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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 . . ." "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.
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 § 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.
I. 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:
(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:
and the ap
"We believe that the principle of the 'for profit' limitation. plication 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).
The new proposed section would read as follows:
"§ 111. Limitations on exclusive rights: Educational copies and recordings
"Notwithstanding the provisions of § 106, it is not an infringement of copyright for anyone lawfully entitled under § 109 to perform, exhibit, or to transmit a performance or exhibition of, a copyrighted work (save those originally consumable upon use, such as workbook exercises, problems, or answer sheets for standardized tests).
"(a) to make no more than one copy or phonorecord of the work in the course of such use, provided that no copy or phonorecord may be made of dramatic works (including any accompanying music), pantomimes and choreographic works, and motion pictures or filmstrips unless the performers and the audience are limited to students, faculty, or staff, and
"(b) to make a reasonable number of copies or phonorecords of excerpts or quotations from the work, provided that such excerpts or quotation's are not substantial in length in proportion to their source. *** solely for purposes of such person's or organization's own teaching, lawful performances, exhibitions and transmissions, for course work study in connection therewith, for research or for archival purposes, provided that no such copyrighted material is sold or leased for profit and that no direct or indirect private gain is involved." What would this proposed provision do? Where § 109 authorizes a teacher to perform, exhibit or transmit a copyrighted work, the proposed § 111 would permit the teacher to make—
(1) only one copy or phonorecord of that full work; but if the work is dramatic (including accompanying music), a pantomime or choreographic work, a motion picture or a film, the right to copy or record would be still further restricted to instances where both performers and audience are limited to students, faculty or staff; and
(2) a reasonable number of copies or phonorecords of excerpts or quotations from that work but only where the excerpts or quotations are "not 'substantial in length in proportion to their source."
However, there are further restrictions: such copying or recording may be made only where
(a) such copyrighted works are not "originally consumable upon use, such as workbook exercises, problems, or answer sheets for standardized tests", (b) the copies are for the school's or teacher's own educational use, and (c) no such copies are "sold or leased for profit and . . . no direct or indirect private gain is involved."
Under the present law "the courts have not ruled specifically on cases involving the reproduction of copies for purposes of research or teaching." There is, however, noted authority for the view that teachers and educational broadcasting have copyright recording rights under the present "for profit" provision and apart from "fair use." 5 We believe that anything less than requested by the Ad Hoc Committee for restricted educational copies and recordings would be unenforceable in fact and become a dead letter.
The Ad Hoc Committee applauds the Register for adopting in § 110 the concept of an ephemeral copy of a broadcast. However, that section is more useful to commercial than to educational broadcasting because of the six months' limitation on use. Consequently, the new Section 111 is necessary for educational broadcasting, notwithstanding § 110.
The new proposed Section 111 is related to § 109. In this connection the Ad Hoc Committee proposes that § 109 (4) be amended, on lines 4 and 5 of page 8, to read as follows:
"(4) performance or transmission of a nondramatic literary or musical work, [otherwise than in a transmission to the public,] without any pur-"
We commend the Register for his recognition in § 109 (2) that educational broadcasting is an integral part of education. However, its effect is unfortunately limited both as to types of copyrighted material to which it applies and as to the location of its use. Section 109 (2) is primarily oriented to formal classroom, or related, situations. Education is education just as much when it appears on
Goldman, Abe A., Copyright Law Revision and Music Librarians, Library Journal, March 15, 1965, p. 1268.
5 Siebert, Fred S., Copyrights, Clearances and Rights of Teachers in the New Educational Media, American Council on Education, 1964, pp. 33-4; Shaw, Literary Property in the United States, 98-9 (1950). Cf., Opinion of Webster, Sheffield. Fleischman, Hitchcock, and Chrystie, New York attorneys, Special Libraries, May-June 1961, at p. 253.
TV as when it appears in print. The proposed amendment to § 109 (4) would enable education to perform its nonprofit public function, through educational broadcasting outside of the formal classroom-related situation.
Opposing Arguments Fallacious. In the main, three arguments are presented against the Ad Hoc Committee's proposal to continue and expand the present law's "for profit" concept, as follows:
1. it is, allegedly, a deprivation of property rights;
2. it is, allegedly, unnecessary because "fair use" can take care of education's needs; and
3. it will, allegedly, destroy the publishers of educational materials.
All three of these arguments are fallacious, as we shall endeavor to show:
1. Copyright, Property and the Constitution
Some argue that copyright is a property right which Congress has no authority to limit. This simply is not so. Article I, § 8 of the Constitution grants no rights to authors; it merely grants power to Congress to enact copyright legislation. In Wheaton v. Peters, 8 Pet. 591, 661 (1834), the very first case in which the Supreme Court considered this problem, the Court said:
"Congress then, by this act, instead of sanctioning an existing right, as contended for, created it. (661) This right, as has been shown, does not exist at common law-it originated, if at all, under the Act of Congress." (663)* The House Report on the current Copyright Law of 1909 also made this same point crystal clear:
"The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best."7 There is a long and uninterrupted line of cases that hold unequivocally that copyright protection is completely and solely a matter of statute, a privilege or franchise, simply a creature of statute.10 As distinguished from literary property, copyright is wholly a matter of Congressional discretion to grant or to withhold."
The Supreme Court has also held that the conditions upon which copyright is granted are wholly within the constitutional power of Congress to prescribe." The whole history of the copyright law exemplifies the fact that an author has no constitutional property right in or to copyright protection and that such right as an author obtains is a privilege to be granted or withheld by Congress in its discretion. As the House Report on the present copyright law said of copyright rights granted to authors: Congress has the power to annex to them such conditions as it deems wise and expedient.' The very first copyright law, enacted in 1790, 1 STAT. p. 124, c 15, gave protection only to maps, charts and books, and that only for a 14-year period plus renewal of 14 years. It did not cover periodicals, drawings, works of art, musical composition, dramatic composition-to name but a few. And even the present far more extensive law of 1909 is not all-inclusive and places limits on author's copyright privileges. Congress has limited the number of years during which an author may exercise copyright privileges. Congress has limited the uses to which the copyright owner's copyright privileges attach, i.e., the "for profit" limitation on public performance rights; compulsory licenses; the non-inclusion of "rental rights," to cite but a few. In addition to Congressional limitations of any so-called "property" rights
To the same effect, see Mazer v. Stein, 347 U.S. 201, 214 (1954); Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932); Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182, 188 (1909). 7 House Report No. 2222, 60th Cong., 2d Sess., p. 7.
8 Miller Music Corp. v. Daniels, Inc., 362 U.S. 373, 375 (1960); Bentley v. Tibbals, 223 F. 247, 248 (2d Cir. 1915); Grant v. Kellogg Co., 58 F. Supp. 48, 52 (S.D. N.Y. 1944), aff'd 154 F. 2d 59 (2d Cir. 1946).
Local Landmarks v. Price, 170 F. 2d 715, 718 (5th Cir. 1948).
10 American Tobacco Co. v. Werckmeister, 207 U.S. 284, 291 (1907); White-Smith Music Pub. Co. v. Apollo, 147 F. 226, 227 (2d Cir. 1906), aff'd 209 U.S. 1, 15 (1908). See also Loew's Inc. v. C.B.S., 131 F. Supp. 165, 173 (1955), aff'd 239 F. 2d 532 (9th Cir. 1956), aff'd by equally divided court, 356 U.S. 43 (1958).
11 Kraft v. Cohen, 117 F. 2d 579, 580 (3d Cir. 1941); Keene v. Wheatley, 14 Fed. Cas. 180, 185 #7644 (Cir. Ct. Pa. 1920).
12 Wheaton v. Peters, 8 Pet. 591, 663-4 (1834). See also Application of Cooper, 254 F. 2d 611, 616 (C.C.P.Á. 1958), cert. denied 358 U.S. 840 (1958); Stuff v. La Budde Feed & Grain Co., 42 F. Supp. 493, 496 (E.D. Wis. 1941); See Nimmer on Copyrights (1963), p. 14.
13 Op. cit., supra, n. 7, p. 9.
in copyright, the courts have also developed a further limitation through the doctrine of "fair use."
The Register's Report of 1961 commented on this subject as follows:
"Copyright . . . has certain features of property rights, personal rights and monopoly, but it differs from each of these. The legal principles usually applicable to property . . . are not always appropriate for copyright." (p. 6.)
If the "property" concept is inapplicable, what then, is the proper test for the copyright law? The House Report on the present copyright law stated that such rights were to be given "not primarily for the benefit of the author, but primarily for the benefit of the public.' The Supreme Court has said:
the copyright law... makes a reward to the owner of secondary consid
In 1964, the U.S. Court of Appeals for the Second Circuit said:
"In the words of Article I, Section 8 of the Constitution, copyright protection is designed "To promote the Progress of science and useful Arts,' and the financial reward guaranteed to the copyright holder is but an incident of this general objective, rather than an end in itself."
The Supreme Court said of patents (which come under the very same constitutional provision): ". . . it is a privilege which is conditioned by a public purpose."
The primacy of the public interest in copyright law was asserted by the Register of Copyrights in his 1961 Report:
"Within limits the author's interests coincide with those of the public. Where they conflict the public interest must prevail... And the interests of authors must yield to the public welfare where they conflict." (p. 6.)
Elsewhere this Report also says:
"The needs of all groups must be taken into account. But these needs must also be weighed in the light of the paramount public interest." (p. xi)
Education-the Paramount Public Interest Education is the most universal expression of public interest in the United States. President Kennedy said in his Education Message to the Congress : from every point of view, education is of paramount concern to the national interest as well as to each individual..." 18
In specifying "national education goals," he said:
"First, we must improve the quality of instruction provided in all of our schools and colleges. This. also requires that our teachers and instructors be equipped with the best possible teaching materials and curriculums." 19
President Johnson's education Message called for "techniques of instruction that are modern"; among our "four major tasks" he set the following goals: "to put the best educational equipment and ideas and innovations within reach of all students," and "to advance the technology of teaching." In so speaking, both Presidents were expressing a basic concept of the American Way of life. versal education is our nation's major public interest involving some 45 million pupils in public and private schools. As educators, therefore, the Ad Hoc Committee respectfully suggests that its proposal is, to use the Register's terms, in "the paramount public interest."
2. "Fair Use" Is Not Sufficient
A second argument advanced against the Ad Hoc Committee's proposal is that it is unnecessary because, it is alleged, "fair use" is sufficient to meet the needs of education. This is erroneous.
Teachers are not looking for lawsuits, but for clarity and certainty as to when they may use teaching materials. "Fair use" fails to give either clarity or certainty and must be decided on a case-by-case basis, AFTER the teachers use the material and not before. "Fair Use" gives teachers and scholars no assurance of when copyrighted materials may be copied, nor how much, nor under what specific conditions. In the context of S. 1006 with its elimination of the automatic "nonprofit" exemption, the bill might well result in a lawyer's paradise by its inducement to lawsuits.
14 Op. cit., supra, n. 7, at p. 7. [Emphasis added.]
15 U.S. v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948).
18 Berlin v. E. C. Publications, 329 F. 2d 541, 543-4 (2d Cir. 1964).
17 Mercoid Corp. v. Mid-Continent Invest. Co., 320 U.S. 661, 666 (1944).
18 House Doc. No. 54, 88th Cong., 1st Sess., pp. 1-2.
19 Ibid., p. 3.
20House Doc. No. 45, 89th Cong., 1st Sess., pp. 2-3.