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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 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 : 66**'* 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"
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 reasonably 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 copy. right.” 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.