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This income is taken from them when the renewal copyright expires; after 56 years. It does not benefit education one whit to deprive them of that income. It does not have anything to do with access. Under life plus 50, these widows, and the other survivors-the immediate survivors of an author-would continue to receive such desperately needed income. Ours is the only Western country that denies aging authors, or their surviving families this income. Every other country has life and
The educators and the scholars of other countries have had no difficulty in proceeding with their work, despite what is claimed to be this heavy burden of life plus 50. I doubt that that is a serious problem for American education. If it is, we are in a sad way. They have much more serious problems to cope with than this. The problems of teaching the young of this country are not affected one whit by a term of life and 50 years for a novel by Ernest Hemingway, or a composition by Aaron Copland, or Irving Berlin for that matter.
It should be remembered that life and 50 benefits only those authors that create plays and books and music that have the quality or the merit to survive. The others have long since gone.
If educators are running around photocopying 40-year-old works nobody wants to read, I doubt anybody would pay attention to them anyway. Why they would want to do it they have not explained to you.
I should also point out, under the entrepreneurial system, which the copyright clause of the Constitution provided, the freelance author must function as a property owner whether or not he is. I think he is as a matter of law. The fact is, he must survive that way. He is not guaranteed a salary by the government, thank God, and the libraries and schools do not support him on some sort of an annual guaranteed wage. All he has is the income produced by uses of the books and plays he writes. That compensation, which often is an accumulation of small fees over a period of many years, can be received by him only as long as his copyright survives, and his family can only receive income for a reasonable period after his death if the copyright survives.
Often an author's works do not commence to earn income until years after they are published. Many American composers have produced music for 10, 30, 40 years before they have achieved recognition. The same is true of poets and many novelists. Only at the end of their lifetime does their work really have any sort of value under the present 56 years system. The usable term is really 15 or 20 years at most.
Under life plus 50 there would be a reasonable opportunity for the authors of the great works that survive to receive some income in their last years, and provide for their families.
On top of that, the copyright system requires the author to riskthat is why we keep referring to it as entrepreneurial. He spends 2 or 3 years on a book or play; it may fail financially even though it is a great artistic or literary success. He may only, in a whole lifetime, write two or three works that produce income of any significance. He has to look to that for his livelihood for the whole period. He is entitled to some sort of reasonable protection for his work for a reasonable period of time.
I remind you, we do not impose a life plus 50 on any other property. There are enough people holding property that their great, great
grandfathers got under land grant acts and other grants of Congress. They did not create anything, they were merely given something out of the public domain. That property right continues forever.
I think it was Shaw that said the argument is not why an author's right should last for life and 50, but why the other forms of property should last a longer period of time.
We are not asking you to abolish our present system of tenure for any other kind of property. All we are asking is for a reasonable period of time for authors.
Life plus 50 does not curtail the availability of books. It is ironic that that argument should be made in the age of technology which will keep everything in print. I gave you as one small example, the book produced by Xerox Co. on demand. A 429-page book by an author, a professor, actually, of English teaching at the University of Illinois. That book will be available forever.
The Xerox Co., and similar companies, are accumulating, with the permission of authors and their publishers, under license arrangements, an enormous library of books and journals which will be reproduced on demand.
In addition, the mass paperback revolution has provided us with a myriad of works in copyright, many that have been copyrighted for many years. If there is a demand for works, they will be produced. On top of that, as your committee recommended, where education wants access to the copyright material beyond the access of fair use, licensing arrangements can be made for them.
In this connection, I might note that no one had come before your committee to propose that when a work falls out of copyright and goes into the public domain, someone who wants to reprint it should be required to do so at a lesser price so the public will benefit from the loss of copyright. Usually the price stays the same. The only difference to the public is the money the author would have gotten now goes into the publisher's pocket, or the producer's pocket.
Teachers do not teach for less when they are teaching public domain materials, and actors and musicians do not receive a lower salary for performing an opera or play in the public domain than for one which is still in copyright.
As far as the renewal argument is concerned, I am afraid you have been treated to a slightly out of context reading. You were told that the copyright office studies established that 85 percent of all material was not renewed. What you were not told is that the same study said that catalogs, advertisements, labels, and the like, made up the bulk of that 85 percent.
The Copyright Office went on to say, "Most material which is considered to be of continuing or potential commercial value is renewed." I know of no author who has failed to renew a book or a poem or a piece of music deliberately. The difficulty with the renewal clause for authors is it becomes a trap for those who do not remember, or have never known, that in that act-which is supposed to protect them— is a clause that says, if you forget to file a piece of paper in the 28th year of your first term of copyright, you lose it.
All that education gets in the way of valuable material are those few works that are lost through inadvertance. I have personally known of the widows of authors, and some other people, who have lost
income because of this. And it was not by any desire of their husbands to deprive them of this income.
Life plus 50 would also establish a single copyright system in this country, as I pointed out, and would make uniformity with the laws of the rest of the civilized world much easier. The Copyright Office undoubtedly will speak to these.
I would close, and I thank you for giving me the time to say this, with the observation that the most important and indispensable contribution to the public interest in copyright, which is the securing of the production of works of lasting value, is made by the author. Until he creates his book or play or music or poem, no one can disseminate it, no one can exploit it, no one can teach it, and no one can systematically copy it with or without paying. It will not be there
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.
I respectfully submit to the committee that the life plus 50 years is a reasonable method of accomplishing this purpose. Until some author discovers the secret of immortality, life plus 50 will be a limited term within the constitutional meaning, much more limited than the 100 or 200 or more years of protection possible under our present system of common law plus 56 years.
Mr. Chairman, I thank you for your forbearance and the opportunity to make this statement.
Mr. KASTENMEIER. Thank you very much.
Let me ask all the panel-I take it there is general acceptance, particularly as it concerns educational uses, sections 107 and 108 of H.R. 2223 in its present form. To the extent that that is not the case, would any of you care to elaborate?
Ms. LINDEN. Mr. Kastenmeier, as I said earlier, yes, that is the case. We have had substantial rights curtailed. We recognize that modern technology leaves us no alternative; however, we urge that any Solomonesque decision not cut us in half. Leave enough of us alive to proceed and create, package, and disseminate intellectual property. I think that is the consensus.
Mr. KARP. The answer of the Authors League is yes.
Mr. FARMER. With regard to music, our answer would be yes— with the hope that the prior report would be included as a part of it. Mr. ZURKOWSKI. We would be, yes.
Mr. KASTEN MEIER. Of course, there are other aspects which one or more of you may return to testify on, in terms of the bill; so I will not ask you about other aspects of the bill, but let me ask you, did you sympathize at all with the educators, in terms of what appears to be a persistent theme, that there is substantial uncertainty, lack of clarity, of fair use, either under this bill or present law or that this uncertainty leaves teachers and educators generally in a very difficult position with respect to what they can reasonably anticipate is infringement?
Mr. KARP. Mr. Kastenmeier, I want to answer very briefly, and then turn to Mr. Lieb.
I do not sympathize for this reason: There is a solution to their dilemma which they have steadfastly not wanted to attempt. That is to
follow your advice and sit down and work out guidelines for fair use. That is a practical, sensible, reasonable, fair way of resolving this.
As other witnesses have pointed out to you, a statute could never deal adequately with a concept of fair use. It would read like the Internal Revenue Code and then you would have to have four volumes of regulations to supplement. I use hyperbole. It would take about six pages to do it, really. But working out guidelines enables both sides to cope with the problem directly and practically; and also, if they do it on a continuing basis, it does not freeze them into the very result you are seeing now. Both sides are coming to you, bargaining for the best bargain. I think we really have gotten the poorest part of it so far.
Actually, this bill does not give authors of books a windfall. Life and 50 will help those few great works that survive, and I think they are entitled to it. There is not a provision in this bill that is going to add a nickel to the income that any author is going to be able to get on his work the day after it is passed. This bill makes very basic and needed adjustments in the system of copyright notice and registration and other mechanical matters that benefit everybody, educators and librarians as much or more than us. This is not a bill that permits authors of books to make more money. There will be a modest adjustment in the compulsory license clause on music which is long overdue, and a far from adequate payment to composers under the jukebox clause. But as for our urging you to put money in the authors' pockets-nothing could be further from the case.
Under present law, which has some defects, but which has protected authors, by and large, except for cable television, they have been able to survive very well under it, as have publishers. I think that the right answer to your question is, you cannot deal with this fear of educators beyond what you have done. The report you had prepared in 1966 and 1967 was a reasonable solution and would have worked, had we spent our energy since then working out the guidelines you proposed.
Mr. LIEB. I would like to supplement that by saying, for the last 5 years or more, we jointly-publishers, authors, and others interested in the copyright side-have steadfastly attempted to bring the librarians, as we told you yesterday, and the educators, whom you heard today, to the table to talk with us about the formulation of guidelines.
There is no way, no way by statute, as Mr. Karp just said, that this can be solved. We are not only ready, we have been ready; and we desire to work out guidelines which will be of assistance to the classroom teacher.
I sympathize with the classroom teacher. I do not think they have been well served by the people who speak for them. If guidelines ample enough to help the teacher in his classwork were prepared, most of the problems that were discussed today would disappear.
Mr. MEELL. I would like to add to that, that the audiovisual publishers have taken a very active campaign of seminars, journal articles, and face-to-face meeting with professional groups and school people to help them come to grips with what is fair use and what
is not in fair use-National, State, and regional meetings. We will continue that activity.
Mr. BENDER. Another example of that: I was personally requested by the Minneapolis public schools, about 3 months ago, to participate with them and their attorneys in drafting a copyright rule of thumb, if you want to call it that, or a code of conduct where a group made up of representatives from throughout the Minneapolis school district, plus their attorneys, sat down with me, as a representative of the media producers, to work out a feasible way in which we could cooperate in this very difficult area. These things are being done by those who wish to cooperate with us. We continue to do this as time goes on.
Ms. LINDEN. May I add one comment?
As we listened this morning, every time, whether it was Mr. Railsback or Father Drinan or anyone else, or Mr. Pattison, try to distinguish-Mr. Wiggins did, too, at one point-between the right of access, the right to use, and the desire not to pay, we were always moved back by the educator's representatives into the confusing examples of the most obvious, limited kinds of uses, and they never would say, except for one or two people, that they did intend to pay, except where fair use was applicable.
I remember Dr. Wigren, specifically, and counsel, Mr. Rosenfield, when it came to payment, they feel that nonprofit educational institutions ought to get intellectual property gratis, piecemeal, a piece at a time, which is the way you teach. You do not teach the whole book in one day. That is their intention, and that is why we have not been able to get together to establish guidelines. They will not accept the principle that authors and publishers need to be paid, just as their salaries are paid.
Mr. KARP. Mr. Chairman, I would like to point out there are two separate problems, as far as fair use is concerned, that can be attacked whether or not they are willing to accept the requirement of payment by the passage of this bill.
We are ready to sit down and talk now about what is fair use and does not have to be compensated for. We will leave to the higher authorities the resolution of the problem of who pays when you go beyond fair use and whether there should be payment, which we obviously, in all these statements, believe there should be.
Mr. MEELL. If you eliminate the protection provided by 108 (g) (1) and (2), there is no urging, then, to consider these guidelines. The exemption of copyright input is another example of the erosion. Just give us input, now, and we will worry about how to protect the author's rights subsequently. If you adopt those exemptions, you eliminate the framework within which discussions on guidelines can proceed.
Mr. KASTENMEIER. Thank you.
I just have one more question, Mr. Karp, in reference to Mr. Pattison's question-whether the renewal clause ought to be retained. You indicate that the 85 percent not renewed, most of which is actually worthless-catalogs, advertisements, labels, and the likeis it your point of view that this category, this worthless category, as you suggest, should have 75, or life and 50, coverage, along with the rest?