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the 28th year period, they would look to see whether there is a copyright renewal notice on it which would appear to assure protection of the thing. If they did not see this and there was some doubt in their mind, then they would have to write to the Library of Congress. Senator MCCLELLAN. To check it?

Mr. GARY. Yes.

(The prepared statement of Miss Lahti follows:)

TESTIMONY ON S. 597 FOR GENERAL REVISION OF THE COPYRIGHT LAW BEFORE THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS, OF THE SENATE JUDICIARY COMMITTEE IN BEHALF OF THE DEPARTMENT OF CLASSROOM TEACHERS, NEA, PRESENTED BY MISS TAIMI LAHTI, ASSISTANT EXECUTIVE SECRETARY, DCT I am Taimi Lahti, Assistant Executive Secretary of the Department of Classroom Teachers of the National Education Association. I am representing approximately 900,000 classroom teachers. Having served as a social studies teacher in rural and urban schools of my home state prior to coming to NEA, and working directly with teachers in schools over the nation, I am intensely aware that the measure under consideration here affects not only members of this NEA Department, but also every teacher and child, in every classroom, in every school in the nation.

The classroom teacher's interest in a new copyright law is primarily that of the user rather than the producer of materials. However, teachers have always been producers or co-producers of some materials, and are increasingly producing materials specifically tailored to the needs of their own classrooms.

The official position of the Department is stated in the following resolution, adopted in Miami, in July 1965:

"The Department believes that, if educators are to serve American society and if the youth of this nation are to receive high-quality instruction, maximum access to all sources of knowledge, teaching materials, and resources must be preserved. It notes with dismay the current drive to diminish or eliminate from the Copyright Law the protection for educational use of materials. It maintains that present rights must be preserved and expanded to ensure (a) right of teachers to make one copy or phonorecord of a copyrighted work and a reasonable number of copies or phonorecords of excerpts or quotations for the purpose of teaching or for course work study in connection with teaching, (b) security from harassment of placing the burden of proof in testing fair use on publishers rather than teachers, (c) exemption of noncommercial educational users who are innocent infringers from any minimum statutory damage when no actual damage to author or publisher is shown, (d) retention of present renewal provision for 28 years plus 28, and (e) right to meet future instructional needs by having reasonable access to new educational materials to be used with new education technology.

"The Department strongly urges all classroom teachers to work diligently through all channels available to ensure the inclusion of an educational exemption ensuring the rights listed above in the bills currently in Congress."

May I point out that this Resolution was drafted and adopted before the introduction of S. 597 in the 90th Congress. We congratulate the distinguished chairman of this Subcommittee for his sponsorship of S. 597 which is a far better proposal than we anticipated last July.

Most teachers, until after mid-century, relied on textbooks and standard works for their instructional materials. Use of supplementary materials was not as widespread as in recent years. The change is due in part to the better qualified, more creative teachers we have today, but more directly to the availability of new kinds of materials made possible by advances in printing and educational technology.

With the explosion of knowledge since World Wor II, and with the development of new technology, the issue of copyright infringement becomes more important to teachers who want to give their pupils the latest and best information from a variety of sources. A good teacher, for example, may use a poem from the Atlantic, a tape recording of Maurice Evans in a scene from Hamlet, a clipping from the previous day's New York Times all within one class period-and be in danger of violating the law three times without knowing it.

79-397-67-pt. 1- -12

I shall address the remainder of my remarks to two primary needs which are not provided in S. 597.

1. A statutory definition of "fair use."

2. Retention of present duration-28 plus 28.

1. A STATUTORY DEFINITION OF "FAIR USE"

Teachers are far more aware today of copyright regulations than they were even a year ago. This is the result of several factors: (1) the publicity given to attempts to revise the present law; and (2) the changing role of classroom teach

ers.

Under the present copyright law teachers have not as a rule felt pressure from possible infringement, due to the "not for profit" clause which for teachers has a fairly clear meaning. Deletion of this phrase for the more nebulous "fair use" term creates misgivings among teachers. Since the latter phrase will call for decision by courts on complaints of copyright holders, teachers feel that a clearcut definition of what is fair use is necessary.

Section 107, Subsection (4), however, if interpreted as outlined in the House Report No. 2237 on HR 4347 of the 89th Congress (which is identical to S. 597 of the 90th Congress) can negate the reasonableness of subsections (1), (2), and (3) of Sec. 107. In effect, after giving examples of fair use of materials through limited copying and phonorecording, the House Report defines subsection (4) as meaning that copying or phonorecording of any material for classroom use would be illegal if such copying "displaces what realistically might have been a sale, no matter how minor the amount of money involved." This language restores all of the uncertainty which the three previous criteria, as described in the House Report, have attempted to allay. We urge that subsection (4) of Sec. 107 be eliminated.

Teachers need the certainty of knowing when a given use of copyrighted material in the course of teaching is legitimate.

2. RETENTION OF PRESENT DURATION-28 PLUS 28

We also urge that the duration provision of the present copyright law-i.e., 28 years plus 28 years renewal-be maintained. The "life of the author" plus 50 years provision in S. 597 is unrealistic. The great majority of present copyrights are not renewed. Thus, teachers have access to most material by the 29th year. The proposed duration provision in S. 597, if enacted, would preclude all material from use for quite possibly 100 or more years after it is originally produced. This seems unnecessarily restrictive. We urge the duration in the present copyright law be retained.

CONCLUSION

I have limited my comments to the two specific points made in this testimony, but want to assure the distinguished members of this Committee that the NEA Department of Classroom Teachers endorses the entire position as presented by Dr. Wigren for the Ad Hoc Committee on Copyright Law Revision.

In closing I should like to quote the President of the Department of Classroom Teachers, Mr. Charles Deubel, Industrial Arts teachers from Freeport, New York, in his remarks at the NEA Convention in July 1966, in Miami Beach:

"Certainly, everyone would agree with the premise that works of genius, whether author, painter, or musician, should be protected and should be rewarded financially. No one would argue with that point.

"But children have rights too. They have the right to secure knowledge. Teachers need special guarantees which will permit them to use copyrighted materials in their classrooms without fear of reprisal."

This, then, gentlemen, is our plea—that teachers be free to teach in the best tradition of free access to truth. At the same time we recognize and defend the right of the creative person-whether author, composer, or artist-to a just return for the efforts made to enrich our lives and our knowledge. We recognize that a copyright law must encourage such creativity to flourish; but, as Mr. Deubel said, children have rights too, and we as teachers speak for the children's right to learn.

Senator MCCLELLAN. Present your next witness.
Dr. WIGREN. Dr. Oscar Cargill.

Off the record.

(Discussion off the record.)

Mr. CARGILL. Mr. Chairman, members of the subcommittee, it is a pleasure and a privilege to testify before this committee and I want to express my gratitude. By way of identification, I am Oscar Cargill, McGuffey visiting professor of English at Ohio University, former head of the department of English at New York University. I have served for 30 years as adviser to the college department of the Macmillan Co.

Senator MCCLELLAN. Do you want to read all of your statement? Mr. CARGILL. Yes, it is very short.

Senator MCCLELLAN. All right, proceed.

Mr. CARGILL. I will keep on the track if I do, Mr. Chairman, and I might run off if I do not.

Senator MCCLELLAN. I will try not to throw you off the track by interrupting you.

Mr. CARGILL. Thank you.

I am also the author of six books, and editor of more than 50 outside of my own books. I am here as official representative of the Modern Language Association of America which is an organization of some 28.000 college and university teachers of English and modern foreign languages. I wish to speak briefly for section 107 of the bill and a few related sections which are of vital importance to teachers, critics, and scholars at all levels of our society.

We, speaking for both the ad hoc and modern language association, regard section 107 as a sort of Magna Charta for the practice of our profession, since it gives us in the fundamental law a sanction which otherwise can only be obtained in the courts at costs the individual teacher can hardly afford. This section was originally drafted by the Honorable Abraham Kaminstein, Register of Copyrights, and his legal staff before any tensions developed over the bill, as a summary of court decisions building up the practice of "fair use." That is, it is a distillation from legal history in concise form, dispassionately arrived at, with no partir-pris. Of course, it became an object of contention among all conflicting interests and has been forced out and back into various drafts of the bill, finding its present lodgement as a result of a conference between representatives of the publishers and authors and representatives of the ad hoc committee, arranged by the Subcommittee on the Judiciary of the House. We most earnestly urge its retention in the revised law.

May I first attempt to show the need of scholarly researchers for section 107, since their protection on the surface seems most remote from practical issues. All scholars take more extensive notes than they ever use, just as a good lawyer gathers more evidence than he presents, in order to sift out the most pungent proof. I believe that in section 107, subhead (1) such extensive copying for private, nonprofit use is sanctioned. The subhead (1) under "fair use" defines "the purpose and character of the use" as a determinant. Since the researcher intends to print from all his notes only brief, selected quotations, I cannot see where in the interests of the author or the publisher are damaged by this practice. In fact, it results in new books for the publisher that he can sell very profitably, like those of Mrs. Barbara Tuchman.

But let me cite another case. Mr. T. S. Eliot wrote a bigoted and reactionary book, "After Strange Gods," in 1934, of which he apparently became ashamed from the critical scorn it received and asked his publishers not to reprint. There are a thousand illustrations of this. As a consequence, though still in copyright, only a few libraries have it. Neither the publisher nor the author's heirs are receiving anything from it. The research student cannot purchase it. It is simply not available. Ideas in it are subtly reintroduced into other works of his in a manner not to encounter so much resistence. Why should not a scholar be permitted to copy the whole work for his patently limited use in exposing one of the lamentable limitations of Eliot? If a researcher has not this sanction under section 107, should it not be written into 108 which allows complete copying for archival use which certainly can have no other end than utilization by research scholars. A clause could be attached making the copy "ephemeral" if need be. for the scholar would have little use for the copy after excerpting from it. There is a vast amount of material, of interest to the research student, maintained in copyright but not in print by the publishers which is not productive for anybody.

But to turn to another sanction extended to college teachers under section 107. If I remember correctly. Cicero indicted Cataline before the Roman public in the forum by the citation of Cataline's own language, which he adroitly turned against him. We wish a similar power, not always to censure or correct, but to praise and perpetuate what seems to us admirable and good. In modern times, when the need appears as great as ever, free judgment is in some degree curtailed by devices, such as copyright, to protect a creation good or bad-the law does not discriminate, nor does anyone wish it to--so that the creator may enjoy the fruits of his labor. Hitler's "Mein Kampf" in translation enjoys the same protection as the "Complete Poems of Robert Frost." But somewhere there must be discrimination and a sifting. Is it wise to trust evaluation wholly to the paid reviewers? Would it not be better for the republic if our colleges turned out each year readers who could discriminate, who could evaluate for themselves?

One of the first steps in the training of such readers is to arrange for them to discover the value of a man's own words as evidence over any paraphrase of them, any watered down restatement of them in another's words. I greatly admire some of the poetry of T. S. Eliot. Since the cheap edition of Eliot's verse presents neither his worst not his best poetry-I think it is a very bad book—and I am forced to use that edition in class, I believe I am sanctioned under section 107 to supplement the text by quotation from these other pieces, perhaps mimeographing them and destroying the copies after examination. The students should be enabled to discuss the poetry with the proper samples before them, assembled in the man's own words. In this way, and extensions of this way, we can hope that some few of them can acquire discrimination and good taste. Yet this simple teaching device, which in recent years is almost universally used, has been assailed by some persons and groups. In a conference in New York between representatives of the Author's League and those of the ad hoc committee, the legal counselor of the former, in response to a question of mine in regard to what he would do if I printed a whole poem on an examination for analysis, declared he would sue me for infringement.

Please understand, I am using this book in class and I have paid for the whole class to have copies of the book. If I take a poem out of that book and print it upon an examination, he threatens to sue me, which seems to me extraordinary.

At another time, this same man told Mr. Rosenfield, our counselor, that copying in longhand is an infringement though not as grave an infringement, seemingly as xeroxing. This scholar making ephemeral copies by hand or any device for his own or limited class use is damaging neither author nor publisher in any way. I have yet to see the kind of book assembled, aside from the single instance of the completely protected University Microfilm prints, which is dreaded by the Author's League and the publishers. The ethics of the profession are against it.

One last point. Since it falls to me to speak for foreign language teachers, I should point out that Subsection D under Section 110, forbidding a recipient to initiate reception from a storage device kills the best method of learning a language thus far invented. A teacher reads a copyrighted passage, properly arranged for with the publisher, on to a tape against which a student makes a tape of his own in a little sound-proof cubicle. He can then play them back together for comparison; or play them separately and compare his rendition with the other; or he can erase his tape and start all over until he gets a perfect echo. But he initiates every playing. He starts the tape playing anytime he wants to. I believe I could have learned to speak French better had this equipment existed 50 years ago. We further believe that no fees should be paid for input into a computer; only for output and use. A publisher does not pay an author royalties on books he has in storage. It's only when he sells them he pays royalties. Are not the opponents of machine teaching taking the same attitude that the Luddites took a century and a half ago when they wrecked the new machines in the spinning industry.

Senator MCCLELLAN. Any questions, Senator Burdick?

Senator BURDICK. NO.

Senator MCCLELLAN. Any comment or anything else on the statement?

(No response.)

Senator MCCLELLAN. Very well.

Dr. WIGREN. Our next speaker is Mr. Maxwell.

Mr. MAXWELL. I am John Maxwell, a member of the Executive Committee of the National Council of Teachers of English, and chairman of the council's secondary section, which enlists over half the membership. My formal statement does not indicate that I am also associated with the Minneapolis public schools, which I wish to be a matter of record because of pride.

The council, for which I speak, the National Council of Teachers of English, is at once the largest subject matter organization of teachers in the world and the organization which provides a forum for American teachers of English at all levels, primary through graduate school.

The council has been from the outset an institutional member of the Ad Hoc Committee on Copyright Law Revision. I speak today for the council's 117,000 members and subscribers in general support

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