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Consequently, we ask that the law include some provision for the copyright to revert to the author after a work has gone out of print and after a reasonable period during which there have been no sales and no royalties to the author. If we suggest a five-year span of inactivity as a reasonable period, it is not that we regard this span as desirable a priori, but rather to present a specific proposal for the Subcommittee's reaction.

Our second concern for the author pivots on his loss of a key bargaining position which he now enjoys at the end of the first twenty-eight year period. Where the work has grown in popularity or the author's reputation has gained in stature, the current practice of renegotiating for a second copyright term provides the author with the opportunity to see these changes in circumstances reflected in the provisions of the contract for renewal. (In the meantime, the 85 percent of all works that are not commercially valuable are properly allowed to fall into the public domain at the end of the first twenty-eight year period.) Under the proposed law, the author would have no such bargaining advantage or opportunity. It was in recognition of the unequal bargaining position between an author and his publisher that the Congress in 1909 decided in favor of the present system. The principle of a longer single period was then rejected on the premise that "it was distinctly to the advantage of the author to preserve the renewal period." Conceding changes in print technology and in longevity of authors, we see nothing advanced which points to a different relationship between authors and publishers.

In considering whether or not the proposed extension of copyright is necessary, it is important not to forget that the purpose of the copyright law is to promote the progress of science and the useful arts. Copyright is not basically for the benefit of the authors or any particular class of persons but for the public in general. To provide an incentive for authors the Constitution does state that Congress shall have the power to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective rights and discoveries. But this again is primarly for the benefit of the public because it stimulates writings. Authors quite naturally argue that additional extensions of their monopoly will further stimulate writings and better fulfill the purpose of the Constitution. In contrast the public interest would seem to dictate early passage of copyright material into the public domain in order that it can be freely used by everyone. Any further extensions of the monopoly would seem to run against the dictates of public interest. Consequently, the question arises, will further extensions of the copyright monopoly better serve science and the useful arts?

The following figures from the Register of Copyright's 1961 Report indicate that further extensions are unnecessary:

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Adding the present copyright duration of 56 years to the above figures, authors can receive royalties until :

Years

Average age of authors when copyright of first book published expires----
Average age of authors when copyright of last book published expires____

88

120

Hence, under the present statute authors are, in general, protected for their life times, and their heirs receive the benefits of the authors' copyrights for considerable lengths of time after their deaths.

Considering this matter from the viewpoint of the public it would appear that the further withholding of the free use of writings beyond the present monopoly of 56 years does not best serve the provisions of the Constitution, and in fact may be unconstitutional.

As Professor Kaplan has so aptly put it:

"In a condition of society in which nearly all else is moving and obsolescing at an accelerating pace, in which businessmen are rarely moved by any but quick-return prospects, it seems to me passing strange to be now thinking of prolonging copyright. That scattered works may have commercial value after fifty-six years hardly seems a justification for keeping all works under wraps for another twenty years. We ought to recognize clearly that any increment of

1 H.R. Rep. 2222 (60th Cong., 2d Sess. 1909), p. 14.

benefit to the author and publisher achieved by prolonging the period of protection is quite soon outrun by the burden imposed on others." "

Let us be fair to the authors and composers, but let us also be fair to the users and the public. Let us recognize the truth of Lord Macaulay's observation: "The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to authors." Let us keep this tax as small and for as short a period as is consistent with providing the incentive to authors and composers. As much a tax as is necessary, but not a cent or for a day longer than is necessary.

Much has been made of the virtue of conforming to the European copyright term of life plus 50 years. But before we take this step, let us carefully consider who will benefit from such a change. Early, the Ad Hoc Committee on Copyright Revision made clear that it did not believe teachers or scholars, in their roles as users and consumers, would gain. It is clear to us now that many authors would not gain either. Consequently, in the interests of the educator and the writer and the general public whom both serve, we ask the Subcommittee on Patents, Trademarks, and Copyright to re-examine Section 302 and to re-establish the provisions for term of copyright that exist under the present law. We earnestly believe that the present provisions governing duration of copyright better serve the interests and needs of writers, teachers, and scholars.

WGBH,

LOWELL INSTITUTE COOPERATIVE BROADCASTING COUNCIL,
Boston, Mass., May 10, 1967.

THOMAS BRENNAN, Esq.,

Chief Counsel, Subcommittee on Patents, Trademarks, and Copyrights,
Committee on the Judiciary, U.S. Senate,

Old Senate Office Building, Washington, D.C.

DEAR MR. BRENNAN: Submitted herewith are ten copies of a report on a survey of the educational radio stations of the United States with respect to the pending copyright law revision. The survey was conducted by National Educational Radio, a division of the National Association of Educational Broadcasters.

The results of that survey were the subject of testimony by Mr. Jerrold Sandler, Executive Director of National Educational Radio, before the Subcommittee, on April 12, 1967. The present report presents the data which formed one basis for Mr. Sandler's conclusions as to the likely effect of various provisions of S. 597 on educational radio broadcasters.

We believe this research is particularly important for the Subcommittee's attention because it represents a program-by-program analysis of all of the programs broadcast during one week by two-thirds of the National Educational Radio member stations. We sincerely hope that it may be considered by the Subcommittee in connection with their deliberation on S. 597.

Respectfully submitted,

Enclosures.

MICHAEL E. HOBBS, Assistant to the General Manager.

2 Kaplan, An Unhurried View of Copyright (Columbia Univ. Press, New York, 1967), p. 115.

EDUCATIONAL RADIO COPYRIGHT SURVEY

By

National Educational Radio

1967

Conducted by:

Michael E. Hobbs

WGBH Educational Foundation
Boston, Massachusetts

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Preliminary Station Data

Table No. 1: Educational Radio Stations Surveyed
Table No. 2: Stations Surveyed, by Type

IV

Table No. 3:

Table No. 4:

Educational Radio Broadcasts and Programs
Program Categories Used in Survey
Educational Radio Broadcasts, By Program
Category, By Station

Table No. 5: Educational Radio Broadcasts, By Program

Category

Individual Effect of Sections 110(2)(A), (B), (C), and
112(b), on Educational Radio Programs

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Table No. 6:

Effect of Section 110(2) (A) on
Instructional Program Exemption

Program Exemption

Table No. 7: Effect of Section 110(2) (B) on Instructional

Table No. 8: Effect of Section 110(2) (C) on Instructional

Program Exemption

Table No. 9: Effect of Section 112(b) on Instructional
Program Exemption

Table No. 10: Summary: Effect of Sections 110 and 112
on Educational Radio Programming

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Table 11B: Cumulative Effect of Sections 110(2), 112(b),
By Station

33

Table 12: Summary: Cumulative Effect of Sections

36

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