criminal enforcement...

[T]here is simply no doubt that the expense of litigation in the United States is a practical deterrent to resort to the courts by small plaintiffs. This legislation is a limited response to that reality.

We believe Ms. Schrader's observations are equally applicable to H.R. 671.

H.R. 671 does not unduly constrain judicial discretion. It simply instructs the courts to award "reasonable" attorney's fees in certain cases. The courts may continue to weigh the various factors that have developed under the law to determine what is "reasonable," including the relative complexity of the litigation, the actual sum that the client must pay for legal services, and the relationship of that sum to the damage award itself.

H.R. 671 in no way changes the burden of proof. The small copyright owner must still make his case just as any other litigant must. All this bill ensures is that the small copyright owner will not be unnecessarily chilled in his or her ability to make that case... as he is today.

We

H.R. 671 makes a major concession by not requiring an attorney's fees award in the case of certain infringing activities by nonprofit educational institutions, libraries, archives, public broadcasting entities, or their employees. note for the record that for many copyright industries, including our own, infringements by such institutions are a huge problem. However, our organization does not oppose this concession provided that (i) courts retain discretion to make attorney's fees awards in such cases, and (ii) the scope of infringing activities and infringers covered by the exclusion is not broadened.

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Mr. Chairman, we believe it is always appropriate for courts to be able to grant attorney's fees in copyright cases regardless of the size or nature of the plaintiff or of the infringer - whenever such a grant helps to make the copyright owner whole and to deter further infringements.

To eliminate any ambiguity on this question, we would urge that this Subcommittee make it plain in legislative history that the purpose of the legislation is not to discourage the award of attorney's fees in any case where the court finds such an award to be appropriate based on established criteria.

Rather, Congress should find that special public policy considerations -- the protection and stimulation of entrepreneurial copyright activity compel it to require that those copyright plaintiffs who may stand to be most disadvantaged in the absence of an award should be ensured of an award.

Creativity from all sources, whatever their size, should be protected and encouraged. And we trust it would not be immodest to say that many of the copyrighted works most valued by society are the product of "little guys" like the members of the Coalition for Copyright Entrepreneurs.

Mr. Chairman, you have before you an opportunity to strike a blow for creative entrepreneurialism in America. We urge this Subcommittee to act soon, and favorably, on H.R. 671. Thank you.

This statement was prepared with the invaluable assistance of Jack Copeland, longtime chair of TMA's Copyright Committee, and of John Evans and Roger Seiler, current co-chairs of the

Committee.

ATTACHMENT B

ATTITUDES AND PRACTICES CONCERNING PRE-RECORDED VIDEOCASSETTES AND CURRENT COPYRIGHT LAW IN CORPORATE AMERICA

A study conducted for the Training Media Distributors Assn. by Lakewood Research, Minneapolis, Minnesota

Purpose of the study: to determine how the attitudes, policies and practices of organizations in the public and private sectors that use training programs on prerecorded videocassettes (PRCs) reflect respect for copyright.

Survey: Detailed questionnaires were mailed to 815 organizations in which PRCS are used in training programs, with a response rate of 46.7%.

KEY FINDINGS

Only three percent of all organizations using PPCS for training have policies, attitudes and practices that fully respect copyright (that is, they never or almost never make back-up or archival copies or other unlicensed copies, and they find all reasons for making unauthorized copies to be somewhat or not at all acceptable).

Fifty percent of all organizations have, at one time or another, made multiple unauthorized copies of training PRCS.

Of the 13.7 million PRCS in the video libraries of organizations using PRCS for training, some 1.3 million copies are illegally duplicated for active internal use. An additional 2.9 million unauthorized copies have been made for "archival" purposes.

Among those organizations which make unauthorized "archive" copies of PRCS, illegally-duplicated copies of PRCS account for over 59 percent of their total inventory of PRCS.

The combined total of unauthorized, illegally-duplicated copies of PRCS for active use and "archive" copies equals 33.6% of the total number of legal copies of PRCS owned by all user organizations. That means as much as one-third of potential sales of training PRCS to organizational users are