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COPYRIGHT LAW REVISION

FRIDAY, APRIL 28, 1967

U.S. SENATE,

SUBCOMMITTEE ON PATENTS,

TRADEMARKS, AND COPYRIGHTS,
COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10:10 a.m., in room 2228, New Senate Office Building, Senator John L. McClellan (chairman) presiding.

Present: Senator McClellan.

Also present: Thomas C. Brennan, chief counsel, Edd N. Williams, Jr., assistant counsel; Horace L. Flurry, representing Senator Hart; Stephen G. Haaser, chief clerk, Subcommittee on Patents, Trademarks, and Copyrights; George S. Green, professional staff member, Committee on the Judiciary.

Senator MCCLELLAN. The subcommittee will come to order. Mr. Brennan, you may make a brief statement.

Mr. BRENNAN. Mr. Chairman, we plan this morning to consider five issues relating to S. 597. Equal time has been allocated to opposing sides on these issues. The first issue is the fair use and educational exemptions. Fifteen minutes has been allocated to Mr. Harry Rosenfield on behalf of the Ad Hoc Committee of Educational Institutions. Mr. Rosenfield.

Senator MCCLELLAN. Let the Chair observe that the time allotment of an hour and a half will enable us to conclude the morning session before noon. There is going to be a joint session of the Congress today, and I would like to attend. We do not want to be too rigid, and if somebody needs, at the end of his time, another half minute to finish his sentence, we will, of course, afford him that courtesy. But we do hope to stay within this limitation and with the cooperation of the witnesses, I believe we will be able to make real progress and everyone will be able to get their position recorded in the hearings. The first witness will be Mr. Rosenfield.

FAIR USE AND EDUCATIONAL EXEMPTIONS

STATEMENT OF HARRY N. ROSENFIELD, ESQ., WASHINGTON, D.C., COUNSEL FOR AD HOC COMMITTEE OF EDUCATIONAL INSTITUTIONS AND ORGANIZATIONS

Mr. ROSENFIELD. Mr. Chairman, thank you very much. May I respectfully request that my whole statement be incorporated in the record, though I shall read from it selectively only.

Senator MCCLELLAN. It may be incorporated.

Mr. ROSENFIELD. Thank you.

The ad hoc committee appreciates this opportunity to deal with certain matters raised in, or resulting from, the recent hearings before this committee. Time will not permit me to cover all such questions. However, we are deeply concerned about four particular matters, as follows:

(1) Fair use, and especially the efforts of some witnesses to erode fair use into meaninglessness so far as education is concerned;

(2) S. 597's virtual elimination of individualized instruction through modern technology;

(3) The failure to distinguish between open and closed circuit transmission in instructional broadcasting; and

(4) Certain amendments proposed by the publishers.

Senator McClellan, we take heart in your opening statement in these hearings that there are certain provisions of S. 597 which you may not be able to support in their present form. We earnestly hope that among these provisions are the ones which cause us so much

concern.

As a summary of our recommendations, we urge the Senate Judiciary Committee to take the following actions:

1. Retain section 107 (fair use) in its present form; and in its report reject the concept that fair use is obviated by the possibility of any sale, "no matter how minor the amount of money involved."

2. Delete section 110(2) (D) which eliminates the possibility of individualized learning through modern technology. See appendix 2. 3. Add a new subsection, section 110(1A), which distinguishes between closed and open circuit transmission of instructional material. See appendix 3.

4. Reject five of the seven amendments proposed by the book publishers in their testimony.

I. FAIR USE

The ad hoc committee's basic position urged enactment of both a fair use section and a special statutory authorization for limited copying rights for educational uses, as a means of preserving and expanding the "not for profit" concept. However, we agreed to a compromise position which would achieve approximately the same result in a different way, involving both important new language in paragraph 107 and a legislative history.

The sine qua non of our agreement is the present language of section 107, unchanged. This represents a compromise for us, but we intend to honor our agreement, to abide by it. However, if others fail to honor theirs, or the language is changed, the ad hoc committee will regard the whole agreement as dishonored and feel free to return to its original proposals.

The book publishers and music interests have urged amendments to this section. We oppose such amendments. We vigorously urge this committee to reject all efforts to amend the text of section 107. Anything less than the present text could mean complete reassessment by the ad hoc committee of its position on this section.

Furthermore, the essence of the total agreement is virtually negated by several statements in the House committee's report. Our basic understanding of the agreement is correctly stated in the House committee's comments that the fourth criterion of the fair use section, section 107, "must always be judged in conjunction with the other three criteria." However, this statement and another of similar import, and the essence of our agreement, are, we fear, virtually vitiated by another statement in the House report on this subject, as follows:

Where the unauthorized copying displaces what realistically might have been a sale, no matter how minor the amount of money involved, the interests of the copyright owner need protection.

The language, "no matter how minor the amount of money involved" flies in the face of the combined consideration of all four criteria stated in $107, and prevents dealing with them in conjunction with each other. At the very least, it creates such uncertainty as to endanger the whole section for our purposes. We intend to live by our agreement on fair use, provided, Senator, it is the agreement we made. But we did not make any agreement which includes the language, "no matter how minor the amount involved."

Therefore, we urgently, respectfully but urgently, request of the Senate Judiciary Committee that the concept embodied in this language be specifically and categorically rejected as part of the legislative history of fair use.

Furthermore, we wish to make crystal clear our understanding of the fundamental nature of fair use as we agreed upon it. Fair use and the limited educational copying it authorizes is not an "occasional” or only a "casual" use, as one witness stated. For us, it is a fundamental statutory charter. There is nothing "occasional" or "casual" about education's right of fair use. It is not occasional, it is constant. It is not casual, it is continuing. Anything less is a perversion of our agreement and an automatic breach. Therefore, respectfully but urgently, we appeal to this committee to make this matter absolutely clear in its report.

Another witness was candid enough to state that he regarded fair use as "a temporary safety valve," after which "the concept of fair use should lose its importance and die off as some form of vestigial tail." If this be true, Mr. Chairman, we want nothing of section 107 or of this bill.

We originally proposed a two-pronged approach, retention of "not for profit," plus a statutory authorization for limited copying and recording for education. We receded from this only upon the basis of an ironbound assurance that the doctrine of fair use as properly applied is broad enough to permit reasonable educational use. The compromise was based on the assurance of our lasting charter protecting the right of teachers to teach effectively. If these assurances are not valid, Mr. Chairman, either because of an alleged "casual" or "occasional" applicability of fair use, or because school people have been tricked into a short-time life for fair use, we are not bound by our agreement. We are certain that such abridgments were not intended by the House Judiciary Committee, and we hope and pray that this committee's report will plainly, clearly, and positively reject such unauthorized and unacceptable glosses upon the legislative history of section 107.

If there is to be a breach in the agreement as we understood it, the ad hoc committee's position then remains as stated previously before the committee in April 1965. We then testified in behalf of the retention of the "not for profit" concept and its application both to performance and restricted copying for educational nonprofit purposes.

For the committee's convenience, I attach as appendix 1 an excerpt of the pertinent portion of my earlier statement, which includes the draft of a proposed legislative section designed to meet education's needs.

II. INDIVIDUALIZED LEARNING

The second major issue is section 110(2) (D), which virtually bars individualized uses of newer classroom technology whose purpose is to encourage independent learning. This provision is highly deleterious and we urge its complete deletion.

Take, for example, the foreign language laboratory. Schools buy tape-recorded speech patterns for students to imitate. When a tape is used on a machine in a room where the student is located, this is permissible under section 110(2) (D). When a tape is used by means of a machine which transmits the sounds at the teacher's activation, this subsection is likewise inapplicable. But where the identical tape, Mr. Chairman, is used in the identical machine but is activated by the student, this is forbidden. Or if the student were ill and absent and tried to make up the lesson later on on the very same system, this is barred by this subsection.

Please bear in mind, Senator, that we are not here necessarily talking of copies. We are mostly using the very tape we bought and paid for, and for the very purpose for which it was purchased, to aid the student so that he may imitate and learn.

We respectfully suggest there is an internal inconsistency in the bill. If the teacher pushes the button, so to speak, the use of copyrighted material on such transmission is permissible; if a student does, it is not permissible.

Education is increasingly moving in the direction of individualized learning, less and less teacher oriented and more and more student oriented, toward self-directed learning activities instead of formal teaching activities.

Section 110(2) (D), Mr. Chairman, is a body blow to all of this, wholly unjustified on any responsible basis. With all the persuasiveness at our command, we plead with this committee to eliminate section 110(2) (D) from the bill.

III. CLOSED CIRCUIT TRANSMISSION

Our third point is the bill's failure to distinguish closed circuit from open circuit instructional broadcasts. Closed circuit transmission consists of limited, controlled, and nonpublic systems within the schools themselves. They are controlled or limited transmissions not available to the general public. We respectfuly submit that it is unrealistic and unreasonable to treat them just like open circuit broadcasts easily and openly available to the public at large.

We believe that closed circuit transmission should be under a separate and distinct section, and therefore propose in our appendix 3 language for a new subsection 110(1A).

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