proposed exemption would in almost every case be "fair" uses, but that teachers cannot safely rely on the doctrine of "fair use" because of its vagueness. Teachers may expose themselves to legal peril, the advocates of the exemption say, or more likely they may be deterred from making proper and desirable uses of copyrighted material because they do not know whether or not they are "fair uses" within the meaning of the law. Admittedly the concept of "fair use", like the concept of "negligence" or of "prudence" in the common law, is one that by its very nature is not susceptible of precise and unvarying definition. But the proposed amendment does not cure this vagueness. It compounds it by introducing a number of terms new to copyright law and uninterpreted by the courts: How short is a "short" work? Is a 15-page short story "short"? Ten pages? Five pages? Does it depend on the size of the page? What is "nonprofit" use? Is a professor doing research which he hopes to embody in a textbook from which he hopes to receive substantial royalties engaged in "non profit" research? If he is working on a biography from which he hopes to receive modest royalties? If he is doing an article for a learned journal for which he will receive no payment but hopes for a promotion? Is the Department of Defense engaged in "non-profit" research when it puts the entire content of a highly technical set of copyrighted tables into a computer to use in designing the airfoil of a new plane? Is an aircraft manufacturer engaged in non-profit research when it does the same thing under a contract with the Department of Defense? The very essence of such legal concepts as "fair use" (or "negligence" or "prudence") is that they do avoid rigid a priori definitions and permit a judgment of fairness and equity to be made on the basis of the application of common sense and experience to the actual situation in each individual case. To introduce certainty is to introduce rigidity. Any effort to get away from the doctrine of "fair use" and define the area of permissible use in predetermined objective or numerical terms is simply unworkable. Any such inflexible rule, if it is narrow enough to eliminate truly abusive uses of material will eliminate along with them many wholly proper uses. If it is broad enough to include all the uses we all agree are proper, it will open the door to a host of improper uses. There is simply no substitute for the use of informed and impartial judgment in the application of general principles to specific cases. If the proposed general educational exemption is not intended to legalize sweeping uses of copyrighted material that are clearly beyond the bounds of fair use, and if it is not successful in clearly defining boundaries of use, what is the need for it? Indeed we believe the needs that have been alleged are hypothetical and illusory. The 1909 Copyright Act under which we now live contains none of the special concessions to education that appear in S. 1361 and that we for the most part support. It is much more restrictive than S. 1361 in its present form. Yet under the present more restrictive law, hundreds of thousands of teachers, scholars, and researchers daily make millions of uses of copyrighted material. No doubt many of those uses may exceed the boundaries of what we would all agree to be fair use. Yet the result when any such well-intentioned excessive use comes to the attention of the publisher is at most a statement of concern followed by discussion and the modification or abandonment of the objection to use or else an agreement that in the circumstance it is proper or, in some cases, a license to continue the use. What are the desirable educational practices that in actual fact go unused for fear of a vaguely defined copyright liability? We have evidence of any. There is simply no reason to believe that under the copyright law as it would be liberalized by S. 1361 without the proposed general educational exemption, as well as under the 1909 law, educators and publishers would not continue to go forward as they have in the past in an easy collaboration, resolving by discussion any occasional differences in the interpretation of fair use that may arise. But if it is difficult to see any need for or benefits from the proposed exemption, it is only too easy to see the difficulties it would bring to education as well as to authors and publishers: (1) It would legalize the potential large-scale competitive reproduction for noncommercial teaching use of a host of "small" whole copyrighted works. The limitation of this exemption to "noncommercial teaching" is no protection to the producers of such material, for "noncommercial teaching" is substantially the whole of the market for educational material. Such large-scale reproduction would not only injure authors, producers and publishers; by the lessening of the incentive to produce such works for the educational market, it would injure teachers, students, and the whole educational process as well. (2) By permitting the unlimited input of copyrighted material into computers and similar devices, it would effectively destroy the creator's control over his copyrighted property. The provision for copyright control over output from such a device is meaningless. It is obviously the assumption of the sponsors that the output from such a system will be of such brief excerpts as to be protected by fair use, thus eliminating copyright control at both ends. But even if the output is not protected under fair use, it is obviously unrealistic to apply copyright protection at that point. It is in the nature of the operation of a computer or similar system that one does not know what its output will be until it has in fact been pointed out. There is no way the prior permission of the copyright proprietor can be obtained. He is presented with a fait accompli. On the other hand it is perfectly feasible to get the permission of a copyright proprietor before the input of the material, and such permission can include the manipulation, processing, and output of the material as well. (3) By establishing a presumption that the kinds of uses authorized by the general educational exemptions are not “fair uses" that would be protected by Section 107, it would actually in many ways narrow the protection afforded educators. By departing from the flexible "fair use" concept and endeavoring to define specific exemptions, it establishes the presumption that uses not specifically exempted are infringements. This may work to the serious detriment of educators and education as new and unforeseen materials and uses are developed in the future, to which the doctrine of "fair use" could be applied, but which fall outside the specific exemptions this amendment would provide. (4) It would upset the balance of compromises carefully worked out in the past by the subcommittee. Its sweeping and imprecise language overlaps many other sections of the bill. To give serious consideration at this late date to the educational exemption would require the committee to reexamine at least the fair use provisions of Section 107, the library reproduction provisions of Section 108, and the classroom teaching provisions of Section 110. (5) The provision of the general education exemption are, of course, in complete contravention of Section 117 and of the intention of Title II of S. 1361. It was this subcommittee that concluded that the problems of computer use of copyrighted material were too complex to be acted on legislatively without further impartial expert examination. The subcommittee proposed, in Title II, the creation of a National Commission on New Technological Uses of Copyrighted Works to make a thorough study of this and related problems. Meanwhile, by Section 117 the subcommittee proposed that all rights with respect to computer and related uses be frozen precisely as they are under present law pending the report of the Commission. This was a statesmanlike proposal, completely accepted by all the various conflicting interests concerned including, at the time, the sponsors of the general educational exemption. Now, however, those sponsors have proposed to upset this entire understanding, abolish Section 117, and bypass the impartial study proposed in Title II, subverting the whole carefully constructed arrangement. There is a further major objection to this sort of specific exemption. We are living and working, in 1973, under the provisions of the Copyright Act of 1909. It is likely that any general copyright revision act this Congress will pass will remain the law of the land until far into the twenty-first century. It will need to be applied to meida of communication and forms of reproduction and use not now even conceived of, just as the 1909 Act has had to be applied to television, satellites, and computers. When the 1909 Act provided general principles and policies through its general definition of the rights of authors and through its silence on fair use, thus allowing the prior judicial doctrine to prevail, it has been possible for the courts in acting on individual cases and private parties by contractual arrangement to apply the principles of the Act to the new media without undue strain. It is the highly specific provisions of the 1909 Act attempting to go beyond principle and fix details, that have become anachronistic and unworkable-provisions like the manufacturing clause, the so-called "juke-box" amendment, the fixed 2¢ royalty for mechanical rights, etc. These detailed provisions have had totally unintended consequences in the face of new media and radically new circumstances. No one is wise enough in 1973 to devise the sort of specific and detailed provision in the general education exemption, intended to govern copyright for decades to come. What is needed, with respect to the concerns we are dealing with here, is a general definition of the exclusive rights of authors and their assignees, as in Section 106, and a general assertion, as in the present Section 107, that these exclusive rights shall not bar those fair and non-competitive uses of copyrighted works for socially desirable purposes that are covered by the broadly and flexibly conceived doctrine of fair use. Both now and as new media are introduced in the future, realistic applications of these general principles can and will be worked out. Denial of the unwarranted educational exemption will not "deprive" teachers of any "right" they may erroneously feel is possessed under existing law. "As shown by a Copyright Office study dated July 22, 1966, the educational groups are mistaken in their argument that a 'for profit' limitation is applicable to educational copying under the present law." (House Report No. 83, 90th Congress, March 8, 1967.) In its Report, the House Judiciary 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." (pp. 32-33) We share the views expressed by the House Judiciary 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 offer 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 use. STATEMENT OF THE ASSOCIATION OF RESEARCH LIBRARIES, ON THE AMENDMENT RECOMMENDED BY THE LIBRARY ASSOCIATIONS TO S. 1361, GENERAL REVISION OF COPYRIGHT LAW In order to clarify the proposed amendment and distinguish between it and the language of S. 1361 in its present form, it appears desirable to discuss the sections of the amendment and then to note the difference between these provisions and those of S. 1361. The initial paragraph of section d reads the same as section d in the printed Bill except that the phrase "but only under the following conditions" is substituted for the word "if" at the end of the paragraph. Section (1) under d of the proposed amendment refers only to an article or other contribution to a copyrighted collection or periodical issue or to a similar small part of a work. The purpose of this amendment is to enable libraries to continue to supply a photocopy of a small part of a work without being required to do any checking to see whether the issue of the periodical or the book in which the item appears is available for sale. This is particularly important with respect to articles in periodicals, since there is no easy way to determine whether or not a particular issue of a periodical is still available from the publisher or dealer. Even if it should be determined that an issue can be ordered from the publisher, the time required to place the order and receive the issue results in a delay which will probably not meet the need of the user. Section (2) refers to an "entire work," that is, a book or a major part of a book. In this case the amendment would require that the library determine whether or not the book is still in print before providing a photocopy of it. This can be done with relative ease by checking Books In Print. The distinction may be put in this way: section (1) refers to a periodical article or short excerpt of which a photocopy may be provided without any checking. Section (2) refers to an entire book or a major part of it and in this case a check to see whether the book is still in print is required. Section (2) of the proposed amendment is similar to section 108 (d) (1) in the printed Bill, S. 1361. Section (1) of the proposed amendment is a specific exemption for a periodical article or short excerpt. In this respect, it is an addiction to S. 1361. "REASONABLE INVESTIGATION" The phrase "reasonable investigation" is used in the amendment which we are recommending but only in section 108 (d) (2). This section refers to books, not to periodical articles. A reasonable investigation of the availability through trade sources of a book can easily be made by checking the annual catalog Books In Print. There is no comparable catalog listing all periodical articles. 20-344-73-37 Section 108 (d) (1) of S. 1361 requires the reader to "establish to the satisfaction of the library or archives that an unused copy can not be obtained at a normal price from commonly known trade sources in the United States including authorized reproducing_services." This requirement applies both to periodical articles and to books. It can be complied with as regards books through the use of Books In Print. There is no feasible way of making a comparable check of the availability of periodicals. Effects of Library Photocopying on Copyright Proprietors. Those who oppose the proposed library photocopying amendment take the position that library photocopying eliminates sales and reduces the number of subscriptions to periodicals. The most extreme charge is that library photocopying will result in destroying scientific and technical communication by making it economically impossible to continue the publication of periodicals and books. The importance of the partnership of libraries with the publishing industry cannot be over-emphasized. The economic viability of this industry is indeed a crucial concern to all involved in the dissemination of information. It is difficult, however, to get precise information regarding the effects of photocopying on publication sales. A most important consideration here is that coin-operated photocopying machines are available to virtually everyone. Thus, a significant and ever-increasing amount of photocopying is unsupervised. In regard to supervised library photocopying, several studies have been made in the past 12 to 15 years and it is the conclusion of these studies that no evidence of significant economic damage caused by library photocopying could be identified. While the general experience is that the number of subscriptions has increased, there have been exceptions to this but it is by no means clear that the decline in the number of subscriptions have increased very substantially in this period and library budgets, particularly in recent years, have been reduced; thus the canceling of subscriptions cannot be fairly ascribed to library photocopying only. If it were possible to demonstrate clearly that library photocopying had severely damaged copyright proprietors, it could be expected that publishers would produce this evidence. Since they have not done so, it would appear that the evidence is not persuasive. In the absence of conclusive evidence, it would be most unfortunate if requirements were established for the payment of royalties which would involve "spending dimes to collect pennies." LIBRARY ASSOCIATIONS SUPPORT THE AMENDMENT RECOMMENDED The amendment in the form in which it has been recommended to the Subcommittee represents the views and recommendations of the American Library Association, the Association of Research Libraries, and the Medical Library Association. These Associations recommend this amendment on behalf of their readers in order that they may be able to maintain the photocopying services now provided by most libraries of all types. In the aggregate the number of readers who use the libraries represented by these Associations runs to many millions. It is on behalf of these readers that the Library Associations urge the Subcommittee to adopt the amendment which they have recommended. The statement was made in the course of the hearings that machine-monitoring of materials copied was feasible. However, at the present time there is no practical way that a photocopy machine could differentiate existing copyrighted from uncopyrighted materials. STEPHEN A. MCCARTHY, August 9, 1973. HOUSE OF REPRESENTATIVES, Hon. JOHN L. MCCLELLAN, Washington, D.C. DEAR SENATOR MCCLELLAN: It is my understanding that the Senate Subcommittee on Patents, Trademarks, and Copyrights has been considering Section III of S. 1361 which sets a copyright fee schedule for the cable television industry. I further understand that in 1971 a consensus agreement was formulated by representatives of the copyright holders, broadcasters, and cable system operators and that in this agreement is a provision calling for arbitration if rates cannot be agreed upon. It has always been my belief that Congress should not attempt to set rates in transactions between private individuals or groups and I believe this to be true in regard to copyright fees. The parties that operate with the fees should be allowed to determine them, and for this reason I urge you to reconsider Section III and make provisions instead, for a means of arbitration to determine the fees. With kind regards, I am, Sincerely yours, ALPHONZO BELL, STATEMENT OF PROF. ALBERT P. BLAUSTEIN, RUTGERS UNIVERSITY SCHOOL OF LAW Scholars should be paid for their scholarship. This precept is followed in our treatment of the scholars who, as teachers, purvey scholarship and who, as librarians, organize and process scholarship. It should be nonetheless true for the creators of the scholarship which is being purveyed, organized and processed. On this there seems to be agreement. Those who pursue scholarship are in the vanguard in the struggle for higher salaries for teachers and librarians. They are the most prolific purchasers of the ever-more-costly source of scholarship known as books. And so it goes. But when this principle is translated into payment for scholarship whose access is via the photocopy machine, there is a strange objection to payment. Payment for scholarship, that is. There is, on the other hand, no objection to indirect payment for that scholarship in the form of machine purchase and rental, the purchase of accessories such as chemicals, paper and repair services and, in many cases, wages for those who operate the machines. The time has come to face this problem; it can be delayed no longer. The intellectual property of others is being used via reprography in a quantity which must receive our attention. PROPOSAL Ten per cent of the net cost of reprography should go to the copyright proprietors of the intellectual property being photocopied. I speak as a university professor, a lawyer, an author, a former librarian, and as one who teaches in the field of intellectual property. In each of these roles I have made use of the scholarship of others. Frequently their material has been made available to me through reprography. In performing the functions of librarian, I have made the scholarship of others available to the researcher and educator; and I know the importance of satisfying the research needs of others as well as myself. As an author, I have seen many of my articles, books, and parts of books reprinted in other publications for compensation and photocopied by researchers and educators without compensation. And since I teach the Intellectual Property course at Rutgers-Camden, I have gained familiarity with the background as well as the law in this particular field. In preparing this statement, an examination has been made of the many proposals which previously have been submitted. And I must acknowledge at the outset that these have, in some measure, guided and influenced the proposal here. However, most of them have been set aside as unworkable because of their complexity and because of their high cost of administration. (This is also a time to express thanks for the research assistance of one of my students, Mark Gertel, who assisted me in preparing this statement.) In setting forth this basic proposal, the procedural problem is divided into three parts: (1) How shall royalty payments be collected? (2) Who should administer the royalties collected? and (3) How should the royalties be distributed? IMPOSING ROYALTY CHARGES Royalties for the copyright proprietors of material being photocopied should come from a flat fee tax. This would be in the form of a ten percent surcharge on the selling price or the regular monthly rental of all photocopy machines. The advantages of such a plan are as follows: A. While the total royalties will eventually be substantial, the individual sums paid by the user are de minimus. The overall rental charge on photocopying today is under four cents per page. (And the base rates are even lower in the rentals to government and educational users.) |