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The members of the Music Publishers' Association and the National Music Publishers' Association are daily and actively involved in attempting to persuade and encourage the best creative individuals they know to use their imaginations and special talents for the creation of more and better music for America's schoolchildren, with a resulting improvement in the general cultural climate of our country.
If the authors and composers and publishers are to work toward the creation of a body of music for schools, and indeed for churches with such a purpose in mind, they can do so only with the clear assurance that their work will be protected and their efforts will be rewarded and not thwarted.
We respectfully urge this subcommittee to make this possible.
Mr. Chairman, I thank you for the opportunity to present this point of view. If I may add one further observation regarding section 108.
It is my understanding there was testimony given yesterday attacking the exemption given to musical works in the proposed language of 108. May I say, this was news to us due to the fact this language has been on the record presumably without prior objection for some years. Therefore, we would like to respectfully request the opportunity to prepare, and file for the records, a statement in rebuttal to the remarks made yesterday concerning 108 (h).
Mr. KASTEN MEIER, Such additional comment with respect to that question, Mr. Farmer, without objection, will be received.
Mr. FARMER. Thank you.
[Subsequent to the hearing the following statement was received:]
SUPPLEMENTAL STATEMENT OF ERNEST R. FARMER ON BEHALF OF THE MUSIC PUBLISHERS ASSOCIATION OF THE U.S., INC. AND THE NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC. RELATIVE TO SECTION 108 OF H.R. 2223
This statement is submitted pursuant to permission granted me by the Chairman of the Subcommittee on Courts, Civil Liberties and the Administration of Justice, on May 14, 1975, when I testified with regard to Section 107.
The purpose of this statement is to rebut that portion of the testimony of Dr. Edmon Low testifying on behalf of various library associations in which he urged the deletion of subsection (h) of Section 108 from H.R. 2223.
Subsequent to the oral testimony we received a copy of a letter dated May 1st, 1975, to your Subcommittee from the Music Library Association (MLA) which also urged the deletion of "musical works" from that section of the Bill.
We are certain that it was not an arbitrary decision nor an accident which led to the inclusion of subsection (h) of Section 108 in the Bill as passed by the Senate last September. The decision, we are convinced, is based upon recognition of the fact that musical works differ materially from most other types of works in library collections. A musical work is created primarily for performance by an instrument or instruments or the human voice or voices.
To paraphrase language included in my statement before your Subcommittee on May 15th relative to Section 107 of H.R. 2223, music consists of abstract symbols printed on a piece of paper which are to be converted accurately into a given sound within a given time by means of instruments or the human voice. Thus, as I emphasized, the primary purpose of music is performance.
In its letter of May 1st, the MLA emphasizes the uses of musical works in scholarship and sets down in considerable detail the nature of the works which might be used for scholarship and the manner in which they are used for scholarship.
We submit that there is a further special peculiarity of music which is that the same works which are used for scholarly purposes may be and indeed are used for the purposes of performance. Thus, there is no distinction which could be made as to the use to which a photocopy would be made. And it is our belief and contention that those copies made for the purposes of performance would be overwhelmingly more numerous than those copies which might be made for scholarship or similar purposes. Moreover, even in scholarly works prepared and
published at great expense, separate individual selections included in the collected works would indeed be useable for performance and we suggest that it is this use for which photocopies would be made in most instances rather than for scholarship.
Research and study involving a musical work are usually in connection with doctoral theses where short excerpts of those works might be used for illustrative purposes.
Such uses, provided they meet the four criteria set forth in Section 107 of H.R. 2223, would be considered fair use. In other respects, a musical work is not the type of copyright that can be subdivided and dissected as is the case with medical journals, books, periodicals and compendiums of scientific writings, information and articles.
Particularly in view of Section 107, we do not believe that Section 108 (h) presents a burden nor in fact an inconvenience on those who would make use of works in library collections for research and scholarship. If works of music are not in print, the Music Publishers Association of the U.S. together with the National Music Publishers Association and the Music Library Association by joint agreement in 1968 prepared a library requisition for out-of-print music. A copy of this form is attached hereto.
The joint creation of this form should indicate with clarity the intent of all parties to make access to out-of-print works simple and expeditious.
The MLA's letter of May 1st emphasizes the nature of works which might be used for scholarship such as the collected works of various composers. Should they be out of print, the permissions form to which we have referred above would easily trigger permission for photocopying.
In its letter the MLA has tended to minimize the breadth and variety of its members' collections-for every collected work of Guillaume de Machaut there are undoubtedly dozens of vocal scores of operas and other stage works. For example, we would believe that every member library of the MLA would include a vocal score of the complete music of "West Side Story" by Leonard Bernstein in which there are many individual songs frequently performed as recital solos. The same is true of innumerable other vocal scores of operas and of larger piano works of which single selections are by themselves performance material not only by concert artists but even more frequently in student recitals.
There are many compilations containing individual selections by a number of different composers. The songs and piano works of many composers are published in collected form. When published separately, many of these works for voice or for piano or chorus will probably range from two to six pages and are accordingly easily reproducible and vulnerable to unauthorized copying. Therefore, they require special protection and safeguarding.
Although all musical works universally consist of musical notes and symbols, accompanied or unaccompanied by words depending upon whether the musical work is intended for instrumental or vocal rendition, musical compositions differ and vary over a broad spectrum, and treatment of all musical works in the same manner is not warranted. As an example, the vocal score of Porgy and Bess by George and Ira Gershwin and DuBose Heyward is a single musical work consisting of 560 pages, but includes a number of separate musical compositions, the most popular of which is "Summertime" on pages 15, 16 and 17.
The extraction of the musical composition "Summertime" from the vocal score of Porgy and Bess and the making of multiple copies thereof would never qualify as a fair use under Section 107; no greater right should be granted by Section 108. As Section 108 is now worded, it would not afford libraries or users such greater right but if Section 108 is changed as requested by Dr. Low and the Music Library Association by deletion of 108 (g) (1) and (2) and (h) such right would be available and would cloud the intent of Section 107. Thus, "Summertime" could be susceptible to economic destruction by unbridled copying. We submit that to remove from Section 108 the exclusion and protection of music provided by subsection (h) for the convenience for the comparatively few who do music research would jeopardize the many authors, composers and publishers who depend upon music for their livelihoods. Such a result is not warranted by any argument asserted by Dr. Low or set forth in the MLA letter of May 1st.
We feel confident that the Congress will continue to agree that Section 108 (h) as it pertains to music librarians does indeed achieve a proper balance between the needs of the music librarians and the proper consideration of the rights and interests of authors, composers and their publishers.
LIBRARY REQUISITION FOR OUT-OF-PRINT COPYRIGHTED MUSIC
This form approved by Music Library Association ("MLA"), Music Publishers' Association ("MPA") and National Music Publishers' Association ("NMPA").
(Name of publisher)
We require, for library use, the work (s) entitled:
1. If in print, please send us
copies of the work(s) and bill us.
2. If permanently out of print, please sign the duplicate of this form, which shall constitute permission by you to us to make or procure the making of copies of the work (s), but only on the following conditions:
(a) The copyright notice shall be shown on all copies.
(b) All copies shall be used for library use only.
(c) No recording use or performance for profit use or use other than library use shall be made of any copy unless such use shall be expressly licensed by you or an agent or organization acting on your behalf.
(d) We shall pay mission but not otherwise.
for the right to copy pursuant to this per
(Name of publisher)
(e) We (do) (no not) own a copying machine.
3. If any work referred to above is unpublished and available on loan to us, please advise the terms and conditions of such loan. If not available to us, please insert an X here and return the duplicate of this form to us promptly. 4. If any work referred to above is not in your catalog, please insert an X here and return the duplicate of this form to us promptly. Very truly yours,
(Name of library)
This form should be prepared in duplicate. Additional copies may be secured from MLA or MPA, 609 Fifth Avenue, N.Y., N.Y. 10017, 4th floor, or NMPA. 460 Park Avenue, N. Y., N.Y. 10022.
Mr. KASTENMEIER. The next witness is Irwin Karp. [The prepared statement of Irwin Karp follows:]
STATEMENT OF IRWIN KARP, COUNSEL, THE AUTHORS LEAGUE OF AMERICA
Mr. Chairman, my name is Irwin Karp. I am counsel for the Authors League of America, the national society of professional writers and dramatists. The League's 6,500 members include authors of biographies, histories and non-fiction books on every subject, novels, plays, poetry, childrens' books, musical plays, magazine articles, textbooks and other works. Several also write for motion pictures, television and radio. And, of course, the works of many members are adapted for use in these media. Copyright is a matter of paramount concern for our members, the full-time professionals and those who also work as teachers or in other fields, for their compensation as writers depends on the Copyright Act, as does their ability to provide for their immediate families after death. I should stress at the outset that most of our members own the copyrights in the works they create.
My testimony this morning addresses two subjects: (1) the "Educational exemption" proposed by members of the Ad Hoc Committee; and (2) demands that your Subcommittee reject the copyright term provided in Sec. 302 (H.R. 2223); i.e. the author's life-plus-50 years after his death. The Authors League supports the term of life-plus 50 years, as it did in previous testimony to your Subcommittee by Rex Stout (then its president), Elizabeth Janeway, John Hersey (its current president), Herman Wouk and myself. [Hearings Before Subcommittee No. 3; 89th Cong., 1st Sess.; Part I, Part III]. In the Senate, testimony supporting the life-plus-50 term was given by Mrs. Janeway, Mr. Wouk and the late John Dos Passos. As it has in the past, The Authors League opposes the "educational exemption" which previously has been rejected by both Judiciary Committees and therefore was not included in the Revision Bills passed by the House of Representatives in 1967 and the Senate in 1974.
PRIOR REJECTION OF THE EDUCATIONAL EXEMPTION
As your Committee's Report noted, members of the Ad Hoc Committee had requested the insertion of "a specific, limited exemption for educational copying" into the Revision Bill. The reasons why your Committee and the Senate Committee refused the exemption are as valid today as they were when the Report was issued.
Your Report stated that "photocopying and other reproducing devices were constantly proliferating and becoming easier and cheaper to use" (as indeed they have). It also noted the contentions of authors and publishers that "education is the textbook publisher's only market, and that many authors receive their main income from licensing reprints in anthologies and textbooks; if an unlimited number of teachers could prepare and reproduce their own anthologies, the cumulative effect would be disastrous." (H. Rep. No. 83, p. 31).
THE CONSTRUCTIVE SOLUTIONS ACHIEVED BY THE SUBCOMMITTEE
Your Report noted that "several productive meetings" were held between representatives of authors, publishers and educators, and that "while no final agreements were reached, the meetings were generally successful in clarifying the issues and in pointing the way to constructive solutions." These solutions were reflected in your Committee's Report, and it is fair to say they were for a time at least-accepted by the parties. The solutions were:
(i) The Committee's rejection of the "educational exemption", because "After full consideration, the committee believes that a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control is not justified."
(ii) The Committee's explicit affirmation that "any educational uses that are fair today would be fair use under the bill."
(iii) Amendment of Sec. 504 (c) to insulate teachers from excessive liability for statutory damages.
(iv) Amendment of Sec. 107 to indicate that fair use may include reproductions in copies or phonorecords, and may be for such purposes as "teaching, scholarship or research."
(v) A careful analysis by the Committee of the four criteria of fair use “in the context of typical classroom situations arising today." The Committee noted that although its analysis had to be broad and illustrative, "it may provide educators with the basis of establishing workable practices and policies." (pp 32-36)
Actually, the Committee was modest in characterizing its analysis—it is an extremely clear and useful set of guidelines for educators, authors and publishers. Moreover, the Committee's analysis of fair use amply supported its judgment that "the doctrine of fair use as properly applied is broad enough to permit reasonable educational use, and education has something to gain in the enactment of a bill which clarifies what may now be a problematical situation."
The Committee also urged educators, authors and publishers to “join together in an effort to establish a continuing understanding as to what constitutes mutually acceptable practices." The Authors League is willing, as it has stated before, to sit down with educators and publishers periodically to establish and review these practices, to fill out workable guidelines of fair use. This must be done in meetings, with the parties working together. And there should be periodic meetings so that the parties could revise guidelines in light of changing conditions. This would enable them to deal reasonably with current practices, without fear of creating immutable rules that could become damaging if technology or other conditions changed in the future. The Judiciary Committee also urged the parties to join together "to work out means by which permissions for uses beyond fair use can be obtained easily, quickly and at reasonable fees." Again the Authors League is willing, as it stated in the past, to sit down with educators and publishers to work out these methods.
THE PROPOSED EDUCATIONAL EXEMPTION WOULD INJURE AUTHORS
If the proposed exemption, as it bears on copying, is only intended to permit educational copying that would be fair use under this Committee's analysis it would be unnecessary. If the Ad Hoc groups contend that the purpose is to provide clarity then certainly the amendment should be rejected. For as we testified before Senator McClellan, your Committee's analysis of fair use, with
its explicit examples and illustrations, is far more precise and instructive to teachers than the completely vague amendment offered by the Ad Hoc groups. Actually the purpose of the amendment is to legalize uncompensated educational reproduction of copies that goes far beyond the limits of fair use. The privilege of making copies of portions of a work which are not substantial in proportion to its total size would be absolute, regardless of the circumstances of the reproduction; although some of these would clearly involve infringement under your Committee's analysis. Under the Amendment, many copies could be produced on an organized basis, rather than by one teacher acting spontaneously. Multiple copies could be reproduced for many individuals and circulated beyond the classroom. And most important, under the Amendment copies could be reproduced even though they had a serious adverse effect on the work's potential market or value, and even though it would supplant some part of its normal market. Moreover, the proposed exemption would permit educators and institutions to reproduce copies of entire short works. How short is short? Would a poem 2 pages long be fair game for educational reprinting? or 4 pages? or 6 pages? Would the Amendment allow a story or article 5 pages long to be reproduced in multiple copies? or 10 pages? or 15 pages? Moreover, as with excerpts, the exemption would allow educators to reproduce these copies under a variety of circumstances that would make them an infringement under your committee's analysis of the four criteria of fair use.
As we noted in our statement on library photocopying yesterday, and in our previous testimony, many authors earn a major portion of their income by licensing the reprinting of poems, articles, short stories and portions of longer works in anthologies, textbooks, collections and similar books. The same poem or story may be reprinted in several of these, and the accumulation of small fees produce a modest income-often the largest part of the income authors of valuable literary works earn from their writings. These anthologies and other collections are sold primarily to high schools, colleges and universities, and their libraries and book stores. Their students are a primary audience for eminent poets, essayists and short story writers.
The proposed educational exemption would allow educators and institutions to produce copies of an author's short works and portions of longer works, thus displacing the sale of the anthologies textbooks and other collections that previously brought these works to educational institutions. Many authors would thus be deprived of a substantial or major portion of their income, even though their works would still be widely used by educational audiences, disseminated by uncompensated educational reproduction that far exceeded the limits of fair use. [Although some educational spokesmen have said they do not intend to "anthologize", it should be noted that the effects are the same whether several short works are provided at one time between covers, or are produced and distributed by the school seriatim.]
THE WILLIAMS & WILKINS DECISION
The Ad Hoc Committee's excuse for requesting the exemption in the Senate was that the Trial Judge's decision in Williams & Wilkins created uncertainties as to fair use. As we there pointed out, this was a feeble excuse for disrupting the constructive solutions reflected in your Committee's prior report. It would be an even feebler excuse now, considering the majority opinion in the full Court of Claims. As your report correctly stated, fair use-in the case of library copying as in other instances depends on the four criteria "and the facts of the particular case." (Emphasis ours). The trial judge confined his decision to the facts of that case, stressing that the large scale reproduction of copies involved "was wholesale copying." The facts before him bore no resemblance to the various fact situations involving educational copying and other uses which your Committee considered in spelling out its guidelines and analysis of fair use vis-a-vis educational copying. Nothing in the trial court's opinion cast any doubt on your Report's analysis of guidelines. And there is even less reason for Ad Hoc Committee spokesmen to contend that any doubts have been cast upon them by the majority oninion in the Court of Claims which reversed the judgment below and dismissed Williams & Wilkens complaint. The majority opinion did not imperil fair use in education or detract from your conclusions, nor did the minority opinion.
THE "OTHER" ARGUMENTS
As we noted in our testimony on library photocopying. Ad Hoc Committee spokesmen are wont to accompany their demands for an "educational exemption"