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Dr. WIGREN. That is all right.
Mr. KASTENMEIER. May I also ask at this point, can those in the rear hear the testimony? May I urge the witnesses to speak up so that all may hear because there are many colleagues back there, I am sure, who will want to hear you what you have to say.
How do you answer the basic proposition that an author would submit, stating that really what you are dealing with is his property? That is, if you are willing to buy pencils and buy books in the classroom, why is it you are unwilling to pay for the use of his property no matter if it is more convenient to use it without paying for or not?
Dr. WIGREN. This is a good question. There are those who would say that copyright is not a property right. I think there is much in the law and much in the legal interpretation of the law to support this. I feel, also, that the very statement I read to you a minute ago answers this to the effect that usually the author's interests coincide with those of the public and where they conflict the public interest must prevail.
Also, I would like to say that it is true we buy seats for children to sit in and we pay for these, but we don't charge them every time they sit in one of them.
If we buy a textbook we feel we should have the right within reasonable limits to copy a certain section of it for our own use. The book belongs then to us. It is our property then. This is my answer to that.
Mr. KASTENMEIER. I will ask Mr. Rosenfield to particularize an answer to this question later, but I would also be curious about the degree of certainty you think we ought to have in the language. I gather you prefer that we define fair use explicitly in statutory language? Dr. WIGREN. At the present time there is a great deal of confusion about what is and what is not possible. We are trying to be fair about this. We have tried to state it in our recommendations as best we could. We feel that not everything should be permitted. Certainly we do not want wholesale copying. This would not be ethical. It is not even good teaching practice.
We have had consistently fine dealings, I think, with the publishers groups and authors groups and have attempted to revise our statement after conferences with them. Typical of this is the statement we added in parenthesis in our recommendations. It says:
save those originally consumable upon use, such as workbook exercises, problems, or answer sheets for standardized tests.
After considerable discussion with the publishers we felt such uses might be unfair and take away from the author's right to make sales because these are sold on a monthly per-pupil basis. Hence, we revised our draft accordingly so that we would not ask that. But we have commended the Register for making "fair use" statutory.
Again we don't really feel "fair use" is enough. I think the main problem is that the fair use section at present permits "the reproduction of a small part of a work to illustrate a lesson."
There is nothing there about multiple copies. We need multiple copies for students in the classrooms. Certainly there is also nothing in "fair use" that allows us to have a single copy of an entire work.
On that one, may I just say that our draft may be poorly stated at this point, and you, gentlemen, would be in a much better position than we to state it. But I again want to make it very clear at the outset this morning that we are reasonable people and that we would like for the record to show that a single copy of an entire book or work is not intended by us. Maybe the way it is worded it seems this way, but we don't intend it to mean this.
We don't mean a single copy of a dictionary or reference book or an encyclopedia. Neither do we mean to make a whole copy of a magazine or newspaper or pamphlet or monograph or motion picture film or filmstrip.
What we do mean, what we do intend, is for the classroom teacher merely to be able to duplicate multiple copies of a poem to supplement a classroom anthology. We don't think that a poem is an excerpt. We think many poems are separately copyrighted.
We want teachers to be able to make transparencies of charts or diagrams from a book, newspaper, or magazine which they have purchased.
We think we should have the right to have short stories duplicated or an essay or a map and certainly a television or radio program or an article from a magazine. We do not mean several articles from a work. A teacher wrote us the other day and said, "Would you endorse my duplicating five articles from the National Geographic?" We said, "Absolutely not. We would never go along with this."
Our ad hoc committee does not go along with wholesale mass copying. But we do favor-and we have stressed-limited copying privileges, and I will go into that further in my concluding statement. Mr. KASTEN MEIER. Counsel, do you have any questions?
Mr. FUCHS. Dr. Wigren, on page 5 of your statement, point 4 reads: The single most important objection which the ad hoc committee has to H.R. 4347 is the fact that no mention is made of statutory limited copying privileges so urgently needed by teachers in the course of their day-to-day teaching.
Then you go on to say that:
This omission will seriously handicap boys and girls in classrooms * * * and deprive them of the best teaching practices available.
Now I would like to ask this question: Does this omission exist not only in H.R. 4347 but also in existing law?
Dr. WIGREN. Yes.
Mr. Fuchs. How long has it existed?
Dr. WIGREN. I am glad you asked this, because I think the question is not whether this exists in the present law or whether it exists even in the proposed law. The question we raise is that as long as the law is being revised and rewritten we would like to have a law that would support good teaching practices, practices that have been defined by many individuals in the educational field, certainly supervisors of schools in many organizations, as being creative practices.
There is much talk today in education about creativity in teaching. Much of this enters the copyright situation. We are not here to argue the legality of a practice-whether we do or don't have it. You know better on this score than we whether we do or don't. Our problem is that we want you, the Judiciary Committee, to know what teaching is
like in 1965 so that our good teaching practices which are creative can be supported by the new law.
Mr. FUCHS. I wonder how long the educators have felt this serious handicap?
Dr. WIGREN. We have felt for some time that we may be doing some things that we are not supposed to. This "gets on your nerves" after a while.
We feel that we would like to have it clearly written into law so that we don't have under-the-table uses. We would like to get things out in the open more so that we know where we stand. It is sort of like crossing the street in Washington. You are not supposed to cross in the middle of the block. I have seen people check to see if anybody is looking, and, if not, risk it, and I have done so myself.
This is what we have been doing. I don't think we should put teachers in this position, particularly if they are trying to set standards for youngsters.
Mr. FUCHS. I am curious to know whether you feel that the new law, the proposed new law, imposes new restrictions on teaching that are not present under the existing one.
Dr. WIGREN. The new law does not contain, in our estimation, anything about the "for profit" limitation. We have a double-barreled protection now under the existing law. We have the judicial interpretation of "fair use" plus the "for profit" limitation and we find this latter lacking in the proposed law. This worries us a good bit because we feel that we have now this extra kind of protection. Neither do we have the words "teaching, scholarship, or research" in the new fair use provision.
Mr. FUCHS. You have the "not for profit" provision under existing law for public performance?
Dr. WIGREN. Yes; and this would include educational television in the main. The new law, of course, would take this away, which would mean that educational television would in effect be cut back, too. Mr. Fucнs. But your face-to-face teaching would be totally exempt? Dr. WIGREN. I think face-to-face teaching would remain pretty much the same. Again you are asking me legal questions. I would rather not be in this area because I am not a lawyer.
Mr. FUCHS. I think the record should show what your understanding is.
Dr. WIGREN. My understanding is this.
Mr. ST. ONGE. Thank you, Mr. Chairman.
Doctor, without trying to pin you down to legal specifications-we will leave that for Mr. Rosenfield-is it the feeling of your committee that if H.R. 4347 were to be presented to the Congress that your committee would prefer the existing copyright law to the proposed law without any changes?
Dr. WIGREN. I hate to be put in this position but I think it correct to say that we feel that the present law has some advantages that the proposed one does not have. I tried to point those out. I can't speak for the committee in saying whether we would want to make that flat statement but there are those I know on the committee who
feel strongly that the present law is more advantageous to us than the proposed one.
But I do want to say that all of us feel we do need a new law. The other one is outmoded, there is no doubt about it. But as we write a new law let us write one that is supportive and reflective of good practice in teaching and not one that cuts teaching back.
It may be true, and I will stick my neck out on this one, that teachers are doing some things that are not legal, and we suspect that may be true. But it certainly is in the area of good teaching practice.
Now they have not had lawsuits galore so they have continued to do these things. Whether you realize it or not teachers would consider it as a cutback because they have been doing these things.
If a law were written that would prescribe certain other things, as you have written here, teachers would undoubtedly feel it would be taking away some of the things they are now doing. They feel they are doing them under the not-for-profit limitations.
Mr. ST. ONGE. Have there been any lawsuits against teachers?
Dr. WIGREN. Yes; there has been one. I think our attorney will speak to this. Publishers say, "Well, why don't you trust us?" We can say in return, "Why don't you trust us, too?" It works both ways.
Mr. ST. ONGE. I gather that your feeling, without being specific as to language or endorsing any specific language, is that you would like to see written into the law very specific proposals that every teacher could read and determine for himself whether or not this practice
Dr. WIGREN. Guidelines for the teacher are needed. I think the time has come now for these, as other witnesses before this committee will be saying to you, and even pointing out instances where teachers have been concerned about using materials because of certain policies which have been set up by school districts in this regard. Teachers in these districts are going to think twice before they use something. We don't want teachers to go back to the single textbook concept. This is a retrogression in teaching. We want to be able to take advantage of many new developments and new resources for learning. I would like to read just one or two lines here from a copy of a letter I received this morning, and which some of you will be receiving, from a staff member of the Chief State School Officers.
In any event what preserves or extends copyright restrictions must be considered in connection with the great need of education to take full advantage of technology that can be used to improve teaching. For instance, teachers should not be required to seek permission to reproduce materials for their own class on modern copying machines. Unless it is clear that fair use extends to such practices, many teachers will take no chance of violating either the law or their own ethical standards. The doctrine of fair use needs expansion and clarification in view of the tremendous social responsibility to facilitate education.
Mr. ST. ONGE. You realize of course that one of the difficulties that the committee is going to face is the fact that we have made such tremendous strides in the copying process. We understand from testimony already submitted to the committee that there are new processes or procedures that have been developed and are not yet on the market so that, if we propose fixed guidelines, there is a danger that in the future these new methods will not be available.
Dr. WIGREN. If you fail to do this though, sir, wouldn't you also be making teachers run the risk of not knowing when they were violating or when they were not?
Mr. ST. ONGE. Would that change the existing situation?
Dr. WIGREN. We would hope the existing situation could be changed.
Mr. ST. ONGE. Now one final question. In your discussions with the authors and the publishers did anyone from either side propose any system to handle this problem, a clearinghouse?
Dr. WIGREN. Yes. The Authors League of America did present a clearinghouse. It was full of "administrivia." I mean by that it had many cumbersome problems in connection with the administration of it. Our committee examined this in detail. I was going to comment on this in the concluding statement so let me do this now in answer to your question.
The Authors League has proposed what might be called a statutory licensing system. In effect I suppose you would call it an "educational ASCAP." But we have met with the Authors League subcommittee and have had discussions with them. Their plan was not satisfactory to our committee. I don't think that it was satisfactory, likewise, to the publishers' group although I can't swear to this. I don't think it is.
Now we have also asked the publishers 1 year ago, as I recall, to draft such a proposal and I understand that one is in the mill, and of course we would be only too glad to look at it.
We are keeping an open door on the matter. I do want to say that our committee does have some philosophical problems in connection with any clearinghouse proposal because we feel in the first place that we would, in effect, be having to have everything cleared by the clearinghouse and that we would be having to pay for something we now get free.
Any kind of clearinghouse procedure could not be a substitute for "fair use" but would have to be something over and above this. We keep the door open. This is not an irreconcilable situation, but certainly both sides must come to grips with this. To date we have been doing most of the compromising. I really can't point to where they have compromised a bit. I wish we would not talk about "we" and "they." We need them and they need us.
We can't get along without them. We need their materials. We will continue to buy the materials despite what happens in the hearings. We want to work in peace and harmony but we do want to have our point of view known because we feel you gentlemen must know how we feel and how the teachers of America look at this.
Teachers are not misinformed; they know what is happening but they want the Congress to know this and also to know the difficulties and the confusion which now exists.
Mr. ST. ONGE. I think, Doctor, the teachers of America should feel that you have made a very good presentation on their behalf this morning.
That is all, Mr. Chairman.
Mr. KASTENMEIER. Mr. Edwards?