Path: cdrom.com!barrnet.net!agate!ames!hookup!yeshua.marcam.com!MathWorks.Com!usenet.eel.ufl.edu!usenet.cis.ufl.edu!usenet.ufl.edu!draco.nova.edu!cranston.com!copydesk!zenger!wuxtry.freeman.org!kiosk!clarion.broadside.com!fastlane.vicki.net!nwu!exec-dir From: 72400.1712@compuserve.com (Writers Alert) Newsgroups: alt.journalism,alt.motherjones,misc.writing,rec.arts.books,rec.arts.prose,alt.zines,comp.publish.prepress,comp.publish.cdrom.software,comp.publish.cdrom.multimedia,alt.books.technical,biz.books.technical Subject: Copyright Reform Protects Unpublished Work Date: Mon, 01 Aug 1994 15:30:45 -0400 Reply-To: 72400.1712@compuserve.com (Executive Director) Organization: National Writers Union (AFL/CIO) Message-ID: X-NNTP-Posting-Host: fastlane.vicki.net Lines: 238 Xref: cdrom.com alt.journalism:3059 alt.motherjones:1845 misc.writing:375 rec.arts.books:1594 rec.arts.prose:282 alt.zines:1643 comp.publish.prepress:1063 comp.publish.cdrom.software:777 comp.publish.cdrom.multimedia:683 alt.books.technical:774 biz.books.technical:95 SUPPORT THE COPYRIGHT REFORM ACT! by Maria Pallante Executive Director, National Writers Union An amended version of the Copyright Reform Act passed the U.S. House of Representatives on November 22, 1993 and, if all goes well for authors, it will pass the U.S. Senate sometime soon, possibly as part of GATT. Of special importance to writers is the proposed repeal of section 412 of the Copyright Act. The section currently prohibits the collection of attorneys fees or statutory damages in successful infringement cases unless the copyright has been registered prior to the time infringement occurs. SECTION 412 PENALIZES AUTHORS UNFAIRLY Section 412 has clearly proved a burden to the creative community. Section 412 disenfranchises thousands of artists by denying them the two indispensable remedies -- attorneys fees and statutory damages -- which alone permit them to enforce the rights granted them under the Copyright Act. Many poets, journalists, biographers, scholars, historians, novelists and other authors who are not published by conglomerate publishing houses either know nothing of the prior registration required by 412, or simply cannot afford to register each of several poems, articles or short stories that they create in a given year. It has become clear that section 412 penalizes the very class of people U.S. copyright law is intended to protect -- the authors and artists -- by acting as a bar to bringing suit, and leaves many authors in the frustrating position of having a right but no meaningful remedy. Because of the stringency of section 412, even the most blatant infringers are able to shield themselves from liability because they understand that small authors will be unable to enforce their rights. Thus when an attorney writes a letter on behalf of an aggrieved author who has not yet registered, the infringer may ignore the inquiry, knowing that, practically, the author will not be able to litigate. There are few authors who are not penalized by section 412. Authors who publish in magazines, newspapers, and small presses, a group of authors whose work overwhelmingly contributes to the culture of this country, often find themselves cut off from legal redress forever if their works are infringed. Unpublished authors, or authors whose careers are not well established, are especially vulnerable because they are least likely to be able to afford an attorney or show actual damages. Authors and artists who do not know about the benefits of registration are effectively punished for that lack of knowledge. REPEAL OF SECTION 412 WILL NOT AFFECT LEGITIMATE FAIR USE A few historians and biographers have been misled into thinking that section 412 is somehow necessary to protect application of the fair use doctrine. That belief is erroneous. The amorphous doctrine of fair use, a statute-specific doctrine that allows authors to use others' works without permission, has its basis in section 107 of the Copyright Act and should be addressed through efforts to improve application of section 107. Indeed, section 107 was amended by legislation just last year and no doubt will continue to evolve as is warranted by technology and practice. Section 412 neither protects nor prevents legitimate fair use. First, authors and their publishers have to honestly apply the fair use doctrine when a borrowed work has been registered. There is no less reason for them to be as scrupulous when an author has not yet registered her copyright claim. Any argument that fair use is at risk is an implicit acknowledgment that some authors and publishers feel more free to exceed fair use when borrowing from unregistered works because the denial of attorneys fees and statutory damages insulates them from liability for copyright infringement as a practical matter. Clearly, copyright protection extends to all works, whether published or unpublished, commercially valuable or commercially valueless. The Supreme Court has agreed that authors may have legitimate reasons for keeping unpublished works private. Unpublished works are often works-in-progress, works not ready for others to read or utilize. Often authors show unpublished works only to a small number of people, perhaps only to a literary agent or to an editor at one or two publishing houses. Most published authors whom I know have many unpublished works lying in wait or floating around the industry. Invariably these works are unregistered. The fact that authors do not register their works does not mean that their works are not valuable to them, or that others should be free to appropriate them without fear of a lawsuit. The Copyright Reform Act does, however, recognize that authors may occasionally be innocent infringers. Importantly, it would allow courts not only to reduce but to completely eliminate awards of statutory damages in cases where an accused author did not purposely infringe another's work. This is not presently the case. REPEAL OF 412 WILL NOT LEAD TO FRIVOLOUS CLAIMS Despite the cries of some corporate litgators, repeal of 412 will not trigger a flood of frivolous infringement claims. Plaintiff-authors and their attorneys are faced with the formidable obstacle that if their case is lost, they cannot recover statutory damages and attorneys fees. More importantly, courts have the power to compel a plaintiff-author to pay attorneys fees to victorious defendants, especially after the Supreme Court's recent decision in Fogarty v.Fantasy, Inc. If this prospect is not a sufficient deterrent, professional rules of conduct --- specifically Rule 11 --- exist which forbid attorneys from representing frivolous claims. All of these constraints necessarily must shape decisions about settlements as well as litigation. AVAILABILITY OF ATTORNEYS FEES AND STATUTORY DAMAGES ARE ESSENTIAL In addition to being necessary to the rights of authors, the remedies of attorneys fees and statutory damages are common under American law. Both remedies were available under the 1909 Copyright Act regardless of whether registration was made prior to the infringement. When in 1976 section 412 made these remedies dependent upon prior registration, it unwittingly was at the expense of the creative community of this country. For authors of limited income, the availability of attorneys fees is essential to their being able to retain counsel. Without this prospect, few attorneys will agree to represent an infringement claim, no matter how egregious, and will require a retainer sum up front. Most New York attorneys require a retainer sum that is more than many authors earn from royalties in an entire year. Statutory damages (an amount of up to $100,000 discretionary with the Judge) are essential to authors because it is extremely difficult to prove actual loss in cases of infringement. The value of unpublished works is not easily ascertainable because such works by their definition have not yet been sold commercially. Works with limited circulation, a category that are easy targets for infringement, cannot be valuated fairly unless their authors have proven sales histories from which to draw comparisons. Statutory damages often supply the only hope for recovery, thereby allowing authors a means to protect their intellectual property. The Supreme Court has made it clear that statutory damages under the Copyright Act are neither punitive nor extraordinary but, on the contrary, are intended to provide modest recompense to authors who would not otherwise be able to protect themselves. In this regard, it is critical to note that very few infringement claims are brought against individual authors. Indeed, statutory damages and attorneys fees invariably are sought in cases where a composer or music publisher concedes infringing another's copyright by performing a work without permission. The preponderance of infringement suits brought each year involve composers or music publishers who are suing radio or television stations for unauthorized performance of their songs. Similarly, in the case of literary works, the primary purpose of statutory damages and attorneys fees is to protect authors against the wrongful reproduction of articles, essays, novels and poetry in anthologies, magazines and other publications. COPYRIGHT REFORM ACT PROVIDES FOR CRITICAL IMPROVEMENTS TO PERMISSIONS INFO AND THE LIBRARY OF CONGRESS Section 412 was implemented in the 1976 Copyright Act for the purpose of inducing copyright holders to deposit their works with the Library of Congress. Thus, the only legitimate litmus test for whether it remains should be whether the proposed substitutes can equal that task. As ACCORD co-chair and esteemed Librarian Robert Wedgeworth said in his testimony before the Senate Subcommittee, the Copyright Reform Act has presented us with a long overdue opportunity to evaluate and improve the entire library system. This is quite important, as authors are not only copyright oweners but faithful users of the Library and its satellites. In fact, improvements to both the Library and the copyright registration process are dependant upon passage of the Copyright Reform Act. For instance, the Act would enhance the power of the library to demand deposit of works it deems important to the collection. It would allow the Library to establish and maintain public records of the receipts of works deposited under this section and, after October 1, 1995, would make this significant database available to the public through one or more electronic international information networks. To make the registration process easier, the Register would establish classes of works for which registration could be made by submitting a description of the work only, or through agreeing to deposit at a later time. To remove financial burdens, the Register would allow a single registration and deposit for all works published as contributions to a collective work, including periodicals published within a five year period. The registration form currently required by the U.S. Copyright Office would be expanded to include permissions information, including names, addresses and telephone numbers of those authorized to clear rights, which may be registered at the option of the applicant. In cases where the work is unpublished and the claimant is the author, a new short-form application could be filed. (*The National Writers Union has been asked to assist the Copyright Office with development of a new author-friendly EZ Registration Form and is in the process of testing it on some members.) None of these improvements will be possible without the funding and timelines that are written into the Copyright Reform Act. In short, the Copyright Reform Act is critical legislation for authors everywhere. Its passage would preserve the integrity of copyright law and bring the Library of Congress into the 21st century. Let your senator know today. ----------------------------------------------------------------- MEET THE NATIONAL WRITERS UNION The NATIONAL WRITERS UNION is the innovative labor union comprised of journalists, book authors, cartoonists, poets, technical writers, and others. Only 10 years old, it has 4,000 members and thirteen locals across throughout the country. All members have access to free contract advice, grievance handling, group health insurance and resource materials, including a Guide to Book Contracts, a Prefered Literary Agent Agreement, A Statement of Principles on Electronic Books, a Standard Journalism Contract, a Working Paper on Electronic Publishing, and more. Locals offer frequent workshops and seminars. A Supporters Circle is open to agents, attorneys and other interested parties. For more information about the NWU, use the information form that follows, or call (212) 254-0279. --------------------------------------------------------- NATIONAL WRITERS UNION INFORMATION I would very much like to know more about the NWU. Please snail mail to me (indicate one): : MEMBERSHIP INFORMATION PACKET (For published or unpublished writers) SUPPORTERS CIRCLE INFORMATION PACKET (For attorneys, agents or other interested parties) Name: Address: Please return to 72400.1712@compuserve.com or snail mail to 873 Broadway, Suite 203, New York, NY 10003 ------------------------------------------------------------------------