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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,
interested in the entire statute and are pleased to have a seat on the ad hoc committee. We think, as classroom teachers of English, we have a particular stake in fair use.
And in my written remarks, I note an erosion of where we were 10 years ago, from both Mr. Hersey, on behalf of the Authors League, and Mr. Lacy, on behalf of the American Book Publishers Council-they told us we could do what we were doing all the time; it was all right. They used the example of a teacher who wanted to make a copy of Frost's Stopping By Woods on a Snowy Evening.
Mr. KASTENMEIER. I regret very much doing so; I am going to ask you to withhold making the balance of your statement. We do have a vote on at this very moment.
Accordingly, the subcommittee will recess for a period of about 10 to 15 minutes, at which time we will return to Mr. Hogan's statement, and then be able to have a colloquy with the rest of the witnesses. We will recess until approximately 10 minutes to 11.
[A brief recess is taken.]
Mr. KASTEN MEIER. The commmittee will come to order.
When we recessed we were about to hear Mr. Robert F. Hogan, executive secretary, National Council of Teachers of English.
Mr. Hogan, have you had an opportunity to reconsider your statement?
Mr. HOGAN. Perhaps to shorten it. The nub of it I think is on page 5, and I am citing there the wording from the 1966 House report. The concluding sentence at the top-depending on the circumstances, the same may also be true of very short self-contained works, such as a four line poem, et cetera. It is the term very short, and the illustration of four lines that troubled me-one line less than a limerick; 10 lines less than a sonnet. The word "may" is interesting, too. As far as I know, based upon Mr. Lacy's testimony, no teacher has ever been tried under fair use. What it means I do not know.
We offered to substitute something like the longer paragraph, about a third of the way down the page.
If I could depart from these remarks entirely. I think through an anecdote I probably could tell you more than the prepared remarks tell you-I recall a meeting when we were going to Athens, Ga. 8 years ago. A friend of mine and a stranger got into a cab together, and driving into town, after introductions all around, "What do you do and where do you do it," there was a lull in the conversation. I said to the cab driver, "Tell me about the liquor laws in Athens." He said, "This is a dry county. You cannot get a drink any place." Then the stranger got out of the car. Then he said, "Of course, there are beer and wine places around. They are hard to find, but you can get to them." The second person got out and I was left alone in the cab. As we were pulling up to my motel, he said, "Of course there are bootleggers around here to." I said, "Really?" He said, "Yes." I said, "Who would know where they are." He said, "Any of the bellhops in the hotel would know." As we came to a full stop, he said, "or a cab driver would know."
It seems to me it was remarkable, the balance of forces in Athens, Ga.; the fundamentalists wanted a dry county, and they had one. The libertarians wanted a drink, and they could get one. Nobody bothered the bootleggers.
I guess what I would like under statutory protection is more protection and higher status than the bootlegger in Athens, Ga. And it ought to be statutory protection.
I dislike disagreeing with the previous speaker. I do not have a great deal of faith in voluntary agreements. What we would like is protection under the law.
Mr. STEINBACH. We would be happy to entertain any questions that you might have.
Mr. KASTENMEIER. In connection with the remarks just made by Mr. Hogan, I think as we had tried to do years ago, we should, whatever we finally want the law to state, the statutory language should presume enforcement, and resort to what is offered therein. We should not write a law which it is anticipated will not be enforced, and which part of the defense for it is that there will be forebearance on the part of those entitled to the rights under the law.
Rather, we should presume that the law, to the extent that it contains rights and rights of enforcement will be so enforced.
I have just a few questions, then I will yield to my colleagues. My first question is addressed to Mr. Raskind. I appreciate why you oppose the law, at least the bill as it is proposed in your statement.
In terms of your understanding of what the present law is, case law or present statute, do you find that it is acceptable to the educational user of copyrighted material, granted the many parts of the law in terms of its effect has not been obviously codified or made clear through case law? As you presently understand it, is it acceptable prior to considertion of this bill?
Mr. RASKIND. Mr. Chairman, my answer to that would be as follows. My understanding does not comport with much of the understanding of people in this room. That is the difficulty. So what I would say, the Williams & Wilkins' opinion as affirmed by an equally divided Supreme Court is a starting point. It is the recognition that fair use exists in this context. That should be the base line.
We ought to have a statute that would take away the pressure of this varying understanding among the various people in this room. So I, as a teacher, if something comes up in the classroom discussion, I might find that day or the next day that there is an article in a contemporary news magazine, as a colleague of mine did a month ago-he asked me, and I said to try to get permission from them. They wrote back and said $150. He was going to use it a month away, and it ended up he did not use it. The upshot of that is the educational classroom hour then was deprived of that material.
The publisher got zero revenue. If the classroom use had been permitted, the students would have gotten a photocopy showing that journal. They would then have known that the journal contains that material. For students, when they are students of law, materials are expensive. They would not be able to subscribe to a $200 or a $300 a year service. They do not need it.
We ask for a statutory definition of fair use that permits what exists. It is recognized-Williams & Wilkins-in 1909 it was recognized that scholars could sit in a library doing research and hand-copy, without violating the statute, could hand-copy an article.
All we ask is that contemporary technology permit the same thing. Mr. ROSENFIELD. May I address myself to that?
Mr. KASTENMEIER. Indeed. To restate the question, it is to say to the extent that the present law is discernible, do you think it is a fair balancing of interest the interest you represent, or the interest of proprietors?
Mr. ROSENFIELD. I would say "No" to both your original phrasing, and to your subsequent phrasing. It is not at all a fair balance. Let me take the second first.
It is not a fair balance because our main point is that there is a basic difference between commercial and noncommercial, or nonprofit uses. Fair use has been developed 98 percent in the context of commercial uses a perfectly wise and sound rule. By being put into the context of commercial rivalries and competition, the character of the nonprofit, educational, and library use is perverted.
To your first question. Think-here, in Mr. Freitag, you have a head of a department of a small high school. He is a sophisticated person. He has people on his staff who are less sophisticated. Williams & Wilkins represents the judgment of 14 judges, if you include the trial judge as one of them. They split exactly down the middle, seven to seven. If they could not make up their minds as to what fair use is, how can you get his teacher or for that matter the law school teacher to be able to make a judgment.
What we are saying, Mr. Chairman, is that your last report and the Senate committee report both say that there is no intention to change fair use. We do not know what it is, and nobody knows what it is. You get 5 lawyers in a room on fair use, and you have 15 answers.
We are saying that that does not make sense for a teacher.
Mr. KASTENMEIER. Both you and Mr. Raskind are calling for an explicit statutory definition of fair use, which will meet your needs.
Mr. ROSENFIELD. Yes, whether it is in terms of a limited educational exemption or some other form the committee can devise that is superior. The answer is "Yes."
Mr. KASTENMEIER. Yes?
Mr. RASKIND. If I may, the statutory definition, as in the present bills, section 107, should not be undercut, as it is, in my opinion, by section 108 (g) (1) and (2), and by some of the damage provisions. We would urge that as well.
Mr. KASTENMEIER. I understand.
My second question is directed, I think, to Mr. Freitag. That is, you raise the question in the context of the present law, requiring reassertion of the right at the end of 28 years.
I would want you-my question is, why do you feel that that is useful to you? Are you making the point that there is an interest that educators have in finding material or having access to it in the public domain?
Mr. FREITAG. The original constitutional purpose was to get the material into the public domain. Anything that would serve to prohibit that, to further prolong the availability of material, it seems to us, does not advantage the public domain in any way.
If I may allow an extremely personal point of view, I would like to see 28 years reduced. I had some students that made their livelihood by designing covers for books, things of that nature, magazines and so