now a standard means of keeping available thousands of otherwise out-of-print works. Its use as a method alternative to conventional publishing will surely grow.

Obviously an author's right must extend to a photocopying of his works, because clearly over the next decade or two the difference will simply tend to disappear.

Also, even now with the technology of photocopying, it is cheaper to make a photocopy of some works where the photocopier does not have to bear any of the expenses of authorship, of royalty, of typesetting, of editorial work, of risk capital, and so on, then it is to buy a copy of the book itself.

The Copyright Office and librarians and authors and ourselves have had friendly discussions over a considerable period of time in endeavoring to formulate a statutory definition of permissible photocopying that would let sensible and necessary photocopying go forward while clearly and explicitly defining a borderline beyond which photocopying could not be done.

It has been impossible to devise a formula that either would not be thought as unduly restrictive by librarians or scholars, or would not. leave authors helpless to protect their work in the future as major technical changes make photocopying competitive with print.

The doctrine of "fair use" has met the problem adequately, and with good will and good faith all around it can be developed to meet future contingencies as they arise, especially if coupled with some of the devices for easy licensing. We believe, as does the Copyright Office, it is premature to attempt to draw permanent statutory specifics in this rapidly evolving technological situation, and I believe most librarians who have studied the matter share this view.

Finally, we come to nonprofit broadcasting. I would like to make a distinction between the word "educational" broadcasting that is loosely used sometimes for all nonprofit broadcasting and nonprofit broadcasting as a more general term.

Under the law as it now stands, a musical or nondramatic literary work may be performed over a nonprofit radio or television station without permission, but it may not be dramatized and no copy, that is, no recording or film or tape of the work, can be made or used."

Now the bill before you would distinguish between specifically educational broadcasts that are intended primarily for classroom reception and primarily for organized programs of instruction, and other broadcasts over a nonprofit station that are intended for the general public and have nothing specifically to do with education in a formal organized sense.

Now so far as these more narrowly defined educational broadcasts are concerned, the bill continues all the present freedom of performances intact, complete, and it adds other rights, including the important right which an educational station does not now have to make and use the temporary recording of a performance. This is another aspect of the bill the Copyright Office has given to rather than taken away from, the rights of teachers.

The general public broadcast of a nonprofit station, the sort of thing you hear on Friday evening over channel 13 in New York or channel 2 in Boston, would be dealt with as are broadcasts by commercial sta

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tions in that the permission of the copyright proprietor would be required for a performance of his work.

Such a permission must now be obtained to make a film or tape. In a sense these stations do generally make films or tapes and circulate them. They do generally ask permission now, so that this requirement would probably add relatively little additional work or cost, but the problem is of crucial importance to the future.

The general evening broadcasts of a nonprofit station like channel 13 in New York or channel 2 in Boston are not readily distinguishable from the sustaining or cultural programs on commercial stations the sort of thing that "Omnibus" used to do on one of the major commercial networks, for example. They seek to reach the same kind of audience with the same kinds of material with the better cultural programs than on commercial broadcasting.

The commercial broadcast is often at the expense of the station or network without a sponsor. The nonprofit broadcast on the other hand may well be supported by a contribution from an advertiser. There is simply no logic in a situation that allows one broadcasting station to use an author's or composer's work without permission and another not, when the only difference is in the character of the ownership of the station-or that requires the permission of the author or composer to perform his work in Constitutional Hall before an audience of 2,000 but permits its performance without his prior knowledge, consent, or payment over a nonprofit station to an audience of perhaps 200,000. This applies of course primarily to music but it also affects the reading of poetry.

You could have a whole evening of reading of Carl Sandburg's poetry over channel 13 in New York reaching an enormous audience without his prior knowledge even though it might prevent his selling the right to sell those rights to a commercial TV station, whereas the reading to a small audience in a hall would require his permission. The problem assumes special importance in view of the fact that the Federal Government has adopted a policy of rapidly expanding nonprofit broadcasting, reserving channels, appropriating $50 million for construction and tens of millions of dollars more for programing support.

If the Government chooses, as I believe it should, to invest these large sums in expanding nonprofit broadcasting, it has a right to see that rights of the authors and composers are not confiscated in the process.

And it could easily be that within the lifetime of the legislation you are now considering nonprofit broadcasting will become the normal rather than the exceptional method of dissemination. Our laws should look toward that future.

Finally, Mr. Chairman, I would like to add one word about a provision of the bill which has limited practical significance for book publishing but about which we feel deeply as a matter of principle.

That is the provision eliminating the special statutory exemptions now given performances by coin-operated machines. The members of the committee are thoroughly familiar with this issue from past hearings and it will, of course, be fully discussed by those more directly concerned.

All I wish to do here is to add our voice to those protesting the continuation of the unconscionable historical accident that permits the highly profitable exploitation of the work of composers in a multimillion-dollar industry with no payment to those on whose work the whole enterprise is based.

STATEMENT BY DAN LACY, MANAGING DIRECTOR, AMERICAN BOOK PUBLISHERS

COUNCIL

My name is Dan Lacy. I appear here today on behalf of the American Book Publishers Council of 1 Park Avenue, New York, N.Y., 10016, of which I am managing director. The council is the general trade association of book publishers. Its 188 members include nearly all general book publishers, most church and other religious publishing houses, all major university presses, nearly all scientific and technical publishers, the major paperbound book publishers, and almost all publishers of children's books. The publishing of elementary, secondary, and college textbooks and of encyclopedias is separately represented by the American Textbook Publishers Institute, which will also present testimony before these hearings.

With me is Mr. Horace S. Manges of the firm of Weil, Gotshal & Manges of 60 East 42d Street, New York, N.Y., who is the counsel of the American Book Publishers Council and is a member of the panel of experts consulted by the Register of Copyrights in drafting the bill before you. Mr. Manges will present the specific changes in the bill that we recommend, and respond to any questions the committee may have.

The bill before you, Mr. Chairman, is one of great importance. It provides the fundamental legal basis for a number of major industries: the publishing of books, magazines, newspapers, and music; the production of phonograph records and motion pictures; radio and television broadcasting; the performance of music, both serious and popular; and the production and distribution of the whole range of educational materials-textbooks, films, audiovisual materials, maps, charts, and other training devices. These industries, all dependent on copyright for their orderly conduct, make up a major and growing sector of the national economy.

But far more important, the copyright law is the means, the only means, by which those creative minds who are the leaven and the growing edge of our society can be protected in their inherent right to their own creations. Of all the ways in which the Federal Government affects literature, music, art, and scholarship in our society, none compares in its importance with copyright legislation. Of all its means of nourishing creativity and fostering the freshness, growth, and richness of our culture, none is so important as this power of the Government. The complex and technical body of legislation before you, dry as it may seem, in fact goes to the heart of the place of poetry, fiction, drama, music, art, and scholarship in our society. If we mean what we say about the importance we assign to the arts, humanities, and learning in our society, here is the place to show it.

The Register of Copyrights and his associates have taken very seriously indeed their responsibility in preparing the draft legislation before you. As has been pointed out, this bill, if enacted, will provide the first comprehensive revision of the copyright law in nearly half a century. Its preparation afforded the first opportunity for a comperehensive review of the whole theory of copyright, as well as of its practical applications in the light of the new technology of an electronic age. It is this country's first truly 20th-century copyright bill. It rests upon years of scholarly research and analysis, the results of which make up the 34 authoritative studies on which the bill is based. Moreover, with endless patience, the Register and his associates have consulted continuously with all the myriad groups concerned with copyright so that the bill could deal equitably with their various special needs and problems.

The result is a bill that has achieved surprisingly broad support. I think it is fair to say that almost every group in the country concerned with copyright approves the general character of the bill before you, though many of them,

including the American Book Publishers Council, have changes which they wish to suggest. Some of these changes are noncontroversial recommendation for clarification or other minor technical modification. A few involve matters of substance and these are important.

Most of the changes we recommend are jointly proposed by:

American Book Publishers Council, Inc.
American Guild of Authors & Composers.

American Society of Composers, Authors & Publishers.
American Textbook Publishers Institute.

The Authors League of America, Inc.

Composers & Lyricists Guild of America, Inc.

Music Publishers' Protective Association, Inc.

Music Publishers Association of the United States.

Mr. Manges will present our views on these particular changes. In view of that fact, and of the comprehensive discussion of the bill as a whole so ably presented by the Copyright Office and by the Authors League, I wish only to speak briefly about three general issues: the manufacturing clause, copyright with respect to Government publications, and the use in education of copyrighted materials.

As the committee is aware, the copyright law has long contained a provision unique, I believe, to this country, which, in the case of any nondramatic work in English, makes an author's copyright dependent in part on the circumstances of the manufacture of copies of the work. No other country has withheld from an author the right to his own work, the creation of his own mind, unless he chose to have it manufactured in that country. In 1954, at the time of our ratification of the Universal Copyright Convention, this requirement was removed for authors of other countries that joined the Universal Copyright Convention; but it has remained in effect with respect to American authors. In his original report, the Register of Copyrights recommended the outright repeal of this clause. We agreed in principle, but indicated that we wished to satisfy ourselves that such a repeal would not work serious injury to the American book manufacturing industry.

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

Nevertheless, we recognize the traditional position of the manufacturing clause and the apprehension felt by printers at the possibility of its total repeal. We have, therefore, joined with the American Textbook Publishers Institute, the Author's League, and the Book Manufacturer's Institute in exploring the possibility of jointly recommending to the committee language with respect to the manufacturing clause that would remove its more inequitable features while providing assurance to the printing industries and 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 by that time.

The question of copyright in Government publications is another that has often engendered a considerable amount of heat, usually because the matters really at issue have not been fully understood. The law now provides that no copyright shall subsist in a publication of the U.S. Government. Though this is another unique provision of American law-no other government has found such a provision necessary, nor have we found it necessary with respect to State and municipal publication-we believe it embodies a sound general principle and that Government publications, as they are ordinarily thought of, should indeed not be copyrighted. The bill before you continues that principle. Two questions have arisen, however: what is a "Government publication"? And should there be any provision for exceptions to the general principle when the copyrighting of a specific Government publication may be in the public interest? In the version of the copyright bill introduced last summer, the Register of Copyrights proposed to answer these questions by defining a Government publication as a work written by a Government employee as a part of his assigned

duties and by providing that the head of a Government agency, acting within generally prescribed regulations and standards, could copyright a particular work when he made a public finding that the public interest would thereby be served. The present bill is much more restrictive. It defines a "Government publication" as a work written by a Government employee "within the scope of" his official duties rather than as "a part" of those duties, and it allows no exceptions.

The pressure toward restrictive language has been based on a belief that copyright restricts or limits the circulation of a Government publication and that it may involve the "giveaway" of property created by public funds to a private publisher. In both these cases, it is the contrary that is likely to be true. Some kinds of works can obtain a much wider circulation if privately published than if published by the Government Printing Office-many actual illustrations can be offered. The Government itself may not have any incentive for or interest in publishing some of the scientific or other studies done for it, once it has made its own use of the information; yet there may be private publishers who would be quite willing to disseminate useful material that might otherwise remain buried in Government files. Clearly the public interest is served when a Rachel Carson, a Dwight Eisenhower, an Admiral Rickover, undertakes to write books that, though not a part of their assigned duties, relate and perhaps may be considered "within the scope" of their official duties. Yet such a book as the distinguished ones we all recall by these authors would hardly have been written and could hardly be published if it were required to be a public document issued only through the Government Printing Office.

The "restrictive" policy would be really the one that would deny any opportunity for publication, no matter what the public interest requires, for all the material written by Federal employees within the scope of their jobs, except as it may be printed at the taxpayers expense as a public document. Yet that is the prac tical effect of denying any opportunity for agencies to copyright works under special circumstances when the public interest requires it.

Nor does copyrighting a work produced in the Government involve any "giveaway" of public property. On the contrary, it asserts and defines the public's ownership of that property and permits the Government to exact a full and just payment of royalties from 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 that the objects of public policy in this area should be three: to encourage responsible public officials to write in the areas of their responsibility; to obtain the widest and freest public dissemination of scientific, technical, medical, economic, political, and other information developed within the Government; and to 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 that Government agencies should be able to make exceptions to this principle, and to obtain copyright in a work done by an employee as 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.

Finally, we come to the relation of copyright to education. Many Members of Congress have, I believe, received letters from teachers among their constituents expressing alarm that the bill before you would deprive them of rights they now enjoy to copy or to perform works and would subject them to new penalties. This fear was, I believe, engendered by the widespread 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 leaflet, whether unintentionally or not, failed to point out that all the "prohibited" acts have always been "prohibited" and that the penalties for innocent infringement have been reduced, not increased or newly imposed. I believe the Register of Copyrights will concur that nothing in this bill imposes any new or additional limitation on the freedom of teachers to use copyrighted material in instructing their classes. On the contrary, in several respects it removes limitations or reduces penalties. In no way, we believe, can the passage of this bill disadvantage teachers or impede their work. It is unfortunate that a contrary impression has perhaps inadvertently been given to so many members of the teaching profession who are personally unfamiliar with the law.