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copies for my class of this poem that so-and-so wrote, that was published by Jones in Dallas and he makes an effort to communicate with the publisher or the author and he cannot find them and he produces his 30 copies for the use of the class 2 months hence-in the first place, like yesterday's snow, it will have disappeared. In the second placr, there is no one that I know of on the copyright-owning side who would think it worthwhile to go to a lawyer and make a complaint against a hypothetical misuse of copyright; and if anyone were foolish enough, it would seem to me, to attempt to make that a test case, I would think it might very well be one of the elements of defense of fair use that it never was made to obtain clearance and it was not possible to do -1).
Mr. Patrison. I have an information gap here.
When you talk about computers, input and output, could you run through that in some way that I could understand it! I just do not understand it.
Mr. ZURKOWSKI. I am not sure I can give you an explanation of it in short order. In answer to your question, it is a position of our industry that the creation of a data base is a work of authorship. It involves all the things that an author goes through in creating.
Mr. PATTISON. What does a data base consist of?
Mr. ZURKOWSKI. A data base can take any embodiment. The Encyclopaedia Britannica could be considered a data base. It is a collertion of separate pieces of information that are organized so as to be retrievable. You can do that in microfilm. You can do that in a computerized data base. For example if you keypunch every word in the Encyclopaedia Britannica and converted the keypunch cards to magnetic tape, you would have a machine-readable data base. Doing that is what the educators are talking about. They want to be able to make an input copy of the Encyclopaedia Britannica to their data base free of copyright infringement.
I must say that the real basis of our objection is that educational university computer centers are serving a wide range of users, in addition to the educational community. Once this major investment is made in creating that data base, they are under pressure to find as many uses as possible.
We ask the committee not to grant such a broad exemption because it will destroy the ability of the industry which is accommodating author's right in marketing such products. We think that before such an amendment is considered, the committee should either hold more hearings on this, to be better informed on the subject, or defer the question to the National Commission.
We did submit a lengthy set of amendments in our long statement which illustrate the detailed questions that are involved, and they are just another set of questions just like these you have been hearing for the past 2 days.
The point of our testimony was in effect that the committee really has not considered these aspects and has not taken testimony from people who create data bases and market data bases. It is a whole other world. The purpose of section 117 in the legislation was to preserve the status quo on those questions--simply by virtue of the fact that the committee did not have enough information. We face in the educator's ad hoc proposed amendment, a proposal to exempt input. I am just trying to call to the attention of the committee that before you get into that, you have to consider all the experience that has been had on
that. It would be better if you reserved that for the National Commission's study, or hold another day of hearings on that subject.
That is the position of our statement. Mr. LIEB. Congressman Pattison, the approach of 2.223 is to leave the law, whatever it is with respect to computer usage, as it is and ask to turn the question over to the new National Commission.
Jis. LINDEN. I would like to add a couple of words, if I may.
I was on the Committee of Science and Technology, Executive Office of the White House, for 31/2 years. We debated this issue and we prepared voluminous reports on exactly this problem. The fact is that the cost in time, energy, and money, the millions and millions of dollars it costs to create input, to create the storage and the memory core of the computerized information storage and retrieval system, is such that if we, in the interim, prior to the resolution of the problem by the National Commission, permit free input, the cost of reverting to the old system and protecting input, I submit, will, for practical purposes and realistically, be impossible. Once you free the geese, they fly away. It is impossible to recapture them again.
This is a short-form urging of what is an extremely complex concept of computerized uses and processing of information.
One of the basic issues which this committee has not averted to-and rightly so, because it is being left to the National Commission-is the problem of censorship. I would simply whet vour appetite by using that word. The serious problem in censorship that computerized information storage and retrieval systems would cause if input were left, as I say, as the freed geese. This is a subject that warrants not only the attention of this committee, but serious study of the National Commission and careful reporting back for your consideration.
Jír. KASTEN MEIER. On behalf of the committee. I thank you for your appearance this morning-I should now say this afternoon. We will see you again in the context of this particular issue, perhaps, or others, on June 4; the committee will be exposed to the jukebox issue and the tribunal issue. And we will have as witnesses the American Society of Composers, Authors & Publishers; Broadcast Music, Inc.; Music Operators of America; and the manufacturers of jukeboxes.
('ntil that time, on June 4, at 10 o'clock in the morning, the subcommittee stands adjourned.
Whereupon, at 1:30 p.m., the subcommittee adjourned. 1
STATEMENT OF ALBERT WARREN, CHAIRMAN, COPYRIGHT COMMITTEE, INDEPENDENT
NEWSLETTER ASSOCIATION My name is Albert Warren. I am chairman of the Copyright Committee of the Independent Newsletter Association. I am publisher of Television Digest with Consumer Electronics. The other members of the Committee are Louis Rothschild, publisher of Food Chemical News, and David Swit, publisher of Product Safety Letter. All 3 newsletters are published in Washington
We spenk for newsletters which are true journalistic enterprises. We do not represent house organs, publicity devices and the like. We produce the publications of the type admitted to the Congressional Periodical Press Galleries under the rules of Congress which specify that the publications admitted are "published for profit and supported chiefly by advertising or by subscription, and owned and operated Independently of any industry, business, association, or institution."
The newsletter industry is uniquely vulnerable to violations of copyright for the following reasons:
(1) The typical newsletter is very brief-comprising a few pages, often no more than 4 and is therefore susceptible to quick photocopying in its entirety.
(2) Since newsletters' income almost always comes from subscriptions alone, illegal reproduction and distribution have an immediate and devastating impact on the market for the publications.
(3) Newsletter publishing is small business in its truest sense. With very few exceptions, each of the thousands of newsletters published in the United States is the product of a few journalists--frequently only one-often assisted only by their families.
(4) A recent survey of the newsletter industry shows that 19% have 500 or fewer subscribers; 21.5%, 501-1,000; 21.5%, 1,001-2000; 28%. 2,001-5.00); 10%, more than 5,000. With the average subscription running about $50 yearly, it is starkly evident that the revenues of a typical newsletter constitute small business indeed.
Simple arithmetic demonstrates dramatically the drastic impact that even a limited amount of copying may have on the viability of a newsletter. A news letter with 500 subscribers, charging $50 a year, has a gross revenue of $25.000. If illegal copying deprives the publisher of a mere 100 subscribers, he suffers a loss of $5,000–20% of his income.
Newsletter publishers simply do not have the economic strength to police and litigate violations of their copyrights. Indeed, many publishers do not even file their newsletters with the Register of Copyrights, believing that the cost of $300 per year isn't justified by the insignificant amount of protection provided under current law.
We recognize that no Act of Congress can provide complete and automatic freedom from jeopardy. However, we do believe that Congress can make it abundantly clear what constitutes a violation of our rights—so that we can quickly, without expensive and protracted litigation, prosecute violations when we discover them.
We believe that the intent of Congress in providing for "fair use" is eminently laudable. Our concern is that newsletters are peculiarly vulnerable to abuses of "fair use." The reproduction of even a single page of a newsletter-or frequent reproduction of even mere sentences or paragraphs on specific topics-can often provide a businessman with all he needs without cost, thus eliminating him as a source of revenue. In fact, many newsletters conduct surveys and analyses which result in a single critical number. The illegal copying of this single number can deprive the publisher of major revenues. For example, my own publication conducts a monthly survey of hundreds of retailers to determine sales of TV receivers and stereo instruments to the public; the results are shown in a briet tabulation. The theft of this tabulation or even a portion of it would vitiate the entire enterprise. We recommend, therefore:
(1) Exclusion of newsletters from any "fair use" reproduction as provided in Sec. 107. However, since most of our subscribers are businessmen and we have no desire to exclude students from access to our material-we beliere that not-for-profit libraries should be allowed "fair use." We believe that corporate and other business-operated libraries should be excluded.
(2) Should your Committee conclude that no "fair use" exclusion be made for newsletters, we urge that copying of any portion of a newsletter be allowed only upon written permission of the publisher. Historically, most newsletter publishers are pleased to authorize such reproduction on an occasional basis.
(3) If your Committee finds neither of the foregoing warranted, we urge, at a minimum, that language such as the following be included, in referring to "fair use": "For newsletters, fair use shall include reproduction of 50% of any article or 150 words, whichever is less. Each tabulation or graph shall be considered a separate article. Persons reproducing portions of a newsletter, under this provision, shall furnish the publisher with copies of such reproductions, On request of the publisher, such person shall provide him with the names, a ffiliations, and addresses of the persons to whom such copies were distributed."
We suggest that, under "Definitions." the following appear:
"A 'Newsletter' is a periodical published for profit and supported chiefly by subscription, and owned and operated independently of any industry, business, association, or institution."
In addition, we suggest that the prorisions covering newsletters, regarding "fair use," be incorporated in a new Sec. 118.
STATEMEXT OF F. J. VANAXTWERPEX, EXECUTIVE SECRETARY, AMERICAN INSTITUTE
OF CHEMICAL ENGINEERS, AND PRESIDENT, COUNCIL OF ENGINEERING AND SCIENTiric SOCIETY EXECUTIVES, AND ALBERT BATKIN, CHAIRMAN OF COMMITTEE ON PUBLIKATIONS, COUNCIL OF ENGINEERING AND SCIENTIFIC SOCIETY EXECUTIVES Mr. Chairman: My name is F. J. VanAntwerpen, Executive Secretary of the American Institute of Chemical Engineers, and President of the Council of Engineering and Scientific Society Executives. This Council is composed of the leaders of 80 national engineering and scientific societies and numerous similar local and Canadian organizations. In the United States alone, the cumulative society membership exceeds one million engineers and scientists.
The membership of these societies constitutes not only the users of the material disseminated but a re, in fact, the authors. Therefore, they have a vital interest in the use and misuse of their material. The Council acting on behalf of the member societies and their membership in turn ask that you consider this in your deliberations. We feel that the provisions incorporated in the bill as passed by the Senate last year are equitable, although not as strong as some Societies may wish. We can live with it.
I have with me my associate, Albert Batik, Deputy Managing Director of the American Society for Testing and Materials, and Chairman for the Committee on Publications of our Council, who can give you additional information on our position.
Mr. Chairman: To give the Committee some perspective, I have data that may be useful. Of all the original scientific and engineering information published in the l'nited States between 70 and 75% is published through the non-profit engineering and scientific societies.
These Societies depend on the income derived from the subscriptions and sale of their publications in varying degrees ranging from 20 to 80% of their total income. Most of the income is plowed back into a continuing information dissemination program. Virtually all the Societies work essentially on a break-even basis. Therefore, they have a vital interest in copyright legislation which will affect their income.
We recognize the position of libraries and other information centers that have limited budgets. However, faced with rising costs, and losing subscriptions to the cops machines, the societies find themselves in a rather awkward position.
Subscription prices can be raised but this serves only to aggravate the situation and drives more subscribers to the copy machine. Keep in mind that the only beneficiaries in this troubled triangle are the manufacturers of the reproducing equipment. The true cost of this equipment is rarely recorded by the libraries and information centers, and the societies find their investments used free of charge to create income for a third party.
Societies can publish less. This would hinder the technical development of answers to the urgent problems facing the United States such as: solutions to the energy crisis, the abatement of pollution, and the delivery of adequate health services. The societies have a moral and ethical commitment to use their facilities to assist the nation in meeting its goals.
Societies can ask the Federal Government for subsidies to operate their publications and to make up for the loss of subscriptions. However, it is a well known fact that he who pays the piper calls the tune. In the technical field, vigorous debate and controversial positions are the keystone to arriving at adequate answers. A controlled technical press would be as regressive as a controlled social science press or a controlled news press. A number of other countries, at one time or another, have controlled their technical press much to their own detriment. Dissent in the technical sphere is essential, otherwise we would still be navigating on a fat world.
The Senate in the report accompanying the bill which was passed last year urged publishers and users to develop a system of reasonable royalties. I personally have participated in these negotiations and believe that a workable solution can be developed provided that no further exemptions be granted to users. As Mr. VanAntwerpen has stated, the Senate bill is livable and as is mandated in the accompanying report, a workable solution can go far to solving the problem at band.
STATEMENT OF DAVID MCCURRACH ON BEHALF OF THE NATIONAL SCHOOL AND
EQUIPMENT ASSOCIATION Mr. Chairman and members of the subcommittee, my name is David McCurrach, and I am Executive Vice President of the National School Supply and Equipment Association (NSSEA), 1500 Wilson Boulevard, Arlington, Virginia. Our membership is comprised of upwards of 470 companies which are inrolved in manufacturing and distributing supplies and equipment to schools all across the United States.
One of the significant contributions which we make to the educational process is in the area of instructional materials, Instructional materials include a wide variety of nontext supplemental aids to teaching which range from printa materials such as workbooks, exercises, flashcards and learning cards of all types, to newer audio-visual materials such as transparencies for projeyin, films, and learning records. The development of these new materials bas made it possible for teachers to make learning more varied, more interestins. and more effective.
Because of the great importance of copyright protection, we have viewed with interest and concern the efforts of Congress over the last ten years to revise the 1909 (opyright Law to reflect new technologies and developments. Since instructional materials are designed for use in the classroom, there are substantial research and development costs in addition to the standard costs of publication. There would have been little incentive for the creators of instructional materia's to derote the requisite time, money and effort to this undertaking, had there been no restrictions on the right of teachers and school officials to duplicate instructional materials once they were published.
The advent of photocopying, however, has undermined the efficacy of the cops. right protection provided by law. The duplication of educational and instrue tional materials occurs regularly on a large scale. In fact, many school officials and teachers believe that all such copying is lezal because it has been done ) consistently over such a long period of time. The practical problems in trying to monitor this activity combined with the lack of judicial guidelines in the area have made the enforcement of rights under the current law extremely difficult.
The future development and availability of these materials depends, in the large part, on the re-establishment and maintenance of adequate copyright protection. The interests of the people in the availability and wide dissemination of original works of authorship can best be assured where the author is reasonably compensated for his work. A recognition of this fact underlies coperight law. Without a clear statement of legislative policy on the right of the public to duplicate, the incentive to create instructional materials will disappear.
Two provisions of the pending Copyright Revision Bill (H.R. 2223) are of greatest concern to NSSEA. Section 107 permits the duplication of copyrighter materials where it constitutes a "fair use" of the work. Section 110 exempts from copyright liability certain performances and "displays" of copyrighted material in teaching contexts.
It is our understanding that $ 107 is not intended to change existing law. To the extent that this provision simply codifies standards which have been devel. oped hy the courts to determine what is a "fair use" of copyrighted materials, USSEA would have no concern. We oppose, however, the pending amendments to II. R. 2223 which would broaden the scope of "fair use" and, in particular, the proposal which would exempt from liability for copyright infringement virtually all duplication of copyrighted materials used for nonprofit teaching purposes. Such a change in copyright protection would, we believe, threaten the future of instructional materials. Since schools are the only purchasers of instructional materials, large-scale duplication by schools would deprive the creators of those materials of the only market available to them. In the past, Congress has consistently refused to insulate educators from the obligation to pay royalties for duplicating copyrighted materials. NSSEA urges, Mr. Chairman, that you and the members of four Subcommittee not so insulate them now.
I would also like to take this opportunity to address my remarks to what may be some real problems in the bill as it is currently drafted. With reference to the section governing the "fair use" of copyright materials (8 107), XSSEA LA concerned that it will not adequately clarify the respective rights of creators and users in instructional materials. The standards set out in $ 107 itself are extremely vague. Without further explanation, no teacher or school official would