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COPYRIGHT LAW REVISION

THURSDAY, MAY 15, 1975

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,

AND THE ADMINISTRATION OF JUSTICE

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to call, at 10:10 a.m. in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee] presiding.

Present: Representatives Kastenmeier, Danielson, Drinan, Pattison, Railsback, and Wiggins.

Also present: Herbert Fuchs and Bruce A. Lehman, counsels; and Thomas E. Mooney, associate counsel.

Mr. KASTEN MEIER. 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; regret fully, 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.

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.

May I, therefore, ask Mr. Steinbach to proceed first.

TESTIMONY OF SHELDON E. STEINBACH, STAFF COUNSEL, AMERICAN COUNCIL ON EDUCATION; CHAIRMAN, AD HOC COMMITTEE ON COPYRIGHT LAW REVISION

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

Agency for Instructional Television.

American Association of Colleges for Teacher Education.
American Association of Community and Junior Colleges.
American Association of Law Libraries.

American Association of School Administators.

American Association of School Librarians.

American Association of University Women.

American Council on Education.

American Educational Theatre Association, Inc.

American Library Association.

Associated Colleges of the Midwest.

Association for Childhood Education International.

Association for Computing Machinery.

Association for Educational Comunications and Technology.

Association of Research Libraries.

Baltimore County Schools.

Corporation for Public Broadcasting.

Council on Library Resources.

International Reading Association.

Joint Council on Educational Telecommunications, Inc.

Medical Library Association.

Modern Language Association.

Music Educators National Conference.

Music Teachers National Association.

National Art Education Association.

National Association of Educational Broadcasters.

National Association of Elementary School Principals.
National Association of Schools of Music.

National Catholic Educational Association.

National Catholic Welfare Conference.

National Commission for Libraries and Information Science.

National Contemporary Theatre Conference.

National Council for the Social Studies.

National Council of Teachers of English.

National Education Association of the United States.

National Public Radio.

National School Boards Association.

Public Broadcasting Service.

Speech Communication Association.

OBSERVERS

American Association of University Professors.

American Home Economics Association.

American Personnel and Guidance Association.

Association of American Law Schools.

Association for Supervision and Curriculum Development.

Federal Communications Commission.

National Congress of Parents and Teachers.

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 AMERICAN 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 Article 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 (1974). 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. United States, 487 F. 2d 1345 (Ct. Cl. 1973), aff'd by an equally divided court, 43 U.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 Congress.

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 research 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, treatises, 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 amendments to the Higher Education Act of 1965 (and related acts), Congress supported networks for the shared use of library materials (among other facilities). 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 libraries... 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 hostile 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 § 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 (g) and that all language subsequent thereto be deleted.

We oppose the enactment of §108(g) (1) as presently proposed, because it introduces an inarticulate and troublesome concept of “concerted reproduction"; we consider the reference to "systematic reproduction" in § 10%(g) (2) to be equally vague and troublesome.

It is significant that the Senate Report No. 93-9×3, 93d Cong., 2d Sess, 122 (1974), states of the identical text of § 108(g) which appeared in S. 1361:

However, neither a statute nor legislative history can specify precisely which library photocopying practices constitute the making of "single copies' as dista gushed from "systematic reproduction." [At p. 122 ]

We urge that the legislative history to § 108 reflect this concern with unduly limiting § 107. We object to the examples of permissible shared library usage under ↑ 10% offered in the above Senate Report, in that they are misleading To the extent that they would guide a court in the interpretation of the phrase “systemacie reproduction,” this statement of legislative intent does so without any reflection of the interest of the teacher and scholar to have basic material made available. Moreover, the present expression of legislative purpose underkolg 4 10% makes no mention of the considerations of the Higher Education Act's sla'ed interest in shared usage.

It would be our preference that the text of the present § 108 be modified as we Lave indicated above and that the legislative history of this provision reflect the dial concerns of the teacher and scholar's need for the availability of puolisard materiais as well as the Education Act's directive for shared usage. It seems to us that the examples in the present Senate Report give little if any weight to Lut no two basic considerations.

》rom the standpoint of the teacher and the researcher, the doctrine of fair use Bust be enacted free of effective limitations on library practices. Availability of 1brary materials remains basic both to the teaching and research functions of the out ♫ education community. A teacher in a small private or public university ixated in the Southeastern part of the United States, may find that a work essential to a current research interest is to be found only at a university at some dvice to the Northeast That teacher may need to obtain only one chapter of a long or a f w pages of either a book or a periodical. Having such material #vajalle is essential to the scholar. Inter library lending has become a means of making this information available. A definition of fair use which left uncertain te avaliablaty of such material, even if photocopied, would frustrate the pur ja sem under iying bota the fair use doctrine and the fundamental commitment to provide and advance knowledge by the university community.

Accordingly, we would request that the legislative history of § 10% ca) through of clearly w'ate the importance of the avaliabulity of library and archival mater 1.4. to the teacher and the scholar.

iarting to the teaching function, the need for reasonable availability of eopr. Pigoted material for classroom use is inextricably linked to the needs of tan »r. Often a curteat news item or periodical article will bear directly and în „ediately upon a topic scheduled for classroom discussion the next day. The q.ầu tỷ of teaching is greatly improved by making available to the s'ndents the la est er, so l'ary about it while they are studying the tople. Detial of avarian lety of muca copyrighted material would not serve the interest of copyright proprietors (297adents in the classroom situation are not potettini suihou tubers to tie Katrea of Nati nal Affairs, Antitrust & Trade Regulation Report, for ex"; 6 up to the Pry ty⠀⠀ moi, volin e Federal Inovce Tax Solace danger letate as students Indeed, it is likely that having the benefit of a brief extract fr in one of the sẽ services, complete with its full title, wid adverți e anime, o kt Surat desk with fear fity of Lose loose leaf services

To do) tia clanstoota teacher the availability of »nch material wil' ne on by frat the students will be without such current and timely ma“ rial Deat of the use of this n aterial will mean wimply that the educats tik process, ju arya Weli served and the copyright pr pret r will be without even fue de ta glue a a. a pity of this materii broju af to heat too.

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