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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. That 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.

III. There has been a dawning realization of unprecedented challenges and dangers to the publishing industry by a technological revolution in the methods of handling and disseminating information.

In response to a recent letter circulated through the book publishing industry. more than 100 publishers have indicated their belief that a study of the impact of new media upon publishing should be made.

A group of leading publishers has agreed to undertake and finance such a study. They have suggested to the American Textbook Publishers Institute and American Book Publishers Council that these organizations become officially involved in this study.

Initial response of the officers of these organizations has been favorable. In any case, substantial funds are available for the study, and the study will be made. This undertaking is further evidence of what the Register of Copyrights rightly described as the "dawning realization of these unprecedented challenges and dangers has provoked a whole series of meaningful and significant debates."

IV. The need for an appropriate definition of a “work made for hire" had been vigorously debated by the Authors League (membership of which consists of novelists, poets, dramatists) and the representatives of composers and lyricists, on the one hand, and the book publishers on the other and a compromise achieved. After long and fairly inclusive statements, proposals and counterproposals, it became clear to all concerned that the alleged dangers in the concept of a work made for hire did not relate to the authorship and publication of textbooks, atlases, encyclopedias, dictionaries, forewords, translations, etc. It became clear that the inclusion of a reversion provision in the law (sec. 203 of H.R. 4347) would make it essential that the ownership of copyright, the term of protection and the mechanics of protection of certain categories of works such as those above listed, be permitted as works made for hire. Lacking such a concept, an encyclopedia, for example, would be subject to 7,000 separate reversion negotiations if there were 7,000 contributors, and the term of protection for each contribution would be governed by the life plus 50 years of each contributor. Accordingly, by letter dated April 6, 1965, addressed to the Register of Copyrights and signed by counsel for the following organizations: American Book Publishers Council, Inc.; American Guild of Authors & Composers; American Society of Composers, Authors & Publishers; American Textbook Publishers Institute; The Authors League of America, Inc.; Composers & Lyricists Guild of America, Inc.; Music Publishers' Protective Association, Inc.; and Music Publishers Association of the United States, specific language for the modification of the definition of "supplementary works" (sec. 101, p. 4, lines 1 through 7 of H.R. 4347) and of a "work made for hire" (lines 23-30 of that page) were submitted to the Register of Copyrights. A copy of that proposal, signed by the eight organizations who endorsed it, was sent to this committee, and its inclusion into the record was requested. The American Textbook Publishers Institute membership is most particularly concerned with an appropriate and workable definition of "work made for hire" and accordingly urges that the concepts and, if feasible, the language proposed in the above noted joint statement be incorporated into any redraft of H.R. 4347.

V. The manufacturing clause is clearly an anomaly in our law and should be repealed. It is unnecessary to burden this committee with further reiterations of these views.

As the Register of Copyrights and the Book Manufacturers Institute, Inc., have noted, the book publishing industry has for years interpreted the language and the intent of the manufacturing clause under existing copyright law as requiring the actual printing and binding to be done in the United States and as inapplicable to the typesetting and the making of repro proofs. The Register of Copyrights and the Deputy Register of Copyrights have both expressed support of these views in their statements to this committee. The Book Manufacturers Institute, Inc., has indicated, albeit more obliquely, that this matter is of no real concern to them. It should also be noted that all but one of the most articulate and vigorous supporters of a manufacturing clause did not insist in their testimony before this committee on the incorporation of language into H.R. 4347 that would bar the present interpretation of the manufacturing clause.

It would therefore be appropriate that if a manufacturing clause is to be included in the bill, its language clearly and explicitly state that binding and printing are the two requirements in the determination of domestic manufacture, and

that preliminary or preparatory work not be deemed part of the printing and binding processes.

Where as a defense to a claim of copyright infringement, the defendant interposes the defense that the book was manufactured in violation of the manufacturing clause, the burden of proof with respect to this defense should initially rest on the party claiming the defense. Obviously, the requirements set forth at page 33, lines 16 through 19 (under subsection (B)), cannot be met by the copyright claimant. Therefore, if there should be a manufacturing clause, subsection (d) of section 601 should read as follows:

"(d) Importation or public distribution of copies in violation of this section does not invalidate protection for a work under this title. However, in any action for infringement of the exclusive rights to reproduce and distribute copies of the work or in any criminal infringement proceeding therefor, the infringer has a complete defense if he proves that:

(1) Copies of the work have been imported into or publicly distributed in the United States in violation of this section by or with the authority of the owner of such exclusive rights; and

"(2) The infringing copies were manufactured in the United States; and "(3) The infringement was commenced before the effective date of registration for an authorized edition of the work, the copies of which have been manufactured in the United States."

VI. The requirements of notice of copyright and deposit set forth in chapter 4 of H.R. 4347 fail to take into account copyrighted works disseminated by information storage and retrieval systems. The requirement of the affixation of appropriate notice of copyright and the consequences of omission of notice are set forth in sections 404 and 405.

Since unpublished manuscripts can be "first published" in a computer system, the sections on copyright notice as well as on deposit of copies for the Library of Congress must be reevaluated. If an unpublished manuscript is stored in a computer and then only sections of it at a time are reproduced in print-out, when has that work been published? Or has it been published? What are the requirements of notice under the proposed law? What, if any, is the year of publication? All of these questions and others are asked at greater length and in more detail in "The Law and Computers in the Mid-Sixties" statement submitted by the undersigned to this committee on June 30, 1965, and accepted into the record.

Accordingly, it is urged that with respect to information storage and retrieval systems and computer uses of works, the copyright notice be required on input wherever the title of the work appears directly underneath the title, including the date of input. It is further urged that such copyright notice be deemed both actual and constructive notice of a copyright claim.

The researcher, the user of the computer system, could then readily ascertain whether a work is copyrighted by requiring the title of the work and the copyright notice to be flashed on the screen or printed out in addition to the portions of the work to which his inquiry related. In that manner, the public at large will not be impeded by uncertainty or delay in ascertaining whether a claim of copyright subsists and the protection of the copyright proprietor would be preserved. It is submitted that without this kind of amendation, chapter 4 of H.R. 4347 would result in a new Pandora's box of confusion and litigation. Respectfully submitted. AMERICAN TEXTBOOK PUBLISHERS INSTITUTE, By BELLA L. LINDEN, Counsel.

Mr. HUTCHINSON. Now with regard to your blanket licensing and so on, isn't your blanket licensing going to supersede the doctrine of fair use?

Mrs. LINDEN. No. I don't believe so, because I really do not think the doctrine of fair use is applicable.

Mr. HUTCHINSON. Well, you, I concede, are much more familiar with the subject than I but it seems to me as to whatever copying of excerpts and so on that a teacher might now do, I mean, anything that could be legally done, would be done within the doctrine of fair use, whereas your blanket license would, in effect, supersede all that, be

cause you would say, "Well, the blanket license is going to cover everything, and consequently, if you don't have a blanket license, your use is not covered in the blanket license." It has superseded the doctrine of fair use in that respect, has it not?

Mrs. LINDEN. Well, Mr. Hutchinson, as you heard from so many who appeared before today, the doctrine of fair use is not one that sets forth with any certainty whatsoever what is legally permissible under the present law. In fact, because photocopying devices are so recent, so recent in terms of development and economic impact, there is not a single case, to my knowledge, where the doctrine of fair use has been tested with respect to the reprinting of even the smallest portion of a copyrighted work by a Xerox or some other photocopying device.

It is my view, and I believe it is shared by many, that the doctrine of fair use was developed to take care of literary criticism, to the copying of longhand of an inconsequential portion of a work, even though that latter is technically a copyright infringement, because the author, under our present section 1, has exclusive copying rights. Everyone has recognized, and so has the judiciary, that certain standards of common sense must prevail, and that where the copying of longhand in no way hurts the market, or the potential sale of the work, it is de minimis and should not receive the attention of the

courts.

As a matter of fact, Judge Story, I think it was in Folsom v. Marsh, an 1841 case, set forth standards of evaluating fair use that hold today. Basically he said that fair use depends on four criteria, and the last, but certainly not the least, is whether the economic worth or the potential market of a copyrighted work is affected by the copying.

And what I am suggesting is that these very standards and they are logical, and they are fair, and they are wholly applicable to the doctrine of fair use-but these standards, that Judge Story set in 1841, preclude the applicability of a doctrine of fair use to the reprinting, the photocopying, that is available by present-day technology.

But unfortunately-and that is why we of the textbook publishers have come forward with a blanket licensing system-the dilution of the potential market, the erosion, is not startling. We won't wake up one morning and find there are no more textbooks sold. But each year more and more photocopying, each year less and less purchase of books, and the economic stalemate or the destruction comes or would come at a time when private authorship and publishing would be too weak, financially, to do anything about it.

Mr. HUTCHINSON. So it is your position that any photocopying use is really not within the doctrine of fair use?

Mrs. LINDEN. Well, perhaps "any" is too broad. But certainly, the kind of photocopying uses suggested by the NEA ad hoc committee would be too broad, and those photocopying uses could be achieved by the umbrella of licensing, and no teacher would be bothered. She could get up in the morning and copy whatever she needed.

Mr. HUTCHINSON. Your proposal here for a clearinghouse, is this initially made at this point here today? Have you made it to any of the educational groups?

Mrs. LINDEN. We have talked, even in the corridor of this building, with some of the educational groups, and they said they would be interested in seeing our proposal.

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