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things which are renewed are the trivia. They are not the important materials, protected by copyright over a long period. They are the kind of items which have only a temporary value, only a transitory value. And that is not the kind of material which anybody wants to copy after a number of years. What they want to copy is material which is current, or which has a lasting value.

And then again who wants to publish a book or print a book if he can't get copyright protection. Does anybody want to spend $5,000 or $10,000 in printing an old book, and then having someone else duplicate that book and sell it for half the price? The very purpose of the copyright system is that it gives the author and the businessman, the publisher and others an opportunity of investing money with a fair chance of getting it back and making a profit.

Now that is consistant with our profit system. Anybody can go out and catch fish in the ocean, but nobody operates as a commercial fisherman unless he can make a profit out of his efforts.

I now come to the final portion of my statement. I hope I am not being too long. I am trying to outline the views which I hope will be read in detail from my statement, and about which you will hear more from others who may agree or disagree with me.

There has been some testimony about exemptions and fair use. Now what do those terms mean?

An exemption is an exculpatory provision. A certain type of use is exempted and cannot be the subject of a claim for infringement. In the proposed statute you will find such provisions as exemptions for face-to-face teaching, educational broadcasting under certain circumstances, exemptions for religious services, that is to say playing of the organ, the singing of the choir, during the congregation's religious services.

The choir may sing an entire song and nobody can attack that performance or claim infringement, if it is part of the religious service. And the bill would also permit performances for educational, religious, and charitable purposes. These are a concession made in the public interest, the contribution which the author would make for certain exempt purposes. Those uses would not require the payment of any royalty, would not require any clearances.

Even more than that, the statute contains an additional provision in the favor of the public, and that is one which recites that despite the provisions of section 106, which specifies the exclusive rights, the fair use of a work shall not constitute infringement.

Fair use is a judicial doctrine with a great deal of vitality, which has been developed in the courts over the years. May I refer you to page 32 of my appendix for a splendid statement of the doctrine of fair use. It is taken from a standard work on copyright written by Drone in 1876. He points out that certain uses are in the interests of the public and are permitted if they are fair. You will find there are four simple tests.

First, the nature and purpose of the respective works. Obviously material may be taken from a scientific book as a quotation more liberally than from a book of fiction such as a novel.

Second, the courts take into account the quantity and importance of the portions taken. If you take a little excerpt, a reasonable amount, it is a fair use. If you actually copy the book and merely leave out the first paragraph and the last, obviously that isn't fair.

The third criterion is the relation of the portions used to the respective works. Take a song like "I Hear You Calling Me." If the first four bars are used, the copier has in effect copied the whole song. In songs such as "Some Enchanted Evening," or "Stormy Weather," the copying of the first theme of the song would misappropriate the whole song. So the answer depends on the nature and quality of the use.

And finally the courts take into account the impact of the use upon the demand for the original publication. Does it impair the value and the demand for the original book.

Now these tests are not limited to an old or outmoded doctrine. I refer at page 35 of my appendix to an article by Judge Yankwich, of California, written in 1954 entitled “What Is Fair Use?” You will note that Judge Yankwich, after all these years still recognizes these factors as the criteria to determine whether uses are fair or not. There is nothing uncertain about the rule itself. Now it may be hard to apply the rules sometimes, but as lawyers, we know that it is hard at times to decide whether a person is guilty of negligence or is not, or whether a person is an innocent holder for value of a promissory note. It depends in each case on the facts of that case.

You have before you a bill which has a proper structure, and presents sound, logical, and modern legislation. It takes into account not only the rights of authors and proprietors, but also the rights of the public, of educators, and of others. There are some details of the bill with which I would disagree. But if given the choice of adopting the bill without the change of a word, and remaining with the old law, I would advocate the adoption of this bill.

Thank you, sir.
Senator BURDICK. I want to thank

you
for some very

informative testimony. I would say you are a good advocate for your cause.

Mr. SCHULMAN. Thank you very much.

Senator BURDICK. Thank you for the short course in copyrights. I wonder if you would care to point out the features that you find objectionable, if you could do it briefly. Mr. SCHULMAN. Well, I can give you some.

The bill presently provides that copyright in any published foreign work is available to a national or a citizen of the country which has a treaty or is party to a treaty with us, or a country which grants reciprocal rights to our citizens, but would grant copyright to unpublished works even in the absence of such reciprocity.

Under the present law copyright in unpublished works is available to citizens of all countries, even though our own citizens do not get protection in those countries; for example, Soviet Russia and others. The bill makes the same distinction; namely, that published works will be subject to a reciprocal arrangement or criterion, but that unpublished works would not.

Senator BURDICK. Is that the only place where there is an exception ! I think you stated earlier in your testimony that unpublished works and published works were treated the same. Is this the only exception to the general rule?

Mr. SCHULMAN. This isn't an exception. You see unpublished—you mean in the new law?

Senator BURDICK. Yes.

Mr. SCHULMAN. Yes, this would be an exception in the new law where there would be a difference between published and unpublished works.

Senator BURDICK. Is that the only place where there is a difference?

Mr. SCHULMAN. I think so except in the computation of term, sir. I may be chauvinistic, but I see no reason why we shouldn't require other countries to join the Universal Copyright Convention or give protection to our works, in order for us to give protection to theirs. I think it is sound policy.

I am not talking about Government international policy, but I think it is sound policy to take the position, as we have taken before, that if a country wants to have any of its works protected here, we should be entitled to the same kind of protection in that country. As I say, some people disagree with me. I feel that way, but that is a matter for Congress to decide. To me it is a question of being on the fair side, being on the right side.

I helped prepare the Universal Copyright Convention. I represented the Government for 8 years as consultant, in formulating the Universal Copyright Convention. I attended a diplomatic convention in Geneva in 1952, and I fought for that principle there. I think that the Universal Convention has been a salutary thing. Fifty countries have now joined it, and I see no reason why we shouldn't insist on its being enforced as against other countries.

Now let me point out as we talk about that, Russia has no copyright system such as we have. They have a form of protection where an author is rewarded if he produces work which is satisfactory to the State. Now that is the very antithesis of our system, where every man, no matter what he writes—whether he writes something that I like or Mr. Kaminstein likes, is not the question. If he has written something which is not pornographic or obscene, it is a copyrightable work and he is entitled to file it and register it, and that is his property. You see that is the very difference between the grant of a right and a legal right to which every man is entitled if he has the talent to exercise it.

I should also state my concurrence with the resolution of the American Bar Association which has been presented to you by Mr. Toomey, and particularly with those portions of the resolution which opposed the following:

(1) U.S. Government ownership of copyright;

2) Limitation of copyright by way of a manufacturing clause; and

(3) Recognition of a certificate of registration as constituting prima facie evidence of the validity of the copyright.

Senator BURDICK. Your timing is excellent. There is a vote.
Mr. SCHULMAN. Thank you.

Senator BURDICK. Thank you, and the committee will be in recess until I return.

(Short recess.)

Senator BURDICK. We will resume now with the educational panel who testified this morning.

STATEMENT OF HAROLD E. WIGREN AND HARRY N. ROSENFIELD,

AD HOC COMMITTEE (OF EDUCATIONAL INSTITUTIONS AND ORGANIZATIONS) ON COPYRIGHT LAW REVISION; ACCOMPANIED BY DR. CHARLES GOSNELL, CHAIRMAN, COMMITTEE ON COPYRIGHT ISSUES, AMERICAN LIBRARY ASSOCIATION; DEAN FRED SIEBERT, SCHOOL OF COMMUNICATIONS, MICHIGAN UNIVERSITY, AMERICAN COUNCIL ON EDUCATION; DR. T. M. STINNETT, ASSISTANT EXECUTIVE SECRETARY FOR PROFESSIONAL DEVELOPMENT AND WELFARE, NATIONAL EDUCATION ASSOCIATION; AND EUGENE N. ALEINIKOFF, JOINT NATIONAL EDUCATIONAL TELEVISION-EDUCATIONAL TELEVISION STATIONS MUSIC AND COPYRIGHT COMMITTEE-Resumed

Mr. ROSENFIELD. Mr. Chairman, to my right is Dr. T. M. Stinnett of the National Education Association, assistant executive secretary for professional development and welfare, who will be speaking for the National Education Association. To his right is Dr. Charles Gosnell, chairman of the Committee on Copyright Issues, American Library Association. To Dr. Gosnell's right is Dean Fred Siebert, dean of the school of communications of Michigan University, testifying for the American Council on Education. And to my left is Mr. Eugene N. Aleinikoff, for the Joint National Educational Television-Educational Television Stations Music & Copyright Committee.

My name is Harry N. Rosenfield. I am an attorney and testifying on behalf of the ad hoc committee, supplemental to Dr. Wigren's testimony.

Mr. BRENNAN. Do you wish to have all these statements printed in full in the record at this point, or do you wish to read the statements, Mr. Rosenfield ?

Mr. ROSENFIELD. If possible, Mr. Brennan, we should like each person to make his own comments and have each person make his statement, and ask whether he wants it in the record. Mr. Chairman, in the order that was set before the committee, I am next on the agenda. I am a Washington attorney and, as I indicated, I make my statement in behalf of the ad hoc committee supplemental to Dr. Wigren.

Senator BURDICK. You may proceed.

Mr. ROSENFIELD. May I ask in accordance with Mr. Brennan's statement, that my entire statement be incorporated in the record? I shall deal with selected portions of it at this point.

Senator BURDICK. Without objection your entire statement will appear in the record. (The prepared statement of Mr. Rosenfield follows:) STATEMENT FOR Ad Hoc COMMITTEE (OF EDUCATIONAL INSTITUTIONS AND

ORGANIZATIONS) ON COPYRIGHT LAW REVISION*

(By Harry N. Rosenfield, Esq., Washington, D.C.) "Copyrights," wrote the present Attorney General to the Congress, "are forms of monopolies ..."1 "Even at its best," wrote the Assistant Librarian of the

*This statement is supplemental to that submitted by Dr. Harold E. Wigren, Chairman of the Ad Hoc Committee.

1 Letter of Acting Deputy Attorney General Katzenbach, May 2, 1962, House Rep. No. 1742, 87th Cong., 2d Sess., p. 6.

في وو

Supreme Court, “copyright necessarily involves the right to restrict as well as to monopolize the diffusion of knowledge.' And in discussing the issues in copyright law revision, a copyright law professor put it thus: “of course, the main disputes center on the size and ingredients of the monopoly pie

Since 1909 Congress has steadfastly exempted nonprofit educational uses from the possibility of restriction on the diffusion of knowledge by such copyright monopoly. The Ad Hoc Committee urges that, in the public interest, this same kind of Congressional protection for education be written into any new copyright law in order to meet the following needs of education :

(1) a more effective and more inclusive accomplishment of the longstanding policy of special recognition for education;

(2) a clarification of ambiguities so that teachers may readily and easily know what they can legally use in teaching our Nation's students; and

(3) a logical and reasonable extension of presently available rights in order to make effective teaching possible.

To accomplish these ends, the Ad Hoc Committee proposes four amendments to S. 1006, as follows:

1. an educational exemption for limited copying for nonprofit educational purposes, through a new $ 111, and an amendment of g 109(4);

2. a clarification of the "fair use" provision in § 107;

3. authorization of discretionary waiver by a court of statutory damages for innocent infringement by teachers, in § 504 (c) (2); and

4. a restoration (in Chapter 3 of the bill) of the present term of copyright, comprising 28 years initial term plus a renewal term of 28 years or of an extended 48 years.

There are other provisions in the copyright law which are of interest to education, but we shall limit our discussion here to these four matters.

1. EDUCATIONAL EXEMPTION FOR LIMITED COPYING BY TEACHERS

For the last 56 years the copyright law has contained the “for profit” principle, authorizing the nonprofit public performance of nondramatic literary and musical copyrighted works. S. 1006 would abolish this doctrine.

This distinction between the present law and S. 1006 is vital. The present law is sensitive to the public interest in its broadest sense, by distinguishing nonprofit from commercial uses of copyrighted material. It awards a special and primary right to such nonprofit uses. The new bill turns its back on this fundamental concept and lumps nonprofit and commercial uses together, seemingly oblivious to the public policy which has consistently motivated Congress in a wide range of laws to give special protection to education. We respectfully suggest that the blindspot in s. 1006 is its failure to give proper effect to the vital distinction between nonprofit and commercial users of copyrighted materials.

In his 1961 Report to the Congress, the Register recognized the validity of this distinction and recommended its retention as follows:

Recommendation

(1) For nondramatic literary and musical work the right of public performance should continue to be limited to such performance 'for profit ..."

(p. 28) The Register also said:

"We believe that the principle of the 'for profit limitation and the application given to that principle by the courts, strike a sound balance between the interests of copyright owners and those of the public We believe, however, that any attempt to specify the various situations in which the principle applies would be likely to include too much or too little, and to raise new uncertainties." (p. 27.) The Ad Hoc Committee agrees with the Register's 1961 recommendation as far as it goes, and proposes (1) the retention of the “for profit” concept for nonprofit educational organizations and institutions, and (2) its application both to performance and restricted copying for nonprofit educational purposes. This objective would be accomplished through a proposed new Section 111 which, in terms of education's needs, is the most urgent of the Ad Hoc Committee's proposals.

.

2 Hudon, E. G., The Copyright Period: Weighing Personal Against Public Interest, 49 American Bar Association Journal, 759 (1963).

* Kaplan, B., Book Review, 78 Harv. L. Rev., 1094 (1965).

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