and private negotiation have not been exhausted. They have barely been tried. Publishers are currently working out modes of action with the Office of Education.

We hope that this will be a prototype for negotiations with any and all others who seek to use copyrighted material.

We believe that this method of negotiation will produce required computer access to copyrighted materials at reasonable fees for all

users.

S. 597 makes no reference to computers, but the committee report which accompanied H.R. 4347 made specific applications of the language of the bill to computer usage. The report specifically recommended that the Register of Copyrights bring together in conferences the parties of interest in this usage after passage of the bill to work out their problems with a view to further legislation if that should prove necessary.

Book publishers are prepared to go further. They would endorse provision in the bill or in your committee report for a study panel required to report within a fixed period of time to the proper committees of the Congress on the state of the computer art then prevailing, the needs for use of copyrighted materials and what legislation, if any, is needed. The requirements of computer usage are at present so little known that legislation now could be only a stab in the dark. But the art of computer use is growing so rapidly that a continuing study is essential.

Mr. Chairman, I appreciate the opportunity of appearing here to present the point of view of the American Textbook Publishers Institute.

Senator BURDICK. Thank you, Counsel.

Am I correct in believing that the language in the House bill will be sufficient for the time?

Mrs. LINDEN. Yes, Senator Burdick, because at this time the House bill merely reiterates the concept of copyright and private proprietary rights in the framework of information storage and retrieval, and the pieces of hardware known as computers are not specifically referred to, nor should they be, just as the first copyright bill did not refer to movable type as such.

Senator BURDICK. Then you agree with the House bill?

Mrs. LINDEN. I do.

Senator BURDICK. And it is your thesis that it might be premature to legislate further at this time?!

Mrs. LINDEN. Yes, it is, because legislation usually is undertaken after mankind has had experience in a certain field and problems have arisen which require regulation and policing. We do not know quite yet what will be commercially feasible and what material will be used and the best manner in which it will be used. We can hardly regulate and police what we are not yet certain of.

In other words, we all agree, and this is more than merely an amorphous feeling, that computer technology is real, it exists, and is extremely useful and fascinating and worthwhile. The question as to how soon various uses will be made have not yet been answered. As recently as last week I spoke to representatives, executives of two of our major computer manufacturers. I used this analogy, and if you will bear with me, I would like to use it again. I have used it actually

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twice before, not only with them. I said, "Look, let us say we own a restaurant. Our catalog of copyrighted material is our menu. You come in, you are a computer user and manufacturer, or both. We are the restaurant owner and you want to eat. We say, 'Sure, we have a restaurant, here is our menu.' We say, 'What do you want to eat?'

Well, he does not know yet. Until he knows what he wants to eat, until he tells us what he is ready to pay for, how much he is willing to spend on eating, we can respond only very piously that we believe that it is a matter of public policy that all men who are hungry ought to be allowed to eat and that all restaurants ought to be available to feed them. But we cannot feed them until we know what they want. There can be no breakdown in our relationship until they tell us what they want and until and unless we refuse to supply the demand.

In other words, it is premature for either side to be accusatory or to predict the failure either of negotiations or of responsibility in their relationship. It is something that is in the offing and it will have to be handled.

I believe that just as in our society, in our economy, we have been resourceful enough to adapt to new technology in the marketplace, we will adapt to these pieces of hardware also; that after a study based on actual experience is in the hands of your committee, you would then be able to evaluate whether legislation or governmental interference of any kind is necessary, or whether abrasions of the marketplace have functioned appropriately again in our society.

Senator BURDICK I am somewhat impressed with your statement here that you are willing to continue the discussion with the people who might be using your materials after this bill becomes law

Mrs. LINDEN. Well, Senator Burdick, these are not mere pious. statements. They are not even altruistic. They are practical. These people are our only customers. We deal with the educational community. They are the ones we sell our textbooks to; they are the ones who buy our reference books. It is not as though one morning in 1975 or 1980 the book printing business will stop entirely. There will be a new product line, computer input, but we will still be dealing with the same customers.

The likelihood of our refusing to deal with them is very, very remote indeed. I do think that historically authors and publishers have shown suficient responsibility, with the pressure and push of the economic marketplace, so that schools have gotten books. Every now and then there is a breakdown in the problem and there is a slight collision, and there is in every industry. But somwhow, they wear each other down and it works out.

I urge, certainly that at this juncture there has not been such a crisis, a breakdown in the needs of society to get copyrighted material that requires active legislation. In fact, I urge to the contrary, that it would be dangerous. It would fix positions, jell in the law, something that the law is not ready for, that society and the educational community and publishers and authors cannot take a stand on. They will all go out on a limb, no matter what we all say we want at this moment. We cannot be sure.

Senator BURDICK. Senator McClellan?

Senator MCCLELLAN. I wish to compliment the lady for her presentation. I think it is very informative.

As I understand it, you feel that it is too early for us to undertake to legislate because we would not know what we are legislating about? You believe, that your two interests are so common and you have such a mutual anticipation of future relationships and profits that it will be almost compelling that you work out your own solution, is that correct?

Mrs. LINDEN. That is exactly correct.

Senator MCCLELLAN. Let us hope so. We would much rather have you do it than have us do it.

Senator BURDICK. Senator Fong.

Senator FONG. Am I correct that in the House bill there are provisions dealing with copyright material as far as computer use is concerned?

Mrs. LINDEN. Well, in the sense that the uses that are protected by copyright are protected under the proposed bill. Whether such uses are via computerized system or printing presses or Xerox machines-in other words, the law as proposed does not treat one piece of hardware as though it required very special treatment. The law deals conceptually with the idea that the author has certain rights. Whether an information network acts as a publisher or a reprint publishing house, the author's rights are the same.

Senator FONG. Using your analogy of the customer walking into a restaurant, you say you cannot give him what he wants until he tells you what he wants, does this provision charge the customer when he walks into the restaurant and picks up the menu?

Mrs. LINDEN. I am sorry, does it change?

Senator FONG. You say you do not know enough of the situation to really legislate on it. Yet it seems to me that the analogy that you presented to us of a man walking into the restaurant and you are not able to give him what he wants to eat until he knows what he wants to eat-it seems to me that you are charging him for walking in the restaurant.

Mrs. LINDEN. We are not charging him anything, because until he orders something, he does not have to pay.

Senator FONG. When the man uses the computer and puts copyrighted material into the computer he has not used it yet?

Mrs. LINDEN. He is where he is using something. Actually, what happens when you put material into a computer, educational material, which I am most familiar with, a reading textbook, a third-grade reader no one sits down and reads it cover to cover. A chemistry textbook is not read cover to cover. You use snips and pieces at a time. That is the way it is used.

A computer output, in our lifetimes at least, is most unlikely to give to a user entire reference books or entire works. In fact, that would defeat the very purpose of the technology. It gives us little pieces and bits.

If there is no system of licensing or controlling the input, the little bits and pieces would not be sufficiently subject to control of the author or publisher to amount to very much. In other words, one cannot say that just because the restaurant owner bought a cow, until he cuts off pieces, the farmer is not hurt yet. There is a cow available in the restaurant. The computer user does not go out and buy a book because he can go and knows that he can get his slice via the computer

network. He does not have to buy the whole cow. The farmer is hardly comforted by that. Authors and publishers find little comfort. in this kind of argument.

Senator FONG. I think your point is well taken. Thank you.

Senator BURDICK. Let us hope that no one starves to death in this cafe. Thank you very much.

Mrs. LINDEN. Thank you.

Senator BURDICK. The next witness is Mrs. Gladys Barnette, of Learning Through Seeing, Inc., to be introduced by Congressman Reinecke, of California.

STATEMENT OF HON. ED REINECKE, A REPRESENTATIVE IN CONGRESS FROM THE 27th CONGRESSIONAL DISTRICT OF CALIFORNIA

Mr. REINECKE. Good afternoon, Mr. Chairman, gentlemen.

It is a pleasure for me to appear before this committee this afternoon. I represent part of the San Fernando Valley in California, which is very vitally interested in the proper protection of the originators of various creative works, both from the artists' and the creators' points of view, and from the technicians' and the businessman's point of view in producing this in order that these original creators and the businessmen themselves might be properly protected throughout the year.

I think I can safely say that many thousands of people who live in the San Fernando Valley are vitally dependent upon their rights being adequately protected, because this is the center of a great deal of creative activity.

With that in mind, I have read Mrs. Barnette's statement; it is pertinent and I am sure it will be interesting to you gentlemen.

I am happy to present my constituent and friend, Mrs. Gladys Barnette.

Senator BURDICK. First of all, Mrs. Barnette, your statement will be made a part of the record, without objection. If you care to summarize it, it will be appreciated.

STATEMENT OF MRS. GLADYS J. BARNETTE, EXECUTIVE AND FIRST VICE PRESIDENT, LEARNING THROUGH SEEING, INC., SUNLAND, CALIF.

Mrs. BARNETTE. I think it would be, perhaps, easier for me to read it if you do not mind, Mr. Chairman.

I may interpolate and summarize, perhaps, where possible.
Senator BURDICK. Very well.

Mrs. BARNETTE. Mr. Chairman, esteemed gentlemen of the Senate committee, a request to testify before the Committee on the Judiciary of the Senate regarding Senate bill No. S. 597 was made by our company, Learning Through Seeing, Inc., solely for the purpose of asking the committee to define in a very specific and positive way exactly what would be "fair use" when the materials in question are produced exclusively for educational purposes and have no possible sales other than to institutions of education.

To clarify the reasons why the "fair use" section of a revised copyright law should be stated in specifics, it seems best to present

some background information regarding educational materials which are produced for no other purpose than helping all students to learn more effectively and to keep pace with the knowledge explosion.

Learning Through Seeing, Inc. is a small business. Its principals have long been active in the generation of educational materials exclusively for classroom use. Many years have been spent in the development of teaching techniques and programs. During these years a substantial number of copyrighted programs have been developed and more are in preparation, including auditory materials. The materials developed so far provide an integrated, sequential succession of film frames which together constitute carefully prepared and highly sophisticated lessons in a course of study having a specific purpose, such as the teaching of mathematics, English, vocabulary, language arts skills, and the improvement of reading. In order to prepare complete programs, authorities in a given field are employed or affiliated and the necessary creative and testing work is done to insure that the programs accomplish the purposes for which they are intended. The programs are then sold at prices scaled to the budget of school districts. Profits are such that a considerable number of programs must be sold to recover basic cost.

The Learning Through Seeing, Inc., organization and its programs have now engendered a justified confidence within the educational market. This confidence has not been easily earned since it has required constant effort at refinement and extension of basic techniques, continued maintenance of the highest standards and complete professional and financial commitment on the part of the principals. It now appears that efforts, such as these, which have been entirely independent and have involved great risk with no substantial profit, and which have contributed greatly to the full effective use of educational budgets, are in danger of becoming economically unsupportable under the "fair use" provision in the new copyright bill.

The danger stems from the apparent license given to those in the educational field to utilize materials of this nature with impunity, and of course from the widespread and increasing availability of data reproduction equipment and services. The "fair use" provision contains no exception as to the use of materials prepared directly for the educational market. The usual example given in support of the provision is that of the educator who desires to copy excerpts for class study and analysis and the rationale is that the cause of education will be furthered by releasing such educators from theoretical damages for copyright infringement. This view does not, however, consider the basic fact that the entire tenor of the usage is changed when the materials have themselves been prepared expressly for educational purposes. Under such circumstances, copying can only be intended to employ the materials in whole or in part for the specific objectives for which they were prepared. The copying of such materials should not be excused either under the "fair use" provision or under a compulsory licensing provision because copying of this nature constitutes deliberate infringement.

Consultation with the Learning Through Seeing, Inc. copyright attorneys suggests that it may be contended that the "fair use" provison of paragraph 107 sets forth four standards that would preclude damage to the portion of publishing and creative industries