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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 8 108 (8) (2) to be equally vague and troublesome.
It is significant that the Senate Report No. 93-983, 93d Cong., 2d Sess. 122 (1974), states of the identical text of $ 108(g) which appeared in $. 1361 :
However, neither a statute nor legislative history can specify precisely which library photocopying practices constitute the making of "single copies" as distinguished 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 $108 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 "systematic 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 underdinge $ 108 makes no mention of the considerations of the Higher Education Act's stated interest in shared usage.
It would be our preference that the text of the present $ 108 be modified as we have indicated above and that the legislative history of this provision reflect the dual concerns of the teacher and scholar's need for the availability of published materials 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 these two basic considerations.
From the standpoint of the teacher and the researcher, the doctrine of fair use must be enacted free of effective limitations on library practices. Availability of library materials remains basic both to the teaching and research functions of the higher education community. A teacher in a small private or public university located 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 distance to the Northeast. That teacher may need to obtain only one chapter of a book or a few pages of either a book or a periodical. Having such material available 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 the availability of such material, even if photocopied, would frustrate the purpures underlying both 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 $ 108 (a) through (f) clearly state the importance of the availability of library and archival material to the teacher and the scholar.
Turning to the teaching function, the need for reasonable availability of copyrighted material for classroom use is inextricably linked to the needs of the scholar. Often a current news item or periodical article will bear directly and immediately upon a topic scheduled for classroom discussion the next day. The quality of teaching is greatly improved by making available to the students the latest commentary about it while they are studying the topic. Denial of availability of such copyrighted material would not serve the interest of copyright proprietors. Students in the classroomn situation are not potential subscribers to the Bureau of National Affairs, Antitrust & Trade Regulation Report, for example, or to the Prentice-Hall multi-volume Federal Income Tax Service, during their tenure as students. Indeed, it is likely that having the benefit of a brief extract from one of these services, complete with its full title, will advertise and acquaint the student with the utility of these loose-leaf services,
To deny the classroom teacher the availability of such material will mean only that the students will be without such current and timely material. Denial of the use of this material will mean simply that the educational process will be lesy well served and the copyright proprietor will be without even the benefit of having the availability of this material brought to the attention of students.
We reiterate that we do not sek the right to engage in inultiple copying out of the context of research and teaching. We seek only the right of the scholar and teacher to have available, subject to the limitations of the statutory fair use doctrine, such copyrighted material as is germane to research and writing. And we seek this availability in the public interest in the promotion and dissemination of education and scholarly pursuits. In taking this position, we recognize that the effect on the potential market for the copyrighted material, is an appropriate factor to be considered in the determination of fair use. We also recognize that in the overwhelming proportion of cases, any possible adverse effect on the economic 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 compensation 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 edukation 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 fair 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, sube 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 $ 108 or $ 110."
In its present form, we believe 8 502 (a) of the proposed measure would permit 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 (ongress of injunctive relief against collective organizational activity in the labor relations arena by the Norris-LaGuardia Act, 47 Stat. 70 (1932) ; 29 U.S.C.A. 8 101 (1973). It is our position that the parallel should carry over here. The sole statutory framework controlling labor relations is the Labor Relations statutes themselves. 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(c) (2) also encroaches upon the fair use doctrine of $ 107. We urge a change in the last pontence 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 phrase, "88 107 through 117." Then we would urge that all language on line 18 after the phrase, "8 107", in the current version, be deleted. In its place we would urge the following final 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 UNIVERSITY PROFESSORS, AND THE AMERICAN COUNCIL ON EDUCATION
Mr. RASKIND. As Mr. Steinbach has said, Mr. Chairman and members of the subcommittee, I am professor of law at the University of Minnesota. I appear before you today on behalf of these organizations: 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 Eluation ja an association of national and regional education or 11.17ations, and nearly 1,100) institutions of higher education.
We appar before you becane of our concern over the revision of the doctrine of fair up in relation to our function. Jay I draw to your attention, on page of my statement, to the second paragraph;
e note above the constitutional directive contained in article I, ser* tion 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 in itution 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 cools and departments of economics, I am here to assert to you that without the doctrine of fair use, adequately described in the statute, and mpywrted by articulate legislative history, what we do would be pratly impeded without any derivative benefit to publishers and
We use this material-and examples of or use sugi-ts that the students, who are the ultimate consumers of our concern au trillers, Arr pot, at the time that they are students, potential subsribars to t's journals for which protection is sought. Many of the journal.T!! magazine, for example--recognize the students' status by otheringetirent guluriptions. Many learned journals offer subs'pons, We are only asking through the doctrine of fair 0, as ir archers po mwan, to advance knowledge by having made available to us, in the library contert, materials which our libraries do not have $. 11strip how good they are. The l’niversity of Minnesota has a for lav library, but we do not have everything. On occasion it is form on any for me if I am writing an article, to have information from ('.rlttaris. 'I hat is the main nub of our concern with the dotrine of fir 11. We think it is crucial for the discharge of our trang # arch. We do not see that it infringes on the economie rin!118
I draw your attention, on page 2, in the third paragraph, that we pomaly monize that we do not seek to have removed from cory. ! pristaton bir material under the statute. We accept this
! ** a matter ol principle and a matter of public policy and a " tor of wlf interna lawyere, we recognize case law and I draw yoseppo Mattention, now, to the next to the last paragraph on page 2 !!! P !Ntate of cam law in this arra is not articulate, buli p!' Atquinte, to deal with fair us and doribe it.
Terefore, we urge that this revision proce* proxine statutory drive of for me and it be derived his l ative history that * t. interpretation of it. I nt out to vou further I will not read this statement: I will . ariza It and make mpwald Anilable to your question that (
bant .nl wint out on the wy**om of 3, 114.tv b eton :
*! warrd 11°** Ar re zing that, a waren ur lilurarse do not have adeunte ramurros and cannot Traduate from prope for puere library to have total collection 44"!! nateral that is needed for traxhing and manch.
can be shared more efficiently by medical libraries thronghout the nation. Eleven una jor institutions have been designated Regional Medical Libraries to pruside interlibrary loan services to other libraries in their regions.
The interlibrary loan program provides to requestory photocopies of art from periodicals and brief excerpts from monographs for the purposes of private study, scholarship and research. Single photocopies are provided in lieu ante loaning the original literature as a means of safeguarding NLM. aretiral Collection and of assuring uninterrupted availability of the literature of I and the resource libraries of the Regional Medical Library network.
The term "systematic reproduction" as used in Section 10NIRI(2) not de Oued 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 Bioturdi al Library Network, it will mean the end of this orderly and ethicient pedi al literature exchange.
Section 109 in H.R. 2223 is identical to Section 108 of S. 1361 which was by the Senate in 1971. It is important to note that the Senate report which acute panied N. 1361 dealt with this issue of systematic reproduction.
The report indicated that Subsection (g) (2) stipulates that Section lin does not authorize the systematic reproduction or distribution of copies of art ! in periodicals or of small parts of other copyrighted works whether or at multiple copies are reproduced or distributed. Systematic reproduction or die bution or'urs when a library makes copies of such materials arailable to **** libraries or to groups of users under formal or informal arrangements who purpose or effect is to have the reproducing library serve as their muurce of styre material. The report states that such systematic reproduction and distributie enable the receiving libraries or users to substitute the copies r ound by the source library for sulisc'riptions or reprints or other copies which they t t otherwise have purchased for themselves, from the publisher or the liorised reproducing agencies,
"The potential effects of Section 108 (g) are unsure; howeper, ne the Senate Subcommittee interpreted "systematic reproduction" in 1974, NIN& portant interlibrary loun program might be found to be an infringement of the copy nght law ir amended as proposed in this legislation.
Although Section ION a )-(f) appears to allow for the photowwring of jour.al Artieto Sulsertion 10418) (2) threatens to destroy the effectivenes of the biomedical library network and to seriously underinine the ability of semi me and libraries to provide medical literature and information non and pred by the health community. It could in effort eliminate the great pertiny interlibrary loans which would wriously iinjair the dissemination of medi al information throughout the nation.
Deletion of Subsection TUS (R) (2) would permit the continuation of an uurvtricted flow of thetical information among libnuries. If deletion is be Imibie, another approach which ikht accomplish the goal would be to amri Nuition lok) 2) by adding the language underlined below:
(2) engages in the systematic and manlamidad reprinction or dem**) bution of single or multiple copies or phononcords of the same material described in Su tion id) 80 a. lo substantially unpair the market jur, or
raine ol. the opprighted work. For purpose of avoiding ambiguity the bill should include expliit definii 15 of wysrmatic reproduction" and "fair use."
STAITMENT OF KEVIN J. KEAYET, GENERAL ('ot'XSEL FOR THE FEDERAL LIIRARIANS
The Farral Librarian A lation, incorporated in the District of Columalal, In an ona tilitet tal ro o till librarians who work in tbe libraries atid mentati. n (voters of the 1.8. Government throughout the world. This statement
*1 !! to el;rves the vient of the W lato realise to the puxed ** Teht dra!100, partimularly Nation ligi?).
11 learning fnuile the refront of stigle ( de of certain materials in vrtnit: aircunstance, a ind under tertainmodatione, los libraries and arrtire, 1. murari (13withholds that m ijn or nkht in *... As where tbe Hrary ar laite, or its ein
. * Dag in. ter sisteinalden regelui a
in entration id ,.**
It is to view of this a m lation that this gamograph will, on the one hand sult the library and the librarian to a liability so rious as to inhibit the
yer are pure of Article I. Sertion of the l'$. Cometitution, and in the
+ hand, proroke by the va queness of the term "systematica endles and u!, atlp litigation
Veebel librarians and teleral libraries hare the duty to serve the publie Bye p ink whinteser documents are minilable. We contend that the public ** etre te red when the deuments are provided subject to the primary f e of the cutitutional provision *... to promote the progress of Science
the ful Arte...") and subert to no more than other parts of sertions fun and . We lelleve that the *fnir use" p rision of Section 107 are * !ient protection to the holder of tright, buttpowed by the inore veritie jepun sens of Nation 10 bat eroinding inkruph (ki(?). Librarians do not Por 1 .9 tlır pulir interest is arved by unr-tricted and unconditional photo) 8 g but we do believe that the restrictions and evinditions contained in
1.67 punts of the legislation are sufficient to wfezunnd the legitimate rights of 1 holder of con right. When ('on KT**** prasided thnt constitutional protection In Perre. Ne lime ('ongre*** Intende a "quid pro q10", viz the fair 04 of *prestate material by the public. We are highly concerned that there wems to le ha orternment defender of that public interes. On the contrary, the
\**nl ( thiajan on Librarie and Information Xrence latest prort indi. rv 12 us an arrimaner of the inevitability of mraltior a linking any het ti mo rumfort tots that the Register of O rrichts, and the former Ester, trstino Innt wok before this warmniitta thit their first convm Pili " ferficiaries of the ('
o right Omer, le authors and publishers And rap againly not prepared to are with the Register that the authors' al matret is berparty the puhiie interest.
wir a rbenian alwwt the partire of the form *** tematic* fe enflrue! Hibe twist on 8 1361 (no, 1K (N) which maldt "... neither a statnte nor
ititr history ann wwwife precisely which library płrotocopying practin ne the making of winrle n e As distinguis from * to lear
" Terorts froimenantion that meeting of op wink martire le 1 1 ie the munitort reminds us that these me have alrradr bern
193 surly one a 4. ***lematie* 1 term on wh!ch m nhle menn Pros 01.ertandit. de fruxen te fort that manr
i s attentes. **tate, frattbere is the fact that comes is at the row of the matter Holder of ridit under fandilly want more moner, and librariam fan with 14. En. in arning the public. The pronomie dit nie to len of een het
at it reuiatiis, in regard to f ix ipf1.8 an. *tire the les af te In mirt flams that, in regard to mentioni journals at least, the argument
anun! bymthesis ** #niranant, and hopefully, erre nr tried to remate in a *ue. ** #tbtrf, I ainordinx to standard Operating prine Des or unitetin jirin. ** fragen h tank, and most operate thun out of her common sense and
r rity Worn your affinerintend a phot * marine, jer "Terito a tet* ; **f the pp111f of airro re, no! In !; * are art of ***** Nex". In this a rt, all ithtart pove w ing iN ** * 8 $ ard the shirt to the restrict of funn