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 raised is who would make that determination. The answer you 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. KASTEN MEIER. 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

copies for my class of this poem that so-and-so wrote, that was published by Jones in Dallas and he makes an effort to communicate with the publisher or the author and he cannot find them and he produces his 30 copies for the use of the class 2 months hence-in the first place, like yesterday's snow, it will have disappeared. In the second place, there is no one that I know of on the copyright-owning side who would think it worthwhile to go to a lawyer and make a complaint against a hypothetical misuse of copyright; and if anyone were foolish enough, it would seem to me, to attempt to make that a test case, I would think it might very well be one of the elements of defense of fair use that it never was made to obtain clearance and it was not possible to do so. Mr. PATTISON. I have an information gap here.

When you talk about computers, input and output, could you run through that in some way that I could understand it? I just do not

understand it.

Mr. ZURKOWSKI. I am not sure I can give you an explanation of it in short order. In answer to your question, it is a position of our industry that the creation of a data base is a work of authorship. It involves all the things that an author goes through in creating.

Mr. PATTISON. What does a data base consist of?

Mr. ZURKOWSKI. A data base can take any embodiment. The Encyclopaedia Britannica could be considered a data base. It is a collection of separate pieces of information that are organized so as to be retrievable. You can do that in microfilm. You can do that in a computerized data base. For example if you keypunch every word in the Encyclopaedia Britannica and converted the keypunch cards to magnetic tape, you would have a machine-readable data base. Doing that is what the educators are talking about. They want to be able to make an input copy of the Encyclopaedia Britannica to their data base free of copyright infringement.

I must say that the real basis of our objection is that educational university computer centers are serving a wide range of users, in addition to the educational community. Once this major investment is made in creating that data base, they are under pressure to find as many uses as possible.

We ask the committee not to grant such a broad exemption because it will destroy the ability of the industry which is accommodating author's right in marketing such products. We think that before such an amendment is considered, the committee should either hold more hearings on this, to be better informed on the subject, or defer the question to the National Commission.

We did submit a lengthy set of amendments in our long statement which illustrate the detailed questions that are involved, and they are just another set of questions just like these you have been hearing for the past 2 days.

The point of our testimony was in effect that the committee really has not considered these aspects and has not taken testimony from people who create data bases and market data bases. It is a whole other world. The purpose of section 117 in the legislation was to preserve the status quo on those questions-simply by virtue of the fact that the committee did not have enough information. We face in the educator's ad hoc proposed amendment, a proposal to exempt input. I am just trying to call to the attention of the committee that before you get into that, you have to consider all the experience that has been had on

that. It would be better if you reserved that for the National Commission's study, or hold another day of hearings on that subject. That is the position of our statement.

Mr. LIEB. Congressman Pattison, the approach of 2223 is to leave the law, whatever it is with respect to computer usage, as it is and ask to turn the question over to the new National Commission. Ms. LINDEN. I would like to add a couple of words, if I may.

I was on the Committee of Science and Technology, Executive Office of the White House, for 32 years. We debated this issue and we prepared voluminous reports on exactly this problem. The fact is that the cost in time, energy, and money, the millions and millions of dollars it costs to create input, to create the storage and the memory core of the computerized information storage and retrieval system, is such that if we, in the interim, prior to the resolution of the problem by the National Commission, permit free input, the cost of reverting to the old system and protecting input, I submit, will, for practical purposes and realistically, be impossible. Once you free the geese, they fly away. It is impossible to recapture them again.

This is a short-form urging of what is an extremely complex concept of computerized uses and processing of information.

One of the basic issues which this committee has not averted to and rightly so, because it is being left to the National Commission-is the problem of censorship. I would simply whet your appetite by using that word. The serious problem in censorship that computerized information storage and retrieval systems would cause if input were left, as I say, as the freed geese. This is a subject that warrants not only the attention of this committee, but serious study of the National Commission and careful reporting back for your consideration.

Mr. KASTENMEIER. On behalf of the committee, I thank you for your appearance this morning-I should now say this afternoon. We will see you again in the context of this particular issue, perhaps, or others, on June 4: the committee will be exposed to the jukebox issue and the tribunal issue. And we will have as witnesses the American Society of Composers, Authors & Publishers; Broadcast Music, Inc.; Music Operators of America; and the manufacturers of jukeboxes. Until that time, on June 4, at 10 o'clock in the morning, the subcommittee stands adjourned.

[Whereupon, at 1:30 p.m., the subcommittee adjourned.]
[The following statements were received for the record.]

STATEMENT OF ALBERT WARREN, CHAIRMAN, COPYRIGHT COMMITTEE, INDEPENDENT
NEWSLETTER ASSOCIATION

My name is Albert Warren. I am chairman of the Copyright Committee of the Independent Newsletter Association. I am publisher of Television Digest with Consumer Electronics. The other members of the Committee are Louis Rothschild, publisher of Food Chemical News, and David Swit, publisher of Product Safety Letter. All 3 newsletters are published in Washington.

We speak for newsletters which are true journalistic enterprises. We do not represent house organs, publicity devices and the like. We produce the publications of the type admitted to the Congressional Periodical Press Galleries under the rules of Congress which specify that the publications admitted are "published for profit and supported chiefly by advertising or by subscription, and owned and operated independently of any industry, business, association, or institution."

The newsletter industry is uniquely vulnerable to violations of copyright for the following reasons: