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He is accompanied by Dr. Harold Wigren, on behalf of the Nationa:
Education Association and Dr. Wigren is remembered for his tet
mony 10 years ago, in more or less the same field.

Gentlemen, you are all welcome.
May I, therefore, ask Mr. Steinbach to proceed first.

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TESTIMONY OF SHELDON E. STEINBACH, STAFF COUNSEL, AMERI.

CAN COUNCIL ON EDUCATION; CHAIRMAN, AD HOC COMMITTEE
ON COPYRIGHT LAW REVISION

1.

Mr. STEINBACH. Mr. Chairman, members of the subcommittee, I am Sheldon Elliot Steinbach, staff counsel and assistant director of gor. ernmental 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, schon! 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 groupes 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 constituert 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 Aswelation of Colleges for Teacher Education,
American Association of Community and Junior Colleges.
American Arworlation of Law Libraries.
American Association of School Administators.
American Axxvinttap of Sebol Librariana,
American Association of l'niversity Women.
Ameriran (tincil on Education.
American Funtional Theatre Association, Inc.
Amestian Library Asulation,
Asociated Collect the Midwest.
Axwelation for (hildhood Education International.
Amirintion for Computina Machinery.
Anssi Ullop for Fiducational Comunications and Technology.
Association nl Rosarrh Ibraries.
Baltimore conaty Storia
fuppuration for Publie Brundrasting.
(onal con Library Hours
International Krading Association.
Joint Council on Edu atjanl Telerum intrations, Inc.
Metal Library ASN 1410
Minern Langunge Awwafan.
Music Flycator National Conference.
Musie Teacher Narlobal Asma'ion.
National Art Erfurafen Asunciation
National Asiation of Educatie sal Broadcasters.

National Association of Elementary School Principals.
National Acantation of Schools of Music.
National Catholic Educational Association.
ainal Catholic Welfare Conference.
National Commission for Libraries and Information Science.
ational Contemporary Theatre Conference.
National Council for the Social Studies.
Sa'idal Council of Teachers of English.
National Exfucation Association of the l'nited States.
Natin Public Radio,
Na'im,al School Boards Association.
Patte Broadcasting Service.
peh (ommunication Association.

Ir

ORSERVERS

Alert: an Aswariation of l'niversity Professore.
Atletunn lione Economics Association.
Aluerian Personnel and Guidance Association.
Asiation of American Law Schools
Assura"lita for $u*rvision and Curriculum Development.
Henderal communications Commission.
.aal Congress of l'arents and Teachers.

Mr. STEINBACH. I would like to add that the ad hoc committee will not aldrus it-ell tolay to the question of in-tructional broadcasting wale we have been assured that this matter will be considered at a later inte, at which time we will be given an opportunity to speak to

1

It in !1.5 plea-ure now to introduce Prof. Leo J. Ra-kind, profesor
viau. Univerity of Minnesota, representing the Association of
A': . an Law Schools, the American Wek'intion of University Pro-
firma, s'il the American Council on Education the Jout Copy
ri! (10!ittee for these three organizations

The prepared statement of 10 J. Ruchand follows:)
*A:IMENT O 1.6 J. R ***IND, MADE OF BrnaIT OF THE ASSOCIATION OF Amins.
IAN LAWN OLS, A MINICAN ANTONIATOY ON VNITT IROTENBORN, AND THE
AMAL AT CONCIL O* HEATIUS

: (? Irman and members of the sileunmittee. I am leo J Raskin pro !....*n' the liberalty of M!**'* l an chairman of the ladom

in Copra las of the criatiota of Annikan law bers. I appar sonlatosit of the native of American Law shouls, the American .t'o fa u lernes le 5*, and the Amernan Cabail an Bedele.

smp three straten we are not for the con law trabers and

118 thirr university profesors Ihe American (o'ndi oh baturation is Birin', 8: of natin. ar.d rihmal edu'ati organizallas and nearly 1 401)

• Palerno

61 11'er that the do trire a fair use la priserire a1.1 6.tea furni1 :.'lop (»Igrren, twith be ripers statutory provision and by aperporiale & air in the flow temat: ltre trfurt 11.11#-'. le robbed as the l'opet!!!tal diretive to Congress contained

1. anti (later wheb provides it. trus slala base Power to prutis of the Prins of . frtu mful A!!! 11.'16 fup

li'll * to Au'1 al. I have talan tim eclusia after Write ani)

.r.rs ..E loob at reduration room unity is the pritaipal llatitu-in our s4**!y Fax will. ll. lauk of travel!!!,and adult indle It la pescara '? '.*'this babe furtoef of trai lilisafirmar, blat on us to

rau flexive statulory ellen of the tide af faat uar link that supium mal I wish to etap..le that we do € * to pre #!

rd w.aerial from the analt of the ci parl's sta'ule We are 1.!! De vetem te v Bratlle tu llar baru pretiap tat 1$.', ale tiella in li'e s.al 1-** 1*7* y detit jutustenties and cusatula Indeed, we arrest the prender as

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a matter of principle, as a matter of public policy, as well as a matter of w? interest. There are among our membership authors whose works com 314! id prices in the commercial book market; many of our authors write for teclun journals without compensation.

Our main concern is to stress before this Committee the sounds of tlay ditional, judicially constructed doctrine of fair use and to illustrate its llista mental significance in the process of higber education,

As has been recognized throughout this extended process of revising the content right Law, a statutory recognition of the doctrine of fair use is pr stra';? continued reliance upon case law development. As the Senate Report tax free: put it, “... there are few if any judicial guidelines. ..." bearing dirtis ca the usage of teachers and libraries in the educational and research compte which is our concern. See, S. Rept. No. 93-983, 93rd Cong., 20 Sess, 116 i 1974 Given the paucity of decided cases in this area, it is necessary to reuploile wa difficulty of leaving the resolution of this important problem solely to the wind framework of existing decisions. We urge, therefore, the enactment of 101. - . now appears in H. 2323, 91th Cong., 1st Sess., as supported by adequate ledd tire history.

The recent decision of the Court of Claims in Williams & Wilkins forte! States, 457 F.2d 1345 (Ct. CI. 1973), ar by an equally divided court, 43 ISIN 4314 (1975), underscores the significance of the fair use doctrine to the m} . tional and research community. By its affirtanre of this court of ('lninis (oft", ilha the Supreme Court has left the resolution of this problem to the ('ongrpe

In seeking to have codified the traditional fair use doctrines, adequately seju ported hy legislative hisivry, we are wosed by the primary importalien 0. availability of copyrighted material to our teaching and research duties in and most basic is the fact that the higher education community on whose len? we appear tonlay, consists of those in-situtions in our rociris charred wito ! ultimate task of transmitting and advancing knonledge. I enplianize mise * Search and teaching: each function is indispensable to and supportive os 1,** other. Effective instrumtion of the Dert generation of citizens and profes: 1.4 fruires that the current generation of teachers be involved as rari bupati !!* frontiers of their own individual subjent areas. If the individual trailer is? discharge this fundamental research obligation, that teacher must be hexaba 3 of the current developments within a given discipline. This nexmaru 991.** the teacher to have available the work product of allied renparelers.

The exponential rate of growth of knowlege expre-in tangible form doro this generation, requires that this information be available to the teacher and scholar. As the volume of published material has risen, the library budget of colleges and universities are increa-inkly piramed. The typical library of a lan skumust espend a substantial partion of its annual budget herrly to kraft current les holdings of sale and federal reports as well as statul", trea':wth and looselení werver**

In its stippwort of higher education, onwide its conrern with copyright law :* Congre has regnized this baule tinancial contraint. 11.'1', in its 1972 am ments to the llixher Education Art of 11*1.3 (and related art), ('al.6-05.; ported networks for the shared we of library taterials (among other facili'. e1, Sertion 1133(a) of litle 20 ('8" A. (1974) provide fo}***:

The Commt beter shall carry out a program of the rating Inati*r*.*! higher eduxation ineluding law and oilier graduate postoprimional .. share, to the operial extent througu compratne arrang Idents, their tecknat al and other ... Suhwertion (bi designates surh authorized projects of słuared tuge 38

A) forint met of facilities such as ... loraris, including law is. braries ... Joint ump of neervar Dwok

Against the baca round of this clear, prloop exin-ion favorine shared ****, we expiry oor concern that I o II Rinetalent id, and 1.** tuie to, lluie slated fire of Congress

We therefore !!*** 11.1® (osta?? it!ve to delete $ 1015L ii) and my frift promifit measure Pexa 1}** Wettiese it impruriy links and linen,«*, !.*.* the pipon of the fair tredomorinen esipainoi in 107 and the heative!,** tory thereto. It is our truests, tnpretatione han parha le place pots ph: 3*, *..marate Yawe" in the first mener of lommitted that all laws' suho quent there is made letrad.

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purre....

We oppose the enartment of $ 105 1g)(1) as presently proposed, because it 12 nidures an inarticulate and troublesome concept of "concrried reproduction"; up cosider the reference to "systematic reproduction' in $ HONK)12) to be ially sague and troublesome.

Is is wmibeant that the Senate Report No. 93 943, 93d (ong.. 2d sexs. 122 (1974), states of the identical text of TONIR) which appared in s. 161:

However, neither a statute nor legislative history can weity prisely which library fabulonoping practices constitute the making of "single copies" as dis l'aislied fruta "My slemalle reproduction." (At p. 122.)

We urge that the legislative history to 1118 reflect this concern with unduly hatarie | 107 We object to the pramples of permissible shared library usage under 110 offered in the above Senate Report, in that they are misleading To llor esteut that they would guide a court in the interpretation of the phrase Biedle reproduction, this statement of legislative intent di-* O without aty testing of the Interest of the teacher and scholar to have basie material kafe wiadable. Moreover, the present expression of legislative punj**** utulip Cildim unies to uw ntion of the considerations of the Higher Eduation act's sla'eed talerrul in share1 Usage.

Idd bup our preferent that the text of the present flow be moulded as we helluntad alone and that the lexislative history of this proudon plert the duai (uperus of the teacher and sebolars need for the availability of public na'rials as well as the Location Art's directive for shared one. It mens tuua tal the examples in the prenent Senate Report gave little if any weiglet to les ! tu basic atsderations.

1991 the standpunt of the fracher and the remea reber, the doctrine of fair use De 140€ dies enarcxel free of effective limitations on library pract** Availabuty of a. "staty daterials remaitim base fxsb to the teaching and researa de futute of the ton reducatiota community. A teacher in a small private or puide un terey b*a'raj in le brawloon part of the new Ntalasi, may find tant a work

al to a current n sarih internet is to be found only at a university at the d. ** to the Northeast that teacher may teed to obtain only eie <tables a #oraf was of either a book or a periodical liaving such malerial

alaldi bois entsai lo the wholar. Inter library leading has two a te.111* of # 14. tl.le stofurlatbe available. A definition of fair use while he left uncertain 1 uraa.sabiedty of such material, men if photopred, would frustrate the purBrons uiderlying forth the fair use doutrine and the fundamental comitist to pferdeeld adatai Amrel by the univerity cotify unity.

Andy We woud request that the begindalle history of # 111 ra through terariy s'ate the 111. mftaner of the availabunty of library and archival als de 1.a. tot. teacher an i the eclar.

I Photos to the fabulo turn to the need for trasurable ava lalalies of is. #dra Baterial for clarum un is ineitrably linked to the area of the s . Osten a curreal bewu Itrin or juridal article wil bear dirtis and

-12° is up a free bedient for eastw discusing the red luf "$.) frais 1* raty 14.fonted by nik avalant to the siddetto !le 18. si . fla*d'ary armut it while they are studying the tipe isetiał of avail dovni ity of sus antibio1 material wotbal tot merie the intervalleriet promo

m' befest in thipelawar-**3 jtua'on are 14 puntet! ;*! * GO!!... feu u nal fair, Anlitrust & Trade Ngul.t1.ru Rpt', firvi.M.; ,", *v!! I'm ll 11.11. i vone of... veral 11.1., 1.TRIED! 6.8 telure as wat rede), it is likel) that hasing the teretit at a betiremput fr en *** of the Park, «portr with its fuit.lle, wail adria: 1.2"q" kaut

..:!*.1;h.pl, 1 of 116* ww leaf we pire 1, duy tl einmalvas trarter tlum availabtally of otheb ta'er! - l' te 117 16.9 !! at the best will be without si la urrutit an. t...

111 !!. 'ler of the learned wil aan hilly think threw113. a'e bolile* ** * w atual te ("p" right pintu wila two sidrut rin all . & a!$:4! is ofti. 1't11a Inot loir a'1.', $150

= 'rule!! point!" pasi ta pii! of t-tfant of researet. i. trust ing Wewuste näll of 1 La lot to save avansar, muljet te tue luntatis at ttar **.18 4. TP, est spot?l'.'*d ka'ef : a. in Ita* tu permendi aral we

llo m. sker?!! - fax I'd rol, a' to 11.11 17:: **.,*. 11.'IRO

!!. llor de to the protial market for the ***** bral mater alla! aff farop te boe Cullen. dered in the de la pl.1.m! ta of tar u Meaniny

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in the overwhelming proportion of cases, ang possible adverse effect on the is nomic interest of a proprietor will be nil or virtually so. On balance, such war 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 fortbeoming stod undertaken through the Copyright Office and the National Commia on en L braries and Information Science, of the library usage of copyrighted materials both in the inter-library loan context as well as in meeting requests of seves 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 cro pensation may serve to vacate the doctrine of fair use. We believe surt me clusion would do great harm to the public interest in the promotion of the tion and scholarly activities. Moreover, such an outcome would infint irriperebujem harm on the educational community without conferring a derivative betreft et copyright proprietors.

We thus advocate that the House Report which accompanies this messere be drafted to include an express reference to the effect that the doctrine of use would be applicable to copyrighted materials which might subuenas he designated as compensable, if photocopied for other uses. By clearly estabihing that teaching and research uses are significant to the doctrine of fair 11, sul quent uncertainty as to the treatment of library materials which might res. No compensation if copied for other purimises, would be avoided.

We consider that Chapter 5 of H. 2223 sets ont definitions of infringements remedies therefor, which are unduly restrictive of the doctrine of fair use in the edotational context.

Accordingly we urge modification of the present measure, as folla FN urge that $502a) be moditied by the addition of the following senten. "18 tenfrary or final injunction shall be available against any library or user post ered by $ 105 or $ 110."

in it prement form, we beliere $ 321a) of the propone measure wind van mit the use of the injunction to undercut the effective acts or trachers and you holar to the fair use provisions. We would point in the wishoirawal tyto KTP of injunctive relief akainst collective organizational artivity in the l**** relations arena by the Norris-LaGuardia Act, 17 stat10 (1832); l'$*4. $ivi 1973). It is our position that the parailel should carry over here. I le say statutory framework controlling labor relations is the labor Relations statement them. We urge that the fair use dietrine of the prop menure the PDded as the mie framework for governing the use of copyrighted materials in the educational context by teachers and wholars.

Necdly, we consider that the damazes provision of $ 50416) (2) alme crapbr* umn the fair use doctrine of $ 107. We urge a change in the last *** trip of this provision beginning at line 13 on page 49. In line ls, we wild prefer that the frierence to $107 be deleird in favor of the phrase "$ 107 thnich 117." 'i hed ** would urge that all language on line ls after the phrase "fi": in the current version, be drieted. In 11% place we would urge the following firal 2.1.mage as follows: "there shall be peither statutory damage, nor ends, but attui tey* (r."

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. Ra-KIND. As Jr. Steinbach has sud, Mr. (hairman and metala ber of the sulmommittee, I am profissor of lawr at the l'nivers:ly of Macta. I appear lw fore you todas on behalf of the organization: The Immation of Ameri«an Law Schools, the Interna Axtation of Innity Profesors, and the American Council on Exfucation We count, an a law school piation, for some 6.1mm) law teachers. The American .1*-*iction of i'niversity Professors com prises some 73,1 mm other unnersity professors. The American Council

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