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I will depart considerably from my written statement, which was submitted, and I would be glad if that would go into the record, too. One of the remarkable effects of 10 years of discussion and debate. over the needed provisions in a new copyright law is that it has cast into an adversary relationship persons who are not only friends but interdependent professional colleagues-teachers, writers, and publishers.

Many writers teach. Some of us who teach write and hope to publish. Most of the editorial staff members of educational publishers began as teachers. Some still teach.

The unnaturalness of this adversary relationship is revealed again and again by the recurrence of the same refrain in our private and off-the-record conversations: "But I didn't mean that."

I cite a practice of a brilliant, creative teacher-a practice which would be prohibited by a restrictive copyright law; and my publisher friend says, "But I didn't mean that.”

He, in turn, cites an instance of district-wide wholesale piracy; and I say, "But I didn't mean that."

In my prepared statement I've tried to make clear by example on page 2 what NCTE does mean and on page 3 what it does not mean. If I may depart from my informal remarks, I would direct your attention to the bottom of page 2 of my prepared statement: The question of the moment is not whether or not Mr. Housman or his estate will forfeit income. Rather, the question is whether or not as a teacher I am free to use Mr. Housman's poem in this way; or whether, encumbered by a restrictive law, I must plod ahead with whatever I had planned for that day-for example, the third part of the rhyme of The Ancient Mariner-before I knew what that day meant for my students. Briefly, we join the other members of the Ad Hoc Committee in seeking a limited educational exemption within the guidelines set forth by Mr. Wigren. Until the Williams and Wilkins case, we had thought the doctrine of "fair use" could be made to offer sufficient protection for the creative teacher. Mr. Wigren has made clear why we no longer believe that.

I concluded my prepared statement with the following paragraph: The best teachers at any level are bright, creative individuals who not only know their subject and understand how children learn, but who connect what they teach to the world around their students. They not only serve their own students well, but by their example they inspire less gifted colleagues to teach better than they otherwise might. What the National Council fears most of all in a restrictive copyright law is that penalty and the fear of penalty will stifle creativity and imagination among teachers and reward pedestrian teaching. To put it another way, we hope for a law that will offer the creative teacher more security than the uncertain feeling that "they won't sue me because, surely, they didn't mean that."

What we hope is that after the law is finally written and its accompanying report is issued, and the first piece of litigation is instituted and brought to its conclusion, no one-teacher, publisher, author, or legislator-will look at that conclusion and say in a private and offthe-record moment:

"But I didn't mean that."

Thank you.

Senator MCCLELLAN. Thank you.

[The statement of Robert F. Hogan in full follows:]

STATEMENT OF ROBERT F. HOGAN, NATIONAL COUNCIL OF TEACHERS OF ENGLISH Mr. Chairman and members of the subcommittee, I am Robert F. Hogan, Executive Secretary of the National Council of Teachers of English. The National Council is the world's largest independent organization for teachers of one subject. Its 115 thousand individual, associate, and institutional members and subscribers are drawn from all levels of education, elementary through graduate school. For them, I express our appreciation for this opportunity to submit written and oral testimony to the subcommittee.

Although a substantial majority of this membership consists of classroom teachers, it also includes authors, editors, and publishers. The Council itself is a publisher of seven periodicals and about fifteen books and monographs each year, all protected by copyright. I stress those two facts, on the chance that someone might construe the remarks that follow as threatening to the interests of authors, publishers, and others who have a genuine stake in reasonable protection through copyright. The Council shares that stake.

What chiefly concerns us is, while ensuring the maintenance of reasonable copyright protection, to recognize fully the needs of more than a million elementary classroom teachers who spend up to half their teaching time and effort on language arts and reading, 175 thousand secondary school teachers of English, and, most of all, the 45 million children they teach.

The Council has supported and participated in the work of the Ad Hoc Committee on Copyright Revision for more than a decade. Until last year the Council felt reasonably confident that "fair use," as provided for in House Report No. 83 of the 90th Congress and as amended in the testimony of Mr. Wigren, Chairman of the Ad Hoc Committee, would afford adequate protection for teachers and fair treatment to copyright proprietors. However, the outcome of the Williams & Wilkins case has destroyed that confidence. The recommendations to the U.S. Court of Claims from the Commissioner of that Court could have no other effect. They call into question not only the right of the teacher or a scholar to make by photocopy or machine one copy of a copyrighted work, but even to hand-copy such material. In the light of this restrictive interpretation of "fair use," the National Council joins other members of the Ad Hoc Committee in seeking a limited educational exemption to shore up, in the law, the protection we need. What kind of privilege is it that we seek? Perhaps some examples would help to make that clear:

(1) In the course of a unit on satire, to make multiple copies of a newspaper column by, say, Art Buchwald or Mike Royko to illustrate contemporary satire:

(2) To select from the students' textbooks a poem they have not been taught and to make multiple copies for use in an examination:

(3) To make multiple copies of book reviews from a variety of sourcesNew York Review, Ms., Esquire, Time-to show how different reviewers deal with the same book; and

(4) To take into account a sudden issue of widespread interest-for example, the murder of the athletes at the Berlin Olympics-by making for students that following day copies of Housman's poem "To An Athlete Dying Young."

Let me be just as specific in citing privileges the Council does not seek :

(1) To substitute for commercial anthologies, collections of copyrighted literature manufactured locally;

(2) To copy consumable materials such as answer sheets for commercially published tests, the tests themselves, or workbooks; and

(3) To store indefinitely and reuse periodically stencils or other "master copies" of materials once duplicated for spontaneous use in a particular teaching situation.

The best teachers at any level are bright creative individuals who not only know their subject and understand how children learn, but who connect what they teach to the world around their students. They not only serve their own students well, but by their example they inspire less gifted colleagues to teach better than they otherwise might. What the National Council fears most of all in a restrictive copyright law is that penalty and the fear of penalty will stifle creativity and imagination among teachers and reward pedestrian teaching.

Senator MCCLELLAN. Next?

Mr. SCHOECK. Mr. Chairman and members of the subcommittee, I am Richard J. Schoeck, director of research activities of the Folger

Shakespeare Library in Washington. I appear before you today representing the Modern Language Association of America, which has a membership now of 30,000, all of whom are teachers, and most of them scholars, active in research.

The MLA supports the statement of Mr. Wigren, which you have just heard, and I am here to endorse an educational exemption.

I want to speak in support of this exemption and to touch on what was put more fully in my written statement.

Speaking now for the MLA in particular, I stress the need for a clear delineation of what is permissible in the uses of material for teaching, for research, and for scholarly writing-but this is minimal. Until the Williams & Wilkins case, we were, for want of something better, satisfied with the doctrine of fair use, but that doctrine has been substantially altered by the Williams & Wilkins case. The entire copyright status quo has inevitably been changed since last year. Now the appeal of Williams & Wilkins is in progress and, while we trust that the appeal will render justice in that individual case, it may not clarify the concept of fair use, especially insofar as educational aspects are concerned.

The Williams & Wilkins case was largely a case concerned with the interests of a commercial publisher, and this point points to the other difficulties or limitations of the fair use doctrine. The precedents for fair use are virtually all concerned with commercial interests with one publisher against another publisher. This is a hostile environment for the needs and ends of teaching and scholarship because scholarship is not competitive, even though the getting of an academic job may be. An educational exemption would be a welcome relief in the field of copyright and would put the needs of teaching and research in a wholly new context-new in the United States, though not elsewhere.

A scholar has always been considered to have the right to make a single handwritten copy of copyrighted material for his own personal use, and this practice has always been contained in research libraries where I have worked in the United States, Canada, the United Kingdom, and Europe, yet this basic and traditional right is seriously questioned by Commissioner Davis.

Now, there are alternatives to the limited educational exemption, and I tried to consider those briefly in my written statement. These, however, would be second best to the exemption for which we are asking and they are only a defense in the event of a lawsuit. They would also put the burden of proof on the teacher or scholar.

An operative wording of the limited educational exemption has been put forward by Harold Wigren. It does not go far as giving the right to copy an entire book, but only a short poem or story or essay or article or to use excerpts or quotations in classroom teaching. To indicate that I tried to see the whole spectrum of interests and concerns in this copyright problem, may I say that I speak under several hats: as the editor of a scholarly journal frequently called upon to give permission to reprint from its publishers; as the director of publications in the Folger Shakespeare Library, in which capacity I am richly aware of costs in publishing; as an author, editor, or coeditor myself, with more than a dozen books and more than 100 scholarly papers and articles; as a professor of years of experience in a number of universities; as a member of the staff of a research labora

tory; and finally, as the representative of the 30,000 members of the MLA.

This request for a limited educational exemption seems to satisfy a wide spectrum of interests and appears to be reasonable, equitable, and necessary for sound teaching and research as well as for the continuance of a healthy intellectual life in this country.

Thank you.

Senator MCCLELLAN. Do you think that such a position favoring educational uses as that suggested in your proposed amendment would not have a serious impact on the ability of the sources to provide this material and continue publication?

Mr. SCHOECK. A point that is touched on in the Government's presentation in Williams and Wilkins is that a great deal of the cost of preparation does come, especially in scientific journals, from the Government. In the humanities, some of these funds are obtained from foundations and from universities.

Senator MCCLELLAN. In that connection, may I ask you if you think it would require an increased subsidy from the Government to support it?

Mr. SCHOECK. Well, that is already underway, I understand, Mr. Chairman.

Senator MCCLELLAN. I know, but the time is coming when this Government can't subsidize everything. That source is going to dry up,

too.

Mr. SCHOECK. Well

Senator MCCLELLAN. I would be very happy just to say well, we will just give you more subsidy from the Government for these things.

Mr. SCHOECK. A great deal of the cost of producing scholarship is borne by the individual scholar himself. I would suppose 25 percent of my scholarly costs have been paid by a foundation or the Govern ment. The rest I pay myself—and I think this is true of most scholars. Senator MCCLELLAN. Well, I am not talking about your situa tion, though, I am talking about the ability to continue publishing. Now, I am not taking up for anyone here. I am trying not to. In fact, I don't know which side I am on, actually, but you have this benefit to the educational community and to have these facts disseminated in these publications and so forth, well, they have to be created, they have to have an author to create them, and somebody to publish them first. That involves some costs, and when that cost can't be recovered, we are going to dry up the source.

Mr. WIGREN. Senator, may I break in?

Senator MCCLELLAN. Yes, I would just like to make this record as full as we can.

Mr. WIGREN. I have before me a news release from the Educational Media Producers Council, Fairfax, Va., dated May 16, 1973, and the heading reads "Demand for Educational Audiovisual Materials Rises 10.8 Percent in 1973." And the article's first paragraph reads:

Greater use of audiovisual materials continued to characterize the classroom in 1972, according to a report to be released May 31 by the Educational Media Producers Council. The EMPC Annual Survey and Analyses of Educational Media Producers' sales shows that total sales of non-textbook instructional materials rose to 214.7 [million] in 1972, an increase of 10.8 percent over 1971. The survey, conducted by an independent market research firm under the auspices of the Educational Media Producers Council, presents a comprehensive picture of total

industry software volume, are a wide range of statistical data and analyses of the education market.

Now, I read this to point out that I don't really think that the industry is bleeding in this regard because of a few uses which we make of materials in the classroom, particularly not if the sales rose 10.8 percent in the audiovisual field alone. Now, I don't have with me the data on the textbook publishing industry, but I would be surprised if they were substantially different. May I point out that these record sales were achieved despite the fact that teachers were making limited copies of excerpts of many of these materials.

Senator MCCLELLAN. What I want to do is ascertain what impact this amendment would have, if any, on the financial stability of the publishers and other interests.

Mr. ROSENFIELD. Mr. Chairman, if I may supplement what Mr. Wigren has said?

In 1973-May 1973-Fortune went into its customary 500 largest industries, and indicated that the publication industry and the related industries have had at least as high, if not higher, an average increase in profits, as many of the others involved in the top 500. And this is despite the fact, if not because of the fact, that teachers are making very limited copies because, in our judgment, this helps the sale of materials and not hinders.

Senator MCCLELLAN. Well, I wonder if the publishers would agree with your analysis of their prosperity?

Mr. ROSENFIELD. Well, at least the facts in both cases, these are independent assessments. The one that Dr. Wigren mentioned was the producer group itself and the one that I mentioned, is an independent business group over which we, as school people, have absolutely no influence.

Senator MCCLELLAN. Thank you. Proceed.

Mr. SCHOECK. Well, I finished the formal part of my presentation, although I had perhaps not fully answered your questions.

There is, perhaps, the final publication of scholarships which I think ought to be distinguished from textbooks and educational publication. There is no question but that the publication of scholarly journals and the publication of scholarly monographs are in a precarious position during the last period because of skyrocketing costs, and that is a very serious matter. Now, I do not consider the limited educational exemption that the MLA is supporting as part of the ad hoc committee, as a serious threat to scholarly publication.

Senator MCCLELLAN. That is the point. I think it is valid and important to ascertain what the impact of this is, this educational exemption for educational purposes, what impact, if any, that will have upon the ability of the sources, the present sources, to continue to make such material available. If it is serious, it ought to be weighed. If it is trivial, it can be ignored.

Mr. SCHOECK. It is perhaps relevant to point out that in getting necessary permission to reprint, whether for scholarly books or in a scholarly journal, very often presses have asked what seemed to me to be exhorbitant rates for that permission to reprint and at times the rates have been so high that the editorial or scholarly judgment has had to be subordinated to the practical considerations because we could not afford those permission fees that were demanded.

Senator MCCLELLAN. Quite possibly the people who make such de mands do themselves more injury than anyone else. I don't know.

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