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All we ask is that contemporary technology permit the same thing. Mr. ROSENFIELD. May I address myself to that?

Mr. KASTENMEIER. Indeed. To restate the question, it is to say to the extent that the present law is discernible, do you think it is a fair balancing of interest—the interest you represent, or the interest of proprietors?

Jir. ROSENFIELD, I would say “No” to both your original phrasing, and to your subsequent phrasing. It is not at all a fair balance.

Let me take the second first.

It is not a fair balance because our main point is that there is a basic ditierence between commercial and noncommercial, or nonprofit uses. Fair ue has been developed 98 percent in the context of commercial uses-a perfectly wise and sound rule. By being put into the context of commercial rivalries and competition, the character of the nonprofit, educational, and library use is perverted.

To your first question. Think--here, in Mr. Freitag, you have a head of a department of a small high school. He is a sophisticated person. He has people on his staff who are less sophisticated. Williams & Wilkins represents the judgment of 14 judges, if you include the trial judge as one of them. They split exactly down the middle, seven to Seven. If they could not make up their minds as to what fair use is, how can you get his teacher or for that matter the law school teacher to be able to make a judgment.

What we are saying, Mr. Chairman, is that your last report and the Senate committee report both say that there is no intention to change fair use. We do not know what it is, and nobody knows what it is. You get 5 lawyers in a room on fair use, and you have 15 answers.

We are saying that that does not make sense for a teacher.

Mr. KASTENMEIER. Both you and Mr. Raskind are calling for an explicit statutory definition of fair use, which will meet your needs.

Mr. ROSENFIELD. Yes, whether it is in terms of a limited educational exemption or some other form the committee can devise that is superior. The answer is “Yes."


Mr. RASKIND. If I may, the statutory definition, as in the present bills, section 107, should not be undercut, as it is, in my opinion, by section 108 (g) (1) and (2), and by some of the damage provisions. We would urge that as well.

Mr. KASTENMEIER. I understand.

My second question is directed, I think, to Mr. Freitag. That is, you raise the question in the context of the present law, requiring reassertion of the right at the end of 28 years.

I would want you--my question is, why do you feel that that is useful to you? Are you making the point that there is an interest that educators have in finding material or having access to it in the public domain?

Mr. Freitag. The original constitutional purpose was to get the material into the public domain. Anything that would serve to prohibit that, to further prolong the availability of material, it seems to us, does not advantage the public domain in any way.

If I may allow an extremely personal point of view, I would like to see 28 years reduced. I had some students that made their livelihood by designing covers for books, things of that nature, magazines and so

on. Their protection under law is far less than copyright provision at the present time. It seems to me their livelihood is very closely dependent upon their ability to develop their creativity and sell it. Their protection is far less. There is great inequity along the line as far as those kinds of protections-patent law, for one.

Our feeling that with the 28-year renewal, it has permitted 85 percent of the material to go into the public domain after the first 28 years. We would surely hold the line there.

Mr. KASTENMEIER. The purpose of the question is to determine whether there really is an interest in obtaining material-utility, a public interest in obtaining material earlier than the expiration of the life plus 50 or 75 years proposed in this bill. Whether there is a distinction between types of material, that which is valuable and for which a greater term or renewal term ought to be sought, and that which is not available to the original publisher, producer, creator, that also lapses into the public domain at an earlier time.

Mr. FREITAG. The 28 plus 28 is very cut and clean. The life of the anthor plus 50 is very difficult. It is hard to see how one could determine that the copyright guarantee has expired.

Mr. KASTENMEIER. Thank you.
The gentleman from Illinois, Mr. Railsback.
Mr. RAILSBACK. Thank you, Mr. Chairinan.

I would like to address this question really to all of you or to any one of you.

Is the thrust of your remarks directed against the payments or your inability to get access to material? Which is more important? Do you object to making any payments, or unreasonable payments, or is it the difficulty in getting access?

Mr. ŘASKIND. I would say, Mr. Railsback, our position is, in principle, there is an area of usage where payments do not begin, and that has been recognized at the outset, for the scholar to hand-copy a work.

Our second point is, we cannot do, as teachers and researchers, what we must do if we are always under the threat or clout or have to bear the full burden of being the party defendant in an infringement action. We need availability with some clarity under the statute.

Mr. RAILSBACK. You would, I take it, differentiate between a noncommercial extensive reproduction and the making of a single copy.

In other words, you made a distinction between noncommercial and commercial. But I take it that you would not carry that to a point where you would have extensive, multiple noncommercial reproductions. Or would you?

Jr. ROSENFIELD. Mr. Railsback, the answer is fundamentally that you are correct as to our understanding, but let me back up immediately to the term "extensive." We do not, for example, think-in answer to Mr. Pattison's question to the Department of Justice—that we ought to have 1,000 copies. The Department of Justice went further than we. We do think if Mr. Freitag or Mr. Hogan or Mr. Raskind have a class of 30, 40, 60, or 100, the class ought to have the copies--thus, it is a limited copying.

Mr. RAILSBACK. Would you feel the same way if copies were to be available at a reasonable amount and easily accessible?

Mr. ROSENFIELD. No; because then you would be destroying fair use altogether. The thrust of your remark, if you would permit me to put

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 inake 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.
Jir. 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 storefront 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 vears 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 1,100 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 116, 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.

57-786_76--pt. 1---20

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 105 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 judgment 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 cominon 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

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