Several members of the Science Fiction Writers of America have found themselves in this Damocletian position; I have myself, not once but twice. In the first instance, I published in England a novel about two-thirds of which had appeared in an American magazine, and a third of which was new. Through ignorance of the ad interim provisions of the existing law, I failed to register this work in the United States within six months of its British publication, so that the new one-third of it fell into the public domain. When it was finally reprinted here, I was forced to add substantial additional new material in order to claim a U.S. copyright on this part of the book. Obviously the ignorance involved was my fault, not that of the law; but I do not see the justice of having been at such a risk in the first place. In the second instance, I have recently published in England a long historical novel which because of its specialized subject matter seems to be of no immediate interest to American publishers. Hence unless the revision of the law now being considered here becomes effective next year, this book-which took me four years to write-will go into the public domain in its entirety. This example makes it plain that the risks involved are not peculiar to science fiction. Whatever the effect of the manufacturing clause upon printers, from the writer's point of view it is an open invitation to piracy. In addition, it proposes to penalize the author for lawful acts committed by third parties (i.e., importers) of which the writer may be innocent even by omission. We do not agree that any statute should require than one man's property (a work) must be taken from him because another man, unbeknownst to him, has legally vended a material object (a book) made from that property. In this light, Section 601 of the present Bill runs entirely counter to Section 202, which explicitly codifies and sanctions a distinction between the literary property and the material object. This conflict, if retained and enacted into law, gives promise of much useless and expensive litigation in itself-exactly the outcome which Section 202 was drafted to avoid. We recommend, therefore, that Section 601 of the present Bill be stricken in its entirety, as being inappropriate to both the scope and the spirit of the Bill, and likely to produce controversies and inequities just as grave as those which have been generated by section 16 of the existing law; and that, instead, the new Bill repeal section 16 of the existing law outright. We do, however, favor retention of Section 7 of the Bill, which falls under the heading of "Transitional and Supplementary Provisions" and deals with the fate of subsisting ad interim copyrights. This provision rectifies one injustice of the existing statute embodied in its manufacturing clause. We see no reason why, having done away with this particular source of inequity stemming from the manufacturing requirements, the Congress should re-enact all the other such provisions. Another of the transitional provisions of the new Bill is rather less attractive: the section which retains the renewal requirement for works still in their first term of copyright when the new statute goes into effect. I speak with some personal feeling here, because it happens that my earliest published work will have been in print just 28 years when the new law is scheduled to become effective. This means that for every year of the next 28 years I will be busily filing renewal applications for my past, published works, more than 200 of them, which is both a considerable expense and an even more considerable nuisance. More generally, this means that under the new law, any writer who has reached the age of 30 in 1967 can expect to spend the rest of his life without benefiting from the new law's dropping of the renewal requirement (based on a life expectancy of 58 years for those born in 1937, as calculated by the Metropolitan Life Insurance Company). Since most writers do not begin to publish until at least the age of 20, it can be seen that the renewal requirement under the new statute as drafted will remain in force for the remaining lifetimes of virtually every American writer now alive, except for that small segment which first began publishing just ten years ago. In testifying to this point before the House Committee, a number of witnesses, including the Register of Copyright, assumed that nearly every property worth renewing is in fact renewed, but there have been some notable exceptions. While we must reluctantly agree that the author who cares about his property can reasonably be required to keep an eye on the renewal dates, his heirs may not be so attentive. Only a few years ago, for instance, the estate of Edgar Rice Burroughs-author of much science fiction as well as of the famous "Tarzan" books-forgot to renew not just one book but his entire output, thus throwing an accumulated property worth millions of dollars into the public domain and creating a huge windfall for several publishers who had done nothing to earn it but keep an eye on what year it was. Thus we cannot assume that this provision is relatively minor in its potential, as on first glance it might seem to be; and in view of the fact that it affects most living writers, to call such an arrangement "transitional" rather stretches what one usually means by that word. We propose instead that all copyrights subsisting in their first term at the effective date of the new law be automatically renewed for their extended second term, as their first 28-year term ends. This principle is already embodied in the Bill in Section 7 for subsisting ad interim copyrights. We wish to emphasize that the Science Fiction Writers of America approve of most of the Bill's provisions. We are aware, in addition, that it may be difficult to eliminate the objectionable Sections, Section 601 in particular. Should this prove to be the case, we would rather see the new Bill enacted into law as it stands than be forced to operate any longer under the present statute. Even with its deficiencies, the Bill is a great improvement upon what we have now, and we ask your help in obtaining its passage. This concludes our formal presentation. We wish to thank the Committee for the privilege of appearing before it. If there are any questions, I shall be pleased to do my best to answer them. Senator MCCLELLAN. Thank you, Mr. Blish. Mr. BRENNAN. The next witnesses appear on behalf of the American Textbook Publishers Institute and American Book Publishers Council. STATEMENTS OF PROF. JESSE W. MARKHAM, HORACE S. MANGES, LEE C. DEIGHTON, AND BELLA L. LINDEN ON BEHALF OF THE AMERICAN TEXTBOOK PUBLISHERS INSTITUTE AND AMERICAN BOOK PUBLISHERS COUNCIL, INC. Mr. DEIGHTON. I am Lee Deighton, chairman of the MacMillan Co. and chairman of the Joint Copyright Committee of the American Textbook Publishers Institute and the American Book Publishers Council. Mr. Markham is appearing as our first witness in this hearing on behalf of our organizations. Senator MCCLELLAN. All right, Mr. Deighton. Will you identify the others who are appearing with you here? Mr. DEIGHTON. On my left Mrs. Bella Linden, copyright counsel for the American Textbook Publishers Institute. On her left Mr. Horace Manges, counsel for the American Book Publishers Council. Senator MCCLELLAN. Are you submitting a joint statement for all these, or do you have four separate statements? Mr. DEIGHTON. We have four separate statements, sir. Senator MCCLELLAN. That will be done. You may proceed. Professor MARKHAM. Well, I will, I think, follow the procedure if it is all right with you, of the authors who preceded us and I may read portions of the statement, but in the interest of time, I shall try to hold it down to as few minutes as possible. I think I should state for the committee that what I say does not go to specific provisions of the copyright law. As Mr. Deighton has said, I appear here on behalf of the membership of the American Book Publishers Council and the American Textbook Institute. I appear here for the reason that I acted as coordinator and economic adviser to both of these organizations in a comprehensive study of the present and future effects of information-transfer technology on book publishing. The findings of these studies appear in an economic-media study of publishing, copies of which have been made available to the committee. Even in my written statement I do not go into all of the findings of those studies. As I say, I think you have full copies of "An Economic-Media Study of Book Publishing." Senator MCCLELLAN. They have been filed with the committee. Professor MARKHAM. I believe that is correct, yes, sir. Senator MCCLELLAN. Then they may be made exhibits for reference, Mr. Counsel. You may appropriately designate them as exhibits for reference. (The document referred to was made an exhibit and will be found in the files of the subcommittee.) Professor MARKHAM. I will begin by reading a little from the bottom of page 2. I should state that most of my comments do go to one of the issues raised by Mr. Wouk in his presentation. The studies that I had something to do with were mainly involved with the new technologies of reprography, copying, and the computer. In the simplest possible terms, the economic function of copyright is the incentive it provides those with the requisite ability to create intellectual property and the incentive it provides publishers, recording firms, and similar enterprises to package and distribute these intellection creations. I think this statement puts the economic case for copyright much to simply so I would like to elaborate on this a bit. I am now summarizing what appears on pages 2 and 3. I do not want to imply from this statement that the creation of all intellectual property does depend on the existence of copyright protection. I think the history of publications would clearly demonstrate it does not. However, I would suggest that the wide distribution of many of the creations, not prompted by copyright, was protected by copyright. Also, I think many of us who are authors and who do not visibly give the impression of creating because of the incentives of copyright or because of financial reward, do create because we are interested in publication. Publication, in turn, is the incentive which is provided by copyright. So indirectly, the copyright provides an incentive for some of these creations. In the area of textbook publications, I would argue that both publisher and author are very strongly motivated by the existence of copyright protection, for the very simple reason that they are motivated by the prospects of financial reward, and the financial reward of both author and publisher is greatly dependent upon copyright. Now, in sum, then, from an economic point of view, while all intellectual creations do not come about because of copyright, it is clear that copyright plays a very important role in stimulating creative activities and in the packaging publication and wide distribution of the results that follow from it. I have asserted that copyright protection seems to be essential for the publication and distribution of scholarly work, and I would like to spell this out a little bit more in the way of demonstrating why it is so. It seems to me that the necessity for copyright protection from the point of view of the publisher arises out of the very significant difference in costs that attend original publication, and those who may imitate the original publication once it has come into existence. There are two sources of this cost. One is that an original publisher incurs rather substantial risks when he publishes a book. It is virtually impossible to predict just what the commercial value of a manuscript is going to be when it is translated into a book. Some books sell well and some just do not sell very well. I could add parenthetically that I specialize in writing books that do not sell very well. For this reason there is a risk that an initial publisher bears which an imitator does not bear. For example, if there was no copyright at all, an imitator could just pick out the best sellers and manufacture them, and he therefore could avoid the risk that comes in the initial stage of publishing some that just simply do not turn out well. So for the publication of original works, it seems to me that the copyright is essential to protect the original publisher. There are also certain prepublication costs that an original publisher incurs that imitators do not incur. There are costs of galley proof, of page proof, of negotiations with the author-indeed, one of the statements that is submitted to this committee, I believe, contains a quote that a single high school book will require an investment of $50,000 before the first copies are available for sale. Well, this is a cost that the original publisher incurs but one that an imitator does not. Now, it follows from this that the greater the amount of the difference in the costs between the original publisher and anyone who elects to copy the works of an original publisher, the greater the incentive to try to circumvent the copyright. Or stated another way, the lower the cost of copying an original work, the greater is the incentive to circumvent the copyright. It is fairly clear from these studies that I helped coordinate for the two book publishing organizations that the incentive to circumvent copyright has grown much stronger due to certain technological developments in the copy field. A study that was carried out by Arthur D. Little, Inc., shows that over the past two decades, the cost of copying a page has declined dramatically as copying technology has advanced over the past couple of decades. Some of the studies carried out by the National Opinion Research Center in the University of Chicago showed that in our elementary and secondary schools, indeed in colleges, copying machines are used with considerable frequency in copying such material as textbooks, test and answer sheets, and music scores, although copying is usually limited in these cases to several pages. The recent and projected advances, therefore, in copying technology, I would argue, pose immediate problems for public policy toward the copyright law, the subject that this committee is inquiring into, but for the more distant future, I would submit that larger problems would be presented by the application of computers and microimages and their technological descendants to the process of information storage, retrieval, and dissemination. The present state of technology suggests that the computer will affect conventional publishing in too distinct ways: The initial ver sions of some types of information that are now reduced to writing; copyrighted and published, will very likely be computerized, thus bypassing conventional publishing althogether; and secondly, the contents of published books will be stored in computers and, once stored, will serve as a substitute for additional printed copies. Now, the reduction of literary and scientific creations to computer tape for dissemination by experts carries with it the risk of dulling the incentive copyright now affords author and publisher. Under the conventional system of publishing, the author and publisher are rewarded in accordance with the actual number of copies sold, and there is no problem in accounting for the copies. But as computer systems take over the function of "satellite" publishers, accounting for the number of copies becomes much more complex. Unless a system is created for the purpose there will be no accounting control even for the printed copy output of books, and it will be even more difficult to account for intangible copy "printouts" over closed-circuit television, as microfilm, and in other visual forms. This possibility of leakage may reduce the incentive of authors to create and publishers to publish. While the computer "revolution" may reduce some of the inventives to create intellectual property, it may also provide something in the way of a new incentive that at least in part, offsets the reduction. In an economic sense we usually argue that when something is substituted for something else, it is because it is more efficient or, in terms of cost, it is lower in cost. Therefore, to the extent that computer tape becomes a substitute for books, it may create an incentive to create certain works that otherwise may go without being created. Now, a likely developinent that is related to this is that the computer manufacturers themselves will increase their demand for intellectual property. The demand for computers will increase as the volume and variety of services the computer can satisfactorily perform increases. In the past, success in the computer manufacturing industry has depended largely upon the computer manufacturer's ability to provide the requisite servicing, including programing. This raises the very important question of how computer manufacturers, some of whom have already acquired publishing houses, will obtain the intellectual property they program. Will they enter into agreement with authors who retain copyright, or will they employ authors as they now do programing and systems specialists so that the author's creations are considered work made for hire? Were the latter to materialize, it would pose an important issue of concentration of control over the creation, storage and dissemination of knowledge and information. Under the present system of copyright, control is dispersed over tens of thousands of authors and about 900 publishing houses. Almost the entire output of high-speed digital computers is in the hands of about eight companies. In summary, the essentail thrust of my analysis is that the technological revolution in information storage and dissemination is apparently upon us. It brings with it both great opportunity and great challenge. The spectacular advances in copying machines have made it possible to reproduce excellent copy almost instantly and at a cost per page of a few cents-or in sufficient volume, of a fraction of a |