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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 i..z. prices in the commercial book market; many of our authors write for tech. al 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 instramental significance in the process of higher education.

As has been recognized throughout this extended process of revising the Corr right Law, a statutory recognition of the doctrine of fair use is prefera continued reliance upon case law development. As the Senate Report has recei ́T put it, "... there are few if any judicial guidelines. . . ." bearing directly că the usage of teachers and libraries in the educational and research ertex" which is our concern. See, S. Rept. No. 93–983, 93rd Cong., 2d Sess. 116 (1274) 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 ! zjed framework of existing decisions. We urge, therefore, the enactment of § 107, as ! now appears in H. 2223, 94th Cong., 1st Sess., as supported by adequate leg sa tive history.

The recent decision of the Court of Claims in Williams & Wilkins Co. v. Fuit & States, 487 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 ed sar tional and research community. By its affirmance of this Court of Claims oft", is the Supreme Court has left the resolution of this problem to the Congress

In seeking to have codified the traditional fair use doctrines, adequately «*» ported by legislative history, we are moved by the primary importance o. lam availability of copyrighted material to our teaching and research duties Eng and most basic is the fact that the higher education community on whose be 17 we appear today, consists of those institutions in our society charged with the ultimate task of transmitting and advancing knowledge. I emphasize boʻn re search and teaching; each function is indispensable to and supportive of tum other. Effective instruction of the next generation of citizens and profesi 198 requires that the current generation of teachers be involved as researchers et The frontiers of their own individual subject areas. If the individual teacher is 15 discharge this fundamental research obligation, that teacher must be kept abreast of the current developments within a given discipline. This necessarij regades 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 'aa 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. "* Congress has recognized this basic financial constraint. Thus, in its 1972 ameri ments to the Higher Education Act of 1965 (and related acts), Congress Sub ported networks for the shared use of library materials (among other facilit, st. Section 1033(a) of Title 20 US.CA. (1974) provides as follows:

The Commissioner shall carry out a program of encouraging institutions of higher education (including law and other graduate professional schools share, to the optimal extent through cooperative arrang Lents, their teetti al 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 braries... including joint use of necessary books

Against the background of this clear, prior expression favoring shared use. we express our concern that § 168(g) of H R. 2223 is inconsistent with, and her tile to, this stated desire of Congress,

We therefore urge this Committee to delete § 10%(g) (1) and (2) from Ge present measure because we believe it improperly lin.its and is inconsistent w/file the expression of the fair use doctrine contained in § 107 and the kuststive lis tory thereto. It is our recommendation that a period be placed after the phi ve, "... separate occasions in the first sentence of § low-g) and that all lang - „P 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 ey sally 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 8, 1361:

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

We urge that the legislative history to § 108 reflect this concern with unduly lamuting 4 107. We object to the examples of permissible shared library usage ander § 108s 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 “systemaile reproduction,” this statement of legisiative 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 underkang 4 108 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 § 10% be modified as we have indicated above and that the legislative history of this provision reflect the dial concerum of the teacher and scholar's need for the availability of puolished bia'eriais 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 farm two basic cots,derations

From the standpunt 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 basie both to the teaching and research functions of the lugutr 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 ds' unce to the Northeast. That teacher may need to obtain only one chapter of a lek or a í w pages of either a book or a periodical. Having such material avajaile 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 De avalability of such material, even if photocopied, would frustrate tae purjames underlying bota the fair use doctrine and the fundamental comkatment to provide and advance knowledge by the university community.

Accordingly, we wou'd request that the legislative history of ƒ low car through of clearly w'ate the importance of the availability of library and archival tha q ta to te teacher and the scholar.

Iaring to the teaching function, the need for reasonable availability of eopr. tigated material for classroom uise is inextricably linked to the needs of the sar Often a curreat news item or periodical article will bear dirystly and andra'ely upon a topic scheduled for classroom discussion the next day lue finity of teaching is greatly improved by making available to the s'ndents the la est con mas d'ary about it while they are studying the topte. Denial of avama od its of suca copyrighted material would not serve the interest of copyright pro¡teform Ntudents in the classroom situat on are not potetdird whower hers to te kateau of Nati nal Affairs, Antitrust & Trade Regulation Report, for exing e về by the Proty Hall 45%, voi due Federal Inooge Tax Sonja d trader fetare as sucenta Itaeed, it is likely that having the benefit of a brief extract fr in one of these services, compiete with its full title, will advertise at 1.0 1.1 student work, flest hity of those loose leaf nations

To doay tur clamroots teacher the availablky of »nch mater's] w 1' ne 11 try that the students will be without such current and timely ma rial D..al of the use of this material will mean simply that the educari tal promesa qur, atas, Well nerved and the ev pyright propractor will be without even t

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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 materiais both in the inter-library loan context as well as in meeting requests of scholary 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 com clusion would do great harm to the public interest in the promotion of edive tion and scholarly activities. Moreover, such an outcome would inflict irreparshe harm on the educational community without conferring a derivative benefit on copyright proprietors.

We thus advocate that the House Report which accompanies this mezerre, be drafted to include an express reference to the effect that the doctrine of sit 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, su]) ago quent uncertainty as to the treatment of library materials which might re-re 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 corered by § 10% or § 110."

In its present form, we believe $502(a) of the proposed measure would pers mit the use of the injunction to undercut the effective access by tenchers and scholars to the fair use provisions. We would point to the withdrawal by Congress of injunctive redef against collective organizational activity in the beg relations arena by the Norris-LaGuardia Act, 47 Stat. 70 (1932); 29 USCA § 101 (1973). It is our position that the parallel should carry over here. The sou Statutory framework controlling labor relations is the Labor Relations stafetes 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 en croaches upon the fair use doctrine of § 107. We urge a change in the last ➡tence 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, “14 107 through 117." Then we would urge that all language on line 18 after the phrase, “§ 100%, in the current version, be deleted. In its pince we would urge the following final Intguage 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, 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 advanc.ng 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 selools 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 t'e journals for which protection is sought. Many of the journals I me magazine, for example-recognize the students' status by offergstdent 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, no matter how good they are. The University of Minnesota has a flaw library, but we do not have everything. On occasion it is

sary for me, if I am writing an article, to have information from of, r libraries. That is the main nub of our concern with the doctrine of for use. We think it is crucial for the discharge of our tea hing arch. 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 copyrt protect.on basic material under the statute. We accept this feetose as a matter of principle and a matter of public policy and a matter of self interet. As lawyers, we recognize case law and I draw your attention, row, to the next to the last paragraph on page 2 Torte exsting state of case law in this area is not articulate, suffi' articulate, to deal with fair use and describe it.

Therefore, we urge that this revision process produce a statutory ditene of fur me and it be described by legislative history that ad the interpretation of it.

1

I point out to you further. I will not read this statement; I will ti marize it and make my«lf available to your questions-that Chimyon hang it elf, as I point out on the bottom of page 3, enacted

„tion wiggest tg sph shared neage and recognizing that, as tow archers, our libraries do not have adequate resources and cannot Eave adequate resources for every library to have a total collection of a the n.ster.al that is needed for teaching and research.

I draw your attention to Congress' joint- and shared-use provisions in the Higher Education Act, section 1033.

Against this background, we have reviewed the proposed H.R. 2223 and found, as was pointed out to you yesterday, that, for example, section 108 (g) trenches and undermines the interpretation of section 107 that we would seek. The details of that, I leave to my statement. I would draw your attention now to page 6 of my statement, and to the second paragraph; the first and second paragraphs.

Our position is that to deny the classroom teacher the availability of such copyrighted material, in the context of teaching and research, would be to make the teaching and research process less fruitful, less meaningful and less important to scholars; and to do so would not benefit the economic interest of copyrights. We would simply do without, if it were necessary, if we could not have access to this material. We reiterate, as I say in the second paragraph on page 6, we do not seek the right to engage in multiple copying outside the context of research and teaching. We seek only the right of the scholar and teacher to have available subject matter, subject to the limitations of the statutory doctrine of fair use.

I will close now, and make myself available to your questions.

Mr. KASTENMEIER. Unless members are strongly disposed to do so, I would urge they defer questions until each of the witnesses has concluded; then you may ask questions of any of the witnesses who have testified.

Mr. STEINBACH. I next would like to introduce Bernard J. Freitag, Council Rock High School, New Town, Pa., on behalf of the National Education Association; accompanied by Dr. Harold E. Wigren.

pared

[The prepared statement of the National Education Association follows:]

STATEMENT OF JAMES A. HARRIS, PRESIDENT, NATIONAL EDUCATION ASSOCIATION I am James A. Harris, President of the National Education Association. The NEA represents almost 1.7 million teachers in every state across the nation and is the largest professional association in the United States. Its members are active at all levels of education from early childhood through postsecondary and adult. Thus, our interests cover the whole spectrum of educational programs. We appreciate the opportunity to present our views regarding the need to reform copyright law and retain certain positive aspects of the present law, and to comment on H.R. 2223.

The National Education Association is in favor of reform of the U.S. Copyright Law of 1909, but NEA will not support a law which deprives educators of rights derived through long-established practice and which denies teachers and students the right of reasonable access to both print and non-print materials for purposes of teaching, scholarship, and research.

The NEA therefore opposes H.R. 2223 in its present form. It is a regressive bill that curtails or repeals existing rights for education-rights which have been established through the years. We object to H.R. 2223 on a number of grounds. (A) The language of H.R. 2223 severely curtails the applicability of the “notfor-profit" concept in the present law and substitutes restrictive language that is not acceptable in meeting the needs of education consumers. Under the not-forprofit principle, a distinction is made between commercial and noncommercial uses of materials a distinction which we feel is valid and defensible and which should be preserved in the new law. Educational users need special protection over and above that provided commercial users because they have a public responsibility for teaching the children entrusted to them. They work for peoplenot for profit. They do not use materials for their own gain but for the benefit of the children of all of our citizens, including those of authors and publishers.

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