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Answer 2: This should not be considered fair use, and thus would be a tina!! of the present law. In etlet, this sort of multiple copying tends to derir le copyright holder of potential commercial benefit. The Williams and Wiki (487 F. 2nd 1343) decided by the t.s. Court of Clainis last November not be considered a precedent in this case, since the decision there favorite ernmental libraries making large numbers of copies of copyrighted mua': 1. Under Sec, 105 of the proposed legislation, it is legal for a library which w Der interpreted as to include TMO) "to produce no more than one app. work ..."; therefore, such reproduction would be illegal uuder the profundit as well.

HAROLD E. HIL Professor of Communication, Ilead, Radio-T1.Film, I nirernity of tood Answer 3: The length of the copied chapter in relation to the entire w important criterion in determining fair use. But basically, the making of the copies of any length without permission of the copyright owner ein alt and is thus a violation. If the teacher had computed the real aunt of 4 photocopies, including the administrative time involved and the cost of jaft he (or she) probably wouid have concluded that it was cheaper to order netto from the publishers.

SUSAN ESGELHART,
Stal Director, Copyright & International Irade,

Association of American Publishers, Inc.

[Re:ripted from Audiorical Instruction, pobilebed by the Association for Edu at de

Communications and Technology, December 1914)

COPYRIGHT TODAY-COPYRIGHT As IT AFFETS INSTRUCTIONAL DEVLLAPISI

(Jeanne Masson Douglas) (1x. Douglas' article appears here this month because of its appropr atras to the Dinumber theme, **inatructional Derelopment.** The regular *to * Today" column will resume writh the January insur)

One of the major responsibilities of the instructional developer is that of a ing instructional materiuly available in an appropriate medium. Jafetuals 17" often not useful in their existing forms; they may have to be altend to 31

pecific course objective, to niemodate a preferred instructional mode 59 as independent study or inter-active instruction, or simply to provide my.., copies. Whatever the resons for wanting to modify cummer tal lastik media, the copyright İnste is unavoidable, and obtaining copyright cleara often becomes the responsibility of the instructional developer

Hlaving been involved for the last five years in instructional dereleponents tinitir, either in a management role or as a consultant. I have any'uti*ard ensiderable data related to acquiring copyright clearances. During this time 1 are communicated with several publishers, producers chairmen of 23! ..

inttons and organizations, and even with presidents of private In aften pts to obtain feminstone to reproduce their materials. The reults have

on iutenting, and at tiniry surprising

In my early attempts as a mipyright agent, I made use of a form letter I *** learnet that this technique was pretink only delayed response or no pate* at all. An original letter for each transaction was found to be much more sur*** ful Eser lett. hnd two think in mimmon, however the heating that time media e profund would be u* only within our on institution, and that the materials would be used by our students only. (sometimes phone calls hair by nevry to prompt a *fron but since I never take a duplication prt**,

yrat Topt in writing a written ment 1* nitimately pred ) Tu dia 09.rate und faith in complying with the fair use" principle. I always pl. 21 tip pirmod tid effect of the finest of the trupdan material, the quantits perda! and the t.attre of the reproduction

Vr rr**ndents have ben of an amazing variety. At times. I have then f**** nate to deal with watertje Anonna. the Riehis and Permissions o r of the

entrart and (op right other or even the Prouldprut lempiment Director do other twyfend, I have wen dirnted to the Public Relation om er or the

*e***Miss Dreas to director. Educational Resource Center. Reading And farn.tity ****, Kem. Pet a

Firep !n ( 1. Often, It has been ne**rs to neplate with the Vice-Pruident, 1.1* 1e ke I'resident, or the l'rnident of a tirin. On one on on, the pro d' ernet wild not communiente except through his inwyer.

. variatim which keen thinks interestink in wmt I have de "ided to " meaing the buk". For example, a New Jersey distributor referred ibe to a

a prulur ndo referred tue to a New Jork photographer. And a midpm shaber referred me to the copyright holder, who happened to be bad It

tually, this later transition took lo** time, in terms of number i n that liialty more localized arrangements)

As varied as the infondents are the responses themselves. There have rangid fr u the law firm . *no.., and furthermore ..." to the following: "I am happy ! !! Inuperuisfon.. Inill also be pleased to supply lists of other materiais **ftat ulah to consider for four programs..." and "I appreriate your *** In morting permission Thank you for asking. I hope we have held

de ... and driving improvements in your curriculum."* One producer od via telephone, **Why did you ask? Why didn't you just go down behind

nn and do it in extreme cuntrast to this attitude, however, in that of the f yrr who unde along a printed copy of the company'policy statement re

11*1 to npr richt e re York nim primer swindled to my letter with a #') e 1 Piplaining tlant he was willing to krant priui-ion Terlalls but

deput it in writing tmnun of punible (omplication" Again in cutitrast, ### Jerus punisher responded with a l'ermission to Reprint fort which I al preplete in tripliente, An Illinois media pronocer responded. **Enclaved in 't u nima 110 playstatlient to antmante the making lexitinate res l'ests and to infurto three duplicating illegally that a policy dos priet. Twalers ar vi to make t itive identification of known illegal dupliratory."

A trew of some stwie piamples of clearance policies is helpful. For the Harolesarits, I will cutegorize lay media ty .

PRIVT MATIALS Print ... Print

\r* Tork publisher granted permission to take copies of a short story tra$1fee and forrelit line e racht.

a Jermy publisher granted wrmission to producent srties of trate Arnado poblisher wompid pot urant mission to duplicate an article benus P1011** Not available at arh. Piaf . >Von. Print

a Nela tahlwer granted forminsken to u Juges frum a dictionary and a

Aber lok pullaber kranted trusion to entert all the Illustrations of a to alles and the text to the An Illinois manufacturer granted surmienion to copy as slides all the illustra

. Patent Ilonderry manufacturer granted p ls fon to copy all the Illustrations utorrent their 11:31. 上海

中 学 107 test simi。” 明星Terin M331347年, p irt and are of every ilustrail in their l h, a listing analeting of fie 14 * in od trpink.

matini arganization kranted pirnisefon te montert all the illustration in Ilent into aludes,

NOS PRIT MATTHIA1 AT DA

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(C) This legislation further reduces accessibility now permitted through the nonrenewal of copyrights after 28 years. It does this by eliminating the renewal requirement and by providing for duration of life plus 50 years. This is a curtailment of education's present rights of access because it unduly extends copyright monopoly from 28 years plus a 28-year renewal period to approximately 75 years. Copyright Office records show that approximately 85 percent of copyrighted works have not been renewed after the initial 28-year period, but have passed instead into the public domain. The unwarranted extension of copyright in H.R. 2223 would protect the author's or creator's heirs more than it would the author or creator himself or herself. We ask, therefore, why the principle of free access to information so essential to a free society should be sacrificed, especially when the author or creator himself or herself has not seen fit to renew the copyright. Many teachers who are also authors tell us that they are as much--or even more-interested in seeing their works used and their ideas disseminated as they are in receiving remuneration each time their works are used. The profit motive is not the only motive that prompts an author or other creator to produce. There is also the satisfaction that comes from getting one's ideas into the open for discussion and debate, with the hope of finally seeing them adopted and thereby creating a better life for others who follow.

In summary, the NEA will not be able to support a bill unless it (1) retains and clarifies an overall not-for-profit concept for educational, scholarly, and research uses and copying, whether couched as a limited educational exemption or in some other suitable comprehensive form; (2) clarifies the meaning of fair use as applied to teachers and learners; and (3) shifts the burden of proof from the teacher to the alleger of the infringement.

NEA therefore urges the adoption of language by this committee that encompasses the above-stated concepts and makes copyright reform meaningful for the teachers, scholars, researchers, authors, and publishers who create, transmit, and perpetuate our heritage for future generations.

Mr. Chairman, I would like to submit for the record the ad hoc committee's proposal on the exemption.

Mr. KASTENMEIER. Without objection, that proposal will be received and be made part of the record.

[The material referred to follows:]

Ad Hoc COMMITTEE'S PROPOSAL FOR. LIMITED EDUCATIONAL EXEMPTION: LIVITA

TIONS ON ExcLUSIVE RIGHTS: REPRODUCTION FOR TEACHING, SCHOLARSHIP AND RESEARCH

Notwithstanding other provisions of this Act, nonprofit use of a portion of a copyrighted work for noncommercial teaching, scholarship and research is not an infringement of copyright.

For purposes of this section :

(1) "Use" shall mean reproduction, copying and recording; storage and ree trieval hy automatic systems capable of storing, processing, retrieving, or trans. ferring information or in conjunction with any similar device, machine or process;

(2) “Portion" shall mean brief excerpts (which are not substantial in length in proportion to their source) from copyrighted works, except that it shall also include (a) the whole of short literary, pictorial and graphic works; (b) entire works reproduced for storage in automatic systems capable of storing, proepeeing. retrieving, or transferring information or in conjunction with any similar device, machinē or process, provided that

(1) A method of recording retrieval of the stored information is established at the time of reproduction for storage, and

(ii) The rules otherwise applicable under law to copyrighted works shall apply to informtion retrieved from such systems;

(c) Recording and retransmission of broadcasts within five school days after the recorded broadcast; provided that such recording is immediately destroyed after such 5-day period and that such retransmission is limited to immediate viewing in schools and colleges.

Provided that "portion" shall not include works which are

(a) Originally consumable upon use, such as workbook exercises, problems, or standardized tests and the answer sheets for such tests;

(b) Used for the purpose of compilation within the provisions of Section 103(a).

Mr. STEINBACH. I would next like to introduce Dr. Howard B. Ilitchens, executive director, Association for Educational Communications and Technology.

[The prepared statement of Howard B. Hitchens follows:]

STATEMENT OF HOWARD B. IIITCHENS, EXECUTIVE DIRECTOR, ASSOCIATION FOR

EDUCATIONAL COMMUNICATIONS & TECHNOLOGY

The Association for Educational Communications and Technology represents eight thousand educators whose professional commitment is directed at finding

trhnological solutions for the wide range of educational problems. It is important to note here that we regard technology as far more than a collection of educational machines and materials. Technology represents a systematic appronch to practical problems that emphasize the application of relevant rizearch. Professionals in my field occupy any number of roles--whether it's directing media programs; developing specific instructional materials for classroom or individual use; assisting teachers or others in selecting materials to meet a specific educational objective; evaluating materials; identifsing long-range educational objectives and developing long-range plans to meet the objectives. Our members with this wide variety of jobs are employed in Nhools and colleges; in the Armed Forces and industry, and in museums, libraries and hospitals throughout the country.

Because they are so involved in the use of technology and modern communbeations, AECT members have run head-on into the 1909 copyright law which provides few answers for them in how they can use copyrighted materials, And the problem becomes more difficult as media professionals find themselves placed increasingly in the role of “copyright expert" for their institution. Be

ause media professionals play such a vital role in education planning and materials selection, school administrators are turning to them to answer the complex copyright questions that arise daily in modern educational settings.

SO AECT, as an association, is vitally concerned with the future of the hill ron are considering today. We have spent much time and energy trying to determine the needs of education in relation to a new copyright law, but have come to realize that we cannot look at the needs of education in isolation. Since we are dependent to a great extent on the output of producers of education materials, we must take their needs into consideration.

There is little doubt that the success of each group-educators and producers depends upon the support of the other. If the educators do not utilize instructional materials, the producers surely cannot remain in business. The teacher, media professional, and the librarian create markets for an author's work and give them visibility. Likewise, in this day of individualized instrue. tion, the open classroom, ungraded schools, and student self-evaluation, the successful educator-teacher, librarian, curriculum developer-wants to utilize a wide range of learning resources. Certainly, when producers and users can act in concert, the student reaps the benefits.

in considering the needs of both sides educators and producere --AECT has adopted a position relative to copyright that we feel serves both groups. AE('T endorses with one exception the fair use provisions outlined in Section 107 add the accompanying legislative history. The full text of our psition papes follows. Particular attention should be paid to the third and fourth paragraphs, which deal with the issue of "fair use."

(H.R. 22231

COPYRIGHT LAW REVISION: A POSITION PAPER BY THE ASSOCIATION FOR

EDUCATIONAL COMMUNICATIONS AND TECHNOLOGY The members of the Association for Educational Communications and Technology (AECT) believe that technology is an integral part of the teachinglearning process and helps to maximize the outcomes of interaction between teacher and pupil.

Regulations governing United States Copyright were originally developed to promote the public welfare and encourage authorship by giving authors certain controls over their work. It follows that revisions in Title 17 of the United States Code (Copyrights) should maintain the balance between pro viding for the compensation of authors and insuring that information remains available to the public. Some of the revisions proposed in S. 22 and H.R. 22:23 lose sight of this balance between user and producer.

AECT endorses the criteria to be used in the determination of "fair use as contained in Section 107 of the proposed bill:

Section 107. Limitations on exclusive rights : Fair use

* * * the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords, or by any other means specified by (Section 106), for purposes such as criticism, comment, news reporting, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is fair use the factors to be considered shall include:

(1) The purpose and character of the use ;
(2) The nature of the copyrighted work ;

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) The effect of the use upon the potential market for or value of the copyrighted work. However, we propose that the concept of "fair use" should apply equally to the classroom teacher and media professional-including specialists in audiovisual and library resources. Media personnel are becoming increasingly important members of educational planning teams and must have the assurance that they may assist classroom teachers in the selection of daily instructional materials as well as with long range curriculum development. Classroom teachers do not always operate "individually and at (their) own volition." The fact that the media pro fessional makes use of advance planning and has knowledge aforethought of tlie materials he prepares for the teacher should not invalidate the application of the "fair use" principle.

Concerning the use of copyrighted works in conjunction with television, AECT proposes that "fair use," as it has been outlined above, should apply to educa. tional/instructional broadcast or closed-circuit transmission in a non-profit edu. cational institution, but not to commercial broadcasting.

Once the doctrine of "fair use" has been established in the revised law, negotia. tions should be conducted between the proprietor and user prior to any use of copyrighted materials that goes beyond that doctrine. We believe that the enactment of the "fair use" concept into law prior to negotiations will guard against the erosion of the concept. Generally, a reasonable fee should be paid for uses that go beyond "fair use," but such fee arrangement should not delay or impede the use of the materials. Producers are urged to give free access (no-cost contracts ) whenever possible.

We agree with the Ad Hoc Committee of Educational Organizations and Insti. tutions on Copyright Law Revision that duration of copyright should provide for an initial period of twenty-eight years, followed by a renewal period of forty-eight years, whereas the proposed bill sets duration at the "life of the author plus fifty years." It seems reasonable that provisions should be made to permit those materials which the copyright holder has no interest in protecting after the initial period to pass into the public domain.

Regarding the input of copyrighted materials into computers or other storage devices by non-profit educational institutions, we agree with the Ad Hoc Com. mittee that the bill should clearly state that until the proposed National Commission on New Technological Uses of Copyrighted Works has completed its study. such input should not be considered infringement. The proposed bill states only that "... (Section 117) does not afford to the owner of copyright in a work any

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