Mr. TENZER. Let us pay a respectful tribute to Mrs. Fisher for the contribution made by her husband.

Mr. KASTENMEIER. We will be calling on you later.

At this time the committee is very pleased to welcome one of the most distinguished and best known former members of this committee in our time. I think he is better known in his State and nationally for his service in the other body, the distinguished and honored Senator Kenneth Keating. The committee is very pleased to have Senator Keating.

STATEMENT OF KENNETH B. KEATING, ON BEHALF OF AMERICAN BOOK CO., HARCOURT, BRACE & WORLD, INC., TIME-LIFE BOOKS, GINN & CO., D. C. HEATH & CO., THE PSYCHOLOGICAL CORP., ADDISON-WESLEY PUBLISHING CO., INC., THE MACMILLAN CO., FIELD ENTERPRISES EDUCATIONAL CORP., SCOTT, FORESMAN & CO.

Mr. KEATING. Thank you for those kind words.

On my left is Mr. Lee Deighton, who is going to be heard later in these hearings. He is the chairman of the board of the Macmillan Co., and a practicing publisher with a background of 38 years in his business. Speaking for the American Textbook Publishers Institute, he will discuss briefly those sections of the proposed bill the consideration of which is vital to the publishers and the authors.

On my right is Mrs. Bella Linden, an attorney representing the American Textbook Publishers Institute. She will speak to you later on some of the technical aspects of the bill, such as this problem of fair use, which we heard about, and the transmission of information by new procedures.

There are two principal trade organizations in the book publishing field.

The American Book Publishers Council represents the publishers of what is commonly known as "Trade Books," books such as novels, biographies, poetry and so forth.

The American Textbook Publishers Institute represents well over 90 percent of all publications in the field of school textbooks, college textbooks, reference books, encyclopedias, maps, test publishing, such as aptitude tests and so forth.

I appear here today as special counsel on behalf of a group of 10 publishers, some of the leaders in the publishing world.

I welcome this opportunity to appear before you, Mr. Chairman, at my old stand where from 1947 to 1958 I took pride in being a member of this committee.

May I also digress a moment to say, Mr. Chairman, how helpful and courteous your counsel, Herb Fuchs, has been in arranging my appearance today in order to help me meet other commitments which I have made.

You who know me are aware of my enthusiasm and love for public service. This is my first appearance as a witness before a congressional committee since taking up the private practice of law. And I say to you with the utmost sincerity that my study of this problem regarding the proposed revision of the copyright laws has convinced me that this appearance is in the nature of an extension of my public

service. I am sure you will agree with me that to be paid a fee to advance what I conceive to be a public interest is indeed a fortuitous concatenation of events.

First, a word about the publishing business. Book publishers are not printers or binders. All the physical manufacture of books is arranged by contract. Publishers create and organize information and aid in its dissemination in any form. They really package information much as radio and television do in their own quite different media.

The book publishing industry and its thousands of employees are deeply concerned with copyright law since copyright lies at the core of all cultural, literary, and educational activity.

In addition, as a plain business matter, copyright is the base upon which book publishing rests. It's the jugular of the book publishing industry. And book publishing in this country is a $2 billion industry. In our economy, the concept of private competitive industry is basic. This is a statement which I know will meet no challenge from you, Mr. Chairman, nor any member of this committee. Nowhere is this concept more important than in the making and distribution of books, particularly of those books designed to be used in schools. I am reminded that the enabling clause in the Constitution was designed to provide incentive to authors and publishers for the creation and dissemination of their work. It is the function of copyright to protect this incentive.

The standards set forth in the Constitution are still fully appropriate today. Ours is still a system of private enterprise, a system of achievement through competition and a philosophy of freedom of expression made possible by competitive media of communication. To sustain a system of private enterprise we obviously give recognition to and protection of private property. The writing of an author is private property. The editorial work, the printing and publishing results in a work that is also private property.

Our experience has been that the greatest technical, scientific and literary achievements have been stimulated in large measure by the respect that we have afforded, legally and financially, to copyrighted works, whether those be writings of scientists or poets, grade-school books or highly technical reference books.

There is no doubt in my mind that the needs of education will be best served in the long run by the maintenance of a strong, competitive, private publishing industry.

I want to request that in your appraisal of all the testimony taken in these hearings, including mine, and in your formulation of new copyright legislation you measure the provisions constantly with this yardstick in mind and ask yourselves, in each instance, whether a particular provision of the revised law will advance or hamper the continued development and growth of this great industry which means so much to our national economy.

I have been much impressed by the scholarship and study that has gone into the drafting of the bill before you. I commend the distinguished Register and his able staff and also want to thank them for the courtesies extended in discussions with representatives of the book publishing industry.

However, I am reminded that the statute will be construed and interpreted by lawyers and others who may not be equally scholarly.

I do not wish to go into the language or provisions of the bill, but as I look it over, I see such terms as "work for hire," "transmit," "derivative work," "supplementary work" and the like, which I understand to have specific and important meanings in the context of the bill. And I note that section 106, as has been pointed out here, provides certain exclusive rights which sections 107, 108, and 109 then abridge. Here the problem of balance becomes important.

Most laws are written in response to past behavior. The copyright law must be prospective, taking into account the ingenious methods and devices that will transmit information in the future. For this reason the technical language of the copyright law will be very significant. It will be important to avoid too narrow language which might inadvertently become too restrictive in the future. General language, when it is pertinent, may be more desirable.

We are here confronted with a unique and original problem at a unique time. For the first time since the development of the printing press we have crossed the threshold of a technological revolution in the dissemination of knowledge. Up till now, life was relatively simple. An author wrote a book and sold it to a publisher. The publisher published the book and sold it to anyone who would buy it. Everybody was paid for his effort.

We all know of the fast changing field of photocopying. We know that it may today be simpler and even less costly to photocopy a portion of a reference book than to buy the book. We know that volumes of information can be stored on microfilm and magnetic tape. We keep hearing about information retrieval networks.

The new technology, the photocopying machinery, the information storage and retrieval systems, which make rapid access to material available to the user without requiring the purchase of the books written by the authors and published by the publishers, raise a very serious and essential question. Should our copyright law provide that we feed the maws of this machinery by conscripting to this wonderful new machinery the services of authorship and book publishers without remuneration to them, or can we devise a law that gives full and appropriate recognition to the essential services performed by authors and publishers in a manner appropriate to our philosophy and our economy?

On a short-term basis it might appear that the simplest and most practical response would be to provide that photocopying of copyrighted works should not be impeded by requiring any kind of license from the copyright owner or payment to him and that our storage and retrieval systems should likewise be exempted from the financial burden of having to deal with authors and publishers. Of course, this would make immediately available to everybody, without effort, without cost, everything that the publishers published and writers have written.

The inexorable question arises-what will happen in the long run if author's income is cut down and down by increasing free uses by photocopy and information storage and retrieval? Will the authors continue writing? Will the publishers continue publishing if their

markets are diluted, eroded and eventually, the profit motive and incentive completely destroyed? To pose this question is to answer it. I have been a teacher myself. I know of no higher calling and no more dedicated group of our citizenry than those who instruct and guide the youth of our land. I have been in the nature of a crusader at all levels of government to provide higher pay and more benefits for teachers. Just as I feel that they should be amply rewarded for their hard work and dedicated service, so it seems to me should those who author and prepare the material which the teachers use in their work. It is true, Mr. Chairman, that I come before you as a special pleader on behalf of a group of book publishers. I feel, however, that I am in the fortunate position of urging upon you an evaluation and concern for what ultimately I believe is in the best public interest. I urge that you give careful consideration to the promulgation of a copyright law that fosters authorship, that fosters one of the great industries in the United States-the book-publishing industry-and that preserves for our Nation a continued and continuous flow of creative effort and that sees to it that the private property rights of the intellectual and creative people of our Nation are guarded and protected with the same respect as any other segment of our national gross product.

I urge, therefore, Mr. Chairman, and members of the committee, that you provide appropriate protection to the rights of the creators of our intellectual national product to the end that they may remain in the position to receive payment for their work like all their fellow citizens.

Mr. KASTENMEIER. We appreciate the contribution of our distinguished former colleague.

I wonder, to the extent that you have had a chance to examine this bill and the general revision as outlined, do you support it or do you have any suggestions of change in this bill for us?

Mr. KEATING. In general we support it. There are some suggestions for improvement, what we feel are improvements, which Mr. Deighton and Mrs. Linden will discuss later in the hearing. We feel there is a very great need for a revision of the law at this time. We feel that on this question of the fair use problem it is sufficiently adequately dealt with because of the inability to reach an agreement on what possible definition could be made. I think the Register has resolved it in about the best way it can be.

On the question of the manufacturing clause, I think they will both want to be heard at some length later.

Unless you want us to say something now, I think in general that will respond to your question.

Mr. KASTEN MEIER. We can explore that in detail this afternoon with Mr. Deighton.

I have one other comment. You refer to the profit motive and the need for the publishers and authors, indeed, to continue to survive and make money. I think we all agree. As a matter of fact, I think it was Mr. Cary who suggested that this had become a $6 billion industry, one of the greatest in the land, publishing generally, and printing, and other industries that generally deal with copyrights. So I would think that the state of the industry at the present time is quite good, is it not?

Mr. KEATING. I think so. I used the figure of a $2 billion industry. I guess I did not include the authors. We are glad to have them, and the printing. I think the $2 billion figure I used, and Mr. Deighton can correct me, is the pure book publishing.

Mr. KASTENMEIER. Yes, I think Mr. Cary had reference to authors and other aspects of copyright.

Are there any questions?

Mr. TENZER. I have no questions except to greet the former distinguished Senator from the State of New York, my home State. Mr. KEATING. Thank you.

Mr. KASTENMEIER. Mr. Lindsay?

Mr. LINDSAY. I just want to apologize for not hearing the first part of your statement. I want to say to our former distinguished colleague and old friend of mine I was held in the Joint Committee on the Organization of Congress, where I was testifying. I thought I would be there for 10 minutes. They held me over an hour.

Mr. KEATING. You have many activities these days. I approve of all of them I am very glad to say.

Mr. LINDSAY. Thank you for coming before us, Senator.

I was interested in your comment on the fair use provision. You think in general terms that probably it is satisfactory from your point of view?

Mr. KEATING. In general, yes, but Mrs. Linden is going to deal with that later in her testimony.

Mr. LINDSAY. The reason I have raised this is that I have received a lot of mail and a good many dissertations on that point both

ways.

Mr. KEATING. I was very glad to hear what the Register said and the counsel. There has been a lot of mail sent out which, let us assume unintentionally, is quite misleading as to the effect of this statute, as he pointed out. It makes no changes at all in the existing law except in the educational television field where the rights are somewhat narrowed. I have seen one of these pamphlets that probably did give rise to a good deal of this mail. I hope that in the course of these hearings the questions there raised will be clarified.

Mr. LINDSAY. It codifies existing law.

Mr. KEATING. Insofar as classroom use is concerned, it does not impose any further restriction on teachers than what they have now under present law.

In the field of educational television there is some additional restriction on what can be done through that medium. In other words, if you in an evening have a symphony on educational television, they would be subject to the copyright provisions, as I understand it, the same as a symphony that was performed on another station would be. Mr. LINDSAY. Thank you.

Mr. KASTEN MEIER. Mr. Hutchinson.

Mr. HUTCHINSON. I have nothing except to thank the Senator for appearing. I appreciate his statement.

Mr. KEATING. I am happy to be here. Thank you all very much. Mr. KASTEN MEIER. The Chair would like to announce at this time we will recess now because tradition has it we are going to get a bell

Mr. HUTCHINSON. There it is.

Mr. KASTEN MEIER. I anticipated this bell by about 5 seconds.