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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. KASTENMEIER. 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
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
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.