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Despite efforts of some to eliminate the requirement of printing notice and date, it has been retained. Omission of the notice was sought in the hope that once the public found that notice was not required, they would come to believe that all material were copyrighted and thereby restricted. Penalties for omission of notice have been reduced. The usefulness of the date as an indicator of the expiry of copyright has been much reduced because of the proposed extension of duration to the indefinite life of the author plus 50 years.

3. That proposals to make the duration of copyrights be for a fixed term, both for published and unpublished works, be endorsed.

A fixed term of duration was sought so that the reader might have a ready means of determining when copyright expired and the work fell into public domain. This need has been brushed aside in the race to, in effect, triple or quadruple the duration period, and follow the European model.

4. That the principle that libraries be exempted from import restrictions and penalities be reaffirmed.

Here authors, publishers and librarians agreed. The exemption has been continued.

5. That the principle that government material should not be subject to copyright be reaffirmed.

This subject is very complicated, and would require an extended paper to deal with it. Julius Marke has an extensive treatment in his report already cited. The Bill retains the present prohibition, but does not prohibit copyright in works prepared under government contract or grants. This appears to be a reasonably satisfactory compromise.

6. That proposals to have copyright subsist in the Federal Government after its expiration in the hands of the copyright owner be opposed.

This was a "gimmick" to reduce competition from works in the public domain with copyrighted works of music. Fortunately this bill (H.R. 9906, 1962) is long dead. The desire behind it is not. The same result will come from the proposed lengthening of duration.

7. That the requirement of American manufacture as a qualification for securing copyright of works by American authors be opposed.

Here authors, publishers and librarians agreed that the parochial restrictions should be removed. The Committee reports (Report, p. 162) “although there is not justification on principle for a manufacturing requirement in the copyright statute, there may be some economic justification for it." A compromise has been worked out, and no further action by librarians is recommended here.

8. That the "not for Profit" principle as now embodied in the copyright law be endorsed.

This principle, stoutly defended by education groups, led by the Ad Hoc Committee, has been eliminated. They are now seeking refuge under "fair use." Here we have suffered a substantial defeat. Professor Kaplan, in the EDUCOM statement, has a masterful defense of the claim of non-profit institutions to special privileges here.

The temptation to compile a box-score is strong, but the component scores must be weighed. We have held our ground on four points, where the status quo remains, viz.: (2) notice, (4) importation, (5) government materials, and (6) transfer to government. These are not crucial issues. We have lost on (7) manufacturing, but the loss is not serious.

We have gained on no issues unless we consider it a gain to have specific mention of "fair use" (1) in the Bill, without any basic extension of the privilege. We have lost on (3) duration, and (8) "not-for-profit."

If we may assume that the other issues are more or less settled on the basis of the present draft of the Bill, and if no new issues come up in the meantime. there remain three areas of serious concern to the world of readers and researchers:

(a) Fair Use, (b) Duration, and (c) Not-For-Profit.

FAIR USE

Section 107 of the Bill reads as follows:

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:

(1) the purpose and character of the use;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The rationale and limitations on this section are set forth in p. 29-37 of the Report. They must be read in full to be appreciated.

In effect, librarians are permitted to continue serving their readers with photocopies more or less as they have been doing, but are to foreclosed from taking full advantage of the newer technologies. The EDUCOM statement describes the situation as follows (p. 11-12):

"Absence of a library exemption.-It will be noted that the two exemptions so far considered relate to teaching activities or instruction. There is no specific exemption for research or library activities by means of the computer. This omission would have drastic effects. Take the library question. Today a library of course pays for the books that are found on its shelves, but neither the library nor the readers are required to make any additional copyright payment for use of the books in the course of ordinary library operations, whether the use is in the form of simple perusal on the premises, or of lending-out. (It will be recalled that the Register of Copyrights has in fact refused to give his support to any proposal for exacting a toll for lending-out.) The Revision Bill would introduce a diametrically opposite principle by which even intermittent displays of books through machines in libraries might be infringements. (Bill, section 109-B, and Report 2237, p. 67-68.)

"This 180-degree turn of position is, in our view, not defensible. The indeterminate "fair use" provision is not an acceptable substitute for the clear-cut and reasonably delimited exemption that the situation requires.

"The special problem of computer input.-Such narrow benefits as the exemptions would otherwise confer appear to be frustrated by the proposition, advanced in the House Report, that the 'input' of a copyrighted work into the computerinvolving its translation into machine-readable form—is itself an infringing reproduction without regard to the manner of the input or the further utilization of the work by the machine. Thus an infringement may occur at the moment when a copyrighted work is introduced into the computer even if the only utilization later made of it falls squarely within one of the exemptions. So the Revision Bill, having ceremoniously conferred the alleged exemptions with one hand, brusquely takes them back with the other; indeed, takes them before they are really given. For the performances and displays of copyrighted works as described in the exemptions are not free as far as computer operations are concerned-not truly exempted-when payment can be exacted at the threshold or access to the copyrighted works can be denied altogether by the copyright proprietors.

"With respect to the input question, the Revision Bill is harsher toward computers used for educational purposes than it is toward educational broadcasting in the familiar forms of radio and TV. For in the case of educational broadcasting, use of the transmission exemption is positively facilitated by the inclusion of an additional exemption allowing the broadcasters to make ‘ephemeral recordings' of 'transmission programs' embodying the performances and displays of the copyrighted works."

Apparently due to the shift from protection under the "not-for-profit" principle, and due to the greater numbers and pressures exerted, the classroom teachers have been given a special subsection in the Bill (504-c-2) permitting the Court to waive statutory damages when a teacher is convicted of infringement, but shows that he had reasonable ground for believing that what he had done was "fair use." We claim the same benefit for librarians in non-profit libraries, and are seeking such an amendment to the bill.

No reference has been found in the Bill or the Report to the privilege of binding or re-binding a book which a library has bought. As was reported in our previous article, some publishers have sought to prevent libraries from putting hard covers on to paperback books. The lawsuit of a number of large libraries against 12 leading publishers for a price squeeze on “library bindings" is still pending.

DURATION

In one respect under duration a great new advantage has been opened to scholars using unpublished manuscripts. The Bill would remove such material from the perpetual protection of the common law, and put it under the same terms of duration as published material. Thus all manuscripts whose authors have been dead 50 years, or manuscripts over one hundred years old whose authors are unknown, are free of copyright restriction."

The duration of the term of copyright has had continuous growth over the years, outstripping patents by a large proportion. This process was well described by Mr. Verner Clapp in an unpublished talk before the Ad Hoc Committee of Educational Organizations on Copyright at a meeting in Washington on March 1. This grab from the public domain is even less tolerable when it is accompanied by tightened restrictions on "fair use." The extension is posited on the flimsy arguments that it would conform to European practice, and would compensate for increased life expectancy of authors. A study by the Copyright Office showed that at the expiration of the present 28 year term only 15 percent request renewal for the second 28 year term. Obviously the change of term to life of the author plus fifty years, throws a blanket over everybody for the benefit of a very few. In any event it leaves to the would-be readers and user the almost impossible task of running down death dates of obscure authors through uncooperative or defunct publishers.

It is ironic that the proposed term would extend far beyond the physical life of the paper on which most books are published nowadays.

NOT FOR PROFIT

A.L.A. support of the "not-for-profit" principle was based not so much on the needs of library users, but on the needs of educators, and on our mutual concerns. This principle has been removed from the Bill, and the educators most now take refuge in "fair use" and in certain other specific exemptions.

On this matter the EDUCOM statement is particularly pertinent (p. 7–8): "The traditional exemptions, so far as they favor education and similar undertakings, are not a sentimental or quixotic or irrational kind of largesse which the law unjustly forces copyright proprietors to bestow on these beneficiaries. Rather the exemptions are grounded in enlightened policy. The copyright law helps to assure an adequate and lively production and distribution of intellectual works by enhancing artificially the returns from distribution. But it serves no public purpose, and is indeed pernicious, to attempt undue enhancement of those returns. Thus the monopoly rights conferred by the copyright law should be held in reasonable check both as to scope and duration. It is peculiarly fitting that the outer limits of the copyright monopoly should be drawn with a view to benefiting education and libraries, since the educational effort is not only intrinsically worthy of encouragement but creates and constantly enlarges the very audience upon which the copyright industries depend for their market, besides helping to generate the authors who furnish the basic material for those industries.

"The copyright industries-the 'publishers' in the broad sense-seem to have gotten along rather well under the longstanding statutory arrangements granting the traditional exemptions. Nevertheless, the publishers have insisted throughout the evolution of the Revision Bill on rubbing out the line of the traditional exemptions. Sometimes this insistence has been so strident as to disregard the plain fact that the publishers are themselves the beneficiaries of like preferences, whether these take the form of postal subsidies, or appear in the guise of public funds appropriated directly or indirectly for the purchase or licensing of copyrighted works, or take the shape of the copyright statute which confers on them the basic monopoly. When the revision effort began, the Register of Copyrights advised that the traditional exemptions be continued. But, amid a great welter of propaganda, the Register has gradually swung around, and the result in the Revision Bill is the abandonment of the old line and the substitution of particularistic exemptions of narrower scope. As we shall soon see in more detail, the cutting down of the traditional exemptions operates with special strictness and with serious effect on schools and libraries desiring to use the advanced technology represented by the computer.”

For a discussion of this problem, see Appendix C "Copyright" by C. F. Gosnell, in Wil liam R. Hawken, Copying Methods Manual, ALA, 1966.

PROPOSALS FOR A CLEARINGHOUSE AND A REGULATORY COMMISSION

To our protests that the new Bill is unduly restrictive we have received replies that what is needed is a clearing house and a continuing regulatory commission to help "work-things out.”

Presumably a clearing house, such as ASCAP (American Society of Composers and Publishers) or BMI (Broadcast Music Inc.) could license libraries for a modest fee. But there should be no need for libraries to have such licenses. There should be no fee. There is no guarantee that a fee would remain modest. No workable proposal has ever been advanced. The task of equitable collection and distribution of fees would be a stupendous one, costing far more to operate than the fees collected.

To those concerned with the new restrictions, especially on computer uses and facsimile transmissions, the suggestion has been made that the Bill should include provision for setting up a continuing commission to issue appropriate regulations, and resolve some of the conflicting interests after the law is passed.

This proposed addition to the federal bureaucracy is repugnant to many. Library users and librarians, compared to the publishers and authors organizations, are poorly organized and financed. We would be no match for the opposition in the continuous and lengthy proceedings such a commission would generate. We must have our relief in the present Bill, we cannot accept restrictions which would tie our hands before we start to negotiate.

CONCLUSION

While it is obvious that the Bill could be a lot worse for libraries and library users, we still are at a distinct disadvantage. We have gained littled or nothing in the present, while much of the future seems to be foreclosed to us, or at least subject to severe restrictions.

We must continue to defend the ground we have held, while seeking the modifications we need to have to serve our users efficiently and economically.

PROPOSED AMENDMENTS TO S. 597, APRIL 1967, BY AMERICAN LIBRARY ASSOCIATION

Page 9, lines 24-25, Sec. 109 (b). Delete the words "to viewers present at the place where the copy is located".

Page 10, lines 3 and 4, Sec. 110. Add Subsection 1A between lines 3 and 4 to read as follows:

"Performance or display of a work in the course of a closed transmission by a governmental body or other non-profit organization if such performance or display is in the course of the teaching or research activities of a non-profit educational institution or library."

Page 10, lines 7-25, Sec. 110(2). Delete (A) through (D).

Page 44, line 27. Insert in Sec. 504 (c) (2) after the word "instruction," and before "sustains" the following new language: "or a librarian in a non-profit school, college, public, reference, or research library who infringed by reproducing a copyrighted work in copies or phonorecords for purposes of scholarship or research".

This paragraph would then read as follows:

"(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $20,000. In a case where the infringer sustains the burden of proving, and the court finds, that he was not aware and had no reason to believe that his acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $100. In a case where an instructor in a nonprofit educational institution, who infringed by reproducing a copyright work in copies or phonorecords for use in the course of face-to-face teaching activities in a classroom or similar place normally devoted to instruction, or a librarian in a non-profit school, college, public, reference, or research library who infringed by reproducing a copyrighted work in copies or phonorecords for purposes of scholarship or research, sustains the burden of proving that he believed and had reasonable grounds for believing that the reproduction was a fair use under section 107, the court in its discretion may remit statutory damages in whole or in part."

DURATION

In one respect under duration a great new advantage has been opened to scholars using unpublished manuscripts. The Bill would remove such material from the perpetual protection of the common law, and put it under the same terms of duration as published material. Thus all manuscripts whose authors have been dead 50 years, or manuscripts over one hundred years old whose authors are unknown, are free of copyright restriction."

The duration of the term of copyright has had continuous growth over the years, outstripping patents by a large proportion. This process was well described by Mr. Verner Clapp in an unpublished talk before the Ad Hoc Committee of Educational Organizations on Copyright at a meeting in Washington on March 1. This grab from the public domain is even less tolerable when it is accompanied by tightened restrictions on "fair use." The extension is posited on the flimsy arguments that it would conform to European practice, and would compensate for increased life expectancy of authors. A study by the Copyright Office showed that at the expiration of the present 28 year term only 15 percent request renewal for the second 28 year term. Obviously the change of term to life of the author plus fifty years, throws a blanket over everybody for the benefit of a very few. In any event it leaves to the would-be readers and user the almost impossible task of running down death dates of obscure authors through uncooperative or defunct publishers.

It is ironic that the proposed term would extend far beyond the physical life of the paper on which most books are published nowadays.

NOT FOR PROFIT

A.L.A. support of the "not-for-profit" principle was based not so much on the needs of library users, but on the needs of educators, and on our mutual concerns. This principle has been removed from the Bill, and the educators most now take refuge in "fair use" and in certain other specific exemptions.

On this matter the EDUCOM statement is particularly pertinent (p. 7-8): "The traditional exemptions, so far as they favor education and similar undertakings, are not a sentimental or quixotic or irrational kind of largesse which the law unjustly forces copyright proprietors to bestow on these beneficiaries. Rather the exemptions are grounded in enlightened policy. The copyright law helps to assure an adequate and lively production and distribution of intellectual works by enhancing artificially the returns from distribution. But it serves no public purpose, and is indeed pernicious, to attempt undue enhancement of those returns. Thus the monopoly rights conferred by the copyright law should be held in reasonable check both as to scope and duration. It is peculiarly fitting that the outer limits of the copyright monopoly should be drawn with a view to benefiting education and libraries, since the educational effort is not only intrinsically worthy of encouragement but creates and constantly enlarges the very audience upon which the copyright industries depend for their market, besides helping to generate the authors who furnish the basic material for those industries.

"The copyright industries-the 'publishers' in the broad sense-seem to have gotten along rather well under the longstanding statutory arrangements granting the traditional exemptions. Nevertheless, the publishers have insisted throughout the evolution of the Revision Bill on rubbing out the line of the traditional exemptions. Sometimes this insistence has been so strident as to disregard the plain fact that the publishers are themselves the beneficiaries of like preferences, whether these take the form of postal subsidies, or appear in the guise of public funds appropriated directly or indirectly for the purchase or licensing of copy. righted works, or take the shape of the copyright statute which confers on them the basic monopoly. When the revision effort began, the Register of Copyrights advised that the traditional exemptions be continued. But, amid a great welter of propaganda, the Register has gradually swung around, and the result in the Revision Bill is the abandonment of the old line and the substitution of particularistic exemptions of narrower scope. As we shall soon see in more detail, the cutting down of the traditional exemptions operates with special strictness and with serious effect on schools and libraries desiring to use the advanced technology represented by the computer."

For a discussion of this problem, see Appendix C "Copyright" by C. F. Gosnell, in William R. Hawken, Copying Methods Manual, ALA, 1966.

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