The National Council of Teachers of English supports the position of the Ad Hoc Committee on Copyright Law Revision in seeking a special exemption in the proposed new law for teachers and scholars as users of copyrighted material. Our fundamental concern is to provide an education of the highest quality in language, literature, and composition for all students in the United States. Only to the extent that today's students become a literate reading public tomorrow will authors and publishers have a market for their creative efforts. Imaginative planning and teaching create audiences for all the literature produced in our society. Conscious of this mission, teachers of English are seeking to improve their educational programs at all levels. In the past 5 years, the National Council of Teachers of English has produced two studies, "The National Interest and the Teaching of English," and "The Continuing Education of Teachers of English," which highlight the connection between improvements in English teaching and our national interest. Special projects now underway with council leadership which give particular attention to the development of language and reading skills for culturally different youth, to the teaching of English as a foreign language, and to the teaching of English in the junior college. It is in the interest of promoting these and similar projects that the National Council of Teachers of English supports the position of the Ad Hoc Committee on Copyright Law Revision and declares its permanent interest in the priority that must be assigned to the reasonable use of copyrighted materials for teaching purposes. As background for this testimony, members of the ad hoc committee surveyed 500 teachers from one school system to determine the extent to which they make use of copyrighted materials. Another survey, taken at a national meeting of English education specialists, college professors of English, and teachers and supervisors from elementary and secondary schools, sought to identify not only instances of use but also cases in which, under the present law, these educators refrained from or were barred from using such materials. These surveys brought to light elementary teachers who photocopy or otherwise duplicate poems for choral speaking; a supervisor who makes copies of charts from copyrighted periodicals to show to the board of education at administrative meetings; high school teachers who make transparencies of poems for class analysis; a supervisor who duplicates an entire article from an education encyclopedia to send to teachers on a curriculum committee; a drama teacher who tape records a school dramatization both for class analysis and for sending to other school drama groups; a teacher of the visually handicapped who makes copies of pages from books and has them enlarged for her handicapped students; teachers of public speaking and rhetoric who tape record political speeches for subsequent analysis in class; a considerable number of school and college teachers who duplicate copies of poems or prose extracts not in the text to test their students' ability to deal with new materials. The National Council of Teachers of English holds that no new copyright law should discourage such imaginative educators from creative teaching. Nor should they have to search for subtleties between the lines of the law to find their justification, or depend on the magnanimity of copyright holders who would consent before the fact not to prosecute such uses of materials even though the law might specifically prohibit such uses. Even under the present law, less stringent than the proposed one, restrictions and ambiguities discourage other teachers from similar procedures: teachers who wanted to duplicate poems for examination purposes and the teacher who wanted to present a copyrighted play for a school assembly, all of whom gave up because of delays in receiving permission; the television teacher who wanted to use short poems in a program addressed to high school students but who was discouraged by the prohibitive cost of permissions; the English education specialist who wanted to photocopy samples of a new teaching alphabet for use in a class with prospective teachers, but whose office refused to make the copies because the material had been copyrighted; the great number of educators who simply refrain from any such practice because, they admit, they are either afraid of violating the law or they cannot find out what is permissible; and, finally, the research specialist, working on a grant from the U.S. Office of Education to develop teaching materials, who wanted to use approximately 10 literary quotations (usually not more than 3 to 5 sentences each) to illustrate levels of usage and varieties of American speech but was discouraged by legal counsel from attempting to do so. COPYRIGHTED MATERIALS NEEDED FOR SCHOLARSHIP Professors of English at colleges and universities constantly need to use copyrighted materials for the purposes of research and scholarship. Some journal articles, monographs, and other publications needed by scholars for legitimate research activities cannot be ordered from the publisher because they are out of print even though they are still under copyright. Where library use might suffice, extant copies may be available only in distant libraries inaccessible to the scholar. Obviously any law which would not permit reasonable copying of copyrighted material from out-of-print or otherwise unobtainable sources would be an anathema to all scholars in the humanities and would seriously restrict their activity. It seems inconceivable that the Congress would give serious consideration to a law which places the scholar at such a disadvantage. H.R. 4347, as originally introduced, places the scholar in the same relation to copying copyrighted material as the instructor in the classroom. If he cannot purchase or otherwise obtain permission to copy, his only recourse is the "fair use" provision of the law, which not only places him in an ambiguous position each time he copies, but which does not provide for the copying of whole works such as complete poems or complete articles which would be essential both in teaching and in research and scholarship. Consider the case of the scholar who is working on some of the short stories and essays of F. Scott Fitzgerald originally published only in limited editions or in magazines. The legitimate study or criticism of one of these short stories or essays would require photocopying the entire story or essay. Currently, there is considerable question among copyright attorneys as to whether section 107, Limitations on Exclusive Rights: Fair Use, would adequately cover such a contingency which daily confronts the working scholar in his efforts to study and criticize the works of our authors. The National Council of Teachers of English strongly urges a special educational exemption for scholars which does not place them in the ambiguous position under section 107 as it currently stands (see below), but which allows them to proceed with their work knowing exactly where they stand with respect to the copying of copyrighted materials for scholarly purposes. THE NEED FOR SPECIAL EXEMPTION FOR EDUCATION The proposed bill (H.R. 4347) effectively repeals the special automatic educational exemption apparently provided now by the "for profit" clause in the current law. The present copyright law, which dates back to 1909, provides two legal bases for the use of copyrighted materials by teachers and scholars: 1. There is the "for profit" provision where Congress has long stated as a basic public policy that teachers and scholars have an absolute and automatic exemption from the copyright law to make certain uses of specified types of copyrighted materials. For example, any teacher in a public or private school may perform (in classrooms, through educational broadcasting, in the auditorium, or on a field trip) copyrighted literary, historical, political, and musical materials without first obtaining permission so long as such material is not dramatized and such performance is not "for profit." What happens to this exemption in H.R. 4347? The whole "for profit" clause is effectively repealed by a totally new and untested provision which would permit : "(1) performance or exhibition of a work by instructors or pupils in the course of face-to-face teaching activities in a classroom or similar place normally devoted to instruction; "(2) performance of a nondramatic literary or musical work, or exhibition of a work, by or in the course of a transmission, if the transmission is made primarily for reception in classrooms or similar places normally devoted to instruction and is a regular part of the systematic instructional activities of a nonprofit educational institution ***." These proposed provisions effectively wipe out many of the teachers' special exemptions which existed under the "for profit" clause of the present law. The use of modern technological devices and developments which are now being introduced into many schools will be seriously curtailed if the law is passed in this form. For example, a teacher might make a transparency of a work which is copyrighted and project it on a screen in the room for her students on an over head projector. This would be an infringement under H.R. 4347 because the teacher would have had to copy the material in order to make the transparency. Such use, although now made under the "for profit" clause of the present law (and according to competent legal advisers legally authorized under the law) would be abolished if H.R. 4347 is passed in its present form. Under H.R. 4347, a teacher could do the following things. For example, he could: 1. Read aloud, recite, render or act a copyrighted work. 2. He could play a tape recording or phonograph record to his class. 3. He could tune in a television program or a radio program in his classroom. 4. He could project material with an opaque projector (but not copy material onto a transparency for use on an overhead projector). 5. He could show commercially produced transparencies on an overhead projector. 6. He could show a motion picture, filmstrip or slides to a class. 7. He could act out a play in class or in the auditorium. Conversely, except under the undefined "fair use" provision, the new bill prohibits the teacher from making copies of excerpts or quotations from copyrighted works for teaching purposes unless permissions are obtained and specified royalties are paid. For example, a teacher could not: 1. Photocopy, Thermofax, mimeograph, Xerograph or otherwise duplicate copyrighted materials for the use of his pupils. 2. Make overhead transparencies of charts, diagrams or other materials from a copyrighted work. 3. Include as a part of an examination excerpts or quotations from contemporary poems or paragraphs for pupils' interpretation or for choral reading. 4. Duplicate tests from teachers' editions of weekly news magazines for use in class. 5. Duplicate a newspaper editorial from a copyrighted newspaper and use it for a discussion of critical reading or for an example of good writing or for any other reason. In addition, except under the undefined "fair use" provision, the new bill would also prohibit the teacher or scholar from making a single copy of an entire copyrighted work, such as a small poem or short story, for teaching, home study, or research purposes or for use as a teacher's copy unless he obtains necessary clearances and pays specified royalties. For example, apart from the undefined "fair use" provision, whose very lack of definition renders it virtually useless for teachers, a teacher could not: 1. Duplicate or make a transparency of a separately copyrighted chart, graph, or column of a newspaper or magazine. 2. Make a tape recording at home of a TV or radio program for use at school the next day. 3. Reproduce short poems from several books to supplement the class anthology or for oral interpretation. 4. Duplicate pictures from various sources in connection with a unit of work. 5. Make a copy of an article from an educational journal which would assist the teacher in understanding a new educational innovation or concept which he wished to introduce into his own teaching. The Register of Copyrights has continually pointed out to interested persons who have written him that certain practices which teachers and scholars wish to engage in relating to limited copying of copyrighted material are permissible under the "doctrine of fair use." The "doctrine of fair use" is not in the present copyright statute itself. It is a doctrine which the courts have read into the law allowing it as a defense in a suit claiming infringement where a claim can be made that some use is permissible under "fair use." Perhaps the most essential question, one which elicits markedly different interpretations from copyright attorneys, is the extent to which practices pertaining to the use of copyrighted materials in which teachers and scholars wish to engage are really permissible under the "doctrine of fair use." This judicially described doctrine has a number of limitations which certainly render its use risky and sometimes inadequate as a defense for the teacher's or scholar's use of copyrighted material in the public interest.1 Even this wholly inadequate defense has come under attack. In a preliminary version of his 1961 report the Register of Copyrights, in describing proper "fair use," gives as an example the reproduction by a teacher or student of a small part of a work to illustrate a lesson. But the American Book Publishers Council took exception to this and noted that "the doctrine of fair use" was never intended to cover such use which "at the least *** would seem to be highly controversial." Thereupon the Register changed the language from "a part of a work" to "a small part of a work." How can such a practice long established among teachers and scholars, a practice whose propriety and legality were so certain to the Register of Copyrights, be a bone of contention with the American Book Publishers Council? Is there any wonder that teachers can find little practical value in present application of "fair use" as a justification for the educational uses of copyrighted material? Let us examine the case of a teacher who might wish to use the "doctrine of fair use" as a defense for copying an excerpt of a copyrighted newspaper editorial unavailable in the regular textbook, appearing in an issue of the paper which had not been purchased for use with her classes. She would know that copying some portion of the editorial might be judged "fair use," but would have no certainty that the portion that she was using would be judged a "fair" portion. Short of a lawsuit in which she was challenged by the copyright holder as an infringer, the teacher would never have the opportunity to find out whether a court would judge that particular excerpt used in that specific way by the teacher was a "fair use" of the material. Where sophisticated copyright attorneys have disagreed on definitions of "fair use," the dilemma facing the classroom teacher can be clearly seen. Although authors and publishers have repeatedly stated that they would not sue a classroom teacher who copied their copyrighted material for classroom use, this assurance is a poor substitute for protection under the law. The fact remains that "fair use" gives the teacher little security in using copyrighted material for educational purposes in the public interest. The Register of Copyrights has officially advised inquirers that: "The safest course to follow in using copyrighted material 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."✦ Since, according to the Register, "the line between ‘'fair use' and infringement is unclear and not easily defined," how can a teacher be expected to know when it seems clear that the "doctrine of fair use" would apply to the situation? There are examples of superintendents of schools who have consulted school attorneys on matters of "fair use" and in most cases have been advised that the proposed use would not be considered "fair use" and that it should not be attempted. If the rights of the user of copyrighted material to do limited copying of such material are to rest wholly on the "doctrine of fair use," the teacher will never know when he has a right to make copies of copyrighted material or not. Many superintendents of schools, finding themselves unable to get clear advice from a copyright attorney, may do what at least one superintendent in a large city has already done-that is to restrict the uses of copyrighted material to that material which is purchased for use by the school system. Consider the implications of such an action. Teachers in that large school system are not now able to make limited copies of newspaper editorials, magazine articles, news stories, modern essays, modern imaginative literature, poetry, etc., for students in their classrooms. Used wisely, such materials will be of interest and value to students, but available funds rarely provide for purchasing such materials in class sets. So, by a strange combination of cir 1 Houghton, D. E., "Let's Make Fair Use of 'Fair Use,'" Bulletin of the American Association of University Professors, vol. 47 (March 1961), pp. 56-59. Copyright Law Revision, pt. II, House Judiciary Committee Print, 88th Cong., 1st sess., February 1963, p. 235. Ibid, p. 24. 4U.S. Copyright Office, Circular 20, par. 5. cumstances including ambiguous terminology within the copyright law and the desire of both the school attorney and the superintendent of schools to be safely within the law, freedom of information in classrooms is severely restricted. But freedom of information is a part of academic freedom and is vitally necessary if schools, colleges, and universities are to carry on this basic task of educating students. That application of the copyright law should result in such restrictions of the freedom of information could surely not be within the intention of the Congress. Consider further the plight of a teacher who, once having used an excerpt or portion of a copyrighted work, could be sued by the copyright holder for copying the work and found to be guilty as an infringer. Under the present law the determination of damages and fines for infringement of copyright is left to the courts. In the proposed bill, an author is, of course, entitled to full damages for knowledgeable infringement of copyright but the innocent teacher would have the burden of proving his innocence of intent to infringe and would be subject if found guilty to a fine of "not less than $100." The threat of this penalty would discourage most teachers from attempting to make fair use of copyrighted material, and therefore place at still another level, the classroom level, a restriction on freedom of information for classroom teachers. So that even though the "doctrine of fair use" is proposed as a defense for teachers, the effect of "fair use" in its present form could clearly act to discourage the use of copyrighted material by school administrators and teachers because of the inherent ambiguity and the penalties which could be imposed if they lose court suits. Teachers and scholars have been advised by many to give up their present automatic educational exemption (under the "for profit" clause of the current law) because supposedly 1. "Fair use" will take care of the needs of a scholarly teacher. 2. There is no need for more protection since experience shows that there have been very few lawsuits anyway. Could it be that the reason there have been so few lawsuits against scholars for doing limited copying of copyrighted material is that the present law gives them two strong defensive positions: 1. The automatic educational exemption ("for profit"); and By repealing the automatic educational exemption, now present in the "for profit" provision, the current bill completely undercuts the protection against damage suits given to teachers and scholars in the present law. "Fair use" would also seem to be inadequate for teachers of English and professors of literature and language since it only pertains to excerpts and does not give the right to copy whole works. Although certainly no teacher or scholar would attempt to reproduce a whole book for students, many in the teaching of poetry would need to reproduce for purposes of contrast and criticism short poems or essays which do not exist in the student's regular textbooks. "Fair use" is of substantially no help to a teacher or scholar in this position. The National Council of Teachers of English would advocate and applaud a clearly delineated position on "fair use," but it would like to point out the limitations of this doctrine as currently defined in H.R. 4347. The proposed bill does not even give teachers and scholars as good a position regarding "fair use" as was given in the bill which was submitted by the Register of Copyrights last year (H.R. 11947) but which automatically expired with the last congressional session. In limiting the exclusive rights of the copyright holder, last year's bill (H.R. 11947) indicated specifically that the "fair use" of a copyrighted work could be "to the extent reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, scholarship, or research." In such event, it is not an infringement of copyright. This statement clearly recognized the rights of the user of copyrighted material in carrying out his role in the public interest. This language cited from last year's bill would clearly give a better protective base to the copyright user than that contained in S. 1006 and H.R. 4347. The present bill gives no indication of how far under "fair use" one could make photocopies rather than take notes for example. 52-380-66-pt. 1—28 |