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He is accompanied by Dr. Harold Wigren, on behalf of the National Education Association--and Dr. Wigren is remembered for his testimony 10 years ago, in more or less the same field.
Gentlemen, you are all welcome.
May I, therefore, ask Mr. Steinbach to proceed first.
CAN COUNCIL ON EDUCATION; CHAIRMAN, AD HOC COMMITTEE
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. Mint especially, we represent the interests of teachers, professors, schem 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 groups are also members of the ad hoc committee.
Our testimony today will be presented by four individuals repre. senting several organizations within the ad hoc committee. Althoug! there is a fundamental ad hoc position, the interests of each constituent 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,
National Association of Elementary School Principals.
Azertan Asriation of l'niversity Professors.
Mr. STYRACI. I would like to add that the ad hoc committee will tu aldarus itself today to the question of in-tructional broadcasting tra ime we have lwen assured that this matter will be considered at a lates (inte, at whuh ume we will be given an opportunity to speak to t' 19" ******
1! in my pleasure now to introduce Prof. Lo J. Ra-kind, professor law, I'mverity of Minnesota, representing the Asiation of Arran Law School, the American-ociation of University Pro. foamina, alul the American Council on Education the Jout (oppe 1:! (
Ritter for the three organizations The prepared Natement of Lo J. Rusind follow :) #A'YMYST OF LEO J. HANKIND, MAR o BrnalP OF TILE ANSEX"I ¢TION OF A MINI"Al.W* HOOLS, AMINICAN ANRIN TATOY OR ( SINTESITT INFERNUR, AND THE AWINAN (11 ON DELATION Nr 1").Irman and titulers of the mti'x** tmittee I am lo J Raskind. pro
pot'** a!ife Werty of Wirea Ian balran. Lalu
et (srikt law of tbe Anatia of Alisikin law sa banda, lapar Depilit of the water of American Lawhole the Atnerkan ***,'Post ( Wenty Pruits, and the Amersan (il Elmina.
ev thrie operadlirat, we dont la forme con las trembers and
*** orthore uttermís profeuts 'Ile American Coil on haluating is ...i'ns la rof national and friend edwall organization and nearly 1,400 • Pilot Telu. #'d-381
d'hat led trane s fair uur lm pornserved and givea furnal
sa boy tongtree, both by riprra statutory ppu.ft and hy appropriale Bir in tlor film com\'re fritt OP! le Platre on the lisnat1"*}}"al directive to (agre cunt alord
! *p*flaum, what do prontido. 1. t.trus slali bnse l'urs tas borulla Hr the Province of sites are useful
** sf 'se tous led 116** to Au'i8 and 11. islonitis vairl of ** Wirt'tan 1.
melis Top beitt reduc atio cumulally in the pritaipal Inst:' n ln our m'le!Y ''111. 11 r ' aed (f travel.:"!llig d losd scam4 i va de misel on It betur en eru
Lina! Ihanat bal Pelatifs of trai Polt. 11 rrar lo that Was**** us to R! I A1: fline talulof) ripfees of the declar » Paar lee 1: Wading this prommal. I wish to eliber that we do *** te rrine
!" nateral truth the ai':44 of the coupuris ut sta'u'r We are timp 917*** hit lo stile to the back porrule that led..ale rest! In live wal ft" s*ity tartit potpetit atod restauslasatka lindeed, we assegut tl. Le p't reaalop as
a matter of principle, as a matter of public policy, as well as a matter of interest. There are among our membership authors wbose works columnasaran prices in the commercial book market; many of our authors write for trenni! journals without compensation.
Our main concern is to stress before this committee the soundness of the to ditional, judicially constructed doctrine of fair use and to illustrate its in! mental significance in the process of higher education.
As has been recognized throughout this extended process of revising the camera right Law, a statutory recognition of the doctrine of fair use is preferable's continued reliance upon case law development. As the Senate Report bas sprea' put it, "... there are few if any judicial guidelines. ..." bearing directis in the usage of teachers and libraries in the educational and research cuftrt? which is our concern. See, S. Rept. No. 93-983, 83rd Cong., 20 Sess. 116 11:14 Given the paucity of decided cases in this area, it is necessary to rerute ! difficulty of leaving the resolution of this important problem solely to it.e! 1..me! framework of existing decisions. We urxe, therefore, the enactment of t 101, now appears in H. 23, 9th Cong., 1st Sess., as supported by adequate bebido uve history.
The recent decision of the Court of Claims in Williams & Wilkins for free! States, 457 F.2d 1315 (Ct. Cl. 1973), aff d by an equally divided court, 430 SL.W. 4314 (1975), underscores the significance of the fair nse doctrine to the puigtional and research community. By its athirmance of this Court of (laim 65",' the the Supreme Court has left the resolution of this problem to the Congress,
In seeking to have codified the traditional fair use doctrines, adequatrls stipo ported by legislative bimbory, we are moved by the primary importadienis availability of copyrighted material to our teaching and prepared fire ? and most basic is the fact that the higher education community on w !!! we appear today, consists of those institutions in our suriy charged with ultimate task of transinitting and adrancing knowledge. I emphasise lomo search and teaching: each function is indispensable to and suppor?ne of 1.6 other. Ellertire instruction of the best generation of citizens and profes-m*j1.4.5, requires that the current generation of teacher be involved as fari hiera it!** frontiers of their own individual subject areas, If the individual teacher le diri harge this fundamental research obligation, that teacher sint te bepit abry sal of the current developments within a given discipline. This artikariis rey de pret the teacher to have available the work product of allied restarilen
The exponential rate of growth of knowledge expresa in tangible for der!" this generation, requires that this information be available to the teacher and son stolar. As the volume of published material has rises, the library budgute of colleges and universities are increasingly pruned. The typical library of a ** school font exfund a substantial portion of its annual budget terrly to krep current 11x buleiuks of state and federal reports as well as statuit, (rrai: and low pleaf SFTV14
In its surrt of tigher education, ortaldr its concert ath Cops rixht Law Congress has the bad this bumie final al col-traint. T}'le, in its 1972 19"} ments to the Hint Furation Act of 1*** (and n'lated arta), (
en pwirted get works for the stand up of litrary nalerials (among other fucil. tl Nepodlebo 1162314 of 11'le 20 SOA 11974) proside as folla*:
1 he ('stlift. sasjoner shall carry et a prizrain of el. suraking (1??******** higher edilo inluding law and ober graduate professoalNeure, to the optimal extent through Cwm-ratne arrang Lenis their tel.31 a! and other ... Pres...
Subotloa ib) designates kurb authorized projects of shared usug af
.** Tiral jelnt me of fariliiles $13, kas ... libmarks, including law braries . . . 11dn& Joint use of ninysary bed
Armine the fearound of this ear for! ip for postoin latering share , We expire pour enerm that !PTOHIR. In
den vil, arriba *tair to the ddorp of a
We there are the strike to delete s tem! 111 and 12 promile pompentent meal.re twane Writet:13 r ft ins roep ople 112.!! *
Meines1.1 * "h, *:* Purp the top 13*** **74** **410*1 in Hride top: Roury there!. Il leur mon coppe oploog!**$0.93 H assolutad arrplupa pahur, *... Marale om.63** !! !! Bruk eti'enerif demi and that ad laian suhequerit there's to do it
We oppose the enartment of $105 (8) (1) as presently proposed, because it IL! runs an inarticulate and troublesome concept of "evnerrted reproductiota": 18 mnsider the reference to "synlematic reproduction' in $ 1ON1K)12) to be waliy vague and troublesome.
1: Is Betfcant that the Senate Report No. 83 9-3, 3 (ong., 2d Spa 1:2 (1974), state of the identical text of i TurK ) which apparrd in s. 1361:
However, beither a statute nor legislative lixtory ean specify prey wih 1.rary pharlexopying practices cantatute the making of "single coplen" as dis to'lid from my stefat e reproduction." (At p. 122)
We urge that the legislative history to $105 retlert this concern with unduly mükel'ing 101 We object in the examples of permissible shared library usa ke ulder los offered in the above Senale Report, in that they are mislrading To Claw extrat that they would guide a court in the Interpretation of the plirase ***mare reproduction," this statement of legislative intent des ) withont ary tretjon of the Interest of the teacher and scholar to have banje material made available. Moreover, the present expression of legislative purp**** under 1.44 Il makes no mention of the contenderatious of the Higher Eduation Arts sta' di interest in sharel uruge.
I! #dlm our preference that the text of the present | 105 he molite av ne bare situated alone and that the legislative history of this prosimordert the dal currun of the tracher ani scholars ned for the availability of puttindi shtrrials as well as the location Act's directive for shared me It seems to 128 1.at the pianpes in tla present Seuate Report ave little if any weighi to Let w lesie cunderations.
tren the standpunt of the teacher and the researcher, the doctrine of fair use Dit be vaartead free of effective limitations on library practions, Arailabunty of i botary materiais reinasin base both to the learling and researh fut (ons of fi# lui etu alinta cummunity. A teacher in a small private or punda unisernity *« in the Northeastern part of the I nited Nair, may find that a work
al to a current r search internet is to be found only at a unueraits at the 1.2 km to the Lortheast I hat teacher may need to obtain only we chapter of du for a 1.-* krs of either a book or a periodunt liaving such material aia.lslle is essential to the wholar. Inter library leading has **** a theanne of
4:1. tl.le infufuation avasimble. A definition of fair use which left uncertain lor #14. alady of such material, mira if photodwould frusrate the four Decors underlying ttu the fair timp dextrine and the fundamental comiturut to Bufuo nese and advance tourlelie by the university community.
Anda) ** W* d request that the beginda'ile history of I 10 rai thrilah "Prvariy nate the 171.p**staner of the avariabihty of library and are haal ulike 1... to t:.s teacher and the selular.
Ir... to the teachina fut iloti, the need for trawnable avalati!!!) o ta taalrtual fue riattu use is ineitru abiy linked to the needs of the
(! a current sewe item or irodni article sul twar diri anal 28 indiety up a ter s teule fois clasatin din"union tk Trady 1.2 ap',') trat solla kinatay imatroned by the tits available to tlır ateists !!
el (ples fle d'ary ainut it while they are studying the turpie Lietual of avai. Tu su 1 rallel taletial sonid not serve the Internet of for ant piper Þ: 4.7** Noto'disa flygmela-pin II' « are good gwapt'," al., *... despreu ut fial pairs, Antitrust & Trade ligul.fi. 1*»'. fil... opts ! Le P'r', rilat 1.0!". V. Fel Italien 1. B kater team as stufe 11. d, it is likely that has the the benefit of a brant entre Iren of tin ** salire, rustporff soitha itafu.i tille, il alueta Pakiran darat
!! .' Bisco lo ti', of tim li led! Pique 1. dear thar (tarme tracker the availabi.'y of the man!. r! 1 * '..n ******yen will tue without the urta t.! and 1.11 1: ' ! . We'r of this th'rnal will trans! 1.8* the tal a'ladite i **** **** ' tlir oprit lintus wil bielenih sporta
· 3!1maia !y of totsuitinin tirami. Na We tarate din po tu et 11 1.." sť "text of "sarrt si trei ab Wema allt: . f1 la lat to have avaittir, rutet to the limitatsons of turma **Falet. alalll!!.J wartial as la serikal' to heal hard**.
', in tim... slotte !!! pof* mafisato 11. ' : **.**.** 11. !11'g'
!. Het 12 de to the tertial market for the *****!!Ara mateal ** all altri faut to be clared in the deler bl.a. not fair u Wr.)
in the overwhelming proportion of cases, any possible adverse effect on the same nomic interest of a proprietor will be nil or virtually so. On balance, such as 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 studie undertaken through the Copyright Office and the National Commission ou Li braries and Information Science, of the library usage of copyrighted materiale both in the inter-library loan context as well as in meeting requests of schat and research users. The feasibility of designing a "payments mechanista“ for such library uses is one aspect of this study.
It is our concern that a determination of the feasibility of some means of . pensation may serve to vacate the doctrine of fair use. We beliere such a po clusion would do great harm to the public interest in the promotion of tot tion and scholarly activities. Moreover, such an outcome would inflict irreparable harm on the educational community without conferring a derivative beordt om copyright proprietors.
We thus advocate that the House Report which accompanies this beautie, he drafted to include an express reference to the effect that the doctrine of it use would be applicable to copyrighted materials which might subpreft het designated as compensable, if photocopied for other uses. By clearly establir that teaching and research ust are significant to the doctrine of fair use su quent uncertainty as to the treatment of library materials which might repair compensation is copied for other purwas, would be avoided.
We consider that Chapter 5 of H. 2223 sets out definitions of infringemert remedies therefor, which are unduly restrictive of the doctrine of fair use in the educational context.
Accordingly we urge mowification of the present measure, so follows. First we urge that $3021a) be modified by the addition of the following wintens, Ve iemporary or final injunction shall be available against any library or user **** ere br $ 10% or $110."
In its present form, we believe $5024a) of the progred menee *lit po mít the use of the injunction to undercut the effective games for frebre and #cbolars to the fair use provisions. We would point to the withdrawal by tot grams of injunctive relief against collective organizational activity in the \s*** relations arena by the Norris-LaGuardia Act, 17 Stat. 70 (1932); 9 I'll 4 101 1973). It is our position that the parailed should carry over here. I tipo de statutory framework controlling labor relations is the labor Relations algun them rives. We urge that the fair use doctrines of the proposed measure the *Lacted as the more framework for governing the use of copyrighted malertals in the educational context by teacher and scholars.
emuly, we con-ider that the damage provision of $5011c(2) as ek croaches upon the fair use doctrine of $ 107. We urge a change in the inst teise of this provision veginning at line 13 on page 48. In line 18, we would prefet that thin piereder to $107 bp deleted in favor of the phrase "$* 107 that 117.' Then we would urge that all language on line in after the phrase, "t!""; in the curreut versin, be deleted. In its pince we would urge the following 01:4! Innguage as follows: "there shall be deither statutory damages, nor costs, bet attor des ."
TESTIMONY OF LEO J. RASKIND, PROFESSOR OF LAW, UNIVERSITY
OF MINNESOTA, REPRESENTING THE ASSOCIATION OF AMERI.
Mr. RA-KIND. As Mr. Steinbach has said, Mr. Chairman and meine er of the subcommittee, I am profisnor of law at the University of M:1.12esta. I appir b'fore you colay on behalf of these organization: The Immation of merian Law Schools, the Ameriun Amulation of University Professors, and the American Council on Exfuze at
:. We arrount, as a law shows mindblation, for me 6,0** law teacher The Amerian criation of Iniserxity Professors com. pris some 73,11) other university professors. The American Council