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.

Mr. 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. WIGGINS. I 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. This is the report of the Senate committee.
Mr. RAILSBACK. Do not pay any attention to the Senate.

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 are the commercial community.

Mr. RASKIND. 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 class

room.

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 authors 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. KASTEN MEIER. The gentleman from Massachusetts.

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. WIGREN. 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 use 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. DRINAN. That is not the point I was asking.

Mr. WIGREN. It is the use of music materials.

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. DRINAN. 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.

Mr. DRINAN. If that is outside the scope, I am sure the music publi-hers will be happy to hear that.

Let me shift to authors. Several authors earn a major portion of their income by licensing the reproduction of their poems or articles or short stories for anthologies. They fear, and testimony will be given later this morning-they fear if a teacher, without paying the usual small fees that go toward anthology, if a teacher reproduces for learning purposes, then the market for such collections of short stories or poems will be eroded.

Mr. FREITAG. I Would like to say, I perceive right away the use of that kind of thing for me, and I hope the exemption would include it. There is a time when some songs are also viewed as poems in one language or another, several that are used in class; and if I find an American version of that poem that strikes me as being insightful to the student, and make copies for them and put it alongside the German version, and we start to look at the adequacy of one language over another-which is more beautiful, which says something that the other cannot possibly say-I would hope that the exemption would continue to give me the right to do that for a short work.

Mr. DRINAN. How about the individual author who otherwise, except for the exemption, would be getting a small fee, and that is the basis of the copyright privilege; that it is in the Constitution, according to their argument that really you have not responded to? Their argument is, this little fee I get rewards my creativity; and this exemption, even for nonprofit or religious groups, should not take away that which the Constitution gives me.

Mr. FREITAG. I perceive two possibilities. Number one, the published item might occur in a cultural workbook, which I can buy for the department, and then do; or number two, I would have to go some kind of fee route, which in all likelihood I would suspect would mean I would have to decline using it.

Mr. DRINAN. That is no answer. You are saying, we will not give him any money. What does this copyright mean to him? You have just taken the copyright away.

Mr. FREITAG. I thought I was speaking to the exemption for educational purposes.

Mr. DRINAN. You keep asserting that it is good because it is good. It is not good for the owner of the copyright.

Mr. ROSENFIELD. The answer is it would not be used. The result is, that neither the students nor the author profit. That is the real explanation of this. When Mr. Frost read his poem at Mr. Kennedy's inauguration, the next day every school in America turned to Frost's poems. If they had had to buy the Frost poems first of all, they would have to buy the whole set. They do not sell one volume. If they had to buy them, they would not have used them. Mr. Frost would not have gotten anything. The students of America, would not have been enriched by the Frost poetry. Who would have gained in that instance? Neither Frost nor the students.

Mr. DRINAN. Are you telling me that they just went and reproduced the poems of Robert Frost without buying the book, and without giving him the copyright?

Mr. ROSENFIELD. That is right. Schools around the country took the poem and studied it the next day.

Mr. DRINAN. Just that one poem?

Mr. ROSENFIELD. Either that or one other poem, but not the Frost volumes. They may have taken another poem to show the beauty of the Frost style. I am trying to meet your point head on; I hope I am. Mr. DRINAN. You are not doing very well.

Mr. ROSENFIELD. Let me try again. You are asking, what about the royalty to the author? The answer is, he would have gotten no royalty anyway. It would not have been used."

Mr. HOGAN. I recently had the chance to serve as an advisory editor for a high school/junior high school anthology series. There are a number of new poems in those anthologies. As I recall, the permission fees of those across the board were about a quarter of a million dollars. In most of the new poems that find themselves in anthologies, to be honest with you, Father, were probably Xeroxed and tried out in classes here and there, to see if they would be satisfactory. And having been found that they were, the authors are now making money they would not have otherwise.

Mr. DRINAN. If you carried your exemption through, that quarter of a million dollars would never get to the authors. You have trapped yourself. Come on-you are saying that schoolteachers advertise these poems. Pretty soon, people say, that is a nice poem; and under your logic, this poem now will make it into the anthology, but there will not be any royalty fee.

Mr. HOGAN. I think, if I recall correctly, we were saying one of the things we agreed on is not making domestic anthologies available.

Mr. DRINAN. I am all for the diffusion of knowledge. But there are a lot of authors and composers out there. They are going to testify. I just wanted you to meet the argument as head on as you can. You want the diffusion of knowledge. They want the same thing, but with their own particular, constitutionally protected rights guaranteed.

Mr. FREITAG. Mr. Drinan, I kind of sense the presumption that we really wanted to do all this duplication. As a teacher, I really do not. Mr. DRINAN. I used to be in the business. I had that temptation all the time. Right, Professor Raskind? I did as much as I could.

Mr. FREITAG. Temptation aside, what I do not have is the time to go through all that, and I go to the Xerox and run it off, and have it all done. There is a lot of ticky-tacky I can do without. I also do get on the phone and talk to the publisher, and say, what is lacking in this edition is cannot we do something about it? Sure enough, I can say with some success that revisions have incorporated our ideas, and we bought this edition and stopped having to go out and do it on our own. I think a very valid case can be made for trying out in the classroom what does work. Perhaps under an exemption, we can eventually effect its inclusion in the textbook which we really choose to buv, workbook or so on.

Mr. DRINAN. That is really no answer to say, let us try it out: maybe we will popularize it. One last point before my time runs out. I would suggest to you gentlemen, insofar as you can concentrate on the fundamentals, I do not think you all agree with the NEA-proposed statute here. I am not certain you would all agree with what Professor Raskind says. He says no injuctive relief whatsoever. In the eight things that are here, if you could somehow have a statute upon which