of the Copyright Law and to make a close study of the proposed legislation. A committee consisting of Prof. Harold Jantz of Johns Hopkins University, Prof. Victor Erlich of Yale University, and Prof. B. J. Whiting of Harvard University was authorized to consult with Professor Cargill and speak for the Modern Language Association in matters of copyright. The following testimony is based upon Professor Cargill's analysis of the situation and concurred in by the committee.

The Modern Language Association attaches great significance to the changes being proposed in the copyright law. Our interest is that of authors-many of the academic novelists and poets are among the members of the association-scholars-most of the authors of literary and linguistic monographs and textbooks are members-and teachers-nearly all our members are college and university professors. Hence we are concerned that any revision be as fair as possible to all three groups. Prof. Oscar Cargill as our representative has sat with the ad hoc committee and we are in full agreement with its recommendations. We seek at this time merely to emphasize the points with which we are particularly concerned as scholars and college teachers.

In the main we are eminently satisfied with the bill which the Register of Copyrights has drawn up with such meticulous care. However, we feel that the initial 28-year period of copyright, renewable for 28 or 48 years, would be more useful to teaching and scholarship than the proposed life plus 50 years. Automatically extending the period on all copyrighted periodical and technical materials to more than 50 years would immeasurably increase the difficulty in preparing textbooks and teaching materials for such subjects as modern literature and the social sciences.

We would also caution that, in spite of the bill's careful limitation of the term "works made for hire," there is still the possibility that publishers can use this provision to pressure authors to become employees rather than work for royalties. On the other hand, the limitation upon the duration of copyright on unpublished works to life plus 50 years will benefit scholarship. We would see no reason why this could not be reduced to life plus 28 years. The manufacture sections seem to us fair. And we are not competent to testify concerning phonorecords, moving pictures, and television. We therefore confine ourselves to the three titles about which we are particularly concerned: "fair use," "statutory fines," and "reassignment of rights."

Concerning "fair use," we are gratified that the proposed bill recog nizes the concept of "fair use" (sec. 107). However, we respectfully observe that the bare statement in the new bill will not be as useful to scholars and teachers as the fuller statement of the bill submitted last year (H.R. 11947). We would therefore urge that the amplification of the previous bill be included in the new bill, viz:

Notwithstanding the provisions of section 5, 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. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include: (1) the purpose and character of the use;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This wording is a succinct statement of the principles that have evolved from court cases dealing with "fair use" and would help a conscientious scholar or teacher in assessing a practical situation. The problem we face is not merely one of protecting the author or publisher but also of pointing out to the overcautious scholar or the timid teacher what use he can legitimately make of material.

Similar concern for the quality of teaching leads us to urge that statutory damages for innocent infringement of copyright-paragraph 504-not be set at a minimum of $100 but left to the discretion of the court. Unless we want no good modern writing used for class exercises or on examinations we must leave the teacher some liberty in his classroom activity. If his supervisors, knowing that a statutory fine is imperative, make regulations that not even a line or a phrase from copyrighted works may be used, the quality of English and language teaching will decline just at the time when Congress with the other hand-through the U.S. Office of Education, the National Science Foundation, and the like-is spending large sums to improve quality and content at all levels.

Finally, we observe that the new bill provides reversion to an author after 35 years whereupon he may reassign his rights-paragraph 203. In view of the present large paperback market and the refusal of some publishers either to bring out paperbacks or negotiate for them, while permitting a book to remain out of print, we urge under 203 (a) a new subsection (2):

Termination of the grant may be effected if the grantor can show that the grantee has allowed the work to go out of print and circulation, or has sold annually less than 20 copies for a period of 5 years, beginning at a date not less than 5 years after the date of the execution of the original grant. Royalty statements from the grantee shall constitute a basis for determining the facts, and if no such statements are provided, the fact shall constitute evidence of failure to sell and circulate.

We believe that these three changes would measurably improve the work of teachers and scholars without in any way impairing the rights and returns of authors and publishers. We hope that they can be introduced into H.R. 4347 and S. 1006 and that the two bills will be speedily voted in their amended forms.

Mr. KASTENMEIER. Thank you, Professor Fisher. Are there any questions?

Mr. TENZER. Mr. Chairman, I think it might be said that there are no questions because the gentleman made such a very fine statement and a contribution to the work of this committee.

Mr. KASTEN MEIER. We compliment you on your statement, Professor Fisher.

Mr. FISHER. Thank you.

Mr. KASTENMEIER. Next the Chair would like to call Mr. Rutherford D. Rogers, representing, and chairman of the Joint Libraries Committee on Fair Use in Photocopying.

Welcome to the committee, Mr. Rogers.

STATEMENT OF RUTHERFORD D. ROGERS, CHAIRMAN, JOINT LIBRARIES COMMITTEE ON COPYRIGHT

(Mr. Rogers' prepared statement is as follows:)

STATEMENT BY RUTHERFORD D. ROGERS ON BEHALF OF THE JOINT LIBRARIES COMMITTEE ON COPYRIGHT

The Joint Libraries Committee on Copyright has developed by stages from a committee established in 1956 by the Association of Research Libraries (known as the David committee from the name of its chairman, the former director of libraries of the University of Pennsylvania) to survey library practice with respect to photocopying. The David committee joined forces with a similar committee of the Special Libraries Association, headed by Robert S. Bray of the Library of Congress. The two committees made some initial explorations which demonstrated that the inquiry should be widened and the joint committee was consequently established in 1957 with a representation eventually including the American Association of Law Libraries, American Library Association, Association of Research Libraries, Special Libraries Association, and Music Libraries Association. The committee was originally called the Joint Libraries Committee on Fair Use in Photocopying, a name devised by the late Register of Copyrights, Arthur Fisher, who took a lively interest in the committee's work until his untimely death in 1960. Our current mcribership includes Arthur Charpentier, Association of the Bar of the City of New York (AALL), Charles F. Gosnell, New York University (ALA), Harry L. Kownatsky, Free Library of Philadelphia (MLA), Chester M. Lewis, New York Times (SLA), and myself (ARL), as well as consultants, Bethuel M. Webster and William H. Hogeland, Jr. (Webster, Sheffield, Fleischmann, Hitchcock & Chrystie) and Verner W. Clapp (Council on Library Resources).

The Joint Libraries Committee has had a continuing interest in copyright revision and has participated in the panel meetings convened by the Register of Copyrights. There is a considerable similarity between the underlying purpose of libraries and the underlying purpose of the Copyright Act: "To promote the progress of science and useful arts." It may fairly be said that our interest therefore extends to all of the provisions of the bill now before this committee. As a major link between copyright owners and users of copyrighted works, libraries and librarians are more than neutral; we are vitally concerned with the interests of both groups. We have asked to be heard today, however, only on those parts of the overall copyright revision proposals that have or may have a unique impact on the functions of libraries. From long experience with owners and users we know that both groups will speak persuasively to this subcommittee and that neither is in need of our assistance as a representative spokesman.

There are three specific subjects of particular concern to libraries concerning which the views of the Joint Libraries Committee may be of benefit to this subcommittee. These are library copying, copyright notice, and copyright duration. These three subjects affect the ability of libraries to perform their functions and the facility with which those functions can be performed. Libraries function only to the extent that their collections are used. Libraries exist by virtue of copying. They exist for the purpose of disseminating information, which is "copying" in one form or another.

(a) Single copies by libraries

1. COPYING

Since 1957 the Joint Libraries Committee has had a special concern with the examination and formulation of library practices and policies with respect to copying. As part of this function we have participated in the consideration of various proposed statutory provisions dealing specifically with copying by libraries. The Joint Libraries Committee, however, has never advocated the inclusion of any statutory provision dealing with library copying.

We are in complete agreement with the approach of the current Celler bill (H.R. 4347); that is, the silent approach in which no statutory reference is made to library copying.

Library copying is not a recent development but is, of necessity, a practice that came into being when the first library was established several thousand years ago.

Our studies, as summarized in our 1961 report and our final revised recommendations in 1963, establish that the present practices of libraries with respect to single copies are traditional and essential and are not damaging to the interests of copyright holders. Libraries and copyright owners will continue to be interdependent and we are persuaded that library practices will be conducted in the future, as they have been in the past, to provide essential services that are consistent with the interests of copyright owners.

Statutory provisions codifying present practices or limiting present practices in anticipation of new technology would crystallize with statutory permanence a subject better left to the flexible adjustment of interdependent forces. The Joint Libraries Committee knows of no possible statutory provision that would not either limit essential library services beyond what is necessary to protect the interests of copyright owners or limit the interests of copyright owners beyond what is necessary to permit the continuance of essential library services. (b) Multiple copying

In its treatment of library copying, the Joint Libraries Committee has concerned itself only with single copies, and has taken no position with respect to duplication in multiple copies.

(c) "Fair use"

The committee is persuaded that the provisions of the present bill, which do no more than acknowledge the existence of the judicial doctrine of "fair use" are preferable to any attempted statutory delineation of the scope or content of the fair use doctrine such as the provisions contained in section 6 of H.R. 11947 introduced in the 88th Congress, and in section 6 of the 1961 preliminary draft prepared by the Copyright Office for purposes of discussion.

A proposal to substitute statutory certainty for difficult professional and commercial and academic decisions is tempting to all of us, including librarians. But the "progress of science and useful arts" would not be promoted by accepting such proposals. To whatever extent there is or may be conflict between the practical demands of research, teaching, and similar uses of copyright material, the conflict must be resolved by a flexible doctrine that can be adapted to the realities of a given situation. We are persuaded that the present bill is, in this respect, entirely satisfactory.

2. NOTICE

The copyright date is of vital importance to libraries as dispensers of information and as purchasers of books. When assisting readers, librarians need to know the timeliness of information as indicated by the copyright date. Publication dates alone can be extremely misleading, concealing the fact that a work was originally prepared 10 to 50 years earlier and that it stands unchanged despite the date of the current printing. The lack of copyright dates on maps is an excellent example of the confusion that can prevail under the existing law. If one is looking for post-World War I boundaries in central Europe, he could tell immediately that a map copyrighted in 1914 would be of no help, but without the copyright date, time can be wasted and even misinformation given.

Also, in adding books to their collections, librarians need to know the exact version of a work they are buying and, more often than not, are concerned that they acquire the most up-to-date version.

The Joint Libraries Committee has no direct interest in statutory provisions that result in inadvertent loss of copyright through failure to comply with technical requirements under the present Copyright Act, and we are in complete sympathy with the purposes of the changes proposed by the present bill, which we understand are intended to avoid the inadvertent forfeiture of copyright. We do have an indirect interest in the existing provisions to the extent they furnish an incentive to the inclusion of dates on published works. Indeed, on this ground we would urge the extension of the year requirement to such graphic works as maps, rather than the relaxation of requirements for all works contemplated by the current bill.

We are concerned that the provisions of the current bill would result in practices by copyright owners that may make notice of copyright with year date the exception rather than the rule for copyrighted material.

The provisions of section 404(a)(2) of H.R. 4347, by effectively eliminating the incentive to comply with the notice requirement, may encourage publication without notice or without a complete notice including the year of first publication. As incidental beneficiaries of the requirement that the year of first publication be made a part of the notice, the Joint Libraries Committee therefore urges the inclusion in section 404 of a requirement that the omission of notice be inadvertent. Under the present language of section 404 an intentionally omitted, or more likely, incomplete, notice of copyright is invited.

It is obvious in the language of section 404 (a) (2) (which requires an effort to add notice to all copies distributed after an omission has been "discovered") that the provision still contains some vestiges of section 27 of the 1961 preliminary draft submitted for discussion by the Copyright Office. That preliminary draft expressly provided that deliberate omission of notice would invalidate copyright and that only unintentional omission would not.

We urge the subcommittee to adopt the language of the preliminary draft, forfeiting copyright for intentional omission of notice (which we understand to mean any part of the notice) and preventing forfeiture only if the omission is inadvertent.

With respect to the physical location of notice, librarians are greatly aided by the specific requirements of the current law. It is probable that more librarians disagree with this suggested relaxation than with any other provision of the current bill. Although the practical value to librarians of being able to find copyright notice in a specific place for each type of work is an obvious aid in the processing of published material by the libraries, the Joint Libraries Committee does not believe such added convenience would justify continuation of technical requirements that may result in forfeiture of copyright. The committee believes that the exemplary regulations of the Register of Copyrights contemplated by the bill, together with the requirement that the notice be in such manner and location as to give reasonable notice of the claim of copyright, are sufficient.

3. DURATION

The term of copyright protection should permit librarians to make a prompt determination, for users, of the status of a work without recourse to extraneous records or facts.

Librarians would join users in having a very decided preference for a single fixed term of copyright measured from the year of first publication. The length of the period of protection is not of paramount concern to librarians, and they would join copyright owners in urging that it be long enough to guarantee at least as great a protected period as that generally applicable in Europe.

We also are persuaded, from long experience with the challenge of copyright status for manuscript material, that the current proposal for dealing with unpublished work by Federal copyright statute is desirable.

The Joint Libraries Committee, therefore, recommends that for all works. whether published or unpublished, whether solely or jointly authored and whether or not anonymously or pseudonymously published or made for hire. copyright endure for a single fixed period of years from the date of publication or a somewhat longer fixed period of years from the date of creation. whichever period expires first.

4. OTHER PROVISIONS

Libraries are, of course, directly affected by one additional provision: the express library exemption from the import restrictions in section 601 of the current bill. We are not aware of any opposition to this exemption. It is evident to all that, whatever the merits of import limitations, they should not prohibit importation for library purposes, and the joint committee is confident that the library exemption must and will be a part of any import limitation.

The provisions of the so-called manufacturing clause have unnecessarily hampered publication of many works and are of concern to libraries. The "manufacturing clause" is out of place in a copyright act. It is, in any form.