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ably expect a third-grade teacher in a rural school to know? The Copyright Office and its officials frankly admit that there are no applicable cases, that "fair use" is not predictable, that the safest course is to consult an attorney. Distinguished copyright lawyers disagree among themselves and with the Copyright Office. It is said that the scope and limit of "fair use" is the most obscure of all. And expert witnesses before committees in Congress are in conflict and cannot tell. I submit 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 copyright.” 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." Without an automatic educational exemption such as proposed by the ad hoc committee, "fair use" might well become a snare and a delusion to teachers.
Therefore while "fair use" is important, and should be written into the statute, alone it is not enough.
The third fallacious argument against our proposal, Mr. Chairman, is that it would wreck the publishing industry. All of the available objective evidence points to the contrary.
At the outset 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 objective facts? Let us look at how the publishers are faring now in the face of widespread and growing copying under the present law. I repeat, Mr. Chairman, in the face of widespread and growing copying under the present law.
First, last October the president of Scott, Foresman & Co., a large textbook publisher, spoke before the New York Society of Security Analysts, not in a copyright symposium, and projected a compound rate of growth of 8.1 percent a year for the textbook field in the period 1964 to 1970. The Dow-Jones tape for July 27, 1965, for this company reported an increase of 25 percent in the quarterly dividend rate.
Second, Crowell-Collier Publishing Co., merged with Macmillan in 1960. The annual report for 1963 contains the following illuminating information: that textbook sales gained 69 percent between 1960 and 1963. And the 1964 annual report shows an increase of net income per share of 66 percent in 1 year. A 66-percent increase, Mr. Chairman, in 1 year in one company shows they are not hurting despite the increase in copying.
Third, Hirsch & Co. made a review of textbook publishers dated May of this year, and it showed a 10.7-percent cumulative annual growth in the most recent 10-year period. This report predicted that "the textbook industry * * * should enjoy an annual rate of growth of 10 to 12 percent for the next 5 years at least” and that it would be immune to any downward business cycle.
Fourth, Standard & Poors, one of the bibles on the subject, stated on June 28, 1965, in an article "Outlook Booming for Textbooks Firms":
“The textbook publishing industry already growing at about 10 percent a year, will be boosted" even more.
May I point out, Mr. Chairman, that after the preparation of my statement, in the August 9 issue of “Printers Weekly, there appears
the following: “Raymond C. Hagel, chairman of Crawell Collier & MacMillan *** said that the issues involved in copyright revision are now being debated on the basis of conjecture. * ***»
Senator BURDICK. Mr. Rosenfield, at this point I am again required to go to the floor of the Senate. But first I want to take a minute. Do I understand correctly that the suggested language which you have on page 26 would take care of your objections?
Mr. ROSENFIELD. No, sir. This would take care of "fair use" to the extent that it is usable. It is our proposed section 111, the language on pages 4 and 5, Mr. Chairman, that I am now talking to.
Senator BÚRDICK. But you have an alternative suggestion?
Mr. ROSENFIELD. Yes, on pages 4 and 5, Mr. Chairman, the bottom of pages 4 and 5, suggest section 111, and for the committee's convenience at the end of my statement, the last four or five pages include
one place all of the legislative proposals that we have suggested.
Senator BURDICK. I see them. I think the best thing for us to do now is for the witnesses remaining who have not testified, and Mr. Rosenfield to check with the committee counsel regarding tomorrow's meeting. The sad part is that we are also transacting legislative business on the floor of the Senate, and I am trying to work out the best arrangements we can.
I think, in view of the situation on the floor, we will have to conclude at this time. As I say, I suggest that you meet with the counsel to work out some arrangement for the rest of your presentation.
Mr. ROSENFIELD. Thank you, Mr. Chairman. Some of our people have to leave town, and some are from out of town, but we will do the best we can. Mr. Brennan has been very kind and cooperative!
Senator BURDICK. Their statements will be placed in the record in toto.
(The statements referred to follow :)
STATEMENT OF CHARLES F. GOSNELL, CHAIRMAN, COMMITTEE ON COPYRIGHT ISSUES
OF THE AMERICAN LIBRARY ASSOCIATION
My name is Charles F. Gosnell, and I am here as Chairman of the Committee on Copyright Issues of the American Library Association. I am also Director of the Libraries of New York University and former Assistant Commissioner of Education of New York State, and State Librarian. I am here on behalf of the American Library Association to testify in favor of certain sections of S. 1006 and to declare our objections or reservations regarding other sections.
As librarians we are serving some 50,000,000 users of our public, school, college, and other types of libraries. This is by far the largest body of persons affected by copyright, and of course far exceeds the groups of publishers and authors.
The constitutional basis for copyright is well known, and we are glad to express our complete faith in it:
"* * * to promote the Progress of Science and useful Arts * * *." Likewise we are pleased to record our appreciation of the legislation relating to copyright which Congress has enacted over the years, and the interpretations issued by the courts.
We must express our alarm at the many attempts by certain groups to convert the proposed modernization of the copyright law into a measure that will do injustice to many citizens. It will revoke the time-honored rights and customs of scholars and researchers by proposing new restrictions on use of copyright mate rial, while extending almost ad infinitum the rights of authors.
The lack of reasonableness in some of the proposals is exceeded only by the lack of consideration for those who buy and use copyrighted material, those who actually support the author and the publisher.
I hold in my hand two objects which illustrate the confusion which has characterized the various conferences which have preceded the drafting of the present bill.
One is a very popular copying machine. It is a ball-point pen-a modern version of the pencil, the quill pen, the stylus, or a dozen other instruments that have been used for copying in libraries for the past three thousand years or more.
The other is a copy of the well-known Opticks by Sir Isaac Newton. Although it first appeared in print in 1704, this volume bears the copyright date of 1952. It has been said that the copyright date may cover the introductory material, but actually much of the introduction is taken from contemporary reviews and comment of over two and a half centuries ago.
Seldom has anybody ever objected to library readers sitting at library tables and taking notes or copying. In fact this is one of the basic purposes of libraries. Many libraries even sell pens and paper as a convenience. To save their time and effort in copying, some readers have brought typewriters into our libraries while some have brought in cameras to take photocopies. Some libraries have photocopy machines available on which the reader can serve himself. We see no basic legal difference between the scholar who laboriously takes notes by hand and the man who uses a more modern tool, such as a typewriter or camera.
Studies have been made on the effect of such copying. The results show no appreciable effect in diminishing the sale of books and magazines. In fact, there have been tremendous increases in sales and circulation in recent years. The total volume of book sales by U.S. publishers was about $1.6 billion in 1963 and has been increasing at a rate of about 10% a year over the past ten years.
In these days of mass production, no isolated one-at-a-time copying system can ever compete in cost or in quality with original central publication on a mass production, assembly-line basis.
Scholars and researchers make and use copies because they want only small portions, or because the originals cannot be obtained at all, or within a reasonable time. As a librarian, I know from experience how much time lag there is in ordering single titles from publishers—and how often after a short time the publisher abandons any responsibility to keep a book or journal available and lets it go out of print.
The vast majority of authors could not carry on their work without some kind of note-taking. Notes are particularly important to those who write in scholarly publications, and who often receive no compensation.
Conversely, there is practically no interest in copying from the big-money, popular best-sellers.
I repeat, there is no substantial evidence that one-shot copying by scholars in libraries has injured authors or publishers.
Concurrently with their threats to the long-accepted practices in our libraries, the authors and publishers have advanced proposals to extend greatly the term of copyright, and to complicate greatly the process of determining what actually is subject to copyright.
To us it looks like both eating and having your cake, while locking the door to the bakery store.
To the knowledgeable, the copyright claim on Isaac Newton's Opticks after 261 years is meaningless, but it is symptomatic of the desire of some publishers to throw a false curtain of protection over many things in print.
Another "notice” apparently is intended to prevent libraries from putting a permanent binding on a paperback book :
“For copyright reasons this book may not be issued to the public on loan or otherwise except in its original soft cover.”
This is indeed a weird extension of copyright—to prevent binding a book. I find no justification for this whatever. Maybe the publisher thinks he has a patent on the book-bound or unbound. A patent gives its owner an exclusive right to a product or a process. He may use it himself; he may license others to use it, free or at a price; or he may prevent its use by anyone. Thus a patent controls the substance of a new development. A copyright is entirely different in this respect. It requires that the material be published-made avail. able to the public generally.
The present law provides for a term of 28 years from the date of the printed notice, plus a similar term for renewal. Statistics compiled by the Register have shown that the 28-year term is more than enough for 85 percent of the authors and publishers—they just don't renew. Yet now it is proposed to extend the term for the life of the author plus 50 years. This drops into the laps of librarians the job of determining who is dead and who is alive, easy enough for a few, but practically impossible for the great majority.
At one time over a year ago, certain representatives of authors and publishers seriously proposed that the entire notice of copyright might be omitted. But, fortunately, that proposal has not prevailed.
Similarly, nothing yet has come of a proposal by certain authors that public libraries be taxed for lending books.
We note with regret that the mandatory penalties for “innocent infringement” have been made unduly harsh in the bill under consideration.
One member of a self-appointed committee of copyright experts has boasted that his group developed plans for restricting every means of transmission of thought except smell and extra-sensory perception.
As real evidence of this line of thinking I submit a “notice" printed this year by a leading publisher.
"All rights reserved. No part of this book may be reproduced or utilized in any form, or by any means, electronic or mechanical including photocopying, recording or by any information storage or retrieval system without permission in writing from the P blisher."
All I can ask is: “What is the use of buying a book if you can't utilize it? If you can't read it and commit what you read to that most magnificent of all means of storing and retrieving, the human brain? Must a cataloger get permission to copy the title page onto a catalog card? or list the contents? Can the title be listed in a computer?”
To clarify our stand on copyright issues, the governing council of the American Library Association, representing over 27,000 librarians and trustees, in the service of some 50 million readers, approved the following resolutions in 1964:
1. That the principle of "fair use" by reaffirmed.
2. That the requirement of printing of notice and date of copyright be endorsed as absolutely essential to libraries and library users.
3. That proposals to make the duration of copyright be for a fixed term, both for published and unpublished works, be endorsed.
4. That the principle that libraries be exempted from import restrictions and penalties be reaffirmed.
5. That the principle that government material should not be subject to copyright be reaffirmed.
6. That proposals to have copyright subsist in the Federal Government after its expiration in the hands of the copyright owner be opposed.
7. That the requirement of American manufacture as a qualification for securing copyright of works by American authors be opposed.
8. That the “not for profit” principle as now embodied in the copyright law be endorsed.
On the whole, we wish to commend the Register of Copyrights for good workmanship, for his efforts to be fair, for his patience in the development of the present revision bill. We are grateful, also, to this Committee for its interest, and for this opportunity to be heard.
The ALA Committee on Copyright Issues has participated in some meetings of the Ad Hoc Committee on Copyright Revision affiliated with the National Education Association, and we are in sympathy with their efforts to meet their particular problems.
None of us in the American Library Association or the institutions we represent has a cent to gain in the proposed legislation. We believe in the constitutional principle of copyright, and we are dedicated to keeping clear the channels of learning and research which make possible our American way of life today and tomorrow.
STATEMENT FOR THE NATIONAL EDUCATION ASSOCIATION OF THE UNITED STATES
BY T. M. STINNETT Mr. Chairman and members of the subcommittee, I am T. M. Stinnett, assistant executive secretary for Professional Development and Welfare of the National Education Association. I have served as a high school teacher, principal, and superintendent of schools in Arkansas; as assistant state commissioner of education and director of teacher education and certification for the Arkansas State Department of Education; as executive secretary of the Arkansas Education Association; as executive assistant to the president of the University of Arkansas; as executive secretary of the NEA's National Commission on Teacher Education and Professional Standards for eight years (1951-1959). I have been in my present position since 1959. Like many teachers, I am both an author and a user of copyrighted materials. I have written seven college textbooks in teacher education; several public school textbooks; and numerous articles for professional journals. Therefore, I speak today both as a creator and as a user of copyrighted materials.
I appear before you today at the request of the president and the executive secretary of the National Education Association, both of whom are abroad attending the annual meeting of the World Confederation of Organizations of the Teaching Profession.
The National Education Association is the largest professional organization in America, consisting of 943,000 members representing the broad spectrum of American education from kindergarten teachers to college professors. Approximately 90 percent of our NEA members are classroom teachers, but our membership also includes administrators, supervisors, school principals, county and state superintendents of public instruction and their staffs, and other individuals.
WHY THE NEA IS INTERESTED IN COPYRIGHT LAW REVISION
The charter of the National Education Association, which was granted by the Congress of the United States, sets forth the purpose and objectives of the association in these words : "to elevate the character and advance the interests of the profession of teaching and to promote the cause of education in the United States.” The NEA, therefore, has two primary concerns: the improvement of instruction in the nation's schools and the protection of the rights of teachers and their welfare. Both of these interests are affected by any revision of the copyright law. Improvement of Instruction
Education is in the midst of a gigantic revolution—a many-pronged revolution—especially so in the content areas and in methodology. There are new curriculum developments in the major disciplines which are based on widespread change in curriculum materials.
With the curriculum explosion facing us in every area and at every level in public education, close examination of all types and kinds of materials is a necessity if change is to occur at the practical level of classroom application. At best this is a difficult and complex enough problem. We feel that some of the current suggested revisions of the copyright statutes will impose yet another level of complication. There is little to be gained in working out new curriculum developments, if in the end teachers, who would otherwise strengthen and improve their teaching through uses of new materials, are only to be frustrated because of artificial and inflexible restrictions which in the long run will not really protect the rights of originators or producers, but will be a severe detriment to improving instruction. NEA has a deep interest in the widespread use of many materials of instruction to strengthen and enrich the efforts of classroom teachers in all subject areas. The teacher must be free to teach and must have access to materials to do his job. Rights and Responsibilities of Teachers
Teachers are both authors and users of materials. They want a law which will be fair and just to all concerned. We wish to see proper protection of the interests of those persons whose creative abilities produce fine instructional materials so as to stimulate the continued flow of such materials. At the same time, there is an over-riding public interest to be met also—that of flexible availability of materials for instructional purposes.
Teachers and students must be able to use copyrighted materials with a minimum of time and effort devoted to making such materials available in their day-to-day classroom activities and on educational radio and television.
Once a reasonable law is obtained, the profession will itself be in a position to aid in enforcement of the law. But as long as arbitrary and impractical barriers to the use of materials exist, teachers will be reluctant to use materials, particularly when there is a possibility that such use constitutes an infringement.
NEA'S POSITION ON COPYRIGHT LAW REVISION
Because education has a substantial interest in the copyright law, the NEA through its Division of Audiovisual Instructional Service and its National Commission on Professional Rights and Responsibilities, in July 1963, called a na