his work dependent on the circumstances of the manufacture of copies of it. It has been a part of our law in various forms for about 70 years.

In his earlier report the Register of Copyrights recommended the outright repeal of this clause and we agreed in principle but indicated that we wanted to be satisfied that such a repeal would not work serious injury on the American book manufacturing industry on which we are entirely dependent for the manufacture of the books that we publish.

Subsequent study has in fact satisfied us that even the total repeal of this clause will work no serious or perhaps even no perceptible injury on the book manufacturing industry and might in many ways in fact benefit that industry. We remain convinced in principle that protective legislation of this sort does not really belong in the copyright law, and an author's rights to his own work ought not to be subordinated to the other economic interests involved.

But we do recognize that the manufacturing clause has a traditional position in the American copyright law, that there are deep apprehenions felt by the book manufacturing industry at the possibility of its total repeal, and we therefore have joined with the American Textbook Publishers Institute, the Authors League of America, and Book Manufacturers Institute in exploring the possibility of being able to come to the committee with the recommendation of language with respect to the clause that would remove its more inequitable features, but that would provide assurance to the printing industries and the unions that they would suffer no significant economic injury.

We understand that at a later date the committee plans hearings specifically devoted to the manufacturing clause, and I would like to defer further comment in the hope that those explorations can have been brought to a successful conclusion at that time and that the committee may perhaps be aided thereby in resolving this perennial problem.

Another question has been the one of the copyrightability of Government publications which is frequently discussed with a considerable amount of heat, usually I think because the issues have not been clearly understood. The American copyright law provides that no copyright shall subsist in a publication of the U.S. Government. No other country has such a provision. We don't find it necessary in regard to State and municipal publications, but we think it is a sound principle and that ordinary Government publications as they are generally conceived should not be copyrighted.

We approve of the fact that this bill continues that principle. But there are a couple of questions. One: what is a Government publication? The other is: are there any circumstances in which something that is a Government publication should be copyrighted by the Government or by its author?

With respect to the first of these two questions, the Register of Copyrights in the bill introduced last summer defined a Government publication as a work written by a Government employee as a part of those duties; and the present bill, as a work written by a Government employee within the scope of his official duties.

The report of the Register accompanying the bill, which was made available only yesterday after this testimony was drafted, explains that the Copyright Office intends no difference in those two phrases. We have been concerned, however, that "within the scope of" might be thought of as more restrictive and our concern goes to this point. There are many books which serve the public very well; Mr. Eisenhower's "Crusade in Europe," Mr. Hoover's work on "A Study of Communism," books by Members of Congress which relate to, touch upon, or are concerned with their official duties, and yet are in no normal sense of the word Government publications.

We would certainly want to be assured that no Government employee, no officer of the Government was restrained from writing about the subject matter of his public employment, as the public would certainly be the loser on that point.

The other question is whether there should be any exception provided that would permit the Government or an author to copyright a work that is indeed a Government publication.

Last summer's bill provided that the head of a Federal agency, when he made a public finding that the public interest would be served by such an exception to the general principle, and when he acted in accord with some generally defined set of standards applicable to the Government as a whole, could undertake or authorize such a copyrighting of the work.

This has been attacked because of a belief that copyright restricts or limits the circulation of a Government publication and that it may involve a giveaway of property created by public funds to a private publisher.

In both these cases we believe it is the contrary that is likely to be true. Some kinds of work can attain a much wider circulation if privately published than if published by the Government Printing Office, and many illustrations of that could be offered. The Government itself may not have any incentive for or interest in publishing some of the scientific or other studies done by its employees once it has made use of the information, itself, yet there may be a deep public interest in this information and there may be publishers who will be quite willing to disseminate the material that would otherwise remain buried in Government files. Nor does it involve any giveaway of public property. On the contrary, for the Government to copyright or to permit one of its employees to copyright a work under restrictions laid down by the Government asserts and defines the public ownership of that property and permits the Government to exact a full and just payment of royalties for any private publisher who issues it, so that the taxpayers can be reimbursed in whole or in part for their investment.

It seems to us there ought to be three objects of public policy in this whole area of the copyrighting of Government officials. One is that responsible public officials should be encouraged to write in the areas of their responsibility. The second is that we should try to obtain the widest and freest public dissemination of scientific, technical, medical, economic, political, and other information developed within the Government; and finally, any policy should prevent any unjust exploitation of public property for private profit.

Within carefully drawn statutory guidelines and adhering normally to the general principle that Government publications are not copyrighted, we believe the Government agencies should be able to make exceptions to this general rule and to obtain copyright in a work done by an employee as a part of his duties when such action is necessary to achieve the objects of public policy set forth above.

The language of the bill introduced last July was well designed to achieve this, and we recommend that it be restored.

I would like to speak briefly about this question of the relationship of copyright to education which has already occupied so much of the time of the hearing today and will be the object of attention during most of next week's hearings. The chairman made a comment a little earlier that publishers found themselves to some extent in the middle among their authors, their manufacturers and their customers, and certainly this is true in connection with the area of education.

On the one hand the publishing industry is wholly dependent on the work of authors, indeed exists only to disseminate their work, and can have no prosperity or success or well-being except as authors do. On the other hand, over half the total product of the book publishing industry in the country is sold to educational institutions, all the textbooks substantially, but also a very high proportion of general trade books, children's books, and that sort of thing.

Quite beyond education as a market, the publishing industry is almost entirely dependent on education to produce the kind of people that buy and read books. There can be a healthy book publishing industry only in a society which has a healthy, virile educational system. There is no sector of society that is more deeply concerned with education than the publishers are. So I think we are really in a position to see this controversy fairly whole.

Many of you I know have received a great many letters from teachers among your constituents. I suspect most of these have expressed alarm that the bill before you would deprive them of rights they now enjoy, to copy or to perform works, and which would subject them to new penalties.

This has been referred to a number of times before today, and this fear was I believe fairly widespread, engendered by the large-scale distribution to teachers of a leaflet purporting to outline what the bill would allow a teacher to do and what it would prohibit, and indicating the penalties for infringement.

The prohibitions were interpreted literally and rather narrowly and with a limited scope for "fair use." The leaflet, whether intentionally or not, failed to point out that all the prohibited acts have always been prohibited-that is, the acts by teachers in connection with classroom teaching-and that the penalties for innocent infringement have been reduced from $250 to $100, not increased or newly imposed.

As the Acting Register of Copyrights pointed out this morning, nothing in the bill imposes any new or additional limitation on the freedom of teachers to use copyright material in instructing their classes. On the contrary, in several respects it removes limitations or reduces penalties.

In no way, we believe, could the passage of this bill disadvantage teachers or impede their work, and it is unfortunate that a contrary

impression has been given to some members of the teaching profession who are personally unfamiliar with the law.

I know that educational organizations will have 3 days for testimony on the bill next week, presumably in part to ask for a still larger and more specifically defined freedom to use the work of authors and composers without permission or payment. We are of course handicapped in responding to the proposals that may be made until we know their content more specifically. Certainly we should want to respond as liberally as possible to proposals that are practical in application and just in principle and truly needed by educators, but meanwhile I would like to make some general observations.

In the first place, the degree of conflict of interest here has been greatly exaggerated. I don't believe there is any real deeply seated conflict. Publishers, as I have pointed out, are aware of the transcendent importance of education to all their work. I am sure that this is equally true of authors, as Mr. Hersey and his associates pointed out earlier. An author wants to be read, a composer wants to be performed-they want to increase the use of their materials in the school, not to limit it or make it difficult.

And we have a similar concern for educational television as well. We have consistently worked to expand and gain support for educational television to help develop program material for educational broadcasting. In broadcasting as well as in classroom teaching, we want to enlarge and not curtail the use of material.

On the other hand, I simply do not believe that any thoughtful teacher or educator wants to deprive an author or composer of just compensation for use of his work. No teacher who has devoted her life to teaching children to love poetry is an enemy of poets. Neither is any music teacher who has devoted his life to letting people enjoy and perform music an enemy of composers.

The organized educational profession is now devoting a considerable, and I think a wholly proper, effort to see that the teachers get adequate additional payment for the use of their professional contribution to educational broadcasting. They should not oppose compensation for the use of works of authors and composers in a similar way, nor does any thoughtful school administrator want to countenance a copyright situation that would remove incentive for the production of teaching materials on which so much educational innovation depends.

Authors want to see their materials used. Educators want to see authors paid. What is the problem then? Primarily it arises because teachers don't want to be bothered, and understandably, with often cumbersome and time-consuming processes of obtaining permis sion to make minor and ephemeral uses of copyrighted materials. But I don't think this problem is really a real or major one. Insofar as the contemplated use is an incidental or ephemeral use of a relatively small part of the work with a legitimate purpose not competitive with the original work, it is no doubt a fair use and not an infringement. Many uses, of course, are specifically authorized in the bill itself. Even when the use is clearly an unfair use and an infringement, I think it is relevant to point out that no author or publisher has shown any disposition to punish or oppress an educator or interpret narrowly the law.

In the whole history of copyright law, in all the undoubtedly hundreds of millions of uses of copyright material by hundreds of thousands of teachers over many decades, I think it is true, and this is based on rather careful study, that no teacher has ever been sued by a publisher for copyright infringement. "Fair use" covers an enormous area. Beyond fair use, there has existed a broad margin of safety in which the common good sense of publishers and good faith and good will of teachers have prevented copyright from being any limiting or oppressive factor.

Teachers would continue under the new bill to enjoy all the freedom under the old and have that freedom buttressed and reinforced by the specific authorization by statute of the doctrine of "fair use." We don't believe any case can really be made that a statutory permission to make unfair use-that is, use not fair under the present judicial doctrine-use without permission of entire works or major parts of a work or other uses without permission, competitive with or damaging to the proprietor-is necessary for education to do its job.

It would be extremely difficult to devise language for a statute that would cover every case the educators might raise, that would not authorize many uses educators themselves would be the first to concede are improper.

On the other hand, it is difficult to devise specific language that would specifically exclude the confessedly improper uses without deeply hampering the legitimate uses. To take the case of the teacher in Montana who wants to make a few copies of a poem that Mr. Hersey mentioned, if you write into the bill a specific provision for educators to make multiple copies of entire works, which is what is involved there, you have opened the door for statutory authority to the Chicago school system to publish an anthology.

If you say, on the other hand, under no circumstances can a teacher make multiple copies of a whole work, you lay a legal barrier against this obviously minor and unimportant and sensible use by the isolated schoolteacher in Montana.

The present doctrine of fair use is, let the Montana schoolteacher go unimpeded without opening the door to the major abuse. I think just realistically we have to trust commonsense and good will on this, with several decades of experience and successful application behind

us.

I should like to turn to two specific aspects of this question very briefly, of educational use. One is the problem of photocopying, especially by libraries; the other, of nonprofit broadcasting. It has been pointed out that recent technological developments have enormously increased the amount of photocopying in libraries and technology is continuing to change rapidly. Most of this photocopying, at least at present, probably consists of excerpts and probably mostly of journal articles. Most of it at present is probably undertaken in lieu of manual note taking, typing, or handwriting a copy, and in lieu of library loan rather than in lieu of buying a copy.

But photocopying under license and with payment of royalty has already replaced conventional methods of publication as a means of issuing doctoral dissertations. Ten thousand or more doctoral dissertations are published annually by photocopy rather than print. It is