The committee will stand adjourned until 1:30 o'clock p.m. (Whereupon, at 12:15 p.m., the hearing recessed, to reconvene at 1:30 p.m., the same day.)

AFTERNOON SESSION

Senator BURDICK (presiding). The next witnesses will be Dr. Fred Siebert, dean of the College of Communication Arts, Michigan State University, and Arthur R. Miller, professor of law at the University of Michigan Law School.

You may proceed in any order you wish.

STATEMENT OF DR. HAROLD E. WIGREN, CHAIRMAN-(Resumed)

Dr. WIGREN. Mr. Chairman, the ad hoc committee very much appreciates this opportunity to extend its discussions before you this afternoon. The witnesses this morning constituted part 1 of our panel and this is part 2 and part 3 this afternoon.

First in part 2 there will be instructional uses of computers, followed by uses of new educational technology; then in part 3, uses of copyrighted materials in educational broadcasting.

First of all, we will have Dr. Fred Siebert, dean, College of Communication Arts, Michigan State University, on computers.

STATEMENTS OF DR. FRED SIEBERT, DEAN, COLLEGE OF COMMUNICATION ARTS, MICHIGAN STATE UNIVERSITY; ARTHUR R. MILLER, PROFESSOR OF LAW, UNIVERSITY OF MICHIGAN LAW SCHOOL; DR. ANNA L. HYER, EXECUTIVE SECRETARY, DEPARTMENT OF AUDIOVISUAL INSTRUCTION, NATIONAL EDUCATION ASSOCIATION; AND ROBERT TAYLOR, DIRECTOR, EDUCATIONAL MEDIA CENTER, BEDFORD PUBLIC SCHOOLS, NEW YORK

Dr. SIEBERT. Mr. Chairman and members of the subcommittee, I am Fred S. Siebert, dean of the College of Communication Arts of Michigan State University, East Lansing, Mich., and I have been serving as copyright consultant to the American Council on Education. I appear before you on behalf of a subcommittee of the ad hoc Committee on Copyright Revision. This subcommittee has been studying the effects of the proposed copyright revision on the problem of the storage, analysis, and transmission of information, especially as this revision affects education and research.

The testimony of this subcommittee of the ad hoc committee will be divided between Prof. Arthur Miller, of the University of Michigan Law School, and me.

We have three recommendations we would like to make:

1. An amendment to section 110-2 of S. 597 to permit wider educational and research use of data processing machines and other devices; 2. A clarification of the effects of copyrightability of computer programs; and

3. A recommendation that a statutory study committee be authorized to study and make recommendations on the effects of copyright on the developing and experimental field of storage, analysis, and transmission of information.

I shall discuss recommendation No. 1, and Professor Miller will present our recommendations on No. 2 and No. 3. If it is agreeable with the chairman, we will make our presentations and then submit ourselves jointly for questioning.

I submitted testimony to this subcommittee at its hearings in August 1965, on the problem of copyright revision, but at that time I confined my remarks to instructional uses of copyrighted materials. It was not apparent at that time to me or to my colleagues that the proposed bill would seriously hamper the use of transmission devices in instruction and research. These restrictions became clear to us after reading the report of the House Judiciary Committee on Copyright Law Revision issued on October 12, 1966-Report No. 2237, 89th Congress, second session, page 53.

I quote from that report:

Although it was touched on rather lightly at the hearings, the problem of computer uses of copyrighted material has attracted increasing attention and controversy in recent months. Recognizing the profound import that information storage and retrieval systems seem destined to have on authorship, communications, and human life itself, the Committee is also aware of the dangers of legislation prematurely in this area of exploding technology.

In spite of this statement, the committee has proceeded to freeze the law affecting the use of copyrighted material in transmission systems in favor of the interests of the copyright proprietor. Our subcommittee hopes that the situation as it is presently under existing copyright law be allowed to continue until such time as the full effects of transmission systems are known and until a statutory study committee can make recommendations for changes.

The House committee report further states at page 54:

Thus, unless the doctrine of fair use were applicable, the following computer uses could be infringements of copyright under Section 106: Reproduction of a Work-or a substantial part of it-in any tangible form-paper, punch cards, magnetic tape, et cetera-for input into an information storage and retrieval system, reproduction of a work or substantial parts of it, in copies as "print-out" or output of the computer; preparation for input of an index or abstract of work so complete and detailed that it would be considered a "derivative work"; computer transmission or display of a visual image of a work to one or more members of the public.

We contend that this language of the House report, together with section 106, extends copyright protection to computer transmission uses, and tends to freeze the law in favor of the copyright proprietor and to the detriment of the copyright consumer during this transition period of development and experimentation. We submit that the restrictions imposed by this bill and the accompanying House report will seriously hamper instructional uses of the newer devices as well as scholarly and scientific research and experimentation, and consequently harm the public interest.

In President Johnson's recent message to the Congress on education and health in America, he said that he was directing the National Science Foundation to work with the Office of Education "to establish an experimental program for developing the potential of computers in education." Noting that computers already are being used in educational institutions, primarily to assist advanced research, he said the computer can be used for other purposes "if we find ways to employ it effectively and economically, and if we develop practical courses to teach students how to use it."

The book publishing industry is properly concerned over the effects of computer and transmission uses of copyrighted materials on their incomes. However, the input of copyrighted materials into a data processing device for instructional and research purposes should not at the present time seriously interfere with their profiits. It is presently sufficient that they can collect royalties for the output in the form of hard copies. No one objects to paying royalties for reproducing hard copies of a copyrighted work whether by print or by computer devices.

A further defect of the present bill is that it fails to make any distinction between transmission in a closed or point-to-point system and transmissions which are broadcast to the public. The exemption for systematic instructional programs in section 110-1 extends to both closed and open transmissions and treats both alike. A closed circuit instructional program transmitted to university classrooms and dormitories is treated just like a broadcast transmission which can reach millions of people.

I should also like to point out that the 100-mile limitation in section 110-2-B is totally unrealistic. If a geographical limitation is necessary and I do not think it is then it should extend to the boundaries of a State which is the normal limit of educational jurisdiction. Many States are now engaged in setting up statewide networks of instructional programs, and these should come within the exemption.

In order to unfreeze the proposed copyright restrictions on computer uses and in order to free closed circuit transmission from the limitations on broadcast transmission during the developmental and experimental stage, the Ad Hoc Committee on Copyright Revision submits an amendment to section 110 of S. 597, as follows:

(The proposed amendment above referred to follows:)

PROPOSED AMENDMENT TO SECTION 110 or S. 597 BY THE AD HOC COMMITTEE ON COPYRIGHT REVISION

Sec. 110. Limitations on exclusive rights: Exemption of certain performances and displays

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

"(1) ***

"(1A) Performance or display of a work by instructors of pupils by or in the course of a closed transmission by a governmental body or other nonprofit organization if such performance or display as in the course of the teaching or research activities of a nonprofit educational institution, unless otherwise provided for in regulations issued pursuant to the provisions of section hereof. "(2) ***.

(NOTE.-Italic matter is new.)

Dr. WIGREN. Did you wish that Professor Miller now give his statement?

Senator BURDICK. Yes.

Mr. MILLER. With the chairman's permission, I would like to have my statement entered into the record. I do not wish to read it but prefer to make a few extemporaneous remarks.

Senator BURDICK. Without objection, it will be received in the record.

Mr. MILLER. On Tuesday of this week, at the invitation of Senator Long of Missouri, I had the privilege of appearing before his Sub

committee on Administrative Practice and Procedure on the question of computers and privacy. I would like to start my statement with a few remarks along the same lines as those I made to Senator Long's committee.

When one talks about the computer, one is talking about a new communications medium. A computer is not an individual machine situated in a fixed position at a particular place. A computer is the heart of a new way of transferring information from point to point around the world, in a fraction of a second, and in great mass. Data processing is a technology that is less than two generations old. It is a technology that has enormous capacity and about which we know comparatively little at this point. Judging by our experience since World War II, we can assume that this technology will continue to expand and grow in a number of directions and that its applications in such areas as social, medical, and natural science research, teaching, library science, and a number of professions are bound to increase.

Yet, despite the embryonic character of this technology and our comparative ignorance of the directions it will take, Senate bill 597 forces us, perhaps as early as this year, to make decisions relative to the interrelationship between computer technology and copyright policy. Now, there is nothing wrong with trying to work out such an interrelationship, and enacting legislation codifying it, but Senate bill 597 is not the product of such an effort. Despite the fact that 10 years have gone into the development of the bill, there has been virtually no examination of the question of computers and copyright-there really hasn't been any attempt to investigate the ramifications of this emerg ing and exploding technology and to study its implications in terms of overall copyright policy. As we argued this morning, as Dean Siebert said a few moments ago, and as the committee report accompanying the House bill admits, nothing substantial has been done on the question of computers and computer technology. The magic words used by the House committee are touched on rather lightly.

In recognition of the lack of past study, we find that everybody is now calling for future study. In her statement yesterday for the American Textbook Publishers Institute, Mrs. Linden endorsed the need for study. So did Mr. Deighton's statement for the same organization. He called for more study, although his statement seems more oriented toward the problem of finding methods of handling copyright commissions. Those are his words. With all due respect, he seems to have prejudged some of the basic issues a bit. Mr. Manges, speaking for the American Book Publishers Council, also called for further study. And to round out the chorus, we of the ad hoc committee call for further study.

There is a difference in the clarions, however. The publishers say legislate now; study later. We say study first: legislate second. Now, why do the publishers say legislate now; study later a proposition most rational men would say is erroneous on its face? Were Senate bill 597 a neutral bill with regard to data processing technology, were the bill silent, we could say, fine, since it will preserve the status quo for a few more years, let us enact the basic legislation as now proposed, have a Federal study commission appointed under any one of a number of procedures that could be set forth in the bill itself, and

ultimately, recommend thoughtfully considered, rational legislation to the Congress dealing with the computer.

But the simple fact is that Senate bill 597 is not neutral with regard to the computer-and this point must be emphasized. Contrary to the suggestions made yesterday by the publishing representatives, the bill is not silent on the question of the computer. Contrary to Mrs. Linden's remark in her prepared statement that "Senate 597 makes no reference to computers," Senate 597 explicitly deals with computers in section 110(2), and, because of the broad language of the bill, Senate 597 implicitly also deals with computers in sections 101, 102, and 106. Moreover, the committee report accompanying the House bill discusses computers at several points.

It should come as no surprise to the subcommittee that those provisions in the bill that do relate to data processing technology effectively restrict the utilization of computer technology by education to the point where the traditional exemptions have been rendered illusory. It also should come as no surprise to the subcommittee that the publishers' notion of legislate now; study later, simply reflects the fact that Senate 597 effectively blocks the use of computer technology with regard to copyrighted materials to a degree that makes the bill as favorable to their special interests as one could imagine. Ever since the inception of copyright legislation in the United States, the Congress has consciously followed a pattern of recognizing the status of education in our society and granting it certain exemptions, which we might term the traditional exemptions, for certain nonprofit uses of copyrighted materials. Insofar as computer technology is concerned, the proviso in section 110 (2) of Senate 597 deviates sharply from these traditional exemptions and denies their use to education when it desires to apply the blessings of the new technology to the instruction of the Nation's schoolchildren.

Senator BURDICK. Would you refer to that language?

Mr. MILLER. Yes, section 110(2) (D), in dealing with the so-called transmission exemption, which really is primarily directed at educational television, lists a series of limitations on the exemption, and as a final proviso it says that the exemption does not exist unless "the time and content of the transmission are controlled by the transmitting organization and do not depend on a choice by individual recipients in activating transmission from an information storage and retrieval system or any similar device, machine, or process."

That language, Mr. Chairman, imperils the ability of education to use computers and computer-assisted instruction at all levels of education and destroys a longstanding practice of legislative relief for the teaching profession from certain copyright restrictions. As I said before, Senator, this is not a neutral bill and section 110(2) (D) demonstrates that.

Senator BURDICK. If that language were deleted, would it be a neutral bill?

Mr. MILLER. No; I was just coming to a second aspect of the bill that is far from neutral. This is the question of input. If you piece together the language in sections 101, 102, and 106 and a variety of passages in the House committee report, which was the subject of great discussion and notoriety this morning, it is clear that the revi