current practices. Instead, many publishers would simply increase their use of "in-house" employees. This would mean a decline in the use of free-lancers of all types, which seems unlikely to be the intent of the bill. Another portion of the bill addresses joint works. It is not clear to AAP that any portions of the copyright law governing joint works require revision. The provision in S. 1253 that commissioned works could only be joint works of the commissioning and commissioned parties if a writing to that effect were signed "before the commencement of the work" is fatally flawed because it fails to provide any rule for allocating cwnership in a work to which both parties contributed copyrighted authorship without executing the necessary writing, or after executing it "too late."15 Surely the absence of the writing would not divest the commissioning party's rights in its contribution, but the bill would deny the work joint status, and thereby leave its ownership and marketability unclear. This would lead to the unprecedented - and unfortunate - result that neither author would clearly own a work containing two or more valuable contributions. public. Thus the work might never reach the In short, we oppose enactment of S. 1253 because: 15 The purpose of any law's allocation of rights among two or more people should be to provide clear rules for the acquisition, enforcement and alienation of rights in property when those people have no agreement; S. 1253 does not accomplish this. any legislative reversal of the recent, unanimous, unambiguous decision in CCNV is premature; certain provisions of S. 1253 are unclear and their sorting out would lead to tremendous confusion, litigation, and expense; and other provisions, although somewhat clearer in meaning, would upset the compromise that the Supreme Court has just endorsed and be unacceptably burdensome to our members. I would be happy to respond to any questions. Senator DECONCINI. Thank you very much. Mr. Fishman. STATEMENT OF R. JACK FISHMAN, PUBLISHER, LAKEWAY PUBLISHERS, 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:] TESTIMONY OF R. JACK FISHMAN NATIONAL NEWSPAPER ASSOCIATION SUBCOMMITTEE ON PATENTS, COPYRIGHTS & TRADEMARKS OF THE JUDICIARY COMMITTEE OF THE UNITED STATES SENATE National Newspaper Association September 20, 1989 |