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too distant past reported that the average income of professional writers is about $3,000 a year. Of course, one hears most of the great and successful best sellers, but they are a very small portion of those who earn their living through writing.
The Copyright Office and the House rejected these arguments to dilute copyright, but once again, they will be brought up and I would like to speak to that.
The first argument of this kind advances the theory that copyright is a monopoly. But copyright does not give an author control over anything except the property he has created. He can sell it or lease it, but if he holds it off the market no one is hurt except himself.
He is no more a monopolist in the antitrust sense than millions of other Americans who own land or buildings, businesses, securities, natural resources, or any other kind of property. Each one possesses the exclusive rights to use that which he has created, purchased, or inherited. It is not "monopoly" as the term is used under the Sherman Act.
A monopoly exists when someone owns enough property or has enough economic power to control an industry or to prevent the free play of competition. If I write a novel—and I have written six-I can't control the market for novels or the price of novels. I can't tell people successfully at least to read my novel instead of someone else's. My publisher can advertise it—and I certainly hope he will—but he must sell it in a free and competitive marketplace.
Another argument for diluting the rights of authors draws an anology between copyright and patents. A copyright differs from a patent because a patent protects an idea and can prevent other investors who have come on this idea from using it. This is not true of copyright. Any author is free to use the same idea and to express it in his own way. My last novel illustrates this rather pointedly. It appeared under the title of “Accident" and it began with a car crash in which two young men are hurt. Then it goes on to investigate the results of this accident and of the causes which may have led up to them.
My book was published also in England, but it appeared under a slightly different title because another novel entitled "Accident” by a writer named Nicholas Moseley, appeared in England 2 months before mine did and has since been published here. Mr. Moseley's novel begins with a car crash, and it goes on to investigate and evaluate the reasons leading up to the crash, and what happened afterward.
Neither Mr. Mosely nor I have the faintest claim against each other. We each bit on the same idea, but we produced different expressions of it. I modified my title a little bit, and both books were published here and in England, bought and read, in competition with each other.
The same situation exists in the field of nonfiction. In 1963, two excellent biographies of the poet John Keats were published, and each was considered for the National Book Award. Aileen Ward's received the prize, but some experts preferred, and recommended, Walter Jackson's. In 1957, Houghton Mifflin published a biography of Bernard Baruch by Margaret Coit, the Pulitzer Prize biographer. Mr. Baruch had authorized Miss Coit's book, but while she was still at work he took exception to her approach, and went at the job himself. Holt published his autobiography at about the same time Miss
Coit's book 'came out, and the two volumes certainly competed for sales.
There are hundreds of cookbooks in print. This happens again and again. Each cook has her favorite; and there are many dictionaries and encyclopedias from which the buyer may choose. I have been told that simply the listing of paperback books in print includes 40,000 titles.
Another argument advanced to dilute the author's hold on his properties is that copyright is merely a special privilege granted by Congress to authors. This seems very strange indeed to authors. We create our work and it is as hard for me to understand as if you told me my children were not mine. We create our books for people, not solipsistically for ourselves, but the law is not made for us.
The common law at present recognizes this right of creation. In Ferris v. Frohman the Supreme Court of Illinois said:
At common law the author of a literary composition has an absolute property right in his production which he could not be deprived of so long as it remained unpublished, nor could he be compelled to publish it. This right of property exists at common law in all productions of literature, drama, music, art, and so on.
That decision was affirmed by the Supreme Court of the United States in 1912 after the passage of the 1909 copyright legislation which is now in effect, and it has been ratified by other decisions in other courts. As the Register's 1961 report reminds us, these "exclusive rights under the common law” in unpublished works "continue with no limit even though the work is used commercially and widely disseminated."
This is a right which under the present revision bill before you, the author will be giving up. It has been for a prolific author, for a distinguished one like Mark Twain, a way in which he could insure to his heirs some property. Mark Twain's daughter lived on for a number of years and some of his work was published during her lifetime. These works were protected for the full term of copyright from the date of their publication. Thus, Twain had an opportunity to leave a substantial inheritance to his heir. We now would lose this opportunity since the revision bill provides that even unpublished work will come into the public domain 100 years after the date of creation.
Let me conclude by reminding you, as I am sure I hardly need to do, that our American society is founded on the principle that one who creates something of value is entitled to enjoy the fruits of his labor. If that labor is in the public interest, surely the laborer is more than ever worthy of his hire.
The gist of arguments to dilute the property right of the author, his copyright, comes down to this: "We admit the work of the author is in the public interest. In fact, it is so important, so vital, so useful to the public interest that-it should be taken away from the author without payment to him! It is so valuable that the people who create it should not receive recompense for their labors!"
I hope and believe the Senate will reject the obvious paradox of this absurd argument.
May I now ask Mr. John Dos Passos to read his statement?
May I inquire, I was very much interested in this last quote that you have referred to in your statement. Is that a quote from any statement of anyone who opposes copyright law as such?
Mrs. JANEWAY. It is my understanding, my summing up.
Mrs. JANEWAY. It is an imaginary quote. But there is a kind of fictional truth which we writers of novels feel we arrive at by such a summation of experience. I have listened to many of these arguments and I have not made this out of whole cloth, sir.
Senator McCLELLAN. Thank you very much. I do not recall anybody appearing before us who simply opposed all copyright laws and all the rights of authors and composers to have a copyright. But there may be those among us who would. I do not think they will be very convincing before this committee if any one should appear.
Mrs. JANEWAY. Senator McClellan, in the bundle of rights which made up copyrights, there is a possibility of dilution of one right or another right. I agree that the complete loss of copyright has not been asked for by anyone. But to weaken and to dilute can have extremely important effects as time passes. If it is anything like the bill which has been in effect since 1909, it will continue in effect for a number of years of great technological change.
Senator McCLELLAN. Very well.
Senator BURDICK. Mr. Chairman, will we reserve questioning until the panel is completed?
Senator McCLELLAN, I wanted to ask that for clarification in my own mind. I did not recall anybody ever having appeared here and opposed copyright in principle.
Very well, Mr. Dos Passos.
STATEMENT OF JOHN DOS PASSOS, AUTHORS LEAGUE OF AMERICA
Mr. Dos Passos. Mr. Chairman, Senators, with your permission I am going to make my own personal explanation of pages 9 through 15 of the general statement. This is the part which deals with the length of copyright in the proposed bill. I am just going to read a personal presentation of it which will be very short, I assure you.
Senator McCLELLAN. You are going to have your own copyright on this?
Mr. Dos Passos. Yes; this is not copyrighted, so I will have to run it over to the Library of Congress.
I have managed to make a living by writing articles, books, novels, and historical works for the best part of the last 50 years. During all this time I have operated under what seems to me to be the least favorable terms of copyright which exists in any civilized country, The present system by which copyright has to be renewed every 28 years has worked a great deal of hardship. It is very easy for an author to let the time of renewal slip by. A number of American and foreign authors or their heirs have lost their copyrights through ignorance or inadvertence. A man who makes his living by writing finds it hard to keep track of a great number of different items. In some cases, the renewal fees can become a real burden. If you do not renew the copyright at the specified time, there is no remedy whatsoerer.
Though I have been pretty careful about these things, I myself have lost copyrights on a couple of pieces of writing. These don't
seem of much importance now, but it is never possible to tell, in the great sifting process that goes on through the years by which some writings turn out to be of permanent interest while others are discarded which books will be read by future generations, and which will not. Once the copyright has lapsed, there is absolutely no way for the author to get a return for his work, which may have resulted from years of struggle and effort.
The bill under discussion establishes a single term of copyright, the authors lifetime plus 50 years. The House committee reported that they found overwhelming support for the life plus 50 years system among all concerned in the revision of the copyright law.
I understand that the life plus 50 years is the custom in France and England and almost all Western European countries.
Senator McCLELLAN. Would all the authors and composers be satisfied with that?
Mr. Dos Passo. I think so; yes.
Under the present system, the term for which the author or his family could receive an income from the result of his labors is limited. Even if his work is crowned by success, there is the burden of renewal after 28 years. Whether the author gets anything or not, the public will pay the same price for the book.
If the work is in the public domain the publisher gets the whole profit from this sale without having to turn over to the author even the skimpy 15 percent or so of the gross sales of the book out of which the author has to keep himself alive and to feed his family.
I have to admit that I am taking it for granted that the writing of books should be considered in the nature of a public service. The awful amount of print that pours forth from the presses isn't worth much in the long run. But occasionally, a book appears which gives people a fresh understanding of the world they live in, of their lives, of their nation's history. These books come to be what we call classics. You cannot measure in money terms the value of this sort of stimulus, of this sort of illumination. It does seem logical and fair that the poor devil who has labored for years to produce a masterpiece or even an entertaining story that whiles away a couple of hours should get what he could from it for the rest of his life.
The terms of authorship are precarious. We can all think of books that have given instruction to millions as the years went on which have not netted the author the least financial return. Often he has been lucky to keep out of jail, or not end up like poor John Bunyan. In enlightened countries the copyright laws try to give him a break. The present bill includes most of the copyright provisions that have been found to work successfully in European countries. Please allow me to urge most strongly that your committee approve the revisions in the revision bill establishing a copyright term of life plus 50 years.
Senator McCLELLAN. Very well.
STATEMENT OF HERMAN WOUK, AUTHORS LEAGUE OF AMERICA
Mr. Wouk. Mr. Chairman--an your distinguished colleaguesmy responsibility is to discuss two main topics, the doctrine of fair use and the problem of the new copying devices. These subjects are covered in our report, between pages 16 and 27.
Accepting your suggestion, Mr. Chairman, I shall speak informally, and when I occasionally quote our report, Í shall give you the page number.
First. About the fair-use doctrine, I speak as a layman. But as a member of the Authors League, and a former officer on the board, I have acquired some background in this topic. Fair use is the legal doctrine which, in special instances, limits the authors otherwise exclusive right to copy; for example, use of excerpts from his work in reviews, in scholarly discussion, in criticism, in parody, and satire. Until this bill was drawn up, fair use, as I understand it, remained a doctrine of the courts. The courts had repeatedly defined it, circumscribed it, redefined it, so that there was a general understanding of what was and what was not fair use. But it was the idea of the Registrar of Copyrights and his office--and that idea apparently was picked up and endorsed by the House committee that with the proliferation of copying devices and with the general increasing complexity of the intellectual community, it would be useful to confirm the doctrine of fair use in this legislation. So this bill now contains a brief and clear statement of criteria of fair use; that is to say, use of copyrighted material in the occasional casual ways that I have mentioned without compensating the author.
We authors accept this statement of fair use in legislation. We consider the phrasing in the bill to be good; a phrasing that we can live with
Beyond that, sir, I want to say—and this is a personal note--the discussion of the subject in the House's report, particularly the spelling out of the House's understanding of principles of fair use, struck me as a singularly responsible and thorough examination of this difficult, vexing point which touches the lives and the livelihood of all authors. These may be a historic few pages in the life of the intellectual community, because the report does lay down guidelines and the background and the implications of fair use so well. We support it as a body. I certainly support it as an individual.
The House report-here I refer to page 16, sir—the report “also dispels the confusion surrounding claims made by educational representatives for new privileges to reproduce copyrighted material. The House report makes it clear that the bill does not deprived education of any of the rights to use copyrighted material which it now possesses: 'any educational uses that are "fair use" today would be "fair use" under the bill.' The committee's discussion also makes it clear that certain teaching practices which educational representatives had claimed the revision bill would ban, are within the area of 'fair use and would continue to be permissible."
Here I depart to say the House report spells out these instances of educational use very helpfully, sir.
Senator McCLELLAN. May I ask if you think the House bill now clears it up so that both the educational interest and the author's interest are clearly understood and each is satisfied with it?
Mr. WoUk. I can only speak for authors, sir. We will be satisfied with this definition of it. Of course, sir, as you know, both the phrasing in the bill and the discussion in the House report are the outcome of many meetings with both sides. Great consideration is given to the educator, so on the face of it, the educators should be as happy as we are with it. But I can only speak for us.