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but I do not at this juncture speak for any particular group or any particular industry: I speak here solely as a person who has been interested in copyright for many years, and who has worked with the panel of specialists for 10 years in an attempt to revise the copyright statute.
I am the chairman of Committee 304, in the Section of Patent Trade Mark & Copyright Law of the American Bar Association, from whom you heard this
morning. I do not speak for the association. The official position was set forth in the resolution presented to you by Mr. Toomey and Mr. Diamond this morning.
I have requested the opportunity of appearing before you because I think we are all engaged, the Congress in both Houses, the Copyright Office, the Library of Congress, and more than 100 lawyers and almost as many laymen in a common effort to provide a copyright system in the United States which will modernize our present system, and of which we can be proud.
Most countries of the world, particularly the Western free world, have changed their copyright acts within the past 10 years. They have modernized them and have brought them up to date.
Our Copyright Act dates back to 1909. If you will remember, sir, that was the time when the chief method of communication was through books, magazines, newspapers, and other printed material. The recording industry was in its infancy in 1909. There were no talking motion pictures then. We had the nickelodeons where most of the motion pictures were shown, such as the "Perils of Pauline" and all the famous Mack Sennett pictures.
We had no radio, no broadcasting, no television. All these marvels of science have come within the past 50 years, and our statute is still keyed to the printing press. That is why we have been working for many years to bring forth or to submit or suggest a statute which will accommodate our copyright system to the modern era.
I have been thinking about and giving consideration to the question of how I can be of greatest help to this Senate committee. I do not espouse any particular cause. I do not want to refute any particular claim. But what I would like to do is to provide the background, if I may, of what I consider to be the traditional American copyright system.
We start with the fact that copyright deals with communication. It deals with the entire area of the transmission of one man's thoughts to another. It starts at the point where those thoughts are reduced to some tangible form.
A man thinks of a poem, writes it on a piece of paper, records it on tape, or records it on a clay tablet. It is then in tangible form. And at that point the copyright system enters, because copyright does not relate to thoughts or ideas which have not been reduced to tangible form. It relates to these thoughts which have been fixed in a form from which they can be reproduced or from which they can be read.
At that point copyright becomes important because it is a means of protecting the property of the man who created the book, the poem or the song, or the industry which has created the motion picture, the television show, all the people who have invested their time and their efforts in creating something which never existed before.
Now that is very important. Here is a blank sheet of paper. This blank sheet of paper is worthless. But if we had a songwriter in this gathering who would write a song, perhaps like "Some Enchanted Evening," upon this paper that would be a contribution to the culture of the country, and a contribution to our general store of knowledge. It would then have both a cultural and an economic value.
The same thing is true of the man who writes a speech. He has created something which did not exist before. He hasn't taken it out of the ground. He hasn't taken it from a machine. It is a product of his mind, or a group of minds, like a motion picture, which is the product of a number of people working together.
That is the kind of thing which in my judgment has always been the basis of the American copyright system, the recognition that an individual is entitled to have a proprietary interest in that which he has created by his God-given talents, and he is entitled to profit from it. He is entitled to work as a professional writer. He is entitled to earn his living that way.
The American copyright system also was intended to stimulate the publication and dissemination of that kind of material.
Let me tell you also about what the copyright system has produced in terms of our economy. The latest figures show that the gross annual national product of the copyright industries, that includes the people who write, compose, and the people who publish, produce plays, produce magazines, newspapers, the people who conduct radio broadcasting and television broadcasting stations, all of that added together amounts to $7 billion a year. That may be surprising, but the fact is that the industry which has been called the knowledge industry, is one of the important industries of this country.
Moreover, it is one of the important industries in the export field. There has been testimony, for example, that about 50 percent of the income of the motion picture companies in this country comes from the showing of their pictures abroad. A substantial revenue is derived from our television tape which is shown abroad and which brings a very fine revenue. Our recording industries profit from the exploitation of their records abroad.
We are dealing here in two areas. One is the cultural field of which we are all very proud and, second, the economic field. Underlying all this is the copyright system. The copyright system has the same relationship to literary property as the negotiable instruments law has to financial and banking transactions. It has the same relation as the commercial code has to the area of the purchase and sale of tangible property. It is the system whereby the rights and limitations upon the rights of copyright owners, proprietors, and those who deal in this material are regulated throughout the country.
If we look at it that way, we look at the problem as one of a good healthy workable law.
Now, I don't want to indulge in history, and I am not going to read the historical portion of my appendix, which is part 2 of the appendix to my statement. But let me point out some very interesting facts which sometimes are not realized.
One is the copyright in this country goes back to 1672, even before the Statute of Ann was adopted in Great Britain. It was in the form of an order of the Massachusetts Bay colony, quoted on page 8 of the appendix, which refers to the rights of the owners of copies. After the States had achieved their independence, and the statutes of Great Britain were no longer applicable in the United States, the original States individually enacted copyright legislation. The first State to do so was Connecticut in January of 1783. That was even before the adoption of the Constitution.
Massachusetts followed in March 1783 and Maryland in April of the same year.
And then the Continental Congress, likewise before the adoption of its Constitution, recommended that all States adopt copyright laws, and every State of the 13 States except Delaware did so. So you see we have a long history of copyright. We have a long recognition of the rights.
Let me read to you if I may, just a few lines constituting the preamble to the statute adopted by North Carolina.
Whereas nothing is more strictly à man's own than the fruit of his study, and it is proper that men should be encou ged to pursue useful knowledge by the hope of reward; and as the security of literary property must greatly tend to encourage genius, to promote useful discoveries, and to the general extension of arts and commerce ;
And that was the basis upon which each and every one of those States before the adoption of the Constitution adopted their local statutes. Lest you think that is old hat, and that because of my gray hairs I think only of times before the Constitution, let me read to you from a decision of the Supreme Court in 1954. It is just a few lines, and I won't burden you with any long quotations. In Mazer v. Stein the Supreme Court said:
The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in "science and the useful arts.” Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.
If you please, gentlemen, that is my basic philosophy in copyright. It is an integral part of our industrial capitalist society. It is based on the right of our citizens to own porperty which they create, and the right to live on the earnings of the properties which they produce. That applies not only to authors. It applies as well to the men who invest money in publishing books, in publishing magazines, producing motion pictures, and in providing the important communication services of our country.
I might say to you that until recently our copyright statute was not too bad. But technology and modern developments have outstripped the law.
We have a unique copyright system in the United States. It is a dual system, one which is unique in this country and doesn't prevail outside our own. An published work is protected at common law. If any of us were to write a book and it were to remain in manuscript form, we would have perpetual copyright in that book. In other words, no statute protection is required. Arising from the fact that we wrote it, it is our property, and no one has a right to copy that book, to publish it, to perform it, render it, or make any use of it.
The same thing is true of a song. The law extends even further. Even if a song were to be sung over radio or television, and 100 or 200 million people hear it, it is still not published, as the law
is presently written, until it is reproduced in visual copies for sale or distribution to the public. Now it can be registered for statutory copyright if the author wants to do so, and he then limits his term. But an author may have perpetual copyright in a song as long as it remains unpublished, even though it is heard by every person in the country. The courts have so held, and I have given you the citations. It is likewise true of television programs, which are considered unpublished because they are not reproduced in copies for sale.
Senator BURDICK. This is very interesting. I would like to ask a question at this point.
Mr. SCHULMAN. Yes.
Senator BURDICK. Whether the legislature or the State acts upon this subject, does that take it out of common law?
Mr. SCHULMAN. No, I don't think it would. I cannot answer that more definitely because of the recent Compco case. The right at common law is reserved by section 2 of the present statute. It is not reserved to the States, but the statute provides that the act shall not deprive an author of an unpublished work, and I am paraphrasing, of his rights at common law or, in equity. California has a statue relating to unpublished works but I understand it to provide recognition to rights in unpublished works which is consistent with the copyright statute and the Constitution. But I hesitate to be more definite about State statutes in this area until we know more about what the Supreme Court will do in relation to the doctrine of the Sears and Compco cases.
Many plays on Broadway are not published. They are performed. People come and see them. People come and pay to see them. But they still remain unpublished, and are protected under common law of copyright. They may be registered for statutory copyright if the author decides to do it.
But here is another inconsistency in our law, and that is although plays and songs and sermons, lectures, may be registered in unpubIished form, a literary work can't be. In other words, if an author wrote a short story, and wanted to get statutory copyright before publication, he could not do so, because the statute does not permit it.
So we have here this strange discrimination between published and unpublished works. And of course unpublished copyright is very important because if an author should make 50 copies of the story or a book and send it to 50 publishers, hoping that lightning will strike from one, his work is still unpublished. Nevertheless he still requires protection but can rely only on his common law rights.
On the other hand, suppose a man wants a copyright of a work which has a limited circulation. There is always the question whether he has published his work or not, because the statute today does not provide any definition of publication. This presents an amazing situation under which we have worked for 50 years. As a result we have had to make the law in our law offices, and the courts in some instances have gone along with us, and in some they haven't.
There is for example a decision by a court that a recorded song, even though unpublished, has been dedicated to the public as a result of the sale of records. None of us at the copyright bar agree with that decision, but we bow to it and try to do the best we can under it. But these areas have become most important today when so much of copyrightable material is technically unpublished. One must realize, that today, with our modern means of communication, works unpublished in a technical sense are widely disseminated, and yet are not entitled to statutory copyright.
Another difficulty with our copyright statute today is the difficulty we encounter with the copyright notice requirements. The tatute was written at a time we thought mainly of books and magazines, and the statute provides that the copyright notice must appear on the title page of such works or the page succeeding the title page. Now what is the title page of a newspaper or the page immediately succeeding its title page? We must therefore advise our clients to put the notice where the masthead is printed or under the name of the newspaper wherever that is, and trust that everybody will agree that is a good copyright notice.
I am not going to list all the difficulties, but I cite them to explain why we have been working for revised and up to date copyright law. It is not because we do not have a copyright law, but because the present copyright law was fashioned to suit a horse and buggy age, and we have advanced far beyond that stage by reason of our
modern technology. For example, these copies of my statement were not printed, but were multilithed. Are they published! I don't know. I reproduced a limited number of copies, and I would say they weren't published in a technical sense.
Senator BURDICK. Do I understand that there is no statutory definition?
Mr. SCHULMAN. There is no statutory definition, sir, of publication. Senator BURDICK. And there must be some judicial definition.
Mr. SCHULMAN. Oh, yes. The judicial definition, and that is what we have all been working with, has been that a work is published when it is reproduced on visual copies for sale or for general distribution to the public
Now mind you, I don't want to mislead you. The courts did step in and provide help in this area. But that is not an affirmative statutory definition. There is a statutory statement of what constitutes the date of publication, but not of what constitutes publication itself.
We have operated under these conditions, and have done the best we could. On pages 20 and 21 of my statement I have referred to cases which deal with the questions of general publication, limited publication and the like, which may be of interest to you.
As a result of all of these problems, studies have been conducted over a period of 10 years, and may I say this: there is no better textbook on copyright than the 34 studies prepared by the Copyright Office under the auspices of this committee. It is the best textbook in any part of the world on the law of copyright, and I believe everyone in this country ought to be proud of it.
After those studies were completed, the Register rendered his report in July of 1961. The panel of specialists appointed by the Librarian had commented on the studies, and if you read the studies issued by the Printing Office, you will find a series of comments by various persons, including myself, as to what we liked about various suggestions made in the studies and what we didn't like. And after our comments the Register issued his report, making his recommendations for a revised copyright statute.