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On July 20, 1964, draft bills were introduced into the Congress for discussion purposes, H.R.11974 by Representative Emanuel Celler (D., N.Y.) and S.3008 by Senator John McClellan (D., Ark.). As a result of further discussion, revised versions were introduced on February 4, 1965-H.R.4347 by Mr. Celler, chairman of the House Committee on the Judiciary, and S.1006 by Mr. McClellan, chairman of the Senate Subcommittee on Patents, Trade-marks, and Copyrights. Hearings have been held by the respective committees during spring and summer 1965, but no final action is expected before 1966.

There are over a dozen major issues still being discussed in the hearings and subjects for possible amendments in the bills. Some are highly technical, such as those affecting relationships between authors and publishers. Those which appear to involve library interests directly or indirectly are as follows:

Jukeboxes. At present, the only royalty is that paid at the time of sale of the phonograph recordings. The composers, musicians, and disc makers would like to get a fee every time a record is played in a jukebox. The makers and distributors of jukeboxes and the proprietors of places where jukeboxes are located claim they pay enough when they buy the record. This controversy is not without a trace of analogy for libraries. A representative of an authors' group has said that he believes that public libraries ought to pay royalties every time they lend a book. Some authors and publishers seem to feel that libraries ought to pay a royalty on every photocopy regardless of whether the material copied is copyrighted.

Compulsory license rate for phonograph records. Under present law, once a musical composition has been recorded, anyone else may record the composition upon paying a royalty at the compulsory rate of two cents per record. The new bill would raise the rate to three cents or one cent per minute of playing time.

Even if book publishers would settle for a rate of five cents, three cents, or even two cents for a whole book, it still would cost more in the majority of cases to reproduce a book than to buy it from the publisher.

Composers, music publishers, and the recording industry are fighting this one. Only the consumer, who will pay the bill, is not represented.

Community antenna television. When nearby mountains cut off television reception for a community deep in a valley, somebody puts a big receiving tower on the mountaintop and sends the signals by wire or other means down to individual homes. On the theory that this constitutes a broadcasting station of a sort, there are those who seek to collect further royalties from community antenna enterprises. This is a battle between those who object to what they call double taxation and those who simply see "gold in them thar hills" and seek to get it. The library concern is not immediate. But if we had to pay royalty on loans, we would certainly object to double royalty on interlibrary loans.

The manufacturing clause. This is a battle between authors and publishers on the one side and printers on the other. The printers would maintain an element of protective tariff in the copyright law by limiting the right of an American author to get copyright on any of his works printed abroad. Authors complain that this is an unfair limitation on them and on the free interchange of scholarship. The publishers, particularly the university presses, have joined the authors in denouncing this restriction.

Not for profit. The present law provides certain exemptions much desired by educators in the classroom and on educational broadcasting. This has been dropped in the new bills, but to some extent the matter is said to be covered under fair use. An Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision has carried on a very able defense of educational interests. The issues in closed-circuit television and educational broadcasting are quite complex. Nobody is seriously proposing that school people duplicate textbooks ad infinitum. On the other hand, it seems reasonable to suppose that a teacher ought to be able to enlarge and project a page of a book onto a screen for the whole class to see or duplicate a paragraph or two to be parsed or discussed on an examination.

The position of the educational groups was

well stated by Dean Fred S. Siebert of Michigan State University, representing the American Council on Education, in testimony before the House Judiciary Committee Subcommittee No. 3 on August 18, 1965. The following sections are particularly pertinent:

The American Council on Education is not opposed to the principle of royalty payments to copyright proprietors. Education probably contributes more royalties to copyright proprietors of literary works than any other identifiable group. However, the Council believes that certain limited uses of copyrighted materials in teaching and research are proper without the inconvenience of clearance for these limited uses.

Unfortunately, in its present form, H.R. 4347 has expanded the rights of the copyright proprietor beyond his rights in the present copy. right law so as to limit educational uses. In other words, the existing law is, in a number of aspects, more favorable to education than the proposed law.

The American Council on Education recommends that the interests of teaching and research should be protected by the following changes in H.R. 4347:

(1) A clarification of the statement on "fair use," section 107.

(2) Some provision which would permit a

limited amount of photocopying for instructional and research purposes. (3) An expanded right of transmission by educational radio and television of programs which are a part of the systematic instruction, including the right to make recordings of such programs.

(4) The elimination or reduction of the minimum statutory damages for innocent infringers.

Fair use. For the first time the term "fair use" is included in the proposed legislation, albeit in laconic fashion:

107. Limitations on exclusive rights: Fair use

Not withstanding the provision of Section 106, the fair use of a copyrighted work is not an infringement of copyright.

Because librarians felt that if fair use were spelled out in detail the terms would be too restrictive, and because the publishers and authors felt the terms would be too broadly permissive, and because everybody agrees that "fair" is a hard word to define, all attempts to write more were dropped. In the words of

the Register's reports, fair use "eludes precise definition." The education group is pressing hard for a much fuller and broader definition here.

At present fair use is a judicial doctrine, not embodied in the statute. This new recognition constitutes a great advance, and we are fighting to retain the ground we have gained. Actually this section does not appear to give libraries and their patrons any greater privileges than they have long exercised and enjoyed, but it does add an element of formal recognition of existing practice.

The real key to the situation is determining who has to prove what. It is basic in law that the defendant is considered innocent until proven guilty. Under this principle, in the case of an action by a complaining publisher or author against an accused infringer, the complainant would have to prove that the defendant was unfair. However, the committee of lawyers referred to at the beginning of this paper sought to have the burden of proof put upon the defendant to prove that he was fair or innocent. This proposal the Register did not accept, and the present judicial doctrine

remains.

Innocent or guilty or both? The complexities of many aspects of the copyright law are so great that expert lawyers do not always agree. Some of these complexities are rendered even more difficult to the layman by the use of terms such as "innocent infringer." This term applies to the person who is misled into infringing by lack of copyright notice. For anyone convicted of infringement there are two penalties, one for the profits he has made and one regardless of any profits, the so-called statutory damages. In cases where the infringer sustains the burden of proving 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 from a maximum of $20,000 to not less than $100. The Register is currently recommending that the penalty be limited to any profits received from the infringement.11

Duration of term of copyright. Under present legislation, copyright on published materi

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al runs for 28 years and may be renewed for another 28, making a total of 56 years. A study by the Register's office showed that 85 per cent of copyrights were not renewed for the second term. The authors now seek, and the draft bill embodies, a term of life of the author plus fifty years. In the case of an author writing in his twenties, this might amount to one hundred years or more in contrast to the present 28 years (85 per cent) or 56 years (renewal-15 per cent). This seems like a hefty increase. For little-known or forgotten authors, it would pose a difficult problem of determining when copyright expired. It would constitute one of the major reasons why any proposal for a copyright clearinghouse to collect royalties on photocopies would be so impracticable. unmanageable, unfair, and unrealistic.

One of the amusing arguments brought forth to sustain the "life plus 50 years" over the present 56-year renewal total is that nowa. days people live longer.

There is a sweet glow on the horizon for those libraries with large manuscript collections. Presently, the copyright on unpublished manuscript comes under the common law and lasts indefinitely. Under the new bill, such copyright would be defined by statute. It would run for the life of the author plus fifty years after his death. For anonymous works, protection would last for one hundred years from the creation of the work.

Present practice of libraries and scholars in publishing hitherto unpublished manuscripts has been an infringement. Of course, where possible they have secured permission from heirs. Where no heirs could be found, they have simply taken the chance that no heirs to copyright could come to prove their claims. This new provision is welcome indeed.

The computer and information retrieval. Authors and publishers are worried as they read glowing reports of the invention of little black boxes that can contain on the head of a pin, not only the Lord's Prayer, but all the literature of civilization, or as they hear vague promises of new computers that can digest books and then retrieve any given fact in less time than it takes to think what you want to know. Is the book about to become obsolete? To this I would answer a resound

ing "no." Will the cost of the little black boxes ever be comparable with the cost of books? Did the invention of printing eliminate handwriting? Did the mimeograph or multilith eliminate printing?

Twenty years ago the distinguished Vannevar Bush predicted and urged such great changes as little black boxes, miracle cameras, and super selecting and retrieval machines." The revolution has not yet come. The book is still the cheapest and handiest. The capital outlay required to develop the machines and to process the input still staggers the imagination. It is sobering indeed to read Ralph Shaw's comments on this subject.13 We agree with the Register that it is far too soon to try to develop blanket legislation covering information storage and retrieval systems.11

My present thinking is best summarized by the general patent counsel of the General Electric Company, Harry R. Mayers, in a statement to the Register on December 4, 1964: Provisions of the Bill can be interpreted as mak ing mere entry of a copyrighted work into a computer an infringement of the "copying" right. Computers, however, are capable of duplicating or enhancing many human thought processessuch as reading, analyzing, searching, etc. If performed by a human, these do not constitute an infringement.

The ALA Committee on Copyright Issues

The ALA Committee on Copyright Issues is a special committee established to watch for and defend the interests of libraries and their patrons. Together with the joint committee on fair use and the ad hoc committee of NEA groups, it comprises the only consumer representation. Every other group is seeking to get more and better royalties, longer and stronger rights.

The committee endeavors to be fair to all interests but foremost in defending the timehonored rights and practices of libraries and library patrons.

As guidelines for presentations to various

"As We May Think," Atlantic Monthly, vol. 176 (July 1945), p. 101-08.

""Form and Substance," Library Journal, vol. 90 (February 1, 1965), p. 567-71.

"Register of Copyrights, Copyright Law Revision, Part 6, p. 18.

groups, for the information of the Register of Copyrights, for testimony at House and Senate committee hearings, and as basic policy for all to know, the committee presented the following eight resolutions to the ALA Coun cil. Numbers 1-6 were approved at Chicago in January 1964 and 7 and 8 at St. Louis in July 1964.

1. That the principle of "fair use" be reaffirmed.

2. That the requirement of printing of notice and date of copyright be endorsed as absolutely essential to libraries and library

users.

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

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

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

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

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

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

Members of the committee are William S. Dix, Princeton University; Luther H. Evans, Columbia University; Miss Roy Land, University of Virginia; Harold L. Roth, East Orange, New Jersey, Public Library; and Charles F. Gosnell, New York University, chairman.

In conclusion

The American legislative process is slow and complex. It is full of compromises of special interests. What will result in copyright is still to be determined. It is clear that the Register of Copyrights and his staff have done an unusually thorough and workmanlike job of drafting. They have tried to be eminently fair to all concerned while recognizing that ultimately some major decisions may be vectors

of power rather than reason.

As the Register's Report says:

In a narrow view, all of the author's exclusive rights translate into money: whether he should be paid for a particular use or whether it should be free. But it would be a serious mistake to think of these issues solely in terms of who has to pay and how much. The legislative problem is to insure that the copyright law provides the necessary monetary incentive to write, produce, publish, and disseminate creative works, while at the same time guarding against the danger that these works will not be disseminated and used as fully as they should because of copy. right restrictions. The problem of balancing existing interests is delicate enough, but the bill must do something even more difficult. It must try to foresee and take account of changes in the forms of use and the relative importance of the competing interests in the years to come, and it must attempt to balance them fairly in a way that carries out the basic constitutional purpose of the copyright law.

We are entirely sympathetic with the aims of nonprofit users, such as teachers, librarians, and educational broadcasters, who seek to advance learning and culture by bringing the works of authors to students, scholars, and the general public. Their use of new devices for this purpose should be encouraged. It has already become clear, however, that the unrestrained use of photocopying, recording, and other devices for the reproduction of authors' works, going far beyond the recognized limits of "fair use," may severely curtail the copyright owner's market for copies of his work. Likewise, it is becoming increasingly apparent that the transmission of works by nonprofit broadcasting, linked computers, and other new media of communication may soon be among the most important means of disseminating them, and will be capable of reaching vast audiences. Even when these new media are not operated for profit, they may be expected to displace the demand for authors' works by other users from whom copyright owners derive compensation.15

The bills as they stand are essentially good and fair. We advocate some changes, while we would strongly oppose amendments that others might urge.

As soon as the third, and we hope final, draft bill is available, further analysis and reports will be made.

16 Ibid., p. 13.

THE COPYRIGHT GRAB BAG, II-A NEW KIND OF LEND-LEASE

(By Charles F. Gosnell)

A year and a half ago the writer reported on the current state of the move to rewrite the copyright law. (ALA Bulletin, January 1966). Since then several drafts of the copyright bill have been issued, together with a substantial report by the House Committee on the Judiciary. It is now appropriate to assess the current trend, and to issue a warning accordingly.

THE NEW PHILOSOPHY

We are on the threshold of a basic change in the fundamental philosophy of copyright, which may have very heavy impact on the financial structure of our American free library system 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, keep it permanently, lend it, sell it, read it, re-read 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!

Authors and particularly publishers are now seeking the right to control use of their written word by leasing of 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 for the ways in which it may be used.

They seek to impose upon us librarians the double burden of continuous accounting 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 of Skytop, Penna., on May 20, 1964.

A recent article in The Times Literary Supplement1 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." A brief news item on this subject appeared in the Library Journal for January 1, 1967, p. 44.

This philosophy of license for use is stated in terms of modern technology 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."

HISTORICAL NOTE

For many years the area of controversy between the producers of copyrighted material (authors and publishers) and users (readers, scholars, researchers, students and the librarians serving them) was principally in the area of “fair use." Fair use was conceived as essentially the right to take notes, by pencil, pen, typewriter, or photocamera, or to make whole copies when originals were not obtainable through usual channels. The history of attempts to deal with this problem were sketched in the first "Grab-bag" paper (ALA Bulletin, January 1966, p. 51-55). The Joint Libraries Committee on Fair Use is still active. The ALA has its own Committee on Copyright Issues, of which the writer is chairman. These committees have acted as watch-dogs and liason with other groups. Now they are sounding the alarm.

In February 1965 companion bills, H.R. 4347 by Mr. Celler, and S. 1006 by Mr. McClellan, were introduced into the Congress for discussion purposes. In October 1966 these bills were reissued in substantially amended form. With a few technical changes they have been introduced into the 90th Congress : H.R. 2512 by Mr. Celler, 1967, January 17

S. 597, by Mr. McClellan, 1967 January 23 (19)

1 Edmund Penning-Rowsell, "Sale or Return", The Times Literary Supplement, 1967, March 9, pp. 185-86.

Laurence B. Heilprin, "Technology and the Future of the Copyright Principle", Phi Delta Kappan, January 1967, vol. 48, No. 5, pp. 220–25.

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