Lapas attēli

We oppose the enactment of § 108 (g) (1) as presently proposed, because it introduces an inarticulate and troublesome concept of "concerted reproduction"; we consider the reference to "systematic reproduction" in § 108(g) (2) to be equally vague and troublesome.

It is significant that the Senate Report No. 93-983, 93d Cong., 2d Sess. 122 (1974), states of the identical text of § 108 (g) which appeared in S. 1361:

However, neither a statute nor legislative history can specify precisely which library photocopying practices constitute the making of "single copies" as distinguished from "systematic reproduction." [At p. 122.]

We urge that the legislative history to § 108 reflect this concern with unduly limiting § 107. We object to the examples of permissible shared library usage under § 108 offered in the above Senate Report, in that they are misleading. To the extent that they would guide a court in the interpretation of the phrase "systematic reproduction," this statement of legislative intent does so without any reflection of the interest of the teacher and scholar to have basic material made available. Moreover, the present expression of legislative purpose underlying § 108 makes no mention of the considerations of the Higher Education Act's stated interest in shared usage.

It would be our preference that the text of the present § 108 be modified as we have indicated above and that the legislative history of this provision reflect the dual concerns of the teacher and scholar's need for the availability of published materials as well as the Education Act's directive for shared usage. It seems to us that the examples in the present Senate Report give little if any weight to these two basic considerations.

From the standpoint of the teacher and the researcher, the doctrine of fair use must be enacted free of effective limitations on library practices. Availability of library materials remains basic both to the teaching and research functions of the higher education community. A teacher in a small private or public university located in the Southeastern part of the United States, may find that a work essential to a current research interest is to be found only at a university at some distance to the Northeast. That teacher may need to obtain only one chapter of a book or a few pages of either a book or a periodical. Having such material available is essential to the scholar. Inter-library lending has become a means of making this information available. A definition of fair use which left uncertain the availability of such material, even if photocopied, would frustrate the purposes underlying both the fair use doctrine and the fundamental commitment to provide and advance knowledge by the university community.

Accordingly we would request that the legislative history of § 108 (a) through (f) clearly state the importance of the availability of library and archival material to the teacher and the scholar.

Turning to the teaching function, the need for reasonable availability of copyrighted material for classroom use is inextricably linked to the needs of the scholar. Often a current news item or periodical article will bear directly and immediately upon a topic scheduled for classroom discussion the next day. The quality of teaching is greatly improved by making available to the students the latest commentary about it while they are studying the topic. Denial of availability of such copyrighted material would not serve the interest of copyright proprietors. Students in the classroom situation are not potential subscribers to the Bureau of National Affairs, Antitrust & Trade Regulation Report, for example, or to the Prentice-Hall multi-volume Federal Income Tax Service, during their tenure as students. Indeed, it is likely that having the benefit of a brief extract from one of these services, complete with its full title, will advertise and acquaint the student with the utility of these loose-leaf services.

To deny the classroom teacher the availability of such material will mean only that the students will be without such current and timely material. Denial of the use of this material will mean simply that the educational process will be less well served and the copyright proprietor will be without even the benefit of having the availability of this material brought to the attention of students.

We reiterate that we do not seek the right to engage in multiple copying out of the context of research and teaching. We seek only the right of the scholar and teacher to have available, subject to the limitations of the statutory fair use doctrine, such copyrighted material as is germane to research and writing. And we seek this availability in the public interest in the promotion and dissemination of education and scholarly pursuits. In taking this position, we recognize that the effect on the potential market for the copyrighted material, is an appropriate factor to be considered in the determination of fair use. We also recognize that

in the overwhelming proportion of cases, any possible adverse effect on the economic interest of a proprietor will be nil or virtually so. On balance, such use of excerpts is likely to stimulate the sales of the material in the long run.

We should like to draw the Committee's attention to the forthcoming studies undertaken through the Copyright Office and the National Commission on Libraries and Information Science, of the library usage of copyrighted materials both in the inter-library loan context as well as in meeting requests of scholarly and research users. The feasibility of designing a "payments mechanism" for such library uses is one aspect of this study.

It is our concern that a determination of the feasibility of some means of compensation may serve to vacate the doctrine of fair use. We believe such a conclusion would do great harm to the public interest in the promotion of education and scholarly activities. Moreover, such an outcome would inflict irreparable harm on the educational community without conferring a derivative benefit on copyright proprietors.

We thus advocate that the House Report which accompanies this measure, be drafted to include an express reference to the effect that the doctrine of fair use would be applicable to copyrighted materials which might subsequently be designated as compensable, if photocopied for other uses. By clearly establishing that teaching and research uses are significant to the doctrine of fair use, subsequent uncertainty as to the treatment of library materials which might require compensation if copied for other purposes, would be avoided.

We consider that Chapter 5 of H. 2223 sets out definitions of infringement and remedies therefor, which are unduly restrictive of the doctrine of fair use in the educational context.

Accordingly we urge modification of the present measure, as follows. First, we urge that § 502 (a) be modified by the addition of the following sentence, "No temporary or final injunction shall be available against any library or user covered by § 108 or § 110."

In its present form, we believe § 502 (a) of the proposed measure would permit the use of the injunction to undercut the effective access by teachers and scholars to the fair use provisions. We would point to the withdrawal by Congress of injunctive relief against collective organizational activity in the labor relations arena by the Norris-LaGuardia Act, 47 Stat. 70 (1932); 29 U.S.C.A. § 101 (1973). It is our position that the parallel should carry over here. The sole statutory framework controlling labor relations is the Labor Relations statutes themselves. We urge that the fair use doctrines of the proposed measure be enacted as the sole framework for governing the use of copyrighted materials in the educational context by teachers and scholars.

Secondly, we consider that the damages provision of § 504 (c) (2) also encroaches upon the fair use doctrine of § 107. We urge a change in the last sentence of this provision beginning at line 13 on page 49. In line 18, we would prefer that the reference to § 107 be deleted in favor of the phrase, "§§ 107 through 117." Then we would urge that all language on line 18 after the phrase, “§ 107”, in the current version, be deleted. In its place we would urge the following final language as follows: "there shall be neither statutory damages, nor costs, nor attorneys fees."

TESTIMONY OF LEO J. RASKIND, PROFESSOR OF LAW, UNIVERSITY OF MINNESOTA, REPRESENTING THE ASSOCIATION OF AMERICAN LAW SCHOOLS, THE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, AND THE AMERICAN COUNCIL ON EDUCATION Mr. RASKIND. As Mr. Steinbach has said, Mr. Chairman and members of the subcommittee, I am professor of law at the University of Minnesota. I appear before you today on behalf of these organizations: The Association of American Law Schools, the American Association of University Professors, and the American Council on Education. We account, as a law school association, for some 6,000 law teachers. The American Association of University Professors comprises some 75,000 other university professors. The American Council

on Education is an association of national and regional education organizations, and nearly 1,400 institutions of higher education.

We appear before you because of our concern over the revision of the doctrine of fair use in relation to our function. May I draw to your attention, on page 2 of my statement, to the second paragraph; we note above the constitutional directive contained in article I, section 8, clause 8, of Congress' concern in this area of assuring to authors and others the rights to their writings.

As the higher education community, we are the principal institution concerned in this society with the task of transmitting and advancing knowledge. It is for that use that we deem the problem of fair use of copyrighted material as crucial to the discharge of this function.

As a classroom teacher with some 20 years' experience in law schools and departments of economics, I am here to assert to you that without the doctrine of fair use, adequately described in the statute, and supported by articulate legislative history, what we do would be greatly impeded without any derivative benefit to publishers and others.

We use this material-and examples of our use suggests that the students, who are the ultimate consumers of our concern as teachers, are not, at the time that they are students, potential subscribers to the journals for which protection is sought. Many of the journalsTime magazine, for example-recognize the students' status by offering student subscriptions. Many learned journals offer subscriptions. We are only asking through the doctrine of fair use, as researchers and scholars, to advance knowledge by having made available to us, in the library context, materials which our libraries do not have, no matter how good they are. The University of Minnesota has a fine law library, but we do not have everything. On occasion it is necessary for me, if I am writing an article, to have information from other libraries. That is the main nub of our concern with the doctrine of fair use. We think it is crucial for the discharge of our teaching and research. We do not see that it infringes on the economic rights of others.

I draw your attention, on page 2, in the third paragraph, that we expressly recognize that we do not seek to have removed from copyright protection basic material under the statute. We accept this premise as a matter of principle and a matter of public policy and a matter of self-interest. As lawyers, we recognize case law and I draw your attention, now, to the next-to-the-last paragraph on page 2that the existing state of case law in this area is not articulate, sufficiently articulate, to deal with fair use and describe it.

Therefore, we urge that this revision process produce a statutory doctrine of fair use and it be described by legislative history that will aid the interpretation of it.

I point out to you further-I will not read this statement; I will summarize it and make myself available to your questions-that Congress has, itself, as I point out on the bottom of page 3, enacted legislation suggesting such shared usage and recognizing that, as researchers, our libraries do not have adequate resources and cannot have adequate resources for every library to have a total collection of all the material that is needed for teaching and research.

I draw your attention to Congress' joint- and shared-use provisions in the Higher Education Act, section 1033.

Against this background, we have reviewed the proposed H.R. 2223 and found, as was pointed out to you yesterday, that, for example, section 108 (g) trenches and undermines the interpretation of section 107 that we would seek. The details of that, I leave to my statement. I would draw your attention now to page 6 of my statement, and to the second paragraph; the first and second paragraphs.

Our position is that to deny the classroom teacher the availability of such copyrighted material, in the context of teaching and research, would be to make the teaching and research process less fruitful, less meaningful and less important to scholars; and to do so would not benefit the economic interest of copyrights. We would simply do without, if it were necessary, if we could not have access to this material.

We reiterate, as I say in the second paragraph on page 6, we do not seek the right to engage in multiple copying outside the context of research and teaching. We seek only the right of the scholar and teacher to have available subject matter, subject to the limitations of the statutory doctrine of fair use.

I will close now, and make myself available to your questions.

Mr. KASTENMEIER. Unless members are strongly disposed to do so, I would urge they defer questions until each of the witnesses has concluded; then you may ask questions of any of the witnesses who have testified.

Mr. STEINBACH. I next would like to introduce Bernard J. Freitag, Council Rock High School, New Town, Pa., on behalf of the National Education Association; accompanied by Dr. Harold E. Wigren.

[The prepared statement of the National Education Association follows:]


I am James A. Harris, President of the National Education Association. The NEA represents almost 1.7 million teachers in every state across the nation and is the largest professional association in the United States. Its members are active at all levels of education from early childhood through postsecondary and adult. Thus, our interests cover the whole spectrum of educational programs. We appreciate the opportunity to present our views regarding the need to reform copyright law and retain certain positive aspects of the present law, and to comment on H.R. 2223.

The National Education Association is in favor of reform of the U.S. Copyright Law of 1909, but NEA will not support a law which deprives educators of rights derived through long-established practice and which denies teachers and students the right of reasonable access to both print and non-print materials for purposes of teaching, scholarship, and research.

The NEA therefore opposes H.R. 2223 in its present form. It is a regressive bill that curtails or repeals existing rights for education-rights which have been established through the years. We object to H.R. 2223 on a number of grounds.

(A) The language of H.R. 2223 severely curtails the applicability of the “notfor-profit" concept in the present law and substitutes restrictive language that is not acceptable in meeting the needs of education consumers. Under the not-forprofit principle, a distinction is made between commercial and noncommercial uses of materials-a distinction which we feel is valid and defensible and which should be preserved in the new law. Educational users need special protection over and above that provided commercial users because they have a public responsibility for teaching the children entrusted to them. They work for peoplenot for profit. They do not use materials for their own gain but for the benefit of the children of all of our citizens, including those of authors and publishers.

Teachers therefore need the assurance that the present law's not-for-profit principle, granting special exemptions for nonprofit uses of copyrighted materials, will become part of the new law.

Section 110 (1) of H.R. 2223 limits permissible uses of copyrighted materials to face-to-face classroom teaching situations and would rule out closed-circuit inschool uses as well as uses over dial- or remote-access system in schools, all of which are designed to bring materials to learners rather than transport learners to materials. Section 110 (2) would restrict the transmission of instructional television programs to "reception in classrooms or similar places normally devoted to instruction” and would rule out the use of such programs in open learning situations in community store front learning centers or for high school or postsecondary formal viewing situations in dormitories or at home. Education is rapidly moving in the direction of providing many alternatives and options in learning wherein school is becoming a concept rather than a place.

(B) The bill also fails to clarify the meaning of "fair use" as applied to the uses of instructional materials by teachers and students. The recent Supreme Court decision in the Williams & Wilkins case validates our position that fair use is unreliable at best and is, in the words of the Court of Claims, an "amorphous doctrine." The bill leaves it in that status. If eight Justices of the Supreme Court are unable to reach agreement on whether a given use of a work is a fair use, how can one expect a non-jurist to know? The language and rationale are just as applicable against teachers and schools as against libraries.

The NEA does not condone "under-the-table" uses. It simply wants teachers to have reasonable certainty that a given use of copyrighted work is permissible so that they won't be afraid to use a wide variety of materials and resources in the classroom.

The bill further fails to recognize custom and practice in education as a proper basis for "fair use," as was decided in the Williams & Wilkins case. For many years teachers have been accustomed to certain classroom uses of materials being unchallenged or unquestioned. For example:

A class is having difficulty understanding symbolism in literature, and the class text does not go far enough in its explanation. The teacher therefore makes multiple copies of a short poem or a short essay (from another book) that would help the class understand the concept.

A foreign language teacher tapes a portion of a modern French poem and asks students to verbalize the recorded portion and then tape it so they can see the improvement of their accent.

An economics teacher reproduces 30 copies of graphs and charts from the Wall Street Journal to study the stock market.

They consequently have assumed that such uses were legitimate. We argue that custom can become law when it isn't questioned! This is particularly true in cases where the law is ambiguous, as in the case of the fair use doctrine, where long-established and non-contested custom and practice has in fact established a meaning for the statutes.

In this regard, the NEA is also concerned the bill still places the burden of proof on the classroom teacher to prove that he or she has not infringed copyright. The NEA believes strongly that this burden of proof should be shifted to the alleger of the infringement, who has all the data involved in all the criteria for fair use which are specified in Section 107.

(C) This legislation further reduces accessibility now permitted through the non-renewal of copyrights after 28 years. It does this by eliminating the renewal requirement and by providing for duration of life plus 50 years. This is a curtailment of education's present rights of access because it unduly extends copyright monopoly from "28 years plus a 28-year renewal period" to approximately 75 years. Copyright Office records show that approximately 85 percent of copyrighted works have not been renewed after the initial 28-year period, but have passed instead into the public domain. The unwarranted extension of copyright in H.R. 2223 would protect the author's or creator's heirs more than it would the author or creator himself or herself. We ask, therefore, why the principle of free access to information so essential to a free society should be sacrificed, especially when the author or creator himself or herself has not seen fit to renew the copyright. Many teachers who are also authors tell us that they are as much or even more-interested in seeing their works used and their ideas disseminated as they are in receiving remuneration each time their works are used. The profit motive is not the only motive that prompts an author or other creator to produce. There is also the

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