a matter of principle, as a matter of public policy, as well as a matter of » ! interest. There are among our membership authors whose works command Nar prices in the commercial book market; many of our authors write for techn. "il journals without compensation.

Our main concern is to stress before this Committee the soundness of the tra ditional, judicially constructed doctrine of fair use and to illustrate its instr mental significance in the process of higher education.

As has been recognized throughout this extended process of revising the Copr. right Law, a statutory recognition of the doctrine of fair use is preferable to continued reliance upon case law development. As the Senate Report has recellat put it, “... there are few if any judicial guidelines. . . ." bearing directly & the usage of teachers and libraries in the educational and research cortext which is our concern. See, S. Rept. No. 93–983, 93rd Cong., 2d Sess. 116 (1574) Given the paucity of decided cases in this area, it is necessary to recogize the difficulty of leaving the resolution of this important problem solely to the Thiel framework of existing decisions. We urge, therefore, the enactment of § 107, avi now appears in H. 2223, 94th Cong., 1st Sess., as supported by adequate leg siative history.

The recent decision of the Court of Claims in Williams & Wilkins Co. v. Fredel States, 457 F. 2d 1345 (Ct. Cl. 1973), aff'd by an equally divided court, 43 USIW 4314 (1975), underscores the significance of the fair use doctrine to the educa tional and research community. By its affirmance of this Court of Claims efirante the Supreme Court has left the resolution of this problem to the Congress,

In seeking to have codified the traditional fair use doctrines, adequately sp ported by legislative history, we are moved by the primary importance of ta availability of copyrighted material to our teaching and research duties } "st and most basic is the fact that the higher education community on whose be f we appear today, consists of those institutions in our society charged with tur ultimate task of transmitting and advancing knowledge. I emphasize both re search and teaching; each function is indispensable to and supportive of '* other. Effective instruction of the next generation of citizens and professi LAN 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 te scholar. As the volume of published material has risen, the library badgets of colleges and universities are increasingly pressed. The typical library of a 'aw 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, trealam, and looseleaf services,

In its support of lagher education, outside its concern with Copyright Law Pe Congress has recognized this basie financial constraint. Thus, in its 1972 amendments to the Higher Education Act of 1965 (and related neta, Corgress Nijh ported networks for the shared use of library materials (among other facili *1. Section 1663(a) of Tile 20 USCA (1974) provides as follows:

The Commissioner shall carry out a program of encouraging institutions of higher education (including law and other graduate professional stude share, to the optin al extent through cooperative arrang Lents, their techui al and other ... potipo...

Subsection (hi designates such authorized projects of shared usages as follows:

(1)(A) joint use of facilities such as ... I braries, including law lbraries.. including joint use of necessary books

Against the background of ?! is clear, pror expression favoring shined qan, we express our concern that flosig) of HR 25 is inconsistent with and li tile to, flow stated desire of Congres

We therefore urge this Com,” ittee to delete $10kg) (1) and (2) from the present measure because we believe it improperly fin, is and winconsistent witho the expression of the fair use d'œtrire con fined in † 107 and the legislative tory thereto. It is our res or fendation that a period be placed after the phlas, separate occasions' in the first sentence of ƒ 10% grand that all lang i subsequent there to 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 § 108 (g) (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 S. 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 under13 ing $ 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 purposes 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 classroom 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 less 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 seek the right to engage in multiple 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 education 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, subse 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 covered by § 108 or § 110."

In its present form, we believe § 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 Congress 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. § 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 be 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 sentence 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, "§§ 107 through 117." Then we would urge that all language on line 18 after the phrase, "§ 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 AMERICAN 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 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, section 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

others.

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 the journals for which protection is sought. Many of the journalsTime magazine, for example-recognize the students' status by offering student subscriptions. Many learned journals offer subscriptions. We are only asking through the doctrine of fair use, as researchers and scholars, to advance knowledge by having made available to us, in the library context, materials which our libraries do not have, no matter how good they are. The University of Minnesota has a fine law library, but we do not have everything. On occasion it is necessary for me, if I am writing an article, to have information from other libraries. That is the main nub of our concern with the doctrine of fair use. We think it is crucial for the discharge of our teaching and 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 expressly recognize that we do not seek to have removed from copyright protection basic material under the statute. We accept this premise 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, now, to the next-to-the-last paragraph on page 2that the existing state of case law in this area is not articulate, sufficiently articulate, to deal with fair use and describe it.

Therefore, we urge that this revision process produce a statutory doctrine of fair use and it be described by legislative history that will aid the interpretation of it.

I point out to you further-I will not read this statement; I will summarize it and make myself available to your questions-that Congress has, itself, as I point out on the bottom of page 3, enacted legislation suggesting such shared usage and recognizing that, as researchers, our libraries do not have adequate resources and cannot have adequate resources for every library to have a total collection of all the material that is needed for teaching and research.

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 prve 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. AA member organizations reflect all artistic disciplines and ACA speaks for the management and financial sides of the art world, as well as the creative abi 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 aress 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 mode 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 today urges this Committee to take full cognizance of the significant adverse impact on the arts which would result from copyright legislation which fa....s to place reasonable restrictions on the permissible scope of photocopying copy. right material.

The recent conclusion of the United States Supreme Court case of Williams 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 etpanding license to make widespread photocopy use of copyright works. While we do not believe such license was necessarily created by the recent court decisión, 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 10% 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 22R

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 case, 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 specide limitations, we are fearful 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 composition from a workbook of musical scores? Indeed, why not a photographie magazine of a magazine anthology of art reproductions or lithographs? Why should the cogier be limited to magaz nes? Why should it not be permitted to reproduce the st.ne poem, short story, musical composition, photograph, drawing, or lithograph from a paperback book or a hardcover book? Further, in the mir d of the photocopier. it might sech to be of no significance that the literary or artistic work is extracted