3. The revision of the copyright law take into consideration, insofar as possible, changes in technology for the teacher as well as for the publisher and author. 4. Legislation be enacted which is not contradictory, which can be enforced, which is relatively easy to interpret and which is not so strict that teachers will violate it because they cannot follow it and teach. 5. Section 107, page 7, be amended as follows: Notwithstanding the provisions of section 106, the fair use of a copyrighted work to the extent reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright. Noncommercial educational use by a nonprofit educational institution or organization shall be presumed to be such “fair use" unless specifically rebutted. 6. The time before copyrighted material becomes in the public domain be limited to 28 years plus 48 years at most. 7. A new section 111 be added, as follows: Notwithstanding the provisions of section 106, it is not an infringement of copyright for anyone lawfully entitled under section 109 to perform, exhibit, or to transmit a performance or exhibition of, a copyrighted work (save those originally consumable upon use, such as workbook exercises, problems, or answer sheets for standardized tests) (a) to make no more than one copy or phonorecord of the work in the course of such use, provided that no copy or phonorecord may be made of dramatic works (including any accompanying music), pantomimes and choreographic works, and motion pictures or filmstrips unless the performers and the audience are limited to students, faculty, or staff, and (b) to make a reasonable number of copies or phonorecords of excerpts or quotations from the work, provided that such excerpts or quotations are not substantial in length in proportion to their source, solely for purposes of such person's or organization's own teaching, lawful performances, exhibitions and transmissions, for course work study in connection therewith, for research or for archival purposes, provided that no such copyrighted material is sold or leased for profit and that no direct or indirect private gain is involved. 8. The period during which an "ephemeral recording" is permitted for closed circuit and broadcast transmission be extended from 6 months (in the present bill, sec. 110) to 3 years. This would permit educational institutions to record copyrighted materials for instructional purposes for delayed transmission and later reuse. Such a right would permit video tapes and kinescopes of copyrighted material to be made for later educational use. 9. Any attempts to provide for a complete waiver of fines on infringers be supported. Such a provision would give the court the authority to limit damages to actual loss to the copyright proprietor where it can be shown that the teacher or educational institution was unaware that it was violating a copyright. 10. Section 109 (4) be broadened to include educational television of nonclassroom oriented character: (4) Performance or transmission of a nondramatic literary or musical work, without any prior * * * Thank you very much, Mr. Chairman. Mr. KASTENMEIER. Thank you very much, Dr. Gerletti, for your most instructive presentation. You deal with some specific tools of instruction. I am wondering what your attitude is toward anticipation of the changing technology, the devices of audiovisual instruction in the future. Are we likely to continue a revolution that will see in 10, 15, or 20 years devices that we would not even envision today? Dr. GERLETTI. Based on our past experience, and based on the rapidity with which we are moving at the present time, I would say yes. Mr. KASTENMEIER. Do you think we can write a law which would adequately anticipate these changes? Dr. GERLETTI. I hope so. This is part of our problem right now. Mr. KASTENMEIER. You would rather have us try, rather than haying us leave it open, that is, nondefinitive, leaving fair use undefined? Is that right? Dr. GERLETTI. I think I would have to say here that we support the ad hoc committee at the present time. That is, their position. Mr. EDWARDS. I have no questions. I would like to thank my fellow Californian for coming here to give us this excellent testimony. Mr. KASTENMEIER. There being no questions, that concludes our hearing for today. Thank you for appearing. We will reconvene at 10 o'clock tomorrow morning, to hear a number of other associations representing teachers and libraries. This subcommittee stands adjourned, then, until 10 o'clock tomorrow morning. (Whereupon, the subcommittee recessed at 4:55 p.m., to reconvene at 10 a.m., Thursday, June 3, 1965.) COPYRIGHT LAW REVISION THURSDAY, JUNE 3, 1965 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE No. 3 OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met at 10 a.m., pursuant to recess, in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier presiding. Present: Representatives Kastenmeier, St. Onge, Edwards, Tenzer, Poff, and Hutchinson. Also present: Herbert Fuchs, counsel and Allan Cors, associate counsel. Mr. KASTEN MEIER. The committee will come to order. We will resume our hearings on copyright revision. The Chair would like to announce that we will be obtaining permission to sit this afternoon and for tomorrow afternoon. Today we are pleased to commence with Prof. James I. Miller, Jr., and Dr. Robert Shafer, representing the National Council of Teachers of English. Professor Miller and Dr. Shafer, welcome to the committee. you, Mr. Chairman. STATEMENT OF PROF. JAMES I. MILLER, JR., PROFESSOR OF ENGLISH, UNIVERSITY OF CHICAGO, AND DR. ROBERT SHAFER, PROFESSOR OF ENGLISH, TEACHERS COLLEGE, COLUMBIA UNIVERSITY, ON BEHALF OF THE NATIONAL COUNCIL OF TEACHERS OF ENGLISH Dr. SHAFER. First of all I would like to request permission to incorporate our complete statement as filed with you in the record. Mr. KASTEN MEIER. Without objection your complete 23-page statement will be received and made a part of the record. (The document referred to follows:) STATEMENT ON H.R. 4347 FOR THE GENERAL REVISION OF THE COPYRIGHT Law SUBMITTED BY THE NATIONAL COUNCIL OF TEACHERS OF ENGLISH INTRODUCTION The National Council of Teachers of English has viewed with interest efforts to bring up to date the U.S. copyright law, which is provided for in the U.S. Constitution. As the world's largest independent professional organization for teachers of any one subject, enrolling over 100,000 members and subscribers from all levels of education, the national council rightfully feels a considerable stake in the new law. The officers, the board of directors, and the members of the 419 council appreciate this opportunity to present both written and oral testimony for study by members of the House Judiciary Committee. Under article I, section 8 of the U.S. Constitution, "the Congress shall have power *** to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The present U.S. copyright law was, in its basic form, enacted in 1909. The National Council of Teachers of English recognizes that basic changes in technology, industrial development, community organization, and business practices have altered relations between authors and the users of copyrighted materials and since 1924 judicial interpretations of the 1909 act have led to frequent efforts to revise the act. These same changes in our society have also led both to new demands on schools and colleges and to a revolution in teaching and in scholarship at all levels of our educational system. Although new teaching methods and materials have emerged, the basic aim of education in our society remains to provide an opportunity for each individual to develop his abilities to his own maximum potential. In particular, the teacher of English in secondary school and college has special responsibilities for helping students develop basic skills of reading, writing, speaking and listening and for providing a background of knowledge and experience in the study of the English language and literature. Except for proportionately greater emphasis on skills, 1 million elementary teachers share the same responsibilities. To perform this kind of role the teacher needs access to copyrighted material for direct use with his students in a classroom. He needs a variety of instructional materials other than those available in a single textbook which his students may have purchased or which may be supplied by his school system. Why is this true? It is true because of the wide range of abilities and experience among students in any one classroom and because of the desire of all teachers of English to provide the best possible experiences for these students. Teachers of English continually search for literary selections of interest and value to their students, to serve as models of good writing and to help them understand and interpret the contemporary world around them. Teachers need the right to copy portions and excerpts of literature of high quality to develop in students the ability to read critically and to contribute to their general background in the humanities. At times abridgement or excerption would destroy the design and integrity of, say, a poem or a short essay; here the entire work is essential. Almost all of this modern literature exists only in copyrighted sources. The single textbook anthology, used sometimes in elementary schools, often in secondary schools and college classrooms, can hardly contain within its covers the great variety of modern literature which is needed for the teacher to use for instructional purposes in a classroom. By its nature the anthology may be contemporary, but it cannot be current. For example, the Robert Frost poem, "The Gift Outright," read at the inauguration of President John F. Kennedy, had great teaching potential for all teachers of English. Many used it in the days immediately after the inauguration to illustrate the value of poetry in capturing the spirit and essence of a key moment in our national consciousness. The poem was a copyrighted poem but not available in any textbook. Should a teacher deprive his students of such an experience because of the fact that the poem does not exist in a students' textbook? Under the proposed law, if the teacher had copied the new poem for use with his class he could have been sued by the Frost estate, found guilty as an infringer, and subjected to a mandatory fine of $100 damages for such use. It seems incongruous that such a condition could obtain on a teacher of English whose only thought would be to introduce his students to a timely work by one of America's outstanding poets. Indeed, for many younger students in American schools this might be the first introduction to Robert Frost and. in fact, to American poetry. A primary concern of the National Council of Teachers of English is to promote the use of all appropriate material for the purpose of teaching, research, and scholarship in language and literature. Therefore, the National Council of Teachers of English has participated in the deliberations of the Ad Hoc Committee on Copyright Law Revision since the inception of that committee early in 1963. Spokesmen for this ad hoc committee recently submitted testimony on behalf of the 33 scholarly and professional organizations which it represents. |