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Mr. MILLER. No, sir, I consider that poem the whole work because we will have the student analyze it as a whole work. It has an individuality and a wholeness all its own.

Mr. TENZER. That is your own definition of the term "whole work." If lawyers and judges would consider taking a single page or even two pages of a poem out of a copyrighted book on poetry a fair use, then your conclusion would be wrong.

Mr. MILLER. But, sir, if it were three pages and the two pages were the limit

Mr. TENZER. Let us say there is a book of 100 pages and you took out 8 pages of a single poem or an essay and made a copy for each member of the class, which is not considered to be, in the opinion of lawyers and judges, an infringement but a fair use, then your conclusion would be wrong.

Mr. MILLER. For the teacher who is copying a poem, yes, but not for the scholar who is sending away for maybe a 10- or 12-page story in Cosmopolitan that appeared in the 1920's.

Mr. TENZER. If the library to which the scholar applied made the single copy out of a magazine that was out of print and not available otherwise, and if that would be considered a fair use, then your conclusion would again be wrong?

Mr. MILLER. This would be helpful, but as I understand it in this proposed law this would not

Mr. TENZER. You keep referring to the proposed law. Is it any different under the old law?

Mr. MILLER. I assume it is because I have done these things that I thought were illegal under the proposed law. That is, I thought I had the right under the "not for profit provision" in the old law. Under the heritage of fair use which is not written into the old law, I thought I had a right to send away for these short stories in out of print and hard to obtain journals.

Mr. TENZER. If we provided for this in the proposed law, would this be satisfactory to you?

Mr. MILLER. Certainly that would be satisfactory.

Mr. TENZER. No further questions.

Mr. KASTENMEIER. Mr. Poff?

Mr. POFF. Professor Miller, I do not attempt to defend or condemn the language to which I will make reference, but just to speak with the gentleman in general terms about the point he made about the burden of proof and the shifting of the burden of proof. I say first of all that I share your attitude that a person should be presumed innocent until he is proven guilty.

In rebuttal to that, I point out that this involves a civil and not a criminal penalty. As I read the language which precedes the language which the witness quoted, it would first be the burden of the copyright owner to make at least a prima facie case that an infringement in fact had occurred. At that point, then, it becomes material whether the infringement was willful or innocent.

If the infringement is to be proved willful, it is the burden of the copyright owner. If the infringement has already been established, and I assume that is the reason the word "infringer" was used in

that context, then it becomes the burden of the person accused of infringement to prove that he was innocent.

I believe that is a fair statement of the language to which you addressed yourself in the context in which it appears on page 30 of H.R. 4347.

Mr. MILLER. Yes, sir. I would agree with you. I was just trying to place that language in the context of the teacher who has done some of the things that I have described. I must say in that context it becomes frightening language.

Mr. POFF. I am sure it must. I will repeat what I said when I began, that I neither condemn nor defend it. I simply want it to be fairly stated that the burden of proof is first borne by the copyright owner. After he has made the prima facie case, the question of whether it is willful or innocent will determine who shall carry the burden of proof. That is a fair statement, is it not?

Mr. MILLER. Yes.

Mr. KASTEN MEIER. Thank you both, gentlemen, for your contribution this morning. Your comments on fair use and your own construction of what you would like to see done are new to this committee and are well presented.

Dr. SHAFER. Thank you.

Mr. KASTEN MEIER. Next we are glad to hear Dr. William Work representing the Speech Association of America as its executive secretary.

STATEMENT OF WILLIAM WORK, EXECUTIVE SECRETARY, THE SPEECH ASSOCIATION OF AMERICA

Dr. WORK. May I ask, Mr. Chairman, that the statement that I have filed and that I will read to the committee be entered into the record?

Mr. KASTEN MEIER. Your statement will be received and made a part of the record.

(Dr. Work's statement is as follows:)

PREPARED STATEMENT OF WILLIAM WORK, EXECUTIVE SECRETARY OF THE SPEECH ASSOCIATION OF AMERICA

Mr. Chairman and members of the committee, thank you for this opportunity to present brief testimony on the bill for a general revision of the copyright law. My name is William Work. I am the executive secretary of the Speech Association of America, the learned and professional organization that has sought to promote high standards in scholarship, research, and teaching in all phases of speech education since its founding in 1914. My B.A. degree was earned at Cornell University; my M.A. and Ph. D. degrees were conferred by the University of Wisconsin. During the past 18 years, I have taught at Purdue University, the University of Wisconsin, Southern Illinois University, and Eastern Michigan University.

The Speech Association of America was one of 33 organizations that participated in the deliberations of the ad hoc committee which was created to seek a consensus on both the needs and responsibilities of the educational community in matters of copyright. We support the testimony of the ad hoc committee in all of its particulars. We recognize the need for a general revision of the present copyright statutes. We share the conviction that the legislation must consider equitably the needs of the creators, the disseminators, and the users of the materials that are subject to copyright protection. The members of the Speech Asso

ciation of America fall into all three of these categories as authors, as publishers, and as classroom teachers at all academic levels.

In keeping with the recommendations of the ad hoc committee, we suggest that the Nation's needs will be better served if H.R. 4347 is amended as follows: (1) Replace the vague and inadequate statement on fair use, section 107, with the following:

"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."

This wording, drawn from the bill submitted last year (H.R. 11947), would protect the educational community from the intimidation of ambiguity and would permit teachers, in the pursuit of their legitimate ends, to avoid the ethical gray areas that the present wording invites. This change would help teachers to set a proper example for their students, thereby encouraging respect for the rights of the authors and publishers of protected materials.

(2) In addition to an expanded "fair use" section, and for similar reasons, statutory provision for the limited copying of protected materials should be added to section 109. Not to do so would stifle creative teaching and restrict the learning potential of the Nation's youth. In our field, teachers of choral reading, the oral interpretation of literature, speech improvement, broadcasting, dramatics, and debate would all be seriously hampered in their work if permission to make limited copies for classroom and extracurricular use were required.

(3) Section 109 (2) limits the use of protected materials in instruction through radio and television to “classrooms or similar places" as “a regular part of the systematic instructional activities." This stipulation seriously reduces the edu cational potential of these media, as does the limitation of 6 months on ephemeral recordings specified in section 110.

(4) Although there are indeed persuasive arguments for setting the duration of copyright protection at the life of the author plus 50 years, the abandonment of the concept of renewal will prevent the educational community from making free use of that 85 percent of protected works that now fall into the public domain after 28 years. Furthermore, it is relatively easy for a teacher to determine under the present statutes when a work is in the public domain; the life-plus-50years provision of section 302 will render such determination more difficult.

(5) The statutory damages for innocent infringement specified in section 504 (c) (2) pose a threat to teachers and administrators of sufficient magnitude that the classroom use of contemporary materials will be seriously curtailed. The burden of proof in cases of infringement should be on the copyright owner; if the infringement for purely educational purposes is proved to be innocent, the court should be permitted to waive statutory damages.

In the foregoing, the Speech Association of America supports the position of the ad hoc committee. These recommended additional provisions for limited rights for teachers and students will not only serve the cause of excellence in education but will, we believe, provide even greater revenues for the authors and publishers through the creation of an informed public that has been allowed to sample the best that our creative minds can offer. The educational community provides and will continue to provide a prime market for authors and publishers; textbook sales almost tripled in the decade from 1953 to 1963. We believe that the amendments to H.R. 4347 herein recommended will permit the already productive alliance among authors, publishers, and educators to grow even stronger.

We regret the fact that H.R. 4347 omits, under the subject matter of copyright (sec. 102), the category "lectures, sermons, addresses (prepared for oral delivery)" contained in the present copyright law. Although the supplementary report of the Register does not comment on this omission, our assumption is that lectures, sermons, and addresses are regarded in the new bill as "literary works." The definition included in H.R. 4347 notwithstanding, we submit that these forms of oral discourse are not ordinarily understood to fall within the term "literary works." We note that a separate category is provided for "dramatic works," although the drama is universally regarded as a part of the "literary" family.

In urging the retention of a separate category for lectures, sermons, and addresses, we would call to your attention the fact that in each of the 10 years

from 1954 through 1963 there were never less than 769 registrations in this category, and that the total of such registrations was 8,582. The annual report of the Register for 1963 reveals that lectures, sermons, and addresses comprised 2 percent of the registrations in both 1913 and 1928 and that this figure rose to 4 percent of the total registrations in 1963.

In his supplementary report, the Register explains in considerable detail the rationale behind the elimination of all common law protection in H.R. 4347. He indicates, however, that impromptu speeches, unrecorded performances, and improvisations, since they would not be "fixed in any tangible medium of expression" would continue to be protected under common law. We submit that additional wording is needed in the legislation itself, to make this concept clear. We are concerned about protection for the intellectual property that is contained in classroom lectures, since these lectures may be regarded as extemporaneous speeches or improvisations or unrecorded performances. We assume that in order to secure statutory protection for this intellectual property, a teacher would be obliged to transcribe or make recordings of all of his lectures, even though he might make as many as 500 different 50-minute oral presentations during the course of a single year. Such an undertaking would be unduly burdensome and the costs involved in registering these works would be prohibitive. There are approximately a quarter of a million teachers in higher education alone in the United States. The number of extemporaneous presentations by these teachers plus those delivered by the clergy, by platform lecturers, and by others who might be called "professional" public speakers staggers the imagination. Speaking is clearly the dominant mode of communication in our society; as such, adequate provision for the protection of rights in oral discourse should be made.

In connection with the recording of oral performances, it is disturbing to read in the Register's supplementary report the following words: "Thus, while one of the major innovations of the bill is to make sound recordings copyrightable as works in themselves, the bill leaves open the question of whether the performers whose performance has been fixed on the recording, the record producer who fixed the sounds, or both of them, may claim authorship of the work and ownership of the copyright." Does this suggest that there may be some doubt as to who owns the copyright when a professor's lecture is recorded either for transmission at a later date or spuriously by a student in his class? By virtue of such a recording, the lecture, unless previously recorded or written out in full, becomes immediately subject to statutory copyright, but, apparently, the ownership of the rights remains in doubt. We cannot believe that these ambiguities are intentional, nor do we suggest specific remedies. We simply call them to your attention in the hope that both clarification and adequate protection for extemporaneous materials may be achieved through suitable amendments.

We hope that these observations and inquiries may prove useful and that an amended bill providing more equitably for the rights and responsibilities of all citizens may soon be passed into law.

Mr. POFF. Mr. Chairman, may I interrupt at this point to say something which I hope won't be misinterpreted? I find it extremely difficult while the witness is testifying to pay proper attention to his oral comments and at the same time to try to read what he has presented.

Now I am going to have to make a decision. I am going to either have to postpone the reading of the formal statement and pay undivided attention to the witness or I am going to have to do the converse of that. I don't know how I will be doing you the most service, sir, and I use you only as an example because you are certainly not the first person who has elected to proceed in this manner.

I just suggest that when the statements are short you might serve your own cause better if you would just pursue the formal outline you have prepared.

Dr. WORK. That is exactly what I propose to do, read the statement through with you.

Mr. POFF. Fine. I appreciate that.

Mr. KASTENMEIER. The Chair will observe that this has happened in the past, that while the witness elects to put the statement in the record he also elects to read virtually the whole statement in any event. Dr. WORK. I thought perhaps this was a technicality that had to be gone through, but I do propose to read it since it is so short.

Mr. POFF. Fine. Understand that we don't ask that you confine yourself strictly to the verbiage. If you care to make any departures the reporter is extremely competent and you can be assured that any changes you may see fit to make as you go along will be incorporated. Dr. WORK. I think perhaps he is more competent to record them than I am to make them.

Mr. Chairman and members of the committee, thank you for this opportunity to present brief testimony on the bill for a general revision of the copyright law.

My name is William Work. I am the executive secretary of the Speech Association of America, the learned and professional organization that has sought to promote high standards in scholarship, research, and teaching in all phases of speech education since its founding in 1914. My B.A. degree was earned at Cornell University; my M.A. and Ph. D. degrees were conferred by the University of Wisconsin. During the past 18 years, I have taught at Purdue University, the University of Wisconsin, Southern Illinois University, and Eastern Michigan University.

The Speech Association of America was 1 of the 33-I believe it has been amended to 34 or 35 now-organizations that participated in the deliberations of the ad hoc committee which was created to seek a consensus on both the needs and responsibilities of the educational community in matters of copyright. We support the testimony of the ad hoc committee in all of its particulars. We recognize the need for a general revision of the present copyright statutes. We share the conviction that the legislation must consider equitably the needs of the creators, the disseminators, and the users of the materials that are subject to copyright protection. The members of the Speech Association of America fall into all three of these categories as authors, as publishers, and as classroom teachers at all academic levels.

In keeping with the recommendations of the ad hoc committee, we suggest that the Nation's needs will be better served if H.R. 4347 is amended as follows:

1. Replace the vague and inadequate statement on fair use, section 107, with the following:

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.

This wording, drawn from the bill submitted last year—H.R. 11947-would protect the educational community from the intimidation of ambiguity and would permit teachers, in the pursuit of their legitimate ends, to avoid the ethical gray areas that the present wording invites. This change would help teachers to set a proper example for their students, thereby encouraging respect for the rights of the authors and publishers of protected materials.

2. In addition to an expanded "fair use" section, and for similar reasons, statutory provision for the limited copying of protected ma

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