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We would also like the history to show that the fair use doctrine protects the maker of a copy as fully as it protects the user of that copy. .

Thank you very much.

Mr. BRENNAN. Mr. Chairman, for the benefit of the committee, 4 minutes remain to the committee.

[The statement of Mr. John C. Stedman in full follows:]

STATEMENT BY JOHN C. STEDMAN, THE COPYRIGHT COMMITTEE OF THE ASSOCIATION

OF AMERICAN LAW SCHOOLS, THE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS AND THE AMERICAN COUNCIL ON EDUCATION

Mr. Chairman and members of the subcommittee, I am John C. Stedman, Professor of Law, the University of Wisconsin. I am a member of the Special Committee on Copyright Law of the Association of American Law Schools. Representatives of the American Association of University Professors and the American Council on Education have joined in the deliberations of that committee. I appear before you today at their request.

This group urges as strongly as it can that the doctrine of fair use not only be preserved, but be given formal recognition by the Congress, both by express statutory provision and by appropriate language in the final committee report, as it has been earlier in this revision and in House Report No. 2237, 89th Congress, Second Session, pages 61 to 66 (1966). This is a modest, but important, recommendation. It merely suggests, after all, that your committee stand by the approach that the House took in 1967 when it passed an earlier version of the Copyright Revision Bill, and the approach your committee takes at the present time, as evidenced by the language of section 107.

Let me emphasize that we do not seek to remove protected material from copyright control. Nor are we adverse or hostile to the basic premise that legitimate rights in intellectual property should be protected. We accept that premise as a matter of principle, as a matter of public policy, and as a matter of self-interest. There are, after all, within our constituent membership many authors whose scholarly works command high prices in the commercial book market and authors whose royalties compare favorably with the royalties of non-academic authors.

Our main concern is to stress before this committee the soundness of the traditional, judicially-constructed doctrine of fair use, and its fundamental importance in the process of higher education. Those among us who are law teachers are moved by an added sense of urgency and concern. Tradition and precedent play an important role in the judicial development of the law. But there is little case precedent to guide the courts with respect to permissible uses by teachers and researchers. Cases simply did not come up in this area. But given this scarcity of cases, if S. 1361, with its present section 107, were enacted without appropriate legislative history—at a time when educational usage has become a controversial issue-courts might interpret this silence as indicating a Congressional intent not to go beyond the precedents of the past. You will recall that Congressional silence in the 1909 Act with respect to the protection of phonograph records, despite the fact that phonographic technology existed at that time, resulted in this important area receiving no copyright protection down to the present time. We would not want to see this costly and unfortunate experience repeated in the educational fair use area, because the Congress failed to speak out on the subject. I should add that the dangers that exist here are aggravated by the sweeping language and reasoning contained in Commissioner Davis' opinion in the Williams and Wilkins Case.

In seeking to assure the application of traditional fair use doctrine through express statutory recognition coupled with supportive legislative history, we are moved by the essential importance of the availability of copyrighted materials in teaching and research. First and most basic is the fact that the higher education community, college and university administrators and their faculties, are primarily the institutions in which the ultimate task of transmitting and advancing knowledge is reposed. I emphasize that both research and teaching are involved in this process. Each is indispensable to the other. Effective instruction of the next generation of citizens and professionals requires that the current generation of teachers be involved as researchers at the frontiers of their own individual disciplines and specialties. But if the individual teacher is to discharge this duty, he must be current within his own discipline, and this requires that he have access to the work product of allied researchers.

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The exponential rate of growth of knowledge in this generation and its expression in written and other forms, underscores the importance to the scholar and teachers of access to this information. As the volume of published material has risen, the library budgets of colleges and universities are increasingly pressed. The typical library of a major law school must spend a substantial portion of its annual budget to acquire the current volumes of the state and federal reports and the current supplements to the vast array of state statutes, treatises, and looseleaf services. It is not possible for every university and law library to acquire one or more copies of every book needed for research and teaching in the institution.

The relevance of this to the fair use doctrine is, I trust, clear, look at it first from the standpoint of the researcher. A teacher at a good private university in the southeastern United States who is interested in research on a particular topic finds that the basic works relating to that topic are available only at one or two distant universities in the northeast. He may want to consult only one chapter in such a work, or a few pages within that chapter to which he has found a citation in a periodical that is available to him. Access to such information is essential to the scholar. Inter-library "lending" has become the means to such access. A definition of fair use that left it uncertain whether such a portion could be photocopied and thus satisfy the researchers' needs, would frustrate the purposes that underlie the fair use doctrine, and would be inimical to the orderly extension of scientific knowledge.

Although the library associations are appearing here on their own behalf, we consider the need to permit restricted photocopying for the individual scholar so basic to the vital inter-library loan process as to warrant emphasis by us as well.

Turning to the teaching function, the need for reasonable photocopying for classroom purposes closely parallels the need of the scholar. Often a current new item will appear first in a newspaper or other periodical. Or it may be a one or two page excerpt from a voluminous book or article. Whatever its source, the quality of teaching is grealty improved by making the excerpt available to students. Denial of the opportunity to do this does not mean that students and teachers will go out and buy the entire book or periodical. They will simply do without. In short, the cause of education will have been disserved, and the copyright owner will be no better off.

In this connection, we reiterate that we do not seek the right to reproduce entire books or other publications. We seek only a clear expression of intent that the fair use doctrine, as set forth in section 107, includes classroom use by a teacher, together with a supportive statement in the legislative history to the effect that classroom use by a teacher was intended to be within he ambit of section 107. In urging this statement we accept the limitations cited in House Report No. 2237, 89th Congress, Second Session, at page 62 (1966) that in determining fair use it is appropriate for a trier of fact to consider the non-profit character of a school, the independent volition of the teacher and the spontaneity of the temporary use by the teacher and the students. We accept also the limitation that compilation of anthologies would be outside the ambit of fair use.

We reiterate that we do not seek the right to engage in multiple copying out of the context of research and teaching. We seek only the right of the scholar to have access to knowledge through a single copy of such portion of controlled works as are germane to his established research goals, and, for the classroom teacher, to have the right to use current materials in the non-profit and temporary use context that is his normal classroom situation. In this connection we recognize that the effect on the potential market for the copied work is an appropriate factor to be considered in the determination of fair use, but we also recognize that in the overwhelming proportion of cases, any possible adverse effect will be nil or virtually so. Indeed on balance, access to excerpts appears more likely to stimulate sale of the source product than to discourage it.

Two minor clarifications of points that seem implicit in the existing language of section 107 of S. 1361 would make their meaning explicit. We would like to see the legislative history indicates that none of other sections of the Act limit the force of section 107. We would also like the history to show that the fair use doctrine protects the maker of a copy as fully a sit protects the user of that copy.

We conclude as we began with a request that this committee continue the traditional recognition of fair use in the research and teaching context by the enactment of section 107 coupled with supportive legislative history as outlined above. Mr. STEINHILBER. Mr. Chairman, my name is August W. Steinhilber and I am director of Federal relations for the National School Boards Association.

The National School Boards Association is the only major education organization representing school board members. Our membership is responsible for the education of more than 95 percent of all the Nation's public schoolchildren.

As representatives of the Nation's largest unit of government, both in terms of number and expenditures, our testimony today is not for the benefit of any vested professional or business interest.

We are locally elected officials. We are here as trustees of the taxpayer, who must eventually bear the cost which the limited monopolistic rights arising from copyright protection will entail. The term monopolistic is being used in the nonpejorative sense that to the extent legislative restrictions are placed on the public use of work, society is then being precluded from freely dealing with the ideas presented therein.

Mr. Chairman, may I stray a little from my prepared testimony. Having negotiated with private industry the last few weeks on the energy crisis, where we tried to obtain bids on fuel oil to keep schools open this fall plus retain current natural gas usage which you know is under the Federal Power Commission, I would indicate that any monopoly is indeed dangerous to the public and therefore the responsibility of this committee is very heavy to prevent such from happening in the copyright area.

We know the subcommittee recognizes that great care must be taken to weigh taxpayer cost in striking the balance between intellectual creation and intellectual pursuit. And, it is with respect to the latter, intellectual pursuit-specifically, taxpayer cost as it relates to classroom use of copyrighted materials—that my testimony is directed.

The National School Boards Association supports the balance of interests expressed in the exemption proposed by Mr. Wigren of the ad hoc committee of copyright law revision. In the interest of time, my specific comments will focus on three issues: One, duration; two statutory damages; and three, other than face-to-face "not for profit

We strongly oppose an expansion of the current duration period of 28 years renewable for 28 years, particularly to a period as long as life plus 50 years. It totally defies commonsense to assume that the typical artist, in order to have financial incentive to produce, needs a copyright protection which will not only keep him financially secure, but will provide an ongoing source of income for his great-grandchildren. Under the current law, the artist, like the rest of the citizenry, in effect, has a life interest in the sale of his labor, which has thus far proven to be sufficient. Furthermore, except for the relatively rate instances of great works, we sincerely doubt whether the demand for most works in excess of 56 years of age is such that the balance between spot usage and royalties collected by heirs can justify burdening copiers with finding the publisher in interest, and then ordering copies or seeking permission to copy.

In speaking of expanding duration, it would appear that the publishing industry is the real beneficiary of the “life plus fifty” proposal.

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Second, we strongly endorse a waiver of statutory damages for innocent educational infringers. As school board members, we have to protect what we would ordinarily consider the ultra vires violations of our teachers and librarians.

Our concern is that such personnel should not be required to proceed with the judgment of a copyright lawyer-many of whom would also encounter difficulties in dealing with the factual complexities which may arise in applying the law on a day-to-day classroom basis. It is our opinion that penal provisions will not serve to deter good faith violations, as much as it will to foreclose teachers from pursuing justifiable exemptions to the law, and, in turn, foreclose the educational public policy which such exemptions seek to protect. In this regard, it can be assumed that school employees, and the units of government which oversee their activities, will operate in good faith and take steps to insure adherence to the law.

Well, in the interest of time—and I know I have taken up too much of that commodity—I will rest my case. My prepared document speaks for itself, and I would like to have an opportunity to answer questions. I would again urge you once again in support of an educational exemption which would place education in the same position or virtually the same position that it now holds.

[The statement of August W. Steinhildber in full follows:]

STATEMENT OF August W. STEINHILBER, DIRECTOR OF FEDERAL RELATIONS,

NATIONAL SCHOOL BOARDS ASSOCIATION Mr. Chairman, my name is August W. Steinhilber, and I am Director of Federal Relations for the National School Boards Association.

The National School Boards Association is the only major education organization representing school board members. Our membership is responsible for the education of more than ninety-five percent of all the nation's public school children.

As representatives of the nation's largest unit of government, both in terms of number and expenditures, our testimony today is not for the benefit of any vested professional or business interest. Rather, we are here as trustees of the taxpayer, who individually must bear the pro tanto cost which the limited monopolistic rights arising from copyright protection will entail (The term monopolistic is being used in the nonperjorative sense that, to the extent legislative restrictions are placed on the public use of work, society is then being precluded from freely dealing with the ideas presented therein).

We know the subcommittee recognizes that great care must be taken to weigh taxpayer cost in striking the balance between intellectual creation and intellectual pursuit. And, it is with respect to the latter, intellectual pursuit-specifically, taxpayer cost as it relates to classroom use of copyrighted materials—that my testimony is directed.

The National School Boards Association supports the balance of interests expressed in the exemption proposed by Mr. Wigren of the Ad Hoc Committee on Copyright Law Revision. In the interest of time, my specific comments will focus on three issues : 1) duration, 2) statutory damages, and 3) other than face-toface 'not for profit use."

We strongly oppose an expansion of the current duration period of 28 years renewable for 28 years, particularly to a period as long as life plus 50 years. It totally defies common sense to assume that the typical artist, in order to have financial incentive to produce, needs a copyright protection which will not only keep him financially secure, but will provide an ongoing source of income for his great grand children. Under the current law, the artist, like the rest of the citizenry, in effect, has a life interest in the sale of his labor, which, has thus far proven to be sufficient. Furthermore, except for the relatively rare instances of great works, we sincerely doubt whether the demand for most works in excess of fifty-six years of age is such that the balance between spot usage and royalties collected by heirs can justify burdening copiers with finding the publisher in interest, and then ordering copies or seeking permission to copy.

In speaking of expanding duration, it would appear that the publishing industry is the real beneficiary of the “life plus fifty" proposal. Even granting that promotion of the arts and sciences may require incentive for commercial sponsors, it is difficult to imagine how promotion could be encouraged by offering protection for a period which may very well exceed the life of the sponsoring individual, or the publishing company, which invested the risk capital. Indeed, it would appear at some point the need to encourage the arts will be discouraged if sponsors can reap long term profits from their past successes.

Second, we strongly endorse a waiver of statutory damages for innocent educational infringers. The nation's school boards can make this endorsement from the detached position of not being liable for the ultra vires violations of our teachers and librarians. Our concern is that such personnel should not be required to proceed with the judgment of a copyright lawyer-many of whom would also encounter difficulties in dealing with the factual complexities which may a rise in applying the law on a day to day classroom basis. It is our opinion that penal provisions will not serve to deter good faith violations, as much as it will to foreclose teachers from pursuing justifiable exemptions to the law, and, in turn, foreclose the educational public policy which such exemptions seek to protect. In this regard, it can be assumed that school employees, and the units of government which oversee their activities, will operate in good faith and take steps to ensure adherence to the law.

Third, the educational exemption proposed by the Ad Hoc Committee on Copyright Revision is inclusive of those transferring mechanisms which would limit copyright protection beyond face-to-face teaching, such as educational television. While other witnesses can provide expert technical testimony to support such an exemption, we would like to especially emphasize our encouragement for the closed circuit educational television exemption. This teaching device costs the taxpayers millions of dollars every year, and it would be an enormous frustration of that expenditure if the use of educational television was impeded by restrictions, further costs, and delays in clearing administrative restrictions. In addition, it should be noted that the Congress has recognized the educational television priority through special provisions in the Emergency School Aid Act and Title III of the Elementary and Secondary Education Act. Therefore, apart from the taxpayer interest, the tighter the restriction on closed circuit television usage, presumably the less achievable will be Congress' legislated goals in educational innovation and quality integrated education—the purposes of the two acts which I just cited.

Mr. Chairman, this concludes my statement. On behalf of the National School Boards Association, I would like to thank you for permitting us to present our views on the educational exemption to the copyright laws.

Mr. ROSENFIELD. Mr. Chairman, reference has been made to the impact of Williams and Wilkins on the educational community's interest. For the interest and edification of the committee, may I submit a memorandum of law on the impact of the Commission's opinion and its relationship to the House committee report!

Senator MCCLELLAN. You may. It will be received.
[The memorandum referred to follows:)

MEMORANDUM OF LAW
Re: Impact of Commissioner's Opinion in Williams & Wilkins.

The Commissioner's decision in Williams & Wilkins is inconsistent with the understanding of the House Judiciary Committee on the meaning of "fair use."

The Commissioner's opinion undercuts the House Committee's understanding as to "fair use" in such a serious way as to make it impossible for education safely to accept the House Committee's bill and report at this time.

1. To date, the only action taken by either House of the Congress in connection with copyright revision was that taken by the House in 1966 and in 1967. In each instance, the House Judiciary Committee reported a bill with a report, the last instance being in 1967, H.R. 2512 and the accompanying H. Rep. No. 83, 90th Congress, 1st Session.

2. For the first time, a Congressional Committee proposed statutory recognition of "fair use." Some of the key considerations appeared in the House Committee's respective reports as follows:

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