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The new proposed section would read as follows: "g 111. Limitations on exclusive rights: Educational copies and recordings
“Notwithstanding the provisions of g 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 involy. ing 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." 6 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 g 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 educa. tional 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 8 109 (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 appears on 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.
* Goldman, Abe A., Copyright Laro Revision and Music Librarians, Library Journal, March 15, 1965, p. 1268.
6 Siebert, Fred S., Copyrights, Clearances and Rights of Teachers in the New Educa. țional 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.
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."
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. 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
6 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. 23 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 Loero's Inc. v. C.B.8.,
131 F. Supp. 165, 173 (1955), aff'à 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. 28 611, 616 (C.C.P.A. 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),
18 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 appli-cable 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.” 1 The Supreme Court has said :
the copyright law ... makes a reward to the owner of secondary consideration.'
In 1964, the U.S. Court of Appeals for the Second Circuit said:
"In the words of Article 1, 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.” 16
The Supreme Court said of patents (which come under the very same constitutional provision) : ... it is a privilege which is conditioned by a public
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..."
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. Universal 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 (1.948). 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.
"Fair Use” is a valuable adjunct but cannot alone meet education's needs, as witness the following:
(1) The Copyright Office's General Counsel said only a few months ago :
“... the court decisions which have fashioned the doctrine of fair use have dealt mainly with quotations from one work or another. The courts have not ruled specifically on cases involving the reproduction of copies for purposes of research or teaching. But the general criteria on which the courts have based their decisions would seem to make the doctrine applicable to limited reproduction for such purposes.
In other words, there is no judicial holding on the very issue at stake. Education is not interested in being a guinea pig for lawsuits; it wants its rights clearly set forth in the copyright statute. (2) The Copyright Office's Special Study on “Fair Use” says:
fair use is not a predictable area of law." 23 (3) The Copyright Office has a series of circulars which it sends to people who ask for advice and guidance. Circular 20, “Fair Use”, says the following:
“The line between 'fair use' and infringement is unclear and not easily defined. There is no specific number of words, lines, or notes that can safely be taken without permission ..." (113)
“The safest course to follow .. is to get permission first When it is impracticable to obtain permission, use of copyrighted material should be avoided unless it seems clear that the doctrine of fair use' would apply to the situation. If there is any doubt or question it is advisable to consult an attorney." (15)
The best advice to the teacher, then, seems to be to get a "hot line" to a lawyer every time he wants to use some teaching material. But even this may be of little real help.
In his preliminary 1961 report, the Register of Copyrights gave examples of what he regarded as clearly "fair use". But a disagreement ensued with the American Book Publishers Council as to the very example the Register cited, whether a teacher could make "fair use" of "a part" or only “a small part" of a copyrighted work. Subsequent official statements have only further complicated the situation. In the House hearings earlier this year, the distinguished General Counsel of the Copyright Office testified that only ""a relatively small” part is permissible. And the Register's Supplemental Report (of May 1965) says that fair use applies only to "the relative insignificance of the excerpt copied." ** And—to complicate matters even more the Music Publishers Association of the United States advised teachers that they could not use "any part” of any copyrighted work. (4) A recent treatise, Nimmer on Copyrights, $ 145 says of "fair use" :
the scope and limits .. are most obscure, so that the issue of fair use has been called “the most troublesome in the whole law of copyright.'"
(5) A National Science Foundation-sponsored study of photocopying found as follows:
"Because the doctrine of "fair use' has never been clearly defined, librarians ... are at a loss to actually know whether they violate the copyright law. .. many instances, corporation librarians had asked the company's legal counsel for information. It is significant that no two legal opinions were in exact agreement." It is also significant that this National Science Foundation-sponsored Report found that each type of library regarded its own practice as "fair use" but not the others' practices. Thus, public libraries, thought their single copy was legal but that university libraries were wrong in making multiple copies. University libraries believed "what they do is fair use" but not the copying practices of private business corporations' libraries. And the corporate library was convinced of the legality of its “internal use is fair use."
(6) The recent House Judiciary Subcommittee hearings illustrated the almost impossible dilemma a teacher faces with "fair use." Expert witnesses objected to a change in § 107 because of “the difficulty in laying down ground rules for all situations,” and because “language added to § 107 in an effort to clarify fair
A Goldman, Abe A., Copyright Laro Revenue and Music Libraries, Library Journal, March 15, 1965, p. 1268. (Emphasis added.)
- Copyright Law Revision, Study No. 14, "Fair Use of Copyrighted Works,” House Jud. Com., 86th Cong., 2d Sess., 1960, p. 14.
23 Copyright Law Revision, Part 6, Supplementary Report of the Register of Copyrights, House Com. Print, 89th Cong.. 1st sess., May 1965, p. 34.
24 Survey of Copyrighted Material Reproduction Practices in Scientific and Technical Fields, by George Fry and Associates (1962), p. V-20. [Emphasis added.]
use would not succeed. It would raise a whole new set of undecided questions for courts to settle, and would lead to necessity of costly litigation." In answer to the Acting Chairman's question whether there was a judicial definition, the General Counsel of the Copyright Office said that "there is no precise definition. This must be gleaned from reading a number of cases.” Another witness said the solution was a “mutual sort of unspoken understanding." One witness said "any writer" regards it to be "fair use" for a teacher to make one or two copies of a work, but two lawyers said "fair use" never allowed even one copy of a full work.
If all these copyright experts cannot agree on what is "fair use," how can anyone reasonably expect a third grade teacher in a rural school to know? The Copyright Office and its officials frankly admit that there have been no cases on the reproduction of copyrighted work by teachers for teaching purposes, that "fair use" is not predictable, and that the safest course is to consult an attorney. Distinguished copyright lawyers disagree among themselves and with the Copyright Office. Treatises say that the scope and limit of fair use is most obscure. And expert witnesses before Congressional Committees are in conflict and cannot tell what "fair use" is. It is unconscionable to foist off on the classroom teacher the daily requirement of a legal determination on what has been called "the most troublesome [issue] in the whole law of copyrighting.” Teachers have a right to look to Congress for clarity and certainty on this subject, objectives which are not feasible or possible under "fair use," all the more so because the burden of proof is on the teacher. Without an automatic educational exemption such as proposed by the Ad Hoc Committee, and such as the “for profit" provision now provides, "fair use" might well become a snare and a delusion to teachers.
This same argument (e.g., that “for profit” exemption is not necessary since "fair use" is enough) was made by the very same people as before Congress enacted the Act of July 17, 1952, 66 STAT. 752. Congress then rejected it as invalid, and this Judiciary Committee specifically insisted on both “for profit" and "fair use." It is respectfully submitted that this second argument based on "fair use" is as invalid now as it was when this Committee rejected it in 1952.
Therefore, while "fair use" is important and should be written into the statute, it is not enough or adequate to meet education's needs in the copyright law. 3. Alleged Economic Harm to Publishers
Another fallacious argument is the claim that education's proposal would wreck the publishing industry. All the available objective evidence points to the contrary.
Let there be no mistake about one fact. The Ad Hoc Committee strongly believes in the free competitive system, and believes that its proposal strengthens and aids in advancing that system.
What are the facts? First, let us look at how the publishers are faring now in the face of widespread and growing copying under the present law:
1. Last October, Darrell E. Peterson, President of Scott, Foresman & Co., a large textbook publisher, stated the following before the New York Society of Security Analysts:
“I'm sure that everybody in the investment-banking business has made a projection estimating the potential for the next few years. We in the industry have also done some pencil work, and it seems there is at least one point on which we are all in accord. There are going to be a lot of books bought and sold in American Schools between now and 1970."
The article continues :
“With that, he projected a compound growth rate of 8.1 percent a year for the textbook field in the period 1964–70 . .” (“Textbooks Sales Head for Record,” The New York Times, October, 18, 1964, p. 10F, col. 6.) And the Dow-Jones tape for May 5, 1965 reports that Mr. Peterson announced his company's nine-month profit (to January 31, 1965) of $2.17 a share, as against $1.76 for the comparable period—a 23.3% increase in profit per share in one year. The tape for July 27, 1965 reports an increase of 25% in the quarterly dividend rate.
2. Crowell-Collier Publishing Company merged with MacMillan Company in 1960. Its annual report for 1963 contains the following very illuminating information:
25 See, for example, the testimony of ASCAP and American Book Publishers Council, Hearings on H.R. 3589, 82nd Cong., 1st Sess., House Jud. Com. (1951), pp. 26–7, 36–7.
20 House Rep. No. 1160, 82nd Cong., 1st Sess., on H.R. 3589, p. 2.