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 But an author may have perpetual copyright in a song as long as it remains unpublished, even though it is heard by every person in the country.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 It is likewise true of television programs, which are considered unpublished because they are not reproduced in copies for sale.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 It is not reserved to the States, but the statute provides that the act shall not deprive an author of an unpublished work, and I am paraphrasing, of his rights at common law or in equity. California has a statue relating to unpublished works but I understand it to provide recognition to rights in unpublished works which is consistent with the copyright statute and the Constitution.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 But they still remain unpublished, and are protected under common law of copyright.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is another inconsistency in our law, and that is although plays and songs and sermons, lectures, may be registered in unpublished form, a literary work can't be.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So we have here this strange discrimination between published and unpublished works. And of course unpublished copyright is very important because if an author should make 50 copies of the story or a book and send it to 50 publishers, hoping that lightning will strike from one, his work is still unpublished.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 copy

rightable 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 statute 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.

Thereafter a number of us at a meeting held in San Francisco, and meetings held elsewhere, disagreed with that report and its suggestions, because it did not propose the elimination of the dual system of copyright. Instead the report proposed the establishment of a new line of demarcation between statutory and common law copyright namely, the time of public dissemination of a work.

To many of us that proposed solution seemed worse than a system based on publication. What we asked would be considered as dissemination of a work. It was a new concept, chosen only in order to retain a term based on a period of years. To retain that kind of term it was necessary to have some starting point, and the concept of public dissemination was chosen for that purpose.

I was one of those who was active in objecting to that format because it is impossible to determine when a work is disseminated. I have represented playwrites who are accustomed to prepare outlines of their plays. Then they go to a producer and say "Jim, Joe, or Harry, here is the kind of a show we would like to write," and the producer says “All right, let's get some people together who are interested in the theater, see what they think of it, and whether they will put up the money for the production." There then takes place what is called an audition, at which the authors and composers recite the outline and explain their play. Is the play publicly disseminated at that time? There may be a dozen or a hundred people present.

Thereafter somebody says "We ought to change this." Changes are made in the theatrical works, as people will tell you, throughout rehearsals, throughout the tryout period, even after dress rehearsals. At what point can it be said that the play has been publicly disseminated?

The same thing is true of a book. A friend of mine has just written a book and has submitted it in outline form to a lawbook publisher. He will write it in final form if the publisher will publish it. Is that work disseminated or isn't it disseminated at this juncture? Suppose he had sent it in manuscript form to 10 publishers, would the work be entitled to statutory copyright? The new concept just wouldn't work.

We suggested in its place a system which is in force throughout the rest of the world, and which gives protection to works published and unpublished, disseminated and undisseminated from the time of creation, basing the term on the life of the author.

In other words, the copyright continues for the life of the author, and for a period thereafter. There is then a definite period of copyright and it is not necessary to ascertain a point of dissemination to find out at a later date whether a song was sung in Madison Square Garden or sung over the radio at any specific time.

That system has worked well. It has worked throughout the world, and we are the only country, to my knowldge, which has a copyright law based on a basic term of years dating from publication or dissemination, for works of individual authorship.

The present bill is drawn that way, and I think properly drawn. I think that system will work to the advantage of all of our citizens. There is nothing more certain than death. One can always ascertain when a man dies. There is no way of ascertaining when he started writing a manuscript, when he first recited it, when he first showed

it to somebody. Unless we retain the concept of publication and the dual system of copyright the only logical basis upon which to compute the term is the life of the author and a period thereafter.

One might ask why the post mortem period should be 50 years. The factor of 50 years takes into account that the author is taken care of, not actually taken care of, but earns his money from his work throughout his life, and he is able to bequeath something to his widow and children. In other words, he is placed in a position closer to the man who has built a house, established a farm or accomplished anything of that sort which can provide an inheritance for his family.

It is generally agreed that the copyright term should be extended. I don't think there is anybody who seriously opposes the fact, and it follows a traditional pattern. In 1790, at the time of our first copyright act, the term was 28 years. Later it was increased to 42, and then to 56, each time taking into account the increased life expectancy of authors and the general population. So now that people live longer, due to modern conditions, the feeling is that the copyright should continue so that an author will not lose his means of livelihood just because he has outlived his 56 years.

And we believe that it would be to the interests of the country if our authors were given an opportunity of deriving a living from their works during their lifetimes, and of providing for their immediate families thereafter. That is not asking too much.

Senator BURDICK. This starting point at the point of death would apply to both published and unpublished?

Mr. SCHULMAN. Yes, sir. You see, we would then have one system for the whole area. Presently unpublished works enjoy perpetual protection. As one witness testified in the House, if you find manuscripts written by some person in public office, which have never been published, you have to go around to find his heirs who can give you permission to publish them.

Under this bill the term of all works would terminate, even that on unpublished works would terminate at the end of the author's life and 50 years thereafter. We would have a uniform system all down the line, which, at least from my experience, would prove to be a salutary arrangement.

But let us consider the situation in the international field. We are members of, or adherents to, a treaty with about 50 countries. It is called the Universal Copyright Convention. That convention has a provision whereby any country can limit the term of the copyright in a work to the laws of the country of its origin. So if our works are produced let's say in France, France can limit our copyright term to 56 years, even though it provides life and 50 years to its own citizens.

That puts us at a disadvantage vis-a-vis other people in our export markets. But take another factor. In the northern part of the country we border Canada, and a broadcast coming out of Buffalo or Detroit or one of the cities in the northern tier is transmitted to Canada. Now Canada has the term of copyright consisting of life of the author and 50 years. So if a work goes into the public domain in the United States, it isn't necessarily free for use in broadcasting to Canadian stations because it isn't cleared in Canada.

Now consider Comsat. We are going to broadcast works throughout the world through Early Bird, Comsat; one can envision the difficulties of trying to make adjustments arising out of the difference between the term based upon our system and a fairly uniform system of copyright which prevails throughout the rest of the world.

Senator BURDICK. Is this period of 50 years from death, quite uniform?

Mr. SCHULMAN. Yes, sir. Under the Berne Convention to which we are not parties, but to which most of the British Commonwealth countries, the Western European countries and others are adherents, it is mandatory to have a minimum term of a life of the author and 50 years. So this would fit into the whole picture of international relationships.

This is one reason we never joined the Berne union, not the only reason but one of the principal reasons, because our method of determination of the term was different.

But let me go on from there. I think that on balance that kind of a system would work to the interests of the public because one could always ascertain if an author was alive or whether he had died. With all kinds of vital statistics today it is easy to find out when anybody dies or has died.

And moreover, take another situation which exists today. It is impossible to publish, free of copyright, a complete set of the works of an author until his last copyright goes into the public domain. Now if an author dies on his 90th birthday and his last book was published on his 80th, and others when he was 30, some of his works will be in the public domain, and some not. Ours is an irregular and disorderly system which should be cured.

But finally, and this has always been a point of importance with me, consider the historian, the scholar, or other person who writes a scientific book, or a textbok when he is a fairly young man. He publishes it. Thereafter as a result of new developments, or as a result of his own research and studies, he decides to make changes, and then publishes a new book 20 years after the first one, a new edition. At the end of 56 years his first edition goes into the public domain, and is sold as his book, although it is no longer in fact the book which represents his ideas or teaching. The term of life and 50 years is a more logical, rational and orderly system.

To those people who say that it is in the public interest to have works pass into the public domain, may I suggest that their thinking is fallacious. Does anybody want to publish McGuffey's Reader today in its original form to be sold to schoolchildren? What we need and seek are the new books, fresh books, not those in the public domain although some of them still have a value.

When the argument is made that many works are not renewed after 28 years, what are the works in question? Copyright can be secured in a print or a label to be affixed to a package. It can be secured on a street directory. It can be secured on a telephone book. It can be secured on a mail-order catalog, and on similar material.

Now it doesn't pay anybody, after the end of 28 years, to renew the copyright in a 28-year-old directory. People have moved, and nobody is going to buy an ancient directory. Who would print a 28-year-old directory? The advertising pamphlets, the labels and the prints and