« iepriekšējāTurpināt »
go, the weight oscillates up and down as the spring is alternately stretched and compressed. The energy in the compressed spring passes into that of the motion of the weight, and back into the spring, and so on. This exchange of energy between weight and spring keeps up until friction brings it to a stop. However, if you pull the weight down again at just the right time (i.e., add just a little energy each cycle, to overcome friction) it will keep on going and like the pendulum in a clock, will keep time.
The point I wish to make is that this simplest of all oscillators is a going "dynamic system only as a whole. The cycle does not depend only on the spring, nor only on the weight, but on the spring-and-weight. The spring must not be too stiff for the weight, the weight not too heavy or light for the spring. Only when spring stiffness and weight are "matched" does the system oscillate. And so it is with the dynamic system consisting of the goose that lays the intellectual eggs that largely underlie our national creativity, and those who consume them. It is impossible to maintain the creativity cycle if we consider only the producers, or only the consumers. The dynamics according to which this country operates the "free enterprise" system-requires that both parts be matched to each other. The energy of the producer is his effort in creating and disseminating ideas. This intellectual creativity is transformed mentally-analogously to the way food is transformed into chemical energy-into the productivity of the users. The users then feed back to the producers part of their product in the form of royalties for use of the ideas, and the cycle is completed.
The above is, of course, an oversimplification. Bnt it is exact insofar as the inseparability of the parts is concerned. It is clear that neither can afford to neglect care for the other. Thus consumers who only make use of the ideas of others and thoughtlessly fail to replenish the creativity cycle by paying for them in some way will slow down or stop its dynamic action. Likewise, if the goose and attendants try to hold on to their control by the economics of scarcityand limit egg-laying, or impede widespread dissemination and consumptionthey also will slow down or stop the action.
Let us now resume our examination of the goose's changed position, as it has dereloped through the advent of new copying and communication techniques. Until recently the goose insured her return on the eggs of the economics of scarcitr. Protected by the copyright statute, she controlled the number of eggs laid, and largely, how they were consumed. The statute was effective not only because it was the law, but because it was possible to control production. Today, however, the goose no longer has as tight a monopoly of the supply. There exist many new ways of “multiplying” an egg, once laid. Particularly in the fields of graphic art and printed works the user can, if he wishes, amplify the number of replicas to suit himself, and not consult the goose. The law is still the same, but there is less and less chance that an infringement can be detected. It would take a very large increase in Federal expense to maintain the same degree of control as in the past. Thus the user is in a new and potentially much stronger position. He may not and so far has not chosen to exercise his new power to its fullest extent. The areas where he as chosen to do so are the most highly competitive: industrial production, research leading to new industrial or military products; any situation where there is strong economic, political, or other incentive. And so far the consumer has limited himself to types of copying which are less evident infringements on the economic position of the goose. The goose is still fat, and, as the consumers like to point out, among publishers it is still true that the goose hangs high. But some geese are aware of their growing vulnerability to being plucked. Those who are squawking the loudest are the ones that lay very expensive eggs, very slowly, and who find out that from one of these the consumer can make many other. For example; publishers of maps, encyclopedia articles, business advice, and reports.
In summary of this situation we may say that the two main factions in copyright are the producers and the consumers; that the position of the producers has been weakened relative to that of the consumers for the short term, i.e., there is less and less probability of a physical way that any law against infringement can be effectively enforced; but that for the long term the essential need of the consumer to preserve the goose that lays the golden intellectual eggs is the same as it was; and the only hope for preserving the dynamic balance and still maintain "free enterprise” is to restore the equality of the two parts of the creativity cycle.
3. A PROPOSED SOLUTION We are now on the threshold of enacting a revised copyright statute. Nevertheless, if the above analysis is correct, there is less and less probability of
achieving by means of a law, the restoration of a situation which essentially is economic. The law can create the “intellectual property" and can state that the author or his assigns has time limited exclusive right to control it. But no law can control the economics of supply and demand, unless the power so legislating backs up the law with adequate police. And it is precisely here that the new methods of communication have precluded such action by enormously broadening the number of consumers and their access to multiplying equipment. The new "reprographic" equipments resemble more and more do-it-yourself printing presses. It is possible for a small office to set up and reproduce in black and white or in color, not one, nor a few carbon copies, but thousands of copies per hour. The perfection of TV and scanning have made facsimile transmission easy and have introduced the possibility of unlimited further multiplication at a distance. This is by no means all. For example, the coming highdensity reproduction of images, with 100:1, 200:1 and higher reduction ratios, makes it potentially possible to send thousands of pages on one post-card size film, and set up whole libraries for the cost of the film copies and the postage. Thus dissemination by copying of the printed page will be reduced from a few pennies per page to a few hundredths or a few thousandths of a penny per page. Can the goose hope to hold her own in such a disadvantageous struggle?
The contention which I wish to advance is that, if the narrow views of the consumer and of the producer are allowed to prevail, nothing will prevent the eventual extinction of the goose. We have passed from an economics of scarcity as the means of economic balance to an economics of superabundance in which, without some remedy, there will be no control by the goose except not to lay. But this is control, and as a nation we don't want it. Let me use stronger language: as a nation we would no longer be in the scientific, technical, and artistic forefront, were this allowed to occur.
We have seen that there is less and less probability of an effective legal remedy, unless it is accompanied by greater and greater expenditure for enforcement against infringement. Is this the correct direction to take? Should we be willing to pay a higher and higher price for policing a system which is quite essential to our well-being, but which until now has required very little enforcement beyond the previously adverse economics of the cost of making copies? Since the cost of copying has gone down and the cost of enforcing the law has or will go up, this kind of solution seems headed toward eventual impracticality.
What then remains? There is no easy way, but there is one which is relatively easier than the others. This is to educate ourselves. We must educate ourselves in two ways. In general we must show the consumer that our national cycle of creativity depends not only on the more obvious use of ideas, but on the less obvious replenishment of the source of ideas. We as a people must voluntarily come to recognize that it is to our own enlightened selfish interest to look out for both parts of the creativity cycle, and we must as a people wish to comply. Not because we have to, but because, with a higher sense of responsibility we can see that unless we do our Nation will suffer, and each of us with it.
In a more narrow sense we must educate ourselves to the fact that the change in the balance of economics brought about by more rapid, easier, cheaper ways to copy and use, can be restored if we can supply something now missing: a rapid, easy, cheap way for the consumer to pay the copyright owner for permission to use or copy. The method of payment of royalties has not kept pace with the method of use of the copyrighted material. The methods of copying are new, the methods of payment are old. This is the crux of the economic impasse, for we can realistically count on the voluntary payment for use by the majority of users, if there is an easy way to do 80. So the program of education has two objectives : to recognize national self-interest in maintaining the creativity cycle, and to develop the engineering or systems analysis of a way to restore the economic flow back to the producer, assuming the first objective is accepted.
4. THE “CLEARINGHOUSE FOR COPYRIGHT" SOLUTION Having got this far I will merely mention that this middle way has been under quiet study for some time. Many have already cast aside, at least temporarily, their parochial interests and views, and by a really enlightened effort, tried to look at the whole cycle, not just at the part which concerns them. No doubt the effort made by the small group called the CICP is not alone in this. At any rate the CICP has, since 1958, been trying to look at the whole problem. It has looked at all of the suggested solutions, and has evolved a set of specifications for any solution, which should restore the balance. What these specifications are has been published, and you may find them in the appended references. The general consensus of this group is that the solution most likely to succeed is that of a clear. inghouse for copyright (CHC). In its simplest form this is a switching system. See figure 1. (We changed the initials CCH to CHC, for obvious reasons.) Fig. ure 1 is reproduced from a paper which appeared in 1963, entitled “Working Paper on the Feasibility of a Copyright Clearinghouse." • I quote from this paper:
COPYING SERVICES PUBLISHERS
RIGHTS TO COPY
2 First Annual Report of the Committee To Investigate Copyright Problems Affecting Communication
in Science and Education, report of May 1960, reprinted with addenda in 1961, and reprinted in the Bulletin of the Copyright Society of the U.S.A., vol. 10, No. 1, October 1962. (See also app.
C in reference 2, below.) 3 "Reprograpby and Copyright Law.” L. H. Hattery and G. P. Bush, editors. American Institute of Biological Sciences, Washington, D.C., 1964. (See I(1), IV (14), V(16), and app. C.)
“Working Paper on the Feasibility of a Copyright Clearinghouse,” L. B. Hellprin, June 26, 1963. For copies address CICP secretary, G. J. Sopbar, Jonker Business Machines, Gaithersburg, Md.
"Figure 4 (fig. 1 here) is a schematic diagram showing many copying services, and many publishers, related by a copyright clearinghouse. The CHC acts as a switching device, passing rights to make copies to all CS subscribers in the CHC system, and passing royalties to all subscribing publishers in the system. In both cases participation is voluntary, and regulated by some standard contract. The payments by the set of CS exceed the payments to the set of publishers by some agreed amount, which amount maintains the switching action. The result is pre sumably an increase in numbers of copies and increased communication in science, education, and other fields; and an increase in revenue of publishers. Since the revenue is largely (but not exclusively) in addition to what the publishers receive for their publications, it is presumably a means of increasing both communication among users of the publications and revenue to publishers of the publications. Properly designed, the CHC should act as a switch which supports science by increasing the volume of communication and which supports science by increasing the return on the intellectual property which the messages represent. The feasibility study is to determine how such a switching system, now lacking in our national economy, can operate lawfully under the copyright statute, and function economically, rapidly, and effectively."
There are a large number of details which are at present under investigation. The proposed contracts would grant immunity from infringement suit, and permission to make unlimited multiples of copies or uses, in return for royalties. The royalty rates would be carefully adjusted. They should be low enough so as to not constitute a burden on communication. Perhaps they should not exceed more than 10 percent of the cost per copy. They should be high enough so that the publishers and owners whom they represent would derive real revenue from this form of publication or use; and so that the CHC could maintain itself with a small fee. So far these problems do not appear insurmountable. The most difficult single problem in the CHC system is the determination of a sampling system which will be fair to all publishers, big or little, and not so expensive to use that it will take a large fraction of the collected royalties. At present the CICP is raising funds for a design study of this sampling system. The CICP Systems Committee has also studied a simple stamp system for individual copiers, which might be run by the CHC.
This method of solving the copyright duplicating problem has many virtues. The chief are: (1) it maintains the copyright principle and sustains that part of the creativity cycle which depends upon copyright; (2) it offers an economic switching device-a means for copiers to pay a modest fee for the privilege of copying, and enables them to copy by means of the new techniques ; i.e., easily, cheaply, rapidly, and lawfully in unlimited amounts; (3) its existence would make unnecessary the appeal to disputed legal principles such as "fair use" in photocopying, and the even more doubtful equating of fair use with the making of single copies; (4) it is readily extendable to other media than graphic; (5) it is based on voluntary adherence to contract, rather than on legal recourse. On the other hand, since the operation will be under the copyright statute, the CHC in no way reduces legal recourse in such cases as are necessary.
There is little to be said against this solution. Possibly the worst is that it depends upon the voluntary cooperation of publishers and copiers. A voluntary system, say the “hardheaded," will never work. "There will be too many exceptions." One answer to that is that, in the first place, the present copyright statute is also primarily designed for voluntary contract between user and copyright owner. The thing which has broken down is not the voluntary nature of the contract, but the capability to make the contract rapidly, so as to permit the user to copy on short notice with his modern means of doing so. The legal recourse against infringement should not obscure the fact that each individual contract between user and copyright owner was and is voluntarily entered upon. What the new CHC would do is to make it feasible to pay a large number of very small royalty payments, rapidly and easily.
Again it is said that the CHC will be too expensive to operate and so cannot be self-sustaining. There may indeed be a fairly high cost for setting up the system. But once in existence there is evidence that it will pay for itself, perhaps easily. As to initial costs of setting the system up, there are many enlightened persons and corporations who may make it their business to see that such an institution is not only set up but does not fail for want of pump priming, once they are satisfied of its objectives. In any case it may seem cheap in the long run if the alternative is a decline in the creativity-productivity cycle. Like democracy, it may be inefficient and uneconomical, but still the best solution.
In closing I would like to add that the CICP is not committed to this solution, although it is associated with their name. In fact, the CICP welcomes suggestions, including other ways to solve the main problem: to bring together the producer of the copyrighted works, and the consumer. So, I conclude as I began: we must hang together, or assuredly, we shall all hang separately. We must renounce our parochial views on copyright if we are to preserve its constitutional function as a means of promoting the sciences and the arts; i.e., creativity.
RECOMMENDATIONS FOR LEGISLATION The following recommendations are based on opinions as to future conditions, as contrasted with present conditions, i.e., on estimates of the probable evolution of copying and dissemination of copyrighted works within the next quarter century. The CICP recommends that
1. The payment of moderate fees or royalties be recognized by the Congress as a budget cost in research, development, education, and other productive uses of copyrighted materials ; this cost being recognized in order to maintain a free enterprise system in which the copyright principle has become essential to the advance of science and the arts.
2. In revising the copyright statute the Congress introduce no measure which would prolong or aggravate the present short-term technical and economic advantage (as described in the preceding statement) of the consumer of copyrighted works over the producer; nor which might hinder the normal economic readjustment of this advantage that might be brought about, for example, by establishment of a more effective and rapid means for the consumer to obtain permission to make any number of copies of copyrighted works, and to make prompt payment for same.
3. As an alternative to legislation within the copyright statute to correct the economic advantage of the copyright consumer over the producer, the Congress consider chartering a nonprofit utility or semiprivate corporation, a copyright clearinghouse, to be operated jointly by representatives of both consumers and producers of copyrighted works, for the purpose of enabling rapid, inexpensive, and convenient economic exchange of moderate fees or royalties for rights to copy or to make other uses of copyrighted materials.
Mr. TENZER. Before the professor starts, may I say that Mr. Edwards and I are on the call of the chairman of the Judiciary Committee on Voter Rights Legislation. If we leave during the course of your testimony you will understand, but be assured that I will read your testimony thoroughly.
Mr. MEYERHOFF. I understand but I thought I would have the pleasure and privilege of some of the pertinent questions you ask.
Mr. TENZER. Thank you, sir. I will stay just as long as I can. Mr. KASTEN MEIER. Proceed, sir.
Mr. MEYERHOFF. The Committee To Investigate Copyright Problems is a voluntary group which started as a very informal committee in 1958 and ultimately became incorporated in the District of Columbia, Its function has been to group together the various interests in the copyright problem. We recognize that they extend all the way from author to user, and that in between is the publisher, and others.
There is now, of course, a very large group of manufacturers of equipment and supplies, who provide the tools that reproduce the material that is presented by authors.
Initially our primary interest was in science and in engineering. At the present time in our economy and in our defense we are dependent upon the rapid and almost immediate flow of new scientific discoveries into application on the part of engineers. And of course another field of application which is of the utmost importance is the field of education.
Therefore, our concern is primarily with the various kinds of publications which range all the way from books to articles in technical