complex design requires that some articles have to be cut from several words to several lines, or some additional language may have to be added in order to fill unsightly gaps. It is the practice and custom of the American consumer magazine industry that authors are not given approval over the final editing of articles. The reason is clear: there is simply no time to go back and get approvals. During the closing of an issue, editors try to make only cosmetic changes which will not change the sense of an article, but time is of the essence and authors as well as publishers are aware of the problems of closing an issue. An editor of a major consumer monthly may plan an issue of which 75% of the text and up to 100% of the photographs will originate from free lancers. It is imperative that such articles be commissioned far enough in advance so that they can be reviewed by the editors and sent back with corrections or guidance so that the author can make necessary changes or support positions they have taken. Indeed, major stories of 5,000 to 10,000 words may be commissioned eight months in advance of the cover date. Holiday material may be commissioned one year in advance. This can While the basic premise at most magazine publishers is that the writer is expected to do the writing with guidance from the editors, occasionally a problem will develop where an article is not sent to an author for the author's correction. occur when an article originally scheduled for a particular issue must be dropped because intervening events have rendered the article unusable and a substitute article must be commissioned on short notice. Or, an article may be turned in which the editor believes does not fit in with the particular viewpoint the article was expected to express or does not come up to the standards of the magazine, in which event a substitute article may be commissioned. Occasionally an article will be revised by an author and the revisions may not have corrected the problem the editor originally saw. In these situations, as well as in those instances where an author is unavailable to make corrections, editing may occur which is of more than a cosmetic nature. Authors and the magazine industry are aware that such editing takes place. It would be an unfair burden on the magazine industry to place at risk an issue of a magazine to risk being thrust into litigation - -- or because editing changes made in an article were not approved by an author. The process with respect to photographs is similar. In the magazine industry, photographers are not given approval over how their photographs may be cropped or where they will appear in the magazine. Here again it is not practical to consult with photographers to get their final approval over how photographs will look in the magazine. In short, American consumer magazines, in order to survive, face a constant series of deadlines during which time the different components of an issue must not only be assembled but also shaped into their final form. It would be impossible to allow all authors and photographers to see final versions of their articles and photographs for approval prior to scheduled publication. I don't know what benefits others may see in Berne, but I do know that the introduction of the "moral rights" doctrine would fundamentally, permanently, and adversely alter the face of American magazines. Unless we editors can be protected from the dangers of moral rights, ASME respectfully opposes adherence to the Berne Convention. On behalf of the 600 members of ASME, I thank you for considering our views. Senator DECONCINI. Thank you, Mr. Carter. Mr. Kummerfeld. STATEMENT OF DONALD F. KUMMERFELD, PRESIDENT, Mr. KUMMERFELD. My name is Donald Kummerfeld. I am president of the Magazine Publishers of America. MPA, as it is known in the industry, is an organization representing the interests of more than 200 publishing companies which publish consumer-oriented periodicals. Newsweek, Better Homes and Gardens, Reader's Digest, Good Housekeeping, and Sports Illustrated are among the more widely circulated magazines in our group, but hundreds of other periodicals appealing to a wide variety of interests and avocations are also MPA members. Harper's, Foreign Affairs, Bon Appetit, Essence, Fly Fisherman, Scientific American, Colonial Homes, The New Yorker, and even Arizona Monthly are among MPA's more than 800 member magazines. Circulation of member magazines is now almost 300 million copies per issue. Now I understand there are a couple of impoverished authors from Hollywood waiting in the wings, so I will be brief and blunt. The merits of the Berne Convention and the meaning of so-called moral rights no longer are just esoteric debating points or grist for the academic mill. For the industry I represent, the prospect of U.S. adherence to the Berne Convention is a deadly serious and frighteningly real issue. On behalf of the American magazine industry, I first wish to comment on the administration's testimony here last week. Ambassador Yeutter understandably takes the global view of Berne adherence. He may be right when he says U.S. adherence will give him added leverage in negotiations with other nations. I recognize that some of our colleagues in U.S. industry feel strongly that their international interests would be served by Berne adherence, but when the Ambassador and others say in so many words, "Let's adhere now and worry about the details later," I must object. American magazines have to worry about the details now. Publishers and editors of American magazines don't have the luxury of being able to take the global perspective or academic viewpoint. We are the ones who would have to work under the shadow of socalled moral rights every day of our professional lives. With all due respect, we would be at risk, not Ambassador Yeutter or Secretary Verity. Let me now state our industry's position on Berne adherence. We do not oppose adherence, so long as adherence does not disrupt the delicate balance of rights which presently exists under the American copyright law and within our industry. We have a system that works. It is a system that has served publishers, editors, authors and creators and, most importantly, the American reading public, extremely well for two centuries. The introduction of the Berne concept of so-called moral rights in to American law would upset the balance and radically alter the system which has been forged over the course of 200 years of our history, beginning with the framers of the Constitution itself. Those who would disrupt this balance and alter this system bear an extraordinarily heavy burden of proof. I understand and respect the pro-Berne arguments of companies and industries such as those represented on the previous panel. We, too, believe there may be some benefits for our companies in Berne adherence, such as increased piracy protection, although we note that several of the biggest pirates in the world belong to Berne. But adherence without adequate protection against so-called moral rights is, for us, too high a price to pay. With regard to the previous panel, I appreciate that although the magazine industry itself is united on the issue of Berne, there is an honest divergence of opinion within the family of book publishers and software manufacturers. I should point out that three of MPA's larger members-Time Inc., Hearst, and McGraw-Hill—are also three of the largest book publishers in the world. In addition, McGraw-Hill is a major producer of software and has chronic overseas piracy problems, yet all three of these companies have grave reservations about Berne adherence, because of so-called moral rights, and strongly support our position. Mr. Chairman and members of the subcommittee, we recognize there are legitimate American interests, public and private, which would be served by Berne adherence, but we cannot allow our legal system and our industry to be sacrificed in the process. We believe that your legislation can be crafted in a way which would permit adherence while preserving our time-honored system and protecting our industry, and we believe the Hatch amendment does that, and we support it. Mr. Ladd, the next speaker, will explain in detail what is required. What we have in this Nation is unique and worth keeping. Let's adhere to Berne, but only if we can preserve the balance of rights which has served us so well for so long. Thank you. [The prepared statement of Mr. Kummerfeld follows:] STATEMENT OF DONALD D. KUMMERFELD MAGAZINE PUBLISHERS OF AMERICA BEFORE THE SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS COMMITTEE ON THE JUDICIARY UNITED STATES SENATE Mr. Chairman and Members of the Subcommittee: My name is Donald D. Kummerfeld. I am President of the Magazine Publishers of America. MPA is an organization representing the interests of more than 200 publishing firms which publish consumer-oriented periodicals. Newsweek, Better Homes and Gardens, Reader's Digest, and Good Housekeeping are among the more widely circulated magazines, but hundreds of other periodicals appealing to a wide variety of interests and avocations are MPA members. Harper's, Foreign Affairs, Bon Appetit, Essence, Fly Fisherman, Scientific American, Colonial Homes, The New Yorker, and Arizona Monthly are among MPA's over 800 member magazines. Circulation of member magazines now exceeds 290 million copies per issue. Mr. Spielberg and Mr. Lucas are waiting in the wings, so I will be brief and blunt. The merits of the Berne Convention and the meaning of so-called "moral rights" no longer are just esoteric debating points or grist for the academic mill. For the industry I represent, the prospect of U.S. adherence to the Berne Convention is a deadly serious and frighteningly real issue. On behalf of the American magazine industry, I first wish to comment on the Administration's testimony here last week. |