Mr. TENZER. Who makes the other copies? Mr. ROSENFIELD. The other copies we don't send around. The one complete copy in effect is the teacher's copy. The excerpts are for the pupils, so that we would not take a whole book--and we are not asking for the right to take a whole book and make 50 copies available or 750 copies available and send it around to every student studying under the "Operation Alphabet" or the lipreading program. All we are asking for in the multiple copies for the pupils are excerpts which are not substantial in relation to the whole. Mr. TENZER. We heard teachers testifying here who were depending upon these so-called "moonlighting" activities of creating educational material, who indicated that they were partially dependent upon this type of creativity on their part for extracurricular income. How would they be compensated for the use of this material which they created? Mr. ROSENFIELD. I think the quotations I have given in my statement from the Air Force-sponsored program and from the National Science Foundation study shows that more authors think that copying helps them, despite what was said here by authors. For example, NYU, I am told, had a "Sunrise Semester" program with pretty esoteric books at something like 6:30 in the morning. Some of the biggest booksellers in New York said of books that they had never sold before they could no longer keep them in stock, because they were getting such visibility on this program. Dr. Wigren can speak for himself, but he has told us a story of when he was in the Houston, Tex., public schools-Harold, why don't you tell that story? Dr. WIGREN. We had a shortage of films Mr. KASTEN MEIER. May I interrupt to say we must move along. Mr. ROSENFIELD. Our answer is that it would be helpful rather than hinder them. Mr. TENZER. What percentage of a total book would you consider a proper excerpt? Mr. ROSENFIELD. We have made no specific allocation of that amount, and we have said merely a "reasonable number" of excerpts where they are not substantial in proportion to the whole, and this may require more rigid statements from this committee. Mr. TENZER. So actually the extent of an excerpt, the reasonableness as to the number of copies, and fair use are all in the open area requiring judicial interpretation? Mr. ROSENFIELD. Except that copying is specifically permitted. Mr. ROSENFIELD. That is correct. Mr. TENZER. That is all, Mr. Chairman. Mr. KASTEN MEIER. I thank both witnesses for their appearance here today. Mr. ROSENFIELD. Thank you, gentlemen, for your kindness. Mr. KASTENMEIER. The committee appreciates the fact that subsequent witnesses today have permitted an unscheduled witness to appear to make a brief presentation to the committee. He is Mr. Tom Arnold, who is chairman of the Section on Patent, Trademark, and Copyright Law of the American Bar Association. STATEMENT OF TOM ARNOLD, AMERICAN BAR ASSOCIATION Mr. ARNOLD. I thank the committee and the other witnesses who have permitted me to get out of line in this presentation. Mr. Chairman, I am Tom Arnold, of Houston, Tex., partner in the law firm of Arnold & Roylance, Tennessee Building, Houston, Tex. The American Bar Association is an association of over 118,000 throughout the Nation, and I am chairman of that association's Section on Patent, Trademark and Copyright Law. I appear before you and make this statement, on behalf of the American Bar Association. THE MECHANICS OF AMERICAN BAR ASSOCIATION POSITIONS On topics relating to patent, trademark, and copyright law, the positions of the American Bar Association are normally arrived at in this manner: first the issue is submitted to a committee (typically 30 or 40 lawyers) of the Section on Patent, Trademark and Copyright Law, and reported in printed reports in advance of an annual meeting of that section. At the annual meeting after the publication prior thereto so that all who are interested may be in attendance, the issue is debated on the floor of the section meeting, sometimes for hours and by and before several hundred interested participants. If the issue is approved by the Section on Patent, Trademark and Copyright Law, it is then again printed and circulated to the membership of the House of Delegates of the American Bar Association so that all who are interested may attend and argue their position. When the House of Delegates of the association has acted, the action. of that body is the action of the association. While on occasion where timing is critical, other procedures are followed, the issue upon which I speak was one wherein the American Bar Association position was arrived at by this time-consuming but deliberative procedure, wherein open debates of the issues were repeatedly publicized and debated. 11.R. 4347 This bill has been pending only a few months and the American Bar Association has not yet been able to crystallize a position with respect to its many and varied positions and purposes. However, section 114 of the bill concerns an issue upon which the association has taken consistent positions for more than a decade, both by way of initiative and by way of approval of bills to amend the copyright law. Section 114 would repeal the so-called jukebox exemption of section 1(e) of the 1909 Copyright Act which provides that: *** the reproduction or rendition of a musical composition by or upon coinoperated machines shall not be deemed a public performance for profit unless a fee is charged for admission *** [to the place of performance]. 52-380-66-pt. 1-25 The repeal of this exemption of jukebox performances from the definition of "public performance for profit" in the copyright law was endorsed by this association 12 years ago in the language: Resolved, That the American Bar Association approves the principle of eliminating from section 1(e) of the Copyright Act the exemption provided for coinoperated machines. The association has adhered to this position ever since. THE SIGNIFICANCE OF THE POINT The jukebox industry is the only commercial user claiming a statutory sanction for the free use of copyrighted works in public performance from which the users profit. The present statute thus favors one class of commercial users and singles out one group of copyrighted works-musical compositions— as the victims of this discrimination. One of the important features of H.R. 4347 is that it contains no exemptions whatsoever in favor of any commercial user. Thus it places musical works on a parity with dramatic works-a change long overdue. The jukebox industry today is one of the most substantial commercial users of music. A single manufacturer of jukeboxes reports annual sales of $85 million. The boxes themselves account for $500 million of annual receipts derived exclusively from performing musical works. Symphony orchestras which do not operate for commercial gain pay for the performance of music; radio, which uses records almost exclusively, also pays. Noncoin mechanical devices pay. The discrimination that exists is of major proportion, and is without logical or equitable foundation. It would appear that it could not be foreseen in 1909, when our present copyright law was enacted. As Mr. Abraham L. Kaminstein, Register of Copyrights, points out in his supplementary report (Copyright Law Revision, pt. 6, pp. 13-14): Obviously, no one can foresee accurately and in detail the evolving patterns in the ways author's works will reach the public 10, 20, or 50 years from now. Lacking that kind of foresight, the bill should, we believe, adopt a general approach aimed at providing compensation to the author for future as well as present uses of his work that materially affect the value of his copyright. As shown by the jukebox exemption in the present law, a particular use which may seem to have little or no economic impact on the author's rights today can assume tremendous importance in times to come. A real danger to be guarded against is that of confining the scope of an author's rights on the basis of the present technology so that, as the years go by, his copyright loses much of its value because of unforeseen technical advances. For these reasons, we believe that the author's rights should be stated in the statute in broad terms, and that the specific limitations on them should not go any further than is shown to be necessary in the public interest. In our opinion it is generally true, as the authors and other copyright owners argue, that if an exclusive right exists under the statute, a reasonable bargain for its use will be reached; copyright owners do not seek to price themselves out of a market. But if the right is denied by the statute, the result in many cases would simply be a free ride at the author's expense. This statement sets forth succinctly the reasons which prompted the American Bar Association to adopt its resolution which it earnestly submits for the consideration of this committee, and which I repeat: Resolved, That the association approves the principle of eliminating from section 1(e) of the Copyright Act the exemption provided for coin-operated machines. I thank you for the opportunity to appear before you and give you the views of the American Bar Association. Mr. KASTENMEIER. We thank you for your testimony. It is not likely that your section will meet again so that you will have anything further to present as an ABA section view about this particular bill or proposal. Mr. ARNOLD. We will have a full day devoted to nothing but this bill on Tuesday, August 10, at the Miami convention. We hope to crystallize from that convention a section position which we will then be able to take to the House of Delegates meeting by next October. Therefore, by October I would hope that we would have an official association position on maybe 10 or 20 provisions of the bill. As of the moment, this is the only one we have crystallized a specific position on. Mr. KASTENMEIER. Last year there was a bill, H.R. 11947, July 20, 1964, which covered general revision of copyright law, introduced by the chairman of this full committee. That is not quite a year ago. Have you had any opportunity to work on that, or even the 1961 report? Mr. ARNOLD. Our committees have studied both of these efforts. I think the section took no position on the 1961 report of the Register of Copyrights as I recall. We as a section did not get enough study and crystallization to act on the bill H.R. 11947 last year. Whereas we have studied the last Congress' bill, H.R. 11947, we were unable to bring about a consensus of opinion that we were able to carry to the association for action by the full association. Mr. KASTENMEIER. Any questions? Mr. ST. ONGE. No questions. Mr. EDWARDS. No questions. Mr. TENZER. You referred to the jukebox industry and coinoperated machines. What would you suggest would be the situation in the case of a retail merchant who has a phonograph or record player in the back of his shop and purchases records and plays them for his own amusement and for the amusement of any of the customers who patronize his shop? Mr. ARNOLD. I confess that I had not given that specific situation an adequate study to make an informed and intelligent answer. Certainly this situation is a variant from the one upon which we have crystallized a position, because that performance is not one where the individual performance was paid for with the nickel, the dime, or the quarter. There the proprietor may be seeking to use the music for profit by way of creating mood and atmosphere in his establishment, and it would seem to me reasonable that the law should provide some way whereby the author would get compensation; but the complica tions of tracking that back down through the economics of the recording industry is not one I have thought through enough. It seems to me you would probably have to say that use where there was no coin used for the play would have to come probably within the general license to make the record for public performance, without an additional charge back for the playing where there was no dime or quarter or whatever it was put into a machine for the playing. But this machine playing, you see, is kind of unique, in that this is an additional compensation that is derived from each individual performance above and beyond the making of the record in the first place; and out of this compensation, which comes to hundreds of millions of dollars a year, the author gets not one farthing. Mr. TENZER. What about a situation where there is a factory with 50 workers, and the workers brought their own record player and records and played them from time to time, without the use of a coinoperated machine? Mr. ARNOLD. Not a coin-operated machine and not within the principles to which I am speaking today. Mr. KASTENMEIER. If there are no further questions, the committee thanks you for your appearance. Now we would like to hear from Dr. Lois V. Edinger, president of and representing the National Education Association. STATEMENT OF LOIS V. EDINGER, PRESIDENT, NATIONAL EDUCATION ASSOCIATION OF THE UNITED STATES Dr. EDINGER. Mr. Chairman and members of the subcommittee, I am Lois V. Edinger, president of the National Education Association of the United States. I have served as a classroom teacher of history in the high schools of Thomasville, North Wilkesboro, and Whiteville, N.C. I have served as a studio teacher of U.S. history on the North Carolina in-school television project, which is part of the North Carolina Educational Television Network. I am on leave from my permanent position as assistant professor of education at the University of North Carolina in Greensboro. Today, I appear before you in my present elected capacity as the president of the National Education Association, the largest professional organization in America, consisting of 942,500 members, which represents the broad spectrum of American education. Its membership ranges from kindergarten teachers to college professors. It includes administrators, supervisors, school principals, county and State superintendents of public instruction and their staffs, and other individuals. Approximately 90 percent of the NEA members are classroom teachers. WHY THE NEA IS INTERESTED IN COPYRIGHT LAW REVISION NEA has two primary interests: the improvement of instruction in the Nation's schools and the protection of the rights of teachers and their welfare. Both of these interests are affected by any revision of the copyright law. |