The "Special Privilege" Argument: 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. I realize that writers may be prejudiced in feeling that this is an argument which doesn't stand up very well, but it is as difficult for me to understand as if you told me that my children weren't mine.

We do create these books and stories and poems, and they would not exist without us. True, we create them because we hope other people will be moved by them, or amused, excited, interested, informed. They are not made for ourselves alone, but they are made by 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composition has an absolute property right in his production which he could not be deprived of so long as it remained unpublished, nor could he be compelled to publish it.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 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 As the Register's 1961 Report reminds us, these "exclusive rights under the common law" in unpublished works "continue with no limit even though the work is used commercially and widely disseminated." Under the proposed Copyright Revision Bill, the author will surrender his common law right. How vital, then, is his interest and how urgent his plea that his property rights should now be firmly protected by statute!

Our American society is founded on the principle that the 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 believe the Senate will reject the obvious paradox of this absurd argument.

TERM OF COPYRIGHT-SECTION 302

The Revision Bill would establish a single term of copyright lasting for the author's life and 50 years after his death. This is the copyright term employed by most other countries. Copyright on works written "for hire" for employers would be 75 years from publication (or 100 years from creation, whichever is shorter). Existing copyrights would be extended for 20 years.

As the House Committee's Report indicates, there was "overwhelming support for a life-plus-50 system among all those concerned with copyright law revision" (p. 131). The Report analyses the advantages of a life-plus-50 copyright term (pp. 129-135); and in our statements to Sub-Committee #3 during the House hearings, we discussed the various considerations which justify its adoption. We will summarize the more important ones here and not repeat in full our earlier discussion. We would also like to refer to those earlier Statements on other points in the Bill that we will not discuss at length today.

Adequacy of Protection: The present 56-year period of protection has proved too brief. With an increasing lifespan, some authors are outliving their copyrights. Moreover, copyrights frequently expire shortly after an author's death, terminating the sole legacy he can leave for the support of his family. The widow and children of many an author have had the bitter experience of seeing his work published and performed, to the profit of others, without receiving any part of the income it produces.

Life-plus 50 years assures that no author would outlive his copyrights. It assures that an author will be compensated for uses of his work as long as he lives; and that he could provide his family with income, from his work, for a reasonable period after his death. Moreover, it provides more certain protection for the author and his family than would a longer term from publication. Even if the present term were extended to 75 years, copyrights on valuable works written early in an author's career would expire soon after his death, should he live out his life expectancy, leaving too brief a period of protection for his family.

As the Register has pointed out, a term of life plus 50 years would on the average add no more than 20 years to the present term (H. Rept., p. 131). For works published late in an author's life, it would add very few years. Moreover, it would substantially decrease the period or protection for works that are not published

at all, or are published long after an author's death. Under our existing dual system of statutory and common law copyright a work is protected indefinitely by common law until it is published and then-no matter how old it is-it is protected for an additional 56 years.

It should also be noted that extending the present period of protection by 20 years would not impose any substantial burden on the public.

"The public frequently pays the same price for works in the public domain as it does for copyrighted works, and the only result (of copyright termination after 56 years) is a commercial windfall for certain users at the author's expense.” (H. Rept., p. 130.)

Determination of Copyright Status. The House Report notes that the system of life plus 50 years "has worked well in all other countries, and on the whole it would appear to make computation of [copyright] terms considerably simpler and easier" (H. Rept., p. 131). Indeed, it is simpler to determine the copyright status of a work under a life-plus-50 system than under our present law. One need only determine the date of an author's death to learn when the copyrights on all of his works expired. Frequently, it is a matter of common knowledge whether a prominent author has been dead more or less than fifty years. Moreover, the dates of death of thousands of authors are listed in standard reference works and biographical digests, which are readily available, and this information can be procured (even by mail or phone) from libraries from the records of various authors' organizations; and from Social Security records. The Revision Bill also provides a simple system of presumptions, based on the registration of death dates, to protect users in instances when the date of an author's death cannot be readily learned from such sources.

By contrast, under our present system it is often difficult to determine whether many types of works are in copyright. In many instances a copyright notice is not required by law; in other categories of works, the notice is not required to contain a date; and where a date does appear it often does not disclose the actual copyright status of the work.

The Renewal Clause: Life-plus-50 years would eliminate our present renewal system which has caused several foreign and American authors, or their heirs, to lose their copyrights after the first term because of the failure to file a renewal application, through ignorance or inadvertence. Moreover, the renewal term imposes a costly burden on the poet and composer who must pay renewal fees on each of the many works he writes-sometime numbering in the hundreds.

While the renewal clause does put material into the public domain after 28 years, when the proprietor chooses not to renew, much of it is actually worthlesscatalogs, advertisements, labels, and the like. As the House Report indicates, statistical studies by the Copyright Office indicate "most material which is considered to be of continuing or potential commercial value is renewed." (H. Rept., p. 132)

International Uniformity on Copyright: Increasingly copyrighted works are published, broadcast and otherwise disseminated in many countries-often simultaneously. It has long been evident that there is a "need to conform the duration of U.S. copyright to that prevalent throughout the rest of the world" (H. Rept., p. 130) and the House Committee stated it "was impressed by the arguments as to the benefits of uniformity with foreign laws, and the advantages of international comity, that would result from adoption of a life-plus 50 term." (H. Rept., p. 131)

The Risks and Rewards of Free-Lance Authorship: We also think that the realities of professional writing, as a risk-taking enterprise, are also relevant to the question of the term of copyright. The free-lance author in America must earn his living from income produced by the work he creates-by payments made for its various uses-so long as he retains his copyright. He is not paid an annual salary; he writes at his own risk. Some of the greatest literary, dramatic and musical works contributed to our society, and posterity, would not, even under a term of life-plus 50 years, provide authors with an adequate reward (equal to the value of their contributions) from the royalties collected during that term. But these authors, and their families, are entitled to at least that much.

Sometimes a work does not begin to earn income for its author until years after it is published, when he has finally won recognition. Often a book will be discovered or rediscovered thirty years or more after it was originally published— and first becomes a commercial success. Its useful copyright life under our present system may be only 15 or 20 years near the end of the term-not 56 years.

Moreover, the author faces the constant risk that two or three years of work may go down the drain-his book or play may be a literary success, but a financial

failure. Throughout his career, only two or three works may produce substantial income for him. These must compensate him for a lifetime of writing-which may produce several works which, although financially unsuccessful, are of lasting value to society.

Under these circumstances, we do not believe a term ending 50 years after death is too long. Society expects the author to accept the risks and hazards of entrepreneural existence. It should be willing to accord him a small measure of the protection that it accords to other, sometimes less productive, entrepreneurs.

For these reasons, and the additional considerations discussed in the House Committee's Report and in our Statements during its hearings, we urge that your Committee approve the provisions of the Revision Bill establishing a copyright term of life-plus-50 years.

"Fair Use"-Section 107: The House Committee's Report explains how the "fair use" doctrine applies in determining whether various types of copying by educational institutions and others constitute "fair use" (and are therefore permissible) or exceed its limits. The House Report demonstrates that the doctrine of "fair use" can be used to make these determinations; and the Report iteslf helps provide workable guidelines for educators, authors and publishers. (H. Rept., pp. 58-66).

The Report also dispels the confusion that, during the House hearings, surrounded claims by educational representatives for new privileges to reproduce copyrighted material. The House Report makes it clear that the Bill does not deprive 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" (p. 60). The Committee's discussion also makes it clear that certain teaching practices, which educational representtaives had claimed the Revision Bill would ban, are within the area of "fair use" and would continue to be permissible.

Finally, the House Report emphasizes that there is no such thing as a "nonprofit" exemption which permits educators to reproduce copyrighted materials beyond the limits of "fair use"-and that no such limitation should be written into the law.

Reprography, Computers and Copyright: As the House Committee indicates (p. 60), there has been an ever increasing development of new machines and devices which reproduce copyrighted works from the printed books in which they were first made available. The new methods include devices ranging from direct copying machines (like the Xerox) to innumerable offset printing devices (which often use masters, produced by Xerox or similar machines, directly from the book being copied) to a variety of photographic and microphotographic processes which reproduce the pages of a book on microfilm, micro-cards, and other forms.

These many new techniques (sometimes labelled "reprography") have created a new medium for disseminating an author's work. Some experts describe it as "demand publishing" or "one-at-a-time publishing"-i.e., the reproduction of a single copy or several copies of a book, or portions of it, as needed. Even today, copies can be made at costs lower than the price of some books; and the costs are continually dropping.

The House Report notes that the use of this new technology to make unauthorized reproductions of copyrighted material threatens "the potential destruction of incentives to authorship. . . . it represents a serious danger" (p. 60). The cumulative effect of making innumerable small unauthorized "editions" of a piece of copyrighted material is as injurious to its author and publisher as if all of the copies had been produced by a single infringer and then distributed to many readers. Such unauthorized reproductions reduce the sale of copies of the book. Where an institution might have purchased several copies, one can now sufficefrom it copies of portions can be reproduced as readers order them. And these practices will sharply diminish the income which authors now receive from licensing the right to reproduce portions or abridgments of their work in anthologies, textbooks, magazines, newspapers and other forms. Indeed, some authors (e.g., poets and essayists) actually derive a greater portion of their income from authorizing the reproduction of portions of a work in anthologies and other collections, rather than from the sale of the original edition from which the portions are reproduced.

Moreover, without adequate copyright protection, competition from unauthorized reproductions would reduce the royalties paid to the author by those publishers and other concerns who, under license, are supplying materials in these

new forms. For example, University Microfilms produces copies of articles and books to order by Xerography and allied methods of "reprography." It does so by permission of the original authors and publishers and it pays them royalties. In fact, it now provides most of the out-of-print books ordered from publishers. Other publishers are providing reprints of articles on demand; and are using the new methods of reprography to prepare anthologies and teaching materials custom-tailored to the specifications of individual teachers and educational institutions-again by authorization of the authors and publishers of the material, and on payment of royalties.

Actually, these organizations function as clearing houses as well as publishers. They secure permission from large numbers of authors to allow portions of their work to be reproduced in various quantities, even single copies, upon demand. This enables users to obtain authorized material from a single source. They also serve as clearing houses to collect and distribute to authors royalties for each such use of their work.

Of course, publishers themselves have served as clearing houses for their authors for many years. Each major publisher maintains a permissions department which, over the course of a year, grants many non-exclusive licenses to reproduce portions of an author's work in anthologies, textbooks, magazines and newspapers; and also to educational institutions and individual teachers who wish to reproduce portions of these works. Such permissions are granted upon payment of reasonable royalties; and the publisher distributes them to the authors.

As the House Report suggests (p. 65), it seems likely that new methods of ganting clearances and permissions, and collecting royalties, should be developed. We believe that they can; and we will participate in a continuing effort by all those concerned to develop such procedures.

"Reprography" is not the only new medium for communicating the work of authors. It is clear that computers and computer networks will soon become a principal means of disseminating much that authors write. One study, Copyright and Intellectual Property, by Professor Julius J. Marke (January 1967, published by the Fund for Advancement of Education), describes the manner in which computers are being used to store, retrieve and disseminate books and other writings; and the manner in which systems (some existing, some in process) will function in the next few years.

Professor Marke and experts whose views he reports (pp. 88-105) make it clear that "by providing copies of works stored in the computer, these systems will become publishers." They point out that the computer will store vast quantities of books and other written materials; it will reproduce them in full-sized printed copies; display their contents on television screens; and communicate them in other forms.

A computerized library center, and systems of such centers linked together, will serve thousands upon thousands of users-located great distances from the center. As the Register of Copyrights testified before your Committee last year, the new technology will permit "instant communications and reproduction of an author's work throughout the world." Professor Marke says:

"... the computer in essence, assumes the role of a duplicating rather than a circulating library. One copy of a book fed into such a system can service all simultaneous demands for it; of course, this substitution for additional copies will vitally affect publishers, the traditional market" (pp. 92-93).

Needless to say, it will also vitally affect the author's royalty income.

As the House Report indicates (p. 54) there have been proposals to create partial exemptions to the author's right to require authorization and payment for the use of his work in computer systems. The House Judiciary Committee rejected these proposals, stating:

"Recognizing the proven impact that information storage and retrieval devices seem destined to have on authorship, communication, and human life itself, the committee is also aware of the dangers of legislating prematurely in this area of exploding technology. . . . The committee believes that, instead of trying to deal explicitly with computer uses, the statute should be general in terms and broad enough to allow for adjustment to future changes in patterns of reproduction and other uses of an author's works." (Italic supplied.)

We believe the House Committee's conclusion is sound and we respectfully urge your Committee to adopt the same approach. It would be premature—at this point-to legislate restrictions on the author's basic rights over the use of his work in a medium that might well become the principal means of communicat

ing it. Without adequate experience and understanding of the problems, needs and arrangements (for authorization and payment), Congress could freeze into the copyright law for years to come an exemption that might seriously impair, if not destroy, the author's opportunity to be compensated for these uses of his work. Previous experience with technological explosions in other copyright fields indicate how dangerous that could be. Radio and television were not envisioned when the 1909 Act was written. As they came into being they represented as radical a departure from the then conventional means of disseminating music and dramatic works, as the computer now represents vis-a-vis publishing. Had exemptions been written into the law for these new media, composers would have been deprived of the greater part of their livelihood-for in a few years radio completely displaced the sale of published music as the source of the composer's income. And radio, the talking picture, and television each in its turn became a vital medium for the presentation of dramatic works-although in 1909 the living stage was the only practical means of doing so.

In all of these instances, the Copyright Law had preserved, in broad terms, the author's right to require permission and payment for the use of his work, and authors and publishers did work out arrangements under which their works were used, and paid for, in these new media.

In its Report, the House Committee

expresses the hope that the interests involved will work together toward an ultimate solution of this problem in the light of experience" (p. 54). (Italic supplied.)

We agree that this must be done and authors will do so.

The Committee's Report continues:

"Toward this end the Register of Copyrights may find it appropriate to hold further meetings on this subject after the passage of the new law. In the meantime, however, Section 106 preserves the exclusive rights of the copyright owner with respect to reproductions of his work for input or storage in an information system" (p. 54).

In fact, the Register of Copyrights is now holding such meetings with the groups interested in, and vitally affected by, the new computer medium. We believe the meetings should continue while the Bill is being acted on by the Congress and after it is passed. However, for the reasons indicated by the House Committee, we do not believe that its enactment should be delayed until the parties involved reach a satisfactory accommodation. It is obvious that all sides require further study, knowledge and experience to determine what copyrighted materials the new computer systems will require, what uses they will make of them, what will be the most feasible and efficient methods by which the creators of these copyrighted works can authorize their uses by the new systems, and the most practical methods for determining and paying compensation to copyright owners for such uses.

We think that with a determined and continuing effort the groups involved will be able to formulate the necessary arrangements. Moreover, we believe their efforts can be aided by an intensive and continuing study of the problems involved. We suggest, as have others, that the study be conducted by a panel of experts appointed by the Register of copyrights, or by your Committee and the House Judiciary Committee; that it be authorized to study the various factors and problems; and that it report its findings and recommendations to Congress within a specified period of time. We believe that the Panel's study, and the continuing meetings of the interested groups (held under the auspices of the Copyright Office), should within the next two to four years develop the information and experience necessary to reach an informed and equitable arrangement that will serve the best interests of all concerned the creators of copyrighted works, those who operate and use the computer systems, and the public.

While study and investigation are required to determine how compensation for the uses of copyrighted works by computer systems should be measured, and how it should be paid, one thing is obvious at the outset. Computer systems can afford to pay for the uses of this material. We are concerned with systems that cost vast sums of money to create and operate. Those who build and sell the computers, programs and other materials will all be paid. Educational and other institutions, which will operate these facilities, will expend great sums to acquire the machines and materials, and run them. Reporting on ÏBM's entry into the "education market," Forbes magazine (Sept. 15, 1966, p. 60) said:

"Even IBM speaks with awe of the vast size of the market. Total expenditures on education in this country reached about $45 billion in 1965, and federal govern