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Vational Association of Elementary School Principals.
A a tion of Schools of Music.
harrizan Asriation of l'niversity Professors.
Aawatira for sprinkun and curriculum Ibevelopment.
al mual (ankers of l'arents and Teachers Mr. STRIXRACI. I would like to add that the ad hoc committee will :t aldri it-elf today to the question of instructional broadcasting ma le we have en assured that this matter will be considered at a later inte, at which ume we will be given an opportunity to speak to
Itin !ly pleasure now to introduce Prof. LOJ. Ra-kind, professor
an, invenity of Minnesota, representing the A xiation of A rian law School, the American I bintion of I'niversity Pro.
fin, l'! the merhan ('ouncil on Education the Jout ('opy. 13! (site for those three organizations
The prejuurd statement of Ixo J. Risk follows:]
...**** otterrutterworfreut Ile American (puti on kauntlig is : ....sli at national at tryk.nl dwati organization and nearly 1,400
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 cutaman prices in the commercial book market; many of our authors write for techni! journals without compensation.
Our main concern is to stress before this committee the soundness of the tri 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 rerising the Capete right Law, a statutory recognition of the doctrine of fair use is preferaller continued reliance upon case law development. As the Senate Report bas fired put it, *... there are few if any judicial guidelines...." bearing dirtis la tbe usage of teachers and libraries in the educational and research it! which is our concern. See, S. Rept. No. 93-983, 83rd Cong., 20 Suss. 110 (15:41 Given the paucity of decided cases in this area, it is necessary to reruite * difficulty of leaving the resolution of this important problem solely to the !... framework of existing decisions. We urse, therefore, the enactment of 100 g now appears in H. 23, 9ith Cong., 1st Sess, as supported by adequate lego Live history.
The recent decision of the Court of Claims in William. e l'ilkins (or lorsque Statex, 457 F.2d 1343 (Ct. (l. 1973), aird by an ually divided court, 13 SL.W. 4314 (1975), underscores the significance of the fair use doctrine to the pu: 1 tional and research community. By its attirmance of this ('ourt of (laims of, the Supreme Court has left the resolution of this problem to the t'ongau
In seeking to have codified the traditional fair use doctrines, adequately stig ported by legislative bimtory, we are moved by the primary importantes availability of copyrighted material to our teaching and research duine ! and most basic is the fact that the higher education community on whuulil we appear today, consists of those institutions in our m*riy charged with ! ultimate task of transmitting and adrancing knowledike. I emphasise dollar search and teaching: each function is indispensable to and supportiie of 1. other. Efective instruction of the Dext generation of citizens and profe14", requires that the current generation of teachers be involve a rear herst, frontiers of their own individual sub ert areas, If the individual trci,* Is * dimi barge this fundamental research obligation, that teacher mitt be hep abr af of the current developments within a given discipline. This De***arus meu the teacher to have available the work product of allied renurilen
The potential rate of growth of knowledge expire in tangible form duri" this generation, requirts that this information the available to the teacher and de Scholar. As the volume of published material has riuen, the library budget & Colleges and uniuenties are intra-inkly prved. The typical library of a la c ol uteris ad a substantial fortion of its annual budget merely to keep current its buliuks of state and federal reports as well as statuits, irrais, and looupraf <*T810*
bad this bar tinakal straint. 131 in it 1972!**** ments to the H. tauration Act of 19**) innd nlated arts), ( * * on
winted betworks for the hand use of litiruri naterials among other fucille Nr1 1463 of 11 1** *20 USA 1974) puside as foi
The ('st1:1.**oer shall carry out a prigrun of ele Urixinx Int!**** higter da
inluding law and ober graduate professional s !are, to the optimal extent throuU C wrative arrang Lisents, their tralal and other Thum .
b log (b) deinates surb authorized projects of shared us 18
We oppure the enartment of $ 105 g)(1) as presently proposed because it Ilir durys an inarticulate and troublesome concept of "eunerrted reproduction": We consider the reference to systematic reproduction in IOSK)12) to be «'ially vague and troublesome.
IS Is Batufcant that the Senate Report No. 83 9 3, K (ong, 2d Sess 1: (1974), status of the identical text of | TONIK) which appard in s. 1361:
However, beither a statute nor legislative history enn specify promly wl.kh llrary pharmupying practices cantitute the making of "single copies" adis ta'allard from "wy struatie reproduction." (At p. 122)
He urge that the legislative history to $108 rettert this concern with unduly Huling 101 We object to the examples of fermissible whared library uvake under 1 on offered in the alone Senate Report, in that they are misleading I Claw extent that they would guide a court in the interpretation of the pluras #vstruale reproduction," this statement of legislative intent do without ary trition of the interest of the teacher and scholar to have bate material made avallabie. Moreover, the present expression of legislative purj*** U'wef. **.16 let them to mention of the curtaiderutious of the liigher Eduation Art N
1 dl our preference that the text of the present \ 105 be mellnad as we bale dualadalmse and that the legislative history of this provi d est the dual utvra of the teacher and stolars ned for the arailability of published mainals as well as the tuntion Act's directive for shared unge It seems to ne at the fiamples in tlor preslat Senate Report gave little if any Weighi to Lew basic siderations.
meni ttie standpunt of the teacher and the rarelier, the doctrine of fair use but he roart 1 free of effective limitations on library practices. Allaby of
Porary katerimi trinajan base leth to the teaching and risenrih futza aons of Lix lasi raidalint (
mmunity. A teacher in a small private or public unisernity « in the Nanebeastern part of the (nite Na , may find that a work Antal tas Acurrent researrhantep is to be found only at a univers at * * 1.-' p to tlor Sartheast I hat teacher may need to obtain only will chapter of # Of (.wmars of either a b or a periodienlliaving such material aia.alle in ntial to the wolar. Inter library Jetidinhas e a means of
tlle information available. A definition of fair use which left uncertain 1. aa..and of Sikh material. po if photand. Would Ir us!rata tietur
er underlying toth the fair timp dextrine and the fundamental cualtiurut to $0$14 te arddansen huwelse by the university community
Arts . We tru dregurst that the legisla'lie history of I J ai th. un librariy **ate the truirtance of the avainability of library and archival de
. to to teacher and the setlar. Tar.. to the teachines fubtlon, the need for reasonable avalat ofc . s talrtial furiantu un is inextru aliy titkıd to the body of t.
**!* & current we trui or friend in article w twar din 11 am dia.) A
deull for netown dinion the jou. 1. P',') Indiwi Kuala introved by t. . available to tlor eit le
el (sota d'ary ainut it while they arr studyin the topte i rtial of avait
in the overwhelming proportion of cases, any possible adverse effect on the way nomic interest of a proprietor will be nil or virtually so. On balance, such a 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 sto undertaken through the Copyright Office and the National Commission ou L 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 scents 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 meanent no pensation may serve to vacate the doctrine of fair use. We beliere such a clusion would do great barn to the public interest in the promotion of do tion and scholarly activities. Moreover, such an outcome would inflirt irti arable harm on the educational community without conferring a derivative bedrit Copyright proprietors.
We thus advocate that the House Report which accompanies this beletre, he drafted to include an express reference to the effect that the doctrine of it use would be applicable to copyrighted materials which might suhanerilt be designated as compensable, if photocopied for other uses. By clearly establir that teaching and research ust are significant to the doctrine of fair use, so quent uncertainty as to the treatment of library materials which might require comination it copied for other purwo, would be avoided.
We consider that Chapter 5 of H. 2123 sets out definitions of infringemetto remedies therefor, which are unduly restrictive of the doctrine of fair use in the edoeational context.
Accordingly we grge modification of the present measure. As follows. Fin we ure that $3021a) be modified by the addition of the following unten. Vo temporary or final injunction shall be available against any library or user (* * ere br $ 10% or & 110."
In its present form, we beliere (a) of the progwe measure will mít the use of the injunction to undercut the effective #4 bor trachrysund Nebolars to the fair use provisions. We would point to the withdrawal byr t'i gry of injunctive relief akainst collective organizational activity in the Is relations arena by the Norris-LaGuardia Art, 47 Stat. 70 (1932): *9*XCL 6101 1973). It is our position that the paralel should carry over here. 1 se le statutory framework controlling labor relations is the labor Relations etat** then ev** We urge that the fair use doctrine of the proposed measure the #harted as the mole framework for governing the use of copyrighted matertale in the educational context by teacher and wholars
Wendly, we con-ider that the damag*** provision of $501c))) als et croach uwin the fair use doctrine of 107. We urge a change in the insta fete of tills provision trinning at line 13 on page 49. In line 18, we wynid portet that the Firence to $107 be deleted in favor of the phrase. *$$ 107 three
llen we would urge that all language on line in after the phrase "!! in the curreut verslun, be deletei. In its pince we would urge the following 1.4! IN:aze follows, there shall be peither statutory damage, nor ctx, bor attot Dey's ftes.**
TESTIMONY OF LEO J. RASKIND, PROFESSOR OF LAW, UNIVERSITY OF MINNESOTA, REPRESENTING THE ASSOCIATION OF AMERI. CAN LAW SCHOOLS, THE AMERICAN ASSOCIATION OF UNIVER. STY PROFESSORS, AND THE AMERICAN COUNCIL ON EDUCATION
Jr. RA-KIND. As Jr. Steinbach has said, Mr. Chairman and mein
pe of the subcommittee, I am professor of law at the l'niversity of V:1.10ta. I apsir le font you to lay on behalf of these organization; Tire T ation of American Law Schools, the Amerlin A lation of Inventv Profesyon, and the American Council of Kurention. We arcount, as a law wholdation, for we 6,** law tegher The Ameran i ation of Inisersity Profesor comprime some 73,**) other university profesors. The American Council on Education is an association of national and regional education organizations, and nearly 1,100 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 noto 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 Four 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.