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productive, entrepreneurs who are entitled to hold property rights not merely for life-plus-50 years, but for 5, 10 or 20 generations.
THE PUBLIC INTEREST
A life-plus-50 term does not damage the public interest. Opponents argue that it would sharply curtail availability of works; and that it increases prices too much. Neither argument has substance.
Copyright does not diminish the availability of books, plays, music etc. Indeed, as this Committee's report noted, the loss of copyright is often likely to have that effect. Actually availability of copyrighted works has increased in recent years. Mass-market and "quality" paperbacks offer a myriad of titles. University Microfilms and similar organizations now fill orders, on demand, for countless books that formerly were out-of-print; under licenses from authors and publishers. We approach the point when a few copyrighted books will be out of print. And these companies also provide entire back issues of countless journals and other publications on microfilm and microfiche. These techniques are also used, increasingly, to keep technical, scientific and other books available.
If works were protected for life-plus-50 years rather than 56 years, their cost to the public would not increase substantially, if at all. As the Committee report stated: "The public frequently pays the same price for works in the public domain as it does for copyrighted works, and the only result (of copyright termination after 56 years) is a commercial windfall for certain users at the author's expense." The price of a paperback book is not reduced, for example, when the author's copyright expires. But the share of the income it produces, previously paid to the author or his family, can now be pocketed by the publisher or other
Moreover, this "cost" argument should be put in true perspective. Copyright opponents do not propose that when a work goes out of copyright, a publisher who reprints it must sell it at a lesser profit, or at a price fixed to assure that the public will be able to buy it more cheaply than copyrighted works; or that broadcasters or theatres be required to charge the public less for performances of works whose copyrights have expired; or that actors, teachers or musicians work at a lower salary when performing or teaching works which have fallen into the public domain-to reduce the cost to the public.
DETERMINATION OF COPYRIGHT STATUS
For many reasons, copyright status is not easy to determine under the present two-term system. It is simpler to determine under life-plus-50. We have discussed this issue in our previous testimony and beg leave to refer to it. As your Committee's report noted, the system of life-plus-50 years "has worked well in all other countries, and on the whole it would appear to make computation of (copyright) terms simpler and easier."
THE RENEWAL CLAUSE
Life-plus-50 years would eliminate our present renewal system which has caused several authors to lose copyright after the first term through failure, due to ignorance or inadvertence, to file renewal applications. The "reversion" clause in the new Bill would give authors protection against long-term assignments of their rights—the purpose for which the renewal system was chosen by Congress in 1909 over life-plus-50. And a purpose which was largely frustrated by the Supreme Court's decision in Fisher v. Witmark, and subsequent decisions.
While the renewal clause puts material into the public domain after 28 years if the proprietor does not renew, most of this is actually worthless-catalogs, advertisements, labels and the like. As your Report mentioned statistical studies by the Copyright Office indicate that "most material which is considered to be of continuing or potential commercial value is renewed."
OTHER ADVANTAGES OF LIFE-PLUS-50
Life-plus-50 would establish a single copyright system in the United States, replacing the present dual common law-statutory system. It would also provide uniformity with the laws of other countries, a matter of increasing importance as many classes of works are disseminated, often simultaneously, in several nations. The advantages of both consequences have been reviewed in our previous testi
mony and undoubtedly will be described to you by the Copyright Office. Several of these benefit users.
For the reasons discussed above, the Authors League respectfully urges that the adoption of a life-plus-50 copyright term is completely consistent with the letter and spirit of the Constitution's copyright clause. The first, most important and indispensable contribution to the public interest-i.e. securing the production of works of lasting value-is made by the author. Until he creates his book, play, music or poem, no one can disseminate it, exploit it, teach it, or systematically copy it-without paying him. The Constitution intended that he have "valuable enforceable rights" to encourage him to serve this public interest and to permit him to be compensated for his talent and labor. The period of protection provided by life-plus-50 is a reasonable and necessary method of accomplishing that Constitutional purpose. And until some author discovers the secret of immortality life and 50 will be a limited term of protection, much more limited than the 100 or 200 or more years of protection possible under our present common law-plus-56 years of protection.
TESTIMONY OF IRWIN KARP, COUNSEL, THE AUTHORS LEAGUE OF AMERICA
Mr. KARP. Mr. Chairman, thank you very much.
My name is Irwin Karp; I am counsel for the Authors League of America which is a national society of professional writers and dramatists.
In my prepared statement, which I respectfully submit for the record, I mention briefly at the outset the types of works that our members write. It covers the whole range of creativity.
In my testimony this morning, I address the educational exemption as it has been offered to the House and Senate, and has been rejected, for the sound reasons in your previous report and in the Senate's report. I would also like to speak, in the very limited time available, to the problem of the life-and-50-years term of copyright, unless that is to be discussed at some later date.
I think perhaps I should put something into the record at this point on that. It is a much-abused concept, and as was pointed out when the educators were propounding their opposition to life-and-50, and placing their opposition on grounds that have no basis in reality, or even in decency or common sense.
First of all, Professor Raskind told us we are talking about the scholar copying by hand. That is not so. We are talking about exemption and what has been proposed to you in the light of a technological revolution that created, as I described yesterday, and as Mr. McKenna of the Special Library Association named, a medium of one-at-a-time reprinting or one-at-a-time publishing.
I put into the committee's hands, some semblance of what the technology has accomplished, including an entire book that is reproduced on demand by the Xerox machine.
When we get to multiple copy, unless there is some prodigious penman out at the University of Minnesota law school, I do not know how anybody is going to copy by hand 40 or 50 copies of a short story or a poem. The technology has also armed the educational system of this country with various ways to very cheaply copy various works of instruction.
Your committee, in its report, and the Senate committee, using that work-I am talking about the work you did so well-said the case for an educational exemption had not been made. Under the doctrine of
fair use as expounded very specifically in your report, guidelines were set up for what was and was not fair use.
If you examine the guidelines, and examine the proposed amendment, your guidelines are much more explicit and useful than the amendment proposed by the educators. If clarity is the objective, they have certainly failed miserably. Certainly their amendment does not teach us how short a short story, or how short a poem, can be copied.
Teachers will be coming back to you in a short time, asking you to write into law, the lengths of particular works.
What you then suggested to us, and something we have sought to do in the interim, is to sit down with the educators and work out guidelines of fair use. This is the only useful way of dealing with this problem. Practically every example given to you today, from the picture of the frog, up or down, is fair use. And the people who give you the examples know it is fair use. They know that we think it is fair use. If we sat with them periodically, as you propose, reviewing in the context of current condition of education, the current condition of publishing and writing, the problems of fair use, we could work out guidelines that would be helpful and direct and useful to everybody.
If we sat down periodically, none of us would be frozen with fear that what we conceded or opposed as fair use today would be a dangerous precedent to plague us forever.
In other words, an ongoing review that would consume much less time than our colleagues who testified before us and we now have consumed on the problem of copyright revision would be much more useful.
You also propose that where copying exceeds the bounds of fair use, as it often does, and as our educator colleagues would like to have it do, that reasonable clearance arrangements be worked out for the payment of reasonable compensation. That is a suggestion picked up by one of the witnesses in the preceding panel. I think it is one that is easily workable.
The alternatives are not, as Professor Raskind said, either copy the copyrighted work without payment or not use it at all.
There is a third alternative. That is where it exceeds fair use to obtain permission and pay a reasonable fee for it, as I will point out, and not something extravagant. May I also point out in elaboration of the point Mr. Pattison made, it is the author's right, where the work is being used beyond the limits of fair use, to say what his compensation will be.
Our educational brethren turn their backs on the open market, the free market, and ignore the play of economic force. The Constitution wrote for us a copyright clause that according to the Supreme Court was to establish authorship and publishing on a profit motivated basis. As expected, what actually has happened, when an author of a short story or poem or publisher grants a right to use it in an anthology, is that he grants a nonexclusive right to use that work that may appear in 30 anthologies. The price is a competitive price. The competition in the marketplace actually produce fees that are very reasonable. Sometimes, $25, sometimes $50, sometimes less per use, sometimes more.
Let me point out that the American author, most American authors, do intend to make income when they write a work, whether they are full-time professionals or not. The use of their work in anthologies is a major source of income to them. For poets and short story writers, as we testified before, and many of our author members have testified,
this is a principal form of compensation. Most poets do not make money from the publication of a collection of their verse in the hard cover edition. It is from the fees derived from nonexclusive licenses to a number of anthology publishers to reprint copies of these works.
John Dos Passos testified before the Senate that 20 percent or more of his income in the latter years of his life was derived from this source. Robert Frost, Carl Sandberg-many American poets-have earned a good portion of their income from these anthologies. These are published primarily to be used in schools, universities, and similar institutions.
I give you two current examples; the evidence is all around us. Just recently, a young lady named Joanna Kaplan published a book of short stories that received great critical acclaim. In an interview in the New York Post she said it took her, after writing the first short story, another 5 years to turn out the other stories in the collection, one of the reasons being the rest of the time she worked as a teacher of retarded children.
The only real income that an author like Miss Kaplan will derive from her work over the years are the fees that will be paid as that short story is duplicated in anthologies.
I have another clipping from a local newspaper up in Westchester about an author named Frank Rooney. "Since 1925," says Rooney, "I have been a fulltime writer. I have put in 40 hours a week.
"I have done that for 25 years." And he is most widely known for the much anthologized story, "The Cyclist" which his two sons and daughter, much to their amusement, had to read in English class in Rye Neck High School-to their amusement and his small profit, I might add. It sold to the movies, it was named "The Wild One" and it was a motion picture by Marlon Brando.
Two simple examples of what this means in dollars and cents.
What the educational exemption means, in a practical sense, is educators all over the country would be entitled to reproduce multiple copies of short stories. It could be these short stories as far as we know, because they have not defined the length of short stories for us. Short, shorter, or longer.
What it means is that the use of these works will replace the sale of those anthologies on which Mr. Rooney and Mr. Dos Passos, and other distinguished American authors, have relied to derive some kind of compensation from a lifetime of professional writing.
I should point out that the damaging effect will be the same whether the school or the school system reproduces these stories and puts them together in what is called an anthology, or whether they are reproduced one copy at a time. As far as profit motivation is concerned, I followed with interest, Mr. Pattison's colloquy with--I should not say friends; in this context we are not friends-my acquaintances in the earlier panel. I think it is useful to remember that everybody is motivated by profit to some extent. I cannot believe that the teachers who go on strike in a city school system, close down the schools, denying access to the students for 3 or 4 or 6 weeks, do not have some sense of profit motivation. They want to earn a reasonable living, and they are entitled to it.
On behalf of the Authors League, I take no position on teacher's strikes. As an individual, I do not dare to take a position because I do
not know how the members of this panel feel. My point is, teachers are profit motivated. It is nonsense for them to sit before you and make believe that they all go to work everyday for the sheer joy of it without expecting to be compensated. Of course they do, as do the rest of us.
All that authors are asking for is that you do not write into this law exemptions which would seriously injure their right to derive some reasonable compensation for their work. You have been told that there is an educational exemption based upon a "for profit" concept; that for some reason, those uses which are made by nonprofit institutions are exempt and those by profit institutions are not.
That is not true. It is not true because as your committee pointed out, it is clearly the law in the present act that there is no such thing as a nonprofit exemption for reprinting copies of library or musical works. The Copyright Office concluded that on the basis of a study which it made at your request, and you reaffirmed it in your report.
I would like to turn briefly to life and 50 years. I hope I am not using the word "briefly" loosely.
The report of this committee recited findings by the Register of Copyrights that a life-plus-50 term on the average would add 20 years to the present 56 years of copyright. It would not double it, as I gather some Government agency told you. On the average it would add 20 years; in some cases it would provide a shorter term than authors now get for works published at the end of their careers, under the present law.
On the other hand, life plus 50 would drastically reduce the period of protection now available to unpublished works and those published long after an author's death. Under our dual system of common law copyright, followed by statutory copyright, a 200-year-old diary of a Revolutionary War hero, a 150 year old letter, or any unpublished work-no matter how old-receives another 56 years of protection under the present act after it is published.
Mark Twain's "Letters From the Earth," published decades after he wrote it, were given 56 years of copyright. The Memoirs of a Civil War Reporter, written here in Washington during the war, was first published in the 1960's. They were protected from the Civil War to the 1960's under common law, and then had another 56 years under the statute.
For goodness sakes, I cannot understand how educational spokesmen will sit here and tell you that replacing that system by a term of life plus 50 years denies access. It increases it and expands it enormously.
Fifty years after the author's death, everything he wrote will go into the public domain-published or unpublished-and access would be complete for historians, scholars, and others. Authors like Ernest Hemingway would no longer be able to provide for their families by leaving unpublished novels to be issued years after their death.
Many authors have outlived copyrights. Even more important, many are unable to provide for their immediate families since their renewal copyrights expire soon after their death. Widows of illustrious American authors have outlived their husbands by decades, and in their advancing years, the only income that permits some of these widows to live in dignity and a semblance of comfort are the royalties from great works written by their husbands.