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The rule of fair use was summarized concisely in Drone on Copyright (pp. 386-387) as follows:

"It is a recognized principle that every author, compiler, or publisher may make certain uses of a copyrighted work, in the preparation of a rival or other publication. The recognition of this doctrine is essential to the growth of knowledge; as it would obviously be a hindrance to learning if every work were a sealed book to all subsequent authors. The law, therefore, wisely allows a "fair use" to be made of every copyrighted production; and this liberty is consistent with the true purpose of the law to give to the earlier author adequate protection for the results of his labor. But to determine the extent of this license, and to draw the line between a fair and an unlawful use is often one of the most difficult problems in the law of copyright. The question must generally be determined by the special facts in each case.”

As Drone indicates, the distinction between fair use and copyright infringement cannot be determined by resort to any fixed rules or criteria. In each instance, the result must depend upon a variety of factors including:

1. The nature and purpose of the respective works;

2. The quantity and importance of the portions taken;

3. The relation of the portions used to the respective works of which they are a part;

4. The impact of the use of these portions upon the demand for the copy. righted publication.

An expression recently used by Judge Kaufman is particularly apt in describing one of the criteria of fair use. He said in Berlin v. E. C. Publications, Inc., 329 F.2d, 541, (2d Cir. 1964), at page 545:

"At the very least, where, as here, it is clear that the parody has neither the intent nor the effect of fulfilling the demand for the original, and where the parodist does not appropriate a greater amount of the original work than is necessary to "recall or conjure up" the object of his satire, a finding of infringement would be improper."

The relevance of these various criteria is found in the recognition that not all books serve the same function, have the same purpose, or enjoy the same market. What may constitute fair use when factual material is taken from a reference book, may well constitute infringement if fictional material were taken from a novel. The greater liberality in permitting the use of material from reference works, textbooks, and other scholarly publications represents a public policy developed by the courts which seeks to reconcile the exclusive rights of a copyright proprietor with the requirements of an overriding public interest. Oxford Book Co. v. College Entrance Book Co., 98 F. 2d 688 (2d Cir. 1938).

The courts have, on a number of occasions, dealt specifically with the doctrine of fair use in relation to legal reference books and source material. They have recognized that although these works are entitled to copyright protection, the extent to which they are protected must be judged in the light of the function which they serve and the purpose for which they are sold. Continental Casualty Company v. Beardsley, 253 F. 2d 702 (2d Cir. 1958); Edward Thompson Co. v. American Book Co., 122 Fed. 922 (2d Cir. 1903); West Publishing Co. v. Edward Thompson Co., 176 Fed. 833 (2d Cir. 1910); Edward Thompson Co. v. American Law Book Co., 122 Fed. 922 (2d Cir. 1903).

Heretofore fair use has been applied by the courts in the absence of statutory provision. The express provision in H.R. 4347 fortifies the principle as a crystallization of legislative policy. Its application should satisfy all legitimate needs and requirements for the utilization of copyrighted material in all appropriate areas and by means of all appropriate devices. As Hon. Leon R. Yankwich, formerly Judge of the District Court of Southern California, states in his article "What Is Fair Use?", the determining factors are:

*** "whether there is 'fair use' of the copyrighted material in any of the cases enumerated, the courts are governed by the exigencies of each situation. Given the diversity of instances, it is inevitable that no rigid rules can be applied to all situations. Nevertheless, certain tests have been evolved to determine whether the taking of copyrighted material does or does not exceed the limits of 'fair use'. They require consideration of (1) the quantity and importance of the portions taken; (2) their relation to the work of which they are a part; (3) the result of their use upon the demand for the copyrighted publication. The first two elements are the subject of quantitative or qualitive analysis. As such, they are capable of measurement. The third element is, to some extent, conjectural." 22 U of Ch. L. Rev. 203 at 212 (1954).

Other discussions of fair use will be found in: Folsom v. Marsh, 9 Fed. Cas. page 342, No. 4,901 (C.C.D. Mass. 1841); Dun v. International Mercantile Agency, 127 Fed. 173 (S.D.N.Y. 1903); Bloom & Hamlin v. Nixon, 125 Fed. 977 (E.D. Penn 1903); G. Ricordi & Co. v. Mason, 201 Fed. 182 (S.D.N.Y. 1911); Karll v. Curtis Pub. Co., 39 F. Supp. 836 (E.D. Wis. 1941); Broadway Music Corporation v. F-R Pub. Corporation, 31 F. Supp. 817 (S.D.N.Y. 1940); Green v. Minzensheimer, 177 Fed. 286 (S.D.N.Y. 1909); Green v. Luby, 177 Fed. 287 (S.D.N.Y. 1909); Latman, Fair Use of Copyrighted Works, Copyright Office Study No. 14, Nimmer on Copyright, Sec. 145.

The problems presented in applying the doctrine of fair use are no different than those which arise in any other branch of the law. All lawyers are familiar with statutes or rules of law which speak in terms of reasonable notice, bona fides, reasonable care, good faith and other general terms based on established legal doctrines. Juries decide questions of negligence, gross negligence, contributory negligence and similar matters on the basis of the facts presented to them and in the light of the law which is charged by the court. The doctrine of fair use is even simpler to apply since it is based on good faith, and most problems may be answered by recourse to the Golden Rule "Do unto others as you would have them do unto you."

The difficulty inherent in attempting to provide a more precise definition of fair use is disclosed in the 1964 draft of the Revised Bill (Copyright Law Revision Part VI, page 193). The Register had suggested a definition which would have imposed the test that a use to be fair must be "reasonably necessary, or incidental to a legitimate purpose, such as criticism, comment, news reporting, teaching, scholarship or research ***"

That definition is both too broad and too narrow. One question which arises is where the parody cases would fit in this enumeration. Do they fit in one of the incidental or legitimate purposes? Do they constitute criticism, comment, news reporting, reaching, scholarship or research?

Even if they do not fall within any of these categories, Judge Kaufman in the Berlin case mentioned above, held the use to be fair because it did not fulfill the demand for original work and did not appropriate a greater amount of the original work than was necessary to recall or conjure up the object of the satire. Were the 1964 bill definition to have been part of the law it would be incumbent upon the court to determine legitimacy of the purpose, the necessity of the use, the question of whether the use was incidental, and then to determine whether the use came within criticism, news reporting, teaching, scholarship or research.

The question would arise what kind of research is to be included. Is it to be limited to scholarship research and scientific research or is it to include broadcast rating systems, market testing, poll taking, and many of the other commercial activities which are called research but which have no conceivable relationship to education or scholarship.

It should be remembered that the doctrine of fair use derives its vitality from its adaptability to conditions not only as they exist today but to new conditions which result from technological and other developments. Stated generally, the rule may make a distinction between a true scholar and a chisler who infringes a work for personal profit. It can distinguish between a mere quotation and the theft of an essential portion of a literary work, and can differentiate between the infringer who seeks to reap where he has not sown and the scholar who is motivated solely by the desire to add to the common reservoir of ideas and information. Any attempt to confine the doctrine in a strait jacket by enumeration would destroy its vitality and its ability to accommodate itself to all conditions and to those as yet unforeseen.

If any guidelines are to be presented they should not, I submit, go beyond the second portion of section 6 which adopts the well established criteria:

In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:

(1) the purpose and character of the use;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Mr. SCHULMAN. Thank you, sir. I have and presently do represent various people in the copyright field, authors, publishers, composers, industrial companies, groups of authors, and groups of composers,

but I do not at this juncture speak for any particular group or any particular industry. I speak here solely as a person who has been interested in copyright for many years, and who has worked with the panel of specialists for 10 years in an attempt to revise the copyright statute.

I am the chairman of Committee 304, in the Section of Patent Trade Mark & Copyright Law of the American Bar Association, from whom you heard this morning. I do not speak for the association. The official position was set forth in the resolution presented to you by Mr. Toomey and Mr. Diamond this morning.

I have requested the opportunity of appearing before you because I think we are all engaged, the Congress in both Houses, the Copyright Office, the Library of Congress, and more than 100 lawyers and almost as many laymen in a common effort to provide a copyright system in the United States which will modernize our present system, and of which we can be proud.

Most countries of the world, particularly the Western free world, have changed their copyright acts within the past 10 years. They have modernized them and have brought them up to date.

Our Copyright Act dates back to 1909. If you will remember, sir, that was the time when the chief method of communication was through books, magazines, newspapers, and other printed material. The recording industry was in its infancy in 1909. There were no talking motion pictures then. We had the nickelodeons where most of the motion pictures were shown, such as the "Perils of Pauline" and all the famous Mack Sennett pictures.

We had no radio, no broadcasting, no television. All these marvels of science have come within the past 50 years, and our statute is still keyed to the printing press. That is why we have been working for many years to bring forth or to submit or suggest a statute which will accommodate our copyright system to the modern era.

I have been thinking about and giving consideration to the question of how I can be of greatest help to this Senate committee. I do not espouse any particular cause. I do not want to refute any particular claim. But what I would like to do is to provide the background, if I may, of what I consider to be the traditional American copyright system.

We start with the fact that copyright deals with communication. It deals with the entire area of the transmission of one man's thoughts to another. It starts at the point where those thoughts are reduced to some tangible form.

A man thinks of a poem, writes it on a piece of paper, records it on tape, or records it on a clay tablet. It is then in tangible form. And at that point the copyright system enters, because copyright does not relate to thoughts or ideas which have not been reduced to tangible form. It relates to these thoughts which have been fixed in a form from which they can be reproduced or from which they can be read. At that point copyright becomes important because it is a means of protecting the property of the man who created the book, the poem or the song, or the industry which has created the motion picture, the television show, all the people who have invested their time and their efforts in creating something which never existed before.

Now that is very important. Here is a blank sheet of paper. This blank sheet of paper is worthless. But if we had a songwriter in this gathering who would write a song, perhaps like "Some Enchanted Evening," upon this paper that would be a contribution to the culture of the country, and a contribution to our general store of knowledge. It would then have both a cultural and an economic value.

The same thing is true of the man who writes a speech. He has created something which did not exist before. He hasn't taken it out of the ground. He hasn't taken it from a machine. It is a product of his mind, or a group of minds, like a motion picture, which is the product of a number of people working together.

That is the kind of thing which in my judgment has always been the basis of the American copyright system, the recognition that an individual is entitled to have a proprietary interest in that which he has created by his God-given talents, and he is entitled to profit from it. He is entitled to work as a professional writer. He is entitled to earn his living that way.

The American copyright system also was intended to stimulate the publication and dissemination of that kind of material.

Let me tell you also about what the copyright system has produced in terms of our economy. The latest figures show that the gross annual national product of the copyright industries, that includes the people who write, compose, and the people who publish, produce plays, produce magazines, newspapers, the people who conduct radio broadcasting and television broadcasting stations, all of that added together amounts to $7 billion a year. That may be surprising, but the fact is that the industry which has been called the knowledge industry, is one of the important industries of this country.

Moreover, it is one of the important industries in the export field. There has been testimony, for example, that about 50 percent of the income of the motion picture companies in this country comes from the showing of their pictures abroad. A substantial revenue is derived from our television tape which is shown abroad and which brings a very fine revenue. Our recording industries profit from the exploitation of their records abroad.

We are dealing here in two areas. One is the cultural field of which we are all very proud and, second, the economic field. Underlying all this is the copyright system. The copyright system has the same relationship to literary property as the negotiable instruments law has to financial and banking transactions. It has the same relation as the commercial code has to the area of the purchase and sale of tangible property. It is the system whereby the rights and limitations upon the rights of copyright owners, proprietors, and those who deal in this material are regulated throughout the country.

If we look at it that way, we look at the problem as one of a good healthy workable law.

Now, I don't want to indulge in history, and I am not going to read the historical portion of my appendix, which is part 2 of the appendix to my statement. But let me point out some very interesting facts which sometimes are not realized.

One is the copyright in this country goes back to 1672, even before the Statute of Ann was adopted in Great Britain. It was in the form of an order of the Massachusetts Bay colony, quoted on page 8

of the appendix, which refers to the rights of the owners of copies. After the States had achieved their independence, and the statutes of Great Britain were no longer applicable in the United States, the original States individually enacted copyright legislation. The first State to do so was Connecticut in January of 1783. That was even before the adoption of the Constitution.

Massachusetts followed in March 1783 and Maryland in April of the same year. And then the Continental Congress, likewise before the adoption of its Constitution, recommended that all States adopt copyright laws, and every State of the 13 States except Delaware did so. So you see we have a long history of copyright. We have a long recognition of the rights.

Let me read to you if I may, just a few lines constituting the preamble to the statute adopted by North Carolina.

Whereas nothing is more strictly a man's own than the fruit of his study, and it is proper that men should be encouraged to pursue useful knowledge by the hope of reward; and as the security of literary property must greatly tend to encourage genius, to promote useful discoveries, and to the general extension of arts and commerce;

And that was the basis upon which each and every one of those States before the adoption of the Constitution adopted their local statutes. Lest you think that is old hat, and that because of my gray hairs I think only of times before the Constitution, let me read to you from a decision of the Supreme Court in 1954. It is just a few lines, and I won't burden you with any long quotations. In Mazer v. Stein the Supreme Court said:

The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in "science and the useful arts." Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.

If you please, gentlemen, that is my basic philosophy in copyright. It is an integral part of our industrial capitalist society. It is based on the right of our citizens to own porperty which they create, and the right to live on the earnings of the properties which they produce. That applies not only to authors. It applies as well to the men who invest money in publishing books, in publishing magazines, producing motion pictures, and in providing the important communication services of our country.

I might say to you that until recently our copyright statute was not too bad. But technology and modern developments have outstripped the law.

We have a unique copyright system in the United States. It is a dual system, one which is unique in this country and doesn't prevail outside our own. An published work is protected at common law. If any of us were to write a book and it were to remain in manuscript form, we would have perpetual copyright in that book. In other words, no statute protection is required. Arising from the fact that we wrote it, it is our property, and no one has a right to copy that book, to publish it, to perform it, render it, or make any use of it.

The same thing is true of a song. The law extends even further. Even if a song were to be sung over radio or television, and 100 or 200 million people hear it, it is still not published, as the law

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