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"When employed for the use of those undertaking studies in a non-profit educational or scholarly institution, transitory expression without charge of part of a work for purposes supplemental to the studies shall be deemed fair use where appropriate identification of source is given. Such expression shall not include the employment, in whole or in part, of any work specifically intended for educational purposes except to illustrate the method of use of the work in educational contexts.
A wholly different approach would be to confront only the situation of use of copies of copyrighted materials for the specific purposes for which they were prepared by the author. An author generally can state the primary field of use intended for his work, such as education, and can express a prohibition as to copying for such use. The following language would not apply only to the education i field but would also apply to news reporting, research and other situations, in which an author could similarly specify a primary purpose.
"Fair use shall not be applicable to the copying or reproduction, in whole or in part, of a copyrighted work for a primary purpose expressly and specifically, prohibited by the copyright owner on a notice attached to the copyrighted work.”
With the advent of mechanical instructional aids and with the growing availability of data processing and copying systems of all kinds, those in the field of education are now increasingly trending toward widespread duplication of copyrighted materials. This trend is unquestionably accelerating because the costs of copying are being continually forced downward while the means of copying are constantly expanding. The problem of "fair use" for educational purposes of copyrighted materials will therefore constantly increase unless a suitable operative structure can be defined for education and for copyright owners. The following describes some of the equipment now available and likely to be used in the future and the factors pertaining to use of copyrighted works in actual classroom situations at the levels of education at which these materials are typically most used.
Copying equipment.-At present, schools widely use document copiers of the Xerox, Verifax and Thermofax type, movie and single frame projectors, audio equipment, particularly magnetic tape recorders and duplicators and closed circuit television as well as educational broadcast television. While there are wide disparities dependent upon the resources available to school districts, the increasing ratio of students to skilled teachers establishes an economic justification for the use of these techniques throughout the country.
In the future, more advanced types of mechanical reproduction equipment that are currently available will be economically justifiable for school use. These are not yet well adapted to educational purposes, although it is a certainty that they will become so adpated.
Considerable publicity has been given to use of time shared and special purpose computer systems for educational use, and these will provide all types of copies. There is an increasing tendency to use various low cost forms of visual records such as microfilm and microfiche, in conjunction with document copying equipment. Much work has been done on systems that convert from film or tape to document copies, and these include a number of systems providing high capacity memories, and extremely short access times. A related system is the "Videofile, in which documents are recorded by a television tape recorder and are subsequently searched for and reproduced in visual or hard copy form. All of these systems can readily cooperate with closed circuit television, which in turn can cooperate with broadcast television to provide a nationwide network. It can be anticipated that a school district will ultimately be able to call upon a central library and data source by use of a time-shared data processing system. The school district will be able to obtain, for example, a complete copy of a selected book within a few seconds after the request is placed, or participate in any course emanating from the central source.
Factors involved in classroom use.-- A copyrighted work can be used in an educational institution for purposes that vary from pure entertainment or diversion on one hand to use of the entire content of an educational work as the prime basis for a course of study on the other. Realistic contexts and circumstances of use within the classroom should be visualized in terms of various factors reflecting intent, purpose, physical mechanisms and consequences. The following factors
are believed to be the principal ones involved in or having pertinence to resolution of the question of "fair use" in educational situations:
(a) Nature of the institution.—The educational institution may be strictly nonprofit in character, as a tax-supported school district, or it may be a privately owned instructional organization intended to make a profit out of a particular course or courses, such as a vocational or reading improvement course. In general the former group will offer a wide variety of courses and the latter group will be relatively specific in character. In some instances, the latter group will use only its own materials.
(b) Content and nature of the copyrighted work.-The work may be intended to be wholly artistic in character, and may thus primarily be of aesthetic or entertainment value. It may have a specific functional purpose, such as news report or commentary, or be directed to some other noneducational primary function. On the other hand, the work may be textbooks or visual or auditory programs specifically intended to serve as the basis for a course of study.
(c) Degree of integration into the course. -A copyrighted work may be used in a supplemental fashion, serving to illustrate specific facts or as a basis for analysis of a particular facet of the subject. The uses may be supplemental in the sense that other works might also be suitable, or they may be essential, in the sense that the course could not be properly taught without use of the work. The copyrighted work may be integrated into the course in a spontaneous fashion, that is, in a fashion that varies with the decision of the educator as to use of the copyrighted work. In contrast, the use may be wholly pre-planned or calculated and particular segments of a copyrighted work may be at the outset scheduled for employment in the course.
(d) Nature of the copy.-A copy may represent a transitory expression of a work, i.e., a presentation or copy that is limited in time to the period of use by the student, such as a display on a projection screen or a document copy that is discarded after use. The copy or expression of the work may, however, be preserved and filed or otherwise retained for subsequent use or dissemination. The copy may represent a conversion or translation of the original, such as a change from photographic film to a document copy, from a document copy to a television display screen, or from a phonograph record to a magnetic tape. The copy may be manually prepared or involve use of a substantial amount of equipment.
(e) Extent of copying for dissemination.—The copyrighted work may be duplicated in whole or in part. The duplication may be confined to use by students in a particular course of study or may be much greater if, for example, it is desired to stockpile copies. Even if limited to the students directly using the material, the number of copies varies, depending upon the nature of the copyrighted work (whether audio, visual, or documentary) and the number of students.
(f) Purpose of the use. The direct purposes of the use may be assumed to be education in case of clearly non-profit institutions, except where a direct charge is made for the copy or the service of copying. The copy may be rented, leased, or sold. Institutions providing specific courses for profit may employ the copy for profit as a part of tuition or other charges. The use may directly correspond to the purposes for which the work was originated, as in the case of music planned solely for entertainment or enjoyment. The use may, however, be illustrative in character, in that a historical or artistic document such as a portion of a book or poem may be employed for the study of English or philosophy. With a work intended specifically for educational purposes, study of the work may still be different than contemplated, because it may be confined to study of methodology in a teacher training institution.
(g) Effect on the copyright owner.-Copying may deprive the copyright owner of the opportunity to market his work for the purposes for which it was intended, particularly if the work is educational in nature. Use of an entertainment work in an educational institution, however, involves an element of dissemination or advertising that may actually increase the market for the work. The same is not true of an artistic work of character in which the expression of the work in the form of a copy fully satisfied the requirements of a potential user. A risk of loss of copyright is involved where copies are disseminated without credit with the acquiescence, willing or unwilling, of the copyright owner.
(h) Acknowledgment of the copyright nature of a work.-Circumstances of use of a copyright work for educational purposes generally permit acknowledgment of the copyrighted nature with visual and documentary copies, because copyright notices may be presented with the copy. The same is not true of auditory materials, in which the copyright notice generally is on the label and acknowledgment of the copyright nature requires some separate action to be undertaken for insertion of an appropriate credit.
Viewing these factors together, it is considered that the coexistence of certain factors in particular goes adequately far to insure that there is a fair use of the work. If the expression is transitory, spontaneous, without charge, and limited to that excerpt useful in supplementing a course of instruction, then the intent of the copier is clear and legitimate. If the institution is non-profit in character, the copying is confined to the students who are using the materials, credit is given, the dissemination is limited, and if the copying is not of an educational work for an educational purpose, the risk to the copyright owner is adequately limited.
If any useful service to the committee can be achieved by further questioning or testimony, please do not hesitate to let us know. Should the committee desire, it would be our pleasure, was well as our duty, to prepare a special visual presentation to illustrate the problems now faced by commercial producers of educational materials. In the future, these problems will only complicate the difficulties of educators and of all citizens of the United States who are concerned with the education of coming generations.
Please accept my sincere appreciation for the opportunity granted to appear before the committee to present our problems. We shall be glad to answer any questions you may have concerning the suggestions made, and to assist the com mittee in every possible way. Again, thank you.
Senator BURDICK. The next witnesses are Dr. Meyerhoff and Gerald Sopbar. STATEMENT OF HOWARD A. MEYERHOFF, PRESIDENT OF THE
COMMITTEE TO INVESTIGATE COPYRIGHT PROBLEMS; ACCOMPANIED BY GERALD J. SOPHAR AND DR. L. B. HEILPRIN, COUNCIL ON LIBRARY RESOURCES, INC. Dr. MEYERHOFF. May I take the liberty of bringing Dr. Heilprin with me?
Senator BURDICK. We have a critical situation. We shall have a vote at any minute. Your statement will be included in the record and that of your associates. If you would start right in and give us a quick summary, we can proceed that way, because we are terribly short of time.
Dr. MEYERHOFF. Thank you, sir. I shall read part and summarize the rest.
This is a statement of the Committee To Investigate Copyright Problems Affecting Communication in Science and Education. For short, I will refer to it as CIPC.
My name is Howard A. Meyerhoff and I am president of the Committee To Investigate Copyright Problems.
The goal of CIČP is to find a way to protect the "exclusive right” of an author to his "writings,” while permitting the advantages of modern information disseminating systems to become as useful as they may without threatening or weakening the economic urge and the need to create.
We are testifying today because since 1959 we have been concerned how the full benefits of modern information dissemination systems could be obtained, without harming the basic structure of incentive and rewards on which these systems and earlier systems are based.
I am a geologist by profession. I am also a researcher and an author. At an earlier time, I was editor and publisher of two periodicals of the American Association for the Advancement of Science. The publications were the weekly journal Science and the Scientific Monthly, now absorbed into Science. And I also have been the executive director of the Scientific Manpower Commission.
CICP was organized with the thought that it was better to consider a problem at a point between gestation and emergence, than to wait for it to hatch. We felt that a mechanism to control the problem and reduce its adverse impacts should be designed early and that adjustments and improvements could be made, in the light of future insight and experience. We are not so sure now that this is true. Very possibly we would be just as far along today toward a solution to the copyright and information dissemination problem if we had not had this foresight.
It was decided at our first informal meetings that CICP had to represent all interests affected by copyright law. I believe I was elected president because I had had as many different and direct kinds of experience with all aspects of the problem as one man could reasonably be expected to have.
Since then, my board of directors and I have made every effort to assure CICP's continued existence as a broadly representative organization focusing on a single definable problem.
I shall return later to further detail on the history of CICP, our philosphy, some of the work we have done, some insight into the nature of the problem, and why we think it can be solved within the framework of S. 597.
CICP supports S. 597 in its present form. We think it clearly outlines the rights of the author and the rights of the user. It is precise where precision is possible and allows for negotiation between author and user where definition is not possible. For example, we have evaluated section 107, Limitations on Exclusive Rights: Fair Use. We feel that the original statement, as introduced into the House would have been satisfactory as a basis for developing some kind of clearance system. By providing guidelines, as in the current bill, the Congress warns the user that he cannot stretch the concept too far. At the same time the provision prevents the author from restraining the user from reasonable pursuit of his work because of trivial reasons,
I might at this point interject, Mr. Chairman, that our concern is naturally for science and scientific dissemination. To us, the duration of the copyright is of no importance because in 50 years, the science of today will be superseded by the science of tomorrow. Our aim is to have rapid dissemination and quick dissemination with, of course, the rights of everyone involved preserved.
There has been much uncertainty recently by computer-oriented researchers as to how far they can go in their experimental work of storing, retrieving, and disseminating copyrighted information. Again, it seems that S. 597 leaves them reasonably free to experiment as they wish without fear of suit for infringement. This is implied by the words:
Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by . any other means specified by that section, for purposes such as ... teaching, scholarship, or research is not an infringement of copyright.
I think we can skip the next few points, because they merely quote the bill, and then proceed to the fair use provision which, of course, has just come up for consideration in earlier testimony.
Simply put, we see no way by which the author can eliminate the technological capability of the user to reproduce his information at will, not why the user should want to further reduce the rights of the author. Continuing efforts in this durection will harm both parties. They should turn their combined energies toward accommodation now.
"Fair use" is at best inconclusive. If some clearance system is not established, it will serve as a temporary guideline to the user and eventually to the courts. It does not solve the real problems, which are two: the increasing need of education, science, government, and business for multiple copies of documents; and the fact that since the copyright owner's compensation is the total return from the use of his work--the loss through "fair use" of his work cannot be measured in terms of any individual use, but only in terms of the total use and total copying.
Therefore, we feel that the present provision for fair use, while making possible some types of research use of copyrighted material in computer and microfilm storage devices, cannot solve the "computer problem,” let alone the direct copying problem. At best, it serves as a termporary safety valve, until some clearinghouse system is established. At that time, the concept of fair use should lose its importance and die off as some form of vestigial tail.
I would like to continue my remarks with a brief quotations from an invitation dated April 9, 1959, sent to a representative group of individuals considered interested in those aspects of the copyright law which affect communication in scientific and educational information:
The present copyright system presents an increasingly serious problem because of the tremendous need for reproduction and dissemination of scientific and educational information. The communication of this information is unduly restricted under the overall copyright system.
New methods, inventions and techniques may solve many of the physical and intellectual problems of, handling and disseminating information. The copyright system, as it now works in practice, does not permit the unrestricted circulation of information. It is felt that a more efficient way must be sought to administer the system either through changes in the law or through some structure which will permit the fullest utilization of the present law.
It is felt that the interests of our country can best be served through the fullest interchange of scientific and educational information. With this objective in mind, we are interested in investigating how the free flow of information can be maintained and advanced on an ethical, legal and efficient basis without depriving the copyright proprietor of his rights.
This invitation was the result of a prior informal meeting of seven individuals at the office of Mr. Horace Hart, then Director of the Printing and Publishing Industries Division of the Department of Commerce. The meeting consisted of very carefully chosen individuals, I might add, to represent the several interests that were involved in the copyright problem.
During the conference held on May 19, 1959, duscussions demonstrated that indeed very little thought had been given to the real