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in the overwhelming proportion of cases, any possible adverse effect on the eesnomic interest of a proprietor will be nil or virtually so. On balance, such use of excerpts is likely to stimulate the sales of the material in the long run.

We should like to draw the Committee's attention to the forthcoming studies undertaken through the Copyright Office and the National Commission on Libraries and Information Science, of the library usage of copyrighted materials both in the inter-library loan context as well as in meeting requests of scholarly and research users. The feasibility of designing a "payments mechanism" for such library uses is one aspect of this study.

It is our concern that a determination of the feasibility of some means of com pensation may serve to vacate the doctrine of fair use. We believe such a conclusion would do great harm to the public interest in the promotion of ednettion and scholarly activities. Moreover, such an outcome would inflict irreparable harm on the educational community without conferring a derivative benefit on copyright proprietors.

We thus advocate that the House Report which accompanies this measure, be drafted to include an express reference to the effect that the doctrine of fact use would be applicable to copyrighted materials which might subsequently be designated as compensable, if photocopied for other uses. By clearly establishing that teaching and research uses are significant to the doctrine of fair use, suhe quent uncertainty as to the treatment of library materials which might require compensation if copied for other purposes, would be avoided.

We consider that Chapter 5 of H. 2223 sets out definitions of infringement and remedies therefor, which are unduly restrictive of the doctrine of fair use in the educational context.

Accordingly we urge modification of the present measure, as follows. First, we urge that § 502(a) be modified by the addition of the following sentence, “No temporary or final injunction shall be available against any library or user cor• ered by § 10% or § 110."

In its present form, we believe § 502(a) of the proposed measure would per mit the use of the injunction to undercut the effective access by teachers and scholars to the fair use provisions. We would point to the withdrawal by Coŋgress of injunctive relief against collective organizational activity in the blog relations arena by the Norris-LaGuardia Act, 47 Stat. 70 (1932); 29 US CA § 101 (1973). It is our position that the parallel should carry over here. The sotë statutory framework controlling labor relations is the Labor Relations statutes then selves. We urge that the fair use doctrines of the proposed measure he enacted as the sole framework for governing the use of copyrighted materials in the educational context by teachers and scholars.

Secondly, we consider that the damages provision of $504 (e) (2) also encroaches upon the fair use doctrine of § 107. We urge a change in the last ➡ntence of this provision beginning at line 13 on page 49. In line 18, we would prefer that the reference to § 107 be deleted in favor of the parase, *§§ 107 through 117.' Then we would urge that all language on line 18 after the phrase, " 100% in the current version, be deleted. In its place we would urge the following firal language as follows: "there shall be neither statutory damages, nor costs, nor attorneys fees,"

TESTIMONY OF LEO J. RASKIND, PROFESSOR OF LAW, UNIVERSITY OF MINNESOTA, REPRESENTING THE ASSOCIATION OF AMERI CAN LAW SCHOOLS, THE AMERICAN ASSOCIATION OF UNIVER SITY PROFESSORS, AND THE AMERICAN COUNCIL ON EDUCATION Mr. RASKIND. As Mr. Steinbach has said, Mr. Chairman and metabers of the subcommittee. I am professor of law at the University of Minnesota. I appear before you today on behalf of these organiza tions: The Association of American Law Schools, the American Association of University Professors, and the American Council on Education. We account, as a law school association, for some 6,000 law teachers. The American Association of University Professors comprises 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 appear before you because of our concern over the revision of the doctrine of fair use in relation to our function. May I draw to your attention, on page 2 of my statement, to the second paragraph; we note above the constitutional directive contained in article I, seetion 8, clause 8, of Congress' concern in this area of assuring to authors and others the rights to their writings.

As the higher education community, we are the principal institution concerned in this society with the task of transmitting and advancing knowledge. It is for that use that we deem the problem of fair use of copyrighted material as crucial to the discharge of this function.

As a classroom teacher with some 20 years' experience in law schools and departments of economics, I am here to assert to you that without the doctrine of fair use, adequately described in the statute, and supported by articulate legislative history, what we do would be greatly impeded without any derivative benefit to publishers and

ot'ers.

We use this material-and examples of our use suggests that the students, who are the ultimate consumers of our concern as teachers, are not, at the time that they are students, potential subscribers to te journals for which protection is sought. Many of the journals The magazine, for example-recognize the students' status by offer

student subscriptions. Many learned journals offer subscriptions. We are only asking through the doctrine of fair use, as researchers

holars, to advance knowledge by having made available to us, in the library context, materials which our Libraries do not have, To matter how good they are. The University of Minnesota has a the law Ibrary, but we do not have everything. On occasion it is Tesary for me, if I am writing an article, to have information from

ribraries. That is the main nub of our concern with the doctrine of for me. We think it is crucial for the discharge of our teaching ai research. We do not see that it infringes on the economic rights

of others

I draw your attention, on page 2, in the third paragraph, that we et realy recognize that we do not seek to have removed from copyrt protect on basic material under the statute. We accept this

se as a matter of principle and a matter of public policy and a matter of self interest. As lawyers, we recognize case law and I draw Your attention, row, to the next to the last paragraph on page 2ittle ex@ng state of case law in this area is not articulate, suffiC's articulate, to deal with fair use and describe it.

Perefore, we urge that this revision process produce a statutory destene of for me and it be described by legislative history that "adte interpretation of it.

I point out to you further--I will not read this statement; I will #marize it and make myself available to your questions- that Crays Fan, Itself, as I point out on the bottom of page 3, enacted d on wagpest ng such shared nape and recognizing that, as rewarchers, our libraries do not have adequate resources and cannot have adequate resources for every Ebrary to have a total collection of all the material that is needed for teaching and research.

can be shared more efficiently by medical libraries throughout the nation. Eleven major institutions have been designated Regional Medical Libraries to provide interlibrary loan services to other libraries in their regions.

The interlibrary loan program provides to requestors photocopies of articles from periodicals and brief excerpts from monographs for the purposes of private study, scholarship and research. Single photocopies are provided in lieu of loaning the original literature as a means of safeguarding NLM's archival collection and of assuring uninterrupted availability of the literature of NEM and the resource libraries of the Regional Medical Library network.

The term "systematic reproduction" as used in Section 108(g) (2) is not defined in the bill, but if it is to be used to describe that reproduction carried out in connection with interlibrary cooperation, such as in the Biomedical Library Network, it will mean the end of this orderly and efficient medical literature exchange.

Section 108 in H.R. 2223 is identical to Section 108 of S. 1361 which was passed by the Senate in 1974. It is important to note that the Senate report which accom· panied S. 1361 dealt with this issue of systematic reproduction.

The report indicated that Subsection (g) (2) stipulates that Section 10 does not authorize the systematic reproduction or distribution of copies of articles in periodicals or of small parts of other copyrighted works whether or not multiple copies are reproduced or distributed. Systematic reproduction or disri. bution occurs when a library makes copies of such materials available to orber libraries or to groups of users under formal or informal arrangements whose purpose or effect is to have the reproducing library serve as their source of such material. The report states that such systematic reproduction and distribuits an enable the receiving libraries or users to substitute the copies reproduced by the source library for subscriptions or reprints or other copies which they might otherwise have purchased for themselves, from the publisher or the licensed reproducing agencies.

The potential effects of Section 108 (g) are unsure; however, as the Senate Subcommittee interpreted "systematic reproduction" in 1974, NLM's present interlibrary loan program might be found to be an infringement of the copyright law if amended as proposed in this legislation.

Although Section 108(a)–(f) appears to allow for the photocopying of journal Articles, Subsection 108 (g) (2) threatens to destroy the effectiveness of the biomedical library network and to seriously undermine the ability of jorni medical libraries to provide medical literature and information requested and needed by the health community. It could in effect eliminate the present practice of interlibrary loans which would seriously impair the dissemination of medical information throughout the nation.

Deletion of Subsection 108(g) (2) would permit the continuation of an unrestricted flow of medical information among libraries. If deletion is not possible, another approach which might accomplish the goal would be to ameid Subsection 10s(g) (2) by adding the language underlined below:

(2) engages in the systematic and unlimited reproduction or distri bution of single or multiple copies or phonorecords of the same material described in subsection (d) 8o as to substantially impair the market for, or value of, the copyrighted work,

For purposes of avoiding ambiguity the bill should include explicit definite ts of “systematic reproduction" and "fair use.”

STATEMENT OF Kevin J. Keaney, GENERAL COUNSEL FOR the Federal LiBRARIANS

ASSOCIATION

The Federal Librarians Association, incorporated in the District of Columbia. is an organization of professional librarians who work in the libraries and doctmentation centers of the U.S. Government throughout the world. This statement is subunited to express the view of the association relative to the proposed c9right legislation, particularly Section 10(g)(2).

Section 10% permits the reproduction of single copies of certain materials, in certait, circumstances, and under certain conditions, by libraries and archives, but paragraph (2)(2) withholds that permission or right in "... cases where the Horary of archives, or its employee;....... engages in the systematic reproducti or distribution of single or multiple copies of phonorecords of materiais described in writes tion (d).”

It is the view of this association that this paragraph will, on the one hand, subject the library and the librarian to a liability so serious as to inhibit the

pr · are purpose of Article I, Section 8, of the U.S. Constitution, and on the ober hand, provoke by the vagueness of the term "systematic" endless and unevitable litigation.

Federal librarians and Federal libraries have the duty to serve the publie be providing whatever documents are available. We contend that the public it erest is best served when the documents are provided subject to the primary pse of the constitutional proviston ("... to promote the progress of Science and the meful Arts, . .") and subject to no more than other parts of Sections 10% and 10% We believe that the "fair use" provisions of Section 107 are aesent protection to the holder of copyright, buttressed by the more specifie provisions of Section 10%, but excluding paragraph (g) (2). Librarians do not beeve that the public interest is served by unrestricted and unconditional photoeng ing but we do believe that the restrictions and conditions contained in other parts of the legislation are sufficient to safeguard the legitimate rights of På holder of copyright When Congress provided that constitutional protection to holders, we believe Congress intended a "quid pro quo", viz. the fair use of that protected material by the public. We are highly concerned that there seems to be no government defender of that public interest. On the contrary, the National Commission on Libraries and Information Science latest report indieves to us an acceptance of the inevitability of royalties or a licensing agree. mest. It is no comfort to us that the Register of Copyrights, and the former Register, testified last week before this subcommittee that their first concern „** p the “beneficiaries” of the Copyright Office, ie, authors and publishers. And we are certainly not prepared to agree with the Register that the authors" interest is necessarily the public interest.

our apprehension about the vagueness of the term "systematic" is confirmed by the report on 8. 1361 (no. 93 (83) which said "... neither a statute nor ative history can specify precisely which library photocopying practices evrstitute the making of single copies as distinguished from “systematic reprodation"". The reports recommendation that meetings of opposing parties be Ted to resolve the conflict reminds us that these meetings have already been he many times, without stevesek,

ist surely one asks, “systematic" is a term on which reasonable men can reach an understanding? Aside from the fact that one man's reason is another's Trans-gence, there is the fact that economies is at the root of the matter Holders opyright understandably want more money, and libraries are faced with fiseg cymts in serving the public. The economie damage to holders of copyright sa at best speculative, in regard to photocopying, and we share the view of the 1 × Court of Claims that, in regard to medical journals at least, the argument an untested hypothesis".

Every organization, and hopefully, every Hbrary tries to operate in a "aystemwander, le according to standard operating principles or uniform prines for each task, and must operate thus out of sheer common sense and Postem Locesalty. When your office rents and uses a photocopy machine you are walewriting to a "øystem"; even the production of single copter, no less multile perare are part of a “system”. In this respect, ell litrary photorpying in xy N le at and thus subject to the restrictions of paragraph (g)(2)

As metubers of a profession, and employees of government agencies devoted e service and the pubile interest, we ask you to strike from this proposed ta natum paragraph (g)(2) of Section 10%, oli grounds fiat this paragraph (as retains a ferm so vague ns lend to fruitless litigation,

Ta dwing that the pal de interest and the primary purpose of Artă-le I. Next! in % of the US Constitution and

sea is stupæerfiuins in the light of the re" all, 1 g jurts of Nextions 107 and

STATEMENT OF Jony B. HioHTOWER, CHAIRMAN ALSOATES FOR THE Ants' Associartă COUNCILS 68 TEL. Âns

Mr Cian and members of the Committee. I am presenting "te stat swaif of Advocates for the Arts, a program of Associated Coin Is of te (ACA), ACA is a national service members!.lp organ nation of .. kt devtamat ty sr's agences devoted to the protection and a lvation ent the artu i al artists. It represents several hundred widely diverse organizati, e fres The Metropolitan Opera, to the Alaska Mite Cont. 11 on the Arts, Annex nperial Library Sketchbook » LA NY 1972 45 p

to the Fine Arts Council of Florida, to the Siouxland Arts Council of Sioux City, Iowa. Through Advocates for the Arts, ACA is concerned with all of the pride lems that affect artists, art institutions, and the general public's enjoyment of artistic and cultural works.

ACA acts as a service agency for its members, providing information and as sistance to arts councils and arts organizations throughout the United States. ACA member organizations reflect all artistic disciplines and ACA speaks for the management and financial sides of the art world, as well as the creative and innovative artists themselves. Finally, ACA's Advocates program speaks for the arts consumers-those who enjoy art, buy art, view art, and attend the perform ing arts--in short all who are concerned and affected by the cultural environment of this country.

Advocates for the Arts, through factual and legal research, identifies areas in which action might have a material impact on the rights of arts institutions and individual artists, and areas in which public action might contribute to the enhancement of the cultural life of the community. Advocates intends to act with respect to these areas through public education, drafting of model legislation and litigation. Advocates seeks to accomplish the sharpening of pub lie consciousness of the way in which law affects our cultural life and deter mines the aesthetic character of our surroundings.

Advocates have identified several areas of immediate concern. One of these areas relates to the economic rights of the creative artists. My statement to you today urges this Committee to take full cognizance of the significant adverse impact on the arts which would result from copyright legislation which fails to place reasonable restrictions on the permissible scope of photocopying copy. right material.

The recent conclusion of the United States Supreme Court case of Willia′′ns and Wilkins Company vs. The United States where the Supreme Court by a four to four deadlock let stand a lower court decision permitting rather wide spread photocopying of copyright works, makes more immediate the need for reasonable controls. Unfortunately, judging from the commentaries following the United States Supreme Court decision, institutions feel they have an expanding license to make widespread photocopy use of copyright works. While we do not believe such license was necessarily created by the recent court decision. it being limited to the specific facts presented, the climate is such that action by this Committee is urgent and necessary.

We are concerned about the formulation of legislation which would formalize the concept of "fair use" so as to encourage wholesale library reproduction and distribution of copyrighted works.

Those who create artistic works are necessarily threatened. Without copyright protection against unauthorized distribution of photocopies of their created works, creative artists can have no assurance of being paid for their efforts. The language of HR 2223 (and S. 22 in the Senate) governing the "fair use of copyrighted material, if adopted, would be a major step toward the economie protection for originators and creators of work from excessive reproduction We heartily endorse the provisions of Section 108 and urge its adoption by the 94th Congress. Any attempt to erode or undermine the limitations on "systematic re production" of copyrighted works, will, in our opinion, greatly reduce the effec tiveness of the entire bill. We join the Authors League, and other interested parties, in urging the committee to resist any efforts to delete Section 108(g) from HR 2003

Unfortunately, the potential for harm to the creative artist from an overly liberal photocopying provision is very real. Under the law as developed by the Williams and Wilkins ense, it appears that complete articles may be photocop.ed from a magazine and distributed on a widespread basis without any royalty payment to the copyright owner. However, without specie limitations, we are fear ful that institutions will conclude if an article from a scientific Journal can be reproduced and distributed, why cannot a short story or a poem from a literary magazine also be reproduced and distributed? Why not a musical condition from a workbook of musical scores? Indeed, why not a photographie magazine of a magazine anthology of art reproductions or lithographs? Why should the copier be limited to magazines? Why should it not be permitted to reproduce the same poem, short story, musical composition, photograph, drawing, or lithograph from a paperback book or a hardcover book? Further, in the mind of the photocopier, it might seem to be of no significance that the literary or artistic work is extracted

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