TESTIMONY OF AUGUST W. STEINHILBER, CHAIRMAN, EDUCATORS' AD HOC COMMITTEE ON COPYRIGHT LAW, AND MORTON DAVID GOLDBERG, PROPRIETARY RIGHTS COUNSEL, INFORMATION INDUSTRY ASSOCIATION Mr. STEINHILBER. Thank you, Mr. Chairman, for holding these hearings on the Berne Convention. As you indicated, I represent here the Educators' Ad Hoc Committee. The committee consists of nonprofit organizations, which virtually represents every school, college, library, public- and religious-affiliated, and from kindergarten through graduate school. We represent teachers, professors, librarians and school boards. In fact, behind me is Eilene Cook with the American Library Association and Al Sumberg, American Association of University Professors, both of whom will be willing to provide any additional information that I cannot. Mr. KASTENMEIER. We appreciate also the presence here today of those people. Thank you. Mr. STEINHILBER. One of the principal concerns of the Educators' Ad Hoc Committee has been the preservation of the limited right of educators and scholars to use materials that they need for their teaching and research. We normally testify in opposition to most legislative requests made by the copyright industry. By and large, we consider that industry is not concerned with the public good, nor in the words of the Constitution in the promotion of the progress of science and useful arts. Their interest has always been, or it has almost always been monetary or personal in nature. Yet, for nearly three years, the Educators' Ad Hoc Committee studied the issue of Berne. Last year, we took two votes on the issue. The first was whether we should oppose joining Berne, as we have opposed some of the other proposals. The vote was unanimous not to oppose joining Berne. The second one was to support-in other words-whether we should just plain stand aside or take an active position. The vote to support Berne was not unanimous, but overwhelming. You have copies of some of the documents that took place several years ago in the material that I have supplied to the committee. We support U.S. adherence to Berne even though we have nothing to gain from this action. We do so because of our opposition to international piracy and our support of a strong U.S. trade policy. However, as a voice of conscience, we will continue to remind everyone that copyright in the United States did not develop in the same manner that copyright developed on the continent of Europe. Copyright is a monopoly or a government license that must be carefully watched. I underscore that again and again because, as I said, while we are here to support Berne, we also are here to remind everyone that copyright is a monopoly. It is not a "property right" in the traditional sense of that term. While copyright is a monopoly where the U.S. Government provides individuals with limited exclusive license, we need to encourage the development of new ideas and new products. Creators need the financial incentive or they will not continue to produce. For this reason, the Educators' Ad Hoc Committee supports U.S. adherence to Berne, provided we do not lose the rights that education enjoys under current copyright. We do not and will not condone copyright piracy that exists in international circles. But I might add that the word "piracy" is often misused. Every time someone disagrees with the copyright industry, they are branded as "pirates." Before agreeing to support Berne, we studied the following issues and came to the following conclusions. One, what will happen to implementing legislation as it proceeds through the legislative process? We came to the conclusion that we can live with current legislation, but we reserve the right that any amendment which threatens any of the rights of educational users will mean we reserve the right to oppose Berne in toto. The second issue we discussed was moral rights. We came to the conclusion that there is no need for any new U.S. legislation on this issue. Current law is sufficient to join Berne. Every time we hear questions of right to recall, integrity, paternity, not only gives us concern of what could happen to our rights, but it raises issues with respect to First Amendment rights as well. The third issue is public broadcasting compulsory license. Most experts believe that it is compatible with Berne, thus, our concerns were satisfied. The fourth was instructional broadcasting rights under Section 110. No one has ever raised that as being incompatible with Berne, but it was one of the issues which we studied. We have, therefore, since that does not come up-we obviously are satisfied. Fifth, self-execution. Berne cannot be a self-execution. Implementing_legislation must be passed by both the House and the Senate. In no way can Berne supersede U.S. law. There was at least one time that I think a proposal made by some members of the copyright industry to have Berne self-executing or just go through the process of advise and consent by the Senate, which we raised holy hell on, if I may use that term. Our sixth concern is technology. How would Berne relate to the issues involving new technology? Does current Berne philosophy treat all technology the same as music or printed materials? Will copyright lock the U.S. into an obsolete status quo? Computer chips obviously need and receive protection, but should data bases be protected in the same way as other works? How can access be guaranteed, especially when some producers want to keep their products off the market? We came to the conclusion that Berne was not a factor in this issue, although it may be. Indeed, a progressive U.S. stance on technology may shift Berne, rather than the reverse. The issue of technology and copyright needs much further discussion by all of us, but I think that is a matter for this committee and for all of us to look at another day. One of the issues that continued to plague the Educators' Ad Hoc Committee is the future of the Copyright Office. We need a strong, independent Copyright Office. The copyright industry cannot and will not police itself. We ask ourselves, will the loss of formalities reduce the office's power and are there alternatives? The Ad Hoc Committee has changed its position with regard to formality. We have always supported domestic law in requiring copyright notice and registration. In recent discussions within our membership, we have found this is no longer a major issue. However, we are alternatively opposed to some of the things that copyright owners place in their materials, such as the language which appears in the statement. That is, "No part of this book may be reproduced in any form, photostat, microfilm," et cetera, et cetera. This notice obviously makes legal claims far beyond the exclusive rights granted by the statute. Such an effort to stretch the statutory monopoly in excess raises the serious issues of policy and law. Perhaps with the demise of some of the formalities, the Copyright Office should be given additional regulatory authority. That, of course, could be subject to future hearings of this committee. Finally, our biggest discussion of Berne, which centers on what will occur after the U.S. becomes a member, will Berne take positions that will require changes in U.S. law? Users and the public are not normally represented in Berne deliberations. The developing countries sometimes raise legitimate questions and I have witnessed discussions wherein those countries' motives are questioned as supporting piracy. The U.S. delegation on any of these discussions rarely supports or even represents the points of view of developing countries or the points of users. Our worries on the lack of public representation should be part of the legislative history that implements Berne. The Educators' Ad Hoc Committee, however, will not support any future domestic legislation just because Berne has been modified or has reinterpreted its position. However, this is not reason enough to oppose Berne. Indeed, in conclusion, we are not copyright experts, but we believe that the United States can join Berne without hurting the rights of the public. Therefore, we support U.S. adherence to Berne and urge its passage. We thank the committee for inviting us to appear, and if there is any further information we can supply, we would be more than delighted. [The statement of Mr. Steinhilber follows:] before the House Subcommittee on Courts, Civil Liberties February 10, 1988 T 1680 Duke Street Alexandria, Virginia 22314 • 703/838-6710 Thank you, Mr. Chairman, for holding these hearings on the Berne Convention. I am August W. Steinhilber, testifying as Chairman of the Educators' Ad Hoc Committee on Copyright Law. I am also Associate Executive Director and General Counsel of the National School Boards Association. The Educators' Committee The Educators' Ad Hoc Committee on Copyright Law was first organized in 1964 when Congress started to hold hearings on a general revision of the copyright law. The Committee consists of nonprofit organizations representing virtually every school, college and library, public and religious affiliated, and from kindergarten through graduate education, throughout the country. We represent teachers, professors, librarians and school boards. The purpose of the Committee was to communicate to Congress the effect on education and scholarship of various proposals for amending the copyright law. The educators', scholars' and librarians' points of view are regularly communicated to the congressional committees as the bills progress through the legislative process. One of the principal concerns of the Educators' Ad Hoc Committee has been the preservation of the limited right of educators and scholars to use material that they need for their teaching and research. |