Hon. JOHN L. MCCLELLAN, CONGRESS OF THE UNITED STATES, Chairman, Senate Subcommittee on Patents, Trademarks, and Copyrights, DEAR MR. CHAIRMAN: I am writing with regard to Section 110(6), the so-called county fair amendment to the copyright revision bill, H.R. 2512, which I understand is pending before the Subcommittee on Patents, Trademarks, and Copyrights, along with S. 597. As you know, Section 110(6), which was added by an amendment on the floor of the House, provides that a performance of a non-dramatic musical work, without any purpose of direct or indirect commercial advantage, by a governmental body or a non-profit agricultural or horticultural organization in the course of its conduct of an annual agricultural or horticultural fair or exhibition whose duration does not exceed 16 days would not be an infringement of copyright. Subsequently it has been brought to my attention that the Los Angeles County Fair annually is a 17-day fair and thus would not come within the terms of the exemption contained in Section 110(6) of H.R. 2512.. Officials of the Los Angeles County Fair Association advise that to their knowledge the Los Angeles County Fair is the only one in the United States otherwise meeting the requirements of Section 110(6) that runs for more than the 16 days limitation contained in the bill. Amendment of this section to extend the duration requirement so that the Los Angeles County Fair may share in the benefits of the legislation on the same basis as other agricultural fairs in the country is therefore requested should the Subcommittee include a county fair amendment in the copyright bill it approves and reports. Any consideration which the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Judiciary Committee can give to this request will be sincerely appreciated. Sincerely, GLENARD P. LIPSCOMB, Member of Congress. S. 597, Copyright Revision. WHITMAN, RANSOM & COULSON, Chairman, Senate Subcommittee on Patents, Trademarks, and Copyrights, DEAR SENATOR MCCLELLAN: As general counsel for the Magazine Publishers Association, we strongly oppose the relaxation of the provisions of Section 110 and 112 of your bill, S. 597, and H.R. 2512 as reported to the House of Representatives by the House Committee on the Judiciary, after lengthy hearings and consultation with the Copyright office. Such amendments as were approved on the House floor would go far toward destroying the constitutional concept that protection for a limited time should be given to persons who create ideas and writings leading to the advancement of the nation and the education of its people. With the erosion of these rights, the inducement to writers and inventors to advance knowledge will inevitably be greatly diminished. Use of copyrighted material for limited purposes, within a limited geographic area and for a limited period for educational and other proper purposes are authorized by your bill and that reported by the House Committee. To go beyond such use would result in sanctioning indiscriminate use of such material, possibly for profit, without just compensation to the originator thereof. Magazine Publishers Association urgently recommends Senate approval of your bill as introduced and the companion bill as approved by the House Committee on the Judiciary. Very truly yours, WHITMAN, RANSOM & COULSON. LIPTON, BRENNAN & WASSERSTROM. THOMAS C. BRENNAN, Esq., Chief Counsel, Subcommittee on Patents, Trademarks, and Copyrights, DEAR MR. BRENNAN: As I believe you know, I am the Chairman of the Copyright Committee of the Magazine Publishers Association. I understand that the House recently voted to enlarge the limitations of Sections 110 and 112 of its Copyright Revision Bill, even though such limitations had been approved by the House's Judiciary Committee, and were contained in the Revision Bill which that committee had reported favorably to the floor. Such enlargement, I submit, would not be in the public interest and would unreasonably encroach upon the constitutionally grounded exclusive rights accorded by the Bill to copyright owners. Hence I wish to record my definite opposition to the House's action in this matter, and I urgently support those limitations set forth in Sections 110 and 112 of the Bill as approved by the House's said Committee, and which limitations are contained in those numbered sections of Bill S. 597 now under consideration by the Subcommittee. I am Very truly yours, ALFRED H. WASSERSTROM, MASSACHUSETTS INSTITUTE OF TECHNOLOGY, Hon. JOHN L. MCCLELLAN, In recent weeks, however, we have reviewed in some detail the bill now before the Senate (S. 597) as well as the Report of the House Judiciary Committee (No. 83) issued March 8, 1967, to accompany H.R. 2512. Our reading of the bill and of the House Report persuades us that in one area of major concern to M.I.T. a reasonable balance has not yet been achieved. and, if enacted as now written, this legislation could seriously impede the effective application of computer technology to instruction and research. We therefore feel compelled to submit our views in the hope that they may be placed on the record. It is admittedly a late hour to raise such doubts. Yet, as the House report itself states, the problem of computer uses of copyrighted material was touched on only lightly at the hearings. In addition, the full implications of the legisla tion were not suspected until the report of the House was issued, and only in the Senate hearings conducted during March and April have the deficiencies of the bill in this regard been brought into focus. As a result, we feel that fuller consideration and study should be given to the most serious of these deficiencies, namely, the elimination of the traditional nonprofit exemption in favor of the narrow exemptions contained in Section 110 (1) and 110 (2); the restrictions placed on computer inputs of copyrighted material even though its subsequent utilization may be exempt; and the restrictive interpretation placed on the "fair use" doctrine as applied to computer uses. 1. ELIMINATION OF THE TRADITIONAL NONPROFIT EXEMPTION One of the most significant features of the proposed legislation is that it eliminates the traditional exemption for the nonprofit public performance and display of nondramatic literary and musical works and substitutes specific exemptions so narrow in scope as to handicap the use of advanced computer technology in education. Section 110 (1).—Although this section exempts the "performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction. . . ." the interpretation in H. Rept. 83, p. 41, indicates that this exemption has no application to computer-assisted classroom performances or displays which originate outside the classroom, and in this respect makes no distinction between a closed circuit instructional program and an open transmission broadcast to millions. Thus, if any transmission is involved there is infringement unless it falls within the limited exemption of section 110 (2). The language of the House Report also raises a question as to whether the exemption covers computer-assisted instruction not involving transmission from outside the classroom and, if so, whether the exemption extends to computer instruction in which the student activates the machine response individually at his own rate of speed. We therefore urge that consideration be given to revising Section 110 (1) by the addition of language which would provide an exemption for computer-assisted instruction, and closed-circuit transmissions by nonprofit organizations, if the performance or display is in the course of the teaching activities of a nonprofit educational organization, including performances or displays activated individually by instructors or students. Such an amendment would recognize that such transmissions and computer uses are simply extensions of the classroom. Section 110 (2). In determining the extent to which educational and other nonprofit transmissions should be exempted from copyright control, subsection 110(2) (B) limits the exemption to transmissions having a normal radius of not more than 100 miles. Such a restriction should not be fixed into law without a full exploration of its impact on computer and television networks linking cooperating educational institutions and the various campuses of state universities, and on the progress of those states which are now setting up statewide or regional networks of educational programs. In the absence of such a review we feel it should be eliminated from S. 597 just as it was from H.R. 2512 prior to passage by the House. In addition, section 110(2) (D), interpreted at page 46 of H. Rept. 83, has the practical effect of destroying any exemption for computer-assisted instruction, since it limits the exemption to situations in which "(D) the time and content of the transmission are controlled by the transmitting organization and do not depend on a choice by individual recipients in activating transmission from an information storage and retrieval system or any similar device, machine, or process; . . ." This runs counter to one of the most significant trends in modern education, i.e., the development of learning and study techniques in which the individual student can proceed independently at his own rate of speed, using computerized instruction, dial access retrieval systems, and a variety of audiovisual devices designed for that purpose. Section 110(2) (D) would practically eliminate the use of copyrighted materials in such instruction unless the obstacles of obtainng a clearance or paying royalties were surmounted in each case. The problem of striking an equitable balance between copyright holders and users of educational transmissions is not an easy one. As a starting point, however, we urge that consideration be given to revisions which would exempt edncational transmissions, regardless of the method, where they are a regular part of the systematic instructional, educational or research activities of a governmental body or nonprofit educational institution; make dramatic and filmed works fully actionable; and make all other types of educational transmissions (such as “public” television and the non-exempt uses of instructional programs) subject to licensing for reasonable fees. Computer inputs and fair use In addition to the abandonment of the traditional nonprofit exemption and substitution of the narrow exemptions contained in Section 110(1) and 110(2), the language of the House Report constitutes a further limitation with respect to computer inputs: "Thus, unless the doctrine of fair use were applicable, the following computer uses could be infringements of copyright under Section 106; reproduction of a work (or a substantial part of it) in any tangible form (paper, punch cards, magnetic tape, etc.) for input into an information storage and retrieval system; reproduction of a work or substantial parts of it, in copies as the 'print-out' or output of the computer; preparation for input of an index or abstract of the work so complete and detailed that it would be considered a 'derivative work'; computer transmission or display of a visual image of a work to one or more members of the public. . . " (H. Rpt. 83, p. 25) In adopting this language, the House Report reflects the view of the copyright owners "that computers have the potential, and in some cases the present, capaeity to destroy the entire market of authors and publishers. They consider it indispensable that input, beyond fair use, require the consent of the copyright owner, on the ground that this is the only point in computer operations at which copyright control can be exercised; they argue that the mere presence of an electronic reproduction in a machine could deprive a publisher of a substantial market for printed copies, and that if input were exempted there would likewise be no market for machine-readable copies." (H. Rpt. 83, p. 25) We can appreciate the fears of copyright holders, but at the same time are convinced that if the input of a copyrighted work into a computer is an infringement of copyright even though its subsequent utilization is clearly within one of the exemptions, then the already narrow scope of these exemptions is even further limited. There is no easy solution to the dilemma posed by these opposing views. It has been suggested that the fair use doctrine would provide reasonable relief but we cannot agree. The House Report indicates that the fair use doctrine may in fact be surprisingly more restrictive as applied to computer operations than would otherwise have been supposed. "For example, the doctrine of fair use would apply to all stages in the operations of information storage and retrieval systems, including input, and output in the form of visual images or hard copies. Reproduction of small excerpts or key words for purposes of input, and output of bibliographic lists or short summaries, might be examples of fair use in this area." (H. Rept. 2237, p. 35) In addition, the House Report, in discussing the fourth criteria of "fair use" set forth in Section 107, namely, "the effect of the use upon the potential market for or value of the copyrighted work," makes the following statement : "Where the unauthorized copying displaces what realistically might have been a sale, no matter how minor the amount of money involved, the interests of the copyright owner need protection." (H. Rept. 2237 p. 35) These expressions of legislative intent indicate that the doctrine of fair use as applied to computer use will have no significant effect. Need for further study Those who have testified most convincingly before the Senate against making input an infringement without regard to the nature of subsequent utilization have made it clear that this does not mean that they would oppose a practice of blanket licensing of works for all-purpose computer utilizations. They have, in fact, predicted that this practice may well be the regular mode where any non-exempt utilization of the work is contemplated. This avenue should be explored more fully and, in addition, technical advice is needed on other aspects of the input problem. Unless it is resolved by some means other than by the present restrictions on input, it may seriously impede many promising developments. We believe that there is no alternative except to give more detailed consideration to the computer input problem. If through discussions under the aegis of Congress or the Register of Copyrights a compromise cannot be achieved, then we urge as a bare minimum that an amendment be adopted specifically exempting the input of copyrighted works into information storage and retrieval systems where such input is part of an experimental or research program a principal purpose of which is the application of computer technology to instruction, research, or library uses. Although such an amendment would not restore the vitality of the exemptions in 110(1) and (2), it might at least ensure that the restrictions on input and the complications and delays in obtaining clearances and negotiating license fees would not hamper the development of computer technology as applied to the needs of education. 3. CLEARINGHOUSE SYSTEM AND ADVISORY COMMISSION One response to criticisms of the proposed revision and the legislative interpretations of the House Report has been the suggestion for a licensing system, presumably similar to that provided by ASCAP in the music field. In addition, it has been proposed that some form of statutory machinery, such as an advisory commission or regulatory body, be established to review the effect of the copyright revision on developments in the computer field and issue appropriate recommendations or regulations. The House report states that: "In various discussions since the hearings, there have been proposals for establishing voluntary licensing systems for computer uses, and it was suggested that a commission be established to study the problem and recommend definitive copyright legislation several years from now. The committee expresses the hope that the interests involved will work together toward an ultimate solution of this problem in the light of experience. Toward this end the Register of Copyrights may find it appropriate to hold further meetings on this subject after passage of the new law. In the meantime, however, section 106 preserves the exclusive rights of the copyright owner with respect to reproductions of his work for input or storage in an information system." (H.Rpt. 83-p. 25) However desirable and necessary these mechanisms may be, we are disturbed at the prospect that the present restrictive provisions would be preserved in the law pending the eventual establishment of a clearing house which would have to undertake an enormous task in the collection and distribution of fees but which, to the best of our knowledge, has not been discussed in any detail, and pending further study by a commission which would not make recommendations until several years from now. Both may be essential, but neither is a satisfactory alternative to revising the proposed bill before enactment so that it strikes a better balance between the interests of copyright holders and the beneficiaries of advancing computer technology, including the educational community and the public. If we are to place our confidence in an eventual process of self-correction, it seems more logical that the traditional nonprofit exemption be fixed by statute and that the corrective process move forward from that existing base rather than backward from an entirely new one. If, however, the traditional nonprofit exemption cannot be retained, then we urge that minimal revisions of the type we have cited above be made to the bill. At present the bill reflects unduly the fear that computer technology as applied to instructional, library and research needs will destroy the market for copyrighted works. It is our hope that this legislation will ultimately reflect the recognition that communications technology has progressed to the point where there are many new ways of disseminating a creative work; that teachers and the educational process are not in competition with copyright holders but bring a creativity of their own to the work of others and thereby develop an appreciation and appetite for those works which enlarges the audience; that to continue an outmoded system of individual clearances which frustrates users will defect that process; and that the promotion of the useful arts, the progress of communications technology, and the public interest are best served by the broadest possible dissemination of creative works with the payment of reasonable fees to their authors. Hon. JOHN L. MCCLELLAN, Chairman, Senate Patents, Trademarks, and Copyrights Subcommittee, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: I am enclosing another fine letter which I have received from a South Dakota constituent urging an exemption for state and county fairs under S. 597. I will greatly appreciate it if you would see that Mr. Hauck's letter is made a part of the hearing record on this bill. Thank you very much for your cooperation in this regard. Sincerely yours, Enclosure. GEORGE MCGOVERN. |