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are fundamentally interested in disseminating technical knowlelge, 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. 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.
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. ĎANIELSON. On a duplicate of an old one.
Mr. ROSEN FIELD. 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.
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. WIGREX. May I say for the record, I think one of the wars ro 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. 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 oi ercome 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 bevond that, to the point of people in your business, educators or nonprofit institutions, and I understood that there is no difference in i reatment 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 alınost 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. ('ongressman, 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 subseribe 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
not talking about the use so much as the intent in the publication. You have casebooks for example, Professor, and it seems to me that those casebooks are prepared for your use almost exclusively; and that is the only market that the author has. If you erode that market, it is really immaterial whether you are profit or nonprofit, because he caters only to that market.
Nr. RASKIND. The students do buy the casebooks, and our membership of the 6,000 law teachers includes people who do get substantial royalties. There is recognition that the main purpose in publishing is to transmit one's ideas, and to get the nonpecuniary status of recognition, and so on. We do not undercut the casebook. Each of us assigns a casebook, and we use that. We are talking about the materials that are so broad and that are available outside the casebooks. We are not undercutting.
Mr. WIGGINS. You are recognizing, in a sense, that some published works are published with the purpose and intent of being used for instructional material. It does not matter whether it is used by a nonprofit institution or not. The fact is, it is intended to be instructional material. The only profit that the author makes is in the market.
Mr. ROSENFIELD. Mr. Wiggins, let me give you an example specifically so we can get to something in the nature of your law casebook. Let us take a biology textbook. It has a picture of a frog. Each one in the class has bought-either the school or the students--the book; they have it in front of them. They want to mark this picture to show certain things. There are a variety of ways of doing this. You can take a machine which does not reproduce this permanently, but puts it on the wall. Nobody can mark on that as the teacher is talking. You can make a Xerox or other kind of a copy-in deference to Xerox, we will say a photocopy.
Mr. WIGGINS. Of a frog?
Mr. ROSENFIELD. Of the picture of the frog in the biology textbook-and then, as the teacher is talking, the student will mark up some things so that he or she can understand it better and study it. Notice, our proposal says brief excerpts which are not substantial in length in proportion to their source. What good is it to the publisher to forbid that biology teacher in the laboratory from running off 25 copies of that diagram or that picture from books that everybody has, but they do not want to deface, so that they then can play with it as they work on it? And what we are suggesting to you is that we do not want to copy that whole book. It would be absurd for us to copy it. We may want to copy the diagram.
Mr. RAILSBACK. Would you yield?
Mr. RAILSBACK. Let me just ask you; does not section 107 protect you now?
Mr. ROSENFIELD. Frankly, we do not know. We do not know, and the answer is that the Supreme Court did not know, the Court of Claims did not know, and in part the difficulty is that the language of the fair use provision is couched in economic terms. We are not involved in an economic competitive picture.
Mr. RAILSBACK. Let me just suggest to you, after reading section 107, it does not just deal with economic use. The four factors to be considered: (1) The purposes and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality, and (4) then the effect upon the--what the fourth one does, the other three do not.
Mr. ROSENFIELD. The report of this committee said the fourth was the principal one.
Mr. RAILSBACK. That is not our report.
Mr. ROSENFIELD. May I make one more, one more observation before I yield to my colleague? We have had meetings with the various other groups involved with this from the other side, and invariably they say to us, if the thing that you want to copy represents a major expenditure cost for us, then the answer is no; so that it is not quite as simple as looking at this. Our concern comes from the fact that we have been told in certain major instances that we cannot do it. If you tell them we can do it, it may make a difference.
Mr. Wiggins. I am just trying to flush out the wisdom of an idea here. I gather from this interest that this is not a very good idea, to try to create a special rule with respect to instructional materials. Is that a fair consensus?
Mr. ROSENFIELD. In effect, that is what we are asking for. We are asking for a special rule for instructional materials, with research and scholarship included. We are saying that we think that we are in the public interest, different from the commercial community. That is why we have submitted to you a proposal that would make a different rule, precisely as you have said.
Mr. WIGGINS. To the authors of works intended for instructional use. you a re the commercial community.
Mr. Riskind. We really seek the function rather than the materials. It troubles me a bit, if I understand you correctly, Congressman Wiggins. We do not seek to label materials. For example, to get back to my example of copying a multi-volume service, say, in the tax field, in a tax course, that was designed for research purposes, it has interpretative materials. To take a copy and put it in the hand of a student may illuminate a class hour. By doing so, A, we are not taking instructional materials from copyright. We would not do that with a case book. By and large, the issue is not the material; it is the function for which it is used, and it is material that very frequently, if not always, is not designed for instructional use that we seek to enrich the classroom.
Mr. WIGGINS. You have been helpful to me. I will not abandon this entirely. But, I will want to think about it some more.
Mr. WIGREN. It would seem to me we are in the position of creating markets for that author. If we take the small excerpt and quote it for class use, and even duplicate it so youngsters may see this and read it and say, gee, I would like to read the whole book, we create interest in these kinds of materials. So I think we in a way are really advance men or salesmen, in a sense, for books of this kind that youngsters then would want to have in their own libraries as they grow older.
Mr. Wiggins. You are the wrong one making the argument. The author of the book should be making that argument.
Mr. WIGREN. Many of them do. They are not as much interested in the money that they get from the work as they are in the idea that their ideas are being used.
Mr. WIGGINS. I will listen carefully when the author's come up.
Mr. ROSENFIELD. Some of the authors in Williams & Wilkins said they were more interested in distribution.
Mr. Raskind. One of the large commercial publishers of the Federal Tax Service gives our law school, and any law school in the United States, that ask, one set for every 10 students, on the theory that if you allow the library to have these free, since we cannot afford to buy them, the students will get used to them while they are students. When they get out and practice, there is a recognition there.
Mr. Wiggins. I understand that there is truth in what you say.
Mr. Drinan. Thank you, Mr. Chairman. I wonder if anyone who chooses would respond to the reproduction of music. We are going to have testimony here later on, and the Music Publishers Association says widespread unauthorized photoduplication of our music could sap the lifeblood of our business; making the familiar argument that multiple copies for a band or orchestra in its school erodes their business. Who would want to respond to that? There are a few people in this room that have a slight interest in this matter.
Mr. Wigrex. Unfortunately, the Music Educators National Conference are not here today, and I cannot respond. Let me say in general, I think their position would be that certainly, there ought to be some opportunity, in the case of music, for youngsters to be able to listen to themselves, to make a tape of their performance, so that they can listen for self-evaluation purposes. This certainly ought to be allowed. Certainly, they are not asking for permission to vise materials and have them in an auditorium situation, where people are charged admission. I think they have some very unique kinds of concerns that they will be expressing to you. I know this whole matter is very important to school people right now; the business of being able to evaluate your own performance, listen to yourself.
Mr. DRINAX. That is not the point I was asking.
Mr. DrinAn. Under any exemption, you people are saying that a part or whole of short works can be produced; and it should seem to me that a teacher for a band, under an exemption here, could quite properly, I should think, reproduce that, and the band will play it, and the traditional royalty that goes to the composer simply will not be paid. What is the answer to it? Is that the ultimate intention or effect of the exemption that is being sought?
Mr. WIGREN. Again, I think the music educators would have to answer this. I think they would say they simply do not want to denigrate any concern of that type on the part of the music publisher. In fact, I think they have been very closely working with them.
Mr. DRINAX. Professor Raskind, did you want to comment ?
Mr. Raskind. I think that is outside the scope of what I would consider, and I think our group would consider, to be fair use. That is not educational if the band is playing in concert. They are not learning how to play, and I think that is an improper taking of the proprietor's rights, what we are talking about. If they are learning about fugues, and there is some music about the fugue that would be instructive for classroom purposes, some of that may be taken, but not for a performance.