some changes, of a text prepared nearly 10 years ago by your subcommittee. Given the importance of this section and of the committee reports to an overall solution of this important problem, we recommend that the commentary be carefully reviewed and, where necessary, revised to take account of some of the criticisms leveled at particular statements or omissions.

Over the years, the educators have argued off and on, and again, to you in 1975, that under the present law they enjoy a not-for-profit exemption with respect to educational uses other than performances. And this is simply not so. The only not-for-profit exemption in the present law applies to performances and nothing else.

But, the commercial or nonprofit character of a use, although it is not necessarily conclusive with respect to whether or not something is fair use, in combination with other factors certainly plays an important part in determining whether something is fair use; that is, if something were an infringement if it were commercial, it might not be if it were nonprofit. The motives and purposes of the use play an important role with respect to fair use decisions. I think it would certainly be appropriate to emphasize this point in the legislative commentary dealing with fair use and educational photocopying. There was a letter to Chairman Kastenmeier, sent on August 1, 1975, which I think is worth noting here. The parties that participated in the testimony on this subject through their representatives have apparently heard your plea that they get together and see if something couldn't be worked out, and they have been meeting. I believe that you will know the results of this before you finish your work this fall. I can't guarantee it will produce much of anything, but at least the parties, thanks to you, are talking again. And I do feel this will play a role in what you say about fair use and educational copying in the final report. I won't pursue this down to the ground, Mr. Chairman, but essentially what I am arguing here is that if you go back to your original idea, which was to deal with this through a fair use section and a rather elaborate explanation in the report, and if you reexamine the language you came up with in 1967 and seek to bring it up to date and take into account some of the points that have been made, then I believe that this is a preferable approach and it is acceptable to the educators, provided certain further insulation is written into chapter 5. Now, Professor Raskind proposed that there be no remedies other than actual damages. It seems to me that really you might as well not give any protection at all in this area. But it does seem to me that there are things you can do with respect to presumptions as to fair use in the case of individual teachers. I think there are certain further amendments you can do with respect to statutory damages, perhaps directing that if a teacher is completely innocent then statutory damages, not actual damages, but statutory damages be waived. This might be the way out of the problem. And what I am basically suggesting is the problem really, as I judge it, is not as serious and not as insoluble as it may appear from that testimony.

Mr. RAILSBACK. Could I just ask one quick question?

Mr. KASTENMEIER. Yes.

Mr. RAILSBACK. You know, I appreciate your remarks, except you go on later to express the difficulty that is going to be encountered in having individual teachers obtain permission. And you suggested a clearinghouse. Are you going to go into that at all?

Ms. RINGER. Yes. I felt I had to address that last paragraph. Mr. RAILSBACK. I think you are right. I think that is why they think that not for profit has been excluded, because probably nobody has ever enforced it.

Ms. RINGER. That is right.

Mr. KASTEN MEIER. At this point, I regret we have to interrupt again. We have had the second bell on a recorded vote on the floor. Accordingly, we will recess for 10 minutes, and try to reconvene one more time before lunch and see if we can complete our work. So with that, we will recess until 11:55. The committee stands in recess.

[Recess.]

Mr. KASTEN MEIER. The subcommittee will come to order.

The Chair will announce that we will proceed as far as we can. If we are interrupted by another vote, we will conclude today's hearing at that time. Otherwise, we will proceed for perhaps a half hour or so, covering as much ground as we can and then we will adjuorn this part of the hearing over until 2 weeks from today, until the 23d. We are in competition not only with activity on the House floor, but at least one sister committee commands the attention of a couple of our members. So, we will not protract this morning's excellent presentation. But, you may proceed.

MS. RINGER. Actually, I had completed my presentation, effectively, on chapter 2 of this draft report. Mr. Railsback had asked a question, which I think was very germane, and I would invite other questions if the subcommittee cares to.

Mr. KASTENMEIER. If the gentleman from New York has no questions, I have no questions to present at this time on that chapter. I would prefer that you continue.

Ms. RINGER. The next chapter is a long one and it covers the entire range of problems in section 108, which is entitled, "Limitations on Exclusive Rights: Reproduction by Libraries and Archives." But one of the themes of the chapter, which I will try to bring out this morning, is the interrelationship between section 107 on fair use and section 108, the specific library and archival exemption, and that is an extremely important underlying problem here. I think that the best way to address the problem is probably by considering the two sections together.

The history of this legislation, as it applies to educational uses is tortuous, and I would say that the same is true with respect to library photocopying as an issue. But, in addition, it has been startlingly subject to zig-zagging. And I can only summarize the situation before the Senate consideration of the bill in the early 1970's as one of an agreement to disagree, which produced legislative inaction. The library photocopying problem has been with us for many, many years, for many decades. As I tried to bring out in my legislative history in this chapter, it was the subject of dispute between libraries and publishers back in the 1930's. It was the subject of law review articles and a provision in the Shot well bill, which I mentioned, in the 1940's. That provision actually dealt with this problem, too. And it was the subject of something that was rather unpleasantly called a gentlemen's agreement of 1935, which mostly dealt with microfilm and particularly photostating. The dimensions of the problem were very different, of course, but the problem was there then.

And the gentlemen's agreement, as it was called, did allow a library, archive, office, museum, or similar institution owning books or periodical volumes in which copyrights still exist to make and deliver a single photographic reproduction or reduction of a part thereof to a scholar representing in writing that he desires such reproduction in lieu of loan of such publication or in place of manual transcription and solely for the purpose of research. You see, it required a written. certification. It is not too clear what this agreement was. The practical experience with this agreement was that it apparently was not too successful, but it did give a certain amount of stability to this problem as long as the photocopying activities of libraries or in libraries were necessarily limited by the cost of photostats and the inconvenience of microfilm. And it is clear that this problem achieved entirely different dimensions, both quantatively and possibly qualitatively, when the photocopying machines came into very widespread use in libraries. And I would say that event, in terms of impact, really hadn't been fully felt even when you held hearings in 1965. I think that the practical problems have changed in dimension and perhaps in nature since then.

But, in any case, I have tried to trace the early efforts to deal with this problem in the context of revision. I think it is perhaps to the credit of my predecessors that this was recognized as a problem, and that one of the studies in our revision series back in the 1950's was devoted to this. This was really before there were so many Xerox or other photocopying machines around.

The 1961 Register's report made recommendations on this. It is very interesting to read some of these early efforts in light of the circles that we have been around on this problem. But, I will not try. to reflect them too much here, because it is too complicated.

In any case, we did attempt to get a library photocopying section in the earliest draft of the bill that was given public circulation. And it was strongly opposed by the authors and, to some extent, the publishers. The library community was not really organized in opposition, but it was getting that way when this was under consideration. And undoubtedly, the discussions that were held on that section of the preliminary draft contributed to the library community getting organized on this section. But, in fact, the reaction was somewhat inconclusive.

By the time we got to the drafting of the 1964 bill, which was the very first bill in the series that was introduced to the Congress, the issue had been drawn so sharply that there was a moment—and I remember the occasion very well-when lawyers representing the authors and publishers on the one side and the library group on the other side, agreed rather enthusiastically, but with a very bitter undertone, that we should drop the provision entirely from the bill and rely on fair use completely to deal with library photocopying.

But, because there could be no agreement as to what the library could or couldn't do in this situation, and because the agreement to drop the provision was based on entirely opposite assumptions with respect to what the present law was, we were not able even to have a dialog on the subject in this forum.

Now there was some testimony, but it was very little and it was all in terms of what fair use might or might not provide. There was no

impetus such as that provided with respect to classroom photocopying, Mr. Chairman, to have this committee spell out what fair use meant. And all your reports in the middle 1960's said was that the parties should get together and agree what fair use is. There was also encouragement with respect to the setting up of a clearinghouse.

In any case, this uneasy peace was not destined to last for obvious reasons. And as photocopying devices became a great deal more common and the use of photocopying machines became much more pervasive in libraries, including small libraries, there was the impetus, spearheaded primarily by the American Library Association-and that is where I should say, in fairness, the broadest representation of public libraries lies-an impetus to put in an exemption that would be similar to the educational classroom exemption. In other words, they wanted something that would protect individual librarians and insulate them from liability.

The impetus of the library photocopying exemption, what you have now in section 108, was protection against unwarranted liability of individual librarians. It was not an endorsement of interlibrary loan arrangements, or library networking at that time. This was lurking there in the background, but the purpose of this initiative was really to give librarians more assurances than they could have under the fair use doctrine that what they were doing on a day-to-day, more or less spontaneous and unsupervised basis, was legal under the revised law.

As a result, the library community put forward an amendment to the revision bill which was the subject of considerable private discussion and was referred to in the semipublic discussions that were held with respect to the National Commission on New Technological Uses of Copyrighted Works. In fact, as part of that whole discussion, Mr. Chairman, the question of library photocopying was introduced into the mandate of the Commission. And it was obviously hoped that that would solve the problem-that is, by putting it into the Commission, then Congress, at that stage, would not have to solve the problem in a detailed way. I am, perhaps, oversimplifying and mixing the chronology of this a bit, but these things were going on simultaneously.

To make a long story short, however, late in 1969, the Senate Judiciary Subcommittee reported the bill to the full committee with a library photocopying exemption which did not go as far as the libraries wanted, but was a step in that direction and they did accept some of the language.

The authors and publishers did not accept that amendment immediately. I think that what we see here, if you look at it and attempt to try to view it from a historical perspective, is this exploding technology and an effort on the part of the representatives of the people affected by it to try to maintain consistent positions in the face of the uncertainty of a revision bill. In fact, the Williams & Wilkins case had, by that time, been filed and the problem had been entered into the judicial arena.

This history was very difficult to try to summarize. But, in any case, Mr. Chairman, I will jump to August of 1973, when the Senate held hearings on this issue. At that point, the Court of Claims Commissioner had ruled-I am reading from page 13 of chapter 3-the

Court of Claims Commissioner had ruled in favor of Williams & Wilkins and the full court's reversal of that ruling had not yet occurred. The librarians proposed an amendment that was narrower than their original proposal: In effect, it would permit making one copy of a single article or contribution, or of a short excerpt without further investigation. A library could supply a single copy of an entire work after determining that it was out of print.

The previous bill, the bill on which they were testifying, had drawn no distinction at all between excerpts and single articles on the one hand and entire works on the other. And, in effect, it required that they not be available from trade sources, at all, if photocopying was to be legal.

For their part, the authors and publishers, in general, appeared willing to accept the approach of section 108 as it then stood, which would have applied only to out-of-print and to unavailable material. They did this reluctantly and with some drafting changes. They concentrated their fire upon the librarians' new proposal.

Next, another zig-zag occurred. In fact, two, in fast succession. In November of 1973, the Court of Claims reversed the Commissioner and held in favor of the Government libraries in the Williams & Wilkins case. And then in April of 1974, the Senate subcommittee reported the revision bill to the full Judiciary Committee, with some striking amendments. And it is what they did, in the context of the victory of the libraries in the Williams & Wilkins case in November of 1973-that is to say, it is what the Senate Judiciary Committee did in 1974—that is really the grounds on which you heard the dispute in May.

In effect, the 1974 bill-and I am reading from page 14-accepted the librarians' 1973 proposal, but added an entirely new provision stating that "the rights of reproduction and distribution under this section do not extend to cases where the library or archives or its employee: (2) engages in the systematic reproduction or distribution of single or multiple copies." The library community greeted this new subsection (g) (2) and the explanatory commentary accompanying it with howls of outrage, arguing that its substantive contents had never been discussed at hearings or elsewhere, and that it took away everything that the other 1974 amendment had given.

I am not sure I made this sufficiently clear, because of my skipping around, Mr. Chairman. What I mean to say is that the early 1974 amendment had drawn a distinction between excerpts and articles on the one hand, and entire works on the other. And with respect to excerpts and articles-and I mean here a real single copy, not multicopying one at a time, but a real single copy-a real single copy was permissible without much restriction. The line was drawn between full text, which still had to be out of print or not available from trade sources, in order to be photocopied. So that what they were really arguing about, which was journal articles, was, in fact, freed from restrictions on a single copy and not multicopying on a oneat-a-time basis. And the counterpart of that change was this restriction with respect to systematic reproduction, which the authors and publishers generally accepted.

They argue that, as a technical matter-I am still reading from page 14—a prohibition against systematic copying was implicit in the