that the presumed disproportionality of resources between author and publisher exists much less among newsletter publishers than among other types of publishers. "Collective works," if newsletters are to be so defined, are created at the instance and considerable financial risk of their publishers. They represent a substantial investment of skill and capital resources in both merging the individual contributions into a current and accurate work and in creating and maintaining a commercial market for that work. NAA fears the proposed amendment would impair their ability to function and, in fact, reduce rather than expand the potential outlets available for author's work. SUBMITTED BY: Newsletter Association of America Frederick D. Goss Houghton Mifflin Company One Beacon Street, Boston, Massachusetts 02108 (617) 725-5000 Cable HOUGHTON October 14, 1982 The Honorable Charles McC. Mathias Senate Judiciary Committee Washington, D.C. 20510 Dear Senator Mathias: Houghton Mifflin Company is a publicly held, diversified publisher of adult and children's fiction and non-fiction, of dictionaries and other reference materials, and of textbooks and other instructional materials for elementary and secondary schools at all levels and for college and university students. In 1981 our corporate net sales were $185,693,000, and 83% of that came from the educational market. We are vitally concerned about any proposed legislation which might affect our efforts to publish effective and responsive instructional materials for the nation's classrooms. Specifically, I am deeply concerned over S. 2044, a proposed amendment to the 1976 Copyright Act (P.L. 94-553). This amendment, proposed by Senator Thad Cochran of Mississippi, would amend the definition of "works made for hire" in Section 101 of the Law by striking out certain categories of works of authorship listed in Clause 2. One such category is a work prepared "as an instructional text." By eliminating the possibility that an instructional text could be created on a work made for hire basis, S. 2044 would seriously hamper our publishing programs and, I suspect, the programs of many other publishing companies. We are not aware that anyone has advanced any significant evidence of abuse of work for hire agreements by publishers of instructional texts. It should also be pointed out that such agreements are not forced on an author since the Law clearly states that a commissioned instructional text can only be subject to a work for hire agreement "if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.' (Emphasis added.) The removal of this category of works from eligibility for work for hire agreements is simply not warranted. Certainly, the years of debate and searching analysis that resulted in the compromise provisions of the present law should not be set aside lightly. The practice of entering into work for hire agreements is common for instructional texts because of sound business principles. Without this form of agreement available to us as an "option" to be used when appropriate, I estimate that our overall costs of publishing would be substantially higher over a period of years. This cost would not be in terms of the prices paid for new contributions, which would remain subject to negotiation as always, but in terms of revising and adapting successful programs in response to the shifting demands of the educational community. Let me give you the specific justification for this statement by outlining the chronological history of a program of instruction for the elementary school levels, Grades 1 through 8 as it would be conceived of, developed, and eventually published by Houghton Mifflin. The author-publisher relationship in the preparation of such a program differs greatly from that which exists in the preparation of a work for the general reading public. When the work is prepared at the "instance, direction, and risk of the publisher" (see the Register's Report of 1965) there are many practical reasons for having the copyright ownership of contributions to instructional texts vest in the publisher. In early 1980 Houghton Mifflin purchased the services of an independent market research company to determine the size of a subject area at the elementary school level for which we had no published instructional program. The research showed that over 85% of the pupils in the public and private schools were enrolled in classes in the area and, furthermore, that there was a need for a new approach. Teachers were not satisfied with the programs available to them. Following an analysis of the nature of the materials needed, we made a corporate decision to invest in the development of a program to meet that need. 2. During a national meeting of a professional association of teachers we invited a group of educators from all over the country to gather together to discuss trends and needs in the subject area in general, and our proposed approach in particular. We paid an honorarium to those who attended. Out of this one-day meeting two participants, both active classroom teachers, emerged as leaders with ideas compatible with the directions indicated by our research. We subsequently chose them to be the Series Authors of the proposed new program. 3. Later that summer we organized a two-day symposium of selected teachers, which these two individuals led, for further in-depth discussion of methods for achieving our objectives. We paid the travel expenses and an honorarium to all participants, and from this group a preliminary author team was chosen. We prepared letters of agreement requesting the submission of sample exercises or lessons, recommendations for teacher edition materials, proposed tables of contents, etc., in order to learn more about the writing abilities of the proposed contributors and their capacities to comprehend the direction we wanted the program to take. Understandably these agreements for sample or "on approval" materials were work for hire agreements. 4. In the spring of 1981 we sent preliminary letters of agreement to those teachers whose submissions satisfied our criteria for subject knowledge and writing ability. These letters confirmed our mutual understanding that we proposed to publish a new program of instructional materials and that we hoped to retain them as authors on a royalty basis as soon as their individual assignments could be determined. 5. In the fall of 1981, after further study and discussion, we determined the specific assignments of these authors, prepared publishing agreements, and paid advances against future royalties to be earned under the terms of the agreements. The two Series Authors with responsibilities for overall editorial advice received contracts with language appropriate to their broad range of assignments. Fourteen other authors, whose responsibilities were for specified books in the program, also received royalty contracts but these were work for hire agreements. A typical assignment in such an agreement is "To assist the Publisher in the preparation for the Program of Level Six, Student Textbook and Teacher's Edition in book form..." In this program, as with others, we and the fourteen authors agreed that the work for hire concept with a royalty arrangement was realistic and appropriate. 6. Finally, 148 individual work for hire letters of agreement were signed with teachers and independent contractors for assigned text contributions to the program. An additional 125 work for hire contracts were agreed to by freelance illustrators, all of whom were given very specific commissions to prepare and deliver original illustrations to accompany the text. All such agreements specified payment of fees upon satisfactory completion of assignments and our acceptance of their work. This approach to developing and publishing a new program has worked for these materials as it has for many previous programs. The first of the new books are just now being delivered to our warehouse, nearly three years from the initial discussions and after the investment of several millions of dollars. Why do we insist on work for hire agreements with the many contributors to an instructional text program? There are several widely accepted and logical reasons: a. We must have the freedom to manage all elements in a program of instructional materials in which we have made heavy investments. During the 3 to 4 year period of preparing the program for publication it often happens that different needs are uncovered and the publisher, who is bearing the risks, must be able to adjust by revising the manuscript before publication. It should be pointed out that when such changes are required, the terms of a work for hire agreement with a contributor is honored. We do not pay on publication but on "acceptance of satisfactory work." b. It will often be difficult to look at an instructional unit in a published text and recognize the original contribution on which it is based. Often the only element that will be kept will be the author's idea of how a prescribed concept should be taught. Submissions are edited for levels of readability and appropriateness of subject matter, to avoid the portrayal of stereotypes, to achieve a balance between male/female roles as well as ethnic and other groups, and to make sure that the unit fits into the sequential flow of the learning objectives of the complete program of instruction. These criteria, which are considered essential by our customers in school systems, are beyond the scope of any one contributor's responsibility. We must have the freedom to revise original submissions in order to satisfy them. c. A successful instructional text, unlike most other kinds of literary works, must be revised every three to five years in response to the needs of our customers and to meet the competition. It may also have to be adapted to fit a different medium in order to take advantage of new technologies. Consequently, we can't afford to limit our thinking to publishing in "textbook" form only, nor can we enter into agreements with contributors to our programs which restrict us to a single medium. If we did, we would not be able to make the long-range investments in major programs and we would not be acting responsibly on behalf of authors who depend on royalties from the sales of works over a period of years. It would be very costly, if not impossible, to go back to the hundreds of contributors to an instructional program in order to re-negotiate rights for each revision or adaptation. Furthermore, as I explained earlier, it would be virtually impossible to identify the contribution of the individual author in order to form the basis for such negotiations. d. An author's contribution is an integral part of the whole and would have little or no value to the author upon termination of the agreement in 35 years or sooner. This is due in part to the fact that it is usually completely edited, as pointed out earlier, and, also, because it is written for a specified purpose and place. It is not a free-standing literary work. e. This is also true for most illustrations specially commissioned for use in the instructional text. These are usually prepared to fit into closely defined limits and it is hard to see how they would be of any financial value in any other form at any time, let alone 35 years later. There are not many instructional programs that are successful enough to continue active and unchanged for 35 years. I can't think of one in which the original illustrations for the first edition would still be appropriate 35 years later. Imagine how old-fashioned the automobiles, clothing, radios, and prices in a text published in 1947 would look today. We wouldn't be able to sell it. If requested to do so by the artist, we would gladly return the rights to artwork in about 10 years or when the edition in which it appears is put out of print. This would certainly be far earlier than the 35 year date. That concern is not applicable to most art created on commission for instructional texts. f. The fact that illustrations created for texts are commissioned as works made for hire does not restrict the artists' freedom to show them in their portfolios as examples of work. Tearsheets of finished work are used for this purpose. However, we must own the original art, and the reproduction rights to it, for as long as we are using it in active texts for two very real reasons: (1) when we revise a current edition, we often need the original art in order to prepare new plates for printing, (2) textbook publishing is a highly competitive field and the art program in a text is a competitive feature. Obviously we can't permit distinctive art that we commissioned to be available to our competitors or diluted by broad general use. The work for hire concept was not new with the 1976 Copyright Act. As others have pointed out, it was developed over the years and the current Law in Section 101, simply defines and narrows a legal concept which has evolved to reflect publishing reality. It stands as a compromise on which the representatives of authors and publishers agreed. It is my understanding that the designation of the nine categories of works eligible for work for hire agreements was at the initiative of authors' representatives. At Houghton Mifflin we use the work for hire agreement responsibly and when there are good practicable reasons for doing so. The publication of instructional texts is at the publisher's initiative and substantial risk, a fact which we believe makes the logic of the work for hire provision clear. I believe that work for hire agreements play a significant role in the unique process of instructional text publishing, and that this fact warrants removing the reference to them from S. 2044. If the amendment should go through as it is now written it would have a deleterious effect on educational publishing programs. I appreciate your interest and attention and trust you will give my concerns your serious consideration. Thank you. Sincerely Chela Orth Charles A. Butts Director Corporate Contract and Copyright Administration CC: Senator Edward M. Kennedy |