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(v) As we have noted, the proposed library exemption would permit an accumulation of uncompensated copies of a given article or similarly sized excerpt from a book. Any one library could reproduce several copies of the work, "oneat-a-time." And many libraries could do the same thing. “Isolated instances of minor infringements," as the Subcommittee's draft report noted, "when multiplied many times, become in the aggregate a major inroad on copyright that must be prevented." Library spokesmen argue that uncompensated library reproduction poses no threat to publishers and authors. But in 1967, according to the Sophar & Heilpron report for the Office of Education, “It is estimated that in 1967 one billion copyrighted pages were copied in the U.S."

The library spokesmen can hardly guarantee that the proposed exemption will not seriously injure publishers of journals, or authors. Moreover, the proposed exemption does not, and could not, draw a line-limiting the injury a publisher or author would suffer before libraries will cease one-at-a-time reprinting of his articles or portions of his books. And in the light of copyright history, it is dangerous to assume that the process of uncompensated library copying will not inflict substantial damage. Starting with the phonograph record, every new process of dissemination was greeted initially by the same "it's not a real threat" attitude the library spokesmen have voiced on the techniques of one-at-a-time reprinting.

(vi) One of the gravest dangers of the proposed library exemption is the adverse effect it will have on independent, entrepreneurial system for creating, publishing and disseminating journals, books and other works. The "economic philosophy" underlying the copyright clause was that such a system was preferable to patronage by governments or wealthy institutions. Because the copyright owner was entitled to compensation from users of his work, he could make the expenditures necessary to create, edit, publish and disseminate it. Through the payment of royalties and other compensation, users in effect shared in defraying the costs of producing the materials they desired. But, as we have noted, proposed exemption would deprive journal publishers, and authors, of substantial part of this needed income compensation for uses of their works by audiences reached by the one-at-a-time production of their articles or portions of their books. It is regrettable that library spokesmen refuse to recognize the serious danger their exemption poses to the independent, entrepreneurial system of publication and dissemination which is essential to them, and—more importantly--to their patrons.

(vii) It should be noted that library reproduction of articles is not merely "note taking”, nor a substitute for copying by individual readers. Persons who obtain reprints of articles from a library copying service or the publisher are not taking handwritten notes. They are acquiring reprints of printed articles, 10, 20, 30 or more pages long—just as they buy or acquire other published materials, to avoid the dozens of hours it would take to copy that much by hand. Nor could library patrons reproduce the copies themselves. Many patronize libraries that do not have the journals; the copies are reproduced for them by other libraries dozens or hundred of miles away. And where the patron's own library subscribes to the journal, it will produce and deliver a reprint of the article he wants (rather than lend the journal)-so that it can keep its one issue available to reproduce copies of articles for other patrons, and avoid losing this reprint master through wear and tear, readers' negligence, or theft. The PhilosophicalArguments

In the past, the librarians have accompanied their demand for the proposed exemption with an assortment of "philosophical" arguments: e.g., copyright is a monopoly, it is not property but a “privilege.” Should it become necessary to respond to these familiar gambits, we respectfully direct the subcommittee's attention to our accompanying statement on the “Educational Exemption,” demanded by the National Education Association and other groups.

THE NATIONAL COMMISSION

Although the House Judiciary Committee Report urged the parties to jointly develop “workable clearance and licensing conditions," efforts to do so have collapsed because library spokesmen opposed this phase of a fair and balanced solution to the problem of library photocopying.

It is therefore essential that the National Commission on New Technological Uses of Copyrighted Works be established. And that the Commission proceed, as intended by Title II of S. 1361, to study and make recommendations as to "workable clearance and licensing conditions" for library reproduction of articles and similarly sized portions of books and other works. Much of the information is already available. Practical proposals have been made by various informed individuals, including librarians who favor a licensing system. There are no real obstacles to a reasonable solution-except the position of library spokesmen that authors and publishers are not enttiled to any compensation for library one-at-atime production of their articles and similarly sized portions of their books.

REVISION OF SECTION 108

Sec. 108 (d) would permit uncompensated library reproduction of copies of any work when an unused copy “cannot be obtained at a normal price from commonly known trade sources in the United States including authorized reproducing services.” There are certain ambiguities in the section which could seriously damage the rights of authors and publishers. These involve such questions as what "trade sources" are included, what time intervals make the privilege operative, and what is a normal price. A careful and thorough analysis of these ambiguities has been prepared and submitted to the Subcommittee by the firm of Linden and Deutsch. Their memorandum indicates the principal difficulties posed by the section; and we respectfully urge that it be revised to overcome them. We also urge that the revision incorporate the suggestions made by the Association of American Publishers. Finally we urge the revision take account of the difference between various categories of works. Many literary works, for example, are reprinted periodically, as the demand for the work warrants it. If libraries could reproduce copies during these intervals because a copy was not available from trade sources, this could eliminate the possibility of any further reprintings-depriving authors and publishers of income. It would appear that the problems posed by Sec. 108 (c) and (d) could be solved more readily by the Commission; and that it might be preferable to enact Sec. 108, pending the Commission's recommendations, in the form enacted by the House of Representatives.

THE SUBCOMMITTEE'S INTERPRETATION OF FAIR USE As the Subcommittee's draft report indicates, Sec. 107 of S. 1361 "is intended to restate the present judicial doctrine of fair use, not to change, narrow or enlarge it in any way." We have always supported this interpretation of the section's purpose. The draft report further states "Library copying must be judged a fair use or an infringement on the basis of all the relevant criteria and the facts of a particular situation.” This is a correct statement of the application of the fair use doctrine to library copying-paralleling the view of the House Judiciary committee, quoted above. However, the draft report then states: "While it is not possible to formulate rules of general application, the making of a single copy of an article in a periodical or excerpt from a book would normally be regarded as fair use." We believe this sentence is not a correct application of the doctrine of fair use, and contradicts the view of the Subcommittee and the House Judiciary Committee that library copying, like other copying, must be judged for fair use purposes on the basis of all the relevant criteria and the facts of a particular situation. We have discussed the damaging consequences of library reproduction of so-called single copies, which cannot be considered a fair use under all the relevant criteria. Moreover, library reproduction of single copies is, in reality, a process which produces many copies. The crux of Commissioner Davis' opinion in the William & Wilkins case was that the copying done by the government libraries-one-at-a-time_"is wholesale copying and meets none of the criteria of fair use." We doubt the sentence in question was intended to condone such copying as fair use. But it may be read that way. We respectfully urge that the senence be deleted. This would be consistent with the fundamental premises adopted by this Subcommittee and The House Judiciary Committee that fair use is a judicial doctrine ("restated" in Sec. 107) and that library copying must be judged, like all other copying, by applying the criteria to the facts of a particular situation.

We thank the Subcommittee for this opportunity to state the views of The Authors League on these vital issues.

JEROME WEIDMAN. Senator McCLELLAN. Now this brings us to the conclusion of the witnesses that were scheduled for this morning's session. We are only a few minutes overtime. We compensated for our lateness in starting by coming back at 1:30 o'clock. It is now almost 2.

I hope now we can move expeditiously so that we can conclude by 4 o'clock because I do have to leave at that time.

All right. Call the next witness.

Mr. BRENNAN. Mr. Chairman, the issue for the afternoon session is the proposed ad hoc committee amendment for a general educational exemption. Forty minutes have been allocated to the proponents of the amendment, the ad hoc committee.

Would you all please come forward?

Senator MCCLELLAN. Forty minutes is also allotted to the opposition.

Mr. BRENNAN. Mr. Chairman, I request that the text of the proposed amendment appear at this point in the record.

Senator McCLELLAN. This is the amendment to be proposed by the witnesses now appearing?

Mr. BRENNAN. That is correct. Senator McCLELLAN. All right, this amendment will appear immediately after you gentlemen are identified in the record. Then the amendment you sponsored may be printed in the record.

Mr. BRENNAN. Dr. Wigren, would you introduce yourself for the record ?

STATEMENT OF THE AD HOC COMMITTEE OF EDUCATIONAL INSTI

TUTIONS AND ORGANIZATIONS ON COPYRIGHT LAW REVISIONS, HAROLD E. WIGREN, CHAIRMAN; ACCOMPANIED BY ALFRED CARR, LEGISLATIVE CONSULTANT, NATIONAL EDUCATION ASSOCIATION; ROBERT F. HOGAN, EXECUTIVE SECRETARY, NATIONAL COUNCIL OF TEACHERS OF ENGLISH; RICHARD J. SCHOECK, DIRECTOR OF RESEARCH ACTIVITIES, FOLGER SHAKESPEARE LIBRARY OF THE DISTRICT OF COLUMBIA, ON BEHALF OF MODERN LANGUAGE ASSOCIATION; FRANK NORWOOD, EXECUTIVE SECRETARY, JOINT COUNCIL ON EDUCATION TELECOMMUNICATIONS; JOHN C. STEDMAN, PROFESSOR OF LAW, UNIVERSITY OF WISCONSIN; AUGUST W. STEINHILBER, DIRECTOR OF FEDERAL AND CONGRESSIONAL RELATIONS, NATIONAL SCHOOL BOARDS ASSOCIATION; AND HARRY N. ROSENFIELD, COUNSEL TO THE AD HOC COMMITTEE

Mr. WIGREN. Mr. Chairman and members of the subcommittee, we have everyone here, I think, except one of our witnesses, and he has been detained in another hearing, but he will be in shortly. I am going to ask, in the interest of time, that each of our panel members will introduce himself as we go through, if you don't mind ? I think it might be easier.

Senator MCCLELLAN. All right. Just introduce yourselves, and place this proposed amendment in the record.

Mr. WIGREN. All right. I am Harold E. Wigren, chairman of the ad hoc committee of 41 educational organizations.

Senator MCCLELLAN. Fine. The amendment to be proposed will be placed in the record.

[The amendment follows:]

Section Limitations on exclusive rights: Reproduction for teaching, scholar

ship and research Notwithstanding other provisions of this Act, nonprofit use of a portion of a copyrighted work for noncommercial teaching, scholarship and research is not an infringement of copyright.

For purposes of this section,

(1) "use” shall mean reproduction, copying and recording; storage and retrieval by automatic systems capable of storing, processing, retrieving, or transferring information or in conjunction with any similar device, machine or process;

(2) "portion” shall mean brief excerpts (which are not substantial in length in proportion to their source) from copyrighted works, except that it shall also include

(a) the whole of short literary, pictorial and graphic works,

(b) entire works reproduced for storage in automatic systems capable of storing, processing, retrieving, or transferring information or in conjunction with any similar device, machine or process, provided that

(i) a method of recording retrieval of the stored information is established at the time of reproduction for storage, and

(ii) the rules otherwise applicable under law to copyright works shall apply to information retrieved from such systems; (c) recording and retransmission of broadcasts within five school days after the recorded broadcast; provided that such recording is immediately destroyed after such 5-day period and that such retransmission is limited

to immediate viewing in schools and colleges. Provided that “portion” shall not include works which are

(a) originally consumable upon use, such as workbook exercises, problems, or standardized tests and the answer sheets for such tests;

(6) used for the purpose of compilation within the provisions of Section 103(a). Senator MCCLELLAN. Proceed.

Mr. WIGREN. I appear before you today, on behalf of the Ad Hoc Committee on Copyright Law Revision, which represents the interests of teachers, professors, school administrators, elected school board members, subject matter specialists, educational broadcasters, librarians and, most importantly, students themselves. Actually, we represent the only major organized group of nonprofit copyright users. Our clients are students, and they are completely dependent on the ease with which copyrighted information can be made available to them in reasonable proportions. In an information society, Mr. Chairman, the quality of their education is in your hands and the hands of the committee. A list of our members is attached to this statement (exhibit A). For the record I would like to point out that we support the testimony given by the library associations this morning. These groups are members of the Ad Hoc Committee on Copyright Law Revision.

I am accompanied today by a panel of representatives of members and participants in the ad hoc committee who will address themselves to particular aspects of our position. We will not dwell on some of the other concerns we have in the bill, but instead will concentrate on the main thrust of this hearing-namely, our proposal that a limited educational exemption be provided for teachers, scholars, and researchers to use materials for nonprofit purposes in carrying out their day-today work.

First, we would like to point out to the subcommittee the rationale for this limited educational exemption. During the past 8 years, the ad hoc committee has made every effort to maintain contact and dialog with publishers, authors, and materials producers to reach some type of accommodation which would take into account the interests of all parties concerned in the revision effort in order to strike a fair balance between the rights of proprietors and the rights of consumers/ users of materials.

Our discussions, however, have been frustrated by the impact of the recent ruling by Commissioner Davis of the U.S. Court of Claims in favor of Williams & Wilkins, in its copyright infringement suit against the National Library of Medicine. Commissioner Davis' report, in our judgment, has great impact not only on library operations but also on the ability of the educational community to gain access to the intellectual resources of this Nation. This ruling, if affirmed by the entire Court of Claims, would seriously limit the scope and meaning of "fair use.” The Commissioner's ruling has caused considerable consternation and alarm within the educational community not only because of its effect on libraries but also because it would undercut the accepted and traditional meaning of "fair use" for teachers. The language and rationale are just as applicable against teachers and schools as against libraries.

Senator McCLELLAN. I don't want to interrupt you, but I do think this question ought to be borne in mind, and I would like for some of you to give us an answer to it.

Is there any danger of this material drying up or being greatly diminished by reason of the inability of the producers to finance the costs of it unless they get revenues, additional revenues in some other way?

Mr. WIGREN. Well, we think that we are creating markets for the author's works, and we think that the author needs us and we need him. We give his works visibility.

Senator McCLELLAN. There is no question about that, but if they can't produce it, and get a return, at least on their investment, enough to keep them in business, you are not going to have the material.

Mr. WIGREN. Well, we are asking for only minimal things in the course of teaching and learning that we feel will not undercut at all the ability of the publisher to make sufficient profit, which, of course, we think he should do.

Senator McCLELLAN. But on the other hand, if they don't have anybody to subscribe for it, they are certainly not going to produce any of it.

Mr. WIGREN. That is right.

Senator McCLELLAN. So we have a problem. There has to be a little give and take here.

Mr. WIGREN. We understand this and Congress needs to strike a fair balance between the rights of proprietors and the rights of users.

Because the Williams and Wilkins decision proves the unreliability of "fair use" for schools and libraries, the ad hoc committee urges Congress to adopt the concept of a limited educational exemption which would neutralize the harmful effect of the Commissioner's opinion on both schools and libraries and at the same time not be detrimental to publishers or producers of materials. In light of Williams and Wilkins, our request for a limited educational exemption is submitted to this committee not in lieu of "fair use" but in addition to "fair use" in the statutes. "Fair use" is generic in nature and is applicable to everyone-commercial and noncommercial user alike. Educational users need special protection over and above that provided commercial users because they have a public responsibility for teaching the children entrusted to them. They work for people--not for profit.

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