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some experts have predicted that the publishing of the future will be done by "one-at-a-time" publishing methods.'
Obviously, the impact of machine copying, on authors and publishers, is vastly greater than the impact of copying by hand. It takes 32 minutes to copy a printed page; at least it took someone that long to copy page 63 of “Copyright Study No. 29." Even if he were tireless enough to continue writing at the same rate, it would take him 10 hours to copy 20 pages by hand. It would be ludicrous for authors and publishers to have been concerned about the impact of such copying upon the sale of their works, or to fear that it would dilute their markets, or otherwise diminish their income. It would be absurd for any publisher to sue someone for spending hours to copy pages of his book by hand.
The rationalizations offered to condone unauthorized copying by machine are not valid. For example, it is suggested that if copies are made for personal and private use, and for the convenience of the copyist, there is no infringement. But these are the very purposes for which books are published and sold. When I buy a book, I do so for my personal and private use, and because it serves my convenience. One might as well justify taking a copy from the publisher's warehouse on the ground it was only for his personal or private use, or convenience,
It is also suggested that if unauthorized copies are not sold, there is no infringement. This is not so. Section 1(a) of the Copyright Act protects the right to make a copy as well as the right to publish and vend it. The unauthorized creation of a copy is an infringement even if it is not published or sold."
Moreover, these rationalizations ignore the fact that the value of a work can be eroded as easily by a multiplicity of unauthorized uses as well as by one concerted infringement.
If an individual or an institution borrowed a copy of a book from a library and ran off 100 copies on a Xerox machine and sold or gave them to me and to 99 other people, he would be guilty of infringement. If he ran off the 100 copies “1 at a time" as each of us ordered them, it would still be infringement. In either event, 100 copies would have been made and placed in the hands of 100 people, without the author's consent, and without any payment to the author or publisher."
Now, suppose that I and the other 99 persons each borrowed the same copy of the book from the library, and each of us made a copy for himself-on a Xerox machine. The result is the same; 100 copies have been made and placed in the hands of 100 people without the author's consent; without any payment to the author or publisher. And, the effect is the same whether this is accomplished one at a time or all at once.
Direct copying machines which have been developed and improved with such spectacular success in the last few years are one means of copying. Their costs of copying have been greatly reduced in a comparatively brief period of time and will continue to be lowered. But they are only one of the copying methods that are available others range from mimeograph and office-model offset printing machines to a variety of photographic and microphotographic processes; and to combinations of these systems. Any of them could be used under proposed exceptions to the copying right.
Let me give you one example of what could be done if schools, universities, or libraries were permitted to make copies of a copyrighted work, or portions of it, without the author's consent. Here is a book of poems by Randall Jarrell, “The Woman at the Washington Zoo.” It was published by Atheneum Press in 1960 and it won the National Book Award. It contains 64 pages of poetry and it sells for $3.75. It is possible to make 50 copies of a page from this book at a total cost, for materials, of approximately 43 cents. This can be done by placing
2 The President of University Microfilms, Inc., said :
"We have gone the complete circle, from the manuscript book to the small edition of the early printing press, to the large edition of modern printing presses; to the smaller editions of ordinary offset printing-and now back again to the single copy produced on demand."
And, speaking of another system of duplication-microphotography-a library expert has said :
"It (microphotography) provides an economic system of publication of editions from one copy to hundreds of copies."
3 Nimmer on Copyright, p. 377 (cases cited).
4 The same result could be accomplished if a library were to provide each of us with a copy of the book. Despite the contention of some librarians, no library has the right to produce anil furnish us with copies of the book without the copyright owner's consent.
the book on a Xerox 914 (office model) copier and putting a mat-such as this one-in the bottom of the machine where the copying paper is fed in. In less than a minute the page is copied onto the mat by the machine, just as it would make a copy on a piece of ordinary paper. The mat would then be placed on a multigraph machine (office-size models are now sold for less than $1,500) and 50 copies of the page could be run off from the mat in less than 2 or 3 minutes. These are exact reproductions of the original printed page.
As I mentioned, the total cost of the 50 copies would be 43 cents, or eight-tenths of a cent per page. It could be reduced if less expensive paper were used ; and could be brought down even further if more copies were made. Fifty copies of this entire book could be produced by this process for about 55 cents per copy, compared to the retail price of $3.75. Moreover, a substantial portion of the book could be produced at a very low unit cost-for example, half of it for approximately 30 cents a copy.
Obviously, the making of an unauthorized copy or copies of an entire work deprives the author of royalties and the publisher of sales. But the making of unauthorized copies of a portion of a work can be equally (and sometimes more) harmful-and unjustly deprives the author and publisher of fair compensation for the use of something of value that they have created. I would like to give a few examples of what can happen:
One of the greatest potential dangers of permitting copying beyond fair use is the impact it would have on poets, novelists, short story writers, essayists, and others who derive a substantial portion of their income from granting permissions to others to use a poem or story, or excerpts from such a work, in anthologies or textbooks. Licenses for such uses are given on a nonexclusive basis; the same poem, or excerpts from it, may be used in different anthologies or textbooks; and several different poems or stories or excerpts will be licensed in the same period. Short excerpts from novels and other books are also used in anthologies and in textbooks for teaching purposes and the right to make such uses bring substantial income to their authors and publishers.
Under cover of an exception that transcends fair use, and using either the process I described above, or a typewriter-stemcil-mimeograph, or Xerox machine or other device, a school, or teacher, or school system, could assemble its own anthologies. Usually, a published anthology contains more than any given purchaser will require; only a part is used; or a teacher or school may not be satisfied with any published anthology. An anthology does not have to be bound, or produced at one time. If it is created in installments, it can serve the same purpose in the classroom as a bound anthology—to communicate or use an author's poem or short story (or an excerpt from it) for teaching purposes. Copying from an author's work in this manner would diminish the demand for anthologies, stifle the publication of new anthologies and thus drastically reduce his income. It is also making an uncompensated use of somthing of value something for which others compensate him. If an excerpt from a poem or story is used in a textbook or anthology (whether the conventional bound anthology or one assembled piecemeal by a school copying machine), it is a teaching tool and should be paid for just as we pay for other teaching tools and materials and the salary of the teacher who uses the tools. In the case of conventional published anthologies and textbooks, the author is paid.
The injury to poets and authors from such unauthorized copying of portions of their works would undoubtedly be severe. A very large proportion of all anthology sales are made to schools; and a substantial part of a poet's income is derived from the fees from such uses. Indeed, the greater part of his income may be derived from permissions to use his work in anthologies and textbooks rather than from sales of the original trade editions.
An attorney who specializes in the publishing field recently told me of a poet, a close friend of his, who derives 75 percent of his writing income from the fees paid for permissions to use single poems, or excerpts, in various anthologies. He also informs me that it is likely that if his publisher-clients, who share in this sort of subsidiary income, were deprived of it, they probably could not afford to publish original trade editions of poetry because the cost is high and
8 Aside from anthologies and textbooks, an author can earn income from the use of excerpts from a work in other media : e.g., an excerpt from a chapter of a novel published in a magazine ; by excerpts, in condensed form, in digests; by serialization of excerpts in a newspaper.
the total sales are very limited. One publishing house advised us that in a 2-year period ending March 1965, $3,490 was received for permissions to use one poet's poems, or excerpts from them, in anthologies. These paid uses were in addition to 10 "free" permissions granted. For many other poets and writers this kind of income is of major importance.
Under an exception that transcended fair use, if a teacher or a school decided to piece together its own textbook for a course, it could assemble one by making copies of “excerpts” from several published textbooks in the field-a few pages from one, a few pages from another, and a few pages for another. All of the authors (usually author-educators) and publishers involved would have been injured; and a free use would have been made (if an exception were granted) of their respective valuable contributions.
Encyclopedias, reference books, textbooks, anthologies, and other types of works are purchased for reading on an excerpt basis. A law firm will buy reference books on a variety of subjects; they are referred to as problems arise and only small portions of any such books are read at any one time. If the book is expensive, it is possible to dispense with it and still have the convenience of a copy "for personal and private use" by having portions of a library's copy duplicated on a machine as they are needed for a particular problem. The cumulative effect of such copying—by several firms can obviously diminish the sale of the book. As costs of copying diminish, the sale of such works decline at a precipitous rate.
Similarly, libraries and universities could sharply curtail their book purchases. Where 20 copies of a book might have been purchased by a university library to meet the needs of students who were assigned reading of small portions of it in a course, one copy and a copying machine would fill the need in the future.
We are not proposing that the new copying techniques and devices be pro hibited from disseminating the works of American authors and publishers. But we do believe that authors and publishers have the right to be paid when their works are communicated by these devices. Money appears to be the principal stumbling block. Methods for granting permission to make copies can be established. But those who advocate the various exceptions to the copying right simply object to paying authors and publishers; inconvenience may be the rationalization, but dollars are the reason. They are willing to buy or rent copying machines; they are willing to pay for copying paper and the other copying tools; they are only unwilling to pay for the one essential ingredient which these other materials only serve to communicate—the author's work. This is a paradox. The whole purpose of spending money to make copies of a copyrighted work is to obtain what the author has created--that is the thing of value, not the paper, not the whirring machinery, and yet this is the one thing for which they object to paying.
We do not contend that all copying, by machine or otherwise, is prohibited. We do not suggest that every time a teacher copies lines from a poem or paragraph from a book for her class she is necessarily guilty of infringement. The doctrine of fair use applies here as elsewhere.
You have been told that "fair use" is too difficult for teachers to understand and comply with; and that a more definitive guideline is needed. We note:
(1) No one has come forward with detailed and definitive guidelines.
(2) Fair use has been a part of our copyright law for decades and the educational system has functioned under it. Neither it nor the right to make copies is changed in the revision bill.
(3) However vague the boundary lines of fair use might appear to teachers, the record is absolutely clear that they have a very large margin for error. Teachers have not lived in terror of law suits should they incorrectly decide whether a paticular use is fair or unfair.
We believe that the rapid and constant changes in techniques of copying and disseminating what authors create make it all the more imperative that we retain the judicial concept of fair use with the advantages of flexibility and adaptability
8 Some educational witnesses told you that free uses of literary works in schools would "stimulate their sale elsewhere. Here the destruction of the most substantial market for some writers-educational anthologies and texts -- would deprive them of the greater portion of their income and possibly destroy sales in the trade market as well. Moreover, it is commonplace in copyright for an industry to tell the same story to authors : "We help publicize your work in other media so why should you expect us to pay for it?" But the other media tells him the same story. If he accepted this principle, no one would pay him.
which it provides. As other witnesses have testified, it is not feasible or desirable to write a detailed definition of fair use into the Copyright Act. Aside from the difficulty of specifying the limits for every type of work and combination of circumstances that might be involved, it would mean that Congress would have to freeze definitions into a statute, perhaps for the next 56 years, which might prove inappropriate or unfair, as conditions change.
I thank you for the opportunity to make this statement.
I have just one or two questions. My recollection was that when you first testified you equated what life plus 50 would be as it would relate to a term of years. That is to say, whether it was about the same as a term of 76 years, or whether it meant more or less for an average duration of copyright.
My recollection was that you did cover that. I am wondering whether you might restate it now.
Mr. KARP. Yes. I think on the average it would be about the same. My recollection is that the Register's report says that on the average life and 50 would produce a term of 76 or 75 years.
Mr. POFF. Mr. Chairman, if you want to insert the citation in the record, the Register does agree on page 94 of his supplementary report, May 1965, under subparagraph (b).
Mr. KASTEN MEIER. I thank the gentleman from Virginia.
You illustrate how easy it would be to learn the death date of an author from a public library by a phone call or by a postcard. What is the practice today in terms of learning whether a copyright is still in effect or whether it has expired!
Mr. Karp. If you want to take the risk that the notice in your copy is informative, or the absence of notice is reliable, you can copy. But as I have pointed out, you can't rely on that in many cases. As a result, the commercial user or a prudent copyist of any kind would have to write to the Copyright Office and request that a search be made of its records to determine what records of copyright there were.
In the case of a renewal copyright, you cannot tell, no teacher can tell from a copyright notice, the original notice, whether a copyright has been renewed. They have told you this is very important, all this work
goes in the public domain, they are constantly busy copying it. They can't prudently do that unless they write to Washington and ask if it has been renewed. It costs $3—or they have to make the research themselves. If it has been renewed, you don't have to put a new notice in. If it was published in 1910 that is the notice. You can't tell whether it has been renewed or not. You have to make a search for that as well.
In most instances, you either don't know or you can't rely on the notice.
Mr. KASTENMEIER. In other words, you cannot find out from contacting the public library. You could find out by writing or otherwise contacting the Copyright Office, or the publisher or the author, I assume.
Mr. Karp. That is right. And the Copyright Office could not tell you,
if it was an “unpublished" work in the technical sense. Even if it were a bound published book, if it had never been circulated publicly, the Copyright Office could not assure you you were free to use it simply by saying “We have no record of copyright on this book," because no record would be required if it had never been published.
Mr. KASTENMEIER. Is it the firm in Michigan that is producing this one book at a time?
Mr. KARP. It certainly is. It is a licensed operation conducted by the Xerox Co. through one of its subsidiaries.
Mr. KASTENMEIER. Mr. St. Onge.
Mr. TENZER. I have no questions, but I would like to state that at the suggestion made by Mr. Karp in one of his previous visits here, I made a similar call to the public library and asked for the date of death of a fairly obscure author, and I received an answer in 31 seconds. I want you to know that that convinced me that the arguments presented in favor of life plus 50 are valid and dissuades me from my previous position about a fixed term.
Mr. KASTENMEIER. Mr. Poff.
Mr. POFF. Mr. Chairman, I would like to pursue a line of questioning, but we are so cramped for time and the other witness is waiting. I believe I will defer with the hope that the printed statement which the witness submitted will supply my answer.
Mr. KASTENMEIER. We are very pleased to have you with us again. Mr. KARP. Thank you, Mr. Chairman.
Mr. KASTENMEIER. The last witness for this morning is Mr. Harry Rosenfield, representing the ad hoc committee. Mr. Rosenfield returns to the committee for a second time.
STATEMENT OF HARRY N. ROSENFIELD, ESQ., REPRESENTING
AD HOC COMMITTEE ON COPYRIGHT LAW REVISION
Mr. ROSENFIELD. Mr. Chairman, it is a delight to be back again before this committee. When I testified before you on June 2 Mr. Kastenmeier asked that both Mr. Cary and I return at a later date to discuss 11 examples illustrated by Dr. Robert C. Gerletti of the Los Angeles County School System in his testimony on behalf of the Department of Audio-Visual Instruction of the National Education Association.
This committee may recall that Dr. Gerletti submitted for the record a map of Africa which Mr. Fuchs has been kind enough to hand to me from the record, listed as exhibit 1, taken from the cover of the Sunday supplement called This World published in the San Francisco Sunday Chronicle.
Here, from your record, is the actual document on which I was asked to comment. Dr. Gerletti demonstrated before this committee, with the aid of modern instructional devices, 11 possible teacher uses in instruction. Mr. Kastenmeier then asked that Mr. Cary and I both discuss these 11 examplesin terms of the probability of infringement * * * under both the present law or particularly the legislation at hand, and the proposed revision.
I confess to you, Mr. Chairman, after listening to the splendid presentation by Irwin Karp this morning I am sorely tempted to debate