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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.
"In the four-year period 1960–63, textbook sales mounted from approximately $15,071,000 to $25,417,000, a gain of 69 per cent. Of this total, high school and elementary textbooks went from $8,256,000 to $14,485,000, a gain of 75 per cent. College textbook sales increased from $6,815,000 in 1960 to $10,932,000, a growth of 60 per cent.” (p. 3)
"The School Department publishes elementary and high school textbooks, workbooks and programmed and other instructional materials. Establishing a new sales record of $14,485,000 in 1963, the department increased its volume by 25 per cent over the $11,592,000 recorded in 1962.” (p. 10)
3. Hirsch & Co.'s Research and Advisory Department issued “A Review of Business and Financial Conditions” on textbook publishers, dated May 1965, which states the following:
“In 1963, ... total retail sales of textbooks and standard tests amounted to $475 million as compared to $173 million in 1953. This represents a cumulative annual growth of 10.7%.
"The textbook industry should enjoy an annual rate of growth of 10% to 12% for the next five years at least, with the college sector expanding even faster. Further, the industry's growth should be sustained even in any downtrend in the business cycle.” (p. 2)
4. Standard & Poor's The Outlook, for June 28, 1965, in an article "Outlook Booming for Textbooks," reports :
"The textbook publishing industry, already growing at about 10% a year, will be boosted by sharply rising Government expenditures in the field of education.
. . Industry sales reached a record $509 million last year, more than double the 1957 total, the gains stemming from both increasing enrollments and higher textbook expenditures per student . .” (p. 741)
5. The New York Times for July 18, 1965, in a column captioned "Bookpublishing: a Growth Theme,” reports :
“Educational publishing has been dubbed by some observers as the biggest growth industry of them all.'” (p. 11, col. 4)
6. The Xerox Corporation is reported to have purchased an educational publisher for a reputed cost of $56 million. Obviously Xerox does not expect its copying machines to destroy the profit on its $56 million investment.
Please note, the Ad Hoc Committee is delighted the publishers are showing profits and hope and expect they will continue to do so. Our only point in bringing these facts to this committee's attention is to show that publishers are prospering and that they expect to prosper even more despite all the copying that is now going on in schools. Teachers' copying of copyrighed works has not, and is not expected to, hurt publishers economically.
Second, two recent and impartial U.S. Government-sponsored studies conclude that there is no harmful economic impact of photocopying on publishers and authors. A National Science Foundation-sponsored study of scientific and technical photoduplication thus describes why it was undertaken :
those who are concerned with the photoduplication problem admit that factual data on the extent of the threat are lacking. It was the realization that such facts are lacking that led the National Science Foundation to commission this study." 27
Its conclusions include the following:
“The basic conclusion of this report is that at the present time, no significant damage occurs to copyright holders in the scientific and technical fields although duplication of this material is widespread and is growing rapidly.” (p. I)
"Because this report concludes that economic damage to copyright holders is not significant, it must also be a conclusion, from a non-legal standpoint, that a control of the ASCAP type is not required at this time (p. VI-9)
The Air Force Office of Scientific Research-financed study on scholarly publications 28 summarizes its conclusion as follows:
“The extension of photcopying has led some publishers to fear that it may take over the market for publications of monographic scholarly material. How. ever, the evidence presented in this study indicates that the reproduction of these materials by photocopying has not affected, nor is it likely to affect, the production of scholarly material in book form." (p. 71)
27 See note 24, supra, at p. IV–3.
28 Clarke, R. F., The Impact of Photocopying on Scholarly Publishing, 1963 (a Ph. D. thesis at Rutgers University).
And its first recommendation is :
"Claims that photocopying has a damaging effect upon publishing are not substantiated by evidence and should be disregarded.” (p. 77)
Third, there is reliable, objective evidence of resultant advantage to publishers and authors from such photocopying:
(1) The National Science Foundation-sponsored study found that 55.8% of the authors "stated it was a definite advantage.” (p. III-3)
(2) The Air Force-fir ced study found : "Photcopying particular journals over a period of time can lead to subscribing to those journals.” (p. 77)
(3) And the Chicago Tribune of August 18, 1964, p. 24, in an editorial specifically referring to remarks by Dr. Harold E. Wigren, Chairman of the Ad Hoc Committee, said:
".. . . permitting educational, not-for-profit circulation of an author's writings might serve the writer better than an iron-clad prohibition of such circulation without written permission. After all, an author's rights do not amount to much if no one wants to read what he has written if no one has ever heard of him. Perhaps the school mimeograph should be viewed not as a piratical rival to the trade publisher but as a helpful unpaid publicity agent who helps publisher's long-term sales."
We respectfully suggest that (1) there is no merit to the economic arguments advanced against the Ad Hoc Committee's proposal, and that (2) the adoption of the Ad Hoc Committee's proposal is in the paramount public interest.
II. AMENDMENT OF "FAIR USE" PROVISION
Under present law "fair use" is a wholly judicial doctrine and is not even mentioned in the present copyright statute. The only effect of § 107 of S. 1006 is to make such mention, "without any attempt to indicate the application or define the scope of the doctrine.” 20
The Register's earlier bill, H.R. 11947, 88th Cong., 2nd Sess., $ 6 (first sentence) included a provision which was more meaningful and which was far more satisfactory to education. The Ad Hoc Committee therefore urges restoration of that sentence in § 107 so that “teaching, scholarship, or research” are specifically mentioned as being legitimate purposes of "fair use."
In addition, the Ad Hoc Committee urges that the burden of proof in instances of educational "fair use" be transferred to the copyright owner since in the overwhelming proportion of the cases the copyright owner, rather than the teacher, alone will have the evidence required under the criteria applied by the courts to determine "fair use."
Thus, while the Ad Hoc Committee agrees with the Register on including "fair use" in the statute, we believe that $ 107 should be amended to read as follows:
"Notwithstanding the provisions of section 106, the fair use of a copyrighted work to the extent reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright. Noncommercial educational use by a nonprofit educational institution or organization shall be presumed to be such "fair use unless specifically rebutted."
III. DISCRETIONARY WAIVER OF STATUTORY DAMAGES FOR INNOCENT INFRINGEMENT
Under present law, innocent and harmless infringement is subject to mandatory minimum statutory damages of $250.00. S. 1006 takes an important forward step in $ 504(c)(2), second sentence, by recognizing that in cases of innocent infringement the Court may, in its discretion, reduce the award to "a sum of not less than $100.” We commend the Register for this provision.
However, for a teacher damages of $100 is as serious a deterrent to using any copyrighted material as the present $250 minimum. This is all the more true since, unlike a commercial employer, a School Board may not be held liable respondent superior and may not be able to reimburse the teacher for such $100 judgment relating to work done in his official teaching capacity. See Wihtol v. Crow, 309 F. 2d 777, 782 (8th Cir. 1962). Therefore, the Ad Hoc Committee recommends that $ 504(c) (2) be amended by adding the following sentence at the end of the present line 19 on page 30, as follows:
"In a case where the infringer proves that the infringing use was for bona fide nonprofit educational purposes and made in reasonable belief that such
29 Goldman, op. cit., supra, note 4, at 1269.