Not only in terms of information storage and retrieval but also in terms of photocopying devices, the exemption of multiple copies of excerpts or quotations proposed by section 111 is equally and more immediately devastating to the authors and publishers of educational material. The need for duplicating copies in the classroom seldom extends to a whole work; it is precisely excerpts or portions of works that are copied as sufficient for any one day's lesson and as a replacement for the copyrighted work.

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. 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"? Is it 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 teacher's 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 common sense 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 system.

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.

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. The doctrine of fair use is very important to educators and to all others concerned in providing a workable, commonsense application of the letter of the law to a myriad of unforseeable individual circumstances. We all, educators and proprietors alike, have a major common interest in preserving that function.

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 teachers' 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 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 extremely low. In fact, on a national average, the textbook budget is only between 1 and 1% 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 this syllogism is agreement with the principle of full and immediate access for teachers to copyrighted materials 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. We propose a simple method for dealing with them. These are the persons with whom publishers and other suppliers of instructional materials normally deal. We are therefore prepared to discuss and implement our proposed licensing system with them.

The ATPI again urges that the section 107 on fair use remain as set forth in H.R. 4347. We propose that after the word "transmission" at line 35, of section 109, there be added "by non-commercial radio or television" and that the same phrase be added after every other use of the word "transmission" in section 109.

In view of our analysis of the definition of "exhibit" and "perform" we ask that on page 8 at the end of section 109 after line 36, there be added the following:

"Notwithstanding the provisions of section 106 (b) (1) and (2), for purposes of this section

"(a) To perform' a work means to recite, render, play, dance, or act it. "(b) To 'exhibit' a work means to display a material object in which the work or a copy of it is embodied."

As more fully set forth in the address on "Law and Computers in the MidSixties" which I earlier asked to have placed in the record, we call your attention to section 401 (the notice of copyright section) of H.R. 4347. Because of the kinds of piecemeal output possible, the requirements of notice set forth in section 401 of H.R. 4347 should not apply to computer output.

There have been statements and testimony in the course of the hearings that require clarification and in some instances need to be refuted; this we should like to accomplish by submitting a written statement at a later date.

Mr. KASTENMEIER. What is the present state of the law with reference to protection for authors-publishers, in terms of copyrighted material and storage and retrieval systems?

Mrs. LINDEN. This is the subject of very interesting controversy. I can only suggest what others are urging and submit what I hold this view to be.

Obviously, the act of 1909 does not use generic language that is clearly applicable to computers, because computers didn't exist.

However, the input of information into an information and storage retrieval system, we believe, is the making of a translation or new version of a copyrighted work. If it is either on the basis of it being a derivative work, or a new version, or a compilation, or an anthology, or a translation, we believe that the input into a computer of a copyrighted work is protected under the present law.

H.R. 4347, by the use of much more appropriate language, proposes to continue that protection.

Mr. KASTENMEIER. Mrs. Linden, I know you heard most of, or a good deal of, the testimony given before this committee. You have been in attendance here. And I think you probably alluded to the testimony of Mr. Banzhaf, the young man who testified for the Computer Program Library, and while he didn't purport to speak for the industry, he had his own views to give the committee.

Also the Air Force had some views on really this type of system. Do you have any special comment on the testimony of either of those people.

Mrs. LINDEN. Well, I think that if I may, I would like to suggest the following:

There are two things that happen to us when we have great and immediate needs to utilize a product. We recognize our needs, and we respond by attempting to have them met. We don't always have experience in the broader areas and activities of others, and to that extent, we are not always equipped to recognize whether we are or are not impinging upon the rights of others. I think that is what has happened here. Mr. Banzhaf's testimony was interesting to me in that regard. He recognizes that he is creating something, a computer program, and therefore he wishes to have commercial and monetary protection for it, and he is right. In our system of economic private enterprise, unless he is paid for it, he will not continue to produce that kind of product, and it is a socially useful product. However, in order to create his socially useful product, the computer program, he has got to have something to program.

What he must program are, in large measure, copyrighted works, the works of others. These others, too, I submit, have to live within the framework of our economy.

What Mr. Banzhaf and others do not recognize is what the computer programer is really creating is a new kind of anthology.

He is taking the works of others and creating an electronic, not immediately visually perceivable anthology, and instead of putting it on pieces of paper between hard-bound covers of a book this anthology is fed into wonderful new machinery which makes the contents of the anthology much more readily available and accessible to the user. However, the crux of the problem is, in making this socially useful machinery available, and access to this new kind of anthology available, should you take the copyrighted works of the author, and the efforts of the publisher, and conscript them? Should there be preemptions? And in our society, if we do that, we create two new problems. We then are left with the choice of either nationalizing educational publishing, or accepting that only the large, the half dozen or so large manufacturers of this new wonderful machinery, will take over the function of hiring and paying authors. This creates problems of antitrust, of monopoly, of editorial view. It limits the number of authors beyond that which competitive, diversified authorship and publishing makes possible in our society. Those of us who are interested in civil liberties and free flow of information must recognize that free, competitive expression of diverse points of view are only possible if a man who wishes to express these views can afford to take the time out to express them and is paid for so doing.

One comes to the inexorable conclusion that in the preservation of freedom of expression, of giving incentive to authors to continue writing, one must preserve their way of earning a living. If you are going to have a private publishing industry, one must preserve their reprint rights. The present copyright law does not take them away from the original publisher and say any paperback or reprint house can reprint without cost or permission.

It shouldn't be done under the proposed law just because the machinery is a brand new, elaborate system called computers.

Mr. KASTENMEIER. You have dealt with the most common problems, most common to the textbook industry, and particularly as relates to teachers. The same day, that is, as Mr. Banzhaf testified, someone who also testified, I think, Dr. Boyd on behalf of the American Historical Society and the archivists, posed a different question, but it is related to this, insofar as what you propose would affect the freedom of archivists to have material retrieved who are doing special research for themselves. How would your proposal affect their ability to have retrieved information or photocopying information from one historical library, let us say, to another?

I understand the systems are being evolved whereby a student researcher may be at the University of Chicago, and have material made available to him in some form or another, whether it is displayed by some form of machine, in miniature, from a distant place.

How would your proposal legally affect the freedom of such people to gain material for themselves for their own research?

Mrs. LINDEN. Well, first of all, if I may take the extra moment, most books are purchased by people for their own use, and they buy only one copy. It is not very often that people buy six copies whether it is "Gone With the Wind," or a textbook on French. Within the area of text and reference works, the only market are the students, the researchers, and so forth.

To that extent, the principles of private enterprise must apply to them.

To the extent that we willing acknowledge the need for ready, rapid unimpeded access to our material, these students and these researchers would also be included, obviously, in the licensing system. They could, whether it is through their schools, their research bureaus, or even as individuals, obtain annual licenses for use of copyrighted material. Thus they would not be bothered with the red-tape of seeking of permission per use.

However, gentlemen, if one says that that copyright material should be free, unpaid for, if used for research then one is in fact suggesting no copyright law relative to educational and instructional works.

My 16-year-old son does a paper on Columbia, and that is his special research project. Research covers anything, anybody. There are 70 million people in the United States, I believe, as of last count, who participated in educational courses last year. That is all education.

What educational book publishers do is to service the needs of education, and these people, these users, use one copy at a time. It is only single copies, and frequently it is not even single copies; it is portions, excerpts, quotations, from these works which fulfill the needs of the

consumer.

And therefore, unless the economic right is preserved, the industry and authorship will suffer.

Now I would like to make one point with respect to historical documents, unpublished historical documents that have been in perpetual copyright, so to speak, because they have remained unpublished. The archivists have a point. It may be that H.R. 4347 is making them wait too long before these special materials become available to them. However, the availability of these special materials in no way injures the capacity of an author to earn a livelihood from his works, because

they haven't been published anyway, and most of these authors are long since dead; nor does it injure publishing, because obviously these works are in manuscript form, and aren't published, so that I do express sympathy with these very specialized archival problems. But when you talk about students, and you talk about researchers, I submit you are talking about almost everybody, and any exemption that encompasses that kind of concept really is a destruction of the copying rights, and the copyright law itself.

Mr. KASTEN MEIER. Thank you.

Mr. Edwards?

Mr. EDWARDS. Thank you, Mr. Chairman.

Mrs. Linden, I presume that most of the income of your clients, the American Textbook Publishers Institute, comes from public funds? Mrs. LINDEN. I am sorry?

Mr. EDWARDS. May I presume that most of the income of your clients, the American Textbook Publishers Institute, comes from public funds?

Mrs. LINDEN. I have no statistics, but I am certain that a fair amount of the money that is allocated to education which finds its way to the purchase of textbooks, of which our industry sold, I believe, roughly 500 million last year, must in large measure find its source in public funds, yes, Mr. Edwards.

Mr. EDWARDS. However, can't your industry in its bargaining with the school authorities obtain adequate compensation for your books, including the possible extra uses that might be made by the schools by way of photocopying, et cetera?

Mrs. LINDEN. Well the answer is "No." Because it would be unfair to the schools and the teachers, in large measure, and economically not feasible. If the price of a schoolbook had to go from, say, $3 to $10 because photocopying replaces three-quarters or half of the books purchased, the school system or the school board that is poorer and buys fewer books and has fewer students would bear the brunt. I know this for a fact, because this problem has arisen in one branch of our industry, and that is in test publishing. The test publishers of aptitude tests, and so forth, sell a test booklet for psychological testing. They sell the test booklet for a dollars, and it is fairly costly. However, the cost of the test booklet itself does not cover the cost of research, the cost of maintenance of statistics and measurements and standards. The way this industry earns enough to stay in business, and the incentive to continue researching in this field, is by selling answer media. Those are the answer sheets and the punchcards.

The way this works is that a school will buy a number of tests, say a small number, and they will use them, year after year. And the bigger school buys more answer sheets, and this affords a proportionate share of the covering costs of the test booklet and profit to the test publisher. The small school buys very few. If we loaded the cost onto the test book itself, the small school could not afford to buy the test book or the answer media.

Mr. EDWARDS. Thank you. But you want a higher price for your textbooks by the statute, because you fear that these new technologies are going to result in fewer sales in the future?

Mrs. LINDEN. No, we do not want a higher price of textbooks at all. On the contrary. What we say is that we deal with textbooks with the