A. Amend § 302, page 17 to read as follows:

"S302. Duration of Copyright: Renewal and Extension

“(a) Copyright in a work created on or after January 1, 1967, subsists from its creation.

"(b) The copyright secured by this title shall endure for twenty-eight years from the date of creation of the work whether the copyrighted work bears the author's true name or is published anonymously or pseudonymously, or is a joint work or a work made for hire: Provided, That in the case of any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than an assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work, the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in default of the registration of such application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication.

"(c) Subsisting copyrights originally registered in the Patent Office prior to July 1, 1940, under section 3 of the act of June 18, 1874, shall be subject to renewal on behalf of the proprietor upon application made to the Register of Copyrights within one year prior to the expiration of the original term of twenty-eight years."

B. § 303: delete second sentence, beginning on line 10 of page 18.

C. § 304: delete subsections (a), (b), and lines 18 through 25 (inclusive) of subsection (c), on page 19 and (1) substitute the following:

"S 304. Duration of Copyright: Termination of transfers and licenses covering renewal terms

"(a) In the case of any copyright subsisting in either its first or renewal term on January 1, 1967, other than a copyright in a work made for hire, the exclusive or non-exclusive grant of a transfer or license of the renewal copyright or of any right under it, executed before January 1, 1967, by any of the persons designated in subsection (b) of this section, otherwise than by will, is subject to termination under the following conditions:"

(2) Insert the following between lines 6 and 7 of page 21:

"(b) The authority for termination of transfers and licenses provided for in subsection (a) of this section may be exercised by the following designated persons:

"(1) The author, if living, of any work (including a contribution by an individual author to a periodical or to a cyclopedic or other composite work) other than any periodical, cyclopedic or collective work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, or

"(2) The widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors or in the absence of a will, his next of kin.

(3) Make appropriate changes in Table of Contents of sections on page 16, between lines 19 and 20.

Mr. ROSENFIELD. In passing may I say I am a trustee of the Copyright Society of the United States of America, and have been a member of the Copyright Law Committees of the American Bar Association and the Bar Association of the District of Columbia. I do not at

this point represent these bodies, but speak for the ad hoc committee. The present Attorney General wrote to the Congress that "copyrights are forms of monopolies." "Even at its best," wrote the assistant librarian of the 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 revisions, a distinquished 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, the same kind of congressional protection for education be written into any new copyright law in order to meet the needs of education described by Dr. Wigren this morning.

To accomplish these ends, the ad hoc committee proposes four amendments to S. 1006 as follows:

First, an educational exemption for limited copying for nonprofit educational purposes, through a new section 111, and an amendment to section 109 (4).

Second, a clarification of the fair use provision.

Third, authorization of discretionary judicial waiver of statutory damages for innocent infringement by teachers.

Fourth, a restoration of the present term of copyright, 28 years initial plus 28 years renewal or 28 plus 48 as originally proposed by the register.

May I add that our last recommendation is in opposition to what the register this morning testified as "one of the foundation stones of the entire structure and content of the bill as it now stands."

Mr. Chairman, there are other provisions of the copyright law which are of interest to education, but my written statement is limited to these four and, with your permission, I shall discuss orally only the first two of these stated amendments. First, an 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.

The present copyright law is sensitive to the public interest in its broadest sense by distinguishing nonprofit from commercial uses of copyrighted materials. This bill turns its back on this fundamental concept and lumps nonprofit and commercial uses together. We respectfully suggest that the blind spot in S. 1006 is its failure to give proper effect to the vital distinction between nonprofit and commercial uses and users of copyrighted materials."

In his 1961 report to this committee, the Register recognized the validity of this distinction, and recommended its retention, because, as he said, it strikes "a sound balance between the interests of copyright owners and those of the public."

The ad hoc committee agrees with the Register's 1961 recommendation on this point as far as it goes, and proposes a new section 111, which in the terms of education's needs, Mr. Chairman, represents the most urgent of the ad hoc committee's proposals. This new proposed section appears at the bottom of page 4 and at the top of page 5

of my prepared statement. Instead of reading it, I would like to characterize what it does.

The proposed section 111 would permit a teacher to make, first, only one copy or phonorecord of a full copyrighted work. However, if the work be dramatic, a pantomime or choreographic work, a motion picture or a film, the right to copy or record would be still further restricted in our proposal only to instances where both performers and the audience are limited to students, faculty, or staff.

And secondly, our proposal would authorize a reasonable number of copies of excerpts or quotations from that work for educational use, but only where the excerpts or quotations are "not substantial in length in proportion to their source."

Moreover, we still further restrict our proposal. Such copying or recording may be made only where such copyrighted works are "not originally consumable upon use." Furthermore, such copying or recording may be made only where the copies are "for the school's or the teacher's own educational use," and where no copies are sold or leased for profit, and "no direct or indirect private gain is involved.” This, Mr. Chairman, is our proposal, our first proposal.

The opponents of our proposal have made three arguments, each fallacious against our proposal which is designed to continue and expand the present law's "for profit" concept. They claim that it is a deprivation of property rights, that it is unnecessary because fair use is sufficient, and that it will destroy the publishers of educational materials. I respectfully suggest that all three of these arguments are fallacious, and shall endeavor to show so.

First, the argument that copyright is a property right which Congress has no authority to limit. This simply is not so.

Article I, section 8 of the Constitution grants no rights to authors. It merely grants power to Congress to enact copyright legislation. The Supreme Court in its very first case on this issue said:

Congress

instead of sanctioning an existing right,

created it

This right *** does not exist at common law-it originated, if at all, under the Acts of Congress.

The congressional report on the current copyright law of 1909 also made the same point crystal clear:

The Constitution

It said

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 holds unequivocally

Senator BURDICT. I am very sorry to interrupt, but I must go to the Senate floor for a vote.

Mr. ROSENFIELD. I understand, Mr. Chairman.

Senator BURDICK. I will be back.

(Short recess.)

Senator BURDICK. I hope you gentlemen can capsulize your statements as much as possible. We are running out of time.

Mr. ROSENFIELD. Mr. Chairman, with your admonition I will do the best I can.

There is a long line of cases which indicates that the conditions upon which copyrights are granted are wholly within the power of Congress to prescribe, the conditions that it deems wise control.

Mr. Chairman, if the property concept is inapplicable, what then is the proper test for copyright? And again I turn to the congressional report on the present law which said that such rights are "not primarily for the benefit of the author, but primarily for the benefit of the public."

This appears at the bottom of page 11 of my statement, Mr. Chairman. I have been skipping, to comply with your admonition.

The Supreme Court has said that "the copyright law *** makes a reward to the owner of secondary consideration." The primacy of the public interest as the basic criterion for copyright law was asserted by the Register in his 1961 report where he said:

Within limits the author's interests coincide with those of the public. Where they conflict the public interest must prevail.

And further "these needs must also be weighed in the light of the paramount public interest," he said.

We respectfully suggest, Mr. Chairman, that education is the most universal expression of public interest in the United States. The President's education message called for educational techniques that are modern. Among the "four major tasks" of the country he stated the following two goals:

First, "to put the best educational equipment and ideas and innovations within the reach of all students"; and, second, "to advance the technology of teaching." As educators therefore the ad hoc committee respectfully suggests that its proposal is, to use the Register's term, in "the paramount public interest."

A second argument advanced against the committee's proposal is that it is unnecessary because allegedly "fair use" is sufficient to meet the use of education. Here again I respectfully suggest that 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, how much, and under what conditions. In the context of S. 1006, with its elimination of automatic "nonprofit" exemption, the bill might well result in a lawyer's paradise by its inducement to lawsuits.

"Fair use" is a valuable adjunct, Mr. Chairman, and the ad hoc committee agrees that it should be made statutory. But it 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 *** 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 own special study on "fair use" said: *** fair use is not a predictable area of law."

(3) The Copyright Office has a series of circulars which it sends to people who ask for advice and guidance. The circular on "fair use" says that:

The line between "fair use" and infringement is unclear and not easily defined. The easiest 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 the doctrine of "fair use" would apply to the situation. If there is any doubt or question, it is advisable to consult an attorney.

The best advice from the Copyright Office to the teacher 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 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 of this year says "fair use" applies to "the relative insignificance of the excerpt copied."

And to complicate matters even more, the Music Publishers Association of the United States warns teachers that they cannot use "any part" of any copyrighted work, whether small, relatively small, or relatively insignificant. A recent treatise on copyright 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."" The recent House Judiciary Committee hearings illustrated the almost impossible dilemma a teacher faces with "fair use." Expert witnesses objected to a change in section 107 because of "the difficulty in laying down ground rules for all situations" and because "language added to section 107 in an effort to clarify fair use would not succeed. It would raise a whole new set of undecided questions for courts to settle, and would lead to the necessity of costly litigation." In answer to the House 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 that the solution was a "mutual sort of unspoken understanding." One witness said that "any writer" regards it to be "fair use" for a teacher to make one or two copies of a work, but two lawyers said that "fair use" never even allowed one copy of a full work.

An attorney for publishers testified that the doctrine of fair use was never intended to afford certainty of the law. And Mr. Schulman, just before we testified, submitted a statement which in part said that "the distinction between fair use and copyright infringement cannot be determined by resort to any fixed rules or criteria."

Mr. Chairman, I respectfully suggest that if all these copyright experts cannot agree on what is "fair use," how can anyone reason