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limit educational uses.

In other words, the existing law is, in a number of aspects, more favorable to education than the proposed law. Let me be specific:

(1) The proposed extension of the term of protection results in a narrowing of the public domain and consequently the area from which education can utilize materials. Parenthetically, the first Copyright Act in 1710 (a slow-moving period) limited protection to 14 years. The present bill

extends this term (in a fast-moving period) to life plus 50 years.

(2) The present bill eliminates the not-for-profit exemption for performances. This has particular significance for educational radio and television.

(3) The present bill expands the protected categories to include phonorecords or recordings, thereby eliminating this category from general use.

(4) Pantomimes and choreographic works, under the bill, are no longer in the public domain.

I wish to point out that the American Council on Education is not opposed to these changes in the copyright law; in fact, it is in favor of them. I mention them only to show that education could be losing more than it is gaining under the proposed law.

The American Council on Education recommends that the interests of teaching and research should be protected by the following changes in H.R. 4347: (1) A clarification of the statement on "fair use," section 107.

(2) Some provision which would permit a limited amount of photocopying for instructional and research purposes.

(3) An expanded right of transmission by educational radio and television of programs which are a part of the systematic instruction, including the right to make recordings of such programs.

(4) The elimination or reduction of the minmum statutory damages for innocent infringers.

Let me expand briefly on each of these recommendations.

(1) The doctrine of “fair use."-Section 107 as presently drafted neither adds to nor substracts from the rights of education. It merely states that the judicial doctrine exists. The American Council on Education would prefer a more definite delineation of this concept, albeit in general terms. Suggested wording is appended to these remarks (app. A). The council hopes that, in that portion of its report dealing with section 107, the subcommittee will refer to the factors governing fair use which were mentioned by the Register of Copyrights in his 1964 version of this bill (H.R. 11947, 88th Cong., sec. 6).

(2) Photocopying.—Although some might prefer to sweep this controversy under the rug, teachers and research workers need a more definite statement than fair use to guide them in this area. Book publishers have suggested the creation of some type of clearinghouse for educational uses, but no specific and workable plan has come to my attention.

The problem separates itself in two parts: (a) copying of excerpts, and (b) copying of whole works for educational purposes. Publishers and authors are justifiably afraid of any blanket permission for photocopying, but the need for language permitting a limited amount of copying is nevertheless present. Suggested language for a new section 111 is given in appendix B. Again, the council is not advocating indiscriminate use of photocopying, and 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.

(3) Transmission and recording of educational radio and television programs (both closed circuit and broadcast).—Section 109 of H.R. 4347 provides for a limited use of copyrighted material in this type of education. It limits the use to programs (a) directed primarily to classrooms, and (b) which are a part of systematic instruction.

The council recommends that the present wording of section 109 be expanded (see app. C) to exempt also programs of systematic instruction where they are beamed to other audiences than those in a formal classroom. This would permit programs which are prepared for shut-ins, for adult home listening, and for other purposes that are purely educational. The council makes no request for a similar exemption for purely cultural programs transmitted by educational radio or television.

In addition it is recommended through addition of a new section 111 (see app. B) that provision be made for the recording of the above type of program for future use and rebroadcast. It would be prohibitive for a college or uni

versity to prepare a comprehensive closed circuit instructional program for transmission live and only once. Its only economy would be in the reuse of such programs from video tapes or kinescopes over a period of time.

(4) Minimum statutory damages. I am quite sure that there is considerable technical infringement of copyright by teachers, professors, and research workers under the present law. As long as the law is indefinite these types of infringements will continue to occur. To protect the unintentional infringer, the council recommends that the minimum statutory damages in the bill be either eliminated or further reduced, leaving the amount of damages to the discretion of the judge as it is in most other cases.

Further, the American Council wishes to lend its support to two recommendations which either directly or indirectly affect education but which are being primarily sponsored by other groups:

1. The council supports the recommendation for the complete elimination of the so-called manufacturing clause (sec. 601, 602, and 603). University presses as well as commercial publishers are opposed to the retention of these provisions which, if they belong anywhere, should be incorporated in a tariff act rather than a copyright act. These provisions place an undue burden on the American author as opposed to foreign authors writing in English.

2. The council also supports the position of the Deputy Archivist of the United States in his recommendation that since the proposed bill will include for the first time "unpublished manuscripts," provision be made for the duplication of such manuscripts for library and scholarly research purposes.

In conclusion I wish to say that as a representative of the American Council on Education I have participated in most of the sessions of the Ad Hoc Committee on Copyright Revision. The council has worked closely with this group and supports most of its recommendations, at least in principle, if not always in the exact wording proposed by the ad hoc committee.

I shall be happy to attempt to answer any questions or to elaborate on any of the points brought up in this testimony. I appreciate this opportunity to appear before you.

APPENDIX A. FAIR USE

1964-H.R. 11947, 88TH CONGRESS

"Section 6. Limitations on exclusive rights: Fair use.

"Notwithstanding the provisions of section 5, the fair use of a copyrighted work to the extent reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include― "(1) the purpose and character of the use; "(2) the nature of the copyrighted work;

"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

"(4) the effect of the use upon the potential market for or value of the copyrighted work."

1965-H.R. 4347, 89TH CONGRESS

"Section 107. Limitations on exclusive rights: Fair use.

"Notwithstanding the provisions of section 106, the fair use of a copyrighted work is not an infringement of copyright."

AMERICAN COUNCIL ON EDUCATION PROPOSED LANGUAGE

"Section 107. Limitations on exclusive rights: Fair use.

"Notwithstanding the provisions of section 106, the fair use of a copyrighted work to the extent reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright."

52-380-66-pt. 3-13

APPENDIX B. COPYING

NEW SECTION 111

"Section 111. Limitations on exclusive rights: Educational copies and recordings.

"Notwithstanding the provisions of section 106. it is not an infringement of copyright for anyone lawfully entitled under section 109 to perform, exhibit, or to transmit a performance or exhibition of, a copyrighted work (save those originally consumable upon use, such as workbook exercises, problems, or answer sheets for standardized tests)—

"(a) to make no more than one copy or phonorecord of the work in the course of such use, provided that no copy or phonorecord may be made of dramatic works (including any accompanying music), pantomimes and choreographic works, and motion pictures or filmstrips unless the performers and the audience are limited to students, faculty, or staff; and

"(b) to make a reasonable number of copies or phonorecords of excerpts or quotations from the work, provided that such excerpts or quotations are not substantial in length in proportion to their source,

solely for purposes of such person's or organization's own teaching, lawful performances, exhibition and transmissions, for course work study in connection therewith, for research or for archival purposes, provided that no such copyrighted material is sold or leased for profit and that no direct or indirect private gain is involved."

APPENDIX C. INSTRUCTIONAL BROADCASTING

Amendment to section 109(4), page 8, lines 4 and 5, as follows (new language in italics, omit words in black brackets):

(4) "Performance or transmission of a nondramatic literary or musical work, Cotherwise than in a transmission to the public,] without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters or organizers, if

"(A) there is no direct or indirect admission charge; or

"(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain."

Mr. ST. ONGE. Mr. Poff?

Mr. POFF. Mr. Chairman, I have just one question.

I would like to understand exactly what you meant at the bottom of page 5, about the Council supporting the position of the Deputy Archivist of the United States whose recommendations will include for the first time "unpublished manuscripts" being duplicated for library and scholarly research purposes.

Recognizing, of course, that there is an element of personal privacy involved here, and being unfamiliar at the moment with the precise recommendations the Deputy Archivist made, I wonder if you would care to be a little more definitive?

Mr. SIEBERT. These recommendations do not apply to unpublished manuscripts in private hands. As I understand the recommendation of the Archivist, it was that if a manuscript had been deposited in a library, that manuscript can be duplicated for deposit in other libraries. Mr. POFF. Don't you think it is important to make that point? Mr. SIEBERT. Yes.

Mr. POFF. That is all I have.
Mr. ST. ONGE. Mr. Tenzer?
Mr. TENZER. No questions.

Mr. ST. ONGE. Mr. Hutchinson?

Mr. HUTCHINSON. I have no questions other than to welcome the gentleman before us. Dean Siebert is a respected member of the faculty of Michigan State University. Being from Michigan myself, it is always a pleasure to have witnesses from Michigan appear before

us.

Mr. ST. ONGE. Mr. Fuchs?

Mr. FUCHS. You say your organization is a member of the ad hoc committee?

Mr. SIEBERT. Yes. It has participated in their discussions.

Mr. FUCHS. Your second specification of changes in the new bill has to do with the elimination of the not-for-profit exemption for performances.

Mr. SIEBERT. There is no recommendation here on the retention of that not-for-profit exemption.

Mr. FUCHS. You say at the foot of those four changes that the American Council on Education is not opposed to these changes; it favors them.

Mr. SIEBERT. I don't know whether it favors them or not, but it is not opposed to them; that is, we are not recommending the retention of the not-for-profit exemption.

Mr. FUCHS. I have another question, Dr. Siebert: would you give the committee your view as to whether the for-profit limitation in the present copyright law extends to the copying of literary material such as poems, magazine articles?

Mr. SIEBERT. I have to ask what you mean by "copying"?

Mr. FUCHS. You beat me to the draw. I take it that the present law

Mr. SIEBERT. This is for performance, the not-for-profit exemption is for performances.

Mr. Fuchs. It is for performance?

Mr. SIEBERT. Yes.

Mr. FUCHS. The reason I ask is that the record will show that on June 2 when Mr. Rosenfield was testifying here, I suggested to him that under the present law the for-profit limitation had nothing to do with copying, and he replied that he did not think that that was a fact. Then he proceeded to cite what he called three noted authorities, of whom you are one.

Would you care to clarify that?

Mr. SIEBERT. Yes. Two or three years ago I made a study in connection with a number of law students of this problem and I have a memorandum on that subject which I will be glad to send you, in which we went through the legislative history of that 1952 amendment. (Subsequently the following was submitted on behalf of Mr. Siebert :)

STAFF MEMORANDUM No. 7

THE RECORDINg Clause of SECTION 1 (c), (d), and (e), OF THE COPYRIGHT ACT

The use of dramatic and nondramatic literary works and also lectures, addresses, etc., occupies our attention here. The rights provision is section 1 of the Copyright Act.' Parts (c), (d) and (e) are of particular interest to us. They cover the performance and recording rights. Subsections (c) and (d) are here presented in full:

"(c) To deliver, authorize the delivery of, read, or present the copyrighted work in public for profit if it be a lecture, sermon, address or similar production, 117 U.S.C., sec. 1 (1958).

or other nondramatic literary work; to make or procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, delivered, presented, produced or reproduced; and to play or perform it in public for profit, and to exhibit, represent, produce, or reproduce it in any manner or by any method whatsoever. The damages for the infringement by broadcast of any work referred to in this subsection shall not exceed the sum of $100 where the infringing broadcaster shows that he was not aware that he was infringing and that such infringement could not have been reasonably foreseen; and

"(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever."

It will be noticed that dramatic works cannot be performed publicly, while lectures and nondramatic literary material can't be performed publicly for profit. Both categories purport to have exclusive recording rights. It is the meaning of the latter right which concerns us. Of course it means that you can't make a recording and sell copies of it or even distribute them free. But does it mean that you can't do with a recorded performance what you can do live? Also, can't you even record once? If you have a poem which you want to read on the radio, this is all right as long as it is not for profit. But what if you record it for broadcast later? Jorgensen says that you can't perform it at all if recorded. He is looking at the second clause of both 1 (c) and (d). On the face of the language it may seem that Jorgensen is correct, but I submit that he is in error.

First, let us look at the law as it stood before 1(c) was amended in 1952. Old 1(c) stated that the copyright owner had the exclusive right "to deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address or similar production." " The shortcomings were that recording rights were not granted and nondramatic literary works had no performing rights. To remedy the latter problem the words "other nondramatic literary work" were added to 1(c). The recording problem was solved by adding the second clause to 1 (c).

To gain an insight into what was meant by the amendment, we can look at the congressional committee report previous to the passage of the bill. It said, in part:

"It is intended that all recordation rights in nondramatic literary works will be protected and this protection includes any subsequent recordation or copying of the original record. The public performance of the works embodied in such recordations will be protected only if such performance is made for profit, so that such performances will be protected to the same extent as deliveries, readings, and performances in person.""

Thus, the limitation on performance is publicly for profit, whether live or recorded. In fact, I can find no authority holding otherwise. Moreover, the third clause of 1 (c) actually says this.

1(d)'s second clause is like 1(c)'s, but the third clause of 1(d) merely reiterates the second clause's prohibitions. But this does not mean that a recording of a dramatic work can't be performed at all. Quite the contrary result has been reached. The court, in M-G-M Dist. Corp. v. Wyatt,' said that the recording clause in 1(d) must be read in conjunction with the first clause, so that a recording must be presented publicly to be an infringement. So in both 1 (c) and (d) the limitations are identical for live and recorded performances.

There remains the question of recording a copyrighted work in the first place. Granted, we have successfully interpreted the use rights of a recording, but can we get that recording by ourselves? Of course, a recording can be purchased, or made with permission, but is it forbidden to make your own? I think not.

2 Ibid. Sec. 1 (c), (d); sec. 1(c) is as amended by the act of July 17, 1952 (66 Stat. 752).

3 Conference on Professional Rights and Responsibilities, etc., p. 75. 435 Stat. 1075.

Kreymborg v. Durante, 21 USPQ 557 (D.C. N.Y., 1934), held that a poem did not come under 1 (c) and could therefore be performed without permission.

H. Rept. No. 1160, 82d Cong., 1st sess. (1951).

Unreported (D.C. Md. 1932).

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