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STATEMENT OF BELLA L. LINDEN, ATTORNEY, NEW YORK, N.Y.
Mr. Chairman, I am Bella L. Linden, partner in the law firm of Linden and Deutsch, New York City. I was counsel for many years for the American Textbook Publishers Institute (until its merger with the American Book Publishers Council into the association known as Association of American Publishers), a member of the Panel of Experts appointed by the Register of Copyrights to consider revision of the Copyright Law, and a member of the Committee on Science and Technical Information (COSATI) of the Federal Council for Science and Technology and Chairman of the COSATI sub-panel on rights of access to computerized information systems. My firm represents Harcourt Brace Jovanovich, Inc. and Macmillan, Inc., two of the five largest American educational publishers. However, I appear here today not on behalf of Macmillian or Harcourt alone, nor solely on behalf of educational publishers. Rather, I am here in the interests of our system of educational authorship and publishing. representing the sum total of the combined creative efforts and investments of the authors and publishers of this country's educational materials.
This statement is respectfully submitted in opposition to the proposal for a general educational exemption to the rights of authors and publishers established in H.R. 2223. Eight years ago, in your Committee's analysis of the doctrine of fair use as established in the Revision Bill and, in particular, its application to educational and classroom use, your Committee concluded that " a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control is not justified." [H.R. Rep. No. 83, p. 31] At last week's hearings the Register of Copyrights stated that your report "still remains the basic legislative explanation of the content of the Bill, and the [basis from which] the reports succeeding it in both Houses have all been drawn * * *" During the intervening years, the only relevant fact to have changed is the further proliferation of devices for unauthorized, inexpensive and rapid duplication, use and transmission of copyrighted works.
Yet, we find ourselves still debating the request for the so-called "educational exemption."
At bottom, of course, this dispute is based on economic interests. Authors, publishers, educators, librarians, all must live on a budget. I will certainly concede that anything which may be acquired free of charge imposes no burden on a budget, so it is not totally unnatural for users of copyrighted materials to desire unpaid-for duplication privileges. Textbook budgets are extremely low, amounting, on a national average, to between two and three percent of a school's annual budget. Photocopying equipment and other reproduction, storage and retrieval devices are not part of a school's textbook budget, but come under the broad umbrella of "supplies." Thus, the natural and laudable tendency for good teachers is to seek supplementary material via the Xerox and tape machines. Less laudable however, is the insistence of some that authors and publishers should not be paid for such uses of their works.
Throughout the revision program the authors and publishers of educational materials have agreed with the principle of full and prompt access to copyrighted material for educational use. This is the very reason for their creative efforts and existence. Clearly, there is a significant difference between access to educational materials, which we wholeheartedly support, and unpaid-for duplication of these materials.
We have continually offered to work with the proponents of the educational exemption, as urged by your Committee in 1967, "to work out means by which permissions for uses beyond fair use can be obtained easily and quickly and at reasonable fees." [H.R. Rep. No. 83, p. 33] In fact, in my first appearance before your Committee in 1965, I offered a specific proposal for a clearing house system. However, for almost ten years-during which time many educators have loudly and justifiably voiced their demands for adequate compensation for their own services the proponents of the educational exemption have sought a statutory basis for the replication of copyrighted educational materials without payment. Rather than accept our invitation, those in favor of the educational exemption offer a provision for sweeping appropriation of copyrighted works. They commonly illustrate their so-called plight by referring to the individual school child who wishes to copy an article from a newspaper for a homework assignment. We are, in effect, told that because the patient has a headache, the cure is to chop off his head.
Authorship of an educational work usually entails many thousands of hours over a period of several years doing library and other research, field testing and
consulting. The authors of educational works are not highly publicized personalities who write best sellers and appear on television talk shows. Many are practicing teachers. Few become rich as a result of their writings. To the extent that it is possible to describe a typical textbook author, he or she is a member of the faculty of a highly regarded college or university, enjoys an excellent reputation in his or her field, but is little known outside of it and counts on copyright royalties to pay for braces for the children's teeth, a second car for the family or a vacation or study year abroad or some similar expense. More often than not, royalties on educational works are split between several authors.
By and large, it is the publisher who discerns educational needs, searches out and selects the author (or, more commonly, group of authors) to create the books and materials to satisfy the requirements of schools and universities, and directs and supervises the planning, design and creation of the works. The publishing venture generally encompasses continuing review and evaluation by numerous teachers and curriculum specialists, supervisors and consultants and field testing throughout the country. The role of the American educational publisher combines and coordinates various functions of writing, artistic design and technical skills in applied research, packaging, consulting and training as well as manufacturing, marketing and distribution.
Educational materials today are commonly produced in sets or programs integrating various forms and media such as texts, teachers' manuals or editions, filmstrips, slides, sound recordings, cards, charts, puzzles, instructional games, duplicating masters, transparencies, testing materials and the like; similarly, these programs frequently represent the entire range of literary authorship including fiction, non-fiction, prose, poetry, music and drama. It is not at all uncommon for an educational publisher to invest more than one million dollars in predevelopment costs alone for the creation of a program which will take five or ten years to reach the market and another three to five years to gain acceptance and even begin to pay off the investment. In the case of one elementary and junior high school science program with which I am familiar, a total of fourteen years elapsed between the time the program was conceived and the first textbooks were published. The program virtually revolutionized the format and content of elementary school science books. The efforts and investments of authors and educational publishers do not stop upon publication, as subsequent editions are continually revised in light of feed-back from the field and changes in publishing techniques.
Commonly, major portions of the expenses of educational publishing are attributable to payments made to other publishers and authors for the use and integration of portions of prior works in new programs. In the case of one recent elementary reading program, permissions fees paid by the publisher exceeded $100,000 and, it is estimated, comprised more than 30,000 permissions granted. The administrative "burden" of clearing the permissions did not impair the development of the program.
We cannot emphasize often enough that many of the products of educational publishing, such as treatises, texts, workbooks, tests, file cards, anthologies, encyclopedias and other reference works, are designed for use in piecemeal fashion rather than cover-to-cover reading. To permit unauthorized photoduplication of copyrighted works for the purposes of teaching, education and research is a request, in unalloyed English, to permit the educational community to engage in on-demand reprinting, on a daily basis, of those portions of copyrighted educational, scientific and technical works which they wish to use and to circumvent payment to authors and publishers whose entire market for such works is that same educational community.
In many respects educational publishing exists apart from other businesses. The authors and publishers of such works are in a very real and essential sense engaged in public service. For education itself to progress, educational authors and publishers must anticipate and effectively serve a broad range of instructional and scholarly needs. To continue to serve this function in today's society, they must be adequately remunerated for the duplication of their work product.
Although on a short term basis an "educational exemption" may appear desirable to some as aiding the budgetary ills of the educational community, it is clear that the longer term consequence would be to discourage authors and publishers from investing in the creation and distribution of educational materials. The only alternative which comes to mind is the nationalization of educational publishing. Among the ways our society has avoided suppression
of intellectual work-product are the system of economic incentive to writers provided by copyright and the free-enterprise publishing system which encompasses multiple outlets for distribution. Thus, authors are encouraged to publish their thoughts, and the views of an author which may be antithetical to one publisher (or be considered by him to be unpublishable for economic, competitive or other reasons) may still receive exposure through publication by another.
If applied to the free storage (input) of copyrighted materials in computerized information systems the proposed exemption would be in complete derogation of the judgment of both Houses of Congress as expressed in the recent passage of a law establishing a National Commission on New Technological Uses of Copyrighted Works. One of the stated purposes of that Commission is to study, compile data on, and make recommendations to Congress concerning "the reproduction and use of copyrighted works of authorship . . in conjunction with automatic systems capable of storing, processing, retrieving, and transferring information * *
Proponents of the educational exemption have repeatedly emphasized their "educational" purpose and its relation to the public welfare. Of course education is in the public interest-but under our system this interest is served by a private and commercial enterprise which requires a profit to survive. The injury to this country's educational system, educators, scholars, and school children will be material under the erosion of copyright which will result from the proposed exemption. This was fully recognized by your Committee in 1967 when, after considering arguments for a specific educational exemption extending beyond fair use, it stated:
"The fullest possible use of the multitude of technical devices now available to education should be encouraged. But, bearing in mind that the basic constitutional purpose of granting copyright protection is the advancement of learning, the committee also recognizes that the potential destruction of incentives to authoriship presents a serious danger." [H.R. Rep. No. 83, at p. 31]
TESTIMONY OF BELLA L. LINDEN, REPRESENTING EDUCATIONAL PUBLISHERS
Ms. LINDEN. Thank you, Mr. Chairman.
I shall not read my statement at all, but submit it for the record, the reason being that everything that I am saying in my statement, and I dare say everything that the educators have said this morning, we have all been saying for the past 10 years, at least.
Consequently, in order to save time, all I would like to do is point out specifically five or six-actually it adds up to seven-statements that I would particularly like to draw to your attention.
One is that the position of the educational community, as represented by the people who testified here this morning, and by the librarians who testified yesterday, 10 years ago was that photocopying is done in a very limited way. Ten years ago they said that copying cost 50 cents a page; therefore it is cheaper to buy a book than to photocopy a book; therefore it is cheaper to buy a journal article or reprint, or buy the journal instead of doing the photocopying.
Nothing, with all due respect, has changed in the course of the 10 years with respect to the philosophy of the purpose of copyright. All that has changed is the rapid proliferation of technological devices for replication-tape, Xerox equipment, so on and so forth, and in formation storage and retrieval systems.
The proliferation of all this has met in the eyes of the educatorsit would seem that because there is a more rapid technique of achieving the dissemination of information, the payment should be limited. to the technology.
No one here has ever spoken to the Congress that they should insist that the Xerox equipment or tape equipment should be given to the nonprofit institutions gratis. What they have all insisted upon is that the intellectual material, without which the technological dissemination hardware would be relatively useless, should be given gratis.
Again, I say with great sadness, we see awe and respect for tangible property, and we see less than respect for intellectual creativity, which in my view, may I suggest-and I am sure it is shared by all hereis the cultural and most valued part of the heritage.
I would also like to point out that what you are doing is not evaluating a Williams & Wilkins case of past transgressions where the issue is limited to one publisher and certain specific issues. You are being asked to legislate exemptions with respect to all future creativity. You are being asked to suggest a system of modifying the creation and packaging of intellectual information for the educational and research community. You are being asked-there will be no cataclysmic disappearance of future creativity overnight. If you do pass these educational exemptions, what you will have created is the gradual but inexorable erosion of the competitive entrepreneurial production of intellectual material for the education and research community of this country at the very least.
One or two of you noted very aptly that the educational materialI will hand out some-that consist of 150 items in a children's reading program of all kinds of nonfiction, small portions included. That is the entire market for the educational producers and the duties of material. I will not dwell on that point.
I would merely like to add that yes, as the educators have said this morning, it is a question of budget. What they have reference to is the intellectual property budget, which is 2 or 3 percent, at the most, of the entire school budget. They are not talking about the teachers' salaries or carpeting or Xerox equipment. All they are talking about is the minuscule proportion of the budget that goes for intellectual property.
With respect to the problems of fair use, may I suggest, with all due respect intended, fair use, as I sat and listened to the great difficulties of defining fair use, it occurred to me-and I mean no disrespect to this committee or to anyone in this room-if the good Lord had promulgated the statement, love thy neighbor before this committee at the time of Genesis, you would still have people here defining what love is, seeking guidelines with respect to which neighbors are intended to come under the stricture to love thy neighbor, and there would be a rising clamor for exemption of certain neighborhoods from the statement of the good Lord, because it was in the public interest to exempt those neighborhoods.
May I suggest in all seriousness, there is no precise language in any statute of any kind that has ever been promulgated that is not subject to different interpretations. That is why, thank the Lord, there is a
legal profession, and thank the Lord that is why there are congresses, and that is why there is ongoing revision of statutes, just as the
act of 1909.
Mr. KASTENMEIER. I would point out if the bill before us had been in effect at the time, and He had set it down already, the Lord would still have life plus 50.
Ms. LINDEN. That is true. We also gave it to Mary Baker Eddy, if you recall.
May I suggest, furthermore, that fair use, like all other statutory language, is susceptible to interpretation. We all know what love thy neighbor means, whether we obey it or not. We all know what fair use is, and we all know what the four criteria are.
May I also call to your attention that the bill now before you has a series of compromises of exemptions, which we have reluctantly accepted, because this is the era of compromise. This is the era where people have less regard for private intellectual enterprise than they did generations ago. We accept it. We are willing to live, survive, and struggle under it. We are asking for survival of the private intellectual authorship and publishing industry.
In conclusion, may I say that if any of you would be good enough to look at my testimony given before this very committee in 1965, we did in fact offer a clearinghouse. We made the point then-we make the point now-we have made it continually. We are agreeing that the copyright law is intended to grant the right of access. We are agreeing that access is the essence of intellectual information and is the whole purpose of publishing and production of audiovisual materials.
What we are saying, under our form of government, and our philosophy of free dissemination of competitive ideas, we do not wish to end up in a decade or so with a nationalized educational publishing system and with limited authorship under that kind of a budget.
I want to include my one statement-yes, we sympathize that the educators and librarians have problems balancing their budgets. We all do. And we know that if any of us could only get for free that which we in our society have to pay for, we would find it a much more easy task to balance our budgets. May I suggest that the librarians and teachers budgets should not be balanced at the expense of this intellectual property which is essential to their ongoing teaching process. That, I submit, is in the public welfare.
Mr. KASTENMEIER. Thank you, Ms. Linden, for a very strong statement.
The Chair will personally say it is good to have you back after 10 years. Having seen you a number of times in the context of copyright, you have made enormous contributions in the field.
Next, Mr. Meell.
[The prepared statement of Mr. Meell follows:]