cally enlarged the range of communications. These new inventions have led not only to obsolescence of the old technologies of communicating literary and artistic works to the public, but have also greatly increased the complexity of the economic forces which guide the production and consumption of such works. One basic goal of the copyright law, however, remains unchanged: To encourage the creation of literary and artistic works by providing financial reward to those who create them. Copyright is a concern to all the inhabitants of the United States, but it is of particular importance to the people of California. Most programs are produced there and constitute the lifeblood of motion picture theatres, television stations, and cable systems throughout the nation. Copyright protection is an important incentive to the production of motion pictures. I have watched with great concern the shaping of copyright law revision dealing with the protection of copyrighted works when they are retransmitted from broadcasts by cable systems for profit without the consent of their copyright owners and without payment to the creators of these works. Let me add that this concern is shared not only by the producers of motion pictures and other producers of copyrighted television programs, but by the actors, writers, directors, composers and by all the members of the various crafts and trades which contribute to the production of these programs. These talents and workers do not hold copyrights of their own. They must necessarily look in part to the copyright fees collected by the producers for their own compensation, be it by way of initial payment or, under union agreements, as residuals based on the use and reuse of these programs on television. It is obvious, therefore, that if the producer collects nothing or little for the use of the program, those who contribute to the production are also deprived of fair compensation. I do not have to dwell here on the financial difficulties encountered by many of the producers of motion pictures in my state. Nor would it appear necessary to mention details regarding the severe unemployment which exists in the motion picture industry. Also of enormous importance to my state and the nation is the cable industry. While still in the development stages, predictions are that within the instant decade cable television may supersede broadcast television to the extent of sixty percent or more. While I do recognize that many cable stations have realized little or no profit as yet, to date even those cable systems which are in the black have not made any contribution to the cost of producing the films and tapes contained in the broadcasts whose signals the cable systems retransmit to their subscribers. A recent decision of the Second Circuit, now on appeal to the Supreme Court, mandates the principle of copyright payments for retransmission of films and tapes. I also understand that the principle of copyright payments was included in a Consensus Agreement entered into last year between the CATV and motion picture industries. The Consensus Agreement specifically provides for arbitration of royalties in the event that the parties should be unable to agree on the amount of the payments in time for inclusion into the copyright bill. As the situation has evolved, cable operators and copyright owners have not been able to agree to a fixed fee and they have not arbitrated what the appropriate royalty should be. S. 1361 provides, in section III (d) (2), for a graduated system of fixed royalties which the copyright owners say are too low and the cable industry say are too high but acceptable. It is a fair and reasonable royalty rate under the compulsory license, but a wiser course for the Subcommittee to follow would be to provide for an independent rate-setting agency such as the Copyright Royalty Tribunal in the Library of Congress, the creation of which is already foreseen by the bill S. 1361 for the purpose of adjusting copyright rates. There is ample precedent that similar responsibilities of the Congress in setting rates have been delegated appropriately and successfully to independent ratesetting agencies who proceed to fact-finding, hear economic evidence and then prepare or approve schedules submitted by the parties. This road has been followed both on the national and state level. Air fares are set by the Civil Aeronautics Board, railroad rates are approved by the Interstate Commerce Commission both for passenger and freight transportation, telephone rates are subject to approval by the Federal Communication; gas and electric power rates are approved by public utility commission. What all these rate-setting procedures have in common is that they involve complex facts and economic impact considerations which would make it too burdensome for the Congress to devote the time and staff efforts necessary to do justice to the parties concerned as well as to the public. It seems to me that this principle is acknowledged by Sections 801 and 802 of the bill S. 1361 which provide for a readjustment of the royalty rates in periodic intervals. Surely, if the Congress has the power to delegate to the Tribunal the readjustment of the fees, it should have equal power to entrust this Tribunal with the setting of the rates from the outset. Without such careful investigation which only a body having the time and expertise to weigh the facts and economic arguments before it can afford, the rates assessed may be either too high or too low. If they are too low, they would do unjustifiable harm to the program producing industry. If they are too high, they would be doing unnecessary damage to the cable industry. The creative segment of our society has always enjoyed the special care and solicitude of the Congress because their talents and skills constitute a national treasure which would be dissipated only at the peril of reducing the vitality and quality of our cultural life. I, therefore, urge that very careful consideration be given to the need for adequate compensation of all those who create copyrighted works, and that where payments by cable systems are concerned, the best method to achieve this result will be to entrust the Copyright Royalty Tribunal in the Library of Congress or a similar Tribunal with the difficult task of setting rates from the outset. THOMAS C. BRENNAN, Esq., COWAN, LIEBOWITZ & LATMAN, P. C., New York, N.Y., August 7, 1973. Chief Counsel, Subcommittee on Patents, Trademarks and Copyrights, Russell Office Building, Washington, D.C. DEAR MR. BRENNAN: At the hearing held on July 31, 1973 in connection with the revision of the Copyright Law a point arose on which we would specifically like to comment for the record on behalf of our client, The William & Wilkins Company. Both Sen. McClellan and Sen. Burdick expressed concern as to how a copyright licensing program in the area of library photocopying could work without undue administrative headaches. The Williams & Wilkins plan is one solution to the problem. It works as follows: Individual subscribers are charged the basic rate ranging from $10 to $60 and averaging $30. Local libraries would be charged an institutional rate which would be the basic rate plus a photocopying license fee. This photocopying fee ranges from $1 to $10 above the basic rate, depending on the size of the journal and its vulnerability to photocopying, and averages $3.65. This fee would be paid at the time the subscription was ordered or renewed and would permit the library to make within the library single copies of articles for its normal patrons. It should be noted that this is not an annual fee. It is paid once and lasts for the 56 year life of the copyright of each volume. If a library states that it does not photocopy, the $3.65 will be refunded. If the library does not have a work to photocopy, it can order a photocopy from one of some 500 lending libraries in the inter-library loan complex which would have a broader blanket license to photocopy, for a rate which would be up to twice the institutional rate. Thus, this plan requires no bookkeeping. If a student in North Dakota wanted a copy of an article published in a Williams & Wilkins journal he would have no trouble in obtaining it. The library may charge him its expenses, as some do now, for obtaining the copy and might choose or not to add a few cents extra to help defray the cost of the subscription. This simple plan is not presently in effect because the library community refuses to consider it until the Williams & Wilkins case is decided by the Court of Claims. Other publishers have not proposed licensing plans because of the hostile reaction to the Williams & Wilkins proposal. However, if the Court decides in Williams & Wilkins favor, fair use in this area will have been defined and publishers and the libraries can easily work out satisfactory licensing arrangements. After all, if a way could be found to collect music royalties from every bar and grill in the United States this relatively simpler problem can, we are sure, also be resolved. Very truly yours, ARTHUR J. GREENBAUM. XEROX CORPORATION, Stamford, Conn., August 9, 1973. Re: Hearings on S. 1361, The Copyright Revision Bill Chief Counsel, Committee on the Judiciary, Subcommittee on Patents, Trademarks and Copyrights, U.S. Senate, Washington, D.C. DEAR MR. BRENNAN: During the Subcommittee Hearings on the morning of July 31st, counsel for one of the witnesses made an oral comment that has been interpreted by some as meaning that Xerox Corporation has a photocopier which can determine automatically the number of pages of each publisher's copyrighted materials which have been copied. Xerox copiers do have a counter to count the number of photocopies made. However, Xerox copiers do not have now-nor do we foresee the future technology having-the capability to discriminate automatically so as to classify copies made of works now in print in terms of source or of copyright status. I would appreciate it if you would accept this letter as part of the record in order to clarify the situation insofar as Xerox Corporation is concerned. In addition, I would like the letter to you of November 30, 1972 from C. Peter McColough, Chairman, Xerox Corporation, (a copy of which is enclosed for your ready reference) be made part of the record. I conclude by reiterating the last paragraph of the letter from Xerox' chief executive: "Today, with a greater sense of urgency, we encourage you and the Subcommittee in your efforts for enactment of copyright revision by the 93rd Congress." Sincerely, Re Copyright revision bill. THOMAS C. BRENNAN, Esq., ROBERT L. SHAFTER, Counsel, Copyrights & Trademarks. XEROX CORP., Stamford, Conn., November 30, 1972. Chief Counsel, Committee on the Judiciary, Subcommittee on Patents, Trademarks and Copyrights, U.S. Senate, Washington, D.C. DEAR MR. BRENNAN: Thank you for your letter of September 19 on behalf of the Senate Subcommittee on Patents, Trademarks and Copyrights. Xerox Corporation recommends the expeditious enactment of the pending general copyright revision since the bill, as a whole, is a sufficiently substantial advance over the present law-dating from 1909-to warrant prompt and favorable action by the Senate. We also commend the voluntary efforts, albeit unsuccessful, of several publishing and library representatives for a detailed consensus on library photocopying. But we do not propose any changes in connection with the bill. Of course, if revision hearings are held by the Senate or the House, Xerox may request the opportunity to submit a statement. We believe that statutory improvements, even those that may reflect pragmatic compromises, continue to be the necessary next step towards resolution of the challenging copyright problems surrounding the generation and prompt dissemination of information. In 1965, Xerox wrote the House Judiciary Committee: "We view with a sense of urgency the need to provide (copyright) legislation that is meaningful and effective ... the protection of legitimate rights of authors is vital to the dissemination and exchange of information ... sound copyright legislation is indispensable to the enrichment of our society..." Today, with a greater sense of urgency, we encourage you and the Subcommittee in your efforts for enactment of copyright revision by the 93rd Congress. Sincerely, C. PETER MCCOLOUGH, Chairman. NEW YORK, N.Y., August 8, 1973. Re Copyright law revision, S. 1361, 93d Congress, first session. U.S. Senate, Committee on the Judiciary, Subcommittee on Patents, Trademarks and Copyrights, Senate Office Building, Washington, D.C. DEAR SENATOR MCCLELLAN : I wrote to you on January 26, 1973 and February 12, 1973, concerning the injury which I thought might inadvertently be done to people who make, exhibit or sell works of fine art under the proposed Copyright Law Revision legislation. Copies of those letters are enclosed for your convenience. I understand that the Subcommittee on Patents, Trademarks and Copyrights is holding hearings on S. 1361 with a view to resolving open questions. I urge the Committee, at this time, to pay attention to the plight of the artist and to revise the bill to eliminate those provisions which would result in immediate forfeiture of rights in works of art simply by the act of putting them on public display. I respectfully submit that the definition of "publication" contained in Section 101 of the proposed Copyright Law Revision bill, which includes "public display" of a copy (which includes the material object in which the work is first fixed), serves no legitimate public interest and will work severe hardship upon countless artists whose only avenue toward public recognition of their talents is to display the originals of their works. The Copyright Revision Bill, in its proper concern for defining the rights and obligations of creators and users of works which must be mass produced by experienced technicians in order to be disseminated and which constitute the bulk of works subject to copyright protection, fails to recognize the essential difference between work of fine art and other copyrighted works. A work of fine art is, almost by definition, unique and not reproduced in many copies. (I recognize that there are exceptions, such as limited editions of fine prints or sculpture, and perhaps since these editions must be manufactured by technicians, it might be argued that the ordinary copyright notice provisions should apply to them.) "Publication" of a work of fine art under the proposed Copyright Revision Bill can be made by the artist, the gallery owner, or anyone else totally ignorant of copyright requirements who acquires a work and puts it on display. To allow a manufacturer of greeting cards, wallpaper or calendars to make endless commercial reproductions of a work of fine art without paying the artist anything just because the original of the work was displayed to the public without a copyright notice seems to me to be grossly unfair and not justified by any public interest. It is respectfully submitted that in order to avoid massive loss of rights in works of art by unknowing and unsophisticated artists, dealers and owners of those works who invariably display the originals without any copyright notice, the Copyright Law Revision Bill should be amended to provide specifically that the public display of an original work of fine art does not constitute publication. I enclose for your consideration a reprint of an article I wrote which appeared in the Summer 1973 issue of the magazine "ARTnews." This article, entitled "For a Copyright Law to Protect the Artist," contains other recommendations for changes in the copyright revision bill intended to provide adequate protection to the artist while, at the same time, safeguarding any legitimate public interest in access to works of fine art. Respectfully submitted, [From ARTnews Summer 1973] CARL L. ZANGER. 'ALMOST NO ONE IN THE FINE ARTS FIELD HAS ANY IDEA ABOUT THE COPYRIGHT LAW' (By Carl L. Zanger 1) A workshop on the legal and business problems of artists, art galleries and museums was conducted recently by the Practicing Law Institute, and I participated as an expert on copyright problems arising both under the present copyright law and under the revision bill that had been pending in Congress for many years. The workshop was attended both by practicing lawyers and representatives of art galleries and museums and by others with an interest in the arts. And again I was made aware of the fact that almost no one active in the fine arts field-whether artist, gallery, museum, or lawyer-has any idea about the copyright law as it applies to the fine arts. It follows that they almost never obtain Federal copyright protection. This widespread ignorance of copyright requirements has resulted in wholesale forfeiture by artists and their dealers of invaluable rights in works of art. Unless the art community in the U.S. achieves a better understanding, the scan 1 Carl L. Zanger is a new York attorney and lecturer on copyright problems of artists. He is a member of the Committee on Art of the Association of the Bar of the City of New York. dalous practice of wholesale destruction of essential rights in works of art is likely to continue. Under the U.S. copyright law, if a work of art is "published" without the form of copyright notice specified by law, the work goes into the public domain. This means that anyone can reproduce and sell copies of it for any use whatevercalendars, wallpaper, postcards or anything else without permission of the artist or the owner of the work and without having to pay anyone for the right to use the work. The copyright notice required under the law consists in its most expanded form of the word "copyright," the abbreviation "Copr," or the symbol ©, the name of the artist and year of publication. This notice may appear on the front or the back of the work, or on the permanent base, mounting or any other accessible part of the work. In practice, almost no paintings bear copyright notices. In practice, almost no fine prints or sculpture (either those that are singly made or those that are part of larger editions) bear copyright notices. In practice, the world art community assumes probably incorrectly under U.S. copyright law-that the artist retains the copyright in his work, even though the work is exhibited without restriction to the general public in a gallery or museum, and is offered for sale either singly or in multiple copies without any copyright notice. The unfortunate result of the current widespread ignorance of copyright requirements is that most works of art that have been displayed publicly or offered for sale either in single or multiple copies have been "published" within the meaning of the copyright law. They are therefore in the public domain in the United States, unless the exhibition or sale was made under circumstances that either expressly or implicitly restricted the use the public could make of the work. Why do artists neglect to copyright their work? Many who think about it at all resist using a copyright notice for fear of "cheapening" their work by making it appear to be commercial. Some may think that the notice must appear on the front of the work. And there are those who take the position that the conventional display in a gallery or museum does not amount to "publication." Except in unusual circumstances, this is an incorrect understanding. For more than 15 years Congress and the U.S. Copyright Office have been trying to write a revised copyright law-the first general revision since the present law was enacted in 1909. This effort has been stalled for years by powerful and well-financed special-interest groups seeking preferred rights in copyrighted prop erty. The copyright revision bill introduced by Senator John McClellan in the current session of Congress establishes a simple pattern, as follows: 1. The public display of a copy of a work (which by statutory definition includes the original) constitutes "publication" of the work. 2. Copyright notice (the symbol or the word "copyright" or the abbrevation "copr." with the year of first publication and the name of the copyright owner) must be placed on all publicly distributed copies of the work (including the original). 3. The location of the notice is to be established under rules to be adopted by the Copyright Office. 4. Copyright protection is forfeited if the required notice does not appear on copies of the work publicly displayed. Taken together, these provisions would destroy the slender thread on which the art community pins its understanding that statutory copyright notice is not required for the protection of works of art. The proposed law would specifically overrule court decisions that hold that the display of a work of art under circumstances in which use and copying are carefully restricted does not constitute publication. I find it difficult to believe that whoever drafted the bill intended to achieve such a result. The copyright revision effort, which is being renewed in the current session of Congress, provides an opportunity to furnish statutory support for the practices and understandings that have evolved in the art community. I would make three specific proposals: First, there is no reason why the same kind of copyright notice that is used for books and other kinds of property (which are "published" only after they have been manufactured and then widely disseminated in numerous copies) should be used for works of art, which the law as drafted would say are published when the artist puts them up for public display. Just as a manuscript is |