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it this way goes to whether there is to be fair use at all, or whether you are to have a payment system which overrides everything and forbids any fair use. Our answer to that question is that to the extent that fair use or a limited educational exemption applies, there should be no payment. Beyond that, payment.

In other words, we do not believe, in Mr. Pattison's case, that we ought to have the right to make 1,000 copies, just for the purpose of copying, per se.

Mr. RAILSBACK. Especially if copies are available from the owner at a reasonable figure.

Mr. ROSENFIELD. Again, we are talking copies of what

Mr. RAILSBACK. We are talking about educational materials.

Mr. ROSENFIELD. Let me be specific in the context.

Suppose the teacher reads something the night before class or 2 days before class. Getting copies is sometimes a 6-month job, assuming that you can get them, and rarely less than a month or two. By then the teachable moment would have disappeared. So there is no point in bringing it up.

Mr. RAILSBACK. You are directing your remarks, now, to accessibility. Mr. ROSENFIELD. Accessibility in some respects without cost; in some respects beyond fair use or the limited educational exemption with cost. Accessibility is our principal objective.

Mr. RAILSBACK. Mr. Freitag, you objected, I think, to section (2), which might have been subsection (1).

How would you separate a community store front reception, or a reception at a dormitory from general public viewing?

Mr. FREITAG. Maybe I can do it by alluding to something that is more real in my immediate situation, although I would be glad to get specific in your question.

We have a language lab in our school. Some years ago, when language labs became popular, they involved a $60,000 outlay, conduits underneath the floor, air-conditioning, and so on. Everything was very space-age. The headsets and tapes and all that sort of thing. We never bought into that in my district. We were far too pragmatic to be charmed by all that mechanism. What we bought was a wireless system. The sender goes out from a simple tape recorder or anything; the kid has a headset, wireless receiver on top. We are in business in a very few seconds. It is a small item. We use it 5 or 6 minutes, then you are done; put it aside.

We have now abandoned that to go to cassettes for several reasons. No. 1, we are a school of 2,800. Of those 2.800 totally elective programs, some 1,400 are taking French, German, and Spanish. We are now going to cassette usage in our library. We have what we call self-instruction rooms. The students sit down with a cassette, plug in the machine, listen to whatever they need, and go. Very few students can get to that library because of time constraints-all their sports involvements, things like that.

We dealt with a publisher in New York to get permission to copy the teacher tapes onto cassettes and use a rapid cassette duplicator. Students bring in their blanks, pop it on that machine, and in 11⁄2 minutes they have an hour's worth of taped material which is coordinated to the text. They take it home and there use their machine.

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Mr. RAILSBACK. You are not suggesting that we expand to really accomplish your purpose by also permitting general public viewing?

Mr. FREITAG. The thrust is to be able to allow the educational material to be where the student is. I frankly do not care if my students listen to tapes while they are washing dishes for mom at night.

Mr. RAILSBACK. Do you all feel the same way?

Mr. FREITAG. There is another part to your question. I would like to get at the paying part. Again, allow a personal example that is more close to me.

In Pennsylvania we have an act, 372, that says any field trips conducted by the public schools, the parochial schools in our district must be offered the same opportunity to participate in the field trip-not at the same time, necessarily, but an equal opportunity.

I do not wish to argue the merits, intent, or anything else. I just want to mention the effect. The effect is that we have eliminated field trips because of the cost factor being accordionlike in nature. There is no way to budget it. The budget is really the issue. Everything else I think is begging the question-in an age when we are saying we have to take the child out of the classroom, take him to the resources in the community that are immediately at hand, because if budgetary considerations are being expanded in a way that has been difficult to deal with, we have nothing. It could very well happen that the budget, which is one pie, would have to be sliced that many more ways. The result would be nothing. We would be back to the old Latin classroom. where we have the book memorized, those couple of paragraphs, where the teacher would be frustrated in his attempt to bring in things that really turn on students.

Mr. RAILSBACK. Professor Raskind, may I ask you to elaborate a little on your objection to section 108 (g).

Mr. RASKIND. Congressman Railsback, I would call your attention to page 4 of my statement, and our objections are with regard to (g) (1) of section 108-appears the phrase concerted reproduction; in (g) (2) there is systematic reproduction. As the Senate report recognized, our position is that the legislative history can give a precise definition to that. So we urge that the difficult rule of thrusting upon the courts a serious interpretive problem that would endlessly engage the usage that it not be enacted.

Mr. RAILSBACK. Thank you.

That is all I have, Mr. Chairman.

Mr. KASTENMEIER. Mr. Danielson.

Mr. DANIELSON. Mr. Steinbach, in your brief opening presentation, you included language to the effect, whether you read it or not, at the top of the second paragraph-although this is the fundamental ad hoc position, the interest of each constituent group varies.

I would like to ask you this. Are there any fundamental differences, any fundamental conflicts of interest that have not been resolved between your constituent groups. I realize there are some.

One of you like one aspect a little bit, and then the others. Is there any language you agreed on which would be acceptable to your entire group?

Mr. STEINBACH. I would like our counsel to respond to that.

Mr. ROSENFIELD. There are eight fundamental ad hoc positions. Eight positions have been articulated by the group as a whole.

Mr. DANIELSON. The group as joint.

Mr. ROSENFIELD. Joint, with some groups being less tied to any one than others. Perhaps it would be helpful to you and the committee very quickly to state those eight positions.

First: The limited educational exemption which has been discussed as an expansion of the not-for-profit.

Second: The clarification of fair use, as has been discussed.
Third: The opposition to life plus 50.

Fourth: The waiver of statutory damages for innocent infringers. Fifth: The library photocopying situation, which was discussed yesterday and to which Mr. Railsback just referred, the opposition to 108(g).

Sixth: As Mr. Steinbach indicated earlier, that instructional television, not public broadcasting but instructional television, was to be treated as school activity.

Seventh: The opposition to a clearinghouse.

Eighth: That input into a computer not be infringement for the period of the study by the National Commission on Technological Uses, which this committee approved last time, but that output be paid for under the normal rules of the law.

Mr. DANIELSON. On those eight positions, all of your components of your ad hoc group are in accord. Is that correct?

Mr. ROSENFIELD. No. This is a majority are in accord on that.

Mr. DANIELSON. I am asking this for a very specific reason. We are only in our fourth day of hearings. It is apparent that it is never going to be possible to bring all the different interests under consensus in a copyright bill, let alone under sections 107 and 108.

If your group working together with eight components is unable to come to agreement on your own, little, narrow interests of 107 and 108, why obviously we are going to have to render a Solomon's judg ment pretty soon and jut cut it down the middle.

Mr. ROSENFIELD. Mr. Danielson, on 107 and 108, there is complete agreement.

Mr. DANIELSON. On these eight points, even your little group here, which is of common interest, could not seem to get together.

Mr. ROSENFIELD. I do not think that is so. I think some of the groups would give different priorities to different things. For example, there are some in our group who are not especially interested in one or another.

Mr. DANIELSON. I do not care about enthusiasm. I am wondering about fundamental differences.

Mr. ROSENFIELD. Fundamentally there is agreement within the group.

Mr. DANIELSON. Thank you.

The type of materials that you gentlemen have referred to, as I understand it, includes technical journals, but it also includes current periodicals, news magazines, literature, almost anything that comes under the heading of a copyright-any copyrightable material. Am I right in that?

Mr. RASKIND. That is correct.

Mr. DANIELSON. You are concerned about items in which the incentive is the writing of the material and the sale of copies by the author as a profitmaking operation as well as those journals which apparently

are fundamentally interested in disseminating technical knowledge, the technical journals. You are interested in all of these fields.

What is limited about the limited educational use to which you referred?

Mr. ROSENFIELD. Mr. Chairman

Mr. DANIELSON. Where does the limit come in?

Mr. ROSENFIELD. First of all, if you would be kind enough to look at the document

Mr. DANIELSON. I will look at it.

Mr. ROSENFIELD. First of all, we are not asking for the right to publish whole copies of everything that is available in copyright. For example, we are not asking for the right to produce things which are destroyed in the use-as witness, workbook exercises, standardized

tests.

Mr. DANIELSON. Consumables.

Mr. ROSENFIELD. That is right.

Second, we are not asking, and vigorously oppose, the right of any school or library or anybody else to copy for the purpose of compiling a new book. In other words, we do not want our people to go in competition by publishing a new book.

Mr. DANIELSON. On a duplicate of an old one.

Mr. ROSENFIELD. Except for a given use, no other use, and certainly not for sale.

Third, we are asking only for brief excerpts. We are not asking for the entire work. We are not asking, for example, for the right to copy "Gone With the Wind."

Mr. DANIELSON. Except there are exceptions that have been stated here today, such as a map, I believe.

Mr. ROSENFIELD. A short work.

In other words, what we are saying is a short, self-contained work. Mr. RASKIND. In the context, if I may, Mr. Danielson, draw your attention respectfully to page 6 of my statement, second paragraphwe do not seek the right to engage in multiple copying out of the context of research and teaching; that is the protection.

Mr. ROSENFIELD. All for noncommercial use, for scholarship and teaching use.

Mr. DANIELSON. To keep it in the field of education and research? Mr. ROSENFIELD. Precisely. That brings me back to Mr. Railsback's comment. We are not asking to make available things for the public as a whole. This is within the limited context of the teaching or research. Mr. DANIELSON. Thank you very much. Yes, sir?

Mr. WIGREN. May I say for the record, I think one of the ways we may distinguish the two, in answer to both of your questions: If we use the word systematic instructional activities, just as we have done in the case of instructional television. We are not asking for the world, we are asking for materials in the context of systematic use for instructional activities.

Mr. DANIELSON. I yield back the balance of my time.

Mr. KASTEN MEIER. The gentleman from California, Mr. Wiggins. Mr. WIGGINS. Thank you, Mr. Chairman. At the outset, I want to apologize to our distinguished witnesses concerning my own lack of knowledge with regard to this complicated field. At best, I am getting

my feet wet. If I ask questions which are overly simplistic, please bear with me.

I am still grappling with the concept of fair use. I think I can overcome that, and for purposes of my question, I assume that there is room in the law for some fair use of a copyrighted work. Now, I am beyond that, to the point of people in your business, educators or nonprofit institutions; and I understood that there is no difference in treatment between materials which are prepared essentially for your market. It is one thing to make a casual copy of a copyrighted work which is intended for general commercial distribution. I would regard that on a casual, one-time basis for instructional purposes to be fair. It is another matter to reproduce material which is copyrighted, and which was intended to be used and sold to nonprofit institutions for educational purposes. Is there any substance for that differentiation?

Mr. RASKIND. The paradox is the kind of people that are the users. If I am dealing with something in a course in Federal income taxation that has a narrow issue of income distribution, there may be a page in Samuelson's "Principles of Economics" that will illuminate that for the student. The law student is not about to buy a $12 or $14 or $16 book for one or two pages. The choice is that this material almost exclusively goes to consumers that are not potential subscribers or purchasers. This is how we see it.

Mr. WIGGINS. I understand the problem, although I would think perhaps that is what libraries are for; so that a student would not have to purchase a work if he wanted to refer to a citation.

Mr. RASKIND. On occasion, if more than a page or a short excerpt is used. I would ask the library to buy some copies and then put it on reserve. That is a universal practice.

Mr. WIGGINS. The draft language you have suggested, however, really does not distinguish between the kind of material I am talking about, that is instructional material. I am wondering about the wisdom of proceeding with that kind of a different treatment.

Mr. FREITAG. Congressman, we have school subscriptions to Time magazine at our high school that are ordered for the students in large quantity for the social studies class. Let us say, at the point that Der Spiegel magazine, which is its counterpart from Germany, and talks about a kidnaping in Germany, that I want to compare with my German 4 class the report. and the substance of the report, with that which was reported in Time. The likelihood is, the span of time is 4 or 5 weeks before I could put those two items together, and we subscribe to Der Spiegel from Germany. I have no access to those copies that were distributed to the students, and I could not go on the market to get that from the market stands. So I would take the article, which is likely a column and a half in that Time magazine, and put it together with copies of Der Spiegel, and put it out in front of the students and do that.

Mr. WIGGINS. You are drawing the line based upon the use-I am talking about the intended purpose. Spiegel and Time are not intended primarily for instructional purposes.

Mr. FREITAG. Those Time magazines that come to us are intended for student class use.

Mr. WIGGINS. Time publishes the mazagine for purposes other than classroom purposes. Of course, it may be used for that purpose. I am

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