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(Discussion off the record.)
Mr. CARGILL. Mr. Chairman, members of the subcommittee, it is a pleasure and a privilege to testify before this committee and I want to express my gratitude. By way of identification, I am Oscar Cargill, McGuffey visiting professor of English at Ohio University, former head of the department of English at New York University. I have served for 30 years as adviser to the college department of the Macmillan Co.
Senator McClELLAN. Do you want to read all of your statement?
Mr. CARGILL. I will keep on the track if I do, Mr. Chairman, and I might run off if I do not.
Senator MCCLELLAN. I will try not to throw you off the track by interrupting you.
Mr. CARGILL. Thank you.
I am also the author of six books, and editor of more than 50 outside of my own books. I am here as official representative of the Modern Language Association of America which is an organization of some 28,000 college and university teachers of English and modern foreign languages. I wish to speak briefly for section 107 of the bill and a few related sections which are of vital importance to teachers, critics, and scholars at all levels of our society. We, speaking for both the ad hoc and
modern language association, regard section 107 as a sort of Magna Charta for the practice of our profession, since it gives us in the fundamental law a sanction which otherwise can only be obtained in the courts at costs the individual teacher can hardly afford. This section was originally drafted by the Honorable Abraham Kaminstein, Register of Copyrights, and his legal staff before any tensions developed over the bill, as a summary of court decisions building up the practice of "fair use.” That is, it is a distillation from legal history in concise form, dispassionately arrived at, with no partir-pris. Of course, it became an object of contention among all conflicting interests and has been forced out and back into various drafts of the bill, finding its present lodgement as a result of a conference between representatives of the publishers and authors and representatives of the ad hoc committee, arranged by the Subcommittee on the Judiciary of the House. We most earnestly urge its retention in the revised law.
May I first attempt to show the need of scholarly researchers for section 107, since their protection on the surface seems most remote from practical issues. All scholars take more extensive notes than they ever use, just as a good lawyer gathers more evidence than he presents, in order to sift out the most pungent proof. I believe that in section 107, subhead (1) such extensive copying for private, nonprofit use is sanctioned. The subhead (1) under "fair use" defines “the purpose and character of the use" as a determinant. Since the researcher intends to print from all his notes only brief, selected quotations, I cannot see where in the interests of the author or the publisher are damaged by this practice. In fact, it results in new books for the publisher that he can sell very profitably, like those of Mrs. Barbara Tuchman.
But let me cite another case. Mr. T. S. Eliot wrote a bigoted and reactionary book, "After Strange Gods,” in 1934, of which he annarently became ashamed from the critical scorn it received and asked his publishers not to reprint. There are a thousand illustrations of this. As a consequence, though still in copyright, only a few libraries have it. Neither the publisher nor the author's heirs are receiving anything from it. The research student cannot purchase it. It is simply not available. Ideas in it are subtly reintroduced into other works of his in a manner not to encounter so much resistence. Why should not a scholar be permitted to copy the whole work for his patently limited use in exposing one of the lamentable limitations of Eliot? If a researcher has not this sanction under section 107, should it not be written into 108 which allows complete copying for archival use which certainly can have no other end than utilization by research scholars. A clause could be attached making the copy “ephemeral” if need be. for the scholar would hare little use for the copy after excerpting from it. There is a vast amount of material, of interest to the research student, maintained in copyright but not in print by the publishers which is not productive for anybody.
But to turn to another sanction extended to college teachers under section 107. If I remember correctly, Cicero indicted Cataline before the Roman public in the forum by the citation of Cataline's own language, which he adroitly turned against him. We wish a similar power, not always to censure or correct, but to praise and perpetuate what seems to us adinirable and good. In modern times, when the need appears as great as ever, free judement is in some degree curtailed by devices, such as copyright, to protect a creation good or bad--the law does not discriminate, nor does anyone wish it to—so that the creator may enjoy the fruits of his labor. Hitler's "Vein Kampf" in translation enjoys the same protection as the "Complete Poems of Robert Frost." But somewhere there must be discrimination and a sifting. Is it wise to trust evaluation wholly to the paid reviewers? Would it not be better for the republic if our colleges turned out each year readers who could discriminate, who could evaluate for themselves?
One of the first steps in the training of such readers is to arrange for them to discover the value of a man's own words as evidence over any paraphrase of them, any watered down restatement of them in another's words. I greatly admire some of the poetry of T. S. Eliot. Since the cheap edition of Eliot's verse presents neither his worst not his best poetry-I think it is a very bad book--and I am forced to use that edition in class, I believe I am sanctioned under section 107 to supplement the text by quotation from these other pieces, perhaps mimeographing them and destroying the copies after examination. The students should be enabled to discuss the poetry with the proper samples before them, assembled in the man's own words. In this way, and extensions of this way, we can hope that some few of them can acquire discrimination and good taste. Yet this simple teaching device, which in recent vears is almost universally used, has been assailed by some persons and groups. In a conference in New York between representatives of the Author's League and those of the ad hoc committee, the legal counselor of the former, in response to a question of mine in regard to what he would do if I printed a whole poem on an examination for analysis, declared he would sue me for infringement.
Please understand, I am using this book in class and I have paid for the whole class to have copies of the book. If I take a poem out of that book and print it upon an examination, he threatens to sue me, which seems to me extraordinary.
At another time, this same man told Mr. Rosenfield, our counselor, that copying in longhand is an infringement though not as grave an infringement, seemingly as xeroxing. This scholar making ephemeral copies by hand or any device for his own or limited class use is damaging neither author nor publisher in any way. I have yet to see the kind of book assembled, aside from the single instance of the completely protected University Microfilm prints, which is dreaded by the Author's League and the publishers. The ethics of the profession are against it.
One last point. Since it falls to me to speak for foreign language teachers, I should point out that Subsection D under Section 110, forbidding a recipient to initiate reception from a storage device kills the best method of learning a language thus far invented. A teacher reads a copyrighted passage, properly arranged for with the publisher, on to a tape against which a student makes a tape of his own in a little sound-proof cubicle. He can then play them back together for comparison; or play them separately and compare his rendition with the other; or he can erase his tape and start all over until he gets a perfect echo. But he initiates every playing. He starts the tape playing anytime he wants to. I believe I could have learned to speak French better had this equipment existed 50 years ago. We further believe that no fees should be paid for input into a computer; only for output and use. A publisher does not pay an author royalties on books he has in storage. It's only when he sells them he pays royalties. Are not the opponents of machine teaching taking the same attitude that the Luddites took a century and a half ago when they wrecked the new machines in the spinning industry.
Senator MCCLELLAN. Any questions, Senator Burdick?
Senator McCLELLAN. Any comment or anything else on the statement ?
Mr. MAXWELL. I am John Maxwell, a member of the Executive Committee of the National Council of Teachers of English, and chairman of the council's secondary section, which enlists over half the membership. My formal statement does not indicate that I am also associated with the Minneapolis public schools, which I wish to be a matter of record because of pride.
The council, for which I speak, the National Council of Teachers of English, is at once the largest subject matter organization of teachers in the world and the organization which provides a forum for American teachers of English at all levels, primary through graduate school.
The council has been from the outset an institutional member of the Ad Hoc Committee on Copyright Law Revision. I speak today
I for the council's 117,000 members and subscribers in general support of the position outlined by Dr. Harold Wigren, chairman of the ad hoc committee, and in appreciation of the labors of the two legislative committees and of Mr. Kaminstein and the staff of the Copyright Office of the Library of Congress. Reshaping an obsolete law into a modern instrument that will reconcile conflicting interests and facilitate the optimum sharing of accumulated knowledge within a rapidly changing society is a monumental undertaking.
For those of you who are reading along with me, I will, in the interest of time, do some jumping about here and there.
Senator MOCLELLAN. Let your statement be printed in the record in full. Please indicate the page you skip to, so we can follow you.
Mr. MAXWELL. I will do that. I am moving from the bottom of page 1 to the second paragraph on page 4. The cut material has to do with changes in the teaching of English since 1909 and points particularly to the critical place of literature and, particularly, contemporary literature, even literature of the moment in effective modern English programs.
In view of the time limit, then, I would like to make that move over to page 4. The goal for a copyright law useful to teachers, as we see it, is to grant the teacher and his students the valid right and privilege of access to current literature and to current products of the mass media in, for example, the documentary of President Kennedy, or reports of hearings such as this one, of the McCarthy hearings, of the current drama of Congressman Adam Clayton Powell.
Beyond this, the poetry, wisdom, and wit of the contemporary book, play, or TV program must with reasonable regulation, be accessible to the classroom and the classroom teachers. We recognize that other property rights are involved; but we know, too, that new freedoms are hammered out of the clash of seemingly settled rights.
Against this backdrop we find much to praise in the proposed bill, especially as we contrast it to the 1909 law and to the bill introduced into the Congress in February 1965. Especially welcome is the revision in section 107 to spell out the nature of "fair use" and to make clear that teachers and scholars stand in a special and unique relationship to materials under copyright.
We have come also to recognize in the open and adaptive relationship of the four criteria for "fair use" a structure that can support the open and enriched classroom during a period when constant change is certain but its directions are not. This doctrine of "fair use”-in its explicit concern for the teacher's need to act with spontaneity in adapting and reproducing pertinent and timely material-supports sound educational practice.
We are equally pleased with a similar recognition of the teacher in section 504, which grants to the court discretionary authority to reduce or to waive the minimum statutory damages in the case of a teacher who in the course of his normal face-to-face teaching activities innocently infringes the law.
Mr. Kaminstein and his colleague have received official thanks from the national council recognizing in the current wording of these two sections of the proposed law the special needs and rights of teachers. Yet certain issues remain, and we are grateful for this opportunity to present them to you.
On the face of it, the provision for reproducing a reasonable number of copies of certain self-contained units of material “not substantial in length" when compared to the larger units from which they are taken seems to be a compromise that is fair both to student and publisher.
We believe, however, that an unresolved issue remains in the language of the report that accompanies the bill. The specific example cited in the report, a “very short self-contained work such as a four-line poem” is not helpful. First, not many poems of value are so short; and, second, such wording might discourage a timid person from reproducing any poetry. Teachers, who are not lawyers, need clear language in order to take full and legitimate advantage of opportunities implied in the intent of the law so that they may teach with spontaneity.
On this one issue we ask no change in the wording of the proposed law; but we do request that the report to accompany the law will make clear either by the other example or additional explanation that “a four-line poem” is a dramatic example, not a ceiling.
We believe, moreover, that the principle of "fair use" so painstakingly developed to release the printed word for the classroom ought to extend to the classroom use of the spoken word on radio and the pictorial image on TV. Powerful and timely essays are broadcast each day. A capacity to analyze, to respond to esthetic achievement, to understand the rhetoric of the moving picture—these should be a part of the awareness of the alert contemporary citizen and should be taught by the schools. A good principle applied to the use of the printed word ought also to apply to other powerful modes of communication.
The schedules of commercial broadcasting were never intended to mesh with teaching schedules in the schools. The teacher cannot regularly change his schedule to incorporate classroom study of programs on radio and television. Indeed, even if he could so change his schedule, there is little on daytime radio or television that would make it worth the effort.
But this criticism of the content of the media is fair only if it also takes into account the heights to which these same media reach at their very best, during evening hours and on weekends. It may be sometime before teachers or schools have at hand portable videotape equipment. But most schools and some teachers have tape recorders.
For any radio program and for some television programs—discussions of current affairs, for example, or literary readings—tape recording would be adequate for instructional purposes, I am not speaking here about instructional or educational broadcasting. Specialists in those fields will have an opportunity to speak later today. But we do ask for the teacher an extension of the privilege to make ephemeral recordings of broadcasts for such uses as fit the immediate needs of face-to-face teaching in his own classroom.
Again, the provision that the court may exempt the teacher who is an innocent infringer seems a fair and viable practice; but the stipulation that an alleged infringer should be charged with the burden of proving his innocence of intention to infringe seems a strange reversal of traditional judicial procedure.
In no small measure the issue pivots on degree of teacher confidence rather than of innocence. As we have already made an effort to estab