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consulting. The authors of educational works are not highly publicized persta. ties who write best sellers and appear on television talk shows. Many are pra ticing teachers. Few become rich as a result of their writings. To the extent to it is possible to describe a typical textbook author, he or she is a member faculty of a highly regarded college or university, enjoys an excellent reputat in his or her field, but is little known outside of it and counts on copyright royalto to pay for braces for the children's teeth, a second car for the family or a vara” or study year abroad or some similar expense. More often than not, royalties i educational works are split between several authors.

By and large, it is the publisher who discerns educational needs, sexrces of and selects the author (or, more commonly, group of authors) to create the bran and materiais to satisfy the requirements of schools and universities, and unita and supervises the planning, design and creation of the works. The pritus. 4 venture generally encompasses continuing review and evaluation by Line teachers and curriculum specialists, supervisors and consultants and field testa throughout the country. The role of the American educational publisher e «l. and coordinates various functions of writing, artistic design and technica. *ka. * in applied research, packaging, consulting and training as well as manufatun marketing and distribution.

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Educational materials today are commonly produced in sets or programs in tegrating various forms and media such as texts, teachers' manuals or edi, 15, filmstrips, slides, sound recordings, cards, charts, puzzles, instructional ge duplicating masters, transparencies, testing materials and the like; simalarıy these programs frequently represent the entire range of literary authorship) lis ing fiction, non fiction, prose, poetry, music and drama. It is not at all uf00fan fa for an educational publisher to invest more than one million dollars in pre development costs alone for the creation of a program which will take five of ten years to reach the market and another three to five years to gain acce; 'a - * and even begin to pay off the investment. In the case of one elementary and junior high school science program with which I am familiar, a total of fortet years elapsed between the time the program was conceived and the first teki man were published. The program virtually revolutionized the format and concert d elementary school science books. The efforts and investments of authors and edi cational publishers do not stop upon publication, as subsequent editions are evi tinually revised in light of feed-back from the field and changes in pumamia sẻ techniques,

Commonly, major portions of the expenses of educational publishing are attributable to payments made to other publishers and authors for the use a'l integration of portions of prior works in new programs. In the case of one recei elementary reading program, permissions fees paid by the publisher excreued $100,000 and, it is estimated, comprised more than 30,000 permissions granted The administrative "burden" of clearing the permissions did not impair the development of the program.

We cannot emphasize often enough that many of the products of educational publishing, such as treatises, texts, workbooks, tests, fle cards, anthologies, encyclopedias and other reference works, are designed for use in piecemeal fashion rather than cover-to-cover reading. To permit unauthorized plate duplication of copyrighted works for the purposes of teaching, education aŭl research is a request, in unalloyed English, to permit the educational evamunity to engage in on demand reprinting, on a daily basis, of those portions of copyrighted educational, scientific and technical works which they wish to use and to circumvent payment to authors and publishers whose elite market for such works is that same educational community.

In many respects educational publishing exists apart from other businesses, The authors and publishers of such works are in a very real and esential sense engaged in pable service. For education Iself to progress, educați nal authors and publishers must ant.e.pate and effectively serve a broad ra of instructional and scholarly needs To contide to serve this fun fun in today is scurty, they must be adequately remunerated for the dupù, atiền để their work product.

Ahoigh on a stort term beis an "educational exemption" may awar desir, bie to note as a dig the budgetary is of the educational comm.. it is car that the longer term, e vw'd be to d se and publishers from investing in fac lyn terial, Ne feral 1.0 o wuch

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ef irtel'ectual work product are the system of economic incentive to writers prved by copyright and the free-enterprise publishing system which enejasses multiple outlets for distribution. Thus, authors are encouraged toper' dish their thoughts, and the views of an author which may be antithetical to ote publisher (or be considered by him to be unpublishable for economic, empetitive or other reasons) may still receive exposure through publication by at ther.

If appled to the free storage (input) of copyrighted materials in computerhed formation systems the proposed exemption would be in complete derogn of the judgment of both Houses of Congress as expressed in the recent passage of a law establishing a National Commission on New Tech2° g ml Uses of Copyrighted Works. One of the stated purposes of that Commission is to study, compile data on, and make recommendations to Congress orening "the reproduction and use of copyrighted works of authorship ... In eonjunction with automatic systems capable of storing, processing, retrieving, as-1 transferring information

Proponents of the educational exemption have repeatedly emphasized their "'. aliotai" purpose and its relation to the public welfare. Of course educata is in the public interest but under our system this interest is served is a private and commercial enterprise which requires a profit to survive. The rary to this country's educational system, educators, scholars, and school en will be material under the erosion of copyright which will result from the proposed exemption. This was fully recognized by your Committee In 17 wien, after considering arguments for a specific educational exemp femester ding beyond fair use it stated:

"De fullest possible use of the multitude of technical devices now available to education should be encouraged. But, bearing in mind that the basic con***„final purpose of granting copyright protection is the advancement of learng the emanattee also recognizes that the potential destruction of incentives to a choristap presents a serious danger" [HR. Rep. No. 53, at p. 31]

TESTIMONY OF BELLA L. LINDEN, REPRESENTING EDUCATIONAL PUBLISHERS

M. LINDEN. Thank you, Mr. Chairman.

I shall not read my statement at all, but submit it for the record, *e reason being that everything that I am saying in my statement, I dare say everything that the educators have said this morning, re have all been saying for the past 10 years, at lea-t.

wn sently, in order to save time, all I would like to do is point csily five or six actually it adds up to seven statements I would particularly ble to draw to your attention.

One is that the pain of t'e eduent;oral community, as repred by the people who testified here this mornig, and by the arans who test fod yesterday, 10 years ago was that photocopying re in a very limited way. Ten years ago they said that copying est 50 cents a page; then fore it is cheaper to buy a book than to *py a book; thers fore it is cheaper to buy a journal article or t, or by the journal in-tead of doing te paotocopying,

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g, with all due respect, has changed in the course of the 10 wita re pet to the philosophy of the purpose of copyr g' t. All has changed is the ripid pro feration of te inologi ai des, es ation tape. Xerox eqiprent, so on and so forth, and in on storage and retrieval systerton,

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I prefer ton of all this has met in the eves of the editors I sevin tist beca se there is a more rap. 1 technique of a biov e duvetanation of information, the payment shen d be Ln, tod totse tevi.no.ogv.

No one here has ever spoken to the Congress that they . -. insist that the Xerox equipment or tape equipment should be to the nonprofit institutions gratis. What they have all insisted is that the intellectual material, without which the techno dissemination hardware would be relatively useless, should be ge gratis.

Again, I say with great sadness, we see awe and respect for targ property, and we see less than respect for intellectual creativity, ... in my view, may I suggest-and I am sure it is shared by ali be is the cultural and most valued part of the heritage.

I would also like to point out that what you are doing is not eval." ing a Williams & Wilkins case of past transgressions where the is limited to one publisher and certain specific issues. You are asked to legislate exemptions with respect to all future creat.You are being asked to suggest a system of modifying the creat and packaging of intellectual information for the educational a research community. You are being asked-there will be no "a't elysmic disappearance of future creativity overnight. If you do p these educational exemptions, what you will have created is the g ual but inexorable erosion of the competitive entrepreneurial prol. tion of intellectual material for the education and research on munity of this country at the very least.

One or two of you noted very aptly that the educational mater I will hand out some-that consist of 150 items in a children's rea program of all kinds of nonfiction, small portions included. I is the entire market for the educational producers and the des of material. I will not dwell on that point.

I would merely like to add that yes, as the educators have sa this morning, it is a question of budget. What they have referer to is the intellectual property budget, which is 2 or 3 percent, at t. # most, of the entire school budget. They are not talking about t teachers' salaries or carpeting or Xerox equipment. All they are ta s ing about is the minuscule proportion of the budget that goes fit intellectual property.

With respect to the problems of fair use, may I suggest, wi all due respect intended. fair use, as I sat and listened to the gre difficulties of defining fair use, it occurred to me-and I meat. I disrespect to this committee or to anyone in this room-if the gun, Lord had promulgated the statement, love thy neighbor before t committee at the time of Genesis, you would still have people žem defining what love is, seeking guidelines with respect to which neg bors are intended to come under the stricture to love thy neg and there would be a rising clamor for exemption of certain L. 2 borhoods from the statement of the good Lord, because it was the public interest to exempt those neighborhoods.

May I suggest in all seriousness, there is no precise language in 2 statute of any kind that has ever been promulgated that is not st to different interpretations. That is why, thank the Lord, there a

legal profession, and thank the Lord that is why there are congresses, and that is why there is ongoing revision of statutes, just as the

act of 1909.

Mr. KASTEN MEIER. I would point out if the bill before us had been in effect at the time, and He had set it down already, the Lord would still have life plus 50.

Ms. LINDEN. That is true. We also gave it to Mary Baker Eddy, if you recall.

May I suggest, furthermore, that fair use, like all other statutory language, is susceptible to interpretation. We all know what love thy neighbor means, whether we obey it or not. We all know what fair use is, and we all know what the four criteria are.

May I also call to your attention that the bill now before you has a series of compromises of exemptions, which we have reluctantly accepted, because this is the era of compromise. This is the era where people have less regard for private intellectual enterprise than they d.d generations ago. We accept it. We are willing to live, survive, and struggle under it. We are asking for survival of the private intelleetual authorship and publishing industry.

In conclusion, may I say that if any of you would be good enough to look at my testimony given before this very committee in 1965, we did in fa't offer a clearinghouse. We made the point then we make the point now we have made it continually. We are agreeing tat the copyright law is intended to grant the right of access. We are agreeing that access is the essence of intellectual information and the whole purpose of publishing and production of audiovisual

materials

What we are saying, under our form of government, and our philosophy of free dissemination of competitive ideas, we do not wish to end up in a decade or so with a nationalized educational publishing system and with limited author-hip under that kind of a budget.

I want to include my one statement —yes, we sympathize that the elators and librarians have problems balancing their budgets. We a'! do. And we know that if any of us could only get for free that which we in our society have to pay for, we would find it a much more easy tak to balance our budgets, May I suggest that the 1brarians and tes her budgets should not be balanced at the expense of this intellee tal property which is essential to their ongoing teaching process. Pat, I submit, in the public welfare,

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Mr. KARTENMETER. Thank you, Ms. Landen, for a very strong

Le Car will personally say it is good to have you back after 19 Years Having seen you a number of times in the context of copy g't, yenkeen er ofinous contt.butions in the field.

Next, Mr. Moeil.

The prepared statement of Mr. Meell follows)

STATEMENT OF EDWARD MEELL ON H.R. 2223 ON BEHALF OF THE EDUCATIONAL MEDIA PRODUCERS COUNCIL

My name is Edward Meell and I am Chairman of the Educational Medis Pas ducers Council (EMPC) and Editorial Director of the Film Division of M-Gran Hill Book Company. I am appearing here today on behalf of EMPC and wi ́s me is Ivan Bender, Chairman of the EMPC Copyright Committee and Assstart Secretary and Legal Counsel of the Encyclopaedia Britannica Educat, a. Corporation.

We are here to present our views on H.R. 2223, the general copyright revis a bill, and specifically on the issues involved in the educational use of copyrig" "ad audio-visual materials. We support the bill as introduced and oppose anet!! ** which would weaken the protection provided in the bill for audio-visual materia *

SECTION 107-FAIR USE

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We specifically endorse Section 107, which writes into statutory law the mos principles of "fair use" as that doctrine has been interpreted by the contai individual cases over the years. We feel that Section 107 represents a fair e promise between the creators and users of copyrighted educational materia » a compromise which has been carefully negotiated over the past several year Our industry is pleased with the recent technological developmen's m promise to make ideas and information more accessible to scholars, tra hem and learners. These developments promise also to expand the role and contro tion of educational media producers to the educational process of which we an integral part. But in order to maintain and increase the incentives frite creation and production of quality materials for our schools, we must not dis *.* the statutory protection for intellectual products to which any author, ervan or artist is entitled.

NO NEED FOR AN "EDUCATIONAL EXEMPTION"

At the time that this testimony was prepared we were uncertain as to whether a broad educational exemption, to be added to the bill as it now stands, wonde proposed by one or more organizations in the light of the positions taken by *** Association for Educational Communications & Technology (see Atticment A The language of previou-ly-introduced amendments, however, in our view pro vided far more than a "limited” exemption. Among other things it would it** use--for noncommercial teaching, scholarship and research not only of traf excerpts" from copyrighted works but also of the whole of short literary, Ischut ki and graphic works.

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Let us take up these two concepts in order, as they would apply to educati nal audio-visual materials.

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The concept of "brief excerpts" (which are not substantial in length in pr 4-7tion to their source) is very difficult to apply to educational audiovisuel rials. A half hour education nature or biology film, for example, may be around an exceedingly difficult photographic sequence which may taxe # of work to eapture, but may in the final product only take up a mirnte or tha of time in the film. To permit this minute or two to be reproduced freely n? an educational exemption would very likely destroy the economie viability of the product.

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The concept of exempting use of "the whole of short, literary, pictorial * 1 grachde works" presents difficulties equally great in relation to audietando materials. For example, is a short filmstrip a short work? Is a five rinite mit cassette a short work? Is an eight minute 16mm film a short work? If so it w very largely destroy the entire market for short filmstrips, essettes or flak a they would be produced in extremely small numbers or not at all

We trust that this subcommittee will not accept the idea of an educatina exemption. If such an exemption shon'd continue to be pressed by ope or m organizations. If the exemption is adopted, few companies will be at e to risk Puking the carital and time investments needed to produce educational E 1** rials and will turn their efforts to other kinds of products and markets In a b a situation it might well happen that only with government sub-ilies round ve producers in the private sector afford to finance the devel puent and distrit af © of educational materials.

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