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Senator MCCLELLAN. I understand that we will hear them during this series of hearings, but I would hope the two interests would resolve the difficulty and save us a headache.

Mr. Wouк. I guess and I hope that that has happened, sir. I am sure at any rate that the areas of disagreement have been so significantly narrowed down that the back of the job has been broken, sir. Senator MCCLELLAN. I am very glad to hear it and very gratified. I hope you will have no problem with it.

Mr. Wouк. I now proceed, if I may, sir, to the second topic I have to discuss. That is the question of the reproduction devices that are proliferating at the present time.

Here let me refer to page 17 and to read briefly..

As the House Committee indicates on page 60, there has been an ever increasing development of new machines and devices which reproduce copyrighted works from the printed books in which they were first made available. The new methods include devices ranging from direct copying machines (like the Xerox) to innumerable offset printing devices (which often use masters, produced by Xerox or similar machines, directly from the book being copied) to a variety of photographic and microphotographic processes which reproduce the pages of a book on microfilm, micro-cards and other forms.

Let me depart from the text and bring in a personal note here. It is my privilege to serve as a member of the Board of Trustees of a college in the Virgin Islands, where I live. We are building a library for the college, which is only 5 years old. The problem of storage space arises. Of course, you know you pay by the square foot for building a library or any other building. The question of how many volumes you need and how many you can accommodate is vital. What turned up in the course of this policy debate was that in effect, all the old calculations for building a library were dissolving. A colleague of mine, brought to a trustees' meeting excerpts from the Wall Street Journal so pertinent to the livelihood of authors that I asked him for them. I went through my files this morning and with your permission, I would like to submit them here.

Senator MCCLELLAN. You wish to submit them for the record? Mr. WOUк. Yes, I would.

Senator MCCLELLAN. Very well, they may be received as an exhibit and if we conclude that they should go into the record later, we will have them printed. Let them be received as an exhibit to your testimony.

(The documents referred to were made an exhibit and may be found in the files of the committee.)

Mr. Wouк. I don't think these are significant documents, rather they are illustrative.

Wall Street Journal, Thursday, December 1:

Breakthrough! National Cash Register introduces practical paperless publishing! A microform system that lets you publish 3200 pages on a four by six transparency, send it anywhere for a nickel, and read it full size when it gets there, again and again.

Then the advertisement goes on to say that the card is indestructible, that it can be easily read, that this will reduce the amount of space needed for books and so on. This revolutionary system is on its

way.

What struck me is that 3,200 pages represents more than my life work as an author to date. It can be reduced to a four by six inch

transparency and be available to readers everywhere, instantly, through electronic communications.

Sir, this is the end of copyright as we know it, as it classically exists. Copyright dissolves, if copyright is payment for the reproduction of a book. Gutenberg's invention has had its run of 400 or 500 years, and now we are going to have this.

What remains, then, if the book, as the essential vehicle of copyright, dissolves. Only the principle is left; the principle that the right to copy is reserved to the author and his heirs for a term of years. This is his compensation for his precarious, often pioneering work, in the community. This is all he has to look to.

And, sir, the restriction of the right to copy creates a free intellectual community. Before copyright existed, the writer, the intellectual, the thinker was at the beck of a patron; or he was the sevrant of the theological system, or he was an embittered starveling. The restriction of the right to copy makes the intellectual, the scholar, the poet, fa free man, able to live by his own efforts.

Sir, this legislation has come at a very lucky time, at a sort of watershed in the history of publishing and of creative life. Now, just now, these devices are coming to the fore as the chief communication systems of the future.

Senator MCCLELLAN. As I understand you, you said there was some provisions restricting the right to copy and use, did you not?

Mr. WoUK. Yes, sir. The discussion of this problem in the House report we consider useful and illuminating, and in general we are satisfied with the conclusions of the House report. I refer now to page 18, sir.

The House report notes that the use of this new technology to make unauthorized reproductions of copyright material threatens the potential destruction of incentives to authorship. It represents a serious danger.

We go on and say that

The cumulative effect of making innumerable small, unauthorized editions of a piece of copyrighted material is as injurious to its author and publisher as if all the copies had been produced by a single infringer and distributed to many readers.

I skip to the bottom of the page, sir:

Some authors, for example, poets and essayists, actually derive the greater portions of their income from authorizing reproduction of small portions of their work in anthologies and other collections, rather than from the sale of the original things from which they are reproduced.

And, sir, right now a small book can be assembled through these reproductive devices, made of a snatch here from one author and a snatch here from another author. It can all be done on these machines. There is no end to the possibilities in the computer use of books, where they can store on a computer the life works of all living authors and have them for distribution in one library, or in a network of libraries all over, at the press of a button.

In meeting this challenge, and in defining the limits of the use of reproductive devices, we support the language of the bill and we appreciate and are grateful for the discussion in the House report. In general, this language and this discussion answer our needs.

Beyond that, sir, I shall be glad to answer any questions on these topies.

Senator MCCLELLAN. May I ask you one question? As you were discussing this, it occurred to me that frequently lecturers, politicians, statesmen will accept speaking engagements. They may be, in many instances at least, paid an honorarium for their appearance. They may very well quote in their address or lecture from some copyrighted material, maybe approving it, as they frequently do. Is that an infringement on a copyright?

Mr. WoUK. I will presume on our counsel, who probably should answer. He is worried about what I will say now.

Senator MCCLELLAN. I may have infringed a few times.

Mr. WoUK. In general, what you have described is almost a classic description of "fair use." You may quote from the "Caine Mutiny," and I would be grateful. That would be fair use of copyrighted material. If, however, your entire appearance at this banquet consisted of your reading in an extremely entertaining and dramatic fashion the court-martial scene from my book and nothing else, that might raise a slight question as to why you were doing that.

Senator MCCLELLAN. If one took a book and interpreted it, excerpted from it and interpreted it before an audience as a lecturer, would that be an infringement?

Mr. WoUK. This would be typical fair use again, Senator, I would

say.

Senator MCCLELLAN. In many instances, actually, they would be advertising the book to your benefit.

Mr. WoUK. Of course, it almost always is.

Therefore, the House sets four criteria: the nature of the work used, the nature of the user, the amount of the material that is used, and the public context in which it is used.

Senator MCCLELLAN. I guess you would have to be pretty much governed by all of the circumstances at the time.

Mr. WoUK. That is what the House spells out and puts into clear good language instead of leaving it to the court.

Senator MCCLELLAN. I did not mean to interrupt this long a time. The thought occurred to me as you testified.

Very well, is there someone else?

Mrs. JANEWAY. Yes. May I introduce our counsel, Mr. Irwin Karp, who will speak briefly on the other matters mentioned in the statement.

STATEMENT OF IRWIN KARP, COUNSEL, AUTHORS LEAGUE OF

AMERICA

Mr. KARP. Mr. Chairman, members of the committee, I will summarize very briefly the remainder of our statement and not read it at length.

Mr. Wouk, Senator, is almost as good a lawyer as he is an author, and I think he has given you a very accurate statement of the doctrine of fair use as it applies to your examples. I might comment, however, on the assumption that advertising a work by performing it justifies not paying for its use. When you get into more substantial uses, this is a philosophy expressed by various users of copyrighted works, both commercial and nonprofit. Authors are often told by one user that he

should not pay because he is advertising and popularizing the work, and therefore the author should be grateful. Then, when the author goes to the next user, he gets the same story. So actually, he might receive no payment if he had to live by the principle that each use which advertised his work and helped make it more valuable some place else should be a free use.

On the question of computer, the House report expresses the interest, and I am quoting at the bottom of page 24:

expresses the hope that the interests involved will work together toward the ultimate solution of this problem in the light of experience.

It goes on to say:

Toward this end the Register of Copyrights may find it appropriate to hold further meetings on this subject after the 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.

We make clear on pages 25 and 26 of our statement that we are in full agreement on this. We think the subject needs considerable study, that it should be carried on not only after the passage of the new law, but now while the Congress is acting on the law, and after it is passed. We do not think, and we agree with the House committee on this, that the law's enactment should be delayed while this study is continued, because this is a complex matter that will require considerable investigation. We think that two things can be done: First, that the meetings which the Copyright Office is even now holding on this subject with the various groups should continue under its auspices.

We think also that a study panel could be appointed either by the Copyright Office or under the direction of your committee and the House committee to go into this whole problem, what type of uses will be made by the producers of copyrighted material, how best can clearances be granted and how can payments be determined. And the study panel, we think, could report back to the committees at a specified time.

We believe that over the next 2, 3, or 4 years, the experience which we do not really have now will accumulate as a result of both effortsof continuing meetings and discussion among the parties and a formal study under the auspices of the Copyright Office. This will produce the material necessary to meet the challenges of this tremendous development of technology which Mr. Wouk has given you one small example of-the National Cash Register card process.

In brief summary, we support and accept the provisions of the bill which deal with the exemption from performance rights as they apply to education. That is in section 110(1) of the bill, which is referred to on page 28.

We are pleased with, and we support, the bill in its protection of the right of performance of dramatic works beyond the classroom. There is given in section 110(1) the right to perform in dramatic works in the course of face-to-face teaching, but we suggest that it would be disastrous to American playwrights if any exemption were given which would permit the unauthorized use of plays to be made in any medium other than the classroom itself. This has never been allowed in our copyright law and for good reasons, which we explain and which are also discussed in the committee's report.

On open-circuit educational broadcasts, which are discussed on pages 31 to 34 of the statement, I say only that the provisions of section 110(2) and 112 (2) of the bill, which deal with open-circuit broadcasting, represent to a certain extent the result of very intensive discussions by both sides. This, I am sure, is not a matter completely agreed upon, but we believe that the bill establishes a very fair set of limitations and privileges and should not be changed.

In conclusion I might point out that on such items as the manufacturing clauses, we have submitted statements to the House which we will not repeat from here. We feel that the manufacturing clause in the bill is a compromise that all sides can live with. It is a most onerous clause in the present law, and we think that the House committee's treatment of it is fair but that no further reduction in the relief that has been granted should be made.

We say nothing about the jukebox exemption and the compulsory license clause because other authors groups, speaking for composers directly concerned, will discuss that. You should know, however, that we fully support the efforts of these spokesmen for American composers to achieve equitable provisions both on the jukebox and the compulsory license clause. We think that performs a long overdue service in both areas.

On CATV we have submitted statements to previous hearings and we beg leave to refer to that.

One of the problems at the outset of copyright reform was the problem of terminating transfers granted for a long term. We say nothing more about this here. We have a short comment in our written statement, because this is one of the issues that has been completely compromised, as the House report points out. I would only ask, as a word of caution, that having assumed there is no problem, should others appear to oppose this, we can refer to our House statement and ask that that be incorporated solely by reference in your committee's record.

Lastly, we make a recommendation for one modification in the provisions for statutory damages, and it is referred to at page 38 of our statement.

We would like to thank the chairman and the committee for so patiently listening to us, and we think it would be appropriate if we do close with a word of tribute to the House committee, which worked so hard for so long, and to Mr. Kaminstein, Register of Copyrights, and his associates, who have devoted many years to a very arduous, difficult task, and have, I think, demonstrated great skill and a great measure of diplomacy, as they sat in the center of a whirlwind and were subjected to, as you are probably aware, Mr. Chairman, a great deal of pressure from namy conflicting sources, because this bill is undoubtedly one which involves many conflicts on many fronts and is most complex.

Thank you very much.

Senator MCCLELLAN. We are grateful to the House for having blazed the trail here for us. We probably will follow it in large measure, but it makes our work easier for us.

Very well. Is there anything further, Mrs. Janeway?

Mrs. JANEWAY. No.

Senator MCCLELLAN. Any questions, Senator Burdick?

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