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And although the House of Representatives, the Supreme Court, and the Register of Copyrights have each supported the primacy of the public interest over that of the author if a conflict should arise, copyrights are nevertheless perceived by many as miniature monopolies.

The United States operates today with a competitive, free enterprise economic system, but not with a competitive, free enterprise political system. It is for this reason, perhaps, that the issues surrounding copyright law revision have become so complex. The central question underlying such revision is-how can the public welfare be accommodated within the free enterprise economic system? Is it possible for the two systems to be reconciled?

AECT believes that some sections of the proposed bill (S. 1361) do attempt to meet the needs of both the public and free enterprise system. This Subcommittee has worked hard to prepare a bill that reflects the input of diverse interest groups. The posture of this Subcommittee has helped these groups to become more aware of and more responsive to each other's needs. Real progress has been made toward agreement upon Section 107 of the bill and its legislative history. This progress was interrupted, however, by the original opinion handed down by U.S. Court of Claims Commissioner Davis in the case of Williams and Wilkins v. U.S.-a development which was extremely alarming to the educational community. The opinion stated that the National Library of Medicine and the National Institutes of Health had committed infringements of the copyright law. If this opinion was later upheld by the full court, the doctrine of "fair use" would be substantially weakened as far as libraries and schools were concerned. Time-honored practices such as interlibrary loans would be halted immediately, and all educational uses of copyrighted materials would be sharply curtailed. The dissemination of knowledge would be regulated by the interests of a few, rather than the interest of the public.

Thus, in an effort to secure more reliable protection for the uses of copyrighted materials than "fair use" was able to provide, a proposal for an educational exemption was drafted by the Ad Hoc Committee of Educational Organizations and Institutions for Copyright Law Revision.

AECT is ae much concerned as any other educator group with (a) the potential impact of the final decision of Williams and Wilkins on American educational practices, and (b) insuring that educators are able to have reasonable access to print and nonprint materials for instructional purposes. However, AECT has developed an alternative position to an educational exemption which we believe will provide sufficient protection to educators while at the same time be acceptable to the materials producers.

The full text of the AECT statement follows. Particular attention should be paid to the third paragraph, which deals with the issue of fair use.

COPYRIGHT LAW REVISION: A POSITION PAPER, MAY 1973

The members of the Association for Educational Communications and Technology (AECT) believe that technology is an integral part of the teaching-learning process and helps to maximize the outcomes of interaction between teacher and pupil.

Regulations governing United States Copyright were originally developed to promote the public welfare and encourage authorship by giving authors certain controls over their work. It follows that revisions in Title 17 of the United States Code (Copyrights) should maintain the balance between providing for the compensation of authors and insuring that information remains available to the public. Some of the revisions proposed in S. 1361 lose sight of this balance between user and producer.

AECT endorses the criteria to be used in the determination of "fair use" as contained in Section 107 of the proposed bill:

Section 107.-Limitations on exclusive rights: Fair use . . . the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by [Section 106], for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

3 House Report No. 83, 90th Congress, 1st Sess., on H.R. 2512, March 8, 1967, p. 29. 4 U.S. v. Paramount Pictures, Inc., 334 U.S. 331, 158 (1948).

5 Copyright Law Revision, Report of the Register of Copyrights, House Committee Print, 87th Congress, 1st Sess. (July, 1961), p. 27.

(1) the purpose and character of the use;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Further, we endorse the concepts regarding the intent of these criteria as expanded in the legislative history of the bill as it existed prior to and without regard to the original opinion in the case of Williams and Wilkins v. U.S., for that opinion substantially narrows the scope of "fair use" and irreparably weakens that doctrine.

However, we propose that the concept of "fair use" should apply equally to the classroom teacher and media professional-including specialists in audiovisual and library resources. Media personnel are becoming increasingly important members of educational planning teams and must have the assurance that they may assist classroom teachers in the selection of daily instructional materials as well as with long range curriculum development. Classroom teachers do not always operate "individually and at [their] own volition." The fact that the media professional makes use of advance planning and has knowledge aforethought of the materials he prepares for the teacher should not invalidate the application of the "fair use" principle.

Concerning the use of copyrighted works in conjunction with television, AECT proposes that "fair use," as it has been outlined above, should apply to educational/instructional broadcast or closed-circuit transmission in a non-profit educational institution, but not to commercial broadcasting.

Once the doctrine of "fair use" has been established in the revised law, negotiations should be conducted between the proprietor and user prior to any use of copyrighted materials that goes beyond that doctrine. We believe that the enactment of the "fair use" concept into law prior to negotiations will guard against the erosion of that concept. Generally, a reasonable fee should be paid for uses that go beyond "fair use," but such fee arrangement should not delay or impede the use of the materials. Producers are urged to give free access (no-cost contracts) whenever possible.

We agree with the Ad Hoc Committee of Educational Organizations and Institutions on Copyright Law Revision that duration of copyright should provide for an initial period of twenty-eight years, followed by a renewal period of forty-eight years, whereas the proposed bill sets duration at the "life of the author plus fifty years." It seems reasonable that provision should be made to permit those materials which the copyright holder has no interest in protecting after the initial period to pass into the public domain.

Regarding the input of copyrighted materials into computers or other storage devices by non-profit educational institutions, we agree with the Ad Hoc Committee that the bill should clearly state that until the proposed National Commission on New Technological Uses of Copyrighted Works has completed its study, such input should not be considered infringement. The proposed bill states only that ". . . [Section 117] does not afford to the owner of copyright in a work any greater or lesser rights with respect to the use of the work in conjunction with any similar device, machine, or process . . ."

A new copyright law that both users and producers can view as equitable depends upon the mutual understanding of each other's needs and the ability to effectively work out the differences. We will participate in the continuing dialogue with the Educational Media Producers Council and similar interest groups to establish mutually acceptable guidelines regarding the boundaries of "fair use," and reasonable fees to be paid for uses beyond "fair use." This dialogue will be especially important in the area of storage, retrieval, and/or transmission of materials during the time period between the enactment of the new law and the issuance of the report of the proposed National Commission on New Technological Uses of Copyrighted Works.

We feel that the above modifications of S. 1361 are needed to insure that the revised law assists rather than hinders teachers and media specialists in their work.

Briefly, the AECT position supports the legislative history relating to "fair use" developed prior to the original opinion in Williams and Wilkins v. U.S. It is our perception that until that opinion was handed down, educators and materials producers were progressing toward the development of mutually acceptable guidelines regarding the boundaries of "fair use." Our position serves to erase

the dampening effect of the Williams and Wilkins opinion upon efforts at copyright law revision and negotiations between concerned parties.

A review of the complete AECT statement makes apparent our agreement with the position of the Ad Hoc Committee on many aspects of copyright law revision. AECT has been an active member of this Committee for many years, and has both influenced and been influenced by its program and policies. The work of this group has been invaluable in the attempt to secure a new law that is equitable to education. And although the AECT position differs from that of the Ad Hoc Committee on the need for a general educational exemption, we continue to remain a member of that group. AECT perceives its position and that of the Ad Hoc Committee as variations on a single theme-how to offset the distinct disadvantages dealt to education by the Williams and Wilkins opinion. The AECT position has been well received by both educators and materials producers. Representatives of both of these communities viewed the position as a realistic step toward resolving the issue of defining the limits of "fair use." The statement is viewed by members of each group as offering protection to educators that is not offensive to the producers.

The incorporation of the AECT "pre-Williams and Wilkins" position into S. 1361 and its legislative history is essential to the development of a new copyright law that is equitable to educators and materials producers alike.

We appreciate this opportunity to present our position to the Subcommittee and trust that it will be given careful consideration as the proposed bill and Subcommittee report are completed.

Hon. JOHN J. MCCLELLAN,

ASSOCIATION OF AMERICAN MEDICAL COLLEGES,

Washington, D.C., July 30, 1973.

Chairman, Subcommittee on Patents, Trademarks and Copyrights, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: The Association of American Medical Colleges notes with interest that the Subcommittee on Patents, Trademarks, and Copyrights is holding hearings on S. 1361, a bill for the general revision of the copyright law. Because of its interest in obtaining a maximum flow of scientific information through an efficient and up-to-date biomedical communications network, the Association would like to comment on section 108 of the bill, concerning library photocopying. We request that this letter be included as part of the record of the hearings.

The Association, now in its 97th year, represents the whole complex of persons and institutions charged with the undergraduate and graduate education physicians. It serves as a national spokesman for all of the 114 operational U.S. medical schools and their students, 400 of the major teaching hospitals, and 51 learned academic societies whose members are engaged in medical education and research. The Association and its membership thus have a deep and direct involvement in the matters of concern to the Subcommittee.

The Association is familiar with the problem of photocopying of research materials by libraries. We commend the Subcommittee in its efforts to bring up to date the current copyright legislation. We would like to point out that the present controversy over library photocopying does not truly confront the real problems of disseminating the findings of biomedical research.

There are currently three major methods by which biomedical journals help meet their production costs:

(1) First, the journals may assess researchers a page charge for publishing research findings. These fees may run into hundreds of dollars per page. This practice is becoming more common. In many cases, the federal government is subsidizing the publication of the journal, by paying for charges from research grants or contracts.

(2) A second method of meeting production costs is to charge one subscription rate to individual subscribers and a higher rate to institutions or libraries. This additional cost presumably covers loss of income to publishers by multiple use of journals. In many cases, the income from subscriptions is at least sufficient to cover production costs. Other sources of income help meet editorial and other costs.

(3) A third method of meeting production costs is the use of advertising. While certain advertising information is useful, it is not always appropriate for professional journals to be supported by a large amount of advertising.

These three methods are, of course, often combined to help the publication meet its production costs. In some instances, the result will be profit, while in others (depending on the nature of the research, the financing mechanisms, and the materials,) the publication will do little more than meet its costs.

Several solutions have been offered to permit libraries to photocopy materials without endangering the publishers' income or copyright. None of these confront the basic problem. In order to assure the unhindered flow of biomedical knowledge and information, while still achieving the most rational and responsible distribution of its costs, the Association recommends that a study be commissioned to investigate the complex set of factors involved in the transmission of biomedical information. Included in its considerations would be the determination of the number and types of biomedical journals necessary to maintain an adequate flow of the growing volume of scientific information; how the costs of these publications should be borne by the public, the researchers, the readers, and the institutions; and finally, the most appropriate role of the federal government in this area.

Until these issues are dealt with, we will continue to have an incomplete resolution of the problems of biomedical publications and an adequate dissemination of information to investigators and to a broader community of professionals who can apply the results of research to the improvement of health care.

Mr. Chairman, the Association would like to thank you for this opportunity to express its views. I and the staff of the Association stand ready to provide whatever assistance you might desire in this matter.

Sincerely,

JOHN A. D. COOPER, M.D.

STATEMENT WITH RESPECT TO THE PROPOSED "GENERAL EDUCATIONAL EXEMPTION" AMENDMENT TO THE COPYRIGHT REVISION BILL (S. 1361), SUBMITTED TO THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY BY THE ASSOCIATION OF AMERICAN PUBLISHERS The present statement is intended to extend and amplify the necessarily brief oral statement presented to the Subcommittee by Ross Sackett, President of Encyclopaedia Britannica Educational Corporation on behalf of the Association of American Publishers, of which Mr. Sackett is Chairman of the Board of Directors, in opposition to the proposed amendment to the Copyright Revision Bill (S. 1361) granting a general educational exemption.

The Association of American Publishers in the general association of book publishers in the United States, including textbooks and other educational materials. Its more than 260 members, which include many university presses and non-profit religious book publishers, produce the vast majority of all general, educational and religious books and related materials published in the United States.

The Copyright Revision Bill as it stands (S. 1361) provides many limitations on the rights of copyright proprietors that are intended to facilitate the educational use of copyrighted materials. Section 107 for the first time would embody in statute law the judicial doctrine of fair use. It would explicitly define certain uses of copyrighted works in teaching as being fair use if it meets the other specified criteria. Section 108 in certain circumstances would permit copying by a library, including a school or college library, even though it may exceed fair use. Section 108 also exempts school and college libraries from liability for infringements committed on coin-operated copying machines on their premises, provided an appropriate warning has been placed on the machines. Section 110 (a) permits the non-profit performance or display of a copyrighted work in the classroom. Section 110 (b) permits the broadcast of a nondramatic work in organized instructional programs. Section 112(b) entitles a school to produce and for five years make unlimited use of tapes or other records of live performances of works it broadcasts. Section 504 (c) (2) relieves a teacher of liability for statutory damages if he commits an infringement and if he believed on reasonable grounds that the infringing use was a fair use under Section 107 of the act.

These numerous special exemptions for educators reflect the concern that the Judiciary Committees of both Houses and the Copyright Office have consistently shown through the long consideration of copyright revision that no unreasonable impediments should be placed in the way of educational use of copyrighted materials. Publishers share that concern. For that reason, almost all of the special exemptions now in the bill have been not only accepted but supported by pub

lishers. Educators and educational institutions are the sole market for the educational materials produced by publishers, and are by far the most important customers of the industry. The producers and the users of educational materials are hence partners, not opponents. They share a common purpose in achieving the maximum and the most efficient use of educational materials in the actual teaching process.

The provisions of the bill as they affect educators were quite satisfactory to the Ad Hoc Committee when it testified before the Senate Judiciary Subcommittee. (See the testimony of Harry Rosenfield on S. 597, March 1967, Part 1, pp. 187-189.) Now, however the Ad Hoc Committee has revived a proposal for a sweeping exemption.

This exemption would allow anyone to make an unlimited number of copies in any form for the purposes of "noncommercial teaching scholarship or research" of "brief excerpts from literary, pictorial, and graphic works which are not substantial in length in proportion to their source" and also of the "whole of short literary, pictorial and graphic works."

It would also allow an entire copyrighted work to be stored in a computer or other automatic system for storing, processing, retrieving or transferring information, leaving the proprietor with only such control as he can achieve over the retrieval of the information.

Many, perhaps most, of the uses described by the representatives of the Ad Hoc Committee as a justification for this proposed exemption would in any case be lawful under section 107 or other provisions of the bill, particularly the reproduction of brief excerpts in ways that do not reduce the market for the original. Insofar as the proposed general educational exemption relates to uses that would be legal under 107, it is meaningless and unnecessary. The only real purpose sought by the amendment, and indeed the only purpose it can serve, is to legalize uses that a court would otherwise hold to be unfair because they are excessive in quantity or reduce the market for the original work or otherwise exceed "fair use." If no excessive uses or competitive uses are planned, the proposed amendment is simply pointless.

What are some of the uses that would be authorized by the proposed general educational exemption that would be likely to be held to exceed fair use today or under Section 107? The most dangerous of those probably relate to the freedom to make and distribute an unlimited number of copies of entire "short" copyrighted works without the proprietor's permission. The only limitation on this freedom would be that the copying must not be for profit, that it must be for "noncommercial teaching, scholarship, and research," that the copies of the separate whole works must not be compiled, as in an anthology, and that the materials copied must not be "consumable."

A "short" whole work is presumably an individual short story, essay, or poem; a map; a transparency; a globe; a wall chart; a slide or photograph; the score of a short music composition. It is difficult to conceive works that are shorter and yet are whole, separately copyrightable "works."

Under the proposed language a city school system, or a state department of education, or the United States Office of Education could, on a nonprofit basis, produce a dozen, or a hundred, or a thousand copies of a slide or of all of the slides a publisher has produced and make them available free, or at the bare reproduction cost, to schools in their jurisdiction for noncommercial teaching activities. Time and time again, a teacher could make multiple copies of a poem or a short story, and hand it out to members of a class or group of classes. A school could reproduce the words and music of a "short" copyrighted song for all the members of a school orchestra and choir. A school system could reproduce for every classroom a copyrighted wall chart or map; the Department of Defense could reproduce a hundred thousand copies of a short copyrighted work to use in training courses. And so through dozens of similar situations in which the uses are clearly not "fair" but would apparently be legal under the proposed language. We are quite prepared to believe that the sponsors of the general educational exemption had no such sweeping uses in mind; but if that be true, they should not seek legislation that would legalize such abuses.

As we understand it, the sponsors of the general educational exemption assert that they do not wish to cover under the exemption uses that would injure copyright proprietors or that would go beyond what are normal and professionally approved classroom activities now. Their declared purpose is apparently not so much to enlarge the area in which copyrighted works may be used without the owner's permission as to define more clearly the present boundaries of that area. They would contend that the uses they envision as actually carried on under the

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