terials 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 educational 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 50 years 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.

52-3-0-68 pt. 1--29

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 transribe 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.

Thank you.

Mr. KASTEN MEIER. Thank you, Dr. Work.

I think you have raised a question or two which we will have occasion to ask further witnesses about at a later time.

I am pleased to note that you are a graduate of the University of Wisconsin, my own alma mater.

Dr. WORK. Greetings, fellow Badger.

Mr. KASTENMEIER. Are there any questions?

Mr. TENZER. Dr. Work, on page 2 of your statement under item 2 you speak of permission to make limited copies for classroom use, which I understand, but will you please explain the term "extracurricular use?"

Dr. WORK. I think here we are talking about, if you take dramatics as an example, a situation where you have activities within the classroom proper and cocurricular or extracurricular related activities through the production of plays.

Now I am not suggesting here perhaps I picked an unfortunate example I am not suggesting that high school drama teachers should be allowed to buy a single copy of a play and run off copies and put on public performances of these plays and thereby avoid paying the royalties that the author is entitled to.

But this is the type of thing I am talking about, that there are outof-class activities that are intimately related to in-class activities that also require the use of limited copies of materials.

Mr. TENZER. Other than in the case of plays could you suggest any other example of what you mean by the term "extracurricular use"? Dr. WORK. I suppose if you had some kind of community program and you had a group of children doing perhaps a choral rendition of a copyrighted work and this copyrighted work was only available in an anthology and the teacher made copies of it so that they could learn it, then they recited this or possibly even read it, this would be another example of this type of thing.

Mr. TENZER. Still confined to the course of instruction by the teacher to the class, and you are suggesting the possibility of making copies for the class so that they can do their homework to prepare for the choral?

Dr. WORK. Yes; I don't think the distinction as to whether the actual performance of this choral group takes place outside or inside the classroom is germane. I think you pointed that out to me.

Mr. TENZER. Ön page 3, in the second full paragraph you say:

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.

In suggesting that there be a permission to sample you don't suggest a general exemption of all materials for educational purposes.

Dr. WORK. I think it goes too far to suggest a general exemption. I tried to use the phrase "limited exemption" where the mechanics of securing rights may be such that if you go through the rigamarole of trying to find out where you have to write to get all this permission it may be too late to make effective classroom use of the material.

Certainly in cases where someone's property rights are threatened, as in the case of taking a single workbook sheet and indiscriminately duplicating it and passing it out among the kids, I think this would

not be acceptable under any category, whether it is fair use or whether it is specified in the statute. Nobody is trying to get something for nothing here, I don't believe.

We are trying to arrive at legislation that will be permissive, that will allow educators to do what they consider to be the best possible job that they can do.

Mr. TENZER. Thank you Dr. Work.

Mr. KASTENMEIER. Mr. Poff.

Mr. POFF. Mr. Chairman, to pursue what I interpret is the line of questioning my colleague has just opened, as I understand your testimony, you are anxious that extemporaneous lectures by professors in classes have copyright protection?

Dr. WORK. I think some provision should be made for this. I think it is a gray area. I think there are intellectual rights in these lectures, lectures that might in time become a textbook. The teacher in turn would make this textbook freely available to the educational community, but he would also realize some revenues from it, as would a publisher.

Mr. POFF. I was about to ask if you, as a lecturer in a class, obtained a copyright on an extemporaneous lecture that you delivered, how would you feel about the right of a class in another educational institition to make multiple copies of extracts of that lecture?

Dr. WORK. Excellent. I would encourage them, for legitimate educational uses, to do so.

Mr. POFF. How would you feel about their right to make a copy of the entire lecture for each teacher?

Dr. WORK. You mean if I were marketing this?

Mr. PoFF. Yes. I assume if you have a copyright interest you are interested in the marketable aspect?

Dr. WORK. I think that would be straining my good will a little to agree to that extent of copying.

Mr. PoFF. The point I am trying to make is that there is a line somewhere beyond which you would not go.

Dr. WORK. That is right.

Mr. POFF. Now you are also interested as an educator in the proposed amendment suggested by the ad hoc committee in section 107, "Fair Use."

Dr. WORK. Yes.

Mr. POFF. Yet, I notice that the amendment you offer is not altogether similar to the amendment suggested earlier on behalf of the ad hoc committee; the essential difference being that the amendment you propose omits the second of the two sentences in the proposal made by the ad hoc committee?

Dr. WORK. This may have been an oversight. When I was preparing this draft it seemed to me that the essence of what we felt was important about the fair use section was embodied in the quoted sec tion from the old legislation. This seems to me to be the essence of what is important in expanding the fair use section.

Mr. POFF. May I quote the second sentence. The second sentence in the revision proposed by the ad hoc committee reads as follows: Noncommercial educational use by a nonprofit educational institution or organization shall be presumed to be such fair use unless specifically rebutted.

Do you feel that that language should or should not be in the bill?

Dr. WORK. I haven't given it as much intensive thought as I have the other phrases in here, but I think it should be. I have no good reason for failing to include it here.

Mr. POFF. May I say I want to be fair about it, Mr. Chairman. If, upon reflection and further study, you care to make a different conclusion, you should feel free to state it later to the committee and the chairman will receive it for the record.

Dr. WORK. What I did was to quote from the old legislation. I believe their interpretation involved some new words.

Mr. POFF. There are some additional words.

Dr. WORK. Some additional words, right. I took this from the old bill, 11947, without really checking. As a matter of fact, when I wrote it I am not sure I had their exact statement.

Mr. POFF. In other words, you are here really with two hats.

Dr. WORK. That is right.

Mr. POFF. One is as an educator and one as an author or potential author of lectures or addresses.

Dr. WORK. I would repeat what was said yesterday, that this is not a "we-they" thing. Sometimes it appears to shape up that way. Basically, I think we are all trying to do a job.

Mr. POFF. Certainly that is the purpose of this committee. It is not a question of selecting among several different advocates and trying to protect one commercial interest at the expense of another. If we can all agree that this is so, I think we will have made progress.

Mr. KASTENMEIER. Mr. Hutchinson?

Mr. HUTCHINSON. I have no questions.

Mr. KASTENMEIER. Again, we thank you, Dr. Work, for your contribution.

Dr. WORK. Thank you very much.

Mr. KASTENMEIER. Next, the committee would like to call Prof. John H. Fisher, executive secretary of the Modern Language Association and representing that organization. Welcome to the committee, Professor Fisher.

STATEMENT OF PROF. JOHN H. FISHER, EXECUTIVE SECRETARY, MODERN LANGUAGE ASSOCIATION OF AMERICA

Mr. FISHER. Thank you, Mr. Kastenmeier. Perhaps in view of what Mr. Poff said, and the fact that mine is a very short statement, I will simply read it.

Mr. KASTEN MEIER. Please do.

Mr. FISHER. Mr. Chairman, thank you for allowing me to testify before the House Judiciary Committee concerning the bill for the general revision of the copyright law. If I may be permitted to identify myself, I am John Hurt Fisher, executive secretary of the Modern Language Association of America, the learned and professional society through which scholars and college teachers of English and the modern foreign languages have for 85 years sought to advance humanistic scholarship in America.

At its meeting on December 26, 1962, the executive council of the Modern Language Association appointed Prof. Oscar Cargill of New York University to meet with the Ad Hoc Committee on the Revision