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goes on, "any similar device, machine, or process" (Section 110 (2)D—my underline).
The problems which my colleagues and I are trying to solve range in their interest and applicability from the purest of theoretical investigations to the most immediately applicable design and engineering work. In nearly every case there is strong interest on the part of various branches of the federal government and of the public at large in the solution of the problems we are attacking.
The Library of Congress has studied various approaches to automation. The Department of Health, Education and Welfare is sponsoring, through its Office of Education, numerous studies of computer-aided teaching and other technological aids to instruction. The Congress itself, the Bureau of the Budget, the Vice-President of the United States, both now and as senator, the Committee on Scientific and Technical Information (COSATI) of the Federal Council on Science and Technology, various branches of the Department of Defense, and numerous other bodies have expressed deep concern over the information handling problems of the federal government in every sphere of its activities, and they are seeking solutions through major programs now at varying stages from the operational through the experimental to the projected. I am sure that the computing profession and the computing industry share with the publishing industry a deep concern for the fruition of these efforts.
In a sense, however, we are the victims of our own rosy predictions. The proposed bill drastically limits traditional exemptions although there is no clear and present danger of infringements, which are possible now only on the most limited and commercially uninteresting scale; in so doing, it threatens to cripple severely the very research and the very teaching necessary in order that the "information storage and retrieval system or any similar device, machine, or process” materialize fully, be understood, and be controllable.
In closing, may I address one remark to the question of copyright of programs, to cover a point which I think has been ignored in previous testimony. The statement by the Interuniversity Communications Council (EDUCOM), with which I am in agreement, objects to "the argument ... in support of ... copyright for computer programs covering the processes, that infringement could be avoided simply by changing in some degree the sequence of steps ... of the program” and also rejects the corollary that “On this view, the presence of a copyright would merely compel an outsider to do some slight work of his own in order to stay out of trouble". The rejection of these views should include taking notice of the disastrous consequences that encouraging minor variations to "stay out of trouble" would have on standardization in electronic data processing, which is a subject of major interest to many members of both the Legislative and the Executive branches. Moreover, whatever one's views of the merits of standardization may be, the deliberate introduction of hosts of minor variations into a profession struggling to keep its head barely above a swarm of program “bugs” (or acci. dental and unwanted minor variations !) can only be viewed as a very grim practical joke on every taxpayer.
Senator BURDICK. Mr. Madden?
STATEMENT OF DR. CHARLES F. GOSNELL, CHAIRMAN, COMMITTEE ON COPYRIGHT ISSUES, AMERICAN LIBRARY ASSOCIATION
Mr. GOSNELL. Mr. Chairman, my name is Charles F. Gosnell. I am director of the libraries of New York University (NYU), and until recently was assistant commissioner of education in New York State, and State librarian. I am here today as chairman of the Committee on Copyright Issues of the American Library Association, a professional nonprofit organization of some 35,000 members, which has been working for nearly a century to advance the development of school, college, university, research, State, and public libraries, as essential founda
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tions for a sound educational program for the Nation, and as basic institutions in the American way of life.
It was my honor to be scheduled as a witness at the hearing held by this committee on August 18, 1965. Because the Senate was heavily engaged on that day, it was not possible for me to testify, and answer your questions. I did, however, leave a statement which you graciously printed in the record.
At this time, I should like to comment particularly on substantial changes made in the amended version of S. 1006 of the first session of the 89th Congress, and which are now contained in S. 597, at present under consideration by this committee. I shall point out some startling changes implied in the fundamental philosophy of copyright. As a consequence, we should like to propose some amendments to S. 597, which we believe will help restore balance to what now constitutes a serious threat to the future of our library services for readers and researchers throughout the Nation.
First, I must compliment the committee on many aspects of the bill, which, if enacted, will be great improvements over the present statute. I know that the Register of Copyrights and his staff have worked with you, and they deserve the thanks of all of us for their keen understanding and long patience in dealing with this important problem.
One of the great improvements is that you are establishing one system of copyright under the Federal statute, which will include both published and
unpublished works. We welcome also the greater clarity and precision in many parts of the bill.
Now for a review in more detail: The American Library Association in 1964 expresed by formal resolution its position on eight major issues. There are listed on page 138 of your 1965 hearings on S. 1006, and a copy is appended to this testimony so I shall not repeat them at this time.
We are fully in accord on four of these, where provisions in the present law are retained in the bill, specifically; resolution No. 2, printing of notice and date of copyright; No. 4, exemption from import restrictions; No. 5, noncopyright of Government-created material; and No. 6, no reversion of copyright to the Federal Government. On the requirements of American manufacture, resolution No. 7, a reasonable compromise has been presented. The remaining three issues, however, are of major concern to us: Nos. 1, 3, and 8.
Of utmost importance to us is the issue of fair use, resolution No. 1. We are pleased that this ancient and widely accepted doctrine of fair use is now to be incorporated into the statute, but we are profoundly disturbed by the restrictions with which it seems to be hedged, both in the law and in the interpretive report issued by the House Committee on the Judiciary (Copyright Law Revision, 90th Cong., first sess. H. Rept. No. 83). We hope that your committee will issue a report which will clarify some of the points and remove the objectionable passages. I shall comment on this later, in detail. Certainly, various studies have shown that publishers are not suffering from fair use.
On the matter of duration, resolution No. 3, we will be seriously affected in two ways. Duration in the bill is for an indefinite term-life of the author plus 50 years—and for an extraordinary increase in the number of years. In effect, for 85 percent of copyrights under the present system it will multiply the duration by 3 or 4 times. For the 15 per
cent which are now renewed, according to the Copyright Office, the effect will be to double the term for many.
We are seriously concerned that the philosophy embodied in the phrase "not for profit,” resolution No. 8, has been thrown overboard altogether. This is a very serious matter. We heartily endorse the statements of such education groups as the Ad Hoc Committee on Copyright Law Revision; and the Interuniversity Communications Council, Educom, on this issue.
It appears to us that we are faced with a basic change in the fundamental philosophy and purpose of copyright, and that this will have a very heavy impact on the financial structure of the free library system of the United States and its millions of users.
Copyright in the past and present has been the right to make a profit by producing and selling copies of a literary or art work in quantity. Once the individual or the library bought a copy, he was free to bind it, rebind it, take notes from it, count the words in it, look at it through a magnifying glass or microscope, and apply the facts or fancies contained in its text as he chose. Once you bought a book you really owned it.
We librarians do not want to go into the publishing business. We insist
upon the right to bind a book if we want, and lots of books come out now with a copyright notice that says you do not have the right to bind it or rebind it. There are lots of restrictions which the publishers put on. They do not mean anything under the present law, but they may mean something under the revised statute.
Authors and publishers are now seeking the right to control use of their written words by leasing or licensing, and limited sale. They seek recompense not so much for the copies sold, but payment for the number of times the copy sold may later be used and the ways in which it may be used. They
seek to impose upon libraries the double burden of continuous acounting for uses of what we may have acquired, plus continuous charges as the material is used by readers.
This idea is nothing new, the authors and publishers tell us it is practiced in Denmark and Sweden now. It was discussed at a meeting of the American Book Publishers Council at Skytop, Pa., on May 20, 1964.
A recent article in the Times Literary Supplement reports on efforts in Britain to get Parliament to approve "a scheme for an extra financial return to authors and *** publishers, on books bought and loaned by public libraries." Sooner or later, the proponents of this system admit, the taxpayer will be required to provide a substantial subsidy to the authors and publishers. A brief news item on this subject appeared in the Library Journal of New York for January 1, 1967, page 44.
This philosophy of license for use is stated in terms of modern technology, the computer, and so forth, by Laurence Heilprin, who writes:
A copyrighted work is essentially a message. A copyright is a legal privilege to attempt to control part of a communication system. * * It is the right to derive economic benefit from the market value of a message.”
1 Edmund Penning-Rowsell, “Sale or Return," the Times Literary Supplement, 1967, March 9, pp. 185–186.
Laurence B. Hellprin, “Technology and the Future of the Copyright Principle,” Phi Delta Kappa, January 1967, vol. 48, No. 5, pp. 220-225.
If that is not a new interpretation of copyright, I do not know one.
Federal assistance in public, school, and college libraries is bringing about a revolution in cooperation among libraries. They are growing with great rapidity, and at the same time they are sharing their resources with each other to a marvelous extent. Library users of all ages are benefiting. The expanding needs of readers and researchers are being met on higher and higher levels. Sales of books and other materials to libraries are booming. The next step, now beginning to be taken, is the development of communications networks. Six years ago I helped to plan such a network, which has just been started by the New York State Library.
A year ago, I served briefly as a consultant to the State Library in Hawaii, which has already established such a State network. I believe it is functioning very well and not cutting in on the sale of books.
All this seems to be perfectly lawful now, but would be seriously threatened by the new legislation. Some authors and publishers want to collect a tax or royalty on the benefits of cooperation. Some are opposed to cooperation in the mistaken belief that if libraries do not cooperate, they will somehow have to find more money to buy more books.
Some of the restrictions on library networks in the present bill are written in the language of radio and television broadcasting, an entirely different process. I believe in the attempts of some of those interests to shoot down the community antenna, they may destroy an innocent bystander, the library and educational information network.
Reference has been made this morning by others to several sections in the bill. It seems perfectly clear to me that the 100-mile limitation was designed for community antenna rather than for library networks, but somehow, the language moved over.
The Interuniversity Communications Council, known as Educom, has prepared a comprehensive statement on this subject, which the ALA Committee on Copyright Issues endorses completely. I quote a brief section, pages 10 and 11, from the report which was approved by Educom on March 16, 1967, which was not quoted by the Educom people this morning:
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 House Report No. 83, pages 38 and 39.)
This 180-degree turn of position is, in our view, not defensible. The indeterminate "fair use" provision is not an acceptable substitute for the clearcut and reasonable delimited exemption that the situation requires.
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 computer-involving its translation into machinereadable 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 Revised 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 copyrighted works.
To remedy this difficulty, the following amendments are urged for your consideration and action.
We have come up with some specific recommendations, Mr. Chairman. I have summarized them and put them in the hands of the subcommittee, and I will refer to some of them briefly.
We propose in section 110 a subsection to be added to the present sections 1 and 2, which we will for the moment call 1-A:
Performance or display of a work in the course of a closed transmission by a governmental body or other nonprofit organization if such performance or display is in the course of the teaching or research activities of a nonprofit educational institution or library.
We believe that this would cover the needs of libraries, and I believe it would cover the needs of the Educom, and I submit that to them for their consideration also.
I recommend also that sections A, B, C, and D, which were referred to, of section 110, be dropped out entirely.
In the interest of the users of libraries, we are deeply concerned also over what seems to have been an oversight in amending the bill. Apparently, due to the shift from protection under the "not-for-profit principle, classroom teachers have given a special subsection in the bill (504(c) (2)) permitting the court to remit 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 believe the same benefit should be available for librarians in nonprofit libraries, and urge strongly that they be included in this provision, and I have submitted prepared wording for this. We think librarians and teachers should be in the same boat.
In the matter of duration, we urge a return to the present system of 28 plus 28 years, over three times as long as a patent.
The duration of the term of copyright has had continuous growth over the years, outstripping patents by a large proportion, according to Mr. Verner Clapp, president of the Council on Library Resources, in an unpublished talk before the Ad Hoc Committee of Educational Organizations on Copyright Law Revision at a meeting in Washington on March 1. This withholding from the public domain is even less tolerable when it is accompanied by tightened restrictions on "fair use." Hitherto, if we had the privilege of making fair use, the matter of extent of domain was not a primary consideration. But if fair use is to be so restricted and then so much more is to be put under the restriction, we certainly object.