The significant fact about all of the devices for information retrieval and photocopying is this: they are designed to replace the printed book. They will make one book do where a hundred had been used before.

The basic purpose of the first book published, in fact, the first clay tablet, was to record information, store it, and make it available for later retrieval.

Nothing has changed since except the technology. Although they are referred to as devices for information storage and retrieval, they are in fact devices for printing and distributing literary works created and first published by others.

Whether you photocopy a publication of another, or it goes through the more elaborate mechanisms of an information storage and retrieval system, the end result is that photocopying equipment and information storage and retrieval devices really fulfill the functions of a new, speedy, accessible and more efficient reprint publishing house. Obviously, reprint publishing is subject to the provisions of copyright law. Whether the reprint publishers are Xerox machines or information storage and retrieval systems or other duplicating devices, the philosophy and the principle are exactly the same.

The only difference, really, between clay tablets, conventional publishing processes and computers and photocopying is one of efficiency and convenience. There is no philosophic or economic logic to exempting from licensing or fee the use of an author's work simply because newer devices are instituted for an older machine.

If the rights of authorship intended by copyright legislation are to remain real and of practical economic worth, the impatient urge for unimpeded access to copyrighted material cannot, must not, include exemptions in the copyright law that result in the disappearance of private authorship and publishing by authorizing free use of the fruits of their labor.

I did not come before you only to urge philosophical and intellectual conclusions. I have been authorized by the American Textbook Publishers Institute to describe a blanket licensing system for copyrighted materials which would satisfy this year's needs as well as the future needs of educators and researchers for unimpeded but not unpaid for access to copyright material.

ATPI proposes to set up a clearinghouse for the reference and instructional materials published by its member firms. Their materials will be available to information retrieval systems now found chiefly in government and industry but soon to be installed in networks of college libraries and in our public schools.

Gentlemen, would you like for me to describe the clearinghouse, briefly, or rely on my submitted statement as part of the record? Would that be sufficient for your purpose of questioning me on it? Mr. KASTEN MEIER. You do not in your statement describe it? Mrs. LINDEN. I do describe it in the statement.

Mr. KASTEN MEIER. Why don't you summarize a description of it? Mrs. LINDEN. Actually, what we are anticipating is a blanket license system, a system whereby the teachers, the educators, are not involved in red-tape, but have free, unimpeded access on an annual basis to appropriately limited portions of the catalogs of educational and instructional book publishers (except for consumable works).

The system which we set forth here is set forth in very general terms, and of course, is subject to revision. We have lent financial support to the Committee to Investigate Copyright Problems Affecting Communication in Science and Education, in their effort to engage the Social Science Research Institute of Washington, D.C., in a sampling study.

This sampling study, as Dr. Meyerhoff will undoubtedly amplify, is intended to present an outside, objective group's evaluation of the feasibility of collecting money on a blanket license system, and give blanket permissions for use by the school and by educational libraries of copyrighted material.

The purpose of the sample, of course, is to figure out who gets paid for what, and how does one police uses, because essentially, it is intended that the teachers or even the schools or the school systems should not be involved in a per use clearance and permissions problem. All that this system intends is that, as this kind of reprinting by photoduplication cuts down the market for the original printed book, the publisher and the author share in the income, in the same manner as they do in any other kind of reprint publishing that occurs today, in the more traditional fashion.

It is with this kind of system in mind, resulting both in ready access to teachers and students, that we make the following specific comments on the language of H.R. 4347. May I call your attention to section 109 and restate the point of view expressed by Mr. Deighton in his testimony of May 26 as it pertains to information retrieval. Even though the Register of Copyrights Supplemental Report of May 1965 would suggest a more limited intent, the exemptions afforded in subsections 1 and 2 of section 109 could, in fact, permit educators to use all copyrighted materials in information retrieval systems without permission or payment to the copyright owners.

This freedom is afforded by relating the applicable definitions in sections 101 and 106 to section 109. In other words, section 109, which is the exemption provision, uses language that is amplified in section 101, and is defined there and in section 106.

The key words to which I have reference are "to perform" and "to exhibit," and these words are defined in section 106, lines 32 through 38.

As used in the proposed law, "exhibition" and "performance" are not the generic terms you and I might suppose. They include the utilization of any device or process, and the definition section at page 3 assures us that machines or devices or processes include anything now known or later developed.

Therefore, any exemption that is included in 109 would probably include information storage and retrieval and photocopying as I have outlined it today, as well as developments that none of us could foresee. The exemption of a piano roll performance of a musical composition did not in 1909 contemplate the jukebox exemption; that analogy is self-evident.

It is also interesting to notice that the words "to transmit," to which attention was called when Senator Keating and Mr. Deighton were testifying, is one, also, that is set forth in section 101, not as being limited to radio and television broadcasting, which a first reading of section 109, part 2, would lead one to believe, but "to transmit" is

defined as and remember the broad words of "to perform and exhibit" in section 106

to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

Obviously, the transmission, the communication from one location to another of images and sounds clearly includes information storage and retrieval.

Therefore, you are asked to grant exemptions to the kind of classroom uses of computers that the NEA describes in their monograph, and that the Wall Street Journal assures us is economically realistic. The ad hoc committee of the NEA proposed a section 111, and it seeks to broaden even further these exemptions.

Their exemptions would include:

A reasonable number of copies or phonorecords of excerpts or quotations from that work, but only where the excerpts or quotations are "not substantial in length in proportion to their source."

When added to the performing, exhibiting, and transmitting the work by information storage and retrieval already exempted in section 109, the result would be that copyrighted works could be used in all phases of information storage and retrieval and the copyright owner completely bypassed if such uses were for educational purposes.

You have heard pleas from teachers and their representatives that their teaching activities are being hampered by uncertainty as to what they may and may not do under the doctrine of fair use. Yet their proposed section 111 uses such uncertain terms as "excerpts," "quotations," and "reasonable number of copies" as exempt items.

What is an "excerpt"? Is it today's lesson? What is a "quotation"? It is any portion of a work that one quotes? What is a "reasonable number of copies"? Is it any number reasonably required by the number of students in a classroom?

It is submitted that the proposed section 111 in no way meets the teachers request for certainty in the law. Neither does the section 107, the fair use provision of H.R. 4347, meet their request for certainty.

The doctrine of fair use was never intended to afford certainty of the law. On the contrary, the whole purpose and philosophy behind a doctrine such as fair use is to give elasticity to what otherwise might be rigid statutory language.

For example, the copyright law gives exclusive copying rights to the author. Taken literally, this would mean that even in literary criticism, not a phrase of an author's writing could be quoted for inclusion in a literary critique.

In order to avoid such and similar literal interpretations of the copyright law, a doctrine developed which essentially is one of commonsense and judicial judgment. It was not, and I submit, it is not intended as a broad umbrella under which a technological revolution can be sheltered.

The best analogy that comes to mind is the concept of "public welfare" which we readily acknowledge as an overriding consideration. This concept has been available to our courts since the adoption of our Constitution.

No one, to my knowledge, has ever seriously urged that the concept of "public welfare" should be defined in a statute so that there be certainty as to what it means and encompasses. Any statutory definition, qualitative or quantitative, of what constitutes "public welfare" would result in the destruction of the very flexibility which it has preserved in our judicial and legislative systems.

We submit that any definition of what constitutes fair use, qualitatively or quantitatively, would destroy the flexibility and the public policy aspects of the doctrine of fair use itself.

Because it is the essence of the doctrine of fair use to provide commonsense flexibility in the application of a general rule to individual cases, we believe that the usefulness of the doctrine would be impaired or even destroyed by trying to make the doctrine itself into an inflexible general rule.

Certainly, we should not, under the guise of redefining fair use, attempt to make a major change in the underlying law itself.

The law should be stated in its own terms; fair use should remain as it is a protection against the unreasonable or arbitrary or unfair application of the letter of the statute in specific cases.

As such, it is highly relevant to the practical needs of educators, but it is not a relevant device for amending the law.

Neither are the teacher's pleas for certainty as to what they may or may not do with copying devices presently on the market met by their proposed section 111.

Despite some affirmative responses to your inquiries as to whether education should have unpaid-for access and use of copyrighted works, it is not really likely that the teachers of this Nation really wish to destroy private authorship and private commercial educational publishing.

It is more likely that the syllogism of their position is as follows: 1. The teachers are hard pressed, hard working, and wish to make as much instructional material available to their students as possible. 2. To do so, they would like to make multiple copies of whatever they deem to be "excerpts" or "quotations" for use by their students, and one full copy for their own convenience.

3. They wish to have this right to reproduce copyrighted works without unnecessary red-tape.

4. The teachers know that the textbook budget in their respective schools is exteremely low. In fact, on a national average, the textbook budget is only between 1 and 12 percent of the total school budget.

5. Photocopying machines and paper are not part of the school textbook budget but come under the broad umbrella of "supplies." Therefore, to protect their textbook budget, they are seeking to obtain additional instructional material in other ways.

Our response to their syllogism is agreement with the principle of immediate access for teachers to copyrighted material for photocopy, overhead transparencies, or use in computers.

However, we believe that this use should be paid for. We believe that those who made the budgets for our school systems will provide the necessary funds.

Now as to our suggestions for a blanket licensing system. We are prepared to discuss and implement our proposed licensing system with the educators, with the school superintendents, and with all with

whom we deal in that area. I should add that normally the teachers do not in fact pay for the textbooks. These are negotiated for and purchased by the school systems. It should not be all that difficult to negotiate blanket licensing systems with the appropriate parties.

We have followed your suggestions, Mr. Tenzer, made May 26, and therefore suggest specific language changes to take care of what we feel is inappropriate language, and inappropriate exemptions in proposed H.R. 4347. These are set forth in my full statement.

Mr. KASTEN MEIER. Thank you, Mrs. Linden, for an excellent analysis, together with suggestions, specific suggestions both as to language and as to a process, dealing with this problem.

You perhaps would like to make your statement, at least that part of your statement which was not given orally, in which you describe the licensing arrangement, a part of the record.

Mrs. LINDEN. Mr. Kastenmeier, my statement does contain, I believe, more appropriate language, and therefore, with your permission, I would prefer if the entire statement was considered formally part of the record.

Mr. KASTENMEIER. Without objection, it will be received and made part of the record.

(Statement referred to follows:)

STATEMENT OF BELLA L. LINDEN ON H.R. 4347, SUBMITTED IN BEHALF OF THE AMERICAN TEXTBOOK PUBLISHERS INSTITUTE

Mr. Chairman, and members of the committee, I am a member of the firm of Linden & Deutsch, and am appearing today as copyright counsel of the American Textbook Publishers Institute.

I will not repeat the testimony of Senator Kenneth Keating and Mr. Lee Deighton offered on May 26. My statement today will be devoted to the impact of information storage and retrieval and new photocopying devices upon book publishing and the implications of this impact upon copyright legislation.

With your permission, I would like first to present the basic premise of my statement: a technological revolution in the world of authorship and book publishing is not imminent, is not prospective, but has already occurred. The computer age is here. The mechanisms of information storage and retrieval are in use. The devices of photoduplication are commonplace, economically feasible, convenient, and in constant use.

May I recall to you the words of the Register of Copyrights in the opening pages of his report to this committee, dated May 1965. He said:

"In recent years we have seen, among a multitude of technological developments, the introduction of communications satellites, the tremendous growth in information storage and retrieval devices, changing patterns in broadcasting including the emergence of educational television and community antenna systems, radical changes in teaching methods by the use of new audiovisual devices, the proliferation of copying machines, and remarkable developments in the use of video tape. *** I realize, more clearly now than I did in 1961, that the revolution in communications has brought with it a serious challenge to the author's copyright."

Those of us who have regularly attended these hearings or have read all the testimony have responded with the deepest respect to your rapid grasp of a highly technical bill. We have the fullest confidence that you appreciate the far-reaching prospective nature of the legislation before you. It is not simply a matter of long overdue revision of a 1909 statute. You are in fact confronted with decisions that may determine whether the intellectual gross product of the United States will continue to be the output of private authorship and private, competitive publishing.

May I request that an address which I gave in a course of study entitled "Law and Computers in the Mid-Sixties," cosponsored by the Joint Committee on Continuing Legal Education of the American Law Institute and the Ameri