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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. DRIYAN. 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 tickv-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. Deinan. That is really no answer to sav, 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
Four 39 organizations agree. That certainly would give us a focus on how we are going to go on this thing. Thank you very much.
Mr. KASTENMEIER. The gentleman from New York, Mr. Pattison. Mr. Parrison. Thank you, Mr. Chairman.
I feel a little bit like Alice in Through the Looking Glass, when the Queen, as you will recall, said when I use a word, it shall mean exactly what I intend it to mean, nothing more or less. I think that is our problem here for the definition of the word, “fair” use. I would like to get to a couple of examples that were used. The one example that was used about the occasion where the law professor wanted to use a particular article, and asked the author for permission. The author said, that will be $150, and they decided not to use it. It seems to me that goes to the very basis of the copyright law. If the author says to you he does not want you to use it for anything less than $130), is that not his perhaps frustrating privilege to do that? Has it erer been in the copyright law that we say, we are going to determine what somebody is going to charge? Suppose somebody does not want it to be used at all? Suppose I have a poem I do not want anyone to use, to publish anywhere I am ashamed of it?
Mr. Riskind. That is a balance of interest. Society has an interest; ('ongress has in many instances legislated, as in the Iligher Education Art, a shared resource use-as Father Drinan says, a balance of absolutem. Our position is, over the period of time, a fair use doctrine will (0) Inect that interest by allowing the students to have the material, and ( ) in the long run, some of them would become subscribers, or the library will become the purchaser of one more subscription. It is not a zero-gain situation for the people who have the proprietorship. We are mindful of it and sensitive to it.
Mr. Pattisox. When we get to the question of whether the price is fair, is not the alternative to that to say somebody fixed the price somewhere along the line? We either fix the price, as you say, or the author sets the price in a ridiculous way, perhaps.
Mr. RASKIND. That raises a troublesome issue. If you allow full sweep as to price, the result you get is not socially desirable. That is the issue.
Mr. Pattison. Let me get to another issue. In Mr. Freitag's statement, he talked about teachers, authors, to say they are as much interested in seeing their works used and their ideas disseminated, and I agree with that. As a politician, we do not get too many copyrights for things. We say our interest is in having those ideas disseminated, and we publish a lot of things. What is to stop an author who feels that way to simply insert a wajver into his work and say, permission to copy is granted; and that is done lots of times, is it not ? Would that not solve the problem, is that let that author make up his mind about that?
Mr. Wigrex. Yes, it would. In fact, in many of our educational publientions, we are putting on the verso page at the bottom that any part of this may be copied as needed for instructional purposes, but that we would appreciate being given at least credit as to the source. We are practicing what we preach in this particular instance here, because we think that is important. The dissemination of knowledge and the access of information, in a free society, is an all-important thing. It may be true, as you said before, that an author can say, I do not want someone to use my work. Still, there is such a thing as having all kinds of materials available, source materials, in the public interest. It is whether or not you consider the copyright to be an intellectual property right as such. I know that is the case in British law. I am not so sure it is in our law. You may want to speak to that.
Mr. PATTISON. Is that not the fundamental decision you make, when you say you are going to create a monopoly interest on the part of a person who creates something, and allow him to give permission or not, or conditionally, or any other way he wants and what the object of that will, in fact, result in more dissemination of information and more creative activity going on than if you give him no right at all or give him a limited right?
Mr. ROSEN FIELD. The courts have answered that very clearly. The statutes until now, until this moment, give a presumptive exclusive monopoly. Presumably, you are not allowed to use one word. The courts have said that is silly. It is not in the constitutional objective, which is dissemination; and therefore, the courts have developed the doctrine of fair use, the purpose of which is dissemination. And what we are suggesting to you is that we are not talking about monopoly or no monopoly. We think that, with due respect, is not the issue that you yourself are proposing. The issue really is, what is the nature of the usable portion of the material, irrespective of the presumptive monopoly? And on that score, if an issue is couched in those terms, that it is not exclusive, then the author cannot refuse, no matter how much he wants. Once he has taken advantage of statutory copyright, he cannot refuse fair use, no matter how much he wants to.
Mr. PATTISON. We are adopting the concept of fair use in this statute. That is not the question. We have a situation here that I posed, where presumably someone thought that it was not fair use, or it probably was not fair use. They asked the author for permission. He said no.
Mr. ROSENFIELD. That is exactly what happened in Williams & Wilkins.
The thrust of your questions, if I may respectfully indicate, would be to put the burden on the copyright holder by saying let him settle the price. We are saying to the degree it is fair use or exemptible, the publisher has no control.
Mr. PATTISON. We agree completely on that concept, except no one seems to agree on what fair use is. I am posing the question-assuming it is not fair use and you ask the publisher, the author, if in fact you can use his piece, and it is not under the fair use doctrine, then the objection was made that his price was too high; he did not therefore benefit, and the students did not benefit.
I am presuming as a part of my question that it was not fair use. Mr. ROSENFIELD. Let us go back.
If, under whatever the rules are, it is not fair use, we may fuss at you because it is not fair use.
Mr. PATTison. Not under this question, because it is a given.
Mr. ROSENFIELD. If it is not fair use, the author has a right to control the price. We are not arguing about that.
Mr. Pattison. Fine.
Mr. FREITAG. I would like to relate to you a question that brought up that point in terms of duration of a copyright-the concern that I have that the life of the author plus 50 prevents the author from having a second choice to decide whether or not he wants to continue the material under copyright. Anybody from the minute they publish can freely grant the right to anyone to use it all along.
Let us say a copyright does exist. It is a valid copyright and must be respected. The 28 years, which must then be renewed, and which is renewed in only 15 percent of the cases, gives to the author, the copyright holder, a chance to decide whether this should go into the public domain or not. Life plus 50 really locks it up.
Mr. Pattison. We could create that rather simply by saying that after a period of time a notification goes to the author; if you do not (500- to renew it or wish to withdraw your copyright, let us know. That could be done very simply.
Mr. FREITAG. The pending legislation includes life plus 50.
Mr. Patrison. It may be a good idea to require the author to state his age and state of health at that point.
One other question. Suppose someone is so foolish to decide they are going to open up a school on a profit basis, for a variety of reasons. Maybe they do not really expect to make a profit. Certainly they would not if they had any intelligence. Let us suppose they want to do it for a variety of reasons--they want that form of operation rather than having-having the kind of form of operation you have with a nonprofit corporation that has a lot of legal constraints in it. You want to open up a school for profit. There are many of course. What is the difference if we have the same school. We are two schools; one under one form--nonprofit with a board of directors, and tries to raise money from the public; the other profitmaking, which may or may not make a profit. Actually, what is a proprietary operation; what is the difference to the student?
Mr. Wigrex. We are not asking for this limited exemption for any commercial school whatsoever.
Mr. PATTISON. Why not?
Mr. WIGREN. We think the nature of the use is such that if they are a commercial operation, unlike a nonprofit institution, they therefore should pay. They get money from their students to operate the school.
Mr. PATTISON. So does Cornell.
Mr. WIGREN. In the other instance, these are public schools; for the most part they are parochial.
Mr. PATTISON. I have a hard time making that distinction. I may choose to send my child to a school which is very successfully being run by a profitmaking operation and cheaper, let us say, than the nonprofit school. Let us say that the tuition at the profit school is $500 a year, and at the nonprofit school the tuition is $6,000 a year. That is perfectly possible.
Mr. WIGREN. Do you not think tax law distinguishes between them?
Mr. PATTISON. For a variety of reasons, but not based upon what you do at the place.
I am just wondering—there are not many proprietary schools. Mr. ROSENFIELD. Is that not why, exactly, the tax law distinguishes? The tax law distinguishes because in one the teacher does not make personal profit, and in the other the proprietor does depending upon whether or not his business is profitable.
In other words, in one you have a situation in which the copyrighted material is being used to make a buck; and in the other, you are not giving that kind of purposeful use. That is precisely why the tax law distinguishes—the tax law and the Congress. The Congress makes certain benefits available to nonprofit institutions of education which it does not make available to profitmaking institutions.
Mr. PATTISON. Are we not talking about the dissemination of information, and how it is disseminated; we do not really care, do we?
Mr. ROSENFIELD. Yes, we do.
We are saying for the purpose of this special exemption, just as Congress has said we are going to support nonprofit higher education or lower educational institutions and nonprofitmaking ones, we are saying that the Congress, in its wisdom, ought to make special rules for the nonprofit, noncommercial utilization of this copyright material and let the commercial one go on its own.
What we are trying to point out in a sense is that the ad hoc committee refuse membership to profitmaking schools that are excellent schools for this very reason. It is not that we are thinking of it as an afterthought. This was a fundamental distinction between the profit and the nonprofit in the character of the use involved.
As a matter of fact, Mr. Congressman, 107 itself speaks of the purpose and character of the use. The purpose of the use in a profitmaking institution is to make a buck. Sure you make a buck by disseminating education to the students. The purpose is to make a buck.
Mr. Pattison. Maybe. I can form a number of corporations, notfor-profit corporations, with a small group of people involved, a notfor-profit corporation, and charge tuition, and not make a profit at all, because we just adjust our salary dependent upon what we make. There is no profit at all. It comes out to zero at the end of the year
You can do the same thing with a for-profit corporation.
You are not going to tell me if a for-profit corporation incurs a loss, in the time that they incur the loss, you are not going to let them off the hook.
I think the distinction is based upon the use, not upon the nature of the institution. That is all.
Mr. ROSENFIELD. We thought we were asking for less than you were pushing us to.
Mr. KASTEN MEIER. We thank those representing educators here this morning, and educational uses, and the copyright bill. We thank you for your very helpful testimony.
The Chair would now like to call those who represent publishersBella Linden, Paul Zurkowski, Ernest Farmer, Irwin Karp, and Edward Meell—to come forward.
The Chair would like to express regrets that it is so late in the morning in reaching you. There has been, evidently, a very profound interest in the subject from the questioning of those who preceded yon.
Nonetheless, your testimony is equally valuable to us and sought after. I only regret that it is late. Perhaps hereafter we can make other adjustments.
Ms. Linden? [The prepared statement of Ms. Bella Linden follows:]