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Suppose now a closed-circuit program transmitted via satellite to educational institutions. Suppose that on this program the pages of a copyrighted work are displayed for reading and that in thousands of these institutions recording devices fix the program on film. In these circumstances, who would buy the books?
I have been describing the future of closed-circuit television. The same kind of transmission is now technologically possible in computer network systems. It is contemplated that in these systems, a central computer will store copyrighted works, and that they will be transmitted by wire to hundreds of individual console screens upon demand. In a system of this kind, the only copy exists in the computer. It is merely displayed on the console screen to be read at leisure by the user. The computer in effect becomes the library.
At the moment, no such network exists in educational institutions. We are still in the experimental stage in a relatively few colleges and schools across the country. Like television transmission, computer transmission is a future, not a present, threat to authors and publishers.
With this background, we may now consider the force of the exemptions from copyright previously proposed for transmission by television or computer. Use of copyrighted material without permission or payment would permit display of this material for as long as desired, as many times as desired, to as many individuals simultaneously as may be placed before cathode ray tubes. It would cover all kinds of copyrighted material from Winnie the Pooh to mathematical treatises.
It should be noted that the bill before you for the first time in American copyright law extends copyright to include the right to display a work publicly; (Clause 6 of section 106) This is clear and explicit recognition that methods and devices for display currently available and in growing use have the potential of destroying the market for copyrighted works. In this connection, the Committee Report to accompany H.R. 4347 says at page 55: “With the growing use of projection equipment, closed and open circuit television and computers for displaying images of textual and graphic material to 'audiences' or 'readers' this right is certain to assume great importance to copyright owners........ The committee is aware that in the future, electronic images may take the place of printed copies in some situations, and has dealt with the problem by amendments in sections 109 and 110........?
This atatement presents the heart of the problem. We are faced with a loss of market when a machine can make one copy of a work do where hundreds have been used before.
Unrestricted use in closed-circuit transmission would be damaging to all kinds of copyrighted material. To certain kinds, it might well prove fatal. Člosed-circuit television is linked to educational institutions. Textbooks, workbooks, laboratory manuals, and stadardized tests are produced for this market. They can be sold nowhere else. If unlimited use destroys the market for them, private commercial publishers will find it impossible to risk the capital required for new texts and nstructional materials.
These materials are designed for sale in quantity in large markets. There are other publications of a scholarly or technical nature with total markets of only a few thousand copies. If these markets are reduced by as much as 10 per cent, the books in question cannot be published. Unrestricted use in this case, permitting one copy to serve where hundreds have served before, would quite literally dry up the sources of publication. To be quite specific, if an advanced scholarly or scientific work were encoded without permission or payment into a computer, and if this computer were part of a wide-ranging network, no scholar or scientist with access to the network would buy the book. No library associated with the network would buy the book. It would be difficult to find a publisher for another book of the same sort.
Under the present law, nonprofit television and radio are granted the right to use nondramatic literary material for performance only. This means that no copy may be made of the performance for future use. The bill before you continues this basic exemption from copyright, but authorizes the making of two copies for instructional television performance. The first copy may be held indefinitely for archival purposes; the second may be held and used without limit to the number of uses for more than a year.
This provision represents a compromise on the part of book publishers. It is their majority view that a one-time performance on educational television cannot disturb the market for a work. It is their unanimous view that repeated performances without restriction would remove any reason for purchase of the work and thus damage its market. The right to make a copy of a transmission for re
peated use during the course of one year represents hazard enough. It was not objected to by publishers on the plea that a recording would permit exchange of programs between one local area and another. We would regard any extension in the number of permitted recordings as a serious erosion of basic copyright.
On page 73 of the Committee Report to accompany H.R. 4347, there appears a statement applying to radio and television transmission but not to computer transmission: "Subclause B of section 110(2) which was added by the committee, confines the exemption to transmissions normally encompassing an area whose radius is not over 100 miles. The basic theory of the instructional broadcasting exemption in clause (2) is that the permitted uses of copyrighted material are made through local transmitting organizations and are generally part of the instructional activities of local educational institutions. This theoretical base would be eroded or destroyed if, as now seems entirely possible through the use of communication satellites, for example, a nation-wide network of simultaneous educational transmissions were established and if teaching methods based on visual images rather than printed copies continued to evolve. The prospects of very serious damage to copyright owners if this happened impressed the committee as real. A radius of 100 miles is substantially larger than the areas normally encompassed by existing educational transmitters.
Our main concern is limitation to the normal radius of transmission of a single station and avoidance of earth satellite use and unlimited simultaneous transmission by other stations.
It will be alleged that in opposing the extension of free use of copyrighted material in the new educational technology book publishers are trying to prevent the growth and use of these marvellous devices. This is not the case. We are interested in the advancement of education or we would not be in book publishing. We believe that the new technology has great potential. We believe it will require new kinds of instructional materials, and we went to be in business to provide them.
We do not believe that the development of instructional television or computerassisted-instruction requires the expropriation of our current product. It is estimated by Professor Patrick Suppes of Stanford, the leading authority in the field, that computer-assisted-instruction will cost $2 billion to install and that this money will be forthcoming. It is estimated that a satellite-based transmission program will cost $30 or $40 million per year and that this money will be forthcoming. With figures of this size in view, it is ironic indeed that authors and publishers should be asked to provide their work without payment.
We cannot understand why we are singled out. Those who make this demand fully expect to pay for equipment, for use of cables and telephone lines, for electric power, and for salaries.
It will be asserted that free use of copyrighted material is essential for educational transmission because publishers are slow and reluctant to answer requests for use of their materials. No one will deny that some publishers have been slow and inefficient in handling permission requests. On the other hand, thousands of requests are handled promptly and reasonably every month. At the Macmillan Cozapany alone, we receive 8,000 requests a year, and we are in a current study ci the feasibility of handling these requests via computer.
You may wonder why responses are not immediate and automatic. There are several interesting and important reasons why not. The basic principle is that publishers stand in a fiduciary relationship to their authors. They cannot permit uses of material which distort the intent of the author. They cannot approve quotations out of context or quotations which are in effect an abridgment or caricature of the author's work.
Two examples will illustrate the problem. We recently received at the Macmillan Company a three page letter requesting permission to use some 30 disconnected sentences and paragraphs ranging over 279 pages of an author's work. It was necessary to go to the pages of the work to discover what the effect of this kind of skip-quotation would be. It was clear, upon inspection, that the effect would have been gross distortion and the request was declined.
As a second example, we are often asked for permission to quote portions of a poem. If the request is for alternate stanzas or for a passage from which lines are omitted, we cannot in good faith grant the permission, for the result would be a distortion of the poem. If we granted permission, we would be in violation of our obligation to protect the integrity of the author's work.
Clearly, then, we cannot grant all requests for all uses of an author's work. The handling of permission requests cannot be automatic since it requires the exercise of judgment. On the other hand once user needs are made clear, it is dossible that certain of them can be handled in bulk.
There is no question that applying for permission to use copyrighted material is an inconvenience. So is the paying of taxes. So is the respect for parking ordinances, and for legally posted "No Trespassing” signs. It is also an inconvenience in the schools to live with a budget system which requires planning in one year for purchase of Xerox machines and duplicating paper in another. So is the necessity which teachers must observe of filling out requisitions for pencils and erasers.
It is undeniably an inconvenience to respect copyright to the extent of applying for permission to use material that someone else has created. To overcome this inconvenience, two suggestions have been advanced by users. The first is to permit free use of copyrighted material so that no permission need be sought. The second is to set up a clearing house to which users can apply and from which they can secure permissions quickly
Book publishers are quite willing to undertake feasibility studies for methods of handling copyright commissions. We would observe, however, first that we must be protected from antitrust prosecution and second, that the complexity of the problem permits no quick and easy solution. It would be necessary to collate information from book publishing alone for some half-million titles. Information of this order can be handled only by computers. But no computer can be programmed to exercise the judgment that is required if the integrity of an author's work is to be respected.
This offer to study the means of clearing copyright permissions is genuine. On Monday of this week, book publishers were in conference with the Office of Education on this very problem. We are seeking a means to clear permissions for educational research information to be stored on microfilm and in computers for Project ERIC. The directors of this project do not yet know what kinds of copyrighted materials will be required. They do not know whether they will want entire books, or passages, or abstracts. They have no idea how many uses will be made of material stored in computers. Neither do we, but both parties intend to work together within the framework of the present copyright law to find out. For we are persuaded that the orderly process of the marketplace is the proper means for solving our problems.
Mr. Chairman, may I express the appreciation of American Textbook Publishers Institute for the opportunity you have given us to state our position.
Senator BURDICK. We thank you for giving us your views on a very complex question.
Senator BURDICK. Mrs. Linden, how do you propose to present your statement?
STATEMENT OF MRS. BELLA L. LINDEN, COUNSEL, THE AMERICAN
TEXTBOOK PUBLISHERS INSTITUTE, NEW YORK Mrs. LINDEN. Mr. Chairman, may I ask your indulgence? I worked awfully hard to condence into as brief sentences as possible an overview of computer technology as a lawyer and as a representative of the American Textbook Publishers Institute sees it. I am afraid if I speak extemporaneously, I may speak twice as long.
Senator BURDICK. Then, by all means, read it.
Mrs. LINDEN. Mr. Chairman and member of the committee, I am Mrs. Bella Linden, attorney, of the New York firm of Linden & Deutsch. I am copyright counsel for the American Textbook Publishers Institute, and am appearing on their behalf.
One of the principal unresolved issues in copyright law revision is how should the copyright law deal with the new mechanized technology of handling information. The fantastic capacities, present and prospective, of computerized information networks to deal with the information explosion have so captured our imagination that there are some who insist that social progress demands that all information
and copyrighted works be made available for computerized uses with minimal or no interference from the authors or publishers.
One of the purposes for my appearance here is to reiterate for the record that publishers do not wish to impede the accessibility of copyrighted material to the educational community, nor to the libraries, nor to the population at large. Making textbooks, reference works, and all other forms of creative writing available to the community has been and continues to be the publishers' main function.
What is troublesome at this time is whether all men of good will will recognize that ready access and availability to copyrighted material is not the same as free unpaid for use of such works-whether all men of social responsibility recognize that computer, or computerized information systems, are still only pieces of machinery, hardware and they are socially useful only if and to the extent that authors and publishers provide these marvelous machines with product, with literary material, with knowledge and material to store, put into them, and to make available.
I am here to urge that information storage and retrieval is not a new concept-it was invented by the cavemen--and that the needs for legal accommodation to this new technology we urge should be examined in the context of its historical development and the historical development of our country's response to the care, preservation and enhancement of its intellectual gross product.
I would ask your indulgence so that I could trace in a couple of moments, perhaps all too briefly and too superficially, the origin and development of the body of law referred to as copyright law in response to society's recognition of its-society's—welfare.
The first forms of human communication were gestures and cries which could not be called speech-since they transmitted signs rather than symbols. Then came speech itself, that is, language, in contrast to the mere gestures of articulated sounds which accompanied emotional states. Actually perhaps even prior to speech, the first information storage and retrieval system was created by the caveman who scratched and later painted signs on the walls of his cave, thus storing information for later transmission of information forward in time. The transmission of information and ideas to distant people was later made possible by writing on clay tablets, and still later on parchment. Thus, information was stored by the caveman and later by early man as well as on clay tablets, on the walls of his cave, so he could retrieve this information at a later date.
The storage and transmission functions of the written word were enormously enhanced by the invention of moveable type which permitted the printing of books. However, the use of a printing press meant that the outhor no longer had possession of the single manuscript which could be read or laboriously hand copied by others. There developed a need to protect the copying (or printing) right. Thus, the generic term became the label for a newly emerging body
The mass distribution of books which later resulted, created the first real difficulties for an author in attempting to achieve recognition as the author of a work and in his ability to control and preserve the contents from distortions and further, his ability to achieve economic reward to the extent available in those days to authorship.
The British Parliament responded with the world's first copyright statute, known as the Statute of Anne (8 Anne c. 19 1710). This statute is the base upon which all subsequent legislation with respect to copyright, both here and abroad, have been enacted.
It may be safely assumed that the colonial lawyers participating in the Continental Congress were familiar with English law, including the law of copyright. There is evidence that at least one lawyer of the time, Noah Webster, was actively concerned in the authors' problems and with attempts to attein legislative solutions to them.
Exercising the power granted by article 1, section 8 of the Federal Constitution, the First Congress enacted the first Federal copyright statute in 1790.
"Books” as such, were not defined in the act, and coverage of the act was potentially limited only by the constitutional term "writings. Of course, a literal interpretation of "writings" would have excluded maps and charts from protection. There is no material available concerning the drafting of the bill or debate in Congress, but it would seem clear from the inclusion of maps and charts in the scope of protection that even at the birth of Federal copyright legislation in the United States it was found necessary to forcibly expand the meaning of language in a manner that would reflect the practical realities of the need for protection and the technology of that time.
Although there were innovations and improvements in the printing processes, the first significant technological breakthrough in the methods of storing and distributing information since the innovation of the printing press was the development of computerized information networks.
The information explosion and its related and yet independent phenomenon, the rapid obsolescence of information, which followed World War II, stimulated the development of computers to afford more efficient access to the intellectual gross product of our society. To the extent that computerized information storage and retrieval systems are merely more efficient performers of the same functions as clay tablets and books, that is, they fulfill the function of storage and transmission of information through time and space, the problems of protecting authors' right and incentives and at the same time affording rapid access to copyrighted material to computers instead of printing presses are, we submit, less foreboding and much less revolutionary than a technical dissertation on electronic equipment would lead one to believe.
The new science of documentation has already produced a highly technical vocabulary, but the meanings of the words are fairly clear. The steps in the process of computerized information handling are as follows—I refer now to what we call input, the various techniques whereby material, text material, written word, is translated or transformed from verbal symbols of the English language into machine readable form. In other words, the computers are not able at this juncture yet to read, to scan a page--at least, it is not economically feasible at this juncture. They do not read the words of the English language. They are transformed by an electric typewriter that translates these verbal symbols, these words of the English language, shall we say, into symbols and signs that the electronic equipment can appropriately store.