of integrity, an author has the right to prevent others from making deforming changes in his work. Allowing a reporter to prevent changes in his stories which he felt were deforming would spell disaster for our industry.

There are a number of reasons for this. Timing is very important. So is the question of conflicts between reporters and editors. So is the question of editorial oversight. You can imagine the confusion in the composing room of a daily newspaper if I have to go find a reporter that happened to write the high school football story last night and ask him if I can delete the third paragraph. I can't do that. I can't find him. I may not be able to do that.

These are the major factors that we feel are very important when you are considering the moral rights matter in the newspaper industry.

I haven't even had time to speak about the advertising complexities, the display advertising, the artwork, and the display ads of automobiles or fruit or VCR's or some creative art that has been produced that we use in the display ads. This creates another whole ball of wax that I hope you will seriously consider.

I would be glad to try to answer any questions that you may have.

[The prepared statement of Mr. Fishman follows:

[graphic]

TESTIMONY OF R. JACK FISHMAN
PUBLISHER, CITIZEN TRIBUNE
MORRISTOWN, TENNESSEE

ON BEHALF OF THE
NATIONAL NEWSPAPER ASSOCIATION

BEFORE THE
SUBCOMMITTEE ON PATENTS, COPYRIGHTS & TRADEMARKS
OF THE JUDICIARY COMMITTEE OF THE UNITED STATES SENATE

National Newspaper Association
1627 K Street N.W., Suite 400
Washington, D.C. 20814

(202) 466-7200

September 20, 1989

Statement of Jack Fishman
on behalf of the National Newspaper Association

September 20, 1989

Mr. Chairman, members of the subcommittee, my name is R. Jack Fishman, and I am editor and publisher of the Citizen Tribune, a daily and Sunday newspaper in East Tennessee with a circulation of about 24,000. I also serve as President of Lakeway Publishers, Inc., which owns six other newspapers in Tennessee, whose circulations range from 6,000 to 8,000 each. For the past year I have served as Chairman of the Government

Relations Committee of the National Newspaper Association (NNA). I have also served as

President of the Tennessee Press Association and as Chairman of the Economic

Development Board for the State of Tennessee.

The National Newspaper Association is a national trade association representing the interests of small daily and weekly newspapers throughout the United States. Founded in 1885 and with more than 5,000 members, NNA is the oldest and largest national trade

association in the newspaper industry.

Introduction

I am here to address the issue of moral rights and the newspaper industry. I will not address the issue of work-for-hire, nor S. 1253. NNA has no position on the bill for we are still assessing both the use of work-for-hire in the industry, and the recent impact of the Supreme Court decision, as well as what impact that decision and S.1253 would have on the industry. Given the complexity of the issue, however, NNA would urge the Committee to carefully consider whether it would be premature to take action in this area.

In preparing this testimony, I asked Robert Brinkmann, General Counsel of the National Newspaper Association, to briefly summarize the legal aspects of the moral rights doctrine. I have attached that summary to this testimony as an Appendix. For purposes of

my testimony I limit the term moral rights only to the integrity and paternity rights as described in that Appendix. That Appendix also briefly describes several other, rather bizarre concepts that apparently fall under the moral rights rubric.

Mr. Chairman, members of the subcommittee, I am not a lawyer, and do not pretend to understand all the intricacies of the moral rights doctrine. I have learned enough, however, to know that the imposition of a moral rights system would cot permit the newspaper industry to continue to do business and serve the public in the same fashion that it has for decades. Moral rights and the newspaper industry simply are not compatible, a conclusion which a number of European legal systems have reached. See Appendix.

Before turning to the core of my testimony, I should mention that it seems that the idea of moral rights really turns upon the idea that a piece of writing or a piece of art somehow and in some essential way still belongs to the author even after the piece is sold. The doctrine seems to create an exception to the principle of free enterprise and private property upon which our American system is based, and I find that objectionable.

Much more important, however, is that I also find as a practical matter that the doctrine is unsuitable for the publishing industry. In order to properly run my newspaper, I have to know--and absolutely know--that I have the unconditional rights to those stories and photographs I plan to run, and that I am free to edit and crop them as I wish, when I wish, and how I wish. Any other arrangement would be inadequate from a business point of view, and simply would not work.

From a legal point of view, the situation is even more serious. I am the one held responsible under such laws as libel and privacy for the contents of the stories and photographs that I run in my paper. That means that I not only have to bear the consequences of my own actions, but also that I have to bear the consequences of at least

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