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Senator McCLELLAN. Well, I am making a specific invitation so there will be no misunderstanding. I do not know that we will adopt your language.

Mr. ROSENFIELD. I understand.

Senator McCLELLAN. I am not making a committal, but you criticize that language. If you submitted something of what you have in mind, that will give us the conflict and we would undertake to resolve it.

Mr. ROSENFIELD. We would be delighted at that opportunity.
Senator McCLELLAN. Senator Burdick?

Senator BURDICK. I have a question along the same line. Would you also point out wherein the language of the House differs from what you consider the compromise agreement to be?

Mr. ROSENFIELD. Of course, we would be delighted to do that.

The second of the areas that we have in mind is the confusion between open- and closed-circuit television. Under the present language of the House report, there is no distinction between closed-circuit and open-circuit television, between public television which anybody can get, and the limited, controlled, in-school, highly articulated educational operation. We believe that closed circuit ought to be assimilated to the treatment given to face to face teaching in section 110(1). Therefore, we have proposed specific language in proposed section 110(1A) to which Senator Burdick has earlier adverted. This is a new proposal, new language, which we believe is justified.

Third, as has been indicated by the testimony of various people this morning, and will be indicated again this afternoon, we are distressed by the difficulties which this bill, particularly secton 110(2) (D) creates for individualized instruction in the schools. I will not pursue that any further, but it is of extreme urgency. It has been described and will be described further.

Fourth, we are disturbed by the serious, if not catastrophic, impact of the bill on instructional broadcasting. There has been attached to Dr. Wigren's statement a new proposal, statutory proposal, as a substitute for sections 110(2) and 112(B). This will be discussed at considerable length, in detail, this afternoon by people specifically involved in this discussion. It has already been referred to.

Fifth, we are distressed at the impact of the bill and the report on computer input. It is our position, as will be described by Dean Siebert and Professor Miller at the afternoon hearing, that input as such is not infringing. I shall not go into that except to say that we, too, are in favor of the study group, preferably appointed by the congressional committees, but we believe that the present bill in effect makes a decision which it is alleged it does not make.

Under the present bill and report, computer input is infringement, and the gentlemen I have referred to will describe our opposition to that.

Sixth, we are distressed by the limitation of the provisions of 504 (c)(2), the discretionary waiver, by a court, of innocent infringement as being limited only to the classroom teacher. We urgently suggest that this ought to be applied to the teacher on educational broadcasting as well as the librarian. This would require an amendment on page 41. lines 23 to 27.

Seventh, as indicated, we have difficulty with the duration provision in this particular bill. Our ad hoc committee represents a very large number of educational authors who do not agree with the Authors League, who testified yesterday, although there are some differences of opinion within our group. Our group, as a consensus, believes that life-plus-50 is not in the best interest, but urge retention of a 28-plus28- or 28-plus-48-year duration.

Lastly, if I may be permitted the observation, Mr. Chairman, yesterday there were seven proposals for amendment made by the joint statement of the American Book Publishers counsel and the American Textbook Publishers Institute. Mr. Gary has already indicated an exception to the fifth of these proposals, the fifth of the seven. We should appreciate the opportunity to indicate our opposition. We have not had an opportunity yet as a whole.

We would appreciate the opportunity at a later time to indicate our objection to a considerable number of the proposals for amendment made by Mr. Manges in his statement.

Senator McCLELLAN. You may, without objection, submit it to us and we will weigh it at the time. It might be that we will want to cross examine you on it.

Mr. ROSENFIELD. That will be splendid.

Senator McCLELLAN. You may submit it and it will be included in the record.

Mr. ROSENFIELD. In conclusion, it is our view that, as the Attorney General of the United States has said, copyrights are monopolies that are being granted by the U.S. Congress in the public interest.

We believed that in the quid pro quo for the granting of the monopoly by Congress to various people, the public interest in protection of education is what we are bespeaking, and we hope that in the granting of a copyright monopoly, the interests of the educational community, which is the entire community, will be kept in mind for proper uses within that monopoly.

Senator McCLELLAN. Thanks.

Dr. WIGREN. Thank you, Mr. Chairman, for allowing us to take this time this morning to appear before you.

Senator McCLELLAN. Thank you. You have had your presentation well organized, and we were able to move along expeditiously and conclude on schedule. This is going to be a long series of hearings, and it is going to take a lot of our time. We appreciate the witnesses coming prepared to make the kind of presentation you have this morning.

I regret very much that I shall not be able to be with you this afternoon and tomorrow. I have to leave the city. But the cochairman of these hearings, Senator Burdick, will preside this afternoon and tomorrow, possibly Monday and Tuesday, but I am going to be with him as much as I can when I am here. I have other work that takes some of my time and he has very kindly consented to preside at these hearings.

He will preside this afternoon and I have just asked him how soon he would like to resume, and he says 1:30 will be satisfactory to him, if that does not crowd you folks too much.

Mr. ROSENFIELD. We would be delighted to do that.
Senator McCLELLAN. Thank you very much.

79-397-67-pt. 1-13

The committee will stand adjourned until 1:30 o'clock p.m.

(Whereupon, at 12:15 p.m., the hearing recessed, to reconvene at 1:30 p.m., the same day.)


Senator BURDICK (presiding). The next witnesses will be Dr. Fred Siebert, dean of the College of Communication Arts, Michigan State University, and Arthur R. Miller, professor of law at the University of Michigan Law School.

You may proceed in any order you wish.


Dr. WIGREN. Mr. Chairman, the ad hoc committee very much appreciates this opportunity to extend its discussions before you this afternoon. The witnesses this morning constituted part 1 of our panel and this is part 2 and part 3 this afternoon.

First in part 2 there will be instructional uses of computers, followed by uses of new educational technology; then in part 3, uses of copyrighted materials in educational broadcasting.

First of all, we will have Dr. Fred Siebert, dean, College of Communication Arts, Michigan State University, on computers.

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Dr. SIEBERT. Mr. Chairman and members of the subcommittee, I am Fred S. Siebert, dean of the College of Communication Arts of Michigan State University, East Lansing, Mich., and I have been serving as copyright consultant to the American Council on Education. I appear before you on behalf of a subcommittee of the ad hoc Committee on Copyright Revision. This subcommittee has been studying the effects of the proposed copyright revision on the problem of the storage, analysis, and transmission of information, especially as this revision affects education and research.

The testimony of this subcommittee of the ad hoc committee will be divided between Prof. Arthur Miller, of the University of Michigan Law School, and me.

We have three recommendations we would like to make:

1. An amendment to section 110-2 of S. 597 to permit wider educational and research use of data processing machines and other devices;

2. A clarification of the effects of copyrightability of computer programs; and

3. A recommendation that a statutory study committee be authorized to study and make recommendations on the effects of copyright on the developing and experimental field of storage, analysis, and transmission of information.

I shall discuss recommendation No. 1, and Professor Miller will present our recommendations on No. 2 and No. 3. If it is agreeable with the chairman, we will make our presentations and then submit ourselves jointly for questioning.

I submitted testimony to this subcommittee at its hearings in August 1965, on the problem of copyright revision, but at that time I confined my remarks to instructional uses of copyrighted materials. It was not apparent at that time to me or to my colleagues that the proposed bill would seriously hamper the use of transmission devices in instruction and research. These restrictions became clear to us after reading the report of the House Judiciary Committee on Copyright Law Revision issued on October 12, 1966-Report No. 2237, 89th Congress, second session, page 53.

I quote from that report:

Although it was touched on rather lightly at the hearings, the problem of computer uses of copyrighted material has attracted increasing attention and controversy in recent months. Recognizing the profound import that information storage and retrieval systems seem destined to have on authorship, communications, and human life itself, the Committee is also aware of the dangers of legislation prematurely in this area of exploding technology.

In spite of this statement, the committee has proceeded to freeze the law affecting the use of copyrighted material in transmission systems in favor of the interests of the copyright proprietor. Our subcommittee hopes that the situation as it is presently under existing copyright law be allowed to continue until such time as the full effects of transmission systems are known and until a statutory study committee can make recommendations for changes.

The House committee report further states at page 54: 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, et cetera—for input into an information storage and retrieval system, reproduction of a work or substantial parts of it, in copies as "print-out" or output of the computer; preparation for input of an index or abstract of 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.

We contend that this language of the House report, together with section 106, extends copyright protection to computer transmission uses, and tends to freeze the law in favor of the copyright proprietor and to the detriment of the copyright consumer during this transition period of development and experimentation. We submit that the restrictions imposed by this bill and the accompanying House report will seriously hamper instructional uses of the newer devices as well as scholarly and scientific research and experimentation, and consequently harm the public interest.

In President Johnson's recent message to the Congress on education and health in America, he said that he was directing the National Science Foundation to work with the Office of Education to establish an experimental program for developing the potential of com, puters in education.” Noting that computers already are being used in educational institutions, primarily to assist advanced research, he said the computer can be used for other purposes “if we find ways to employ it effectively and economically, and if we develop practical courses to teach students how to use it."

The book publishing industry is properly concerned over the effects of computer and transmission uses of copyrighted materials on their incomes. However, the input of copyrighted materials into a data processing device for instructional and research purposes should not at the present time seriously interfere with their profiits. It is presently sufficient that they can collect royalties for the output in the form of hard copies. No one objects to paying royalties for reproducing hard copies of a copyrighted work whether by print or by computer devices.

A further defect of the present bill is that it fails to make any distinction between transmission in a closed or point-to-point system and transmissions which are broadcast to the public. The exemption for systematic instructional programs in section 110-1 extends to both closed and open transmissions and treats both alike. A closed circuit instructional program transmitted to university classrooms and dormitories is treated just like a broadcast transmission which can reach millions of people.

I should also like to point out that the 100-mile limitation in section 110–2-B is totally unrealistic. If a geographical limitation is necessary-and I do not think it is—then it should extend to the boundaries of a State which is the normal limit of educational jurisdiction. Many States are now engaged in setting up statewide networks of instructional programs, and these should come within the exemption.

In order to unfreeze the proposed copyright restrictions on computer uses and in order to free closed circuit transmission from the limitations on broadcast transmission during the developmental and experimental stage, the Ad Hoc Committee on Copyright Revision submits an amendment to section 110 of S. 597, as follows:

(The proposed amendment above referred to follows:) PROPOSED AMENDMENT TO SECTION 110 OF S. 597 BY THE AD Hoc COMMITTEE

ON COPYRIGHT REVISION Sec. 110. Limitations on exclusive rights: Exemption of certain performances

and displays Notwithstanding the provisions of section 106, the following are not infringements of copyright:

“(1) * **

"(16) Performance or display of a work by instructors of pupils by or in the course of a closed transmission by a governmental body or other nonprofit organization if such performance or display as in the course of the teaching or research activities of a nonprofit educational institution, unless otherwise provided for in regulations issued pursuant to the provisions of section - hereof. “(2) (NOTE.—Italic matter is new.)

Dr. WIGREX. Did you wish that Professor Miller now give his statement ?

Senator BURDICK. Yes.

Mr. MILLER. With the chairman's permission, I would like to have my statement entered into the record. I do not wish to read it but prefer to make a few extemporaneous remarks.

Senator BURDICK. Without objection, it will be received in the record.

Mr. MILLER. On Tuesday of this week, at the invitation of Senator Long of Missouri, I had the privilege of appearing before his Sub

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