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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.

57-780-76-pt. 1--21

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.

Thank you.

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:]

STATEMENT OF EDWARD MEELL ON H.R. 2223 ON BEHALF OF THE EDUCATIONAL MEDIA PRODUCERS COUNCIL

My name is Edward Meell and I am Chairman of the Educational Media Producers Council (EMPC) and Editorial Director of the Film Division of McGrawHill Book Company. I am appearing here today on behalf of EMPC and with me is Ivan Bender, Chairman of the EMPC Copyright Committee and Assistant Secretary and Legal Counsel of the Encyclopaedia Britannica Educational Corporation.

We are here to present our views on H.R. 2223, the general copyright revision bill, and specifically on the issues involved in the educational use of copyrighted audio-visual materials. We support the bill as introduced and oppose amendments which would weaken the protection provided in the bill for audio-visual materials.

SECTION 107-FAIR USE

We specifically endorse Section 107, which writes into statutory law the main principles of "fair use" as that doctrine has been interpreted by the courts in individual cases over the years. We feel that Section 107 represents a fair compromise between the creators and users of copyrighted educational materialsa compromise which has been carefully negotiated over the past several years. Our industry is pleased with the recent technological developments which promise to make ideas and information more accessible to scholars, teachers and learners. These developments promise also to expand the role and contribution of educational media producers to the educational process of which we are an integral part. But in order to maintain and increase the incentives for the creation and production of quality materials for our schools, we must not diminish the statutory protection for intellectual products to which any author, creator or artist is entitled.

NO NEED FOR AN "EDUCATIONAL EXEMPTION"

At the time that this testimony was prepared we were uncertain as to whether a broad educational exemption, to be added to the bill as it now stands, would be proposed by one or more organizations in the light of the positions taken by the Association for Educational Communications & Technology (see Attachment A). The language of previously-introduced amendments, however, in our view provided far more than a "limited" exemption. Among other things it would authorize use for noncommercial teaching, scholarship and research-not only of "brief excerpts" from copyrighted works but also of the whole of short literary, pictorial and graphic works.

Let us take up these two concepts in order, as they would apply to educational audio-visual materials.

The concept of "brief excerpts" (which are not substantial in length in proportion to their source) is very difficult to apply to educational audio-visual materials. A half hour education nature or biology film, for example, may be built around an exceedingly difficult photographic sequence which may take months of work to capture, but may in the final product only take up a minute or two of time in the film. To permit this minute or two to be reproduced freely under an educational exemption would very likely destroy the economic viability of the product.

The concept of exempting use of "the whole of short, literary, pictorial and graphic works" presents difficulties equally great in relation to audio-visual materials. For example, is a short filmstrip a short work? Is a five minute audio cassette a short work? Is an eight minute 16mm film a short work? If so, it would very largely destroy the entire market for short filmstrips, cassettes or films, and they would be produced in extremely small numbers or not at all.

We trust that this subcommittee will not accept the idea of an educational exemption, if such an exemption should continue to be pressed by one or more organizations. If the exemption is adopted, few companies will be able to risk making the capital and time investments needed to produce educational materials and will turn their efforts to other kinds of products and markets. In such a situation, it might well happen that only with government subsidies could the producers in the private sector afford to finance the development and distribution of educational materials.

Such an exemption has no educational rationale. To the extent that school systems wish to reproduce educational audio-visual materials in whole or in part beyond the limits of "fair use," our members stand ready to discuss licensing arrangements which will permit authorized reproduction. Modern methods of reproduction for many types of audio-visual materials are such as to make such reproduction in whole or in part attractive to some school systems and many of our members have already entered into licensing arrangements which would permit duplication under a negotiated compensation formula.

ENDORSEMENT OF SECTION 107 BY AECT

We are pleased that the principal professional organization of educators directly concerned with the use of audio-visual materials in the educational process is also in support of Section 107, without weakening amendments. This support was expressed in a statement issued by the Executive Committee of the Association for Educational Communications and Technology (AECT) in May of 1975. (See Attachment A.) Some of the statements made by the AECT which were of greatest interest to us were the following:

1. "AECT endorses the criteria to be used in the determination of 'fair use' as contained in Section 107 of the proposed bill.

2. "Concerning the use of copyrighted works in conjunction with television, AECT proposes that 'fair use', as it has been outlined above, should apply to educational/instructional broadcast or closed-circuit transmission in a nonprofit educational institution, but not to commercial broadcasting.

3. "Once the doctrine of 'fair use' has been established in the revised law, negotiations should be conducted between the proprietor and user prior to any use of copyrighted materials that goes beyond that doctrine.

4. "A new copyright law that both users and producers can view as equitable depends upon the mutual understanding of each other's needs and the ability to effectively work out the differences. We will participate in the continuing dialogue with the Educational Media Producers Council and similar interest groups to establish mutually acceptable guidelines regarding the boundaries of 'fair use', and reasonable fees to be paid for uses beyond fair use.'"

LIMITED LIBRARY REPRODUCTION NOT APPLICABLE

After conducting hearings in 1973, the Senate added subsection (g) to Section 108 (Library Photocopying), to define and place limits on "systematic reproduction" which exceeds "fair use" or permissible use under other subsections of the bill. Subsection (h) was also added, exempting musical works; pictorial, graphic or sculptural works; or motion pictures or other audio-visual works from the reproduction rights granted in Section 108 except for providing archival copies or replacing a damaged work.

We feel both subsections are vitally important-(g) because it defines reasonable parameters for copying; and (h) because it is necessary to ensure the continued creation of the special kinds of works mentioned above. Because of the nature of audio-visual works-that is the manner in which they are used and the fact that one film, filmstrip or recording serves multiple numbers of users during each use it is manifestly unfair to extend the rationale behind Section 108 to these materials. Each library traditionally buys only one or two copies of a film, filmstrip or sound recording. The library market is an important source of business to producers, though very limited. To permit copying of these audiovisual materials under Section 108 is wholly unnecessary to meet the librarians' need for some freedom to copy some literary works to effectively serve their users. Section 108 would, if extended to audio-visual materials, severely and irrevocably remove the library as a market for audio-visual producers.

LIAISON WITH OTHER EDUCATIONAL ORGANIZATIONS

EMPC has mounted a strong effort to establish and maintain dialogues with users of educational materials over the last three years. We have cosponsored over two dozen panels during state, regional and national meetings of educational groups to explain the producer's point of view and to listen to the educator's needs. Attachment B illustrates the format and content of these discussions. One of the most important results has been the development of licensing plans by major educational media companies to increase school districts' access to materials in an economical fashion.

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