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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.
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 50.
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. KASTEN MEIER. 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 yeswith the hope that the prior report would be included as a part of it. Mr. ZURKOWSKI. We would be, yes.
Mr. KASTENMEIER. 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