Members of educational groups have, we note, requested time for several days of testimony with respect to the bill, 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 proposals until we know their content more specifically. Certainly we should want to respond as liberally as possible to proposals practical in application, just in principle, and truly needed by educators. Meanwhile, I would like to make some general observations.

Most important of all, I cannot believe that there is any real conflict of purpose between authors and publishers on the one hand, and educators on the other. Certainly, publishers are aware of the fundamental, indeed the transcendent importance of education to all their work. Probably at least half of all the dollar volume of the book publishing industry comes from sales to schools, colleges, libraries and students. Quite apart from this fact, everyone concerned for art, music, and literature in our society realizes that their well-being is heavily dependent on the quality of education. Certainly no sector of American society is more deeply committed to education or more concerned for its quality and its support than is book publishing.

I am sure that this is equally true of authors. Authors write to be read. Composers write to be performed. Authors and composers want to increase, not to limit or deny, the use of their materials in the schools.

Authors and publishers have a similar concern for educational television as well. We have consistently worked to expand and gain support for educational television and to help develop program material for educational broadcasting. In general, authors, publishers, and composers are eager to enlarge, not to curtail, the use of their material in such broadcasts.

On the opposite side of the issue, I cannot believe that any thoughtful teacher or educator wants to deprive an author or composer of just compensation for the use of his work. A teacher who has devoted her life to teaching children to value and enjoy poetry cannot be the enemy of poets, nor the music teacher the enemy of composers. The organized educational profession is devoting a considerable, and wholly proper, effort to seeing that teachers are adequately and additionally paid for the use of their professional contributions in educational broadcasting. They will surely not oppose compensation for the use of the work of authors and composers in a similar way. Not will any thoughtful school administrator wish to countenance a copyright situation that would remove the incentive for the creation of the imaginative new teaching materials on which so much educational innovation depends.

Authors and publishers want to see their materials used; educators, I believe, want to see authors and publishers paid. Insofar, their interests are in common. Why, then, any problem? I think it is primarily because teachers do not want to be bothered with the often cumbersome and time-consuming process of obtaining permission to make a minor and ephemeral use of copyrighted materials. This is understandable and in most cases not unreasonable. But I do not believe that the problem is, in fact, a real or major one. Insofar as the contemplated use is an incidental and ephemeral use of a relatively small part of a work for a legitimate purpose not competitive with the original work or injurious to the copyright proprietor, it is no doubt a "fair use" and not an infringement. Even when the use is clearly an "unfair" use and an infringement, no author or publisher has ever shown any disposition to punish or oppress an educator. In the whole history of the copyright law, in all the undoubtedly hundreds of millions of uses of copyrighted material by hundreds of thousands of teachers over many decades, I believe no teacher has ever been sued by a publisher for a copyright infringement. Any contention that teachers have been prevented by the copyright law or by its oppressive enforcement from doing their work properly simply will not bear examination. And the new bill would, in fact, even further liberalize this situation.

"Fair" uses are allowed under the present law. We do not believe any case can be made that a statutory permission to make "unfair" uses-that is, uses 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. And we believe it would be impossible to devise language for a statute that would cover every case educational groups can raise that would not authorize many uses educators themselves would be the first to concede were improper.

One certainly cannot use as a criterion for free use the mere fact that the use is "educational"-for a high proportion of all copyrighted materials are produced and distributed only for educational use. Nor can the fact that only a "single copy" is made be a sufficient justification for free use "single copies" indeed are what publishers sell, one at a time, and what authors draw their royalties from.

It may be argued that education is specially treated in many other statutesby lower postal rates, reserved TV channels, special tax benefits, etc.-and that this is precedent for special treatment in the copyright law that would permit educators to use copyrighted works in ways that others may not. But all the other benefits to education are at the general expense. We support them, and as corporations and as individuals are glad to pay the taxes required as an indispensable investment in the future. But none of the acts referred to authorizes education to take the property or command the labor of private individuals without compensation. Nor should the copyright law.

The court definitions of "fair use," we believe, have clearly given teachers the freedom they really need. To attempt to legislate new standards is unnecessary, and to do so is almost certainly to give statutory warrant not only to legitimate fair uses, but to a host of competitive and confiscatory uses. The present law continues all the scope teachers have had heretofore, and bulwarks it with a statutory confirmation of the doctrine of fair use. The burden is surely on those who would attempt to prove a real need for a wider scope of uncompensated use of an author's creations.

Within the general area of educational and related uses there are two special problems. One is photocopying, especially by libraries; the other is nonprofit broadcasting. Recent technological developments have enormously increased the amount of photocopying in libraries, and the technology is continuing to change rapidly. Most of this photocopying, at present, probably consists of excerpts, primarily from journal articles. Probably most of it, at present, is undertaken in lieu of manual note taking or 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 and keeping many otherwise "out of print" books available. Its use as a method of, or alternative to, conventional publishing will surely grow. Obviously the authors rights must extend to photocopies of his works as truly as they do to printed copies. The Copyright Office, librarians, publishers, and authors have in friendly discussion endeavored to formulate a statutory definition of permissible photocopying. It has been impossible to devise one that would not be thought unduly restrictive by librarians and scholars and that would not on the other hand leave authors helpless to protect their work as major technical changes now in progress make photocopying even more 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. We believe, as does the Copyright Office, that it is premature to attempt to draw permanent statutory specifics in this rapidly evolving technological situation. I believe most librarians who have studied the matter share this view.

Finally, we come to nonprofit broadcasting. Under the law as it 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, i.e., recording, film, or tape, may be made. The bill before you would distinguish between specifically "educational" broadcasts, intended for classroom use as part of an organized program of instruction, and those broadcasts over nonprofit stations that are intended for the general public.

So far as "educational" broadcasts, so defined, are concerned, the bill continues all the present freedom of performance, and adds other rights, including the important right to make and use a temporary recording of a performance. The general public broadcasts of nonprofit stations would, however, be dealt with as are broadcasts by commercial stations in that the permission of the copyright proprietor would be required for a performance of his work. Such permission must be obtained now to make a film or tape, and probably little additional work or costs would be required of educational stations. The point is of crucial impor tance, however. 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. They seek to reach

the same kinds of audiences with the same kinds of material. The commercial broadcast is often at the expense of the station or network; the "nonprofit” broadcasts 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 Constitution 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 200,000.

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 more for programing. If the Government chooses, as I believe it should, to invest these tens of millions of dollars in such broadcasting, it has an obligation to see that the rights of authors and composers are not confiscated in the process. Copyright laws last a long time, 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.

Mr. Chairman, I should like to add one final 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 by fully discussed by those more directly concerned. All I wish to do here is 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.

Mr. KASTEN MEIER. Thank you, Mr. Lacy.

I wonder, Mr. Manges, in view of the fact that the afternoon is wearing on and we have reached that point where we can anticipate rollcalls I note that you have a 14-page statement with memorandums. Is it possible for you to summarize your statement?

Mr. MANGES. I have a great many points to cover, Mr. Chairman. There have been very important settlements with eight organizations; I will try to be as brief as possible. I would not read the entire statement but I would like time.

Mr. KASTEN MEIER. Certainly, we want you to touch fully on those points that are essential.

Mr. MANGES. Would you want me to go over until tomorrow?

Mr. KASTEN MEIER. In no case do we want to do that. We want to conclude this afternoon if possible.

Mr. HUTCHINSON. If we are interrupted in the middle of your statement to answer a rollcall you will understand. Mr. KASTENMEIER. Proceed.

STATEMENT OF HORACE S. MANGES, COUNSEL TO AMERICAN BOOK PUBLISHERS COUNCIL, INC.

Mr. MANGES. My name is Horace Manges. I am a member of the law firm of Weil, Gotshal & Manges, of 60 East 42d Street, New York City, counsel to American Book Publishers Council, Inc, the national trade association of general book publishers. It presently has 188 member firms.

Just after the prior copyright revision bill, H.R. 11947, was introduced last summer, an article concerning the bill, written by the

Register of Copyrights, appeared in the New York Law Forum. In the conclusion of that article, the Register stated:

*** there are a few major problems that are going to take real cooperative effort to reconcile. I am confident that this effort will be made, and that even the toughest problems will find satisfactory solutions if the opposing interests will approach them reasonably and if the lines of communication are kept open.

This philosophy, so well expressed by the Register, was practiced by the American Book Publishers Council not only after that statement was made but also before. In the words of the Register, the council has done its best to approach the basic controversial provisions reasonably.

First, on the significant subject of duration of copyright, our preference was for a single term of 76 years from date of first publication. However, when the authors strongly urged life plus 50 years, we went along with that proposal.

On the important question of the right of an author or his survivors to recapture his grants under a copyright despite his prior agreements to the contrary, we vigorously opposed any such form of procedure. Although still adhering to that view, we, nevertheless, compromised with the authors in the spirit of harmony. Thus, based upon the agreement of the Authors League to certain recommended changes in the bill, we are not opposing the reversion provision.

Those recommended changes are set forth in a joint memorandum, dated April 6, 1965, signed by the American Book Publishers Council, Inc., the American Textbook Publishers Institute, the Authors League of America, Inc., and five music organizations, American Guild of Authors & Composers, American Society of Composers, Authors & Publishers, Composers & Lyricists Guild of America, Inc., Music Publishers' Protective Association, Inc., and Music Publishers Association of the United States. Copies of that memorandum have been filed with the subcommittee.

In addition to the foregoing, the American Book Publishers Council and the American Textbook Publishers Institute subsequently agreed with the Authors League to recommend two other changes in section 203, dealing with the manner of an author's recapturing his copyright after 35 years after date of publication.

Subsection (a) (3) of that section now provides that termination of a grant shall be effected by a notice signed by the author, or if he is dead, by all persons entitled to terminate the grant or their duly authorized agents. The recommendation for the change of this provision is that in place of the requirement of unanimity, the subsection should provide as follows:

Page 13, lines 30-34: Delete and substitute:

(3) The termination shall be effected by serving upon the grantee or his successor in title an advance notice in writing, signed by the author or authors, and, if there are more than two, by a majority of them, or, if an author is dead, then on behalf of his interest by his widow (or her widower) and one or more of his children or the children of any dead child or if there be no widow or widower by a majority of his children and the children of any dead child acting on a per stirpes basis. Such notice may be signed by a duly authorized agent of any of the foregoing.

Correlatively a new clause would be added giving power to a majority of those owning a reverted right to make a new grant, whether that grant be exclusive or nonexclusive.

Such a new clause be added as follows:

Page 14: Add a new clause (6) under subsection (b), as follows:

(6) No exclusive or nonexclusive grant under any reverted right shall be valid unless in writing signed by the author or authors and, if there are more than two, by a majority of them, or, if an author is dead, then on behalf of his interest by his widow (or her widower) and one or more of his children or the children of any dead child or if there be no widow or widower by a majority of his children and the children of any dead child acting on a per stirpes basis. Such grant may be signed by a duly authorized agent of any of the foregoing.

Copies of the memorandum, dated May 17, 1965, setting forth this compromise have been filed with the subcommittee.

From here on the changes we urge are jointly requested by all eight of the organizations which signed the memorandum of April 6, 1965. With regard to definitions, I will skip those, because they are set forth here in my statement and in that joint memorandum.

With regard to one of them, "face-to-face teaching activities," in taking a quick look at the Register's supplementary report today, I was glad to notice that the Register advocates amending clause 1 of section 109 so that "face-to-face teaching activities" will conform with the concept that we advocate.

There is a definition of "text material," and of "supplementary works."

There is also a definition of "works for hire."

These are all agreed to in the joint memorandum.

In regard to the U.S. Government works, Mr. Lacy went into that point, so I will not discuss it any further in my statement.

In regard to scope of copyright, there are some further technical changes which are referred to at page 7 of my statement. I shall not go into those in detail.

Coming to "fair use," although this has been talked about by many persons it is still extremely important.

On that subject section 107 significantly affects the interests of authors and publishers. As to this section, we ask for no change. However, since we have advance notice that other interests will assert objections to it, we should like to set forth our point of view. As you know, there are two main types of use against which authors and publishers of copyrighted works must be protected; they must be protected against copying and against public performance.

First, as to the problem of copying: the present law has dealt with it by forbidding it, subject only to the doctrine of fair use-which the courts have built up by decisional law, there being no mention of fair use in the existing copyright law. The present bill does provide expressly, in section 107, that fair use is not an infringement; it does not attempt to go any further, on the sound theory that a definition of that term is too elusive for a statutory definition.

This section, as now written, neither expands nor contracts the present doctrine of fair use, as Mr. Cary so well stated this morning.

In approving the present wording, we respectfully remind the subcommittee that whether a particular use of a copyrighted work is a fair use in a particular situation depends upon the facts of that