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On July 20, 1964, draft bills were intro Composers, music publishers, and the reduced into the Congress for discussion pur. cording industry are fighting this one. Only poses, H.R.11974 by Representative Emanuel the consumer, who will pay the bill, is not Celler (D., N.Y.) and S.3008 by Senator John represented. McClellan (D., Ark.). As a result of further Community antenna television. When neardiscussion, revised versions were introduced by mountains cut off television reception for a on February 4, 1965—H.R.4347 by Mr. Cell. community deep in a valley, somebody puts a er, chairman of the House Committee on the big receiving tower on the mountaintop and Judiciary, and S.1006 by Mr. McClellan, sends the signals by wire or other means chairman of the Senate Subcommittee on Pat down to individual homes. On the theory that ents, Trade-marks, and Copyrights. Hearings this constitutes a broadcasting station of a have been held by the respective committees sort, there are those who seek to collect fur. during spring and summer 1965, but no final ther royalties from community antenna enteraction is expected before 1966.
prises. This is a battle between those who obThere are over a dozen major issues still ject to what they call double taxation and being discussed in the hearings and subjects those who simply see “gold in them thar for possible amendments in the bills. Some hills” and seek to get it. The library concern are highly technical, such as those affecting is not immediate. But if we had to pay royalty relationships between authors and publishers. on loans, we would certainly object to double Those which appear to involve library inter- royalty on interlibrary loans. ests directly or indirectly are as follows: The manufacturing clause. This is a battle
between authors and publishers on the one Jukeboxes. At present, the only royalty is side and printers on the other. The printers that paid at the time of sale of the phono- would maintain an element of protective tariff graph recordings. The composers, musicians, in the copyright law by limiting the right of and disc makers would like to get a fee every an American author to get copyright on any time a record is played in a jukebox. The of his works printed abroad. Authors commakers and distributors of jukeboxes and the plain that this is an unfair limitation on them proprietors of places where jukeboxes are lo. and the free interchange of scholarship. cated claim they pay enough when they buy The publishers, particularly the university the record. This controversy is not without a presses, have joined the authors in denounctrace of analogy for libraries. A representa ing this restriction. tive of an authors' group has said that he be Not for profit. The present law provides lieves that public libraries ought to pay royal- certain exemptions much desired by educators ties every time they lend a book. Some au in the classroom and on educational broadthors and publishers seem to feel that casting. This has been dropped in the new libraries ought to pay a royalty on every pho- bills, but to some extent the matter is said to tocopy regardless of whether the material be covered under fair use. An Ad Hoc Com. copied is copyrighted.
mittee of Educational Institutions and OrgaCompulsory license rate for phonograph nizations on Copyright Law Revision has car. records. Under present law, once a musical ried on a very able defense of educational incomposition has been recorded, anyone else terests. The issues in closed-circuit television may record the composition upon paying a and educational broadcasting are quite comroyalty at the compulsory rate of two cents plex. Nobody is seriously proposing that per record. The new bill would raise the rate school people duplicate textbooks ad to three cents or one cent per minute of play- infinitum. On the other hand, it seems reason. ing time.
able to suppose that a teacher ought to be Even if book publishers would settle for a able to enlarge and project a page of a book rate of five cents, three cents, or even two onto a screen for the whole class to see or ducents for a whole book, it still would cost plicate a paragraph or two to be parsed or more in the majority of cases to reproduce a discussed on an examination. book than to buy it from the publisher.
The position of the educational groups was
well stated by Dean Fred S. Siebert of Michi. the Register's reports, fair use "eludes precise gan State University, representing the Ameri- definition.” The education group is pressing can Council on Education, in testimony be. hard for a much fuller and broader definition fore the House Judiciary Committee Subcom. here. mittee No. 3 on August 18, 1965. The follow- At present fair use is a judicial doctrine, ing sections are particularly pertinent:
not embodied in the statute. This new recogThe American Council on Education is not op
nition constitutes a great advance, and we are posed to the principle of royalty payments to
fighting to retain the ground we have gained. copyright proprietors. Education probably con
Actually this section does not appear to give tributes more royalties to copyright proprietors
libraries and their patrons any greater priviof literary works than any other identifiable leges than they have long exercised and en. group. However, the Council believes that cer. joyed, but it does add an element of formal tain limited uses of copyrighted materials in recognition of existing practice. teaching and research are proper without the The real key to the situation is determining inconvenience of clearance for these limited uses.
who has to prove what. It is basic in law that Unfortunately, in its present form, H.R. 4347 has expanded the rights of the copyright pro
the defendant is considered innocent until prietor beyond his rights in the present copy.
proven guilty. Under this principle, in the right law so as to limit educational uses. In case of an action by a complaining publisher other words, the existing law is, in a number of or author against an accused infringer, the aspects, more favorable to education than the complainant would have to prove that the deproposed law.
fendant was unfair. However, the committee The American Council on Education recom- of lawyers referred to at the beginning of this mends that the interests of teaching and re
paper sought to have the burden of proof put search should be protected by the following
upon the defendant to prove that he was fair changes in H.R. 4347:
or innocent. This proposal the Register did (1) A clarification of the statement on "fair
not accept, and the present judicial doctrine use," section 107.
remains. (2) Some provision which would permit a limited amount of photocopying for in
Innocent or guilty or both? The complexistructional and research purposes.
ties of many aspects of the copyright law are (3) An expanded right of transmission by so great that expert lawyers do not always
educational radio and television of pro- agree. Some of these complexities are rendgrams which are a part of the systematic ered even more difficult to the layman by the instruction, including the right to make use of terms such as “innocent infringer." recordings of such programs.
This term applies to the person who is misled (4) The elimination or reduction of the mini
into infringing by lack of copyright notice. mum statutory damages for innocent in
For anyone convicted of infringement there fringers.
are two penalties, one for the profits he has Fair use. For the first time the term "fair
made and one regardless of any profits, the use” is included in the proposed legislation, so-called statutory damages. In cases where albeit in laconic fashion:
the infringer sustains the burden of proving
that he was not aware and had no reason to 107. Limitations on exclusive rights: Fair use
believe that his acts constituted an infringeNot withstanding the provision of Section 106,
ment of copyright, the court in its discretion the fair use of a copyrighted work is not an infringement of copyright.
may reduce the award of statutory damages
from a maximum of $20,000 to not less than Because librarians felt that if fair use were $100. The Register is currently recommending spelled out in detail the terms would be too that the penalty be limited to any profits rerestrictive, and because the publishers and au- ceived from the infringement." thors felt the terms would be too broadly per
Duration of term of copyright. Under presmissive, and because everybody agrees that ent legislation, copyright on published materi. “fair” is a hard word to define, all attempts to write more were dropped. In the words of "Ibid., p. 108.
79-397 0467-pt. 2.-—-19
al runs for 28 years and may be renewed for ing “no.” Will the cost of the little black another 28, making a total of 56 years. A boxes ever be comparable with the cost of study by the Register's office showed that 85 books? Did the invention of printing elimiper cent of copyrights were not renewed for nate handwriting? Did the mimeograph or the second term. The authors now seek, and multilith eliminate printing? the draft bill embodies, a term of life of the Twenty years ago the distinguished Vanneauthor plus fifty years. In the case of an au- var Bush predicted and urged such great thor writing in his twenties, this might changes as little black boxes, miracle cameras, amount to one hundred years or more in con- and super selecting and retrieval machines. ". trast to the present 28 years (85 per cent) or The revolution has not yet come. The book is 56 years (renewal--15 per cent). This seems still the cheapest and handiest. The capital like a hefty increase. For little-known or for. outlay required to develop the machines and gotten authors, it would pose a difficult prob- to process the input still staggers the imaginalem of determining when copyright expired. It tion. It is sobering indeed to read Ralph would constitute one of the major reasons why Shaw's comments on this subject." We agree any proposal for a copyright clearinghouse to with the Register that it is far too soon to try collect royalties on photocopies would be so to develop blanket legislation covering infor. impracticable, unmanageable, unfair, and un- mation storage and retrieval systems." realistic.
My present thinking is best summarized by One of the amusing arguments brought the general patent counsel of the General Elecforth to sustain the “life plus 50 years" over tric Company, Harry R. Mayers, in a statement the present 56-year renewal total is that nowa. to the Register on December 4, 1961: days people live longer.
Provisions of the Bill can be interpreted as mak. There is a sweet glow on the horizon for
ing mere entry of a copyrighted work into a comthose libraries with large manuscript collec- puter an infringement of the "copying" right. tions. Presently, the copyright on unpublished Computers, however, are capable of duplicating manuscript comes under the common law and or enhancing many human thought processeslasts indefinitely. Under the new bill, such such as reading, analyzing, searching, etc. If copyright would be defined by statute. It would performed by a human, these do not constitute run for the life of the author plus fifty years
an infringement. after his death. For anonymous works, pro
The ALA Com.nittee on Copyright Issues tection would last for one hundred years from the creation of the work.
The ALA Committee on Copyright Issues is Present practice of libraries and scholars in a special committee established to watch for publishing hitherto unpublished manuscripts and defend the interests of libraries and their has been an infringement. Of course, where patrons. Together with the joint committee possible they have secured permission from
on fair use and the ad hoc committee of heirs. Where no heirs could be found, they NEA groups, it comprises the only consumer have simply taken the chance that no heirs to representation. Every other group is seeking copyright could come to prove their claims.
to get more and better royalties, longer and This new provision is welcome indeed. stronger rights. The computer and information retrieval.
The committee endeavors to be fair to all Authors and publishers are worried as they interests but foremost in defending the timeread glowing reports of the invention of little honored rights and practices of libraries and black boxes that can contain on the head of a library patrons. pin, not only the Lord's Prayer, but all the
As guidelines for presentations to various literature of civilization, or as they hear vague promises of new computers that can 13 "As We May Think," Atlantic Monthly, vol. 176 digest books and then retrieve any given fact (July 1945), p. 101-08. in less time than it takes to think what you
***Form and Substance," Library Journal, vol. 90
(February 1, 1965), p. 567-71. want to know. Is the book about to become
** Register of Copyrights, Copyright Law Revision, obsolete? To this I would answer a resound- Part 6, p. 18.
groups, for the information of the Register of of power rather than reason. Copyrights, for testimony at House and Sen. As the Register's Report says: ate committee hearings, and as basic policy In a narrow view, all of the author's exclusive for all to know, the committee presented the rights translate into money: whether he should following eight resolutions to the ALA Coun
be paid for a particular use or whether it should cil. Numbers 1-6 were approved at Chicago be free. But it would be a serious mistake to in January 1964 and 7 and 8 at St. Louis in think of these issues solely in terms of who has July 1964.
to pay and how much. The legislative problem
is to insure that the copyright law provides the 1. That the principle of "fair use" be reaf
necessary monetary incentive to write, produce, firmed.
publish, and disseminate creative works, while 2. That the requirement of printing of notice at the same time guarding against the danger
and date of copyright be endorsed as ab- that these works will not be disseminated and solutely essential to libraries and library used as fully as they should because of copy
right restrictions. The problem of balancing ex3. That proposals to make the duration of
isting interests is delicate enough, but the bill copyrights be for a fixed term, both for must do something even more difficult. It must published and unpublished works, be en- try to foresee and take account of changes in dorsed.
the forms of use and the relative importance of 4. That the principle that libraries be ex- the competing interests in the years to come,
empted from import restrictions and pen- and it must attempt to balance them fairly in a alties be reaffirmed.
way that carries out the basic constitutional pur5. That the principle that government mate- pose of the copyright law.
rial should not be subject to copyright be We are entirely sympathetic with the aims of reaffirmed.
nonprofit users, such as teachers, librarians, and 6. That proposals to have copyright subsist in educational broadcasters, who seek to advance
the Federal Government after its expiration learning and culture by bringing the works of in the hands of the copyright owner be op- authors to students, scholars, and the general posed.
public. Their use of new devices for this pur. 7. That the requirement of American manu. pose should be encouraged. It has already be.
factore as a qualification for securing copy- come clear, however, that the unrestrained use right of works by American authors be op- of photocopying, recording, and other devices posed.
for the reproduction of authors' works, go8. That the “not for profit" principle as now ing far beyond the recognized limits of "fair
embodied in the copyright law be en- use," may severely curtail the copyright owner's dorsed.
market for copies of his work. Likewise, it is Members of the committee are William S.
becoming increasingly apparent that the trans
mission of works by nonprofit broadcasting, Dix, Princeton University; Luther H. Evans,
linked computers, and other new media of comColumbia University; Miss Roy Land, Uni. munication may soon be among the most imversity of Virginia; Harold L. Roth, East Or. portant means of disseminating them, and will ange, New Jersey, Public Library; and be capable of reaching vast audiences. Even Charles F. Gosnell, New York University, when these new media are not operated for chairman.
profit, they may be expected to displace the
demand for authors' works by other users from In conclusion
whom copyright owners derive compensation.15 The American legislative process is slow
The bills as they stand are essentially good and complex. It is full of compromises of spe.
and fair. We advocate some changes, while we cial interests. What will result in copyright is
would strongly oppose amendments that still to be determined. It is clear that the Reg.
others might urge. ister of Copyrights and his staff have done an As soon as the third, and we hope final, unusually thorough and workmanlike job of. draft bill is available, further analysis and redrafting. They have tried to be eminently fair ports will be made. to all concerned while recognizing that ultimately some major decisions may be vectors * Ibid., p. 13.
THE COPYRIGHT GBAB 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 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." 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
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.