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Mr. TENZER. Well, when you analyzed this proposal, with your associates, you must have had something in mind, either basing the license fee on the number of textbooks sold to the schools, or on the basis of the number of students in the schools. Will you tell us about it?
Mrs. LINDEN. We have thought of either possibility, and may I suggest that we are actively cooperating, have lent our support, to a totally independent group, and Dr. Meyerhoff is going to address you next in respect of that group, and that is a committee in its origins, I believe, of scientists, of researchers, of librarians, and they were joined by machinery manufacturers and they were joined by book publishers, and they were joined by the Authors League, the American Textbook Publishers Institute, and the American Book Publishers Council, to see if an independent agency could devise a system that would be fair both to the publishers and to the users.
Mr. TENZER. Then at the present time, you or your organization do not have a specific proposal as to how you would intend to charge for such licenses; assuming you have the privilege of doing so?
Mrs. LINDEN. Let me say two things in that regard. We have not yet negotiated with anybody, but I would also like to call your attention to the fact that we have been in the business of dealing with educators since the inception of educational publishing, and we have always negotiated with them. They are our only customers.
Mr. TENZER. Right.
Mrs. LINDEN. We are not going to suddenly refuse to negotiate with our only customers on a reasonable level. The kind of private negotiation which we anticipate is consistent with the practice in our industry and in most industries in this country. And may I add furthermore that we all know, even though some of us don't like to say it aloud, and I may be one of those, if any inequities should arise, there are Government agencies who quickly respond to that kind of inequity, and that has been our system.
Mr. TENZER. Well, you are suggesting prospective things, and we, too, would like to be prospective in trying to avoid the possibilities, that you suggest right now, of supervision. We would like to know in advance, if we possibly can get it, precisely what you have in mind so we would be able to evaluate this properly when we consider the proposal,
Do you also see the possibility, Mrs. Linden, that if a school was required to obtain a license from your organization for the privilege of using the textbooks published by the members of your association they may require 1, 2, or 25 other licenses from the publishers of the other 20 percent of the textbooks publishers?
Mrs. LINDEN. Well, of course that is always a possibility, but when a school wants to buy textbooks from the-how many-110 publisher members of our institute, they have to deal with 110 different publishers. And they deal with hundreds, and I imagine literally thousands of suppliers generally, and this is one of the things that they are accustomed to doing:
Mr. TENZER. And it would also be possible, would it not, to say that if you use the books of this or that company, we will not give you a license to buy our books?
Mrs. LINDEN. No, I don't think that any publisher would dare make that kind of statement in view of laws that are presently in effect.
I think the Robinson-Patman Act and the Clayton Act would discourage us very quickly indeed, Mr. Tenzer. · Mr. TENZER. Thank you very much.
Mr. KASTENMEIER. Mr. Hutchinson? · Mr. HUTCHINSON. I have two or three questions, I guess, if you want to finish with this witness now.
Mr. KASTENMEIER. Yes. There is a quorum call on, but I think we can finish with Mrs. Linden.
Mr. HUTCHINSON. One page 5 of your statement, at the bottom of the page, I read the following paragraph:
There is a question as to whether the scanning of copyrighted works in the “memory core,” for the purpose of selecting appropriate sections, is subject to the exclusive rights of the copyright proprietor. This question must receive serious consideration,
You raised this as a point that isn't covered by the bill before us. Mrs. LINDEN. That is right.
Mr. HUTCHINSON. And something that really you are serious in thinking that this committee should consider?
Mrs. LINDEN. Mr. Hutchinson, yes, I am serious but I also recognize this time limitation in my presentation today, and I also recognize that my subject matter might appear a little esoteric in the first instance, and that the scanning of works within the memory core of the computer is a subject that does not lend itself to immediate response, even to those of us who have had experience, some experience or exposure to computer systems. If
you would like, either now or by submission, for us to prepare an analysis of what is meant by the scanning, I would be glad to do so. I have been very much aware of the time. If, Mr. Chairman, you would like for me to answer, I will do so right now.
Mr. KASTENMEIER. Well, if you care to make such an analysis available, without objection the committee will certainly receive it.
Mr. HUTCHINSON. It would be helpful, perhaps, in our exploring this problem. (Subsequently the following were received :).
THE MACMILLAN Co.,
New York, N.Y., July 6, 1965. Mr. HERBERT FUCH8, Counsel, Subcommittee No. 3, House Judiciary Committee, Washington, D.C.
DEAR MR. FUCHS: On behalf of ATPI, I should like to thank you and Subcommittee No. 3 for providing an opportunity for Mrs. Linden to testify. The burden of our argument on information retrieval systems is this :
(1) Computer-based information retrieval systems must inevitably incor porate copyrighted materials.
(2) These materials will be read out or printed out in brief excerpts.
(3) There will be no means of placing copyright notice on these excerpts, at the time of print-out.
(4) As a consequence, it is not adequate to deal with use of copyrighted materials at the time of output. We therefore urge that either the law or legislative history make clear that one of the basic rights of the copyright
owner is input into an information retrieval system. The enclosed announcement of a month-long seminar at Woods Hole arrived too late to be incorporated in Mrs. Linden's testimony. Professor Overhage, a distinguished scientist, is in charge of a 10-year project at MIT, referred to in the announcement.
I therefore ask that this letter and the enclosed announcement be placed in the committee record. Very truly yours,
LEE C. DEIGHTON,
PROJECT INTREX, MASSACHUSETTS INSTITUTE OF TECHNOLOGY Among the many difficulties caused by the growing complexity of our civilization, the crisis faced by our great libraries is one of the most distressing; for these libraries have long been regarded as outstanding manifestations of our cultural progress. But they may become lifeless monuments, unless we can find new methods of managing the enormous mass of books, periodicals, reports, and other records produced by our expanding intellectual activities.
There is good reason to hope that we can find a way out of this crisis by the imaginative use of technical advances in such fields as electronic data processing and photographic document copying. In the library of the future, as we now visualize it at MIT, access to our books, journals, and reports will be provided throughout the academic community by an electrically integrated network of information transfer services, linked to sources and users outside the campus, and coordinated by a central staff. In addition to the present libraries, this network will include terminals in all departments and laboratories, where the user will find equipment for computer-aided bibliographic search and for immediate replication of desired documents. We call such a network an information transfer complex or intrer.
Today, we do not know how to specify the exact nature and scope of these future information transfer services. We believe that their design must be derived from experimentation in the working environment of students, faculty, and research staff. We have established, in the School of Engineering at MIT, a project in which the central feature will be a group of experiments with new forms of library service. This project will be carried out in close concert with the MIT libraries. The specific objective will be the functional design of a set of library services that might become fully operational in the decade beginning in 1970. We expect that the project will yield design information for the modernization of all large libraries and that it will advance the general technology of information transfer.
To formulate the experimental plan for this project, a planning conference is to be held in August 1965 at Woods Hole, Mass. The aim will be to go beyond the walls of MIT and establish a national consensus on the direction and range of the experimental program.
CARL F. J. OVERHAGE. MARCH 25, 1965.
SUPPLEMENTAL STATEMENT ON H.R. 4347 SUBMITTED IN BEHALF OF THE AMERICAN
TEXTBOOK PUBLISHERS INSTITUTE Gentlemen, on June 30, 1965, Congressmen Kastenmeier and Hutchinson asked us to submit an analysis of the consequences of computer scanning of copyrighted works.
The following is submitted in response to this request and in an effort to state the views of the of the American Textbook Publishers Institute membership with respect to certain other issues raised during the course of the hearings.
1. Should the right to scan copyrighted works lawfully programed into the "memory core” of a computer system for the purpose of selecting appropriate sections be subject to the exclusive rights of the copyright proprietor?
Since the inception of copyright law, the exclusive rights granted to protect the copyright proprietor have been predicated upon the fact that the primary way of distributing and using literary works has been by storing them on printed pages in book form. The electronic age is forcing a new concept into copyright law. A literary creation of an author need not be stored in visually perceivable and tangible book form in order to receive wide distribution, dissemination, and use.
Although H.R. 4347 protects the copyright proprietor from unauthorized input into an information storage and retrieval system it does not take cognizance of the next phase, i.e., computer scanning of the works. This phase of computer activity consists of the examination of various works stored in the computer system and results in the selection of the most relevant works or portions of them for retrieval (“output" or "print-out"). This means, for example, that if 20 books on a given subject are stored in a computer system then theoretically 1 copy of each copyrighted book thus stored was purchased for the system. If the subject matter of 10 of these 20 books is of vital concern to research, then it can be assumed that most questions directed to the computer system will require the scanning of these 10 books and the print-out of relevant portions of all the 10 or of, let us say, 5 of these 10 books. If only input were to be made subject to copyright law then theoretically all 20 books put in at the same time would command similar fees because at the time of input it would not be possible to foresee which of these works would have greater demand and use in the system.
The more successful the book, the greater the demand for its contents or subject matter, the more frequently it would be scanned in the computer system. Although the print-out is subject to copyright protection, the question has arisen whether the scanning of the works within the system is not of itself a separate use of the work, a new use analogous to a performance of the work and a novel concept in terms of nondramatic literary works.
A close analogy can be found in the field of music. The value of a musical composition is recognized as a matter of common sense and as a matter of law as including income from uses additional to that derived from copying the melody or composition from the printed sheet music on to other sheets of paper or other tangible substances. Today we take for granted that the main sources of income to the composer and publisher of a musical composition are from performance of the work on phonograph records, over the airways, and on the living stage. Tilat portion of the copyright law that protects performance of music from free use best serves the intent of copyright protection, which is to give economic incentive to continuing creation and dissemination of music for the ultimate benefit of our culture and our citizens. The consequence of granting free performance rights to the composers and the publishers of music is so obvious that no one would contemplate it.
The Register of Copyrights, in his statement to this committee on September 2, 1965, at pages 9 and 10, said:
"It has been pointed out that, instead of printing out the work in copy form, computers now, and increasingly in the future, will display the work temporarily on a television screen or the equivalent. Under the bill this would be an infringement only if the image of the work is transmitted beyond the location of the computer in which the copy is stored" [Emphasis added.]
The American Textbook Publishers Institute would appreciate confirmation that the Register intended that it would be an infringement "if the image of the work is transmitted beyond the location of the computer in which the copy is first stored." (Word "first” added.)
For computer network systems with duplicate memory cores in satellite stations at different geographic locations, the Register's intent could be evaded by a strict construction of his language.
The Register then proceeds to say that:
"The bill would not exempt the ordinary transmission of an image from one place to another, whether by computers or otherwise, but transmission of an image for classroom use would be freed from copyright control. This latter exemption has caused concern among book publishers, and its implications for the future deserve further study."
So rapid is the technological development in this area that the "future" to which the Register here adverts is already the threatening present to standardized test publishing (such as achievement tests, intelligence and capacity measures, aptitude tests, etc.).
A subsidiary of the Xerox Co. has announced the development of a machine that flashes the psychological test questions onto a screen. The student answers by pressing the appropriate one of a series of buttons at his desk. Thus, H.R. 4347 would immediately result in free use of copyrighted test books and answer media.
Images flashed on screens are now taking the place of copies printed on paper as a means of using an author's work. Unless that kind of flashing on the screen of a copyrighted work for classroom use is made subject to the rights of the test publishers and authors, test publishing as a private competitive industry cannot long survive.
Just as composers and music publishers under a changed technology found economic survival under the performance rights provisions of the copyright law instead of those provisions protecting printed sheet music, the authors and book publishers may find that the protection of printed books from "copying' or "reproduction" is an illusory protection and leaves them economically vulnerable if free use of their copyrighted material is permitted in the classroom operation of information storage and retrieval systems.
II. Fair use versus free use.
We note Congressman Celler's comment on page 9, lines 15 through 18, of the transcript:
"I am advised that the publishers and authors on the one side and the educational groups on the other have now dug in and are engaged in positional or trench warfare."
Although one of our well-known popular songs informs us that "It Takes Two To Tango," the American Textbook Publishers Institute have discovered, to their regret, that "positional or trench warfare" can occur when one side only, whether well meaning or misguided, digs in its collective heels and takes potshots at the foundations of the economic structure of the other side.
In his statement of May 26, 1965, on behalf of the American Textbook Publishers Institute, Mr. Lee Deighton said :
"The very basis of our enterprise is that schools and colleges do in fact need the copyrighted materials that we produce. We have no other market but the schools for our produce. * *
"In a very real sense, one of the basic questions before the Congress in this copyright legislation is who is going to prepare these instructional materials? Are they to be prepared as at present by a competitive private industry with no special interests to serve? Are they to be prepared by nonprofit organizations? Or are they to be prepared by agencies of Federal and State Governments?"
In my testimony of June 30, 1965, to your committee, I urged the educators to meet with the American Textbook Publishers Institute membership in an effort to set up procedures which best serve the purposes of the educational community (of which the textbook publishers are an integral part) and the needs of educational publishers in order to permit their economic survival. We are still hopeful that they will respond.
Publishers have made it abundantly clear that they are not against the newly evolving technology; that they applaud the newly evolving technology and that rapid access to the materials which they publish is highly desirable. All they seek is remuneration for their contributions to education in this country just as the manufacturers of photocopying equipment and the educators themselves are remunerated.
In the course of his testimony on the 19th day of August 1965, Mr. Rosenfield, on behalf of the Ad Hoc Committee (of Educational Institutions and Organizations) on Copyright Law Revision, annexed a chart consisting of 11 examples of uses of a map taken from an issue of the New York Times. One can conjecture what the responses of even the most dispassionate observer would be if Mr. Rosenfield had selected 1 day's lesson in an arithmetic book or the questions in a published standardized test prepared for school use only as illustrative of what his clients seek for free.
To some extent the NEA and the ad hoc committee have recognized and even verbalized that there is a difference between yesterday's newspapers and instructional material which has only the schools, the teachers, and the pupils as its potential market. In their proposed section 111, they do not seek to exempt from copyright protection the right to copy or transmit via computer system "copyrighted works” originally consumable upon use (such as workbook exercises, problems, or answer sheets for standardized tests).
Dean Fred S. Siebert, in his statement to this committee dated August 5, 1965, asked that "* * the subcommittee's report and other legislative history should make it clear that copies of excerpts and single copies of whole works are not to be used to supplant instructional materials regularly available on the market."
The educators have cited certain kinds of works as those they wish to be permitted to copy. These do not include "instructional materials regularly available on the market.” It is therefore astonishing that their proposed section 111 does not except all such instructional materials and not merely workbooks, problems, and answer sheets to standardized tests.