" 16 Through

of copyrighted material discussed in connection with [Section 107]." some oversight, however, the defense as set forth in Section 504 (c) (2) of the Bill is limited to "face-to-face teaching activities in a classroom or similar place normally devoted to instruction." In order to accomplish the expressed legislative purpose we suggest that the last sentence of Section 504 (c) (2) commencing with the word "In" in line 23 at page 44 of the Bill be deleted and in lieu thereof the following be substituted:

"In the case of reproduction for the educational and scholarly uses specified in Section 107, where an instructor in a nonprofit educational institution infringed by reproducing a copyrighted work in copies, phonorecords, or by any other means for use in the course of face-to-face teaching activities in a classroom or similar place normally devoted to instruction, or where an individual infringed such a work by copying it by manual or any other means, for his personal use in the course of scholarly research, sustains the burden of proving that he believed and had reasonable grounds for believing that the reproduction was a fair use, the court in its discretion may remit statutory damages in whole or in part."

C. RIGHT OF REVERTER

Finally, let us say that, as authors, we are concerned over the extremely involved and complicated provisions agreed upon by the Author's League and the principal organizations of book publishers to resolve the "reversion problem," Section 203. We together with Professor Kaplan find it "hard to put the recapture idea in viable form." 18 Our Committee is continuing to study the question. At this time, however, we can say that we concur in the views expressed by Attorney General Clark with respect to the restrictive nature of Sections 203 (b) (2) and 304 (c) (5) (B).1o

Respectfully submitted,

PAUL L. WARD,

Executive Secretary. JOSEPH B. KENNEDY, Jr.,

Counsel.

Mr. WARD. We wish to thank the committee for this opportunity to appear and testify, and to say that the officers and the members of the American Historical Association appreciate the courtesy the committee has excluded in permitting us to express the views of the historical community on S. 597.

During the course of the hearings before the House and Senate Subcomimtees of the 89th Congress, let me note, views were expressed on our behalf by Prof. Julian P. Boyd, professor of history, Princeton University, and by Mr. Frederick Burkhardt, president of the American Council of Learned Societies. More recently, the bill as reported has been under study by the association's committee on freedom of historical inquiry. We have the honor to report to you today the views formulated by this last committee.

The American Historical Association is a nonprofit, membership corporation, created in 1889 by special act of Congress for the purpose of promoting historical studies, the collection and preservation of historical manuscripts, and the dissemination of the fruits of historical research. The association's principal office and place of business since its creation have been in the city of Washington, District of Columbia. First of all, I am happy to say that we find S. 597 for the most part an eminently satisfactory document from the point of view of historical research and teaching. Section 107 provides the clear endorsement that has long been needed for the doctrine of fair use, and gives special attention to use for "teaching, scholarship, or research." Section 108 gives to archives and libraries protection for certain essential meas

16 F.R. Rep. 83 at 131.

17 Note 16 supra at 91.

18 Kaplan. note 10, supra at 113.

19 House Hearing, pp. 1127, 1129. Compare H.R. Rep. 83 at 95.

ures of copying for the sake of preservation and research use. Section 301 eliminates the uncertainties of common law copyright, so that after 1993 its feature of perpetual monopoly will expire. The duration provisions of sections 302 through 304 are largely unobjectionable, although we are suggesting a minor amendment to section 302 designed to encourage the registration of unpublished works and to simplify procedure. We are happy to see that section 504 takes account of innocent infringement. Recognizing the variety of strongly championed interests that compete for influence in any legislation like this, we feel the bill reflects credit on its authors and sponsors.

At the same time, we wish to emphasize that we consider the committee report-House Report No. 83-to be a valuable supplement to the bill itself, and essential if it is to be applied without injustice. For historians, scholars, and teachers, the eight pages on fair use in the report are of particular value. The American Historical Association proposes to take with full seriousness the House Committee's requestpage 36-to "all concerned to resume their efforts to reach an accommodation under which the needs of scholarship and the rights of authors would both be respected." The association's committee on freedom of historical inquiry itself looks forward to attempting to formulate several accommodations of just this sort, and to determine whether these will be acceptable on all sides.

Most historians, moreover, are teachers as well as authors. The association will therefore give similar attention to ways of helping establish a continuing understanding as to what constitutes, for all concerned, acceptable practices with respect to reproductions by teachers for classroom purposes. We are grateful for the House committee's explicit request-page 33-that means be worked out "by which permissions for uses beyond fair use can be obtained easily, quickly, and at reasonable fees."

Not all detailed adjustments, however, can be left to such subsequent understanding. As part of bringing under Federal statutory copyright all unpublished material heretofore under common law copyright, section 303 provides that every such work shall remain under the new statutory copyright until December 31, 1993. Evidently this includes the whole sweep of letters, diaries, notebooks, and written memorabilia since the first days of Jamestown and Plymouth. Historical studies are inevitably and properly concerned with these, as much as with the far smaller number of works composed with an eye to publication but never published. The existence of the "great body of unpublished works now protected at common law" is indeed recognized in the House committee report-page 125-in connection with section 411, which embodies the view that a work which has never been published or registered does not deserve the full range of legal protection.

In the interest of reducing the burden on scholars in dealing with such memorabilia, and incidentally of encouraging the registration of such materials when appropriate, we suggest that subsection (a) of section 302, be amended to add a proviso. As amended, section 302 (a) would then read:

Copyright in a work created on or after January 1, 1969, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 50 years after his death;

Here I begin the suggested proviso:

Provided, That in the case of an unregistered work, copyright endures from its creation for a term consisting of the life of the author and 50 years after his death or for a term of 75 years from the date of creation, whichever expires first.

This, we believe, provides the historian with a more workable answer to the question of when copyright expires for material which plainly has not been published or registered, and does so in consonance with the language and intention of the bill as a whole.

This proposed amendment to subsection 302 (a) would call for corresponding minor changes in subsections 302 (c) and 302(e) as set forth in our formal statement.

In this connection a sentence in the House committee report, page 34, deserves correction. It reads:

The applicability of the fair use doctrine to unpublished works is narrowly limited since, although the work is unavailable, this is a result of a deliberate choice on the part of the copyright owner. Under ordinary circumstances the copyright owner's right of first publication would outweigh any needs of reproduction.

However appropriate this may be for the few works of the various sorts that are normally intended for publication, it is most inappropriate for the great majority of letters and memorabilia whose authors are no longer alive.

In our formal statement we have proposed views which we believe would be helpful to offset the restrictive influence of that sentence upon the fair use of doctrine as applied to historical research.

In discussing the new "innocent infringer" provision for teachers, the House committee report, page 131, notes that this "reflects the special problems of educational and scholarly uses of copyright material discussed in connection with that section" (107). Yet the text within the bill at the close of subsection 504 (c) (2) expatiates on the case of infringement by an instructor in the course of face-to-face teaching activities, as if essentially similar scholarly activities are to be treated more severely than these particular teaching activities. We respectfully urge that an amendment we propose in our formal statement be incorporated in this section.

For the integrity of the scholarly and educational process we feel it important to insist upon the essential similarity of face-to-face teaching and directly person research, as parts together of the pursuant of truth and enlightenment as our American society understands this pursuit.

For the same reason, we wish to express warm appreciation for the care with which the House committee report discusses the applications of fair use to the reproduction of copyrighted works in the context of classroom teaching activities. We attach great importance to the remark, page 35, that "the committee emphasizes again that the same general standards of fair use are applicable to all kinds of uses of copyrighted material." It is our understanding, and certainly our strong hope, that scholarly activities will be considered by all concerned to deserve the same measure of thoughtful understanding and flexibility as is shown in the report with respect to face-to-face teaching activities.

Our one strong protest, indeed, is against the two sentences immediately preceding the paragraph just cited, those beginning with the words "where the unauthorized copying displaces what realistically might have been a sale". The two sentences by their rhetoric and tone convey the sense that this one consideration can stand alone as decisive. As the final words on the fourth and most important of the criteria of fair use, they are seriously out of keeping with the committee's preceding sympathetic and helpful remarks on fair use, as the ad hoc committee of educators has informed you. The phrase "no matter how minor the amount of money involved" underscores the implicit deterrent to fair use in the educational and research context, and this is seriously out of keeping with the decisions of the courts. We hope the committee will say something in its own report to offset this disturbing pair of final sentences.

As I close these brief remarks, I should like to say that we assume it to be clear that copyright was not conceived to promote publication as an end itself. Publication without reasonable access for scholars to source materials would defeat the primary social purpose, which we take to be to encourage the creation and dissemination of knowledge under conditions where misstatement and deceit can be readily detected. Preoccupation with protecting the interest of the author and the publisher-manufacturer could go so far as to subvert the constitutional purpose.

We applaud the effort of those who have labored on this bill for the balance they have held between this perfectly legitimate interest and the equally important right of the public to know.

Thank you.

Senator BURDICK. Thank you for a very fine contribution.

Mr. Schnapper.

STATEMENT OF M. B. SCHNAPPER, EDITOR, PUBLIC AFFAIRS PRESS

Mr. SCHNAPPER. My name is M. B. Schnapper, editor of Public Affairs Press of Washington, D.C.

In my opinion, changing the phrasing of section 8 of the Copyright Act along the lines proposed by the Copyright Office in section 105 of S. 597 is unsatisfactory because this phrasing is simultaneously both too narrow and too loose. Moreover, it is:

(1) Contrary to section 8 of article 1 of the Constitution.

(2) Contrary to the first amendment of the Constitution guaranteeing freedom of the press from legislative restrictions.

(3) Contrary to longstanding as well as recent enactments by Congress.

(4) Contrary to the assurances of the Johnson and Kennedy administrations to make a maximum amount of information available to the public.

(5) Contrary to the interest of the press, scholars, public institutions (especially libraries and schools), and the public at large.

In addition, the phrasing of section 105 is unsatisfactory because it does not take into consideration the following facts:

(1) Although $18 billion in public funds is devoted to research and development and approximately $600 million is expended on all types of Goverment printing only about $6 million is allocated for copies

of publications legally available to the public through the Superintendent of Documents. Section 105 would encourage less and less availability of Government-financed informational material from the Superintendent of Documents.

(2) There has been large-scale violation and circumvention of section 8 of the Copyright Act prohibiting the copyrighting of Government publications. Although Government agencies, Government employees, Government contractors, and private publishers are chiefly responsible for such violations and circumventions of the present law, the Copyright Office is in large degree to blame because it has been shamefully remiss in enforcement of section 8. Section 105 would in effect sanction and encourage practices which are today lacking in or contrary to statutory authority.

(3) Section 105 is misleading. Avowedly it is designed to continue the present law's prohibition of copyrighting of "any work of the U.S. Government". But its definition of such work is so narrow and loose that it is little more than a sham. Defining a "work of the U.S. Government" as merely "a work prepared by an officer or employee of the U.S. Government as part of his official duties" is equivalent to saying that the copyrighting door is wide open to public servants in general.

The Copyright Office is surely aware that the job descriptions of relatively few persons on the Federal payroll state that their duties require them to write anything. About the only persons specifically engaged as writers per se are those who are expressly hired to write press releases and Government propaganda. Yet it's an irrefutable fact of bureaucratic life that practically every public servant above the level of clerk necessarily does an enormous amount of writing of all sorts even though this isn't spelled out in the job sheets.

If section 105 is to be meaningful its phrasing should make it clear that any material written in the course of performing official functions or arising out of official activities is noncopyrightable.

(4) The chief purchasers of the Government-financed materials that would be transformed into private property would be governmental entities-Government agencies (often the very same agencies that provided the funds for the preparation of the materials), libraries, schools, and other public institutions. In consequence these public institutions would inevitably request larger appropriations in order to enable them to obtain access to the aforesaid materials.

(5) Publishers of Government-financed materials subject to copyright would be in a position to make enormous profits at the taxpayer's expense. By comparison with the Government's expenditures in connection with research for and preparation of the materials, the investment of the publishers would be negligible. In many, perhaps most, cases the publishers would be taking little or no risk; they can invariably count on built-in Government purchases.

Despite some of the respresentations that have been made in behalf of section 105, it would have the following effects:

(1) It would increase, not decrease, present abuses of the Copyright Act by Government contractors, Government agencies, Government employees, and private book publishers.

(2) It would encourage large-scale copyrighting of informational material prepared at enormous public expense.