STATEMENT OF DAVID MCCURRACH ON BEHALF OF THE NATIONAL SCHOOL AND EQUIPMENT ASSOCIATION Mr. Chairman and members of the subcommittee, my name is David McCurrach, and I am Executive Vice President of the National School Supply and Equipment Association (NSSEA), 1500 Wilson Boulevard, Arlington, Virginia. Our membership is comprised of upwards of 470 companies which are involved in manufacturing and distributing supplies and equipment to schools all across the United States. One of the significant contributions which we make to the educational process is in the area of instructional materials. Instructional materials include a wide variety of nontext supplemental aids to teaching which range from printed materials such as workbooks, exercises, flashcards and learning cards of all types, to newer audio-visual materials such as transparencies for projection, films, and learning records. The development of these new materials has made it possible for teachers to make learning more varied, more interesting, and more effective. Because of the great importance of copyright protection, we have viewed with interest and concern the efforts of Congress over the last ten years to revise the 1909 Copyright Law to reflect new technologies and developments. Since instructional materials are designed for use in the classroom, there are substantial research and development costs in addition to the standard costs of publication. There would have been little incentive for the creators of instructional materials to devote the requisite time, money and effort to this undertaking, had there heen no restrictions on the right of teachers and school officials to duplicate instructional materials once they were published. The advent of photocopying, however, has undermined the efficacy of the copyright protection provided by law. The duplication of educational and instructional materials occurs regularly on a large scale. In fact, many school officials and teachers believe that all such copying is legal because it has been done so consistently over such a long period of time. The practical problems in trying to monitor this activity combined with the lack of judicial guidelines in the area have made the enforcement of rights under the current law extremely difficult. The future development and availability of these materials depends, in the large part, on the re-establishment and maintenance of adequate copyright protection. The interests of the people in the availability and wide dissemination of original works of authorship can best be assured where the author is reasonably compensated for his work. A recognition of this fact underlies copyright law. Without a clear statement of legislative policy on the right of the public to duplicate, the incentive to create instructional materials will disappear. Two provisions of the pending Copyright Revision Bill (H.R. 2223) are of greatest concern to NSSEA. Section 107 permits the duplication of copyrighted materials where it constitutes a "fair use" of the work. Section 110 exempts from copyright liability certain performances and "displays" of copyrighted material in teaching contexts. It is our understanding that § 107 is not intended to change existing law. To the extent that this provision simply codifies standards which have been developed by the courts to determine what is a "fair use" of copyrighted materials, NSSEA would have no concern. We oppose, however, the pending amendments to H.R. 2223 which would broaden the scope of "fair use" and, in particular, the proposal which would exempt from liability for copyright infringement virtually all duplication of copyrighted materials used for nonprofit teaching purposes. Such a change in copyright protection would, we believe, threaten the future of instructional materials. Since schools are the only purchasers of instructional materials, large-scale duplication by schools would deprive the creators of those materials of the only market available to them. In the past, Congress has consistently refused to insulate educators from the obligation to pay royalties for duplicating copyrighted materials. NSSEA urges, Mr. Chairman, that you and the members of your Subcommittee not so insulate them now. I would also like to take this opportunity to address my remarks to what may be some real problems in the bill as it is currently drafted. With reference to the section governing the "fair use" of copyright materials (§ 107), NSSEA is concerned that it will not adequately clarify the respective rights of creators and users in instructional materials. The standards set out in § 107 itself are extremely vague. Without further explanation, no teacher or school official would be able to determine whether or not a given duplicating project would be permissible. First, NSSEA believes that it is essential that explicit guidance be provided on what constitutes "fair use" with respect to the duplication of instructional materials. Guidelines which have been devised with printed textual materials in mind will not resolve the problem of instructional materials. Unlike textbooks, most instructional materials are designed expressly to be used in segments which relate to specific areas of study. For this reason, duplication of portions of an instructional material program is far more detrimental to the rights of their creators than comparable duplication of a portion of a textbook would be. We urge, therefore, that copying even small segments of such materials be deemed not to constitute a "fair use". Secondly, the application of the doctrine of "fair use" to what have been termed "consumables" must be clarified. Unlike textbooks, many printed instructional materials, like workbooks and exercises, are consumed in use. Recognizing the particular problems raised by these materials, Congressional committees have consistently made clear that the privilege of "fair use" by teachers and students would have "little, if any, application" to "consumables". A spokesman for the Ad Hoc Committee on Copyright Law Revision of the American Council on Education testified before this Committee that they were not asking for the right to reproduce writings that are destroyed in use. Supporting the virtual unanimity among Congressional committees, the educational community and the creators of instructional materials that duplication of instructional materials which are consumed in the classroom should not be permitted, NSSEA recommends that § 107 be amended accordingly. Specific guidance is also needed on the application of § 107 to audio-visual materials. Due to the nature of audio-visual aids, no more than one set of a program is usually needed in any one classroom. And, often, a school will purchase only one of each program or set which will be rotated among the classrooms. Thus, even single duplications of these materials could have a significantly adverse impact on the audio-visual industry. NSSEA urges this committee to clarify § 107 and to set out express restrictions on the rights of educators to duplicate audio-visual materials. The other section of H.R. 2223 which NSSEA finds particularly troubling is § 110, which exempts from liability certain displays of copyrighted materials in a teaching context. § 110(1) provides that the "display" of a copyrighted work in the course of "face-to-face teaching activities" in a classroom by teachers or pupils is not an infringement of copyright-and to "display" a work is defined as "to show a copy of it". Except for motion pictures and other "audio-visual" works, there is no requirement in the bill that such copy must be lawfully made in the first place. NSSEA believes that this provision is inconsistent with § 107 and could permit wholesale infringements of instructional material copyrights. Once the copy has been made of materials like sets of learning cards or slides, this exemption could allow teachers to use that copy freely thereafter without running any risk of copyright infringement. NSSEA believes that § 110 should be amended to restrict all the rights of "display" granted under this provision to copies which were lawfully made in the first instance. Clearly, your legislation should not create the circumstances whereby one section of the law permits people to do indirectly what another section forbids them to do directly. In conclusion, Mr. Chairman, NSSEA commends the efforts of this committee to revise our existing copyright laws and to resolve the problems created by the rapid technological changes of the last few decades. The question of photocopying is clearly one of the most troublesome now facing your committee. The interests of educators and users, however, would be best protected in the long run by the maintenance of copyright protection which is sufficient to encourage and reward the further development of new educational methods and instructional materials. 1 S. Rep. No. 93-983, 93rd Cong., 2d Sess., at p. 117 (1974); H.R. Rep. No. 83, 90th Cong., 1st Sess., at p. 34 (1967). COPYRIGHT LAW REVISION TUESDAY, JUNE 3, 1975 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, The subcommittee met, pursuant to call, at 10:10 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee], presiding. Present: Representatives Kastenmeier, Danielson, Drinan, Pattison, Mann, and Mazzoli. Also present: Herbert Fuchs and Bruce A. Lehman, counsels; and Thomas E. Mooney, associate counsel. Mr. KASTENMEIER. The subcommittee will come to order. We are meeting again this morning to continue our study of the general revision of copyright law. This morning we have witnesses representing varying interests on the question of performance rights in jukebox performances. This is a question that 10 years ago, when this subcommittee held hearings, was, as I would observe, somewhat more controversial than it is today. Since then there have been agreements and accommodations, and while the parties are not precisely in agreement on the issue in all aspects, the differences are less grave. The committee policy in this set of hearings has been to call, as the first group of witnesses, those witnesses which have what appear to be a disagreement with the bill as introduced; that is to say, the bill as it passed the Senate late last year. In this case, it is not the proprietors of music, music composition, that are defending the bill in all particulars. Actually the performance rights societies have some disagreements with the bill as it passed, and consequently our first set of witnesses this morning represent the performance rights societies. They are a number of distinguished individuals. Ten years ago there were a different cast of people present. In addition to the general counsel of the American Society of Composers, Authors and Publishers, Mr. Bernard Korman, and the general counsel of Broadcast Music Inc., Mr. Chapin, and also counsel of SESAC, Inc., who will be a witness, Mr. Ciancimino, who was present 10 years ago, there are a number of distinguished American authors and composers. And first, if it is the pleasure of the panel before us, I would call on the great name in American music, the distinguished author, and composer, Aaron Copland, to be followed by the others as may be present. I notice we have Mr. Sy Oliver. Chip Ďavis and others may be here, and perhaps I should call on either you, Mr. Korman, or someone else who is appropriate to introduce each of the witnesses. But, first the Chair would like to greet and call on Mr. Copland to make his presentation. TESTIMONY OF AARON COPLAND, COMPOSER AND AUTHOR, ACCOMPANIED BY BERNARD KORMAN, GENERAL COUNSEL, AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS Mr. KORMAN. Mr. Chairman, if I may, since you mentioned that there would be other witnesses, and we had listed Johhny Mercer as one of them, Mr. Mercer had intended to be here. His wife is recovering from an operation and she is out in California, and he is with her, and therefore, unfortunately not here. We have arranged among ourselves a little different allotment of time than appears on your schedule. Sesac has graciously ceded 2 minutes of its time to us, and rather than Mr. Copland taking only 5 minutes, he will take 8 or 9, and I will try to briefly summarize the statement that Mr. Mercer would have made had he been here. Mr. KASTEN MEIER. And who will speak for Broadcast Music Inc., Mr. Sy Oliver! Mr. CHAPIN. Mr. Chairman, Mr. Sy Oliver is here and will speak for Broadcast Music Inc. The other person, Mr. Frank Peewee King, has been delayed in transit, and we expect him at any moment. I would hope at your pleasure that he could be at the end. Somebody is at the airport waiting for him and he will bring him here just as soon as he arrives. Mr. KASTENMEIER. In which case we will call on you, Aaron Copland. Mr. COPLAND. Mr. Chairman and members of the committee. My name is Aaron Copland, and I reside in Peekskill, N.Y. I appear today as a spokesman for the 23,000 members of the American Society of Composers, Authors and Publishers, on whose board of directors I have served since 1973. However, I believe I speak for all composers, authors, and publishers of music, and indeed, that the point of view I shall express is, in fact, the point of view of everyone who has looked at the jukebox question, with the sole exception, of course, of the jukebox industry. First, Mr. Chairman, I would like to express my personal appreciation of your extraordinary efforts on behalf of authors and composers over the past dozen years. I believe all creators owe you a large debt. I hope my statement will accomplish two things: First, to state succinctly ASCAP's position on the jukebox issue and, second, to set forth briefly some facts about the world of music which are not generally known. The origin of the $8 per year provision in the present bill is wellknown. In 1967, for the first time, the prospects for enactment of a general copyright revision bill were good, but there were two problems-the fee to be paid for jukebox performances and how cable television should be treated. To resolve the jukebox issue, we and other licensing organizations agreed with the jukebox industry that their fee would be $8 per box per year-substantially less than the $19 to $20 fee recommended by this subcommittee in 1966. |