not know how the members of this panel feel. My point is, teachers are profit motivated. It is nonsense for them to sit before you and make believe that they all go to work everyday for the sheer joy of it without expecting to be compensated. Of course they do, as do the rest of us.

All that authors are asking for is that you do not write into this law exemptions which would seriously injure their right to derive some reasonable compensation for their work. You have been told that there is an educational exemption based upon a "for profit" concept; that for some reason, those uses which are made by nonprofit institutions are exempt and those by profit institutions are not.

That is not true. It is not true because as your committee pointed out, it is clearly the law in the present act that there is no such thing as a nonprofit exemption for reprinting copies of library or musical works. The Copyright Office concluded that on the basis of a study which it made at your request, and you reaffirmed it in your report.

I would like to turn briefly to life and 50 years. I hope I am not using the word "briefly" loosely.

The report of this committee recited findings by the Register of Copyrights that a life-plus-50 term on the average would add 20 years to the present 56 years of copyright. It would not double it, as I gather some Government agency told you. On the average it would add 20 years; in some cases it would provide a shorter term than authors now get for works published at the end of their careers, under the present law.

On the other hand, life plus 50 would drastically reduce the period of protection now available to unpublished works and those published long after an author's death. Under our dual system of common law copyright, followed by statutory copyright, a 200-year-old diary of a Revolutionary War hero, a 150 year old letter, or any unpublished work-no matter how old-receives another 56 years of protection under the present act after it is published.

Mark Twain's "Letters From the Earth," published decades after he wrote it, were given 56 years of copyright. The Memoirs of a Civil War Reporter, written here in Washington during the war, was first published in the 1960's. They were protected from the Civil War to the 1960's under common law, and then had another 56 years under the statute.

For goodness sakes, I cannot understand how educational spokesmen will sit here and tell you that replacing that system by a term of life plus 50 years denies access. It increases it and expands it enormously.

Fifty years after the author's death, everything he wrote will go into the public domain-published or unpublished-and access would be complete for historians, scholars, and others. Authors like Ernest Hemingway would no longer be able to provide for their families by leaving unpublished novels to be issued years after their death.

Many authors have outlived copyrights. Even more important, many are unable to provide for their immediate families since their renewal copyrights expire soon after their death. Widows of illustrious American authors have outlived their husbands by decades, and in their advancing years, the only income that permits some of these widows to live in dignity and a semblance of comfort are the royalties from great works written by their husbands.

LIBRARY REQUISITION FOR OUT-OF-PRINT COPYRIGHTED MUSIC

This form approved by Music Library Association ("MLA"). Music Pub lishers' Association ("MPA") and National Music Publishers' Association ("NMPA").

2. If permanently out of print, please sign the duplicate of this form, wi‹â shall constitute permission by you to us to make or procure the making of copies of the work (8), but only on the following conditions:

(a) The copyright notice shall be shown on all copies,

(b) All copies shall be used for library use only.

(e) No recording use or performance for profit use or use other than use shall be made of any copy unless such use shall be expressly licensed by pos or an agent or organization acting on your behalf.

(d) We shall pay

mission but not otherwise,

for the right to copy pursuant to this per

(e) We (do) (no not) own a copying machine.

3. If any work referred to above is unpublished and available on loan to 78 please advise the terms and conditions of such loan. If not available to us, piere insert an X here ———— and return the duplicate of this form to us proe și f 4. If any work referred to above is not in your catalog, please Insert an X here and return the duplicate of this form to us promptly.

Very truly yours,

Agreed to:

(Name of publisher)

(Name of library)

By

-By

This form should be prepared in duplicate. Additional copies may be seet,red from MLA or MPA, 609 Fifth Avenue, N.Y., N.Y. 10017, 4th floor, or NMEA 460 Park Avenue, N. Y., N.Y. 10022,

Mr. KASTEN MEIER. The next witness is Irwin Karp. [The prepared statement of Irwin Karp follows:]

STATEMENT OF IRWIN KARP, COUNSEL, THE AUTHORS LEAGUE OF AMERICA Mr. Chairman, my name is Irwin Karp. I am counsel for the Authors Learned America, the national society of professional writers and dramatists. The Leages 6,500 members include authors of biographies, histories and non-fiction bok ₫ every subject, novels, plays, poetry, childrens' books, musi al plays, #1211 M articles, textbooks and other works. Several also write for motion per television and radio. And, of course, the works of many n embers are adapted use in these med.a Copyright is a matter of paramount concern for our ne¤NA the full-time professionais and those who also work as teachers or in other fa 3 for their compensation as writers depends on the Copyright Act, as des ability to provide for their immediate families after death. I should strEAT the outset that most of our men,bers own the copyrights in the works they create My testimony this morning addresses two subjects. (1) the "Educa", tales emption" proposed by members of the Ad Hoc Committee; and (2) det. " your Subcommittee reject the copyright term provided in See 302 (HR ie, the author's live p ́s "0) years after his death. The Authors Leapest the term of life; us 50 years as it did in previous tes?alhoty to your Sat by Rex Stout Chen 2's president), Elizabeth Janeway, John Herse} president), Herman Wouk and myself (Hearinga Before Subcommittee A wth Cong, 1st Mem ; Part I, Part 111] In the Secinte, testimony supp **. hfe plus 30 term was given by Mrs Janeway. Mr Wouk and the late Jor Passos As it has in the past. The Authors League opposes the exemption” which previously has been rejected by both Judiciary Co and therefore was not included in the Pon Bris passed by the House để Representatives in 1967 and the Sci.

PRIOR REJECTION OF THE EDUCATIONAL EXEMPTION

As your Committee's Report noted, members of the Ad Hoc Committee had requested the insertion of “a specific, limited exemption for educational copying" to the Revision Bill. The reasons why your Committee and the Senate Committee refused the exemption are as valid today as they were when the Report was

Your Report stated that "photocopying and other reproducing devices were constantly proliferating and becoming easier and cheaper to use" (as indeed they have). It also noted the contentions of authors and publishers that “education is the textbook publisher's only market, and that many authors receive their main income from licensing reprints in anthologies and textbooks; if an unlimited number of teachers could prepare and reproduce their own anthologies, the cumulative effect would be disastrous." (H. Rep. No. 83, p. 31).

THE CONSTRUCTIVE SOLUTIONS ACHIEVED BY THE SUBCOMMITTEE.

Your Report noted that “several productive meetings" were held between repres sentatives of authors, publishers and educators, and that "while no final agree ments were reached, the meetings were generally successful in clarifying the pastes and in pointing the way to constructive solutions." These solutions were reflected in your Committee's Report, and it is fair to say they were-for a time at least - accepted by the parties. The solutions were:

(1) The Committee's rejection of the "educational exemption", because "After full consideration, the committee believes that a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from egyright control is not justified "

The Committee's explicit affirmation that “any educational uses that are fair today would be fair use under the bill.”

dh Amendment of Sec. 504 (c) to insulate teachers from excessive liability for statutory damages.

navi Amendment of Sec. 107 to indicate that fair use may include reproductions In copies or phonorecords, and may be for such purposes as "teaching, scholarship of research"

(v) A careful analysis by the Committee of the four criteria of fair use "in the contest of typical classroom situations arising today." The Committee noted that although its analysis had to be broad and illustrative, it may provide ericators with the basis of establishing workable practices and policies." (pp I 36

Actually, the Committee was modest in characterizing its analysis- it is an extremely clear and useful set of guidelines for educators authors and publishers Moreover, the Committee's analysis of fair use amply supported its judgment that lue doctrine of fair use as properly applied is brond enough to permit reasonable educational time, and education has something to gain in the enactment of a bill which clarißes what may now be a problematical situation"

De Committee also urged educators, authors and publishers to "join together In an effort to establish a continuing understanding as to what constitutes motsally acceptable practices” The Authors Lengne is willing as it has stated before to sit down with educators and publishers periodically to establish and 7- em these practices, to fill out workable guidelines of fair use. This must be dire in meet.r gw with the parties working together. And there should he periodie Brett gy so that the parties could revise guidelines in Ught of changing conditicas, The would enable them to deal reasonably with cirrent practices, without fear of gimmutable rules that could become damaging if technology or other Pin charged in the future. The Judiciary Comiti tee also urged the parties together to work out means by which permisslotis for upes beyond fair use (racted easily, qu'ek'y and at reasonable fees Again the Authors League 'g as it stated in the past, to sit down with edmontors and pablisters to 1* ! Lese the!! s

its explicit examples and illustrations, is far more precise and instructive te teachers than the completely vague amendment offered by the Ad Hoc SIN

Actually the purpose of the amendment is to legalize uncompensated ed. se tional reproduction of copies that goes far beyond the limits of fair use The privilege of making copies of portions of a work which are not substanta a proportion to its total size would be absolute, regardless of the circumstances d the reproduction; although some of these would clearly involve infringement under your Committee's analysis. Under the Amendment, many copies ootd be produced on an organized basis, rather than by one teacher acting spot aLM SAY Multiple copies could be reproduced for many individuals and circulated beyond the classroom. And most important, under the Amendment copies could be " * duced even though they had a serious adverse effect on the work's pots '1' market or value, and even though it would supplant some part of its n ma market. Moreover, the proposed exemption would permit educators and instimm tions to reproduce copies of entire short works. How short is short? Wo, da poem 2 pages long be fair game for educational reprinting? or 4 pages? or 6;3E% Would the Amendment allow a story or article 5 pages long to be reprodued in multiple copies? or 10 pages? or 15 pages? Moreover, as with excerpes tar exemption would allow educators to reproduce these copies under a var. *v ! circumstances that would make them an infringement under your collari «* Þ analysis of the four criteria of fair use.

As we noted in our statement on library photocopying yesterday, and in ot previous testimony, many authors earn a major portion of their ore 14 licensing the reprinting of poems, articles, short stories and pertions of jot get works in anthologies, textbooks, collections and similar books. The same portof story may be reprinted in several of these, and the accumulation of strial fees produce a modest income--often the largest part of the income authors t valuable literary works earn from their writings. These anthologies and get collections are sold primarily to high schools, colleges and universities, and trest libraries and book stores. Their students are a primary audience for emirni poets, essayists and short story writers.

The proposed educational exemption would allow educators and institut, ** to produce copies of an author's short works and portions of longer workK, 11 UK displacing the sale of the anthologies textbooks and other colle- tions ti at pret. ously brought these works to educational institutions. Many authors would ***** be deprived of a substantial or major portion of their income, even though the ↑ works would still be widely used by educational audiences, disseminated Di uncompensated educational reproduction that far exceeded the limits of fair te [Although some educational spokesmen have said they do not intend to "ant ogize", it should be noted that the effects are the same whether several sort works are provided at one time between covers, or are produced and distributed by the school seriatim.]

THE WILLIAMS & WILKINS DECISION

The Ad Hoc Committee's excuse for requesting the exemption in the Serst was that the Trial Judge's decision in Williams & Wilking created un erta as to fair use. As we there pointed out, this was a feeble excuse for disrupt 4 the constructive solutions reflected in your Committee's prior report. It would fe an even feebler excuse now, considering the majority opinion in the fu! Cont of Claims. As your report correctly stated, fair use- in the ense of library estes 12 as in other instances depends on the four criteria. "and the facts of the pertin ular case” (En phasis ours). The trial fudge confined his decision to the fi twil that case, stressing that the large scale reproduction of copies involved wholesale copying " The facts before him bore no resemblance to the varie as fat situations involving educational conving and other uses which your Conne considered in selling out its guidelines and analysis of fair use vis a vis ed) T tional copying Nothing in the trial court's opinion east any doubt on your Report's analysis of guide Tires. And there is even less reason for Ad H€” mitten spokesmen to contend that any doubts have been enst mon them by the majority oninfon in the Cairt of Chìm x which reversed the And, mert below *** distrussed. Williams & Wilkens com p'airt. The mafority opinion didin zimnend für me in education or detract from your corelusions, nor did the P TAY

THE "OTHES" ART MENTA

As we noted in our testimony on library photopving. Ad Hoc Committee spokesmen are wont to accompany their demands for an "educational exer [5, in

with a variety of attacks on copyright. Some of these we discussed yesterday: be “monopoly", "restraint of information" and "mere privilege" claims. As to

Ad Hoe spokesmen contend that uncompensated educational copying beyond the limits of fair use must be legislated because it allegedly "promotes" the progress of science and art. This misses the very point of the Constitution's 659right clause, which intended that authors be granted "valuable, enforceable rights to encourage them to produce works of lasting value. Granting rights, hat destroying them, was how the Constitution intended to promote the progress of science and art. Compensating authors for uses of their work, not depriving tem of remuneration, was the method chosen by the Constitution. Authors Whose works are used in schools make a positive contribution to the educational process, and for reproduction beyond fair use, they are entitled to compensation. As year Report noted, "the educational groups are mistaken in their argument lat a for prout limitation is applicable to educational copying under the present iaw**

Al How Committee spokesmen have argued that any copyright limitation on fartpensated educational copying beyond fair use restrains "Treedom" to read Säder the First Amendment This utterly fallacious argument was made by them 16 the Wiliams & Wilkins case, and was completely ignored by majority and kechority opious, The First Amendment was fasioned to assure unfettered interchange of ideas (Sullivan v. N.Y. Times) and it is axiomatic that an author a copyright does not prevent anyone from discussing or repeating his ideas (Rossetti tv. Random House), The Supreme Court has never interpreted tüe freedom to read under the First Amendment to mean that copyrighted works lis ist be provided free of charge; and it has frequentiv emphasized that there is an conflict between publication for proft and the First Amendment. Under the Ad Hoc tìeory of freedom to read", teachers and übrarians should work without pay, colleges should cease charging tuition and the Xerox Corporation should be dered copying fees when its machines reproduce “educational” materials

49ar dan tassion has focused on the copying aspects of the Ad Hoc Committee's 1° posed eximption, but the Authors Lengue opposes its other provisions as well. Ir won,d be highly dangerous to add an "input" exemption with respect to comjesters. And the educational community is not entitled to further additions to an fiready too broad television exemption.

1 IFF-PLUS-50 YEARS

The Revision Bill would establish a single term of copyright for new works, ling for the authors life and 30 years after his or her death. This is the egyright term employed by most other countries. Existing copyrights would e ntinue under the present system: a first term of 28 years which can be renewed for a second term, that would be enlarged from 28 to 47 years. (Seex 302 304] As in prior bearings, the Authors League strongly supports these provisjonis, We urge your Nubcommittee to retain them and to reject demands by Ad Hoe At Tee spokesmen to turn back to the present two term avstem and proposals for a single term of shorter or different duration. Your Committee's Report noted. there was overwhelming support for a life plus 30 sys'etu, and this was based on sound reasons which are analyzed in the Report.

THE "INCREASE” IN TIRM

T'e Report cited findings by the Register of Copyrighờ that a life plus 50 term 1, on the average, add no more than 20 years to the present 36 years. It woud add very few years, sometimes Lone, to a work pablished later in an " re ufe

On the other hand, life plus 50 would drastically reduce ti e period of protection Awaya, ab'e to unpublished works and the pit ispod ong after an a chor s dex?% Under our dal system, a work is profesfed absolute's until it is p

20 year o.1 diarios, 10 year old letters cannot be used by historials or a limars

se their owners have al sol d'e property ral's under comen law el any unpublished work to roafter how o. 1 is pa

16 wars of protection under the present Act