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tions analyzed by the House Judiciary Committee. On the contrary, he confined his decision and opinion “to the facts of (his) particular case”—to this systematic, large volume reproduction of journal articles. What the Commissioner decided was that "Defendant's photocopying is wholesale copying and meets none of the criteria for fair use" (emphasis supplied). He then said:

"The photocopies are exact duplicates of the original articles; are intended to be substitutes for, and serve the same purpose as, the original articles; and serve to diminish plaintiff's potential market for the original articles since the photocopies are made at the request of, and for the benefit of, the very persons who constitute plaintiff's market."

Nothing in the Judiciary Committee's analysis of educational copying and fair use suggested that the systematic process of wholesale copying involved in Williams & Wilkins could be condoned as a fair use. Moreover, it should be noted that Commissioner Davis gave examples of photocopying of entire articles that would be fair use and said there are "probably many more which might come to mind on reflection". He then reemphasized that fair use "cannot support wholesale copying of the kind here in suit."

We submit there is nothing in Commissioner Davis' opinion which alters the judicial doctrine of fair use as it applies-according to the Judiciary Committee's analysis to educational copying, or to library copying. Consequently, there is no justification for the Ad Hoc Committee's effort to revive the educational exemption. Moreover, even if it be assumed that Commissioner Davis' opinion somehow changed the doctrine of fair use as it thus applied to educational copying, that would at most call for an amendment to restore fair use to the contours the Judiciary Committee thought it had. But that is not what the Ad Hoc Committee is asking for-as we noted, it seeks an exemption that would permit educational copying which far exceeds the boundaries of fair use indicated by the analysis of the House Judiciary Committee.

THE "PHILOSOPHICAL" ARGUMENTS

It has become customary for the Ad Hoc Committee to accompany its demands for new limitations on authors' rights with an assortment of "philosophical" arguments-e.g. attacks on the copyright system, suggestions that authors are anti-trust monopolists, and other contentions, including a claim that copyright protection infringes the First Amendment rights of teachers and students. We do not know if the Ad Hoc Committee intends to regale the Subcommittee with this assortment of invalid contentions. Anticipating that it will, we briefly recapitulate our responses, and respectfully refer to our previous testimony for a fuller discussion of these points. Moreover, if the Subcommittee wishes a fuller response to any such contentions which the Ad Hoc Committee may make, we will be pleased to supply it.

These are some of the contentions which have been made by various members of the Ad Hoc Committee, in Copyright Bill hearings and in the Williams & Wilkins case, and summaries of our replies:

(i) Ad Hoc members argue that copyright is a "monopoly" in the anti-trust sense. But an author's copyright does not give him the power to restrain or monopolize the business of book publishing. Copyright is a "monopoly" only in the innocuous sense that all property is a collection of rights granted by law. (ii) Ad Hoc members argue that exemptions are justified because a copyright is not property, but "only" rights granted by statute. But all property consists of rights granted by the State, through legislation (e.g. land grant acts) or court decisions. At common law the author's work is his absolute, private property. (iii) Ad Hoc members argue that copyright is only a "discretionary" grant because Art. I, Sec. 8 says "Congress shall have the power . . ." But the phrase precedes the enumeration of all powers, e.g. to tax, raise armies, borrow money, regulate. The authors of the Constitution did not consider the exercise of these powers, including enactment of copyright laws, as "merely discretionary."

(iv) Ad Hoc members argue that uncompensated library and educational copying must be permitted because they promote the progress of science and art. But the economic philosophy underlying the copyright clause, according to the Supreme Court, was to grant enforceable rights to authors and publishers to encourage individual effort by personal gain; that the independent, entrepreneurial system of creation and dissemination best served the public interest in promoting science and art.

(v) Ad Hoc Committee members argue that exemptions must be granted because library and educational copying is "non-profit." But as the House Judiciary Committee said, "the educational groups are mistaken in their argument that a for profit' limitation is applicable to educational copying under the present law." (vi) Ad Hoc members argue that any copyright limitation on uncompensated library or educational copying restrains "freedom" to read under the First Amendment. But the First Amendment "was fashioned to assure unfettered interchange of ideas (376 U.S. 269) and it is axiomatic that an author's copyright does not prevent anyone from discussing or repeating his ideas (366 F. 2d 303). The Supreme Court has never interpreted "freedom" in the First Amendment to mean "gratis" or "free of charge"; and it has frequently emphasized there is no conflict between publication for profit and the First Amendment.

It is indeed strange that the National Education Association should argue, as it did in Williams & Wilkins, that requiring compensation to copyright owners, for library copying that exceeds fair use, violates the First Amendment freedom to read. NEA teachers insist on their right to be adequately compensated for making published materials available to students, and for other teaching services. To obtain what they consider adequate compensation, teachers-by the thousands each year-deny students access to books and other copyrighted materials for prolonged periods of time; their strikes close down schools, school libraries and classrooms. Ironically teachers are thus able to deny students access to copyrighted materials by grace of federal legislation-the exemption of the Clayton Act makes it possible for large groups of teachers to engage in boycotts (strikes) that would otherwise violate Sec. 1 of the Sherman Act; and for these large groups of teachers to combine and fix the prices for their services, which also would otherwise violate the Sherman Act. By contrast, copyright owners do not seek to close down schools or libraries, and do not seek to prevent schools and libraries from making reprints of copyrighted articles; copyright owners simply ask that reasonable compensation be paid them when library or educational copying exceeds the boundaries of fair use.

The Authors League thanks the Subcommittee for this opportunity to present its views on the proposed Educational Copying Exemption.

Senator MCCLELLAN. Senator Burdick will be here in a few minutes. I have to go now. It is almost 4 o'clock.

[A brief recess was taken.]

Senator BURDICK [presiding]. Call the next witness.

Mr. BRENNAN. Mr. Chairman, the next witnesses appear on behalf of the Association of American Publishers, Inc.

Mr. Sackett, would you identify yourself and your associates for the record?

STATEMENT OF ROSS SACKETT, ON BEHALF OF THE ASSOCIATION OF AMERICAN PUBLISHERS; ACCOMPANIED BY W. BRADFORD WILEY, CHAIRMAN OF THE ASSOCIATION'S COPYRIGHTS COMMITTEE, AND CHARLES LIEB, COUNSEL

Mr. SACKETT. I am Ross Sackett, president of the Encyclopædia Britannica Education Corp., and am appearing here today on behalf of the Association of American Publishers, Inc., of which I am currently the chairman.

I am accompanied on my left by Brad Wiley, chairman of the association's copyright committee and on my left by Charles Lieb, our copyright counsel.

The association is a trade association organized under the laws of New York State and is composed of publishers of general books, textbooks, and educational materials. Its more than 260 members, which include many university presses, and religious book publishers, pub

lish in the aggregate the vast majority of all general, educational, and religious books and materials produced in the United States.

In the few minutes available to me I would like to summarize our objections to the educational exemption proposed by the National Education Association Ad Hoc Committee on Copyright Law Revision. With your permission we will file a full statement for the record on or before August 10.

Senator BURDICK. Without objection, it will be received.

Senator BURDICK. Proceed.

Mr. SACKETT. In our view, the proposal for an educational exemption is unwarranted and should be rejected for an number of reasons, among which are the following:

One. The exemption is unnecessary and redundant insofar as the classroom teacher is concerned. There is no evidence in our opinion of any unmet real needs of the teacher which are not amply provided for under the fair use doctrine. In this connection it is important that you know that we have on many occasions offered to cooperate with the ad hoc committee to establish guidelines for the use of the classroom teacher which we are confident would eliminate much of the existing uncertainty about what he may copy. Neither the NEA nor the ad hoc committee has been willing to cooperate with us in such an effort but we remain hopeful that they will do so.

Two. To the extent that the proposed educational exemption would permit educators to copy educational and research materials without paying for its use it would, because of its confiscatory effect upon publishers, retard and ultimately perhaps choke off the creation of further material.

Three. The exemption is so sweeping, so imprecise, and so overlapping of other provisions of the revision bill that its adoption would destroy the series of compromises which are delicately balanced in the bill as presently drafted. In other words, to give serious consideration at this late date to the proposed educational exemption would require at the very least a reexamination of the fair use provisions of section 107, the library reproduction provisions of section 108, the classroom teaching provisions of section 110, and of other sections of S. 1361 as well.

Four. In addition to the exemption requested for the single and multiple copying of literary, pictorial, and graphic works, the ad hoc committee proposal would permit the free and unrestricted input of copyrighted works into computer systems, the retrieval of which would be subject to "rules otherwise applicable under the law." What the ad hoc committee has in mind, obviously, is that input of works in copyright should be free (an encyclopedia or reference work for example) and that bit-by-bit retrieval should be permitted, without payment, under the claim of fair use. Also that input should be free so that internal computer manipulation of the copyrighted material would also be free.

The proposal is destructive, illogical, and unnecessary. If adopted it would bypass or undercut the function assigned to the national commission under title II to study the reproduction and use of copyrighted works in conjunction with computer systems, and the provisions of section 117 which would leave existing law as it is until action is taken on the recommendations of the national commission.

The ad hoc committee's present request for an educational exemption is an attempt to revive a proposal which was considered a number of years ago by the House Committee on the Judiciary, was flatly rejected by the committee, and was then abandoned by the ad hoc committee in the hearings before this subcommittee.

In its report the House committee said that the doctrine of fair use, as properly applied, is broad enough to permit reasonable educational use. It suggested however that teacher and publisher should join together to establish ground rules for mutually acceptable fair use practices, and that they should work out means by which permissions for uses beyond fair use can be obtained "easily, quickly, and at reasonable fees."

We share the views expressed by the House committee; we urge that they be adopted by this subcommittee and that the proposed educational exemption be rejected out of hand.

For our part, we renew our efforts to meet with the ad hoc committee to establish ground rules for fair use and to establish workable arrangements for the clearance of permissions for uses beyond fair

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Mr. BRENNAN. Mrs. Bella L. Linden, copyright counsel, on behalf of Harcourt Brace Jovanovich, Inc., and Macmillan, Inc.

STATEMENT OF AMBASSADOR KENNETH B. KEATING, HARCOURT BRACE JOVANOVICH, INC., AND MACMILLAN, INC.

(NOTE: Following testimony was given during the morning session.)

Mr. KEATING. I would like to turn now to the general educational exemption.

Senator MCCLELLAN. This would appear appropriate for our afternoon session. I would like to let it appear in the record when we are hearing testimony on that. If you want to insert it in the record now, or read it.

Mr. KEATING. The general educational exemption?

Senator MCCLELLAN. Yes.

Mr. KEATING. But you would like to have it in the record later? Senator MCCLELLAN. In the afternoon, so it would have continuity with the other testimony.

Mr. KEATING. Could I be heard on it now?

Senator MCCLELLAN. Yes, you may proceed.

Mr. KEATING. Section 110 of both the House act and S. 1361 specifically exempts certain educational or instructional performances and displays from the rights of copyright proprietors. These provisions are in addition to the generally applicable doctrine of fair use set forth in section 107. We are not here to oppose them.

We understand, however, that certain interests are urging the adop tion of a broad based "educational" exemption transcending the limits of sections 107 and 110 and such an extension we do object to.

Certainly, the educational needs of our country are of the highest priority. We must not, however, ignore that such needs are served.

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by a publishing industry whose continued vitality depends upon the very incentives of private ownership attacked by advocates of educational exemptions. The textbooks, audiovisual materials, reference works, films, and so forth, to be subjected to free use under such exemptions emanate from publishers who make very substantial investments in research, design, packaging, consultation, and training, as well as in manufacture and marketing. For such investments to continue, the economic incentives envisaged by our constitutional premise of copyright must be maintained.

Of course, education is in the public interest-but this interest is served in our system by private, commercial businesses which require a profit to survive. The erosion of the rights and incentives accorded by copyright will endanger rather than serve the educational needs of our country.

May I repeat a short statement that I made before the House subcommittee in 1955: Will . . . publishers continue publishing if their markets are diluted, eroded, and eventually, the profit motive and incentive completely destroyed. To pose this question is to answer it. I have been a teacher myself. I know of no higher calling and no more dedicated group of our citizenry than those who instruct and guide the youth of our land. I have been in the nature of a crusader at all levels of government to provide higher pay and more benefits for teachers. Just as I feel that they should be amply rewarded for their hard work and dedicated service, so it seems to me should those who author and prepare the material which the teachers use in their work.

Our concern with the erosive and preemptive effect of educational exemptions is not limited to the domestic scene. It is particularly relevant to the recent accession of the United States to the 1971 Paris Revision of the Universal Copyright Convention. This revised treaty grants broad prerogatives to an undefined class of developing countries at least 80 countries by latest count-to engage in unauthorized reproduction and translation of works under compulsory licenses. Although expressed as "compulsory licenses," the standard of compensation established in the treaty and our international experience leave no doubt but that the remuneration to be expected under these provisions will be negligible. The end result is that the U.S. Government, in effect, has acquiesced in advance to alien expropriation of rights of a class of American citizens-U.S. authors and publishers. These compulsory licenses are, at least in theory, circumscribed by references to educational purposes. For the analysis it provides concerning the effects of educational exemptions on authorship and publishing, I ask that this subcommittee receive Mrs. Linden's testimony before the Senate Foreign Relations Committee concerning ratification on the revised Universal Copyright Convention as exhibit B to my statement.

Senator MCCLELLAN. It may be received and made exhibit B to the witness' statement.

Mr. KEATING. During the hearings before the Committee on Foreign Relations, the publishers I represent took the position that if the revised convention be ratified by the United States, Congress adopt legislation to assure U.S. authors and publishers compensation for the economic injuries they would suffer upon implementation of

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