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COMMENTS ON 11 EXAMPLES Group I

Example No. 1 (display of original map on bulletin board).

Example No. 2 (projection of original map on opaque projector; no permanent tangible copy is made).

In these two examples, we have no "copies" made in terms of the copyright law. We are dealing only with exhibition of the original copyrighted map, either directly or indirectly. Under either assumption :

(1) Under present law-Yes.'
(2) Under present educational practice Yes.
(3) Under H.R. 4347—Yes.

(4) Under ad hoc proposal-Yes. Group II

Example No. 3 (instant copy of original map or transparency for showing on overhead projector).

Example No. 4 (original map is adapted for classroom purposes and copied on transparency for overhead projector).

Example No. 5 (original map copied on slide for showing on slide projector). A. Assumption 1 (entire copyrighted work):

(1) Under present law—"No,” according to Register, the publishers and authors (but there is a possible “Yes”). (a) “Fair Use"?-No.

Register of Copyrights, Supplemental Report, Copyright Law Revision, part 6, May 1965, page 28: fair use does not cover * * copying * entire works * * * *

Testimony of Deputy Register on H.R. 4347, May 26, 1965, before House Judiciary Subcommittee: “The only thing they (ad hoc committee] seek which the bill would not grant them is the right to make * * * a full and complete copy of any copyrighted work. I should add that the present law does not afford them this right now * * *” (Prepared statement, p. 33.)

Karp, Irwin, "Copyright Law Revision," part 3, page 162: "I think the copying of an entire work is an infringement in any case, and I don't think that fair use goes so far as to condone it."

American Book Publishers Council, “Copyright Law Revision,” part 4, page 251 : "* * * the making of a photocopy of a copyrighted item without the permission of the copyright owner is clearly an infringement unless it can be considered to be excused by the doctrine of fair use

“No judicial decisions have attempted to apply "fair use in this particular situation (6) "For profit”—Uncertain, at best.

Virtually the whole copyright bar seems to answer "No," but there is noted authority to the contrary. See Siebert, Fred S., "Copyrights, Clearances and Rights of Teachers in the New Educational Media,” American Council on Education, 1964, pages 33-34 ; Shaw, "Literary Property in the United States, 98–99 (1950). Cf: Opinion of Webster, Sheffield, Fleischman, Hitchcock & Chrystie, New York attorneys, “Special Libraries,” May-June 1961 at page 253. In any event, judicial holdings on the point are so scarce

as to give no basis for reasonable prediction. (2) Under present educational practices—Yes.

These teaching methods are widely used, in good faith, by teachers at all levels of education.

(3) Under H.R. 4347-No.

The bill eliminates "for profit,” merely codifies existing judicial "fair use" in section 107, and makes no provision for this under section 109.

(4) Under ad hoc committee proposal-Yes. See proposed section 111. B. Assumption 2 (excerpt): (1) Under present law-Uncertain, at best. (a) “Fair use"?—Uncertain, especially because of map's featured position on

cover.

1 "Yes" is intended to mean a legal use under the specified situation, and "No," a use that is not legal thereunder.

we are

My principal statement to this committee on June 2, 1965, indicates the uncertainty and unpredictability of determinations of "fair use." For example, I then said:

"* * * the publishers objected to a statement proposed by the Register that a clear-cut example of fair use was 'Reproduction by a teacher or student of a part of a work to illustrate a lession.'

"The American Book Publishers Council said it could only be 'a small part.' In testimony here, the General Counsel of the Copyrigh Office said it could only be 'a relatively small part,' and the Register's Supplemental Report at page 34 says that fair use applies only to 'the relative insignificance of the excerpt copied.' And the Music Publishers Association of the United States said that fair use can not apply to 'any part.'"

Add to this the testimony of June 30, 1965, by Mrs. Bella L. Linden on behalf of the American Textbook Publishers Institute that “The doctrine of fair use was never intended to afford certainty of the law.”

Various Federal agencies have submitted reports, or testimony, on H.R. 4347 which also substantiate the folly of attempting to rely on "fair use" in terms of the predictable right to copyrighted material.

The Federal Communications Commission's report on H.R. 4347 states, in part:

"However, we are also mindful that 'fair use is both a limited and an indefinite doctrine * * * Further, there is no precise way of knowing how much of a copyrighted work can be used in a given situation under the doctrine of fair use. The prospective user would apparently need expert advice to judge each case individually under the provisions set forth in section 107, and, even so, there would be the risk of having to defend an infringement suit therefore of the opinion that the doctrine of "fair use' would not, in and of itself, be an adequate answer for educational broadcasting purposes."

The Health, Education, and Welfare Department's report on H.R. 4347 says, in part:

"1. With no reported judicial decisions on the subject, it would be useful to libraries, authors, publishers, scientists, and researchers to have the permissible limits of photocopying spelled out in the statute.

"2. The failure of a comprehensive revision of the copyright law to include a provision on photocopying might be deemed to indicate an intent by Congress not to authorize photocopying by libraries as a limitation on the exclusive rights of a copyright holder.”

The Deputy Archivist of the United States testified on June 17, 1965, saying among other things :

“The restrictions contained in H.R. 4347 on the reproduction of unpublished manuscript material will be a real deterrent to the work of the National Historical Publications Commission * * * The bill would virtually preclude the microcopying of collections of papers by a historical society or other custodian unless the documents are at least 100 years old. It is not even clear whether * * * a custodian could microfilm or otherwise copy a collection of papers * * * when the purpose is to provide an insurance copy in case the originals are lost * * * The microcopying of historical documentary sources to make them more readily available for study and teaching in colleges and universities has been gradually increasing during the past decade * tical effect of H.R. 4347 in limiting the microcopying of collections to those over 100 years old will in our opinion seriously impede the use of documentary materials for research purposes

All this seems fully to justify what a distinguished copyright lawyer, Mr. Dubin, said before the Register's Panel on the fair use section :

"* * * just mentioning the term "fair use as a recognized principle leaves the whole question up in the air. I for one would hesitate to advise a client as to what he could or could not do * * * I think you are going to run into a great mass of confusion." (Copyright Law Rev., pt. 2, p. 24.)

(6) "For profit" ?—Uncertain, at best. See comment on “for profit" under assumption 1.

(2) Under present practice —Yes.

(3) Under H.R. 4347—No (or at best uncertain). It is not authorized under section 109, and is uncertain under fair use as described above.

(4) Under ad hoc committee-Yes. It would be authorized under section 111.

* The prac

Group III

Example No. 6 (30 copies on instant fluid duplicator, for students in 1 class).

Example No. 7 (100 copies on offset plate, for students in 3 classes of same school).

These examples present the problem of multiple copies for student use in classroom work with the teacher.

A. Assumption 1 (entire work) :
(1) Under present law-No.
(2) Under present educational practice-Yes.
(3) Under H.R. 4347-No.

(4) Under ad hoc committeeNo, because section 111(a) allows only a single copy of an entire work.

B. Assumption 2 (excerpt):
(1) Under present law-Uncertain, but probably no.

Legal status under "fair use" is uncertain, and each case depends upon special facts. Here the fact that it is the cover page might militate against the teacher making the copies legally. Conceivably the situation could depend on the newspaper's total circulation; it might be "fair use" if the circulation were large, but at least it would be very dubious if the circulation were small, etc.

In addition to all other comments previously cited on fair use, note what Mr. Freehafer, of the librarians group, said to the Register of Copyrights:

"We very quickly come to the conclusion that the multiple copying problem could not really be considered an aspect of fair use ** *” (Copyright L. Rev., pt. 2, p. 34.)

(2) Under present educational practice-Yes.
(3) Under H.R. 4347–Uncertain, but probably no.

Status under "fair use" would be the same as under present law, but H.R. 4347 has no for-profit provision as such.

(4) Under ad hoc committee-Yes, under section 111(b). Group IV

Example No. 8 (original displayed on closed-circuit instructional TV).
Example No. 10 (original displayed on open-circuit instructional TV).
Here we have live use on instructional TV (ITV), not copies.
On either assumption:

(1) Under present law-Yes.
(2) Under present educational practice-Yes.
(3) Under H.R. 4347—Yes.

(4) Under ad hoc committee-Yes. Group V

Example No. 9 (taped for delayed broadcast, closed-circuit, on instructional TV).

Here we have use of a single copy on TV.
On either assumption:

(1) Under present law-"No" for assumption 1 (entire work) according to most of copyright bar, but there is a possible "yes.” As to assumption 2, "uncertain" but possible.

Under “for profit," see comment supra on group II (examples 3, 4, and 5).

Under "fair use"-"No" for assumption 1 (entire work) and "uncertain" for assumption 2 (excerpt). See comment supra group II (examples 3, 4, and 5).

It is also possible that a performance on closed-circuit is not a "public" performance and is therefore not prohibited under the present law. But this, too, is uncertain.

(2) Under present educational practice—Yes.

(3) Under H.R. 4347—Yes, with limitations since section 110 would permit such video tape but only for 6 months.

(4) Under ad hoc committee-Yes. This would be authorized under section 111(a). Group VI

Example No. 11 (taped for delayed broadcast, closed-circuit for release in one or more educational stations; charges made for program, at cost, and no profit to anyone).

Here, we have use of a single copy, on ITV with at-cost charges to user and through exchanges.

On either assumption:

(1). Under present law—"No" for assumption 1 (entire work) according to most of copyright bar (but there is a possible “yes”). As to assumption 2 (excerpt), "uncertain" but possible.

(2) Under present educational practice-Yes. (3) Under H.R. 4347—No.

If this example means that the ETV station exchanges its recording with others not under its own management, then the practice would not be author. ized under section 110 which prohibits uses of the copy or recording by one other than the recording ETV station.

(4) Under ad hoc committee No.

For same reason stated under H.R. 4347, since the proposed section 111 has a similar limitation.

For the committee's convenience, I have appended to this statement a table designed to summarize my comments on the various examples on which views were requested. The chart does not give all the nuances covered in the state ment, but I hope it may prove helpful to the committee.

Before concluding, may I take the liberty of passing on to this committee an excerpt from a letter of June 21, 1965, written by a high school principal in Oregon, because of its relevance to the examples under consideration :

"Furthermore, there was general agreement that the passage of this legislation would result in fewer materials being used in the schools, thereby defeating one of the assumed objectives of the bill. Currently, teachers * * * are purchasing hundreds of single pieces of written material, portions of which may be reproduced for illustrative purposes in the learning situation. In this way students are benefiting from a greatly expanded horizon of view. Under no cir. cumstances would multiple copies of any of this material be purchased simply to give students lawful access to a diagram or a picture. The student would just have to do without.

“Is this the purpose of the bill?

"In addition, a definite undercurrent of resistance is present among the staff * * *. These teachers are nearly unanimous in their determination to continue providing the broadest possible horizons. If the making of a transparency of a particular illustration is professionally judged essential-and it in no way obviates any purchase-then these people will continue to do so, or probably leave the profession. One teacher commented :

" "The bill under consideration strikes me as unreasonable * * (and) unenforceable. One result would be to make lawbreakers of otherwise honorable individuals. I don't think laws should be made to be broken.'

"Attached you will find a short description of the materials used for one large group session (100 seniors). These teaching situations are becoming more frequent. We are convinced they are educationally sound. We fervently hope that we can continue to explore this approach in a legal manner."

The attachment describes an actual lesson, as follows: “Date: June 4, 1965. "Time: 8:45 a.m. “Place: Auditorium, High School. "Students: 100 seniors. “Course : English. "Objective: To make direct comparisons between the architecture and the

music of the baroque era (1580-1750). "These students had spent considerable time discussing the various forms and uses of architectural types. These discussions centered about the literature of the period. The educational need was for a teaching session to solidify the central concepts of the baroque period.

“Materials used:
A. Taped material:

"Seven recordings were taped from the Willamette University music library. From these, eight short (15–20-second) examples were dubbed to final tape.

"Four short examples were dubbed from school-owned 'History of Music albums Nos. 3 and 4.

“Two longer examples were dubbed from personal collections of teachers

“B. Visual material:

“A 35-millimeter slide was made of the actual music for each of the above taped examples. The music (in most cases a few bars, sometimes a page) was projected while the tape was played and salient points were made.

“Four architectural diagrams from two school-owned and two teacherowned books were made into transparencies and used to make comparisons where appropriate.

"Two pictures of buildings were reproduced into transparencies and used. “If it became illegal to use the materials above for instructional purposes, certain of the recordings and books would never have been purchased."

Gentlemen, President Cleveland once said that we are faced with a condition, not a theory. The condition is a present educational practice essential to the welfare of this Nation. The schools of America look to you for protection of the Nation's children through protection of this present educational practice.

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No. 1 (display on bulletin).
No. 2 (opaque projector
No. 3 (overhead projector).
No. 4 (overhead projector)
No. 5 (slide projector).
No. 6 (30 copies, fluid duplicator)
No. 7 (100 copies offset).
No. 8 (closed circuit ITV, original).
No. 9 (taped, closed circuit ITV).
No. 10 (open circuit ITV, original)
No. 11 (taped ITV exchange).

Yes.. Yes... Yes... Yes... Yes.
Yes.

Yes.. Yes.. Yes. Yes.
No 1 Yes... No.. Yes...

(2).
No1
Yes.. No.

Yes.

(2).
No 1 Yes... No. Yes

(?)
No.
No. No.

(2)
No..
Yes..

No. No. (2)
Yes. Yes.. Yes. Yes. Yes
No 1

Yes. Yes 4. Yes.. (2)
Yes Yes.

Yes.

Yes
NOI | Yes... No..

No.

(2).

Yes

[blocks in formation]

Yes

No.

1 There is a possibility of “yes” but no judicial precedents are available and the copyright bar almost unanimously says “no.'

3 Uncertain.
3 Or uncertain.
* But 6 months only.

Mr. Poff. Mr. Chairman, that graph undertakes to analyze altogether, including assumption No. 1 and assumption No. 2, 22 possible practices. It appears from that graph that there is practically no difference between the yesses and the noes which appeared under the column entitled “Present Law” and the column entitled “H.R. 4347."

In only one instance it would appear that what might have been uncertain as to legality under present law is made definitely illegal under H.R. 4347. In only two cases does it appear that what might have been uncertain as to legality under present law would, under H.R. 4347, for the first time become legal even though the period of legality is limited to only 6 months.

It would further appear that under the column entitled "The Present Practice,” all 22 practices are currently used by educators, and that under the column entitled “Ad Hoc Committee” we find four noes which reflect, as I understand the graph, that the recommendations of the ad hoc committee would make illegal what is now actually the practice in the four particular cases.

Mr. ROSENFIELD. Mr. Poff, if you will forgive me for what I hope is not an impertinent remark, in a short time you have gotten the

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