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seem of much importance now, but it is never possible to tell, in the great sifting process that goes on through the years by which some writings turn out to be of permanent interest while others are discarded which books will be read by future generations, and which will not. Once the copyright has lapsed, there is absolutely no way for the author to get a return for his work, which may have resulted from years of struggle and effort.

The bill under discussion establishes a single term of copyright, the authors lifetime plus 50 years. The House committee reported that they found overwhelming support for the life plus 50 years system among all concerned in the revision of the copyright law.

I understand that the life plus 50 years is the custom in France and England and almost all Western European countries.

Senator MCCLELLAN. Would all the authors and composers be satisfied with that?

Mr. Dos PASSO. I think so; yes.

Under the present system, the term for which the author or his family could receive an income from the result of his labors is limited. Even if his work is crowned by success, there is the burden of renewal after 28 years. Whether the author gets anything or not, the public will pay the same price for the book.

If the work is in the public domain the publisher gets the whole profit from this sale without having to turn over to the author even the skimpy 15 percent or so of the gross sales of the book out of which the author has to keep himself alive and to feed his family.

I have to admit that I am taking it for granted that the writing of books should be considered in the nature of a public service. The awful amount of print that pours forth from the presses isn't worth much in the long run. But occasionally, a book appears which gives people a fresh understanding of the world they live in, of their lives, of their nation's history. These books come to be what we call classics. You cannot measure in money terms the value of this sort of stimulus, of this sort of illumination. It does seem logical and fair that the poor devil who has labored for years to produce a masterpiece or even an entertaining story that whiles away a couple of hours should get what he could from it for the rest of his life.

The terms of authorship are precarious. We can all think of books that have given instruction to millions as the years went on which have not netted the author the least financial return. Often he has been lucky to keep out of jail, or not end up like poor John Bunyan. In enlightened countries the copyright laws try to give him a break. The present bill includes most of the copyright provisions that have been found to work successfully in European countries. Please allow me to urge most strongly that your committee approve the revisions in the revision bill establishing a copyright term of life plus 50 years. Senator MCCLELLAN. Very well.

Mrs. JANEWAY. May I now introduce Mr. Herman Wouk?


Mr. Wouk. Mr. Chairman-an your distinguished colleaguesmy responsibility is to discuss two main topics, the doctrine of fair use and the problem of the new copying devices. These subjects are covered in our report, between pages 16 and 27.

Accepting your suggestion, Mr. Chairman, I shall speak informally, and when I occasionally quote our report, I shall give you the page


First. About the fair-use doctrine, I speak as a layman. But as a member of the Authors League, and a former officer on the board, I have acquired some background in this topic. Fair use is the legal doctrine which, in special instances, limits the authors otherwise exclusive right to copy; for example, use of excerpts from his work in reviews, in scholarly discussion, in criticism, in parody, and satire. Until this bill was drawn up, fair use, as I understand it, remained a doctrine of the courts. The courts had repeatedly defined it, circumscribed it, redefined it, so that there was a general understanding of what was and what was not fair use. But it was the idea of the Registrar of Copyrights and his office and that idea apparently was picked up and endorsed by the House committee that with the proliferation of copying devices and with the general increasing complexity of the intellectual community, it would be useful to confirm the doctrine of fair use in this legislation. So this bill now contains a brief and clear statement of criteria of fair use; that is to say, use of copyrighted material in the occasional casual ways that I have mentioned without compensating the author.

We authors accept this statement of fair use in legislation. We consider the phrasing in the bill to be good; a phrasing that we can live with.

Beyond that, sir, I want to say-and this is a personal note the discussion of the subject in the House's report, particularly the spelling out of the House's understanding of principles of fair use, struck me as a singularly responsible and thorough examination of this difficult, vexing point which touches the lives and the livelihood of all authors. These may be a historic few pages in the life of the intellectual community, because the report does lay down guidelines and the background and the implications of fair use so well. We support it as a body. I certainly support it as an individual.

The House report-here I refer to page 16, sir-the report "also dispels the confusion surrounding claims made by educational representatives for new privileges to reproduce copyrighted material. The House report makes it clear that the bill does not deprived education of any of the rights to use copyrighted material which it now possesses: 'any educational uses that are "fair use" today would be "fair use" under the bill.' The committee's discussion also makes it clear that certain teaching practices which educational representatives had claimed the revision bill would ban, are within the area of 'fair use' and would continue to be permissible."

Here I depart to say the House report spells out these instances of educational use very helpfully, sir.

Senator MCCLELLAN. May I ask if you think the House bill now clears it up so that both the educational interest and the author's interest are clearly understood and each is satisfied with it?

Mr. WoUK. I can only speak for authors, sir. We will be satisfied with this definition of it. Of course, sir, as you know, both the phrasing in the bill and the discussion in the House report are the outcome of many meetings with both sides. Great consideration is given to the educator, so on the face of it, the educators should be as happy as we are with it. But I can only speak for us.

Senator MCCLELLAN. I understand that we will hear them during this series of hearings, but I would hope the two interests would resolve the difficulty and save us a headache.

Mr. Wouк. I guess and I hope that that has happened, sir. I am sure at any rate that the areas of disagreement have been so significantly narrowed down that the back of the job has been broken, sir. Senator MCCLELLAN. I am very glad to hear it and very gratified. I hope you will have no problem with it.


Mr. Wouk. I now proceed, if I may, sir, to the second topic I have to discuss. That is the question of the reproduction devices that are proliferating at the present time.

Here let me refer to page 17 and to read briefly.

As the House Committee indicates on page 60, there has been an ever increasing development of new machines and devices which reproduce copyrighted works from the printed books in which they were first made available. The new methods include devices ranging from direct copying machines (like the Xerox) to innumerable offset printing devices (which often use masters, produced by Xerox or similar machines, directly from the book being copied) to a variety of photographic and microphotographic processes which reproduce the pages of a book on microfilm, micro-cards and other forms.

Let me depart from the text and bring in a personal note here. It is my privilege to serve as a member of the Board of Trustees of a college in the Virgin Islands, where I live. We are building a library for the college, which is only 5 years old. The problem of storage space arises. Of course, you know you pay by the square foot for building a library or any other building. The question of how many volumes you need and how many you can accommodate is vital. What turned up in the course of this policy debate was that in effect, all the old calculations for building a library were dissolving. A colleague of mine, brought to a trustees' meeting excerpts from the Wall Street Journal so pertinent to the livelihood of authors that I asked him for them. I went through my files this morning and with your permission, I would like to submit them here.

Senator MCCLELLAN. You wish to submit them for the record? Mr. WoUK. Yes, I would.

Senator MCCLELLAN. Very well, they may be received as an exhibit and if we conclude that they should go into the record later, we will have them printed. Let them be received as an exhibit to your testi


(The documents referred to were made an exhibit and may be found in the files of the committee.)

Mr. Wouк. I don't think these are significant documents, rather they are illustrative.

Wall Street Journal, Thursday, December 1:

Breakthrough! National Cash Register introduces practical paperless publishing! A microform system that lets you publish 3200 pages on a four by six transparency, send it anywhere for a nickel, and read it full size when it gets there, again and again.

Then the advertisement goes on to say that the card is indestructible, that it can be easily read, that this will reduce the amount of space needed for books and so on. This revolutionary system is on its


What struck me is that 3,200 pages represents more than my life work as an author to date. It can be reduced to a four by six inch

transparency and be available to readers everywhere, instantly, through electronic communications.

Sir, this is the end of copyright as we know it, as it classically exists. Copyright dissolves, if copyright is payment for the reproduction of a book. Gutenberg's invention has had its run of 400 or 500 years, and now we are going to have this.

What remains, then, if the book, as the essential vehicle of copyright, dissolves. Only the principle is left; the principle that the right tocopy is reserved to the author and his heirs for a term of years. This is his compensation for his precarious, often pioneering work, in the community. This is all he has to look to.

And, sir, the restriction of the right to copy creates a free intellectual community. Before copyright existed, the writer, the intellectual, the thinker was at the beck of a patron; or he was the sevrant of the theological system, or he was an embittered starveling. The restriction of the right to copy makes the intellectual, the scholar, the poet, a free man, able to live by his own efforts.

Sir, this legislation has come at a very lucky time, at a sort of watershed in the history of publishing and of creative life. Now, just now, these devices are coming to the fore as the chief communication systems of the future.

Senator MCCLELLAN. As I understand you, you said there was some provisions restricting the right to copy and use, did you not?

Mr. WoUK. Yes, sir. The discussion of this problem in the House report we consider useful and illuminating, and in general we are satisfied with the conclusions of the House report. I refer now to page 18, sir.

The House report notes that the use of this new technology to make unauthorized reproductions of copyright material threatens the potential destruction of incentives to authorship. It represents a serious danger.

We go on and say that

The cumulative effect of making innumerable small, unauthorized editions of a piece of copyrighted material is as injurious to its author and publisher as if all the copies had been produced by a single infringer and distributed to many readers.

I skip to the bottom of the page, sir:

Some authors, for example, poets and essayists, actually derive the greater portions of their income from authorizing reproduction of small portions of their work in anthologies and other collections, rather than from the sale of the original things from which they are reproduced.

And, sir, right now a small book can be assembled through these reproductive devices, made of a snatch here from one author and a snatch here from another author. It can all be done on these machines. There is no end to the possibilities in the computer use of books, where they can store on a computer the life works of all living authors and have them for distribution in one library, or in a network of libraries all over, at the press of a button.

In meeting this challenge, and in defining the limits of the use of reproductive devices, we support the language of the bill and we appreciate and are grateful for the discussion in the House report. In general, this language and this discussion answer our needs.

Beyond that, sir, I shall be glad to answer any questions on these topics.

Senator MCCLELLAN. May I ask you one question? As you were discussing this, it occurred to me that frequently lecturers, politicians, statesmen will accept speaking engagements. They may be, in many instances at least, paid an honorarium for their appearance. They may very well quote in their address or lecture from some copyrighted material, maybe approving it, as they frequently do. Is that an infringement on a copyright?

Mr. WoUK. I will presume on our counsel, who probably should answer. He is worried about what I will say now.

Senator MCCLELLAN. I may have infringed a few times.

Mr. WoUK. In general, what you have described is almost a classic description of "fair use." You may quote from the "Caine Mutiny," and I would be grateful. That would be fair use of copyrighted material. If, however, your entire appearance at this banquet consisted of your reading in an extremely entertaining and dramatic fashion the court-martial scene from my book and nothing else, that might raise a slight question as to why you were doing that.

Senator MCCLELLAN. If one took a book and interpreted it, excerpted from it and interpreted it before an audience as a lecturer, would that be an infringement?

Mr. WoUK. This would be typical fair use again, Senator, I would


Senator MCCLELLAN. In many instances, actually, they would be advertising the book to your benefit.

Mr. WoUK. Of course, it almost always is.

Therefore, the House sets four criteria: the nature of the work used, the nature of the user, the amount of the material that is used, and the public context in which it is used.

Senator MCCLELLAN. I guess you would have to be pretty much governed by all of the circumstances at the time.

Mr. WoUK. That is what the House spells out and puts into clear good language instead of leaving it to the court.

Senator MCCLELLAN. I did not mean to interrupt this long a time. The thought occurred to me as you testified.

Very well, is there someone else?

Mrs. JANEWAY. Yes. May I introduce our counsel, Mr. Irwin Karp, who will speak briefly on the other matters mentioned in the




Mr. KARP. Mr. Chairman, members of the committee, I will summarize very briefly the remainder of our statement and not read it at length.

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Mr. Wouk, Senator, is almost as good a lawyer as he is an author, and I think he has given you a very accurate statement of the doctrine of fair use as it applies to your examples. I might comment, however, on the assumption that advertising a work by performing it justifies not paying for its use. When you get into more substantial uses, this is a philosophy expressed by various users of copyrighted works, both commercial and nonprofit. Authors are often told by one user that he

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