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(a) There were no available judicial precedents for the meaning of "fair use" in connection with nonprofit schools. House Rep. No. 2237, 89th Congress, 2nd Session, on H.R. 4347,
(0) In proposing statutory "fair use," the House Committee stated : “Section 107, as revised by the committee, is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way. ..." H. Rep. No. 83, supra, at p. 32.
(C) To give some guidelines of what such statutorily-adopted judicial "fair use" meant, the Committee set forth, in considerable detail and specification, examples of teaching activities which it regard as "fair use"
under the judicial doctrine which it was accepting without change. 3. In specific instances of major importance, the views of the House Judiciary Committee as to what "fair use" comprised were diametrically opposed to the Commissioner's decision in Williams & Wilkins. This being the case, the educational community cannot at this point safely rely on the views previously expressed by the House Judiciary Committee as to the meaning of judicially-determined "fair use."
4. Examples. The divergence between the Commissioner and the House Judiciary Committee are indicated in three items of major importance to the educational and library community, as follows:
(A) AN ARTICLE FROM A PERIODICAL ISSUE
The Commissioner: there is no difference between an article and an entire periodical issue. “... each article in plaintiff's journals is protected from infringement to the same extent as the entire journal issue. (p. 6)
House Judiciary Committee : there is a difference. “Single copies of 'entire works. ... The educators have sought a limited right for a teacher to make a single copy of an 'entire' work for classroom purposes. The committee understands that this was not generally intended to extend beyond a 'separately cognizable' or 'self-contained' portion (for example, a single poem, story or article) in a collective work, and that no privilege is sought to reproduce an entire collective work (for example, an encyclopedia volume, a periodical issue). With this limitation, and subject to the other relevant criteria, the requested privilege of making a single copy appears appropriately to be within the scope of fair use." (34–5) (underlining supplied)
(B) COPY OF ENTIRE WORK Commissioner: No. “. . . And the courts have held that duplication of a copyrighted work, even to make a single copy, can constitute infringement."
House Judiciary Committee: Yes, under some circumstances. “For example, the complete reproduction of a fairly long poem in examination questions distributed to all members of a class might be fair use ..." (33)
"There are certain classroom uses which because of their special nature would not be considered an infringement in the ordinary case. For example ... recordings of performances by music students for purposes of analysis and criticism, would normally be regarded as fair use unless the copies or phone-records were retained or duplicated.” (34)
"Allows multiple copies of very short self-contained works.” (p. 35)
DIFFERENCES BETWEEN SINGLE AND MULTIPLE COPIES Commissioner: None. “... there is nothing in the copyright statute or the case law to distinguish in principle, the making of a single copy of a copyrighted work from the making of multiple copies ..." (14)
House Report : There is a difference. “Single and multiple copying. Depending upon the nature of the work and other criteria, the fair use doctrine should differentiate between the amount of a work that can be reproduced by a teacher for his own classroom use ... and the amount that can be reproduced for distribution to pupils ..." (p. 33) (underlying supplied )
“... fair use can extend to the reproduction of copyrighted material for purposes of classroom teaching.” (p. 33)
The educational community deliberately compromised on some of its major demands in specific reliance upon the understandings set forth in the House Judiciary Committee's report on the meaning of "fair use." The Commissioner's opinion in Williams & Wilkins negates the substance of that legislative understanding and renders it unsafe and unwise, at this point, to rely on the understandings set forth in the House Judiciary Committee's interpretation of "fair use." The educational community, therefore, must have clearcut and decisive assurances that the statute will include what is needed for the educational community, in the way of reasonably copying and recording—needs which are rejected by the language as well as the thrust of the Commissioner's opinion.
Senator McCLELLAN. Is that all now?
Mr. WIGREN. Mr. Chairman, may I clarify one point before we leave the stand ?
Senator McCLELLAN. Yes.
Mr. WIGREN. Very frequently I have been asked, does the ad hoc committee's limited education exemption request go beyond the bounds of "fair use" ? And I am sure some of the members of your committee would be interested in our interpretation of that question. I would say that our request goes beyond fair use in protection only, but not in substance. In other words, our request goes beyond "fair use" in four ways, as far as protection goes. First, the limited educational exemption would provide certainty that a given practice of teachers in the classroom is permissible. We do not have this certainty now.
Second, the limited educational exemption would provide us freedom from the aura of commercial competition in the normal "fair use" situation; that is, as I pointed out in my testimony, "fair use" is generic in nature and applies equally to both commercial and noncommercial users.
We feel educational users need special protection over and above that provided commercial users, because of their public responsibility. Third, "fair use" is a defense in a lawsuit, and the teacher has the burden of proof under the present statutes. The limited educational exemption on the other hand puts the burden of proof on the publishers. The publisher has to prove that the teacher has infringed.
Finally, the limited educational exemption would protect us in the event there arises another court suit be it Smith versus Jones or whatever you want to call it, which might be similar to Williams & Wilkins. In the event that occurred we would be protected. Otherwise we would have the same thing to do all over again as we are doing today.
Let me point out that we are not asking for more substantive rights, but we are asking for more protection to assure that we get those substantive rights which we feel are appropriate for the educational community.
Thank you, sir.
Mr. BRENNAN. We have five separate presentations in opposition to the ad hoc committee amendment. Each witness will be alloted 8 minutes.
Senator MCCLELLAN. There goes the bell. I will have to leave to vote, but will be back shortly.
A brief recess was taken.]
Senator McCLELLAN. The committee will come to order. Call the next witness.
Mr. BRENNAN. Mr. Chairman, the first witness in opposition to the ad hoc committee's amendment is Mr. Irwin Karp, counsel for the Authors' League of America.
Senator McCLELLAX. All right, Mr. Karp, you may proceed.
STATEMENT OF IRWIN KARP, ESQ., COUNSEL FOR THE AUTHORS
LEAGUE OF AMERICA, INC. Mr. KARP. Thank
Mr. Chairman. I have submitted a written statement and I would respectfully request that it be included in the record.
Senator McCLELLAN. It will be printed in the record in full.
Mr. Karp. I will simply comment on certain portions of my written statement.
The Authors League opposes the proposed educational exemption, which has just been discussed by the illustrious members of the panel who addressed you.
I will focus, as our statement focuses, on those provisions which deal with reproduction, copying, and recording. But I do want to state that the Authors League opposes the other aspects of the exemption which would permit storage and retrieval systems beyond the limits of fair use. And it also opposes the provisions on educational broadcasting, which as we just heard would apparently, in the eyes of the proponents, allow them to go into the wholesale business of using copyrighted materials for the preparation of television programs involving such substantial investments that they must have even greater power to reproduce copies so they can, as the gentleman just told us, recoup their investment. I think that marvelous little phrase about recouping their investment exemplies a certain failure to envision the problems of producers of educational material and authors who must also recoup their investment. In a sense that myopic vision highlights and emphasizes the problems that have plagued us all through the copyright revision proceedings.
It should be emphasized, at the outset, that what the educators are doing is asking this committee and the House Judiciary Committee to throw out a carefully worked out compromise on the problem of educational copying. The same gentlemen who were before you just now, made the same pleas to the House Judiciary Committee and this committee back in 1967, and then again when this committee held hearings the following year.
The House Judiciary Committee, taking very careful note of all of the arguments, said that because photocopying and other reproducing devices were becoming easier and cheaper, and because of the dangers of educational copying to authors and publishers, a specific educational exemption was not warranted. However, the House Judiciary Committee took several steps to meet and balance the needs of authors and educators. They revised section 107 at the request of the educators to make it explicit that some use for purposes such as criticism, comment, news reporting, teaching, scholarship or research could be fair use.
Then they made a very careful analysis of the four criteria of fair use, which they applied to specific typical classroom situations.
As the committee noted, the analysis had to be broad and illustrative. They said it might provide educators with the basis of establishing workable practices and policies.
Now, in reality the House committee's analysis of fair use, with its explicit examples and illustrations of how it applied to educational copying, was far more precise than the very vague amendment that this committee is being asked to adopt in the name, so we are told, of clarity.
The fact of the matter is that the House report and the draft report of this committee give far clearer guidelines to educators and publishers and authors than this proposed exemption, which concededly would go beyond the limits of fair use.
The House committee said, in its concluding remarks on this subject, that "the doctrine of fair use, as properly applied, is broad enough to permit reasonable educational use, and education has something to gain in the enactment of a bill which clarifies what may now be a problematical situation."
Now, that remark, Senator, that judgment and that analysis of fair use is just as valid today as it was when the House Judiciary Committee made the report because there is absolutely nothing in the Williams and Wilkins decision which changes the concept of fair use as it applies to educators or educational copying. And it requires a tortured reading of Commissioner Davis' very careful opinion and a very partisan reading-to believe that this changed in any way the work of Mr. Kastenmeier and his committee which was then acceptable to the very people who just sat here before you. So, the decision is simply being used as a pretext to push once more for an exemption, which even the educators recognized after discussion to be
Senator McCLELLAN. Oh, we just got a record vote call. I will have to recess for a few minutes, and I will hurry back.
Be at ease until I return.
Mr. KARP. As I said, the House Judiciary Committee completed its analysis of the problem of educational copying by stressing that the doctrine of fair use properly applied is broad enough to permit reasonable educational use.
Indeed, Mr. Rosenfield, counsel of this committee, very shortly thereafter, speaking for the ad hoc committee, said that the sine qua non of our agreement on the compromise of educational copying, the sine qua non of our agreement, is the present language of 107, unchanged. The proposed educatioal exemption will change that agreement considerably and will change 107.
I might say very briefly, that if the exemption is not intended to go beyond fair use, there is obviously no need for it-although in fact it concedely would go beyond fair use. We analyze this point in our statement and we point out that it would permit various types of copying that do not meet the criterion of fair use, including the most important criteria---whether the use would affect the market value of, or market for, the copyrighted work.
We have discussed this afternoon in other testimony how educational copying can injure authors, and how library copying can do that also, and I will not repeat that analysis.
We then come to the Williams and ililkins case, which is the pretext on which the educational community asks for another crack at the educational exemption. In the House Judiciary report it was emphasized that each case raising the question of fair use must be decided on its own facts. And the committee said that "unauthorized library copying, like anything else, must be judged a fair use or an infringement on the basis of all the applicable criteria and the facts of the particular case.” That is a well-established doctrine of copyright law.
Now, the facts in the Williams and Wilkins case were that the two sets of Government libraries engaged in the systematic reproduction, on a vast scale, of copies of entire articles for their own patrons and the patrons of other libraries. In his opinion Commissioner Davis passed no judgment on educational copying in any of the permutations analyzed by the House Judiciary Committee.
What Commisioner Davis did was to confine his decision and opinion to the facts of this particular case, which is always done in fair use cases. He said that based on the facts of the particular Villiams and Wilkins case-on the annual systematic copying of thousands and thousands—and literally millions over a period of years of journal articles—that this systematic copying was wholesale copying and was therefore not fair use. And he analyzed the criteria of fair use as it applied to those facts only.
He also pointed out that copying of entire articles could, under appropriate circumstances, be fair use and he said that there were many illustrations that might come to mind on reflection. And he re-emphasized that fair use, however, cannot support wholesale copying of the kind here in this suit.
One concluding comment, the educational spokesmen have told you today that "educators" must have access to these materials and they are really dealing with a large industry-publishing—which is only concerned with profiting itself. As a matter of fact, authors and pubilishers are also "educators" and make valuable contributions to the educational process, which they could not do-if this exemption were established-without considerable loss to themselves. On the other hand, education is one of the top 500 industries in the United States. And there are no educators, to my knowledge, who teach without pay or who occupy schoolrooms or school buildings which are not paid for. The educational system and the school boards do pay for other services and facilities that they use.
It might be pointed out that when teachers feel that the compensation they receive is not adequate, they have a remedy. They are allowed to organize in large groups and boycott the schools. They go on strike, and they stay on strike, keeping the schools shut down. until they receive what they consider adequate compensation. Ironically, they are entitled to do that under an exemption granted by another statute, the Clayton Act because the conduct of the NEA local chapters in various States, in striking schools, is a boycott, which would otherwise violate section 1 of the Sherman Act.
They are able to organize in large groups; namely, union, to fix the prices for their services—which would also violate the Sherman Act were it not for the exemption they have under the Clayton Act. We have no quarrel with that. What we do quarrel with is this new exemption they seek which would prevent publishers and authors from receiving reasonable compensation for their materials and their services, that is, when their copyrighted works are copied, beyond the limits of fair use.
The House Judiciary Committee suggested that where copying beyond fair use was desired by educators, that reasonable, voluntary arrangements should be worked out to make this possible it also suggested that educators, authors, and publishers cooperate in establishing criteria for fair use. We are perfectly willing to do that and we