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 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 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

For these reasons, implementing a moral right of paternity in the newspaper industry simply would not work, and trying to do so would create chaos.

B. 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. Some have to do with the timing of putting together a newspaper, others with the question of conflicts between reporters and editors. Still others have to do with the question of having editorial oversight and control rest in the hands of the individual who is legally responsible for the contents of the stories and photographs.

If writers had to approve edits of their stories before they could be run, the finely tuned systems that create daily newspapers would grind to a halt. A newspaper, particularly a daily newspaper, is an extremely time-sensitive medium, and there simply is not a

sufficient amount of time in the process to get sign-offs from writers at each and every stage

of the editing process.

Often it is not hours, but minutes that count with breaking stories. Brief delays can be deadly, and can mean not going with a story. The problems smaller newspapers would face would be of a certain variety--how and where (with only twenty minutes left to deadline) to find the high school stringer from the other side of the county who wrote the four paragraph (now three paragraph) high school football story and who took the picture of the winning field goal. The problems larger newspapers would face would be of the same variety but of a different magnitude--how and where (with twenty minutes left to deadline)

may come from the publisher. It is the publisher, after all, who must pay the costs of defending the story in court if the newspaper is sued for defamation or invasion of privacy.

By the time this process is complete, it often would be simply impossible to identify with any degree of rationality who, how many, or to what degree various individuals are authors of the story. To impose some sort of moral right of paternity on this process would force me to pick and choose among all the contributors to one story. To force me to so choose would force me to assume the risk and the complication of having to defend these types of decisions--perhaps in court--against contributors who thought that their contribution was notable enough to deserve credit. And, assuming that I am honest and wish to give credit where credit is due, what would happen to me in court? What standards would the judge use? What could I do to minimize my risks?

You can imagine the difficulties, and the potential ego involvement. Even the thought of having to referee such fights sends shivers down my spine. And, just to complicate things a bit more, I should point out that since many newspapers use computer systems of one sort or another for writing, editing and composition, there might well be fights over who actually wrote what since, by the time a hard copy became available, memories might be a bit hazy concerning who actually contributed a particular sentence, or a particular part of a sentence.

Putting the names of all the contributors to a story in a byline (which would be an absurd result in and of itself given the number of individuals who work on some stories) would not even solve the problem. I still would risk challenges from individuals who thought that the story was "really" their's and consequently wanted to prevent me from falsely attributing "their" story to others.

For these reasons, implementing a moral right of paternity in the newspaper industry simply would not work, and trying to do so would create chaos.

B. 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. Some have to do with the timing of putting together a newspaper, others with the question of conflicts between reporters and editors. Still others have to do with the question of having editorial oversight and control rest in the hands of the individual who is legally responsible for the contents of the stories and photographs.

If writers had to approve edits of their stories before they could be run, the finely tuned systems that create daily newspapers would grind to a halt. A newspaper, particularly a daily newspaper, is an extremely time-sensitive medium, and there simply is not a

sufficient amount of time in the process to get sign-offs from writers at each and every stage of the editing process.

Often it is not hours, but minutes that count with breaking stories. Brief delays can be deadly, and can mean not going with a story. The problems smaller newspapers would face would be of a certain variety--how and where (with only twenty minutes left to deadline) to find the high school stringer from the other side of the county who wrote the four paragraph (now three paragraph) high school football story and who took the picture of the winning field goal. The problems larger newspapers would face would be of the same variety but of a different magnitude--how and where (with twenty minutes left to deadline)