The problems presented in applying the doctrine of fair use are no different than those which arise in any other branch of the law. All lawyers are familiar with statutes or rules of law which speak in terms of reasonable notice, bona fides, reasonable care, good faith, and other general terms based on established legal doctrines. Juries decide questions of negligence, gross negligence, contributory negligence, and similar matters on the basis of the facts presented to them and in the light of the law which is charged by the court. The doctrine of fair use is even simpler to apply since it is based on good faith, and most problems may be answered by recourse to the Golden Rule: "Do unto others as you would have them do unto you."

The difficulty inherent in attempting to provide a more precise definition of fair use is disclosed in the 1964 draft of the revised bill (Copyright Law Revision Part VI, p. 193). The Register had suggested a definition which would have imposed the test that a use to be fair must be "reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, scholarship, or research *

That definition is both too broad and too narrow. One question which arises is where the parody cases would fit in this enumeration. Do they fit in one of the incidental or legitimate purposes? Do they constitute criticism, comment, news reporting, teaching, scholarship, or research?

Even if they do not fall within any of these categories, Judge Kaufman, in the Berlin case mentioned above, held the use to be fair because it did not fulfill the demand for the original work and did not appropriate a greater amount of the original work than was necessary to recall or conjure up the object of the satire Were the 1964 bill definition to have been part of the law it would be incumbent upon the court to determine legitimacy of the purpose, the necessity of the use, the question of whether the use was incidental, and then to determine whether the use came within criticism, news reporting, teaching, scholarship, or research. The question would arise what kind of research is to be included. Is it to be limited to scholarship research and scientific research or is it to include broadcast rating systems, market testing, poll taking, and many of the other commercial activities which are called research but which have no conceivable relationship to education or scholarship.

It should be remembered that the doctrine of fair use derives its vitality from its adaptability to conditions not only as they exist today but to new conditions which result from technological and other developments. Stated generally, the rule may make a distinction between a true scholar and a chiseler who infringes a work for personal profit. It can distinguish between a mere quotation and the theft of an essential portion of a literary work, and can differentiate between the infringer who seeks to reap where he has not sown and the scholar who is motivated solely by the desire to add to the common reservoir of ideas and information. Any attempt to confine the doctrine in a straitjacket by enumeration would destroy its vitality and its ability to accommodate itself to all conditions and to those as yet unforeseen.

If any guidelines are to be presented they should not, I submit, go beyond the second portion of section 6 which adopts the well established criteria:

"In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include the:

"(1) Purpose and character of the use;

“(2) Nature of the copyrighted work;

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

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

Mr. SCHULMAN. My name is John Schulman. I am an attorney practicing in New York and have been engaged in copyright work for more than 30 years.

In testifying before this committee I shall not undertake to represent any special interest. I have been active in the past 10 years in the project of amending or revising the copyright law, as a member of various committees and as a member of the librarian's panel of specialists. As a person who has written and lectured on copyright law, I appear here with only one hat, only that of an individual trying to

help the committee, if I can, with any knowledge that I have of the copyright industries and of the copyright system and the copyright law.

I have represented almost every phase of copyright interests, authors, publishers, music publishers, composers, firms engaged in various industries.

I have here a reprint of an article that I wrote on the use of computers and the place of computers in the copyright system. Another article which I wrote and would also like to leave with counsel for the committee, deals with the differences between patents, trademarks, and copyrights. My interest presently is to try to help this committee and the Congress to fashion a copyright law which will be effective and of which we can be proud.

Perhaps I should start with a story of what happened to me when I took my son to court one day while we were trying a negligence case. That was long before I was in the copyright field. When my son came home his mother asked him, "Did you like the trial of the case?" He said that he was completely confused because "they were all talking about the same accident, and everybody told a different story."

Now as I sat here throughout these hearings I find that everybody has told a different story about the copyright system. Perhaps I can do best by explaining to you that there exists a basic structure of the copyright system in the light of which all this testimony, and all the various suggestions, should be considered.

Copyright deals with communication of ideas, information, and entertainment. It is part of that area of human activity which deals in the communication of thought from man to man. It deals with education in the area of communication of information by an author to children and by the teacher to children.

When an author reduces his ideas or his information to some tangible form, whether it be on paper, on wire, on tape or on a clay tablet, it becomes a writing and the copyright law takes effect because that writing is treated as the author's property. What he writes on that piece of paper did not exist before. It is not found in the ground, it is not made by machine. It is the crystallization of the author's ideas on that piece of paper which then creates its value. The products thus created by authors are referred to as literary, scientific, and artistic works.

The term covers books, magazines, plays, songs, motion pictures, and other products whereby one person's thoughts are transmitted to another, and the proprietary interest in these works is usually called literary property.

It is with literary property that the copyright system is concerned. For example, we have the negotiable instruments law which regulates transactions in banking transactions, in promissory notes, in bills of exchange, and the like. We have a commercial code which deals with transactions in tangible property, one which regulates the relationships created when a seller sells chattels to a buyer.

The copyright system serves the same function in the copyright field. It enables an author to write his story and send it to one or more publishers with the assurance that his property will not be misappropriated. In order to publish that story the publishers must make a

bargain with the author. The same protection is available to the publisher when he publishes the story. The law recognizes property rights and protects him against any unauthorized copying of that book. The law operates on the principle that the publisher sells only the physical book, not the right to copy its contents.

Copyright represents a highly sophisticated form of property. It has its origins in our law even prior to the adoption of our Constitution. I have, in my statement, outlined the origins of copyright in the United States and you will find from the first page of the second part of the appendix that the first copyright statute enacted in the United States was promulgated in 1672 in the form of an order issued in Massachusetts Bay Colony. That took place 50 years before the statute of 1710.

After the States had achieved their independence from Britain they individually adopted copyright laws. The preambles to these statutes recite that the laws were adopted because of a belief that people who wrote books and contributed learning were entitled to own their products and enjoy a profit therefrom.

You will read that concept not only in these very preambles, but may read it as well in the statement written by Mr. Madison in the Federalist in which he discusses the reason for giving to Congress the right to enact copyright laws. I have quoted his statement in my appendix. I will not read these quotations, but emphasize their value as the history of what is meant by the public interest. They are contemporaneous statements of a conviction that the public interest and the interest of the creator are one and the same.

Now I should say that this conviction is not old hat. As recently as 1954 that very same view was expressed by the Supreme Court of the United States. In Mazer v. Stein the Court said:

The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in science and the useful arts. Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.

Gentlemen, that is why I start in my consideration of the copyright system with the man who takes a blank piece of paper and provides society with something which never existed before.

Copyright takes nothing away from the common good. It only adds to the common reservoir of cultural wealth. Because the most that man can do with his writing is to tell his story, give his ideas, explain his investigations, and prevent others from copying what he has said in the way he has said it. He cannot monopolize the ideas expressed. He cannot monopolize the theme of his story. The story of Romeo and Juliet has been told over and over and each telling has provided a new story, even though it has been based on the original theme. The very essence of copyright lies in the concept that ideas, information, and knowledge imparted by an author's writings become freely available to the public at large. The only element protected is the way in which the author has expressed his ideas and thoughts.

The copyright system has been beneficial to the United States. It started in 1790 with protecting only books, maps, and charts. Later it

was expanded to include plays and music and graphic arts. Still later, protection was provided against unauthorized performances of music and plays. In 1909 protection was added against recording of music. In 1912 reference was made in the statute to motion pictures and in 1952 we added section 1(c) which gave protection to literary works against performance and recording.

All of these improvements plus the increase of copyright term from 28 years in 1790 to 56 years in 1909 has enriched our culture and our economy with the works of independent writers, not people who depended upon subsidies as they did before the 18th century.

Our authors are people who make their living by writing. They are professional authors, who write and create, and who make their living that way. Out of their earnings they pay taxes, just like anybody else. The industries which invest money in publishing books and which take the risk of producing films are protected against the misappropriation of their property by our copyright laws. That is why they are able to contribute $7 billion to the annual gross national product.

This, gentlemen, represents the tremendous accomplishment in this country. We were once a consuming nation. Today, I am proud to say, we are a producing and exporting nation in the cultural field, a condition due in no little measure to the fact that we have been alive to the value of the copyright laws.

Why therefore do we suggest a change in the statute? Not because our copyright law is basically wrong in its philosophy. Revision is necessary because technological changes have made it necessary to abandon the old dual system of a common law copyright for unpublished works, and statutory copyright for published works.

Our earlier acts and our present statute were tied to the printing press. The concept prevailed in 1909 and prior to that time that works could be considered published only when reduced to the form of visual copies.

In 1909 the record industry was in its infancy. There were no motion pictures to speak of. Magnetic tape and broadcasting of all kinds were wholly unknown. Today works of all kinds are broadcast all over the country. Under the present law they are not considered to have been published because they are not produced in visual copies for sale or distribution. Works produced on magnetic tape cannot be copyrighted as literary works because they have not been produced in visual copies.

The technological world has advanced beyond the capacity of our present law to accommodate itself to our needs. That is why we need a new law and we need a new law which will consist of a single system of statutory copyright, one which will supplant the dual system under which common law copyright in perpetuity was alone available to most unpublished works.

Mr. POFF. Mr. Chairman, I wonder if the witness would permit an interruption. I must leave to testify in the Rules Committee. I would not want my departure to indicate any lack of sympathy for what the witness is saying. On the contrary I want to compliment him for a most lucid and simplified statement of basic principles.

I will further study what I have heard you say today, along with the formal statement that you have submitted for the record.

Mr. SCHULMAN. Thank you, sir. May I, before you go, state for the record my admiration for this committee and for the attention and time its members have given to this subject.

I have appeared before committees of Congress before but these hearings represent the absolute epitome of the democratic, legislative process where a committee sits and listens to everybody's side and tries to understand what is good for the country. I admire you for it.

Mr. POFF. I know that I speak for my colleagues when I say thank you, sir. That is our purpose. Sometimes we are frustrated in our purpose by a variety of duties which call us elsewhere. This is one of those cases. So, I ask your pardon.

Mr. SCHULMÁN. Thank you, sir.

May I ask that Mr. Toomey and Mr. Diamond be excused? They have to go over to the Senate.

Mr. KASTENMEIER. Of course. Thank you for appearing, gentlemen. Let me say we are sorry that our colleague from Virginia had to leave but we do appreciate his explanation. The Chair also expresses appreciation for your complimentary words about the com

mittee.

Mr. SCHULMAN. Thank you, sir.

Mr. KASTENMEIER. You may proceed, Mr. Schulman.

Mr. SCHULMAN. You may ask why we need a single system under which unpublished works will come within the statutory scheme. The answer is that this change will provide adequate protection, for example, for material recorded on tape which is not presently copyrightable because it is not in visual form. It will include computer programs, for instance, which are reduced to magnetic tape but are not printed out in visual form.

It will bring within the statutory system theses by applicants for doctorate degrees which are seldom published in large enough quantities to be issued to the public for sale.

That author cannot secure statutory protection for his work presently because section 12 which affords statutory protection for oral works such as music and plays, does not permit the registration for statutory copyright of a work such as a short story or a thesis or scientific article prior to publication.

That is one of the defects in the law. So those authors have to rely on the common law protection alone. As I explained in my appendix, there have been so many difficulties about the test of what constitutes publication that in some instances even those of us who know the law or think we do are ourselves confused. The present statute contains no definition of publication so we must rely upon the definition which has been developed in the courts: a published work is one which has been reproduced in visual copies for sale or general distribution to the public.

But then we are faced with various limitations on that doctrine. When a songwriter, for example, writes a song and sends it to a dozen bandleaders in the form of lead sheets, these are not considered copies. The courts here said that this type of circulation does not constitute a publication.

The reason is that lead sheets are circulated only in an effort to interest bandleaders in playing the song. When by the same token a writer produces a manuscript of a short story and sends it to a half