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When the publisher's representative learned of our action, he purchased a copy of the book we printed and advised that we might be sued for copyright violation. We aren't sure where we stand in relation to the law, but we feel morally justified in our action. Please comment on this case.
Answer 1: Because of potential litigation in this matter, the only conclusive decision would have to be a legal decision. However, using the doctrine of "fair use" as a guide, an informal opinion would be that an illegal act has taken place for these reasons: 1) The publisher's (proprietor's) permission was not obtained in advance. 2) Multiple copies were made. 3) The concept of "amount and substantiality" was clearly violated in that the entire work was reproduced. 4) The sales market for the work was somewhat affected. EUGENE H. WHITE,
Director of Audio-Visual Services,
Answer 2: The action taken by this school was clearly in violation of copyright law, both existing and proposed. While the concern over the late delivery of the textbooks was understandable, there was another approach that might have satisfied both the need for the materials and the observance of the law. A phone call to the publisher, giving an explanation of the circumstances, would probably have resulted in permission to duplicate either the first few chapters or the entire work for a moderate fee. Publishers generally are anxious to rectify any inconvenience caused by late deliveries or out-of-stock orders. The problem is that no one thinks to ask them. The paper shortage, energy crisis, and slow delivery schedules will probably cause more problems of this type in the months to come. It would be well for educators to remember that there is an alternative to unauthorized duplication-ask for permission.
Staff Director, Copyright and International Trade,
The editor needs additional questions to be answered in this column. The identity of individuals submitting questions will be held in the strictest confidence. Please send all correspondence to Jerome K. Miller, Chairman, AECT Copyright Committee, 1025 Adams Circle, Apt. 2B, Boulder, Colorado 80303.
TESTIMONY OF HOWARD B. HITCHENS, EXECUTIVE DIRECTOR, ASSOCIATION FOR EDUCATIONAL COMMUNICATIONS TECHNOLOGY
Mr. HITCHENS. Thank you for the opportunity, Mr. Chairman. I represent a relatively small organization but, we think, a key one in our concern with the copyright law that is under consideration. We are about 8,000 strong, and we are technologists, if you will. We are people who are concerned at all levels of education with the introduction of technology into the educational and instructional process. We regard technology, however, as something more than a collection of educational machines and materials. We believe it represents a systematic approach to practical problems that emphasize the application of relevant research in order to seek problem solutions.
The professional in our field can be found in the elementary and secondary schools, in the colleges and universities, in training institutions of all kinds. He is a guy who is perhaps developing instructional materials for accomplishing specific educational objectives for use by teachers in classroom settings or other settings. He may be producing instructional programs over, you might call it, a mass communications medium: Television production, this type of thing. He may be found assisting teachers in selecting materials to meet objec
tives or evaluating materials or even identifying the long-range objectives, themselves.
Our people are quite concerned with two points in the copyright legislation. First, we have been dealing a great deal with the issue of fair use and how we can take the needs of both the producer of instructional materials and the consumer or user of instructional materials into account.
We feel that we find ourselves in the role of copyright experts quite frequently, in the institutional setting, because we are either a custodian of, or have responsibilities for, the logistical management of instructional materials.
We think that the teachers and media professionals and the librarians create markets for an author's work and give them visibility. Also, in this day of individualized instruction, the so-called open classroom, ungraded schools, and student self-evaluation, the successful educator has to have available a wide range of learning resources in order to be effective.
Therefore, we have adopted a position on what can be considered a relatively small point, which we think serves both groups, the producers and the users. That, in regard to section 107, is that we are concerned with spontaneity. We feel that the previous House and Senate reports which identified spontaneity as an important determinant as to whether or not a use is fair is unfortunate. We feel that the classroom teachers do not-we know they do not-always act individually or at their own volition. We are in an age of specialization now in education and in instruction management just as we are in other segments of our society. Frequently, a media professional is called upon to assist in that decisionmaking process. A teacher does not make the decision alone. A media professional is not classified as a classroom teacher, and sometimes is classified as an administrator. We feel this should not prevent him from playing his role in the effective management of instruction. We are not suggesting a different fair use to be extended to media professionals; we are suggesting that they be allowed at least as much freedom as the teachers and other educational professionals.
We are currently working with other interested groups on this problem and will be happy to try to come up with some language to substitute for that which is currently in the legislation.
The other issue I would like to address is the general question of how we resolve the argument between producers and consumers.
We have spent many hours working with producers in an attempt to work out guidelines that would assist educators in holding up the current copyright law and looking at the laws that are pending. We have come to the conclusion that the best means to solve the problem is developing voluntary licensing agreements between educators and producers. Such agreements would allow a predetermined amount of copying, a kind of copying, or maybe unlimited copying, either for no charge or a predetermined fee. Such an agreement would set the bounds of fair use in advance and would also allow educators to take advantage of the so-called teachable moment.
We are not asking you to establish in legislation a licensing agreement. We think that should be voluntary. We are asking for your
support and encouragement to both sides to sit down and develop licensing agreements.
The remainder of my testimony is submitted, of course, for the record. I hope it would be entered into the record, Mr. Chairman.
Mr. STEINBACH. Mr. Chairman, I next would like to introduce our final witness, Robert F. Hogan, executive secretary of the National Council of Teachers of English.
[The prepared statement of Mr. Hogan follows:]
STATEMENT OF ROBERT F. HOGAN, EXECUTIVE SECRETARY, NATIONAL COUNCIL OF TEACHERS OF ENGLISH
Mr. Chairman and members of the subcommittee: I am Robert F. Hogan, Executive Secretary of the National Council of Teachers of English. The National Council is the world's largest independent organization for teachers of one subject. Its 115 thousand individual, associate, and institutional members and subscribers are drawn from all levels of education, elementary through graduate school. For them, I express our appreciation for this opportunity to submit written and oral testimony to the subcommittee.
Although a substantial majority of this membership consists of classroom teachers, it also includes authors, editors, and publishers. The Council itself is a publisher of seven periodicals and about fifteen books and monographs each year, all protected by copyright. I stress those two facts, on the chance that someone might construe the remarks that follow as threatening to the interests of authors, publishers, and others who have a genuine stake in reasonable protection through copyright. The Council shares that stake.
What chiefly concerns us is, while ensuring the maintenance of reasonable copyright protection, to recognize fully the needs of more than a million elementary classroom teachers who spend up to half their teaching time and effort on language arts and reading, 175 thousand secondary school teachers of English, and, most of all, the 60 million children they teach.
I must confess that I prepared these remarks with a sense of deja vu. I've been here before; we've all been here before-teachers, publishers, authors, legislators, and legal counsels for all four groups. We have been locked into this confrontation for nearly as long as the United States was involved in Indochina. I can't be alone in thinking it's time we brought it to conclusion and in hoping
But deja vu isn't quite an appropriate phrase. It captures the feeling but fails to describe the situation. It seems as though we've been here before, but where we are now is not, on close inspection, where we were in 1963, when the Ad Hoc Committee first gathered its strength.
The feeling of deja vu began with the first three paragraphs-lifted from my statement in 1973 before the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Judiciary Committee. There was no need to alter them. Nothing substantive had changed. Their substance is not greatly different from introductory statements by NCTE representatives at hearings of the Subcommittee of the House Committee on the Judiciary at hearings in late spring and summer, 1965.
Nevertheless, since 1965 we've gained ground and we've lost ground. Among the gains I would count the reduction in minimal statutory damages for an innocent infringement; and the impulse in the proposed statute, as well as in the accompanying report, to clarify the meaning of "fair use." The 1965 House Bill was the first effort to provide legislative sanction to that judicial principle, but it was in such skeletal outline as to scare anyone who trembles before skeletons: "Notwithstanding the provisions of section 106, the fair use of a copyrighted work is not an infringement of copyright" is the entire bone structure of that skeleton. I'm aware of how much the writers of that House Bill felt they were doing; but how little they actually did is revealed in their summary statement of "Highlights of the 1965 Bill for General Revision of the U.S. Copyright Law." Of fair use they say, "The bill would add a provision to the statute specifically recognizing the doctrine of fair use, but without any attempt to indicate the application or define the scope of the doctrine."
Granting the landmark nature of this step, I still had the feeling of the World War II Navy enlisted men who heard this announcement: "There will be liberty
for the liberty sections, but no liberty boat." To paraphrase for those who may have missed the "enlisted" experience of World War II, "those who are entitled to, may go ashore on liberty; but there is no way to get there." The present bill goes considerably farther:
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes 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.
But while we were gaining ground in the statute, we were losing ground in the accompanying report. During the 1965 hearings, among those who testified on behalf of authors and publishers were two witnesses who presented interlocking testimony: John Hersey, on behalf of the Authors League of America, and Dan Lacy, managing director of the American Book Publishers Council.
Mr. Hersey referred to a hypothetical teacher in a small town in "Montana or Maine or Georgia" who wanted to share with her students Robert Frost's "Stopping By Woods on a Snowy Evening." Since copies were not otherwise available, she made a set for her class. Mr. Hersey went on to say that this was nothing new and that he saw nothing wrong with it. He added, "If there is a suit in the future, I can also assert to you that it will not be because of violation of what we would consider to be fair use, but only because of some abuse." Obviously, Mr. Hersey thought the actions of that teacher were not an abuse. Later, Mr. Lacy stated,
"In the whole history of copyright law, in all the undoubtedly hundreds of millions of uses of copyrighted material by hundreds of thousands of teachers over many decades, I think it is true, and this is based on rather careful study, that no teacher has ever been sued by a publisher for copyright infringement. 'Fair use' covers an enormous area. Beyond fair use, there has existed a broad margin of safety in which the common good sense of publishers and good faith and good will of teachers have prevented copyright from being any limiting or oppressive factor.
"Teachers would continue under the new law to enjoy all the freedom under the old and have that freedom buttressed and reinforced by the specific authorization by statute of the doctrine of 'fair use' ***. The present doctrine of fair use is, let the Montana school teacher go unimpeded without opening the door to the major abuse."
Mr. Lacy's concern was that to include in the legislation anything more would either restrict some teachers from making legitimate uses of materials or open the doors for others to make illegitimate uses. However, in the House report to accompany H.R. 4347 under the discussion of "Multiple copies of excerpts" the following statement appears:
"In general, and assuming the other necessary factors are present, the committee agrees that the copying for classroom purposes of extracts or portions, which are not self-contained and which are relatively 'not substantial in length' when compared to the larger, self-contained work from which they are taken, should be considered fair use. Depending on the circumstances, the same may also be true of very short self-contained works such as a four-line poem, a map in a newspaper. *****
This statement seems to be much more restrictive than the spirit of the remarks by Mr. Hersey and Mr. Lacy. I refer specifically to the word very and the phrase four-line. Even the example that Mr. Hersey offered and that Mr. Lacy picked up, Frost's poem, contained sixteen lines.
NCTE strongly urges that the following wording be substituted: "Depending on the circumstances and in order to protect spontaneous, creative teaching, the same would also be true for temporary use of short self-contained works such as poems, maps in a newspaper, vocabulary builders from a monthly magazine, essays, and short stories. This should not be construed as permitting
a teacher to make multiple copies of the same work on a repetitive basis or for continued use."
Please understand that this is not a request for an unlimited hunting license for English teachers. Nor is it to say that everything every teacher has done till now with copyrighted materials would be adjudged fair use if it came to trial. We know there have been abuses and have listed examples in previous testimony. If, for example, a school or an entire school system were to manufacture collections of poetry for repeated use without securing permission and paying fees, I would deem that not fair and therefore illegal. Similarly, if schools duplicate consumable materials specifically intended for classroom use and protected by copyright (e.g., answer sheets for published tests or workbook drills), I would deem that not fair and therefore illegal. If either such practice came to suit, and if I were asked to testify because of my position in NCTE and the expertise some might attribute to it, my testimony would be on behalf of the copyright holder.
What we do seek and need is a clearer statement, either in the statute or in the accompanying report, reassuring us that in a spontaneous teaching situation, we may make for one-time use by our students in our classrooms, multiple copies of self-contained short works of literature.
In the absence of that assurance, we must either be less creative than we'd like to be or depend on the "good will, good sense, and good faith" that Mr. Lacy referred to and on the fact that no copyright holder has sued a teacher, so far. However, in 1961 the standard copyright notice for one major publisher was, "All rights reserved-no part of this book, may be reproduced in any form without permission in writing from the publisher, except by a reviewer who wishes to quote brief passages in connection with a review written for inclusion in magazine or newspaper." In 1975 the notice for the same publisher reads, "All rights reserved. No part of this book may be reproduced or transmitted in any form by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in writing from the Publisher."
Apart from pointing out a much harder line on the part of at least this publisher, I am compelled to ask what has happened to even the narrowest construction of fair use? Beyond that, what happened to "good will, good sense, and good faith"?
I don't mean here to take unfair advantage of Mr. Hersey or Mr. Lacy. I don't know of any writers or publishers I respect more. I think my references to their statements are accurate and fair to the contexts which surround them.
But as all those parties with a stake in a new copyright law have expanded in number and grouped and regrouped, as lines of special interest have been drawn and redrawn, English teachers and, even more, their students, have lostparticularly if they're restricted to one-time copying of four-line poems, which is to say one line less than a single limerick, ten lines less than one sonnet.
The ironic thing in all this is that ten years of argument over the content and substance of a new copyright law may have moved us no closer to a satisfying law, but may also have made adversaries of three interdependent groups: teachers of language and literature, those who use language best, and those who publish the users of language for the teachers. Despite soothing reassurances that we are all still friends, English teachers cannot escape observing the erosion of relationships, the erosion of the earlier concepts of "good will, good sense, and good faith." We seek assurance in the statute or in the accompanying report that the best and most imaginative among us are not outlaws or bootleggers.
TESTIMONY OF ROBERT F. HOGAN, EXECUTIVE SECRETARY, NATIONAL COUNCIL OF TEACHERS OF ENGLISH
Mr. HOGAN. Mr. Chairman, members of the subcommittee, my name is Robert F. Hogan, executive secretary of the National Council of Teachers of English. There is an ironic justice in that, because in my written testimony on page 3, it is that the egregious typographical error occurs. I would be grateful if you would compensate for my failure and make substantially read substantiality; that is what I meant. The focus of my attention is fair use, this morning. We are, of course,