instance and to keep track of the expiration of 28 years from the creation or copyrighting of each. But think for a moment of the creator who, in one year, has, let's say, 100 or more photographs in different collective works; or the poet who contributes to such works each year, and before they are collected in a book, literally hundreds of quatrains, sonnets, odes and the like; or the feature writer or columnist who writes for a large public five days a week for decades; or the cartoonist whose works appear over many years in newspapers, magazines and books. To keep track of and renew all these requires an elaborate filing and reminder system and the expenditure of vast sums of money.

The alternative is to let valuable properties, which usually represent the creator's chief or sole means of livelihood, go into the public domain. A good filing and reminder system must, mind you, be retroactive to the time the writer, photographer or artist first creates a time when only the most sophisticated know anything about copyright law, most of them having had no contact with it before. In my experience, by the time most writer and photographer contributors to collective works find out that they must scrupulously guard their copyrights and their copyright records, it is too late for them to do so. I recently had occasion to try to track down for renewal purposes the early pictures of a now famous artist. The Copyright Office supplied, after working very hard at it, a woefully incomplete list-they, too, had no way of tracing pictorial illustrations in magazines unless they were listed with the name of their creator in the table of contents which, of course, they rarely are. Inevitably, because of the present system of renewal, many of this artist's works-and many of the works of many other authors and artists and poets-may go into the public domain despite their immense value to their creators. The hardship is particularly intense where the early untraceable works contain a character in graphic form which has later become famous. If the earlier pictures are not protected, the value of the later ones may be greatly diminished, perhaps wiped out entirely. If a now famous cartoon character first appeared in cartoons now in the public domain, can anyone copy him despite the fact that he may continue to be his creator's chief stock in trade? If the recommendation that works be protected for life plus fifty years, which is embodied in the Bill before you, is adopted, then most contributors to collective works will for the first time realistically have any copyright protection at all after the first 28 year term.

There are, of course, many other provisions of the pending Bill which will greatly improve the copyright lot of those whose contributions make up the non-advertising portion of our magazines, newspapers, anthologies and other collective works. I have already referred to § 201 (c), which clarifies and makes meaningful provision for the ownership of the contributions to collective works. $ 202 ("Ownership of Copyright as distinct from Ownership of material object") makes plain-as it should be made plain-the copyright position of the magazine photographer, and, indeed, all other creators of art and art objects. § 401 (b) (2) and § 403 resolve the existing ambiguities and confusions as to what is proper notice for a collective work. And, of course, the provisions as to reversion are important to all creators of copyright property.

PROPOSED EDUCATIONAL TELEVISION EXEMPTION

With reference to educational television, we ask that the Senate adopt S. 597, which is identical with H.R. 2512, as originally introduced into the House. the Bill which was the subject of extensive hearings. We take issue, however, with that portion of § 110 of both Bills which permits unrestricted use of magazine articles and photographs. The question is most definitely not whether educational television should be publicly supported. We believe it should be. The issue is whether there should be forced contribution to educational television by that limited and important section of the public which creates copyright property, on which the true wealth and intellectual worth of the country depends. This group, representing the intellectual and cultural achievement of this country, must continue to be the principal source of subject matter for educational television. However, people creating copyright property are already greatly disadvantaged under the tax laws; to require them to make a gift to educational television stations of their property, which, by its economic reward, makes their creativity possible, is really to kill the goose that lays the golden egg.

Senate Bill S. 597 reflects an intention to grant broad exemption for classroom teaching. Indeed, it goes beyond the classroom to permit non-dramatic

literary and musical works to be used on instructional television outside the classroom, provided the area covered is not more than 100 miles and provided that copies are limited to two, one for archival purposes only, and that no copies are preserved for more than six months, except for archival purposes. These limitations clearly seem to indicate an intent by the committee to protect the copyright owner's ability to earn a livelihood and continue to create copyright properties.

Many photographers and magazine writers earn their living exclusively in the textbook and other technical fields. Professional photographers presently operate on a basic structure of accepted values. A general custom in the trade recog. nizes fees and rights and is normally honored by publishers of textbooks, of film strips, of slide films and visual aid material and by film producers. A stockpile of finished material exists. If educational television is to have unlimited free access to photographic images lifted from textbooks, magazines, photographic books and photographic exhibitions hitherto protected by copyright, it will seriously disrupt the photographic industry serving the communications media and educational groups.

Even with the safeguards provided in S. 597, which were deleted in the Bill as passed by the House, we feel that proposed action jeopardizes the earnings of photographs which, when exposed in any wide area or over any considerable period of time, lose their economic value altogether. Most educational slide films, film strips and educational films are originally made at considerable investment by the producers, to be recouped by sale of single copies or licensed showings of the work to school systems or other users. Remove copyright protection and a valuable source of classroom material will collapse. Remove copyright protection and you have confiscated a large present investment in these finished visual aid materials. Remove copyright protection and you have confiscated large files of photographic material whose worth is presently providing income for photographers in this field.

Under the House Bill as passed, the number of recordings of an instructional television program is unlimited, the permissible area is the entire country and the permissible duration of the use is forever. As the Constitution itself says, the purpose of the Copyright clause is to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." There is no conceivable reason why an important element of protection of non-dramatic literary works, including magazine writings and photographs, should be taken away by a new copyright act in a desire to help any other worthy group, including the educa tional broadcasters. These broadcasters may well be entitled to special assistance, but no one for that reason suggests that the sellers or renters of real property not charge them rent or that they be given, free of charge, furniture, typewriters, telephone service or other equipment. The way to help them is via the means presently being considered by Congress, i.e., by financial subsidy, a public corporation for television, and the like. In the meantime, we ask that the Senate not penalize the Copyright community to advantage the educational television community. It just doesn't make sense both are entitled to full supportand one need not be, as the House has made it, a real threat to the other. Of all the copying which goes on now, perhaps the most prevalent is that of contributions to periodicals, so this question is of great importance to all magazine writers and magazine photographers who take their stand with the American Book Publishers' Council, the Authors League of America, and many others. in opposing these proposals to permit copying. We urge that § 110 be limited so that no photographs may be reproduced without compensation, and that the use of magazine articles be limited to face to face classroom teaching.

We feel that this exemption will result in disrupting much educational work now being undertaken. In placing a stockpile of magazine articles, visual educational photographic materials and photographs in the hands of educational television interests, the threat of creation of an educational monopoly arises. And it is probable that an unhealthy restrictive factor in education will arise.

There are many other provisions of the Bill which represent a needed and tremendous improvement over the existing law. Spokesmen of other groups have called and will call these to your attention in detail. We wish to refer specifically only to one other provision of the proposed new law, namely, § 601, the revised "manufacturing clause." We wish to state that we do not think it proper (nor. indeed perhaps, even constitutional) to have any manufacturing clause in our

Copyright Act. If, however, one is to be included, the proposed new one has many advantages over the present manufacturing clause for contributors to periodicals and special advantages for creators of non-textual material like photographers to whom the clause would no longer apply. However, it still leaves much to be desired. For example, if a photograph, story or article appears in a collective work which runs afoul even of this revised manufacturing clause, it may suffer the penalties imposed by the clause despite the creator's inability to do anything about it. We hope that consideration will be given to eliminating the manufacturing clause entirely, and we believe its inclusion may be in violation of the Constitution.

All in all, I should like to conclude by saying that for the American Society of Magazine Photographers and the Society of Magazine Writers, the Senate Bill, if enacted into law, will be not only an improvement over existing law, but, in many contexts, will for the first time give to these groups any really effective copyright protection in a number of important respects.

We have not testified in person before the Senate because we did so before the House, and we felt this statement would in any event make our views clear.

The organizations I represent and, of course, I myself greatly appreciate this opportunity to submit this statement, and hope that as a result of these Hearings, the Committee will report the Bill favorably and the Senate promptly enact it. Respectfully submitted,

HARRIET F. PILPEL,

General Counsel for American Society of Magazine Photographers and
Society of Magazine Writers.

§ 110. Limitations on exclusive rights: Exemption of certain performance and displays

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or displays of a work by instructors or pupils in the course of face-to-face teaching activities of a non-profit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance is given by means of a copy that was not lawfully made under this title and that the person responsible for the performance knew or had reason to believe was not lawfully made;

(2) performance of a nondramatic literary of musical work, or display of a work other than a photograph or work of graphic art, by or in the course of a transmission by a governmental body or other nonprofit organization, if: (A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and

(B) the transmission is made primarily for:

(i) reception in classrooms or similar places normally devoted to instruction, or

(ii) reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or

(iii) reception by officers or employees of governmental bodies as a part of their official duties or employment; and

(C) the time and content of the transmission are controlled by the transmitting organization and do not depend on a choice by individual recipients in activating transmission from an information storage and retrieval system or any similar device, machine, or process;

(3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;

(4) performance of a nondramatic literary or musical work, otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if: (A) there is no direct or indirect admission charge, or

(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of his objections to the performance under the following conditions:

(i) the notice shall be in writing and signed by the copyright owner or his duly authorized agent; and

(ii) The notice shall be served on the person responsible for the performance at least seven days before the date of the performance. and shall state the reasons for his objections; and

(iii) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;

(5) communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless:

(A) a direct charge is made to see or hear the transmission; or (B) the transmission thus received is further transmitted to the public.

(6) performance of a nondramatic musical work, without any purpose of direct or indirect commercial advantage, by a governmental body or a nonprofit agricultural or horticultural organization in the course of its conduct of an annual agricultural or horticultural fair or exhibition whose duration does not exceed 16 days.

§ 112. Limitations on exclusive rights: Ephemeral recordings (a) Notwithstanding the provisions of section 106, and except in the case of a motion picture or other audiovisual works or a photograph or other work of graphic art, it is not an infringement of copyright for a transmitting organization entitled to transmit to the public a performance or display of a work, under a license or transfer of the copyright or under the limitations on exclusive rights in sound recordings specified by section 114(a), to make no more than one copy or phonorecord of a particular transmission program embodying the performance or display, if—

(1) the copy or phonorecord is retained and used solely by the transmitting organization that made it, and no further copies or phonorecords are reproduced from it; and

(2) the copy or phonorecord is used solely for the transmitting organization's own transmissions within the area normally encompassed by its transmissions, or for purposes of archival preservation or security; and

(3) unless preserved exclusively for archival purposes, the copy or phonorecord is destroyed within six months from the date the transmission program was first transmitted to the public.

(b) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization entitled to transmit a performance of display of a work excepting a photograph or work of graphic art, under section 110 (2) or under the limitations on exclusive rights in sound recordings specified by section 114(a), to make copies or phonorecords of a particular transmission program embodying the performance or display.

(c) The transmission program embodied in a copy or phonorecord made under this section is not subject to protection as a derivative work under this title except with the express consent of the owners of copyright in the preexisting employed in the program.

STATEMENT OF CAPT. EDWARD STEICHEN, ON BEHALF OF THE AMERICAN SOCIETY OF MAGAZINE PHOTOGRAPHERS, ON S. 597, FOR SUBMISSION TO THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY ON MAY 10, 1967

Photography is here to stay. It is a young, vigorous art: one that speaks directly from man to fellow man. It is man's mirror held up to the world. It deserves the fullest protection and encouragement of the law. Yet the present copyright Law discriminates against photography in many ways-not because Congress intended to do so but simply because photography had barely begun when our present Copyright Law was written.

It is high time that this young giant among the arts be given equal rights by having its peculiar problems taken into account. The Bill now before you will do this and we urge you to approve it. Respectfully submitted.

AMERICAN SOCIETY OF MAGAZINE PHOTOGRAPHERS, By EDWARD STEICHEN, Copyright Committee.

STATEMENT OF DAVID LINTON, ON BEHALF OF THE AMERICAN SOCIETY OF MAGAZINE PHOTOGRAPHERS, ON S. 597, FOR SUBMISSION TO THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY My name is David Linton. I am past President and Chairman of the Copyright Committee of the American Society of Magazine Photographers. The members of this Society take most of the photographs that appear in magazines and many of those in books, encyclopedias, television programs and publications of all sorts. Our Society strongly endorses the Bill presently before this Subcommittee and urges its prompt enactment.

I regret that my distinguished colleague, Captain Edward Steichen, was unable to testify in person before this Committee. He is 86 years of age and his health does not permit him to make the trip from his home in Connecticut. He was born in 1879 and took up photography in 1895 at the age of 16. He first won recognition as a photographer when his work took first place in the Philadelphia Salon of 1899. He went on to become Chief Photographer of Conde Nast, publishers of Vogue and Vanity Fair. In 1945, he was appointed Director of the U.S. Navy Photographic Institute and placed in command of all Navy combat photography. In that year, he was awarded the Distinguished Service Medal. In 1947, he became Director of Photography at the Museum of Modern Art, where he created that great exhibit, The Family of Man. In 1963, he was awarded the Presidential Medal of Freedom by President Kennedy. A group of his photographs are presently on exhibition at the Metropolitan Museum of Art in New York City. He is probably the most famous living photographer in the world, yet the photographs he made in the early years of his career no longer belong to him. By the inexorable operation of the present Copyright Law, they have passed into the public domain.

We join with all the other creators of "Original Works of Authorship" in supporting the proposed Copyright term of the creator's life plus 50 years thereafter. We also share with our colleagues of the Society of Magazine Writers a special concern for the provisions relating to composite works since it is in composite works that most of our and their work appears. The provisions of Sections 401 and 403 of the present Bill, relating to Notice of Copyright in such works, will remove the number of difficult problems in our field. The abolition of the renewal system is also of great practical importance to us because a photographer may produce hundreds of individual works in the course of a year. The much improved definition of "works made for hire" in Section 101 and the provisions of Section 201 (c) give the sanction of law to important recognized trade practices in the publishing of periodicals.

One apparently minor provision, the definition of "Publication" in Section 101 is of great importance to the creators of graphic works because it ends the present uncertainty as to whether exhibition of a work can be considered a form of publication.

I believe it was the intention of the authors of this Bill to exempt graphic illustrations from the restrictive provisions of the Manufacturing Clause. The present wording of Chapter 6 does not entirely achieve this end. The creator of illustrations for a book rarely has any control over the printing or manufacture of the book. What happens is that a photographer or other artist sells a group of illustrations to a publisher. A year later, perhaps, he discovers that the book was printed abroad and his pictures are in the public domain. Under the present wording of Chapter 6 this unreasonable imposition would still occur if the book was predominantly of non-dramatic literary material and the author an American. We hope, of course, that this unintentional injustice will be rectified.

In general, the most fundamental improvement in the Bill now before you is that failure, even unintentional failure, to comply with the technicalities of Copyright generally would not destroy a copyright forever as it does under the exist