Second, NASA would like to make clear that the prohibition ap-plies only to domestic copyright protection. They argue that the rationale for denying copyright in U.S. Government publications is intended to have no effect on protection of those works abroad. If the rationale is that the public is paying for the work and therefore ought to have it free, this certainly doesn't apply to publication in foreign countries. And there is, apparently, a desire, and a very strong desire, to license foreign governments and foreign publishers to publish U.S. Government publications. Their argument is, and I am quoting, not to "require a giveaway of U.S. Government works to foreign nationals and foreign governments."

Mr. KASTEN MEIER. Let me just ask this, although it is a different question. Does, in fact, NASA sell these compilations or periodicals as the U.S. Government Printing Office sells its publications?

Ms. RINGER. NASA has an extensive licensing program and does collect money, both here and abroad. NTIS is the one that is wanting the copyright in their publications domestically and internationally, too. I think that NASA's interest goes to a lot of other things besides publications, such as the badges that the astronauts wore and that sort of thing. And I think that they are not seeking domestic copyright. They want the bill or the report, preferably the bill, to make clear that nothing in section 105 affects their right to license and collect royalties for foreign uses of works, publications and other things.

Third, there is in section 8 of the present law a saving clause that indicates that if private works are published by the Government, that doesn't throw them into public domain. We didn't see any real need to keep this. We felt it was self-evident, under the revised provisions, but NASA still is worried about this. And I would say on that, that the Copyright Office can't see much objection one way or the other. If they feel it is important, then we would not object.

The Postal Service is also putting forward some proposals which have not yet been put forward officially to either House of Congress. I have summarized the gist of their proposals. They boil down to a desire to protect exclusive right in postage stamp designs. The argument is that since the Postal Service has ceased to be technically a government agency, it should be entitled to operate as a private corporation in the copyright area.

I will give you, very briefly, what I indicated in the report is our position on some of this material, as follows:

The Copyright Office prefers to take no position on the request of the Department of Commerce for a specific exception allowing copyright in NTIS works. I feel this is strictly up to Congress.

We adhere to our position opposing a provision for setting up machinery to allow copyright in government works under exceptional circumstances.

We agree with NASA that the copyrightability of U.S. government works in foreign countries should be made clear, but we should prefer to accomplish this in the report.

We have no real objection to retaining the saving clause now in section 8, but we still doubt whether it is necessary.

We have no objection to a construction of the statute that would treat works of the U.S. Postal Service as private publications, eligible

for copyright, but we believe that all those works, including the designs of postage stamps, should be subject to the same conditions, formalities and time limits, as other copyrightable works. In other words, we are not disagreeing essentially with the argument that since the Postal Service is now a private corporation in some respects that they should, potentially, be able to secure copyrights and exploit them and I suppose this should be expanded to postage stamps. But, I don't think this should be completely unlimited. I don't think they should be able to get an automatic copyright against the world without the use of a copyright notice and with no limitations on term and so forth. And I think that since the issue has been raised, it might be wise to include something in the report on the subject.

Mr. Chairman, the other material I have in chapter 1 is important. And I think it does deserve consideration, but I am wondering whether we should take the time of the committee on things like architectural works and this loop-hole concerning stateless persons under section 104 at this point. The expropriation question, which is now in section 104, has been moved by the Senate in the subcommittee and now in section 201. I would prefer to discuss it in the context of ownership of copyright, rather than protection of foreign works. It was really misplaced before, in my opinion.

Mr. KASTEN MEIER. In the interest of time, I think you ought to move on and we can take due note of the issues as you note them, as they arise at each point in each of the sections and chapters. And if you have not covered them, we can look at them. So, I would proceed so that we may, indeed, cover as much ground as time permits.

Ms. RINGER. Thank you, Mr. Chairman.

Chapter 2 of my report-and I would identify the issues under it as fair use and reproduction for educational and scholarly purposeswas the subject of a rather lively debate before your committee. This was, for somebody who has been through the wars on the issue, a little curious, because it was, in my opinion, somewhat difficult to identify a single educational position. I think your questioning, the subcommittee's questioning of the educational witnesses, brought this outthat there seemed to be several positions being put forward there, and they wern't necessarily consistent with each other. I think there is a pattern to them however. And, in fairness, I think that a solution to this problem can be found.

The sections that are involved are principally 107, concerning fair use and sctions 502 and 504. concerning remedies for infringement, namely, the injunctions section and the damages section.

The issue that we are talking about now has an enormously long and difficult history. I don't think anyone can really understand the testimony that was put forward in mid-May on this without knowing something about that history. I will summarize it as briefly as I can, by saying that the educators, in the mid-1960's felt very strongly that fair use was not a sufficient guarantee with respect to classroom teaching and that obviously photocopying machines were being used extensively in day-to-day and face-to-face teaching activities. They were very concerned that broad language on fair use or the lack of any language with respect to fair use would imperil their present activities and would endanger individual teachers, and would subject them and

their superiors in the school system to the possibility of infringement suits. They felt, as they expressed to you, that the most imaginative teaching that is done involves using this whole range of new inventions that have been adapted, in some cases very ingeniuosly, for dayto-day teaching. These include, but are obviously not limited to the photocopying machines.

There was a quite sharp confrontation in 1965 in the hearings between the authors and publishers on the one side, and the Ad Hoc Committee of Educational Organizations and Institutions on the other. And the center of the issue was section 107. The ad hoc committee was urging that it contain a more expanded language, which referred to teaching, plus a very broad educational exemption, which wasn't exactly the same as the proposal that you had put before you, but was similar in many respects. And the crux of that proposal was that if the activity was nonprofit, was for no commercial purpose of any kind, and if it was for the purpose of teaching or scholarship or research that it be allowed, without any limitations. This was combated very vigorously by the authors and publishers, as you saw in May.

A long and very difficult series of negotiations ensued. And your subcommittee played a very creative role in trying to work out a solution. Mr. Fuchs, your majority counsel, chaired a meeting which was a turning point and at which there was a considerable degree of accommodation and consensus achieved. It covered the whole range, at least as it was then viewed, of educational activities, in an effort to figure out what was fair use and what was not. The thrust of the meeting was that we will retain the fair use provision. It had been pared down to its bare essentials. But the basic compromise was to restore it and perhaps augment it a bit, especially by referring to teaching, and to include in the report a very long and detailed and explicit discussion of what the subcommittee viewed as fair use in the context of educational photocopying and other forms of classroom activity. This succeeded, and it succeeded after your hearings were finished, but the success was reflected in the Senate hearings that were going on in 1967 at exactly the same time the House passed a bill. And at that time, the ad hoc committee indicated a willingness to adhere to the agreement, if certain things were done. They had a menu of things that they wanted changed, but they weren't of a fundamental nature. Well, obviously, the Senate could not change the House report. So this was left a little bit dangling, because the Senate had had nothing to do with your subcommittee's report, which had been adopted by the full committee. That report language was obviously a major part of the compromise.

And also, there were a few things that they had asked for and that, when the Senate acted, it didn't do. They were not major, but the Senate didn't do them. They did do some of them, but not all of them.

There were, I might say, some changes in the remedies section, not the injunction section, but with respect to statutory damages that did insulate, in a sense, infringement by teachers, up to a point. It wasn't as much as the ad hoc committee asked, though.

And then the cable issue came into the picture. There was this long hiatus. And the subject was barely discussed at all during this time.

There was, as you know, a big issue over computer uses, which lapped over into the educational area. There was legislation aimed at setting up the National Commission on New Technological Uses of Copyrighted Works, which sought to deal with that. And the library photocopying issue was extremely lively in that context and in the context of the general revision bill. But, the classroom teaching question was quiescent.

But, the compromise, if that is what it was, just could not hold together that long. It was not nailed down tight enough. And meanwhile, the Williams & Wilkins case was pursing its way through the courts. In 1973, after all of these years, the Senate held a hearing which included this very issue. It had been raised again by a letter or letters that had been sent to the Senate, indicating that we, that is the ad hoc committee, were going back to our proposals for a complete exemption. They gave the reason why. And the why was essentially that they had been scared to death by the Williams & Wilkins case. The Commissioner's report, the lowest court opinion in that case, which was in the Court of Claims and doesn't follow the usual procedure in this type thing, had been a very sweeping victory for the authors and publishers. And the educators and the classroom teachers and the higher education community had been very concerned about all this, because this was an interpretation of a fair use. The Williams & Wilkins case ran counter to what they had felt had been agreed to as the metes and bounds of fair use in the early discussions. And they were insisting either that there be an exemption, a complete exemption, or that the Williams & Wilkins case, as it then stood, be reversed by legislative process. They asked that certain further safeguards, which were similar, although not exactly the same, as the ones they had put forward in the Senate in 1967 be added to the bill. This was greeted with a certain amount of outrage, as you probably know, because they felt that, well, you make a deal but now you are going back on it. But, it wasn't that simple, Mr. Chairman. There had been a long delay.

Nevertheless, we were back, not quite to space 1, but almost. And the testimony you heard is along those lines. But, yet, if you look at the whole picture very carefully, going back to the beginnings and trying to trace it through this agreement that sort of broke downand the structure of the agreement still exists-and if you read the educators' testimony carefully, I believe you can see that the approach that your subcommittee took is a viable approach, if certain things are done.

Again, I cannot do this justice, but let me give you, if you will forgive me for using the term, the bottom line of this chapter from my statement:

The tortuous history of this provision (section 107) has finally produced a text that satisfactorily expresses the legislative intent and, as far as it goes, is acceptable to the interested parties. That is, nobody is wrangling over the wording of section 107, as such, anymore and aside from the Department of Justice no one has suggested any changes.

The Department of Justice suggested changes that were sort of outside the area of basic issue. We therefore feel it would be unwise

and unnecessary to tinker with the language any more. We think we've got that pretty well nailed down.

But, the clarification of legislative intent is something else again. And this is why I tried to summarize the present positions, taking into account the history and the hearings that you have held. And the summary of positions is as follows:

First: There is general agreement that, because of the importance of the problem and the lack of judicial precedent, Congress should clarify its intentions as to whether or not certain educational practices are or are not to be considered fair use, but without freezing the application of the doctrine or opening the door to widespread abuse. In other words, you have to address this problem somehow, either in the report or in the legislation.

Second: There are essentially two ways of accomplishing this: (1) by a detailed interpretation of fair use in the legislative report; or (2) by an explicit statutory exemption.

Third: Following extended discussions, the authors and publishers agreed to the present wording of section 107 and to an interpretative commentary with respect to educational uses along the lines of the 1966, 1967, and 1974 legislative reports; that is, the Senate legislative reports.

In other words, and I didn't mention this in my copy here, but I suspect you know it very well, the Senate 1974 report adopted all your language, or practically all, but with some changes which probably ought to be examined. The authors and publishers have consistently and strongly opposed any explicit educational exemption.

Fourth: Although the educators consistently favored an explicit exemption-and they never completely gave up on it, for that was always their first choice-they did agree at one point to accept the approach of a legislative interpretation of fair use on certain conditions, including the expanded wording of section 107-and that has not been accomplished-certain changes in the language of the commentary, and further insulation from liability from innocent infringement and that goes back to chapter 5. After the first Commissioner's decision in favor of the copyright owner in the Williams & Wilkins litigation, the educators returned to their proposal for an outright exemption, which clearly remains their first choice.

Mr. RAILBACK. Where is she reading from?

Ms. RINGER. I am sorry, I am reading from page 26 of chapter 2, down at the bottom. I am going to skip around a lot, though.

However, it also appears that the position of the educators is still flexible enough for them to accept the approach of a legislative interpretation of section 107, provided it is sufficiently clear and reasonable from their point of view, and provided certain changes are made elsewhere in the bill.

We take the position-and now I am on page 27-that the proposed exemption for educational uses is much too broad. But, in any event, we seriously doubt whether satisfactory statutory language for this purpose could ever be achieved. The situation is one that really calls for the flexibility of a fair use approach, rather than the rigidity of an outright exemption.

At the same time-I am reading from page 27-we recognize that the interpretative language in the 1974 Senate report, consists, with