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follow your advice and sit down and work out guidelines for fair use. That is a practical, sensible, reasonable, fair way of resolving this.
As other witnesses have pointed out to you, a statute could never deal adequately with a concept of fair use. It would read like the Internal Revenue Code and then you would have to have four volumes of regulations to supplement. I use hyperbole. It would take about six pages to do it, really. But working out guidelines enables both sides to cope with the problem directly and practically; and also, if they do it on a continuing basis, it does not freeze them into the very result you are seeing now. Both sides are coming to you, bargaining for the best bargain. I think we really have gotten the poorest part of it so far.
Actually, this bill does not give authors of books a windfall. Life and 50 will help those few great works that survive, and I think they are entitled to it. There is not a provision in this bill that is going to add a nickel to the income that any author is going to be able to get on his work the day after it is passed. This bill makes very basic and needed adjustments in the system of copyright notice and registration and other mechanical matters that benefit everybody, educators and librarians as much or more than us. This is not a bill that permits authors of books to make more money. There will be a modest adjustment in the compulsory license clause on music which is long overdue, and a far from adequate payment to composers under the jukebox clause. But as for our urging you to put money in the authors' pockets-nothing could be further from the case.
Under present law, which has some defects, but which has protected authors, by and large, except for cable television, they have been able to survive very well under it, as have publishers. I think that the right answer to your question is, you cannot deal with this fear of educators beyond what you have done. The report you had prepared in 1966 and 1967 was a reasonable solution and would have worked, had we spent our energy since then working out the guidelines you proposed.
Mr. LIEB. I would like to supplement that by saying, for the last 5 years or more, we jointly-publishers, authors, and others interested in the copyright side-have steadfastly attempted to bring the librarians, as we told you yesterday, and the educators, whom you heard today, to the table to talk with us about the formulation of guidelines.
There is no way, no way by statute, as Mr. Karp just said, that this can be solved. We are not only ready, we have been ready; and we desire to work out guidelines which will be of assistance to the classroom teacher.
I sympathize with the classroom teacher. I do not think they have been well served by the people who speak for them. If guidelines ample enough to help the teacher in his classwork were prepared, most of the problems that were discussed today would disappear.
Mr. MEELL. I would like to add to that, that the audiovisual publishers have taken a very active campaign of seminars, journal articles, and face-to-face meeting with professional groups and school people to help them come to grips with what is fair use and what
is not in fair use-National, State, and regional meetings. We will continue that activity.
Mr. BENDER. Another example of that: I was personally requested by the Minneapolis public schools, about 3 months ago, to participate with them and their attorneys in drafting a copyright rule of thumb, if you want to call it that, or a code of conduct where a group made up of representatives from throughout the Minneapolis school district, plus their attorneys, sat down with me, as a representative of the media producers, to work out a feasible way in which we could cooperate in this very difficult area. These things are being done by those who wish to cooperate with us. We continue to do this as time goes on.
MS. LINDEN. May I add one comment?
As we listened this morning, every time, whether it was Mr. Railsback or Father Drinan or anyone else, or Mr. Pattison, try to distinguish-Mr. Wiggins did, too, at one point-between the right of access, the right to use, and the desire not to pay, we were always moved back by the educator's representatives into the confusing examples of the most obvious, limited kinds of uses, and they never would say, except for one or two people, that they did intend to pay, except where fair use was applicable.
I remember Dr. Wigren, specifically, and counsel, Mr. Rosenfield, when it came to payment, they feel that nonprofit educational institutions ought to get intellectual property gratis, piecemeal, a piece at a time, which is the way you teach. You do not teach the whole book in one day. That is their intention, and that is why we have not been able to get together to establish guidelines. They will not accept the principle that authors and publishers need to be paid, just as their salaries are paid.
Mr. KARP. Mr. Chairman, I would like to point out there are two separate problems, as far as fair use is concerned, that can be attacked whether or not they are willing to accept the requirement of payment by the passage of this bill.
We are ready to sit down and talk now about what is fair use and does not have to be compensated for. We will leave to the higher authorities the resolution of the problem of who pays when you go beyond fair use and whether there should be payment, which we obviously, in all these statements, believe there should be.
Mr. MEELL. If you eliminate the protection provided by 108 (g) (1) and (2), there is no urging, then, to consider these guidelines. The exemption of copyright input is another example of the erosion. Just give us input, now, and we will worry about how to protect the author's rights subsequently. If you adopt those exemptions, you eliminate the framework within which discussions on guidelines can proceed.
Mr. KASTENMEIER. Thank you.
I just have one more question, Mr. Karp, in reference to Mr. Pattison's question-whether the renewal clause ought to be retained.
You indicate that the 85 percent not renewed, most of which is actually worthless-catalogs, advertisements, labels, and the likeis it your point of view that this category, this worthless category, as you suggest, should have 75, or life and 50, coverage, along with the rest?
Mr. KARP. The only problem you face in answering that question is who sits in esthetic judgment over what is worthless or not. From a practical viewpoint, the worthless material which falls into the public domain under the renewal clause is material that no one would copy anyway, unless some place, somewhere, there is a teacher who wants to copy the label on a beer can manufactured in 1930; who would want to do it. And if he wants to do it, are we going to change the copyright law for him? The rest of the copyright community of the world has found that life and 50 works. It is going to be hard to tailor a renewel clause to that. You might; it is not inconceivable; it is technically possible. The burden would not be worth it.
Basically, I think the problem is protecting those works who survive for life and 50 years.
Mr. KASTENMEIER. It may be an additional problem, but a question you raised is who would make that determination. The answer is quite simple: The owner of the copyright.
Mr. KARP. If, for example, authors could renew without the burdensome fees that they pay today, and if they could renew, not at the risk of forgetting the 1 year, but having a much more flexible system-or, as Mr. Pattison suggested, that there be notice to the author-you may be able to work something out.
Mr. KASTENMEIER. I yield to the gentleman from Massachusetts. Mr. DRINAN. Thank you very much, Mr. Chairman.
I will just make a couple of comments and maybe a question. I feel a little bit like Dr. Kissinger trying to preside over two people that cannot get together and negotiate. All I can say is, you better try harder. I am not saying who is at fault over the last 8 years in not being able to negotiate and have some bill of rights, some means of professional code. I will tell you what is likely to happen if the two opposing parties that we have seen here this morning do not have some rapprochement.
I have received already some 300 or 400 letters from educators and librarians, and they are pouring in. And other Members of Congress have received them, too. One Member, not a member of the Judiciary Committee, said, "What is this feud all about?" I told him, in brief, what it is about. He said, "Well, they are my educators and librarians; I had better go with them."
If it comes to the floor and the posture is that, that might even change, I do not know. In any event, it would be very helpful for the committee-I am asking you to help us do our work-if somehow some professional understanding could be arrived at in the immediate future.
I have one simple question of anybody who would answer it.
Is there any analog in the copyright law of other nations for what the educators are asking for?
Mr. KARP. There are, in some countries, various types of exemptions. I would not want to risk telling you precisely what they are, but we can provide them. I am sure the educators will, too.
Mr. DRINAN. I am sure it is a universal, worldwide problem, and I am sure educators and librarians in other countries have other problems, and they have probably gone to rights. That would be very informative to me.
I thank you very much for a very fine presentation.
Mr. KASTENMEIER. The gentleman from New York.
Mr. PATTISON. It appears to me that this limited exemption, the fair use exemption, really arises-what you do not find a correlation to with other property rights. There is limited fair use exemption for trespassers or a variety of other things. The reason that even arises is because there was a problem of access, primarily. Unlike other property that is tangible, you usually can find out who owns it; it is there, somewhere; but whereas, with copyright, sometimes you cannot. The problem of access, I think, is a real problem. How do you find out, fairly quickly, whether the author is still alive? How do you find out, fairly quickly, whether you can get permission? Who do you write to when you have a book that is published by someone other than Macmillan, some obscure publisher, and it just says Jones & Co., Dallas, Tex.? How do you resolve those problems so we can get access as quickly as possible?
Mr. KARP. I would like to answer the question in two parts.
The fair use doctrine really arose because of the unique nature of copyright. That is, it does not protect ideas; it does not protect facts. Therefore, others can freely use them. One of the great attributes of copyright is that it is not a restrictive form of property. So much for that aspect of it.
In answer to your question, this is one of the things that we propose to deal with in cooperation with the education community and the library community, in terms of setting up what we call an information or processing clearinghouse. It is not hard to find when an author has died; that is easier to find out than if the work is in copyright. One of the great arguments made by the other side-and it is absolutely without basis-is you can tell when a work is in copyright. I can give you 10 examples of how difficult that is, and they are in the record of prior hearings.
What you can do with a little help, if you do not know it, find out quickly how to locate both the author and the publisher. For example, most publishers are listed in Literary Marketplace, which is a book published every year.
We have discussed setting up a clearinghouse that would field questions just like that, and would set up a very simple permission form which we asked everybody to work on, which would even deal with permissions that would be given without fee.
Mr. PATTISON. Is there any place, would there be any place in the law for a sort of a good try exemption?
Mr. KARP. I know what you mean.
Mr. PATTISON. I want to quote from a book, I want to use a book; I cannot find that information out. I write some letters; I make some telephone calls; I cannot get any information and the time is going by. I have to make my speech or whatever it is I have to do. Should there be some kind of a time limit? I cannot find out if the author is alive or not. You cannot always find those things out.
Mr. KARP. I think you run into difficulty of proof, for one thing. Mr. PATTISON. As a defense, for instance.
Mr. KARP. Then you are getting back to the point you raised before, Mr. Pattison. When you get deep down to the basis of copyright, you are talking about certain fundamental rights-the Constitution said exclusive rights, for that matter.
Mr. PATTISON. It does not say exclusive unless the Congress wants to give exclusive.
Mr. KARP. I am not arguing you cannot create exemptions. It has been too many years to start that argument now. It still comes down to the point, if it is not fair use, the author has the right to say yes or no I guess the right to be negligent, too. It does not happen all that often. It would happen much less often if we sat down to work out a very simple system of notification-not of notification, but arranging for people to write to the places they should write or call the places they should call.
Ms. LINDEN. First of all, right of access is created by publishing in the first instance. The big question is right of additional access, piecemeal, when and as you want it. The clearinghouse, as I said earlier, we have offered to them since 1965. The concept of a penalty-in other words, they can use it freely if they do not get a response quickly enough-has inherent in it various problems. Not all copyrighted work is of the same character, the same nature, the same usefulness. Some scientific and technical treatises and major reference works are under revision. We want to encourage revision, updating. We will not have revision and updating unless the author and/or publisher is permitted a period of time in which they say, no, you cannot disseminate that particular article; we are going to redo it. You run into all sorts of philosophical and technical problems.
Mr. PATTISON. I understand that, but when a person tries to get access and cannot get access-maybe it does not happen that muchbut he makes the effort to get to the author, the owner of the copyright, and he is unable to do that. He makes a good faith effort, et cetera. You have a bankrupt publisher
Mr. LIEB. May I answer that question, please?
In the first place it is almost a moot question, if we are talking in the context of educators who were here this morning, as distinguished from other publishers or other authors who plan to be published. I do not know of any instance, short of instances of actual piracy of anthologies and collected works, where, for a particular classroom use, a publisher or author has complained. He is kind of inured to this. If it is transitory, if it happens once, he probably does not hear about it. If it persists, there may be correspondence, and the school will say, yes, we were wrong. I have had lots of correspondence with school districts who say, yes, now we understand what you are talking about.
But on permissions, The Publishers Association has recently circulated this little pamphlet that I would like to offer, which is a guide to get permission for noncommercial use.
As Mr. Karp said, we have been discussing recently, with those who are willing to talk to us, of the possibility we might set up some sort of copyright expediting clearance agency.
Mr. PATTISON. There is no rule that you have to be a big publisher to be in the publishing business. I can publish something. I can become a publisher by using my typewriter, if I want to. I do not have to be in business very long; I can move from here to California or something. No one can find me. That is why you simply cannot find the publisher. You have no information on the document.
Mr. LIEB. I would like to make a horseback answer.
If what you are talking of is an educator making an effort, when he makes his teaching plan, to say 2 months from now, I will make 30