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of Copyrights shall, when requested by the depositor and upon payment of the fee prescribed by section 708, issue a receipt for the deposit."

Subsection (b) is amended to limit the use that might be made by the Library of Congress of deposited works. Items such as data bases, computer programs and microform compositions are costly and the use thereof for purposes other than reference within the Library of Congress would substantially impact the opportunities for authors to recover their costs, particularly considering the limited quantities in which they are marketed.

An amendment to Section 408. Copyright Registration in General is offered as follows:

Add a new section (f):

"(f) In the case of microform compositions deposit copies are required only where the retail price of the composition is $1,000 or less. In cases where microform compositions are created in editions, deposit copies are required only when the total number of copies in a particular edition exceeds 200 in number.". The creation of a microfilm composition often is an expensive process and results in very small unit sales. Many microform compositions sell only 20 or 30 copies and a total sale of 50 is usually considered quite a successful work. To require the creator of a microform composition to deposit two copies out of perhaps a total of 20, represents a disproportionate burden. The manufacture of each copy, in addition, is a costly effort. The purpose of this amendment is to limit the impact of the deposit requirement on the overall objective of the copyright system: to obtain the widest possible dissemination of information useful to science and the useful arts.

An amendment to 704, Retention and Disposition of articles of deposit in Copyright Office is proposed as follows:

"(a) Upon their deposit in the Copyright Office under sections 407 and 408, all copies, phonorecords, and identifying material, including those deposited in connection with claims that have been refused registration, are in the custody of the United States Government."

Subsection (a) would be amended to specify that deposit copies are in the custody of, rather than the property of, the United States Government, Title would thus be left in the author and the Library of Congress' rights of utilization and disposition limited to that of a bailee. Again the intention, in the light of vastly expanded library networking concepts, is to limit the use that may be made of expensive deposit copies by others than the Library of Congress. A replication and redistribution effort by the Library of Congress could severely affect the rights of authors otherwise granted in this legislation.

We believe these amendments deserve consideration in this revision cycle. They represent the results of day-to-day experience of authors, information companies, and users seeking to work out within existing copyright concepts workable relations for the dissemination of information through these technologies. We recognize the great pressure on the Committee to act on this legislation, particularly in view of the immense effort you have already devoted to it. These are no small matters, however; the present and future methods for sharing the works of authors with world-wide audiences are to be found in this complex mix of constitutional, economic and social issues.

Whether you are able to take the time to understand these new technology issues now and to act on those which deserve immediate attention or are constrained to defer to the National Commission on New Technological Uses of Copyrighted Works on all of them, it should be clear that the constitutional rights of authors will not be protected by exemptions that essentially free large computer systems to have free access to all works of authorship.

One of the major features of the computer age is the fact that state after state has created large university-based computer facilities and have given these facilities extensive authority to serve not only educational users, students, but industry, libraries of all kinds and government, state and federal, as well.

The result of granting such facilities an exemption to input into computers copyrighted works of authorship without infringing the copyright would be the creation of a whole new information distribution system in the United States. The system would not be based on author's rights as the present system is based. Rather it would be based on state bureaucratic decisions. Only those authors which the state-owned networks chose to respect would be granted anything approaching the rights of authors enjoyer in inkprint publications. The works of authors could be freely installed in computers without the authors' approval or even knowledge. The authors ideas could be used, re-documented and even distorted as to source, meaning and context. One area served by one system would

have access to that systems version of the facts and another area would have access to another state-subsidized version. How would we as a nation sort out the truth without equal access to the same unabridged works of authorship. If the author's control over his work product through copyright is denied him by exemptions which free his works to be input, piecemeal or in total, accurately or inaccurately, it is difficult to see how the nation can stimulate and reward authors for writing the insightful and critical commentaries essential to the functioning or a democracy.

An exemption of input from copyright infringement would have other effects as well:

By implication such an amendment to the present legislation acknowledges that to input copyrighted materials into a computer is an infringement under present law. A need for such a change in the law has not been proved.

The small printouts resulting from most computer searches would by their size alone be argued to constitute "fair use" of the information. Having inserted in the computer the Encyclopaedia Britannica, brief extracts would be printed out. Notwithstanding the fact that this is the only way to use encyclopedic information, many would seek to treat it as fair use. Since there is no provision for any payment system in the proposal, this apparently is the intended result.

If entire works are free to be input, such materials as the Reader's Guide to Periodical Literature could be keypunched and installed in a computer system. Such publications are used simply to find a specific article citation. Without specific provision for controlling uses, the protection offered by copyright would be minimal. Little would be published in the open literature and authors would attempt to protect themselves by limiting by contract what uses could be made of their works.

The stress on exemptions would have the effect of eliminating publishing media which did not have exemptions because the basis for creation and investment in dissemination efforts, a minimal proprietary position, would be eliminated. The result would be reduced creation and distribution of works of authorship. The elimination of risk capital and the reliance on state capital would seriously retard development in many areas of science and the useful arts.

The proliferation of non-profit uses, particularly in information, today are legend. Government funding of research in information systems work, for example, is essentially limited to grants to non-profit organizations. This has led to the development of a whole generation of organizations performing this research on a non-profit basis. Separate non-profit groups have grown up to do similar research in education. We raise these questions not to challenge the purposes of these groups, but to suggest that the amendment is unduly broad as drafted and would serve, if enacted, to stimulate even further the development of subsidybased information dissemination activities.

Finally, we believe there are several basic legislative drafting objections to the exemption proposal:

The amendment conflicts with the purpose of Section 117 to maintain the status quo in the law vis-a-vis copyright at input. If the committee is to consider seriously this exemption, similar serious consideration must be given to the author's-rights-based amendments offered above. It should be clear from a brief reading of the amendments we have suggested that this is an exceedingly complex area and that it cannot be dealt with simplistically.

The amendment, if coupled with the library photocopying exemption, appears to destroy the economic base of publishing. What the education exemption would allow to be input without infringing copyright, the library exemption would permit the copying of. The result would be the elimination of meaningful copyright protection for authors.

The amendment would preempt much of the work of the National Commission on New Technological Uses of Copyrighted Works. By granting such an exemption, the amendment would not only prejudge a large segment of the Commission's responsibilities, but it would also create a situation where there would be no experience for the Commission to draw on in evaluating how authors and users can resolve problems and develop workable relations within an economic framework.

In summary, the information industry position on H.R. 2223 is that, subject to some technical amendments, the bill should be enacted in its present form and that the library and education exemptions should be rejected. In the event that serious consideration is given to any such amendments, of a nature to deprive authors of significant rights in the new information technologies, we respectfully

request that the recommendations of our committee be given full and equal consideration including the calling of witnesses with first-hand experience in the day-to-day resolution of the problems encountered. While many of these issues should be referred to the National Commission, some questions could be resolved now on the basis of existing knowledge, expertise and understanding. We, accordingly, urge the Committee to hold hearings with regard to developments in the new technology area. It is in this area of the law that the copyright concept will be most challenged in the months and years immediately ahead. An effective copyright law, "that will anticipate the 21st Century" will need to deal with these issues.

We thank you for your courtesy in providing us this opportunity to share our views with you and we wish you the best of good fortune in this and all other areas requiring your legislative skills.

STATEMENT OF Paul G. ZurkOWSKI, PRESIDENT, INFORMATION INDUSTRY

ASSOCIATION

Mr. Chairman and Members of the Committee. My name is Paul G. Zurkowski, President of the Information Industry Association. I have prepared a formal statement which I will not read but which I ask be submitted for the record. The Information Industry Association is composed of more than 70 commercial firms. Some create data bases and computer programs. Others specialize in marketing access to such machine readable information sources. Others are microform publishers, traditional book and journal publishers, consultants, information-on-demand companies, suppliers of services to libraries, indexing and abstracting companies, information systems designers, information facilities managers, and others engage in the creation and marketing of information products, services and systems, world-wide.

Many of these companies have a decade or more of experience in disseminating works of authorship through the use of all varieties of advanced information technologies, alone and in combination with traditional ink-print technologies. Our Proprietary Rights Committee spent the past two years matching this practical experience with the provisions of the revision bill. You will find in the statement the results of that effort. We think that before your committee makes or the National Commission on New Technological Uses of Copyrighted Works recommends, any changes in H.R. 2223 affecting the use of works of authorship in these new technologies these recommendations and the experience of this industry should be considered. People in the industry dealing with the opportunities for wider dissemination of information offered by the new technologies are ready and willing to assist you in these matters in any way they can.

The objective of copyright is to encourage the author to permit the wide dissemination of his ideas in return for an exclusive right in the form in which they are expressed. This is the objective of the information industry as well-to obtain the widest possible dissemination of information, fully utilizing all available information technologies while protecting the rights of authors.

We appear to add our support for enactment of H.R. 2223 and to register our opposition to the amendments proposed to sections 107 and 108.

We feel most strongly that a single-copy photocopying exemption combined with an exemption permitting the input of copyrighted works of authorship into a computerized information system would eliminate meaningful copyright for authors. Copyrighted works of authorship which the education exemption would permit to be input without infringing copyright could be copied on a single-copy basis under the library exemption. Stripped of these copyright protections, authors could publish little in the open literature without being subjected to such exempt uses. Authors, in turn, would seek to protect their works, as the Register fears and the Justice Department recommended, by limiting by contract what uses could be made of their works. The end result for both libraries and educators would be less access rather than the free access they initially expect would result from their amendments.

Further objections to the proposals include:

1. No need for such an exemption has been proved. An industry is emerging to provide the widest possible dissemination while respecting the constitutional mandate to protect author's rights.

2. Small printouts from data banks of encyclopedic information would be argued to constitute "fair use", notwithstanding that this is precisely the use intended. These kinds of resources would be denied to research, education and

libraries on an open copyrighted basis and would have to be provided under contractual arrangements.

3. By exempting certain activities, and thereby exempting them from costs others have to pay, these exempt activities would tend to replace privately funded publishing and information activities. The elimination of private risk capital from the creation and information distribution functions would seriously retard development in many areas of science and the useful arts.

Finally, the proposal to exempt input conflicts with the provisions of section 117 to maintain the status quo in the law vis a vis questions of copyrighted works and computers. This is an exceedingly complex area involving not only author's rights, but also major social policy questions with far-reaching economic implications. Section 117 was originally included in the bill in recognition that neither this Committee nor the Senate Judiciary Committee has explored these issues adequately. The National Commission on New Technological Uses of Copyrighted Works was established to do that investigation for the Congress.

If these exemptions are written into the law the study expected of the Commission would be seriously prejudiced. By granting exemptions at the expense of author's rights and the economic interests of publishers and information companies, the arena within which all parties now are developing workable relations would be destroyed. The Commission would be deprived of the necessary experience in the marketplace on which to base meaningful recommendations for future copyright legislation.

CONCLUSION

While our committee of people who work with these technologies day in and day out were able after lengthy meetings and detailed discussions to agree on some basic definitions and on an approach to the technologies based on author's rights, there also emerged unanimity that these were just the beginning in understanding the whole complex of dynamic technical, esoteric, legal, social and economic relationships which ultimately will form the base for our emerging information society.

It promises to be an exciting and long journey. We recognize as an industry that the serious attention you are giving these matters represents for our society that first step by which any journey must begin.

TESTIMONY OF PAUL G. ZURKOWSKI, PRESIDENT, INFORMATION INDUSTRY ASSOCIATION

Mr. ZURKOWSKI. I have submitted two statements. I will read part of the four-page summary statement.

My name is Paul Zurkowski; I am president of the Information Industry Association. Donald Johnston, counsel, Xerox education group and member of our Proprietary Rights Committee is with me. The association is composed of more than 70 commercial firms, all of which are involved in one way or the other in applying the modern ininformation technologies to the dissemination of information.

Many of these companies have a decade or more of experience in disseminating works of authorship through the use of all varieties of advanced information technologies, alone and in combination with traditional ink-print technologies.

Our proprietary rights committee spent the past 2 years matching this practical experience with the provisions of the revision bill. You will find in the statement the results of that effort. We think that before your committee makes, or the National Commission on New Technological Uses of Copyrighted Works recommends, any changes in H.R. 2223 affecting the use of works of authorship in these new technologies, these recommendations and the experience of this industry should be considered.

People in the industry dealing with the opportunities for wider dissemination of information offered by the new technologies are ready and willing to assist you in these matters in any way they can.

The objective of copyright is to encourage the author to permit the wide dissemination of his ideas in return for an exclusive right in the form in which they are expressed. This is the objective of the information industry as well-to obtain the widest possible dissemination of information, fully utilizing all available information technologies, while protecting the rights of authors.

We appear to add our support for enactment of H.R. 2223 and to register our opposition to the amendments proposed to sections 107 and

108.

We feel most strongly that a single copy photocopying exemption, combined with an exemption permitting the input of copyrighted works of authorship into a computerized information system would eliminate meaningful copyright for authors. Copyrighted works of authorship which the education exemption would permit to be input without infringing copyright could be copied on a single copy basis under the library exemption.

Stripped of these copyright protections, authors could publish little in the open literature without being subjected to such exempt uses. Authors, in turn, would seek to protect their works, as the Register fears and the Justice Department recommended, by limiting by contract what uses could be made of their works.

The end result for both libraries and educators would be less access rather than the free access they initially expect would result from their amendments. Further objections to the proposals include:

Small printouts from data banks of encyclopedic information would be argued to constitute fair use, notwithstanding that this is precisely the use intended. These kinds of resources would be denied to research, education, and libraries on an open copyrighted basis, and would have to be provided under contractual arrangements.

By exempting certain activities, and thereby exempting them from costs others have to pay, these exempt activities would tend to replace privately funded publishing and information activities. The elimination of private risk capital from the creation and information distribution functions would seriously retard development in many areas of science and the useful arts.

Finally, the proposal to exempt input conflicts with the provisions of section 117 to maintain the status quo in the law vis-a-vis questions of copyrighted works and computers. This is an exceedingly complex area involving not only authors' rights, but also, major social policy questions with far-reaching economic implications.

Section 117 was originally included in the bill in recognition that neither this committee, nor the Senate Judiciary Committee, has explored these issues adequately. The National Commission on New Technological Uses of Copyrighted Works was established to do that investigation for the Congress.

If these exemptions are written into the law, the study expected of the commission would be seriously prejudiced. We think we are entering the information age. The work you are doing in this area is very important to the system of freedom of expression this country enjoys. We certainly appreciate the dedicated efforts you have given it. Thank you very much.

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