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Of particular concern to us, and hopefully to you, are Sections 107 and 108, “Fair Use," and "School and Library Photocopying."
It is our opinion that these sections of the proposed new law, as written, protect your creative efforts and our investment. These sections will restrict the activities of those who feel that anything in print may be copied and distributed as the copier sees fit-without the permission of, or compensation to, author and publisher alike. We are strongly convinced that your creativity and our investe ment must be protected. The new law will provide this protection and yet allow wide information dissemination.
Well organized efforts are presently attempting to amend Sections 107 and 108. Such amendments will not provide safeguards against photocopying excesses as outlined above. I am writing to ask your assistance in protecting what I believe to be the correct position, one which truly serves everyone's best interests.
Attached is a list of House and Senate Judiciary Committee members. I am asking you to contact these Committee members as well as your own Congress persons. Your message need not be lengthy, but should emphasize these two points:
1. Much time and effort are expended in producing manuscripts for publication. Sections 107 and 108 represent the result of delicate compromises worked out by a number of groups, and if they are not tampered with, they will meet the "fair use" needs of educators and librarians. If broadened to allow uncontrolled and unrestricted use of copyrighted materials, they will discourage authors, Writers, and editors.
2. It is essential that we encourage, sustain, and reward the competitive interplay of ideas. If broader exemptions were to be added to Sections 107 and 108, creative initiative would be stifled. The ultimate sufferer would be the intellectual and imaginative life of the community.
In short, we believe Sections 107 and 108 of H.R. 2223 and S. 22 should be adopted without change!
I would appreciate receiving a copy of your letter. If you wish additional information, I will be happy to supply it by return mail. With thanks and best wishes, I remain Cordially,
JAMES B. FINN, Ph. D.,
Senior Vice President,
Research and Development. We will now stand adjourned.
(Whereupon, at 12:10 p.m., the subcommittee adjourned, to reconvene at 10 a.m., Thursday, May 15, 1975.)
COPYRIGHT LAW REVISION
THURSDAY, MAY 15, 1975
HOUSE OF REPRESENTATIVES,
AND THE ADMINISTRATION OF JUSTICE
Washington, D.C. The subcommittee met, pursuant to call, at 10:10 a.m. in room 2226, Rayburn Hlouse Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. i Present: Representatives Kastenmeier, Danielson, Drinan, Pattison, Railsback, and Wiggins.
Also present: IIerbert Fuchs and Bruce A. Lehman, counsels; and Thomas E. Mooney, associate counsel.
Mr. KASTENMEIER. The committee will come to order for the purpose of continuing the hearings on H.R. 2223, on copyright law revision.
The Chair wishes to express gratitude to the gentleman from California, Mr. Danielson, who presided yesterday, while Mr. Wiggins and I were at the Rules Committee in connection with getting a bill out of the committee.
Also, the Chair would like to say that it continues to be amazed at the public interest in this question, as demonstrated by the number attending the hearing. I am sorry that everybody cannot be seated.
This morning, we are interested in the question of educational uses, other than public broadcasting. In this connection, we have divided this morning's time, more or less, between advocates of educational uses-let us call them educators for this simple purpose and the other half, by authors and publishers of materials used by educators.
I will also suggest that the House is in session; regretfully, we may be interrupted for a brief period of time--10 or 15 minutes we may have to recess for the purpose of making calls to the House for votes or otherwise. We apologize, but this is an unusual circumstance, and we trust that all present will bear with us.
This morning I would like to first greet as witnesses the following: Mr. Sheldon Steinbach, staff counsel, American Council on Education, and chairman, Ad Hoc Committee on Copyright Law Revision; Mr. Leo J. Raskind, professor of law, University of Minnesota ; and Dr. Howard B. Hitchens, executive director, Association for Educational Communications and Technology; Robert F. Hogan, executive secretary, National Council of Teachers of English; Mr. Harry N. Rosenfield, counsel, Ad Hoc Committee on Copyright Law Revisionand who testified, as I recall, extensively in hearings 10 years ago; and Mr. Bernard Freitag, Council Rock High School, New Town, Pa.
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He is accompanied by Dr. Harold Wigren, on behalf of the National Education Association—and Dr. Wigren is remembered for his testimony 10 years ago, in more or less the same field.
Gentlemen, you are all welcome.
CAN COUNCIL ON EDUCATION; CHAIRMAN, AD HOC COMMITTEE
Mr. STEINBACH. Mr. Chairman, members of the subcommittee, I am Sheldon Elliot Steinbach, staff counsel and assistant director of governmental relations of the American Council on Education. I appear before you today, however, representing the Ad Hoc Committee of Education Organizations on Copyright Law Revision, a consortium covering a wide spectrum of 39 organizations within the educational community with interest in the revision of the copyright law. Most especially, we represent the interests of teachers, professors, school and college administrators, subject matter specialists, educational broadcasters, librarians, and indirectly, students themselves. A list of our members is attached to this statement. In addition, we support the testimony given by the library associations yesterday. These groups are also members of the ad hoc committee.
Our testimony today will be presented by four individuals representing several organizations within the ad hoc committee. Although there is a fundamental ad hoc position, the interests of each constituent group varies, and as such, they will emphasize in their testimony today those matters of greatest concern to them. Furthermore, each group under the ad hoc umbrella has reserved the right to determine its own posture with regard to particular issues. [List of members follows:]
Ad Hoc COMMITTEE ON COPYRIGHT LAW REVISION
Vational Association of Elementary School Principals.
American Association of University Professors.
Mr. STEINBACH. I would like to add that the ad hoc committee will not address itself today to the question of instructional broadcasting because we have been assured that this matter will be considered at a later date, at which time we will be given an opportunity to speak to those issues.
It is my pleasure now to introduce Prof. Leo J. Raskind, professor of law, University of Minnesota, representing the Association of American Law Schools, the American Association of University Professors, and the American Council on Education—the Joint Copyright Committee for those three organizations.
[The prepared statement of Leo J. Raskind follows:]
STATEMENT OF LEO J. RASKIND, MADE OF BEHALF OF THE ASSOCIATION OF AMERI
CAN LAW SCHOOLS, AMERICAN AssOCIATON OF UNIVERSITY PROFESSORS, AND THE AMERICAN COUNCIL ON EDUCATION
Mr. Chairman and members of the subcommittee, I am Leo J. Raskind, professor of law at the University of Minnesota. I am chairman of the Special Committee on Copyright Law of the Association of American Law Schools; I appear here today on behalf of the Association of American Law Schools, the American Association of University Professors, and the American Council on Education. Among these three organizations, we account for some 6.000 law teachers and some 75,000 other university professors. The American Council on Education is an association of national and regional education organizations and nearly 1,400 institutions of higher education,
We strongly urge that the doctrine of fair use be preserved and given formal recognition by Congress, both by express statutory provision and by appropriate language in the final Committee report.
Our position is grounded on the Constitutional directive to Congress contained in Irticle I, Section 8, Clause 8, which provides ;
The Congress shall have power to promote the Progress of Science and useful Arts, by securing for Limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The higher education community is the principal institution in our society charged with the task of transmitting and advancing knowledge. It is our concern with discharging this basic function of teaching and research that moves us to ask for an effective statutory expression of the doctrine of fair use.
In making this proposal, I wish to emphasize that we do not seek to remove protected material from the ambit of the Copyright statute. We are neither adverse nor hostile to the basic premise that legitimate rights in intellectual property merit protection and compensation. Indeed, we accept this premise as a matter of principle, as a matter of public policy, as well as a matter of selfinterest. There are among our membership authors whose works command high prices in the commercial book market; many of our authors write for technical journals without compensation.
Our main concern is to stress before this Committee the soundness of the traditional, judicially constructed doctrine of fair use and to illustrate its instrumental significance in the process of higher education,
As has been recognized throughout this extended process of revising the Copyright Law, a statutory recognition of the doctrine of fair use is preferable to continued reliance upon case law development. As the Senate Report has recently put it, “... there are few if any judicial guidelines. ..." bearing directly on the usage of teachers and libraries in the educational and research context which is our concern. See, S. Rept. No. 93-983, 93rd Cong., 2d Sess, 116 (1914). Given the paucity of decided cases in this area, it is necessary to recognize the difficulty of leaving the resolution of this important problem solely to the limited framework of existing decisions. We urge, therefore, the enactment of 107, as it now appears in H. 2223, 94th Cong., 1st Sess., as supported by adequate legislative history.
The recent decision of the Court of Claims in Williams & Wilkins Co. v. Unite States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided court, 43 L'.S.L.W. 4314 (1975), underscores the significance of the fair use doctrine to the educational and research community. By its affirmance of this Court of Claims opinion, the Supreme Court has left the resolution of this problem to the Congresy.
In seeking to have codified the traditional fair use doctrines, adequately supported by legislative history, we are moved by the primary importance of the availability of copyrighted material to our teaching and research duties. First and most basic is the fact that the higher education community on whose behalf we appear today, consists of those institutions in our society charged with the ultimate task of transmitting and advancing knowledge. I emphasize both res search and teaching; each function is indispensable to and supportive of the other. Effective instruction of the next generation of citizens and professionals, requires that the current generation of teachers be involved as researchers on the frontiers of their own individual subject areas. If the individual teacher is to discharge this fundamental research obligation, that teacher must be kept abreast of the current developments within a given discipline. This necessarily requires the teacher to have available the work product of allied researchers.
The exponential rate of growth of knowledge expressed in tangible form during this generation, requires that this information be available to the teacher and the scholar. As the volume of published material has risen, the library budgets of colleges and universities are increasingly pressed. The typical library of a law school must expend a substantial portion of its annual budget merely to keep current its holdings of state and federal reports as well as statutes, treatisex, and looseleaf services.
In its support of higher education, outside its concern with Copyright Law, the Congress has recognized this basic financial constraint. Thus, in its 1972 amend. ments to the Higher Education Act of 1965 (and related acts), Congres sur ported networks for the shared use of library materials (among other faciliti 18). Section 1033(a) of Title 20 U.S.C.A. (1974) provides as follows:
The Commissioner shall carry out a program of encouraging institutions of higher education (including law and other graduate professional schools) to share, to the optimal extent through cooperative arrangements, their technical and other ... resources. ...
Subsection (b) designates such authorized projects of shared usages as follows:
(1) (A) joint use of facilities such as ... libraries, including law li. braries ... including joint use of necessary books. , .
Against the background of this clear, prior expression favoring shared use, we express our concern that $ 108 (g) of H.R. 2223 is inconsistent with, and bostile to, this stated desire of Congress,
We therefore urge this Committee to delete $ 108 (g) (1) and (2) from the present measure because we believe it improperly limits and is inconsistent with, the expression of the fair use doctrine contained in 8 107 and the legislative history thereto. It is our recommendation that a period be placed after the phrase, "... separate occasions” in the first sentence of $ 108 (8) and that all language subsequent thereto be deleted.