Mr. ROGERS. Yes. We can see the arguments on both sides. We do think that the people—that is, the authors and publishers—who I believe would favor a single term, do have a fair argument, that it is too bad to lose copyrights simply because, inadvertently, renewal was not made.

Mr. KASTEN MEIER. You say a fixed period of years. Do I understand you would not prefer life plus any given number of years?

Mr. ROGERS. No. This is terribly uncertain to all people in the field because in most cases we are not going to know when a person died and when the term of 50 years begins to run. We feel very strongly that a fixed term dating from the publication or the origin of the work would be preferable.

Mr. KASTENMEIER. Do you feel it ought to be somewhat longer or shorter than the present 28 plus 28, or 56 years?

Mr. ROGERS. We have not taken a strong position on that. Some librarians feel, and I believe the next witness will so state, that a term of 56 years ought to be long enough. I know from the studies made in the Copyright Office that life plus 50 on the average would come out to be 75 years. This would not seem unreasonable, I think, to many librarians.

Mr. KASTENMEIER. Thank you. Are there any questions?

Mr. EDWARDS. I have no questions except that as a member of the class of 1936 at Stanford I welcome you to Washington.

Mr. ROGERS. Thank you, Mr. Edwards.

Mr. KASTENMEIER. Mr. Poff.

Mr. POFF. On page 5 of your statement you indorse the fair use treatment as outlined in section 107 of the bill?

Mr. ROGERS. Yes, sir.

Mr. POFF. Then the last statement you made I understood to be an endorsement of the recommendations of the ad hoc committee.

Mr. ROGERS. Those of us who are in educational institutions see this a little more intimately than a public librarian; we do see that the educator does have a problem with respect to multiple copies, particularly, and we believe that they ought to be fairly treated in the bill even though we have not taken a position on multiple copying, ourselves.

Mr. POFF. In your statement on page 5 you also make specific reference to section 6 of H.R. 11947, introduced in the 88th Congress, and section 6 of the 1961 preliminary draft prepared by the Copyright Office. Yet it is my understanding that the proposal made by the ad hoc committee is similar in purpose and effect to those specific paragraphs to which you made reference?

Mr. ROGERS. If I may go back to my opening words, I feel libraries in a sense represent authors because we buy the books. We represent publishers, we represent consumers. We are saying that from a strictly library point of view we think the statement of fair use as contained in the bill serves our purposes.

We can see from the educator's point of view that they do have problems that are different from just the plain library problem. Mr. POFF. You amended your prepared statement by adding the clause, "with respect to an educational exemption." Was this an attempt to make it explicit?

Mr. ROGERS. Yes.

Mr. POFF. Thank you.

Mr. HUTCHINSON. On page 4 of your statement you say that you applaud the silent approach in which no statutory reference was made to library copying. Whatever library copying is permitted, is that within the fair use doctrine?

Mr. ROGERS. Yes, sir.

Mr. HUTCHINSON. How broad is that doctrine with regard to library copying? Is that limited to only a single copy or a single copy at a time, or what?

Mr. ROGERS. I think it would be presumptuous of me, and perhaps any layman to say how broad the fair use doctrine is. It is one that can presumably be changed at any time by the courts because it is a judicial doctrine.

Mr. HUTCHINSON. Yes; but it is a matter with which you have been working for many years.

Mr. ROGERS. Yes; we have taken the position that the making of a single copy is not a violation of fair use. If it even extends to the making of a single copy of a complete work, it is not-we ask our people to make reasonably certain by checking sources which we have available to us in our libraries that the book is not in print or otherwise available.

Some books that are out of print in their hard copy form can be obtained on microfilm, for example, from University Microfilms in Ann Arbor. We feel that we are honor bound to make a reasonable effort to find out if something is available before we make a copy of a complete work.

Mr. HUTCHINSON. So that it is possible within the fair use doctrine, as you understand it, for a library to furnish a complete volume by copying a complete volume upon request?

Mr. ROGERS. Yes.

Mr. HUTCHINSON. Even though a copyright on that document still is outstanding?

Mr. ROGERS. Yes; I can only say that the problem of sometimes finding a publisher or an author, either one of whom may hold the copyright, is sometimes nigh to impossible. Publishing firms go out of business. This can be a very protracted process. For scholarly purposes under those circumstances I think it is reasonable.

Mr. HUTCHINSON. Would this be true if it were relatively easy to locate the publisher or the author?

Mr. ROGERS. No, I would say not.

Mr. HUTCHINSON. You are speaking, then, about a so-called rare book situation?

Mr. ROGERS. Well, a book is unlikely to be rare-this is not strictly true but it is a little unlikely to be really rare in an expensive senseif it is still under copyright, although there are many exceptions to that statement.

Mr. HUTCHINSON. But it would have to be a book that was out of print that you would furnish a copy for?

Mr. ROGERS. This is the principle on which we work if we are furnishing a copy of a whole work.

52-380-66-pt. 1- -30

Would you permit me to tell you the results of a study that we made of photocopying in three of the large libraries of the country, the New York Public Library, Princeton, and University of Chicago?

In the first place, about half of the works that were copied were foreign rather than domestic. Only 5 percent of the material copied was book material at the New York Public Library; 25 percent at Princeton; 17 percent at Chicago.

The overwhelming amount of material was periodical and this, for the most part, was single article copying. For example, 90 percent of the copying at the New York Public Library was 20 pages or less; 86 percent at Princeton, 20 pages or less; 67 percent at Chicago, 20 pages or less. The truth of the matter is that it is easy to overstate what libraries are doing in the way of photocopying.

Mr. HUTCHINSON. I thank you for the information.

Mr. KASTENMEIER. Thank you, Mr. Rogers, for your testimony. The Chair would like to announce that it has received the statement of Mr. Ralph C. Staiger, executive secretary of the International Reading Association, a statement which he would have made today and which he submits to the committee.

Without objection the committee will receive the statement and make it part of the record.

(The document referred to follows:)

STATEMENT BY RALPH C. STAIGER, EXECUTIVE SECRETARY, INTERNATIONAL READING ASSOCIATION, NEWARK, DEL.

Mr. Chairman and members of the subcommittee, the International Reading Association is a professional organization concerned with the improvement of the teaching of reading. In the United States, we have 25,000 members in all 50 States. Almost all of our members are teachers or supervisors of instruction, and we have a vital interest in topics which influence reading. We consider the bill which provides for a revision of the copyright law (H.R. 4347) to be such a topic. While we concede that a copyright law revision is necessary, we are concerned about several points which we believe should be amended before the best educational interests of the children of the United States can be served. The Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision has suggested amendments which we believe will improve the bill; we support the ad hoc committee's position for these reasons:

1. As reading teachers, we experience daily evidence that teachers, directly and indirectly, create markets for copyrighted materials. In the promotion of reading of all kinds, we can do a better job if we are free to occasionally duplicate nonconsumable materials for our classroom activities. In this way, we cultivate interest in what is read as well as a better understanding. As it stands, H.R. 4347 is likely, by its threat of statutorily determined penalties, to drive teachers and school authorities to the point that they will refrain from any use of copyrighted materials except those purchased as textbooks. A good teacher often best pursues excellence by departing from the textbook. The ultimate result of avoidance would be a negation of the good things which have made our schools so strong and would tend to dry up the markets which education has helped to create.

2. It might be maintained that the doctrine of "fair use" protects teachers from suit. This doctrine is not adequate for several reasons:

(a) "Fair use" is not defined in the bill and is a very hazy legal doctrine. The Register's July 1964 draft included specific mention of teaching, scholarship, and research as fair use. This should be inserted in the bill.

(b) A teacher would need to be prepared to defend each use of copyrighted material in court to avail herself of this "fair use" protection.

This is not realistic for the teacher who is trying to inspire 25 or 30 demanding children all day.

3. Indiscriminate copying of materials is not condoned by any of the groups within the ad hoc committee. By proposing that materials originally consumable on use, such as workbook exercises, problems, or answer sheets for standardized tests, not be duplicated for teaching purposes without penalty, the committee has shown its concern for the rights of authors and publishers.

In their desire to protect themselves against unwarranted and indiscriminate copying, it is hoped that the publishers will not lose sight of the positive effects of limited copying for teaching purposes.

As an author, part of whose income is derived from royalties, I have a personal interest in the copyright law revision. As a teacher, I know that I have subtly sold many books during my career, and have sought no agent's commission for doing so. Reasonable use of copyrighted materials, so that he can do his job more efficiently, is all a teacher wants.

The Chair would also like to express the hope that we may be able to conclude before the noon break if the witnesses and the committee will cooperate.

Next I would like to welcome Dr. Charles F. Gosnell, chairman of the Committee on Copyright Issues of the American Library Association.

Welcome to the committee.

STATEMENT OF DR. CHARLES F. GOSNELL, CHAIRMAN, COMMITTEE ON COPYRIGHT ISSUES, THE AMERICAN LIBRARY ASSOCIATION Dr. GOSNELL. Thank you, Mr. Chairman and members of the committee. I wish to request that the statement which I have filed be included in the record. I will read the introductory part of it and then will be glad to answer any questions.

Mr. KASTENMEIER. Without objection the statement will be received and made part of the record.

(The document referred to follows:)

COPYRIGHT AND THE CONSUMER

Testimony by Charles F. Gosnell, Chairman, Committee on Copyright Issues, American Library Association

My name is Charles F. Gosnell, and I am here as chairman of the Committee on Copyright Issues of the American Library Association. I am also director of the libraries of New York University and former assistant commissioner of education of New York State, and State librarian. I am here on behalf of the American Library Association to testify in favor of certain sections of H.R. 4347 and to declare our objections or reservations regarding other sections.

As librarians we are serving some 50 million users of our public and institutional libraries. This is by far the largest body of persons affected by copyright, and of course far exceeds the groups of publishers and authors, who are numbered only in thousands.

Our constitutional basis for copyright is well known, and we are glad to express our complete faith in it: "to promote the progress of science and useful arts." Likewise we are pleased to record our appreciation of the legislation which Congress has enacted over the years, and the interpretations issued by the courts.

We must express our alarm at the many attempts by special interests to convert the proposed modernization of the copyright law into a grab bag, and to revoke the time-honored rights and customs of scholars and researchers by proposing new restrictions on use of copyright material, while extending almost ad infinitum, the rights of authors.

The lack of logic in some of the proposals is exceeded only by the lack of consideration for those who buy and use copyrighted material, those who actually support the author and the publisher.

I hold in my hand two objects which illustrate the confusion which has characterized the various hearings which have preceded the drafting of the present bill.

One is a very popular copying machine. It is a ballpoint pen-a modern version of the pencil, the quill pen, the stylus, or a dozen other instruments that have been used for copying in libraries for the past 3,000 years or more.

The other is a copy of the well-known "Fanny Hill." Although it first appeared in print in 1749 this volume bears the copyright date of 1963. It has been said that the copyright date may cover the introductory material, but actually the introduction is almost wholly taken from contemporary reviews and comment of over two centuries ago.

Seldom has anybody ever objected to library readers sitting at library tables and taking notes or copying. In fact this is one of the basic purposes of libraries. Many libraries even sell pens and paper as a convenience. To save their time and effort in copying, some readers have brought typewriters while some have brought in cameras to take photocopies. Some libraries have photocopy machines available on which the reader can serve himself. We see no basic legal difference between the scholar who laboriously takes notes by hand, or the man who uses a more modern tool, such as a typewriter or camera.

Numerous studies have been made to show that such copying does not diminish the sale of books and magazines to any appreciable extent-in fact there have been tremendous increases in sales and circulation in recent years.

In these days of mass production no isolated one-at-a-time copying system can ever compete in cost or in quality with original central publication.

Scholars and researchers make and use copies because they want only small portions, or because the originals cannot be obtained. As a librarian I know how much time lag there is in ordering single titles from publishers-and how often after a short time the publisher abandons any responsibility to keep a book or journal available and lets it go out of print.

The vast majority of authors, particularly in scholarly periodicals, receive no compensation, and indeed could not carry on their work without some kind of note-taking.

Conversely, there is practically no interest in copying from the big money. popular bestsellers.

I repeat, there is no substantial evidence that one-shot copying by scholars in libraries has injured authors or publishers.

Concurrently with their threats to the long accepted practices in our libraries, the authors and publishers have advanced proposals to greatly extend the term of copyright, and to greatly complicate the process of determining what actually is subject to copyright.

To us it looks like both eating and having your cake, while locking the door to the bakery store.

To the knowledgeable, the copyright claim on "Fanny Hill" is meaningless. but it is symptomatic of the desire to throw a false mantle over everything in print.

The present law provides for a term of 28 years from the date of the printed notice, plus a similar term for renewal. Statistics compiled by the Register have shown that the 28-year term is more than enough for 85 percent of the authors and publishers-they just don't renew. Yet now it is proposed to extend the term for the life of the author plus 50 years. This drops into the laps of us librarians the job of determining who is dead and who is alive, easy enough for a few, but practically impossible for the great majority.

At one time over a year ago, certain representatives of authors and publishers seriously proposed that the entire notice of copyright might be omitted. But, fortunately, that proposal has not prevailed.

Similarly nothing yet has come of a proposal by certain authors that publie libraries be taxed for lending books.

We note with regret that the mandatory penalties for "innocent infringement” have been made unduly harsh.

One member of a self-appointed committee of copyright experts has boasted that his group developed plans for restricting every means of transmission of thought except smell and extrasensory perception.