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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. l'ntil 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, howerer, 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.
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 sup
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 situation, 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 MCÒLELLAN. 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 demands do themselves more injury than anyone else. I don't know.
But they own it, and they have a right to put a price on it, I assume. But I think that must be an exception and not the rule. I think most of it would be made available at reasonable prices, wouldn't it?
Mr. SCHOECK. Well, as a general editor of a series of books, published by the University of Chicago presently, I know that it is not uncommon for a press to ask for a $200 or $300 or often a $500 fee for reprinting a single chapter or essay which is in some cases an essay which may have appeared in half a dozen places before.
[The statement of Richard J. Schoeck in full follows:]
STATEMENT OF RICHARD J. SCIOECK
Mr. Chairman and members of the subcommittee, I am Richard J. Shoeck, a member of the Ad Hoc Committee on Copyright Law Revision. I am Director of Research Activities of the Fo'ger Shakespeare Library in Washington, and Director of the Folger Institute of Renaissance and 18th-century Studies. I am also an Adjunct Professor of English in the University of Maryland and the editor of Shakespeare Quarterly. I appear before you today representing the Modern Language Association of America, which has a membership of 30.000, all of whom are teachers, most of whom are doing research and some of whom are writing (or have written) textbooks and other educational materials during their careers as college and university professors. Our point of view is therefore rather more complex than that of some groups that have a concern with copyright law revision, for the MLA must consider not only the problems of research and copyright, or of the writing of books and copyright, but also the impact of copyright upon teaching. We have always had to consider the interests of our students. The MLA therefore has long been a member of the Ad Hoc Committee, and it participated in the amicus brief of the Association of American Law Schools in Williams and Wilkins case. It now participates in and supports the statement of the chairman of the Ad Hoc Committee, Harold E. Wigren, on S. 1361.
Speaking for the MLA, I should stress the need for a clear delineation of what is permissible and what is not permissible in the uses of materials in the classrooms, in the uses of materials for research, and in the uses of materials for scholarly and textbook writing.
The report of Commissioner Davis in Williams & Wilkins (1972) must be seen as a landmark, for until that report there had been a fairly well understood and observed set of criteria under the unmbrella of "fair use.' Now there is not, and a great deal of alarm and confusion has been produced within the educational community, because the effect of the Commissioner's report in Williams & Wilkins is to restrict the accessibility of intellectual resources to both teacher and scholar.
A scholar has always been considered to have a right to make a single copy of copyrighted material for his own personal use: this must be so to insure a free circulation of ideas, and this surely is the thrust of Article I, § 8 of the Constitution of the United States : “The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writing and Discoveries." The exclusive right is for limited times only; the end for which the other provisions of Article I are the means is the promotion of science and the arts, and such promotion cannot be fostered without the free circulation of ideas. The provisions of Title 17 of the U.S. Code are largely concerned with the printing or reprinting or publishing of the copyrighted work: copy as used in this section is to be construed as pertaining to copying in the same sense as printing or publishing. Scholarship that is restricted by newly erected walls of copyright protection would become pa rochial--and it would not take long for the effects of such constriction to be evident in the thinking of our children.
A scholar's copying of material has been traditional in the Western world since far before the time of Erasmus, and it continues to our own times. Even that prophet of the electronic age, Marshall McLuhan, has made or has had made handwritten or typewritten copies of entire works: I have one such copy in my possession. But even that traditional and never previously challenged right of scholars was questioned by Commissioner Davis, and because the courts had not previously had the occasion to spell out the legal basis for the traditional right of scholars to make (or to have made) a single copy of copyrighted material for personal use, the fundamental procedures of scholarship are now being gravely challenged, and the very quality of scholarship in the C.S. is consequently threatened.
if the ruling of Commissioner Davis in Williams & Wilkins is affirmed by the Court of Claims, the scope and meaning of fair use" will in effect have been abrogated. The force of application of the Commissioner's ruling will be to the detriment of libraries and especially to research libraries like the Folger, as you will have heard this morning—but also to the detriment of teaching and scholarship. Had this hearing been held before March of 1972, many of us who have testified would have spoken differently. But it is impossible now to talk about educational and research uses of copyrighted materials as if we were in a pre-Williams and Wilkins world: we are not.
Two alternatives appear to be open: the new legislation on copyright can specifically affirm ‘fair use, and this might be done by having the concepts, traditional interpretations, and effective application of fair use written into the Congressional Report, as indicated by Dr. W’igren. Or, the Congress may (and as we believe, should) include in its new copyright law the so-called limited educational exemption : 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.
As the editor of a scholarly journal frequently called upon to give permission to reprint from its pages—as an author, editor or co-editor of about a dozen books and more than a hundred scholarly papers and articles--as a professor of more than twenty years of teaching expérience in several universities (Cornell, Notre Dame, Toronto, Princeton, and now Maryland)--and finally as a representative of the 30,000 members of the MLA, this requested limited educational exemption seems to me reasonable and equitable, and, still more, neces. sary for sound teaching and research and for the continuance of a healthy intellectual life in this country.
Senator McCLELLAN. Who is next?
Mr. Norwood. Mr. Chairman, and members of the subcommittee, I am Frank Norwood, executive secretary of the Joint Committee on Educational Telecommunications, which is a consortium of national and regional nonprofit organizations and associations including most of the major national entities in instructional broadcasting. What I shall attempt to do this afternoon is to summarize the principal concerns regarding copyright revisions and instructional broadcasting as they have been expressed by those members of the ad hoc committee who are most directly concerned.
I want to state we fully support, as do my colleagues here, Dr. Wigren's testimony, and I want to paraphrase my written submission, but I still hope to touch on the four points which are before us:
First, we want to stress the need to make clear that both the doctrine of fair use and the proposed limited educational exemption applied to instructional radio and television the same way that they apply to other forms of teaching:
Second, that beyond "fair use." instructional broadcasting stands ready to pay reasonable and just fees for the use of copyrighted materials, but there is a need to assure prompt access to such materials under standard terms and conditions ;
The third point that I want to take a moment to discuss is that statutory limits on the number of copies or span of use of instructional programs could have the effect of precluding the development of materials of highest quality for widespread use;
And finally, I want to talk briefly about the fact that teachers should not be prohibited by legislation from the delayed use in the classroom of broadcast programs so long as--and I think this is the