Miss LAHTI. I, too, represent the classroom teacher, but feel I am familiar with their problems, since I served as a rural and city teacher prior to coming to NEA, and work directly with classroom teachers throughout the Nation. I am well aware that whatever decision is made on this copyright bill is going to affect every child and every teacher. I think the fear every teacher has is that the measure as now printed will not preserve the right of teachers to teach in the future as they teach today.

I would like to emphasize two of the rights we hope will be in the bill for teachers. One of these is a statutory definition of fair use. I think teachers need to have the security of knowing what they can do, what they cannot do. If the wording of the House report on subsection 4 of section 107 is retained, then, Senator, we would like the section deleted because it negates the freedom of teachers to teach as they can do now.

Senator MCCLELLAN. If I may interrupt, I am wondering if there is any way that we can construct a statute or language defining fair use that will be applicable to all situations so you could know in advance whether the use you intend to make will come within fair use or whether it would not. How is it possible for us to do that?

Miss LAHTI. We realize that it will be difficult to do, but we do support such an effort. If the ad hoc committee's original position is the intent of the bill, then we can live with it, but we are concerned with the interpreation that the House has put on it.

Senator MCCLELLAN. Again, it is your view the committee places a different interpretation in its report than the language in the bill. Am I correct?

Miss LAHTI. We do not see the positions as compatible.

Mr. ROSENFIELD. Mr. Chairman, may I indicate that as all of our witnesses have testified, we are completely willing to accept and live with the language of 107 itself.

Senator MCCLELLAN. That is the bill.

Mr. ROSENFIELD. Our problem is that the legislative history incorporated in pages 64 and 65 of the House committee report, as they particularly define the fourth criterion, does not conform to what we understood the history of the agreement was.

Senator MCCLELLAN. That is exactly what I am trying to point out. The language in the bill obviously is susceptible of different interpretation. Am I correct?

Mr. ROSENFIELD. Yes, sir.

Senator MCCLELLAN. The House itself placed one interpretation on it in its report, and you would interpret it another way. Mr. ROSENFIELD. The answer is "Yes."

Senator MCCLELLAN. Now, how can we rewrite that language, or can it be rewritten so it will not be susceptible of the two different interpretations now being placed on it, that by you and that by the committee?

Dr. WIGREN. We think the Copyright Register's Office has done a very good job with the report in specifying classroom teacher reproductions of materials. We like what they have done. The only thing we do not like is the report as it is written on the section, on criterion 4. We have no objection to the rest of it.

Senator MCCLELLAN. If their interpretation is correct of this language, then you do not like the consequences of it?

Dr. WIGREN. We do not like criterion 4 as it is in the report with the interpretation as given because we think it restores uncertainty. Senator MCCLELLAN. That is what I mean. If it is going to have that effect, you don't like it?

Dr. WIGREN. That is true.

Senator MCCLELLAN. But as you interpreted it, you think it is all right if your interpretation would be adopted?

Dr. WIGREN. Correct.

Mr. ROSENFIELD. Mr. Chairman, because we mean to live by our agreement, we are not now proposing a change in the language of section 107 and we are opposed to changes in the statutory language. But if there can be two sentences eliminated in your report that are now in the House report on this score, we think that all of us would be able to live with this as a legislative history.

Now, whether or not wiser men than this ad hoc committee can be even more explicit, we have not given that opportunity to ourselves to develop, because thus far, we mean to keep our agreement.

Senator MCCLELLAN. Of course, we have not written a report yet. We can write a report that would accept your interpretation of it. I say we could. I do not know what the committee would do. Then we would have a conflict in the two reports when it goes to conference, of course. That could be ironed out.

As the language is now, maybe it cannot be improved upon. We may not know how to improve on it. But obviously, it permits of different interpretation. The House committee itself has placed one interpretation on it, an interpretation that does not conform to your construction of it.

Mr. ROSENFIELD. I regret to say that is true.

Senator MCCLELLAN. That is the problem. We try to write sound and equitable legislation, but this again points up the difficulty we have in this field.

I think every member of this committee, every Member of Congress as far as I know, would like to find equity in these conflicting interests or find equity for the national interest and for everybody concerned. It is not going to be easy to do. It is not going to be easy at all.

I would like to see schoolchildren and the educational system have every benefit, every access to everything that is worthy of instruction and teaching our children. At the same time, there are fundamental rights we have always respected in our system of government and in our system of enterprise that must be protected. How to do it by rigid statute, by law, explicit statute, I might say—is not easy. It is a problem we are going to study.

I personally, and I know every member of the committee is very happy to have all of you come and enter into discussion with us about it. Ultimately, we are going to try to write some kind of bill.

Go ahead. I am sorry I interrupted.

Miss LAHTI. I wanted to emphasize a second point which was also mentioned, the need teachers feel for retaining the present duration rights because of the utter confusion the current proposal would cre

ate in most school systems in not knowing whether the author was dead and the copyright expired. I think this would create havoc in the schools for a number of reasons.

In the first place, the role of teachers is changing in schools today. The fact that the law limits the use of copyrights to face to face teaching situations increasingly raises the question--does this apply where innovative procedures are used-the statute needs to be broadened. Since the present proposal does not apply to staff members other than teachers administrative personnel, I believe, also would feel threatened. They have to be assured that the use of copyrighted materials in any curriculum developed by other than the teacher in the classroom would be protected. It is important that teachers be free to use these materials. We believe we can live much more freely with the present duration rights.

Senator MCCLELLAN. How do you find out now that the copyright has expired?

Miss LAHTI. By looking at the title page to see the date of the copyright.

Senator MCCLELLAN. How do you know whether it has been renewed?

Miss LAHTI. We just go by that and hope that this is what does it. Senator MCCLELLAN. How are you going to find out? Suppose a copyright was granted more than 28 years ago. How do you know whether it has been renewed? How are you going to find that out? You are going to have to find out on the other. You will have to take some action to find out whether the time had expired, 50 years after the party had died.

Miss LAHTI. Where would you write? How would you know? Senator MCCLELLAN. I am asking you how you find out now? Miss LAHTI. We would check with our librarian, who I assume would through the proper channels check to see if there is a new edition.

Senator MCCLELLAN. Apparently, you have not had any problem with them?

Miss LAHTI. We have not, but we will with this one. It is the future one we are concerned with. We can live with the one we have.

Senator MCCLELLAN. In either case, you have to have some way of finding out, in some instances, at least. If material was copyrighted, it shows on the face of it, copyrighted 10 years ago, 15, 20 years ago, you know it is still in force. But if it is more than 28 years ago, how do you know? What do you do to find out?

Miss LAHTI. As I said, we would check with the librarian if it is a new edition. If it is not, we assume it is in the public domain and use it.

Senator MCCLELLAN. All right.

Had you concluded?

Miss LAHTI. Yes.

Mr. GARY. The music educators have had some experience with this, because they work with copyrighted materials in making rearrangements and so on. I think they are probably a little bit more familiar than the average classroom teacher. They would know if it appeared with just the original copyright date and they bought an edition after

the 28th year period, they would look to see whether there is a copyright renewal notice on it which would appear to assure protection of the thing. If they did not see this and there was some doubt in their mind, then they would have to write to the Library of Congress. Senator MCCLELLAN. To check it?

Mr. GARY. Yes.

(The prepared statement of Miss Lahti follows:)

TESTIMONY ON S. 597 for GENERAL REVISION OF THE COPYRIGHT LAW BEFORE THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS, OF THE SENATE JUDICIARY COMMITTEE IN BEHALF OF THE DEPARTMENT OF CLASSROOM TEACHERS, NEA, PRESENTED BY MISS TAIMI LAHTI, ASSISTANT EXECUTIVE SECRETARY, DCT I am Taimi Lahti, Assistant Executive Secretary of the Department of Classroom Teachers of the National Education Association. I am representing approximately 900,000 classroom teachers. Having served as a social studies teacher in rural and urban schools of my home state prior to coming to NEA, and working directly with teachers in schools over the nation, I am intensely aware that the measure under consideration here affects not only members of this NEA Department, but also every teacher and child, in every classroom, in every school in the nation.

The classroom teacher's interest in a new copyright law is primarily that of the user rather than the producer of materials. However, teachers have always been producers or co-producers of some materials, and are increasingly producing materials specifically tailored to the needs of their own classrooms.

The official position of the Department is stated in the following resolution, adopted in Miami, in July 1965:

"The Department believes that, if educators are to serve American society and if the youth of this nation are to receive high-quality instruction, maximum access to all sources of knowledge, teaching materials, and resources must be preserved. It notes with dismay the current drive to diminish or eliminate from the Copyright Law the protection for educational use of materials. It maintains that present rights must be preserved and expanded to ensure (a) right of teachers to make one copy or phonorecord of a copyrighted work and a reasonable number of copies or phonorecords of excerpts or quotations for the purpose of teaching or for course work study in connection with teaching, (b) security from harassment of placing the burden of proof in testing fair use on publishers rather than teachers, (c) exemption of noncommercial educational users who are innocent infringers from any minimum statutory damage when no actual damage to author or publisher is shown, (d) retention of present renewal provision for 28 years plus 28, and (e) right to meet future instructional needs by having reasonable access to new educational materials to be used with new education technology.

"The Department strongly urges all classroom teachers to work diligently through all channels available to ensure the inclusion of an educational exemption ensuring the rights listed above in the bills currently in Congress."

May I point out that this Resolution was drafted and adopted before the introduction of S. 597 in the 90th Congress. We congratulate the distinguished chairman of this Subcommittee for his sponsorship of S. 597 which is a far better proposal than we anticipated last July.

Most teachers, until after mid-century, relied on textbooks and standard works for their instructional materials. Use of supplementary materials was not as widespread as in recent years. The change is due in part to the better qualified, more creative teachers we have today, but more directly to the availability of new kinds of materials made possible by advances in printing and educational technology.

With the explosion of knowledge since World Wor II, and with the development of new technology, the issue of copyright infringement becomes more important to teachers who want to give their pupils the latest and best information from a variety of sources. A good teacher, for example, may use a poem from the Atlantic, a tape recording of Maurice Evans in a scene from Hamlet, a clipping from the previous day's New York Times all within one class period-and be in danger of violating the law three times without knowing it.

79-397-67-pt. 1-12

I shall address the remainder of my remarks to two primary needs which are not provided in S. 597.

1. A statutory definition of "fair use."

2. Retention of present duration-28 plus 28.

1. A STATUTORY DEFINITION OF "FAIR USE"

Teachers are far more aware today of copyright regulations than they were even a year ago. This is the result of several factors: (1) the publicity given to attempts to revise the present law; and (2) the changing role of classroom teach

ers.

Under the present copyright law teachers have not as a rule felt pressure from possible infringement, due to the "not for profit" clause which for teachers has a fairly clear meaning. Deletion of this phrase for the more nebulous "fair use" term creates misgivings among teachers. Since the latter phrase will call for decision by courts on complaints of copyright holders, teachers feel that a clearcut definition of what is fair use is necessary.

Section 107, Subsection (4), however, if interpreted as outlined in the House Report No. 2237 on HR 4347 of the 89th Congress (which is identical to S. 597 of the 90th Congress) can negate the reasonableness of subsections (1), (2), and (3) of Sec. 107. In effect, after giving examples of fair use of materials through limited copying and phonorecording, the House Report defines subsection (4) as meaning that copying or phonorecording of any material for classroom use would be illegal if such copying "displaces what realistically might have been a sale, no matter how minor the amount of money involved." This language restores all of the uncertainty which the three previous criteria, as described in the House Report, have attempted to allay. We urge that subsection (4) of Sec. 107 be eliminated.

Teachers need the certainty of knowing when a given use of copyrighted material in the course of teaching is legitimate.

2. RETENTION OF PRESENT DURATION-28 PLUS 28

We also urge that the duration provision of the present copyright law-i.e., 28 years plus 28 years renewal-be maintained. The "life of the author" plus 50 years provision in S. 597 is unrealistic. The great majority of present copyrights are not renewed. Thus, teachers have access to most material by the 29th year. The proposed duration provision in S. 597, if enacted, would preclude all material from use for quite possibly 100 or more years after it is originally produced. This seems unnecessarily restrictive. We urge the duration in the present copyright law be retained.

CONCLUSION

I have limited my comments to the two specific points made in this testimony, but want to assure the distinguished members of this Committee that the NEA Department of Classroom Teachers endorses the entire position as presented by Dr. Wigren for the Ad Hoc Committee on Copyright Law Revision.

In closing I should like to quote the President of the Department of Classroom Teachers, Mr. Charles Deubel, Industrial Arts teachers from Freeport, New York, in his remarks at the NEA Convention in July 1966, in Miami Beach:

"Certainly, everyone would agree with the premise that works of genius. whether author, painter, or musician, should be protected and should be rewarded financially. No one would argue with that point.

"But children have rights too. They have the right to secure knowledge. Teachers need special guarantees which will permit them to use copyrighted materials in their classrooms without fear of reprisal."

This, then, gentlemen, is our plea-that teachers be free to teach in the best tradition of free access to truth. At the same time we recognize and defend the right of the creative person-whether author, composer, or artist-to a just return for the efforts made to enrich our lives and our knowledge. We recognize that a copyright law must encourage such creativity to flourish; but, as Mr. Deubel said, children have rights too, and we as teachers speak for the children's right to learn.

Senator McCLELLAN. Present your next witness.
Dr. WIGREN. Dr. Oscar Cargill.

Off the record.