right legislation. In Wheaton v. Peters, 8 Pet. 591, 661 (1834), the very first case in which the Supreme Court considered this problem, the Court said: "Congress then, by this act, instead of sanctioning an existing right, as contended for, created it. (661) *** This right, as has been shown, does not exist at common law-it originated, if at all, under the acts of Congress." (663)

The House report on the current copyright law of 1909 also made this same point crystal clear:

"The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights. *** The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best.""

10

There is a long and uninterrupted line of cases that hold unequivocally that copyright protection is completely and solely a matter of statute," a privilege or franchise," simply a creature of statute." As distinguished from literary property, copyright is wholly a matter of congressional discretion to grant or to withhold."

The Supreme Court has also held that the conditions upon which copyright is granted are wholly within the constitutional power of Congress to prescribe.12 The whole history of the copyright law exemplifies the fact that an author has no constitutional property right in or to copyright protection and that such right as an author obtains is a privilege to be granted or withheld by Congress in its discretion. As the House report on the present copyright law said of copyright rights granted to authors: "*** Congress has the power to annex to them such conditions as it deems wise and expedient." 13 The very first copyright law, enacted in 1790, 1 Stat. p. 124, c. 15, gave protection only to maps, charts and books, and that only for a 14-year period plus renewal of 14 years. It did not cover periodicals, drawings, works of art, musical composition, dramatic composition-to name but a few. And even the present far more extensive law of 1909 is not all-inclusive and places limits on author's copyright privileges. Congress has limited the number of years during which an author may exercise copyright privileges. Congress has limited the uses to which the copyright owner's copyright privileges attach, i.e., the "for profit" limitation on public performance rights; compulsory licenses; the noninclusion of "rental rights," to cite but a few. In addition to congressional limitations of any so-called "property" rights in copyright, the courts have also developed a further limitation through the doctrine of "fair use."

The Register's report of 1961 commented on this subject as follows: "Copyright *** has certain features of property rights, personal rights, and monopolies, but it differs from each of these. The legal principles usually ap plicable to property are not always appropriate for copyright."

(p. 6). If the "property" concept is inapplicable, what then, is the proper test for the copyright law? The House report on the present copyright law stated that such rights were to be given "not primarily for the benefit of the author, but primarily for the benefit of the public." " The Supreme Court has said:

To the same effect. see Mazer v. Stein, 347 U.S. 201, 214 (1954); Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932); Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182, 188 (1909).

7 H. Rept. 2222. 60th Cong.. 2d sess., p. 7.

8 Miller Music Corp. v. Daniels, Inc., 362 U.S. 373, 375 (1960); Bentley v. Tibbals, 223 F. 247 248 (2d Cir. 1915); Grant v. Kellogg Co., 58 F. Supp. 48, 52 (S.D.N.Y. 1944), aff'd 154 F. 2d 59 (2d Cir. 1946).

Local Landmarks v. Price, 170 F. 2d 715, 718 (5th Cir. 1948).

10 American Tobacco Co. v. Werckmeister, 207 U.S. 284. 291 (1907); White-Smith Music Pub. Co. v. Apollo, 147 F. 226. 227 (2d Cir. 1906), aff'd 209 U.S. 1. 15 (1908). See also Loew's Inc. v. C.B.S.. 131 F. Supp. 165. 173 (1955), aff'd 239 F. 2d 532 (9th Cir. 1956). aff'd by equally divided court. 356 U.S. 43 (1958).

11 Krafft v. Cohen, 117 F. 2d 579. 580 (3d Cir. 1941); Keene v. Wheatley, 14 Fed. Cas. 180, 185. No. 7644 (Cir. Ct. Pa. 1920).

12 Wheaton v. Peters, & Pet. 591, 663-4 (1834). See also Application of Cooper, 254 F. 2d 611. 616 (C.C.P.A. 1958), cert. denied 358 U.S. 840 (1958); Stuff v. La Budde Feed & Grain Co.. 42 F. Supp. 493. 496 (E.D. Wis. 1941); see Nimmer on Copyright (1963), p. 14. 13 Op. cit., supra, n. 7, p. 9.

14 Op. cit., supra, n. 7, at p. 7.

"***the copyright law *** makes a reward to the owner of secondary consideration."

In 1964, the U.S. Court of Appeals for the Second Circuit said:

"In the words of article I, section 8 of the Constitution, copyright protection is designed 'To promote the Progress of Science and useful Arts,' and the financial reward guaranteed to the copyright holder is but an incident of this general objective, rather than an end in itself." 16

The Supreme Court said of patents (which come under the very same constitutional provision): "But it is a privilege which is conditioned by a public purpose."

99 17

The primacy of the public interest in copyright law was asserted by the Register of Copyrights in his 1961 report:

"Within limits, the author's interests coincide with those of the public. Where they conflict, the public interest must prevail. *** And the interests of authors must yield to the public welfare where they conflict" (p. 6).

Elsewhere this report also says:

"The needs of all groups must be taken into account. But these needs must also be weighed in the light of the paramount public interest" (p. xi).

Education-the paramount public interest.-Education is the most universal expression of public interest in the United States. President Kennedy said in his education message to the Congress:

"*** from every point of view, education is of paramount concern to the national interest as well as to each individual ***" 18

In specifying “national education goals," he said:

"First, we must improve the quality of instruction provided in all of our schools and colleges ***. This *** also requires that our teachers and instructors be equipped with the best possible teaching materials and curriculums."

19

President Johnson's education message called for "techniques of instruction that are modern"; among our "four major tasks" he set the following: "to put the best educational equipment and ideas and innovations within reach of all students," and "to advance the technology of teaching." 20 In so speaking, both Presidents were expressing a basic concept of the American way of life. Universal education is our Nation's major public interest involving some 45 million pupils in public and private schools. As educators, therefore, the ad hoc committee respectfully suggests that its proposal is, to use the Register's terms, in "the paramount public interest."

2. "Fair use" is not sufficient

A second argument advanced against the ad hoc committee's proposal is that it is unnecessary because, it is alleged, "fair use" is sufficient to meet the needs of education. This is erroneous.

Teachers are not looking for lawsuits, but for clarity and certainty as to when they may use teaching materials. "Fair use" fails to give either clarity or certainty and must be decided on a case-by-case basis, after the teachers use the material and not before. "Fair use" gives no assurance of when copyrighted materials may be copied, nor how much, nor under what specific conditions. In the context of H.R. 4347, with its elimination of the automatic "nonprofit” exemption, the bill might well result in a lawyer's paradise by its inducement to lawsuits.

"Fair use" is a valuable adjunct but cannot alone meet education's needs, as witness the following:

(1) The Copyright Office's General Counsel said only a few months ago: "***the court decisions which have fashioned the doctrine of fair use have dealt mainly with quotations from one work in another. The courts have not

15 U.S. v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948).

10 Berlin v. E. C. Publications, 329 F. 2d 541, 543-4 (2d Cir. 1964).

17 Mercoid Corp. v. Mid-Continent Invest. Co., 320 U.S. 661, 666 (1944).

18 H. Doc. No. 54, 88th Cong., 1st sess., pp. 1–2.

ruled specifically on cases involving the reproduction of copies for purposes of research or teaching. But the general criteria on which the courts have based their decisions would seem to make the doctrine applicable to limited reproduction for such purposes.'

99 21

"Would seem" is all this outstanding and gifted copyright lawyer could say as to the alleged sufficiency of "fair use" for educational uses. Education is not interested in being a guinea pig for lawsuits; it wants the statute to set forth its rights clearly.

(2) The Copyright Office's special study on "fair use" says:

"*** fair use is not a predictable area of law.""

22

(3) The Copyright Office's Circular 20, "Fair Use," says the following:

"The line between 'fair use' and infringement is unclear and not easily defined. There is no specific number of words, lines, or notes that can safely be taken without permission. * * *" (par. 3).

"The safest course to follow *** is to get permission first. *** When it is impracticable to obtain permission, use of copyrighted material should be avoided unless it seems clear that the doctrine of 'fair use' would apply to the situation. If there is any doubt or question, it is advisable to consult an attorney." (Par. 5.)

The best advice to the teacher, then, seems to be to get a "hot line" to a lawyer every time he wants to use some teaching material. But even this may be of little real help.

In his preliminary 1961 report, the Register of Copyrights gave examples of what he regarded as clearly "fair use." But a disagreement ensued with the American Book Publishers Council as to the very example the Register cited, whether a teacher could make "fair use" of "a part" or only "a small part" of a copyrighted work. And the Music Publishers Association of the United States advised teachers that they could not use "any part" of any copyrighted work. A recent treatise, Nimmer on Copyright, section 145, says of "fair use": **** the scope and limits *** are most obscure, so that the issue of fair use has been called 'the most troublesome in the whole law of copyright.''

A National Science Foundation-sponsored study of photocopying found as follows:

"Because the doctrine of 'fair use' has never been clearly defined, librarians *** are at a loss to actually know whether they violate the copyright law. *** In many instances corporation librarians had asked the company's legal counsel for information. *** It is significant that no two legal opinions were in exact agreement." 23

It is also significant that this National Science Foundation-sponsored report found that each type of library regarded its own practice as "fair use" but not the others' practices. Thus, public libraries thought their single copy was legal but that university libraries were wrong in making multiple copies. University libraries believed "what they do is fair use" but not the copying practices of private business corporations' libraries. And the corporate library was convinced of the legality of its "internal use is fair use."

If all these copyright experts cannot agree on what is "fair use," how can anyone reasonably expect a third grade teacher in a rural school to know? The Copyright Office and its officials frankly admit that there have been no cases on the reproduction of copyrighted work by teachers, that "fair use" is not predictable, and that the safest course is to consult an attorney. Distinguished copyright lawyers disagree among themselves and with the Copyright Office. Treatises say that the scope and limit of fair use is most obscure. How then, can one reasonably expect and require all teachers to decide whether their con

Goldman, Abe A., "Copyright Law Revision and Music Libraries," Library Journal Mar. 15, 1965, p. 1268. Emphasis added.]

"Copyright Law Revision," Study No. 14, "Fair Use of Copyrighted Works," House Judiciary Committee, 86th Cong., 2d sess., 1960. p. 14.

Survey of Copyrighted Material Reproduction Practices in Scientific and Technical Fields, by George Fry & Associates (1962), p. V-20 [emphasis added).

templated lesson for tomorrow is "fair use"? It is unconscionable to foist off on the classroom teacher the daily requirement of a legal determination on what has been called "the most troublesome [issue] in the whole law of copyright." Teachers have a right to look to Congress for clarity and certainty on this subject, objectives which are not feasible or possible under "fair use," all the more so because the burden of proof is on the teacher. Without an automatic educational exemption such as proposed by the ad hoc committee, and such as the "for profit" provision now provides, "fair use" might well become a snare and a delusion to teachers.

This same involved argument (e.g., that "for profit" exemption is not necessary since "fair use" is enough) was made by the very same people" before Congress enacted the act of July 17, 1952, 66 Stat. 752. And Congress then rejected it as invalid, and this Judiciary Committee specifically insisted on both "for profit" and "fair use." It is respectfully submitted that this argument is as invalid now as it was when this committee rejected it in 1952.

Therefore, while "fair use" is important and should be written into the statute, it is not enough or adequate to meet education's needs in the copyright law. 3. Alleged economic harm to publishers

Another fallacious argument is the claim that education's proposal would wreck the publishing industry. All the available objective evidence points to the contrary.

Let there be no mistake about one fact. The ad hoc committee strongly believes in the free competitive system, and believes that its proposal strengthens and aids in advancing that system.

What are the facts? First, let us look at how the publishers are faring now in the face of widespread and growing copying under the present law:

1. Last October, Darrell E. Peterson, president of Scott, Foresman & Co., a large textbook publisher, stated the following before the New York Society of Security Analysts:

"I'm sure that everybody in the investment-banking business has made a projection estimating the potential for the next few years. We in the industry have also done some pencil work, and it seems there is at least one point on which we are all in accord. There are going to be a lot of books bought and sold in American schools between now and 1970."

The article continues:

"With that, he projected a compound growth rate of 8.1 percent a year for the textbook field in the period 1964–70 ***” 26

And the Dow-Jones tape for May 5, 1965, reports that Mr. Peterson announced his company's 9-month profit (to Jan. 31, 1965) of $2.17 a share, as against $1.76 for the comparable period-a 23.3 percent increase in profit per share in 1 year. The previously cited financial article in the New York Times said:

"Taking a searching look at the textbook field, Goodbody & Co. recently published a study pointing to the 'seeming immunity of the industry to fluctuations in the economy.' It classed the textbook field with the electric utilities and food companies in this respect ***.”

2. Crowell-Collier Publishing Co. merged with Macmillan Co. in 1960. Its annual report for 1963 contains the following very illuminating information:

"In the 4-year period 1960-63, textbook sales mounted from approximately $15,071,000 to $25,417,000, a gain of 69 percent. Of this total, high school and elementary textbooks went from $8,256,000 to $14,485,000, a gain of 75 percent. College textbook sales increased from $6,815,000 in 1960 to $10,932,000 a growth of 60 percent." (p. 3.)

"The School Department publishes elementary and high school textbooks, workbooks and programmed and other instructional materials. Establishing a new sales record of $14,485,000 in 1963, the department increased its volume by 25 percent over the $11,592,000 recorded in 1962." (p. 10.)

24 See. for example, the testimony of ASCAP and American Book Publishers Council, Hearings on H.R. 3589, 82d Cong., 1st sess., House Judiciary Committee (1951), pp. 26-27, 36-37. 25 H. Rept. 1160, 82d Cong.. 1st sess., on H.R. 3589, p. 2.

20 Textbooks Sales Head for Record," The New York Times, Oct. 18, 1964, p. 10F, col. 6.

3. Hirsch & Co.'s research and advisory department issued “A Review of Business and Financial Conditions" on textbook publishers, dated May 1965, which states the following:

"In 1963, * * * total retail sales of textbooks and standard tests amounted to $475 million as compared to $173 million in 1953. This represents a cumulative annual growth of 10.7 percent

"The textbook industry * * * should enjoy an annual rate of growth of 10 percent to 12 percent for the next 5 years at least, with the college sector expanding even faster. Further, the industry's growth should be sustained even in any downtrend in the business cycle" (p. 2).

Please note, the ad hoc committee is delighted the publishers are showing profits and hope and expect they will continue to do so. Our only point in bringing these facts to this committee's attention is to show this very fact, that publishers are prospering and that they expect to prosper even more despite all the copying that is now going on in schools. Our point is only that teachers' copying of copyrighted works has not, and is not expected to, hurt publishers economically.

Second, two recent U.S. Government-sponsored studies conclude that there is no harmful economic impact of photocopying on publishers and authors. A National Science Foundation-sponsored study of scientific and technical photoduplication thus describes why it was undertaken :

**** those who are concerned with the photoduplication problem admit that factual data on the extent of the threat are lacking. It was the realization that such facts are lacking that led the National Science Foundation to commission this study." 27

Its conclusions include the following:

"The basic conclusion of this report is that at the present time, no significant damage occurs to copyright holders in the scientific and technical fields although duplication of this material is widespread and is growing rapidly" (p. I).

"Because this report concludes that economic damages to copyright holders is not significant, it must also be a conclusion, from a nonlegal standpoint, that a control of the ASCAP type is not required at this time *" (p. VI-9).

The Air Force Office of Scientific Research-financed study on scholarly publications" summarizes its conclusion as follows:

"The extension of photocopying has led some publishers to fear that it may take over the market for publications of monographic scholarly material. However, the evidence presented in this study indicates that the reproduction of these materials by photocopying has not affected, nor is it likely to affect, the production of scholarly material in book form” (p. 71).

And its first recommendation is:

"Claims that photocopying has a damaging effect upon publishing are not substantiated by evidence and should be disregarded." (p. 77.)

Third, there is actual evidence of resultant advantage to publishers and authors from such photocopying:

(1) The National Science Foundation-sponsored study found that 55.8 percent of the authors "stated it was a definite advantage." (p. III-3). (2) The Air Force-financed study found: "Photocopying particular journals over a period of time can lead to subscribing to those journals” (p. 77). (3) And the Chicago Tribune of August 18. 1964 (p. 24), in an editorial specifically referring to remarks by Dr. Harold E. Wigren, chairman of the ad hoc committee, said:

"*** permitting educational, not-for-profit circulation of an author's writings might serve the writer better than an ironclad prohibition of such circulation without written permission. After all, an author's rights do not amount to much if no one wants to read what he has written-if no one has

See note 23. supra at p. IV-3.

Clarke, R. F.. The Impact of Photocopying on Scholarly Publishing," 1963 (a Ph. D. thesis at Rutgers University).

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