Mr. TENZER. I may be wrong, but I would suggest that the purchase of one copy of the New York Times and the making of a given number of copies of an extract or excerpt for use within the classroom in face-to-face instruction is a "fair use." Mr. ROSENFIELD. Mr. Tenzer, this is precisely the point the teachers are faced with. The Register of Copyrights told us officially this is wrong. You say this is right. We hope you are right. But what we are suggesting is that nobody knows now. All I am suggesting, Mr. Tenzer, is that in connection with this Music Copyright Law Guide put out by the Music Publishers Protective Association and the Music Publishers Association, if the teacher reads this, which says he may not make a copy of "any part," the teacher is not looking for a lawsuit. The result is going to be that the teacher will not use it and the effect is that the education of America will be impoverished. This is our problem. Mr. KASTENMEIER. We will recess. And will you be available at 2 o'clock? Mr. ROSENFIELD. Indeed we will, Mr. Chairman. Mr. KASTENMEIER. This committee stands in recess until 2 p.m. (Whereupon, at 12:15 p.m., the committee recessed, to reconvene at 2 p.m. of the same day.) AFTER RECESS (The subcommittee reconvened at 2 p.m., Hon. Robert W. Kastenmeier, presiding.) Mr. KASTENMEIER. The committee will come to order and we will resume hearing the witnesses who were testifying this morning when we recessed. May I state for the record that the committee has permission to sit during the course of today's House debate. At the time the committee recessed, a committee member was asking both Dr. Wigren and Mr. Rosenfield questions regarding the testimony. I was wondering whether counsel has questions. Mr. Cors, you have not had an opportunity. Mr. CORS. No questions. Mr. FUCHS. Mr. Rosenfield, several times in your statement you referred to the double-barreled exemption of existing law by which I understood you to mean fair use and also the "for profit" requirement. Is it not a fact that the "for profit" requirement has nothing to do with copying? FURTHER STATEMENTS OF DR. HAROLD E. WIGREN AND HARRY N. ROSENFIELD, ON BEHALF OF THE AD HOC COMMITTEE ON COPYRIGHT LAW REVISION Mr. ROSENFIELD. I don't think it is a fact. As I said at the bottom of page 7 of my written statement, under the present law the courts have not ruled specifically on cases involving the reproduction of copies for purposes of research or teaching. This is a quotation directly from the General Counsel of the Copyright Office, Mr. Goldman. However, as I pointed out, and I cite this in my footnote, there are at least three noted authorities for the view that teachers and educa tional broadcasting, both radio and television, have copying and recording rights under the present "for profit" provisions and apart from "fair use." I think, Mr. Fuchs, that your question is correct insofar as the language of the statute on its face is concerned. It appears to speak only of "performance." However, one of the items I cite is a report of a study by Fred S. Siebert, published by the American Council on Education under a grant from the U.S. Office of Education, entitled "Copyrights, Clearances, and Rights of Teachers in the New Educational Media." This was published in 1964. Dr. Siebert is both a lawyer and the dean of the School of Communication Arts at Michigan State University. Page 33 of this distinguished study reads as follows: Although the "not-for-profit" exemption does not appear in the particular phrases of the Copyright Act that restrict recording rights, the presence of this phrase in both the preceding and the succeeding clauses lead to the conclusion that educational media may make recordings of copyrighted literary and musical materials on a not-for-profit basis depending somewhat on the subsequent use made of these recordings. On page 34 he says: In summary, until the copyright statute is amended or until the courts make a clear-cut decision, it is submitted that educational not-for-profit programs may be recorded and that noncommerical reuse of these recordings and transcriptions is permissible. Secondly, I cite Ralph R. Shaw, "Literary Property in the United States" (1950), page 98, as follows the term "copying" in the Act does not apply to the making of a copy or of extracts by the scholar for his own use. *** The making of a copy for personal use appears to be completely outside the scope of the statute. * ** Since it is outside the scope of the Copyright Act, such copying for one's personal use is not subject to interpretation under the doctrine of fair use, nor is it subject to any legal restraint whatsoever. I have also cited an opinion by the very distinguished firm of Webster, Sheffield, Fleischman, Hitchcock & Chrystie, on the rights of copying by libraries, which seems to go beyond the question of "fair use. In fairness, Mr. Chairman, I want to make it clear that there is an overwhelming preponderance of view to the general purport of Mr. Fuchs' question, but all I am suggesting is, one, there has never been a holding on it; and two, there is very respectable legal authority to the contrary and we are not about to try to give that up simply because other people disagree with us. Mr. FUCHS. That brings me to the second part of my question: isn't there a double-barreled exemption under the proposed bill? We have fair use as much in this bill as under existing law-perhaps just a little bit more and then we have 109(1) which purports to give a total exemption for face-to-face classroom activity. It is just as double barreled as the other. I was wondering what teachers would be giving up by being offered this new bill. Mr. ROSENFIELD. My answer to your specific question is that there is not, and I think the answer to that is in the comment from the Register's Report of 1961 which appears at the top of page 5 of my statement, where he approves at that time-he has since changed his mindthe principle of the "for profit" limitation as striking a sound balance between the interests of the copyright owner and the public and then goes ahead and says: We believe *** that any attempt to specify the various situations in which the principle applies— which would be the technique used in 109 (1), (2), (3), and (4)— would be likely to include too much or too little we think it is the latter and to raise new uncertainties. We think it means that, at least insofar as it may not give us what may be possible under the present act. Mr. Fuchs. What new uncertainties are raised by 109(1)? Mr. ROSENFIELD. None whatsoever. Mr. FUCHS. The one that applies to face-to-face teaching? Mr. CORS. If I am not mistaken, Dr. Wigren earlier indicated that perhaps there would be a greater propensity on the part of the authors to sue or to bring infringement actions against teachers in the copying area. Mr. Rosenfield, if you agree with this view, could you expand on it, other than your idea concerning the not-for-profit exemption that is being eliminated? What is going to facilitate suits under this new bill, going to make suits more likely than under the present law? Mr. ROSENFIELD. When the "spirits" get up people get annoyed and disturbed. There has been so much discussion on this subject now and so many people have actively threatened suit-we assume that they mean what they are saying that there is reason to fear such litigation, now that the issue has been opened up and brought from under the table. At present it is an under-the-table "understanding," as one of the author witnesses said, "the unspoken understanding." It is now on top of the table, and we feel and we have been given vocal examples that the fear of lawsuits against teachers is not unwarranted, that people are going to make a lesson of all of this and bring the suits to show us that we can't do this. I must confess in all fairness I can't blame teachers for such fears. Mr. CORS. Did I understand you to say there is nothing in the bill that is going to encourage suits, but that even if we do not enact this legislation, the question has irrevocably arisen and we are faced with it now though there is really nothing pertaining to it in the bill itself? Mr. ROSENFIELD. Except that if this committee reports a bill which makes it clear that the congressional intent under the new bill excludes the option which we think is available under the present law, then they will have greater justification for hope of winning. We think one of the reasons they are not bringing the suits now is their fear of losing. Mr. HUTCHINSON. No questions. Mr. KASTENMEIER. Mr. Tenzer, would you care to return to your line of questioning? Mr. TENZER. Either that line of questioning or I would appreciate, Mr. Chairman, an opportunity to ask Mr. Rosenfield a few more questions. I would like to direct your attention to the discussion you have in your original statement, Mr. Rosenfield, and to which you refer in your remarks on page 14, the discussion relating to fair use. You spoke there of the need for clarity for the teachers, and we agree that there ought to be some clarification in the congressional intent, if not in the statute itself. In your proposed section 111, you use the term "reasonable" number of copies. The term "reasonable" has been used in as many written books and law decisions as the term "fair use." How would there be greater clarity and certainty for the teachers if the reasonableness was left open for discussion, and what do you consider a reasonable number of copies? Mr. ROSENFIELD. There are two issues involved, Mr. Tenzer. First, section 111 as drafted-and we hold no brief for its language; our objective is to show what we have in mind-section 111 makes it clear beyond peradventure of doubt that copies are legal. This is the principal issue at stake here, whether copying, as Mr. Fuchs pointed out, goes beyond the question of performance. The principal thing that we have in mind is the hope that you would be able to help the teachers of America proceed with their job by saying in statutory form that copying of a limited kind is legal. Secondly, we regard as reasonable that which relates to the educational process. In other words, if the class is 30 pupils, then 600 copies are not reasonable-but 31, 33, 35 copies, to provide for losses of some kind, would be reasonable. In other words, the purpose for which the copying would be made is the classroom situation. Mr. TENZER. And you are still confining yourself to face-to-face instruction? Mr. ROSENFIELD. As far as the multiple copies are concerned in the classroom teaching, yes; but we also sought to provide for the allowable educational broadcasting as included within copying. As Dr. Wigren said, we don't see any difference in education whether it is in a book or on a screen if it is a legitimate educational screen. Mr. TENZER. Cite an example. If there were a broadcast on an educational program and you had another set in the room and you tuned in for face-to-face instruction with the students of the class, are you raising a question as to the type of a broadcast? Mr. ROSENFIELD. Do you mean would we want it to be permitted? Mr. TENZER. Yes. Mr. ROSENFIELD. The answer is "Yes." Dr. WIGREN. One of the members of our committee suggested a formula, the number of youngsters in the class plus 10 percent, as a reasonable figure. We discussed this at length but we did not come up with any agreement as to whether this was good or was not good. As far as classroom television in concerned, a program is beamed to many different rooms. Let's take a city like Miami. They have some classes in Miami that have 300 youngsters in them. We would hope, as the program went on the air and was received in a large class team-teaching type of situation, that there would be some student materials that would have to be worked on along with the telecast. In other words, some of the things that would be put on the telecast would also be duplicated so that youngsters could have them at their seats to work with the television teacher. These are necessary if you are going to get interaction and participation with the program. You just don't talk at children. You have to have children work with the teacher and at certain points, as the teacher would raise a question and there would be a problem presented in an open-ended manner, the children would have the material to work with at their seats. In that case, I would think it would be enough for the youngsters in the class plus an overage amount, a small amount, for the youngsters who might be absent and would have to get material the next day and so on. Mr. TENZER. Dr. Wigren, are you still confining yourself to elementary and secondary instruction? Dr. WIGREN. This would also be true at college level. Mr. TENZER. But you are not referring to broadcasting or educational broadcasting for adults who are not attending school? Dr. WIGREN. We would say they should be covered too. For example, "Let's Lip Read" is a series that goes on the air in Washington for adults. We have material and we have guide sheets for viewers and particularly for people who are in old folks' homes. There we have viewing groups, and we feel it is necessary for them to fill in certain blanks to see whether or not they caught what the person said who is lipreading on the screen. There was no audio and the teacher was just lipreading and we wanted to know whether or not this person picked up everything, so it would be necessary to have these kinds of materials to go along with the telecast. I guess I am saying that the telecast by itself is not really complete. You have to have a great many other materials to make the telecast meaningful to people. Mr. TENZER. An educational telecast-I have no previous experience except as a listener or viewer with either broadcasting or instructional television-is it not true that if there is an instructional television broadcast going on and I am sitting at home I don't have to make a payment for listening or viewing? You are not referring to that, are you? Dr. WIGREN. In making copies? Mr. TENZER. Yes. Mr. ROSENFIELD. In some cases we are. In the city of Washington they had the program "Operation Alphabet," the purpose of which was to bring illiterate people into the realm of literacy. It is very difficult for some to admit they are illiterate, and that problem was not satisfactorily solved in this program at the local educational TV station. One of the ways of getting at such people may be in their homes. Mr. TENZER. Who would prepare the material to send into the homes? Mr. ROSENFIELD. The school operating the program Dr. WIGREN. Just like we were doing for lipreading. Mr. TENZER. In your view the author of the material should receive no compensation for the duplicating of the vast number of copies of the copyrighted work that would go into the various homes upon request of the viewer or on a free distribution basis? Mr. ROSENFIELD. We are asking for only one complete copy. |