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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 pubTish 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place a system which is in force throughout the rest of the world, and which gives protection to works published and unpublished, disseminated and undisseminated from the time of creation, basing the term on the life of the author.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 things which are renewed are the trivia. They are not the important materials, protected by copyright over a long period. They are the kind of items which have only a temporary value, only a transitory value. And that is not the kind of material which anybody wants to copy after a number of years. What they want to copy is material which is current, or which has a lasting value.
And then again who wants to publish a book or print a book if he can't get copyright protection. Does anybody want to spend $5,000 or $10,000 in printing an old book, and then having someone else duplicate that book and sell it for half the price? The very purpose of the copyright system is that it gives the author and the businessman, the publisher and others an opportunity of investing money with a fair chance of getting it back and making a profit.
Now that is consistant with our profit system. Anybody can go out and catch fish in the ocean, but nobody operates as a commercial fisherman unless he can make a profit out of his efforts.
I now come to the final portion of my statement. I hope I am not being too long. I am trying to outline the views which I hope will be read in detail from my statement, and about which you will hear more from others who may agree or disagree with me.
There has been some testimony about exemptions and fair use. Now what do those terms mean?
An exemption is an exculpatory provision. A certain type of use is exempted and cannot be the subject of a claim for infringement. In the proposed statute you will find such provisions as exemptions for face-to-face teaching, educational broadcasting under certain circumstances, exemptions for religious services, that is to say playing of the organ, the singing of the choir, during the congregation's religious services.
The choir may sing an entire song and nobody can attack that performance or claim infringement, if it is part of the religious service. And the bill would also permit performances for educational, religious, and charitable purposes. These are a concession made in the public interest, the contribution which the author would make for certain exempt purposes. Those uses would not require the payment of any royalty, would not require any clearances.
Even more than that, the statute contains an additional provision in the favor of the public, and that is one which recites that despite the provisions of section 106, which specifies the exclusive rights, the fair use of a work shall not constitute infringement.
Fair use is a judicial doctrine with a great deal of vitality, which has been developed in the courts over the years. May I refer you to page 32 of my appendix for a splendid statement of the doctrine of fair use. It is taken from a standard work on copyright written by Drone in 1876. He points out that certain uses are in the interests of the public and are permitted if they are fair. You will find there are four simple tests.
First, the nature and purpose of the respective works. Obviously material may be taken from a scientific book as a quotation more liberally than from a book of fiction such as a novel.
Second, the courts take into account the quantity and importance of the portions taken. If you take a little excerpt, a reasonable amount, it is a fair use. If you actually copy the book and merely
leave out the first paragraph and the last, obviously that isn't fair.
The third criterion is the relation of the portions used to the respective works. Take a song like "I Hear You Calling Me." If the first four bars are used, the copier has in effect copied the whole song. In songs such as "Some Enchanted Evening," or "Stormy Weather," the copying of the first theme of the song would misappropriate the whole song. So the answer depends on the nature and quality of the use.
And finally the courts take into account the impact of the use upon the demand for the original publication. Does it impair the value and the demand for the original book.
Now these tests are not limited to an old or outmoded doctrine. I refer at page 35 of my appendix to an article by Judge Yankwich, of California, written in 1954 entitled “What Is Fair Use?” You will note that Judge Yankwich, after all these years still recognizes these factors as the criteria to determine whether uses are fair or not. There is nothing uncertain about the rule itself. Now it may be hard to apply the rules sometimes, but as lawyers, we know that it is hard at times to decide whether a person is guilty of negligence or is not, or whether a person is an innocent holder for value of a promissory note. It depends in each case on the facts of that case.
You have before you a bill which has a proper structure, and presents sound, logical, and modern legislation. It takes into account not only the rights of authors and proprietors, but also the rights of the public, of educators, and of others. There are some details of the bill with which I would disagree. But if given the choice of adopting the bill without the change of a word, and remaining with the old law, I would advocate the adoption of this bill.
Thank you, sir.
informative testimony. I would say you are a good advocate for your cause.
Mr. SCHULMAN. Thank you very much.
Senator BURDICK. Thank you for the short course in copyrights. I wonder if you would care to point out the features that you find objectionable, if you could do it briefly. Mr. SCHULMAN. Well, I can give you some.
The bill presently provides that copyright in any published foreign work is available to a national or a citizen of the country which has a treaty or is party to a treaty with us, or a country which grants reciprocal rights to our citizens, but would grant copyright to unpublished works even in the absence of such reciprocity.
Under the present law copyright in unpublished works is available to citizens of all countries, even though our own citizens do not get protection in those countries; for example, Soviet Russia and others. The bill makes the same distinction; namely, that published works will be subject to a reciprocal arrangement or criterion, but that unpublished works would not.
Senator BURDICK. Is that the only place where there is an exception ! I think you stated earlier in your testimony that unpublished works and published works were treated the same. Is this the only exception to the general rule?