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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. KASTEN MEIER. 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. KASTENMEIER. 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
on. Their protection under law is far less than copyright provision at the present time. It seems to me their livelihood is very closely dependent upon their ability to develop their creativity and sell it. Their protection is far less. There is great inequity along the line as far as those kinds of protections-patent law, for one.
Our feeling that with the 28-year renewal, it has permitted 85 percent of the material to go into the public domain after the first 28 years. We would surely hold the line there.
Mr. KASTENMEIER. The purpose of the question is to determine whether there really is an interest in obtaining material-utility, a public interest in obtaining material earlier than the expiration of the life plus 50 or 75 years proposed in this bill. Whether there is a distinction between types of material, that which is valuable and for which a greater term or renewal term ought to be sought, and that which is not available to the original publisher, producer, creator, that also lapses into the public domain at an earlier time.
Mr. FREITAG. The 28 plus 28 is very cut and clean. The life of the author plus 50 is very difficult. It is hard to see how one could determine that the copyright guarantee has expired.
Mr. KASTENMEIER. Thank you.
The gentleman from Illinois, Mr. Railsback.
Mr. RAILSBACK. Thank you, Mr. Chairinan.
I would like to address this question really to all of you or to any one of you.
Is the thrust of your remarks directed against the payments or your inability to get access to material? Which is more important? Do you object to making any payments, or unreasonable payments, or is it the difficulty in getting access?
Mr. RASKIND. I would say, Mr. Railsback, our position is, in principle, there is an area of usage where payments do not begin, and that has been recognized at the outset, for the scholar to hand-copy a work.
Our second point is, we cannot do, as teachers and researchers, what we must do if we are always under the threat or clout or have to bear the full burden of being the party defendant in an infringement action. We need availability with some clarity under the statute.
Mr. RAILSBACK. You would, I take it, differentiate between a noncommercial extensive reproduction and the making of a single copy.
In other words, you made a distinction between noncommercial and commercial. But I take it that you would not carry that to a point where you would have extensive, multiple noncommercial reproductions. Or would you?
Mr. ROSENFIELD. Mr. Railsback, the answer is fundamentally that you are correct as to our understanding, but let me back up immediately to the term "extensive." We do not, for example, think-in answer to Mr. Pattison's question to the Department of Justice-that we ought to have 1,000 copies. The Department of Justice went further than we. We do think if Mr. Freitag or Mr. Hogan or Mr. Raskind have a class of 30, 40, 60, or 100, the class ought to have the copies-thus, it is a limited copying.
Mr. RAILSBACK. Would you feel the same way if copies were to be available at a reasonable amount and easily accessible?
Mr. ROSENFIELD. No; because then you would be destroying fair use altogether. The thrust of your remark, if you would permit me to put
it this way goes to whether there is to be fair use at all, or whether you are to have a payment system which overrides everything and forbids any fair use. Our answer to that question is that to the extent that fair use or a limited educational exemption applies, there should be no payment. Beyond that, payment.
In other words, we do not believe, in Mr. Pattison's case, that we ought to have the right to make 1,000 copies, just for the purpose of copying, per se.
Mr. RAILSBACK. Especially if copies are available from the owner at a reasonable figure.
Mr. ROSENFIELD. Again, we are talking copies of what
Mr. RAILSBACK. We are talking about educational materials.
Mr. ROSENFIELD. Let me be specific in the context.
Suppose the teacher reads something the night before class or 2 days before class. Getting copies is sometimes a 6-month job, assuming that you can get them, and rarely less than a month or two. By then the teachable moment would have disappeared. So there is no point in bringing it up.
Mr. RAILSBACK. You are directing your remarks, now, to accessibility. Mr. ROSENFIELD. Accessibility in some respects without cost; in some respects beyond fair use or the limited educational exemption with cost. Accessibility is our principal objective.
Mr. RAILSBACK. Mr. Freitag, you objected, I think, to section (2), which might have been subsection (1).
How would you separate a community storefront reception, or a reception at a dormitory from general public viewing?
Mr. FREITAG. Maybe I can do it by alluding to something that is more real in my immediate situation, although I would be glad to get specific in your question.
We have a language lab in our school. Some years ago, when language labs became popular, they involved a $60,000 outlay, conduits underneath the floor, air-conditioning, and so on. Everything was very space-age. The headsets and tapes and all that sort of thing. We never bought into that in my district. We were far too pragmatic to be charmed by all that mechanism. What we bought was a wireless system. The sender goes out from a simple tape recorder or anything; the kid has a headset, wireless receiver on top. We are in business in a very few seconds. It is a small item. We use it 5 or 6 minutes, then you are done; put it aside.
We have now abandoned that to go to cassettes for several reasons. No. 1, we are a school of 2,800. Of those 2,800 totally elective programs, some 1,400 are taking French, German, and Spanish. We are now going to cassette usage in our library. We have what we call self-instruction rooms. The students sit down with a cassette, plug in the machine, listen to whatever they need, and go. Very few students can get to that library because of time constraints-all their sports involvements, things like that.
We dealt with a publisher in New York to get permission to copy the teacher tapes onto cassettes and use a rapid cassette duplicator. Students bring in their blanks, pop it on that machine, and in 111⁄2 minutes they have an hour's worth of taped material which is coordinated to the text. They take it home and there use their machine.
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