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Such an exemption has no educational rationale. To the extent that school systems wish to reproduce educational audio-visual materials in whole or in part beyond the limits of "fair use," our members stand ready to discuss licensing arrangements which will permit authorized reproduction. Modern methods of reproduction for many types of audio-visual materials are such as to make such reproduction in whole or in part attractive to some school systems and many of our members have already entered into licensing arrangements which would permit duplication under a negotiated compensation formula.

ENDORSEMENT OF SECTION 107 BY AECT

We are pleased that the principal professional organization of educators directly concerned with the use of audio-visual materials in the educational process is also in support of Section 107, without weakening amendments. This support was expressed in a statement issued by the Executive Committee of the Association for Educational Communications and Technology (AECT) in May of 1975. (See Attachment A.) Some of the statements made by the AECT which were of greatest interest to us were the following:

1. “AECT endorses the criteria to be used in the determination of 'fair use' as contained in Section 107 of the proposed bill.

2. "Concerning the use of copyrighted works in conjunction with television, AECT proposes that 'fair use', as it has been outlined above, should apply to educational/instructional broadcast or closed-circuit transmission in a nonprofit educational institution, but not to commercial broadcasting.

3. "Once the doctrine of 'fair use' has been established in the revised law, negotiations should be conducted between the proprietor and user prior to any use of copyrighted materials that goes beyond that doctrine.

4. "A new copyright law that both users and producers can view as equitable depends upon the mutual understanding of each other's needs and the ability to effectively work out the differences. We will participate in the continuing dialogue with the Educational Media Producers Council and similar interest groups to establish mutually acceptable guidelines regarding the boundaries of 'fair use', and reasonable fees to be paid for uses beyond 'fair use.'"

LIMITED LIBRARY REPRODUCTION NOT APPLICABLE

After conducting hearings in 1973, the Senate added subsection (g) to Section 10% (Library Photocopying), to define and place limits on "systematic reproduction" which exceeds "fair use" or permissible use under other subsections of the bill. Subsection (h) was also added, exempting musical works; pictorial, graphic or sculptural works; or motion pictures or other audio-visual works from the reproduction rights granted in Section 108 except for providing archival copies or replacing a damaged work.

We feel both subsections are vitally important-(g) because it defines reasonable parameters for copying; and (h) because it is necessary to ensure the continued creation of the special kinds of works mentioned above. Because of the nature of audio-visual works-that is the manner in which they are used and the fact that one film, filmstrip or recording serves multiple numbers of users during each use-it is manifestly unfair to extend the rationale behind Section 108 to these materials. Each library traditionally buys only one or two copies of a film, filmstrip or sound recording. The library market is an important source of business to producers, though very limited. To permit copying of these audiovisual materials under Section 108 is wholly unnecessary to meet the librarians' need for some freedom to copy some literary works to effectively serve their users. Section 108 would, if extended to audio-visual materials, severely and irrevocably remove the library as a market for audio-visual producers.

LIAISON WITH OTHER EDUCATIONAL ORGANIZATIONS

EMPC has mounted a strong effort to establish and maintain dialogues with users of educational materials over the last three years. We have cosponsored over two dozen panels during state, regional and national meetings of educational groups to explain the producer's point of view and to listen to the educator's needs, Attachment B illustrates the format and content of these discussions. One of the most important results has been the development of licensing plans by major educational media companies to increase school districts' access to materials in an economical fashion.

I do not want someone to use my work. Still, there is st h
as having all kinds of materiais available, source mater. “
pubne interest. It is whether or not you consider the copynig i tee
an intelectual property right as such. I know that is the ae
British law. I am not so sure it is in our law. You may want to sa

to that.

Mr. PATHSON. Is that not the fundamental decision voi rao, 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 permet or not, or conditionally, or any other way he wants-and weathe object of that will, in fact, result in more dissemination of forat and more creative activity going on than if you give him torg all or give him a limited right!

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Mr. ROSENFIELD. The courts have answered that very dearly. T statutes until now, until this moment, give a presumptive ex's t monopoly. Presumably, you are not allowed to use one word. Lecor *** have said that is silly. It is not in the constitutional objective, w is dissemination; and therefore, the courts have developed the do tre of fair use, the purpose of which is dissemination. And what we se suggesting to you is that we are not talking about monopoly or monopoly. We think that, with due respect, is not the issue that yourself are proposing. The issue really is, what is the nature of the usable portion of the material, irrespective of the presumptive motopolyf And on that score, if an issue is couched in those terms, that is not exclusive, then the author cannot refuse, no matter how much le wants. Once he has taken advantage of statutory copyright, he cal; d refuse fair use, no matter how much he wants to.

Mr. PARTISON. 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 probat Y 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, world 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-assumir g it is not fair use and you ask the publisher, the author, if in fact y 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. MY RONYDin. Let us go back.

11. under whatever the rules are, it is not fa'r use, we may fee at you because it is not fier ine.

ADC Partson. Not under this question, because it is a given.

Mr. Rosa Nyond, If-t is not fert uw, the a „thor has a right to contend The prices. We prenot ar ging about it vat.

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Al Fornas 1 wor'1' ko to relate to von a onestion that ben alt sp tval point in terms of duration of a copyright the concern t'est

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 any one to use it all along.

Let us say a copyright does exist. It is a valid copyright and must be respected. The 25 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 dain or not. Life plus 50 really locks it up.

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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 co to renew it or wish to withdraw your copyright, let us know. I..at could be done very simply.

Mr. FREITAG. The pending legislation includes life plus 50,

Mr. PATTISON. It may be a good idea to require the author to state Lge and state of health at that point.

One other question. Suppose someone is so foolish to decide they a going to open up a school on a profit basis, for a variety of reasons. Mastey do not really expect to make a profit. Certainly they would rot 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 Laving 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 afers, e if we have the same school. We are two schools; one under one form nonprofit with a board of directors, and tries to raise mony from the public; the other profitmaking, which may or may not Be a profit. Actually, what is a proprietary operation; what is the ference to the student!

Mr. WIGREN. We are not asking for this limited exemption for any con mereial 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 t part they are parochial.

Mr. PATTON. I have a hard time making that distinction. I may gous 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 86,000 a year. That is perfectly possible.

Mr WIREN. Do you not think tax law distinguishes between them? Mr. PATTISON. For a variety of reasons, but not based upon what you dot the place,

I am mist wondering there are cof many proprietary sel ools,

Mr. Rin. Is that not why, exactly, the tax law d tuggisham ? The tax law distinguishes becae in one the teacher does not make personal profit, and in the other the proprietor does deper, dig upon whether or not his braness 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 t giving that kind of purposeful use. That is precisely why the tax T distinguishes the tax law and the Congress. The Congress, maks certain benefits available to nonprofit institutions of education wa it does not make available to profitmaking institutions.

Mr. PATTISON. Are we not talking about the dissemination of infe mation, 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 els tion or lower educational institutions and nonprofitmaking ones, a are saying that the Congress, in its wisdom, ought to make spal rules for the nonprofit, noncommercial utilization of this copyr material and let the commercial one go on its own.

What we are trying to point out in a sense is that the ad hoe erte mittee refuse membership to profitmaking schools that are everest 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 prot making 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 s 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. KASTENMFIR. We thank those representing educators here th, s 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 profour d 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 adenstments,

Ms. Linden?

[The prepared statement of Ms. Bella Linden follows:]

STATEMENT OF BELLA L. LINDEN, ATTORNEY, NEW YORK, N. Y.

Mr. Chairman, I am Bella L. Linden, partner in the law firm of Linden and Thoth New York City. I was counsel for many years for the American TextNews Pelli hers Institute (until its merger with the American Book Publishers ut into the association known as Association of American Publishers), a tether of the Panel of Experts appointed by the Register of Copyrights to eits der revision of the Copyright Law, and a member of the Committee on nce and Technical Information (COSATI) of the Federal Council for Serce and Techrology and Chairman of the COSATI sul-panel on rights of s to computerized information systems. My firm represents Harcourt Prie Jovanovich, Inc. and Macmillan, Inc., two of the five largest American peta atlong! publishers, However, I appear here today not on behalf of Macmillian Har curt alone, nor solely on behalf of educational publishers, Rather, I am here in the interests of our system of educational authorship and publishing. representing the sum total of the combined creative efforts and investments of the authors and publishers of this country's educational materials. Tata'ement is respectfully submitted in opposition to the proposal for a general educational exemption to the rights of authors and publishers established 1HR 223 Eight years ago, in your Committee's analysis of the doctrine of fair Be as extip) Tided in the Revision Bill and, in particular, its application to pot, il and classroom use, your Committee concluded that "a specific exempfor, freeing certain reproductions of copyrighted works for educational and wholarly purposes from copy right control is not justified " [HR_Rẹp No. 83. p. * At list week's hearings the Register of Copyrights stated that your report remains the basic legislative explanation of the content of the Bill, and The Daxis from which] the reports succeeding it in both Houses have all been drawn • • *” During the Intervening years, the only relevant fact to have changed le the further proliferation of devices for unauthorized, inexpensive and rapid duplication, use and transmission of copyrighted works,

Yet we find ourselves still debating the request for the so called “educational

At bottom of course, this dispute is based on economle Interests, Authors, pestaden, educators, Ibrarians, all must live on a budget I will certainly envde that anything which may be required free of charge Imposes no burden me a budget, so it is not totally unnatural for users of copyrighted materials to je *e unpaid for duplication privileges. Textbook budgets are extremely low,

on a national average, to between two and three percent of a « annual budget. Photon pying eoipment and other reproduction storige retrieval devices are not part of a school's textbook budget, but come sfer the brad umbrella of “supplies" Thus, the natural and landable tendency • god teseberu is to seek smplementary material vis the Xerox and tape Tres Less Inndable however, is the Insistence of some that authors and starwalon'd not be paid for such uses of their works

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mghout the revision program the authors and pu?ishers of educational Bater als have agreed with the pripottle of full and prom uit gecesi di ecranio teď. Postertal for adrovi ħal the T} is is the very reason for their creative efforts and elabre Clear's there is a significant difference between neems to eduenti e al watertale which we wholeheartedly support, and unpaid for du lea', n of tx e

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ste continually offered to work with the proponents of the edn, jet as urged by your Committee in 1967, "to work out means by which nfor timom betond fair use can be obtained easliv n'd quick'y and at Tað er frem” THR Rep No 83 p. 33] In fact, in ny first appetito 1

tre in 1965. I offered a specifie proposal for a clearing house systemEK fra'n. at ten years during which time many educators have bety chy velord their demat de for adequate conpetration for Helen The pr prests of De edtevioral exemption have song) ↑ Bat Cerisestion of copyrighted educational n n'eria's win Ritter 11 an acvent our frylation, those in favor of the education * provision for sweeping appropriation of copyrighted works To strate their mocaled pight by referring to the individual metroj as freely an article from a newspaper for a homework assigy ment. We are Text, t-11/12 at because the patient has a headache, the cure is to chop off him Authorship of an educational work totally ental's many thomastada, of hempa over a period of several years doing library and other research, field testing and

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