rest of the section; however, the amendment allowing nearly unrestricted single copying of journal articles and similar works made an explicit prohibition against doing this on a systematic basis essential.

That was their argument and the Senate approach in 1974 accepted this. But, obviously, all of this has to be judged in the context of the Williams & Wilkins case, which was going on at that point.

The revision bill was reported by the full Senate Judiciary Committee on July 3, 1974, and was passed by the Senate on September 9, 1974, with two changes in section 108 dealing with videotape news archives, and I will come to that later on. There was no debate on the fundamental issues underlying the section.

As I was mentioning earlier, there was no debate again on Tuesday in the Senate Judiciary Committee. As I mentioned, this issue has been passed over in the Senate probably for strategic reasons.

Meanwhile, a great many of the groups and organizations involved in the dispute were filing briefs, as amicus curiae in the Williams & Wilkins case in the Supreme Court, and positions on the legislation were becoming increasingly inflexible and tenacious. During this difficut period, a dialog of sorts was reestablished, but no consensus concerning what the law ought to be and what the meaning of systematic reproduction could be achieved under those circumstances.

As we all know, the Williams & Wilkins case was argued before the Supreme Court in December 1974. In January, the two Houses. including you, Mr. Kastenmeier, introduced the revision bill with exactly the language that the Senate had adopted in 1974. And one assumed that the 1974 Senate report, which was also considered objectionable by the library community, was still applicable.

Then, in February of this year, in a spectacular anticlimax, the Supreme Court split 4 to 4 on the Williams & Wilkins case, automatically affirming the Court of Claims' decision in favor of the Government libraries, but effectively depriving that decision of any precedential weight, and wiping out any authority the Court of Claims majority opinion might otherwise have carried.

I think this was debated a little bit before you, and I am not sure it makes all that much difference, but I do feel that the judicial authority with respect to 4 to 4 affirmance makes pretty clear that this really wipes the slate clean and we are back to the beginning, as far as judicial precedent is concerned on this issue.

We also must refer to the new National Commission on New Technological Uses, which incidentally, had its first meeting yesterday, and which does have, within its mandate, the question of photocopying, including library photocopying.

And in the 1974 Senate report, there was a passage indicating that the new Commission should give priority to this issue. Now, whether or not this is still true, in light of later developments, remains to be

seen.

My chapter 3 contains a rather extensive analysis of this section, which I included here for purpose of reference. I won't try to summarize it. But, I will come to the analysis of specific issues, which starts on page 25. As I indicated at the beginning, I do feel a very important and perhaps slightly overlooked factor here is the interrelationship between fair use and library exemption.

The strange, eventful history of library photocopying as a copyright issue has left a major question unanswered, and it can be stated three ways: (1) Are the exemptions in section 108 essentially a definitive statement of what Congress intends fair use to mean in this area of library photocopying? (2) Or, are they supplementary provisions augmenting but not restricting the present doctrine? (3) Or, could it be argued that, because section 108 says definitively that certain things can be done and others cannot, the section prohibits certain activities that might be held fair use today?

Now, the section has a provision that supposedly interrelates to section 108 (f) (2), that says that nothing in the section "in any way affects the right of fair use as provided by section 107," but this has already been, and certainly can be, interpreted in different ways.

And I will give you one hypothetical question. Suppose, for example, that the bill were enacted in its present form and Williams & Wilkins reinstituted suit under the new law. The Court of Claims has held that what the National Library of Medicine was doing constituted fair use under the 1909 law. Would section 108 change that result? And the Senate report, the 1974 Senate report, simply doesn't give you a clue as to the answer.

I am going to skip over some of the material in the analysis here. I think I should mention that the problems have to be faced with respect to the videotape archives question, and the scope of the works covered by the exemption; namely, does music get included in or included out?

But, let me stay with the main problem here, which is the opposition of the librarians to prohibitions, and specifically the systematic reproduction prohibitions.

Now, also, as you undoubtedly recognized from the startled expressions of the authors and publishers when the librarians made this point, they are also opposing the subsection dealing with one-at-a-time multiple copying, which has been in the section from its origins and hadn't been opposed before. But, it is consistent with their position. I think. Clause 1 of subparagraph (g) had been included in the librarians' original proposal to the Senate, and had apparently been accepted by everyone since its introduction into the bill in December 1969. The 1974 Senate report contains an interpretation that I think is viable, and it clearly makes the exemption inapplicable to the situation where, even if it is not systematic, what is going on is really multiple copying. The authors and publishers have constantly made the point that if you limit this to single copying, it is meaningless unless you make clear that this doesn't include making multiple copies one at a time, because that is how books are printed and photocopies are made, obviously.

In any case the crux of the issue is subsection (g) (2), which is the systematic reproduction subsection. I will now read from page 33, which states as follows about systematic reproduction:

By far the most controversial provision of section 108 is clause (2) of subparagraph (g), and particularly its use of the undefined but inflammatory word "systematic."

This has been presented in the library community as completely taking away the exemptions (d) and (e) with respect to excerpts and

articles and full text. If it is read in its broadest scope, "systematic" might be judged that way. I think that, quite clearly, from the legislative history and from the Senate report, Mr. Chairman, that was not the intention, but the librarians are also objecting to some of the breadth of the language of the Senate report. And I do include, on pages 33 and 34, the entire text of that report, because I think you should have before you, in deciding this issue, what the Senate was saying it meant by this phrase.

Now, the opposition to this is outlined in my statement. I also think I should refer to a letter that was sent to both Chairman Rodino and Chairman Eastland from David Matthews, the new Secretary of HEW, who was obviously representing the National Library of Medicine as much as anything else in his comments. And he supported the outright deletion of (g) (2).

But, in addition, he suggested an alternative which would amend the section to refer not only to "systematic" but also to "unlimited" reproduction, and make clear that the limitation only applies if the reproduction substantially impairs the market value of the copyrighted work. And that language, incidentally, comes from the fair use section directly.

Secretary Matthews also recommends avoiding any ambiguity in the bill by having the bill include specific definitions of systematic reproduction and fair use. And section 107, Mr. Chairman, is really a definition of fair use, if Congress wants to go so far.

Next, there is also the unanswered question that the Commissioners of the new national commission now known as CONTU wrestled with yesterday, which is what it is supposed to do with respect to library photocopying now that things are in their present state in the Congress. Mr. DRINAN. Mr. Chairman?

Mr. KASTENMEIER. The gentleman from Massachusetts.

Mr. DRINAN. Would the people who put out learned publications go along with Secretary Matthews' compromise version here? Is there any reason why the publishers of learned journals of medicine or astronomy would say no?

Ms. RINGER. Yes, I think they could possibly say no, although I don't know. I judge this as an effort not to simply knock out the limitation but an effort to compromise it. I don't think they would accept the breadth of the language without sufficient explanation in the report, but I can't really speak for them. I think that the word unlimited is equally objectionable from their point of view to the word systematic from the librarians' point of view.

Mr. DRINAN. I thought HEW might have consulted with them informally in an advisory capacity.

MS. RINGER. My impression is that they have not. This language has been floating around for a while, but I have never heard it discussed in the author and publisher community, and I don't know whether they were aware of it before Secretary Matthews' letter.

Mr. DRINAN. Thank you.

Ms. RINGER. I come to the comments and recommendations on page 39. I first talk about the interrelationship between sections 107 and 108. The librarians finally decided to seek express photocopying exemptions because the flexible and untested doctrine of fair use does not provide enough assurance that some of the things they now want to

do are legal. They object strenuously to the provisions expressly limiting the scope of those exemptions, because they fear that these express limitations will also have the effect of limiting the scope of what a court might hold to be fair use today. On the other hand, authors and publishers argue that, if section 108 consists only of unlimited exemptions, they would be placed in an impossible situation. To take an extreme example, suppose that under the new law a library were providing multiple copies of entire books still in print. This is clearly not covered by the exemptions in section 108. Should the library be able to argue that, irrespective of section 108, its activities constitute fair use under section 107, and support its position with exactly the same arguments the National Library of Medicine used in the Williams & Wilkins case?

Although it has not been stated, or perhaps even perceived, in these terms, I think this is the real crux of the dispute over subsections (g) and (h). If section 108 were made to supersede the fair use doctrine completely, no limitations, such as those in (g) and (h) would be necessary; the only exemptions would be those stated in subsections (a) through (e). As long as fair use applies to library photocopying, without much more definitive legal authority as to its scope than now exists, some limitations are essential if section 108 is to settle anything.

No one is arguing that the fair use doctrine should be made inapplicable to library photocopying and such an argument would be very hard to sustain. The very amorphousness of fair use provides a needed safety valve. But as long as the revision bill contains both a section 107 and a section 108, the latter must put some express limitations on the express exemptions it provides. It would be a mistake to delete subsections (g) and (h) out of hand. What is needed is a much clearer statement in the report concerning the interrelationship between sections 107 and 108, and a careful look at the wording and content of subsections (g) and (h).

Let me now skip to page 46, which deals with systematic reproduction. I have some things to say about multiple copying and the subject matter of music and pictorial and record and sculptural records. But

I will come back to that.

As indicated above in paragraph 1 of this section of chapter III, the Copyright Office believes that it would be a mistake to delete paragraph (g) completely. Instead, the meaning of fair use in the context of library photocopying and section 108 must be clarified. As a part of that process, both the language of subsection (g) (2) and the commentary on it in the report should be carefully reexamined in light of the real concerns of librarians.

And I would say, in light of the proposal put forward by Secretary Matthews, that I think that is something that should be considered in this context.

A line must be drawn between legitimate interlibrary loans using photocopies instead of bound books, and prearranged understandings that result in a particular library agreeing to become the source of an indeterminate number of photocopies. To find that line and draw it clearly is one of the most difficult legislative tasks remaining in the revision program.

57-786-76—pt. 3- -27

And in view of what the Senate Judiciary Committee did Tuesday, I think it is almost entirely up to you at this point, because they did not take it up and make any effort to address this problem in their markup.

I also indicate that I think CONTU, the new National Commission on New Technological Uses of Copyrighted Works, should not be forgotten here. There are legitimate things it can do. But, at the meeting yesterday, at one point, there was a suggestion made that they shouldn't try to reinvent the wheel and that the Congress has a long history behind this provision. And I think that proposals are coming to you, and maybe already have, that you should delay action on, or you should make interim action, pending what CONTU does. And I don't argue with that, as long as you lay a groundwork for what it does. I do feel the interrelationship between 108 and the Commission should be addressed in your report. I think it is important that you get out of the Commission what you want. You created it and it should do what you want it to do, in relation to this problem.

I will come back to the question of videotape archives, which does need to be addressed in this context, Mr. Chairman. A problem arose in the context of a hassle between CBS and Vanderbilt University over the archives that Vanderbilt started building of the Walter Cronkite program. That, essentially, was the start of it. They are now doing all of the network programs, and without authority. And, as these things grow, they have started editing a little bit and they are distributing duplicates of the videotapes and so on. They are compiling some programs by subject matter, and so forth. Everything is nonprofit, but CBS sued them, and I think the case is now in coldstorage for a while. I think one of the reasons is that they are waiting to see what Congress does with this subsection. And there is a good deal I can say on this. I do have a kind of independent proposal, although it really isn't mine. But, let me just read you from page 43, which states:

At the moment, the highly publicized copyright infringement action of CBS against Vanderbilt University for unauthorized off-the-air taping of copyrighted network newscasts and distribution of the tapes. in some cases in slightly edited or compiled form, is in a state of suspension, apparently awaiting a possible agreed settlement, congressional action, or some other form of rescue. The public issues underlying the case, and the Baker amendments to section 108, are important, difficult, fascinating, and in some ways, dangerous.

The Copyright Office cannot support the Baker amendments as they stand. They go far beyond Senator Baker's announced purpose of insulating Vanderbilt from liability under the new law and assuring it that it can continue its valuable work. The language could be construed to exempt activities that were in no way contemplated by the sponsors of the legislation, and that could open the door to completely unjustified uses.

The Copyright Office believes strongly that the fundamental problems addressed in this legislation should be dealt with by establishing, through the mandatory copyright deposit system already in the bill. a national repository of television films, including but not limited to "hard news" programs, in the Library of Congress and the National Archives.