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The NEA concurs with other members of the Ad Hoc Committee in asking that the Congress give specal recognition to education's use of materials in any revision of the copyright law. In asking special recognition for education, however, the teaching profession accepts the responsibility to develop within the profession a code of fair practices which will serve as a guide to teachers in their day-to-day classroom use of materials. Most violations occur through ignorance rather than intent, and in order to avoid abuses of a statute which provides fair use and specific limited copying rights, we pledge to the Congress that once a just and reasonable laro has been enacted, we will put forth every effort to inform the members of the teaching profession of their responsibilities concerning compliance with the law. This code of fair practices would not be a substitute for an adequate law but would instead be a supplement to such a law. NEA's position on a statutory licensing system
As a member of the Ad Hoc Committee, the NEA has participated in several conferences with publishers' and authors' groups. At each of these conferences the suggestion has been made by both the publishers and the authors that a statutory licensing system, or clearing house would reconcile the differences between the producers and the consumers of materials. During one of the hearings held by Subcommittee #3 of the House Judiciary Committee, the copyright counsel for the American Textbook Publishers Institute proposed a blanket licensing system for copyrighted materials which, it was said, “would satisfy this year's needs as well as the future needs of educators and researchers for unimpeded access to copyright material.”
ATPI proposed to set up a clearing house for the reference and instructional materials published by its member firms. In so doing, they further stated :
“We recognize that the needs of teachers extend to many other kinds of copyrighted materials. We believe that the example of a clearing house cosponsored by ATPI and professional groups would mobilize other proprietary interests to similar action."
I should like to state for the record that the NEA has philosophical objections to any statutory licensing system, or clearing house, proposal. Our objections are these :
1. There has long been a recognition in the copyright act of a vital distinction between commercial and non-commercial uses of copyrighted materials. We believe that this distinction, at least for education, should be continued in the new copyright law. Further, we believe that, as a matter of public policy, education should be authorized to use and to make limited copies of copyrighted materials without clearances or royalties.
2. On the basis of the clearing house proposals we have heard thus far, a statutory licensing system would require continuous monitoring of classrooms to know the extent and nature of the use being made of materials in order to determine the fees to be charged to the schools and the distribution of the income among producers of the materials used. It is quite obvious that classroom monitoring of teacher uses of materials could lead to an unhealthy policing of materials usage in the schools with accompanying pressure by publishing groups on teachers to use their materials in order that they might obtain a larger portion of the income received by any clearing house.
3. The problems of imposing a rigid system of clearances on top of an informal and "fair use" arrangement would, we believe, unduly restrict practices that would be considered legitimate under the "fair use" section of the law.
4. The problems of administering a clearing house system would be many, and it is likely that the overhead cost required to administer such a clearing house would far exceed the revenues received therefrom. Educators might in all seriousness ask several other pertinent questions: Would the clearing house cover all types of materials usage-textbooks, trade books, newspapers, maga. zines, educational films, maps, charts, flat pictures, recordings, transparencies, musical selections, etc? Or would several different clearing house systems need to be developed for different types of materials—one for newspapers, one for magazines, one for educational films, one for educational television clearances, one for music? If a multiplicity of such clearing houses were to be initiated, then would it not be necessary to institute a clearing house for clearing houses?
The situation becomes enormously complex and intricate, and rather than make arrangements with several clearing houses the teacher would instead forego using materials at all and avoid being involved in this network of red tape. Therefore, the clearing house would have an effect opposite to that desired by the publishers and would inhibit rather than facilitate access to materials. There is some reason to believe also that several clearing houses within the publishing industry itself would be needed. In discussions our Association has had with the publishers at various meetings, we learned that not all materials of a given publishing house would be released to the clearing house. How would the teacher know which materials were a part of the clearing house arrangement and which were not?
The National Education Association applauds the Congress for its great concern for education in the historic legislation which has been enacted to date. It is our sincere hope that the Congress will continue its concern for education as it enacts significant new copyright legislation. We ask that the Congress enact a new law we can grow with—one that fosters and encourages promising approaches to teaching; one that is responsive to the emerging frontiers of the information revolution and the new educational technology; one that is flexible, not rigid ; and one that will help us meet the challenges of a clearly emerging new day in education.
STATEMENT OF FRED S. SIEBERT, DEAN, COLLEGE OF COMMUNICATION ARTS, MICHI
GAN STATE UNIVERSITY, EAST LANSING, MICH., REPRESENTING THE AMERICAN COUNCIL ON EDUCATION
Mr. Chairman and members of the Subcommittee, I am Fred S. Siebert, professor and dean of the College of Communication Arts at Michigan State University, East Lansing, Michigan, and have been serving as copyright consultant to the American Council on Education on whose behalf I appear before you. The membership of the American Council on Education consists of 1,113 colleges and universities and 230 organizations in the field of higher education.
You and the other members of the Subcommittee are already familiar with the history and rationale of copyright legislation and with the extended efforts of the Copyright Office to produce a bill (S. 1006) which would be acceptable to a wide variety of conflicting interests.
Education, and in particular higher education, has a deep and vital interest in copyright legislation. It is both a producer and a consumer of copyrighted materials. It is therefore interested in the utmost protection for the creators and proprietors of educational materials so as to stimulate the continued flow of such materials, and at the same time it is concerned that the educational process, including both teaching and various kinds of scholarly and scientific research, be able to utilize copyrighted materials with a minimum of time, effort, and expense. The widespread use of current materials for teaching and research purposes and the ease of duplication through inexpensive and instantaneous duplication processes have raised problems for both the proprietors and the consumers of copyrighted materials.
The history of copyright legislation will show that beginning with the first copyright statute enacted by the British Parliament in 1710 each successive act both in England and in America has enlarged the rights of the copyright proprietor. This present bill is no exception. Not only have the rights of proprietors of the traditional categories such as books, music, etc. been enlarged but new catgories have been added such as phonorecords, pantomimes and choreographic works. Two additional candidates for copyright protection have not been included in S. 1006—performers' rights and rights in the products of digital computers-probably with good reason.
Our civilization in the past has been based on what can be called the free flow of information. Fortunately information cannot be copyrighted so that no one individual or organization can have a monopoly of a piece of it. Sometimes it is difficult to distinguish between information and its format as, for example, with a map.
On the other hand it is just and proper that the creator or innovator be able to receive some form of monetary return for his intellectual products. The problem is to strike a proper balance between the producer and the consumer of intellectual works.
The American Council on Education is not opposed to the principle of royalty payments to copyright proprietors. Education probably contributes more royalties to copyright proprietors of literary works than any other identifiable group. However, the Council believes that certain limited uses of copyrighted materials in teaching and research are proper without the inconvenience of clearance for these limited uses.
Unfortunately, in its present form, S. 1006 has expanded the rights of the copyright proprietor beyond his rights in the present copyright law so as to limit educational uses. In other words, the existing law is, in a number of aspects, more favorable to education than the proposed law.
Let me be specific.
(1) The proposed extension of the term of protection results in a narrowing of the public domain and consequently the area from which education can utilize materials. Parenthetically, the first copyright act in 1710 (a slow moving period) limited protection to 14 years. The present bill extends this term (in a fast moving period) to life plus 50 years.
(2) The present bill eliminates the not-for-profit exemption for performances. This has particular significance for educational radio and television.
(3) The present bill expands the protected categories to include phonorecords or recordings thereby eliminating this category from general use.
(4) Pantomimes and choreographic works, under the bill, are no longer in the public domain.
I wish to point out that the American Council on Education is not opposed to these changes in the copyright law; in fact, it is in favor of them. I mention them only to show that education could be losing more than it is gaining under the proposed law.
The American Council on Education recommends that the interests of teaching and research should be protected by the following changes in S. 1006 :
(1) A clarification of the statement on "fair use," section 107.
(2) Some provision which would permit a limited amount of photo-copying for instructional and research purposes.
(3) An expanded right of transmission by educational radio and television of programs which are a part of systematic instruction, including the right to make recordings of such programs.
(4) The elimination or reduction of the minimum statutory damages for innocent infringers.
Let me expand briefly on each of these recommendations.
(1) The doctrine of "fair use."-Section 107 as presently drafted neither adds to nor subtracts from the rights of education. It merely states that the judicial doctrine exists. The American Council on Education would prefer a more definite delineation of this concept, albeit in general terms. Suggested wording is appended to these remarks (App. A). The Council hopes that, in that portion of its report dealing with section 107, the Subcommittee will refer to the factors governing fair use which were mentioned by the Register of Copyrights in his 1964 version of this bill (S. 3008, 88th Congress, section 6).
(2) Photocopying.–Although some might prefer to sweep this controversy under the rug, teachers and research workers need a more definite statement than "fair use" to guide them in this area. Book publishers have suggested the creation of some type of clearing house for educational uses, but no specific and workable plan has come to my attention.
The problem separates itself in two parts: (a) copying of excerpts, and (b) copying of whole works for educational purposes. Publishers and authors are justifiably afraid of any blanket permission for photocopying, but the need for language permitting a limited amount of copying is nevertheless present. Suggested language for a new section 111 is given in Appendix B. Again, the Council is not advocating indiscriminate use of photocopying, and the Subcommittee's report and other legislative history should make it clear that copies of excerpts and single copies of whole works are not to be used to supplant instructional materials regularly available on the market.
(3) Transmission and recording of educational radio and television programs (both closed circuit and broadcast).-Section 109 of S. 1006_provides for a limited use of copyrighted material in this type of education. It limits the use to programs (a) directed primarily to classrooms and (b) which are a part of systematic instruction.
The Council recommends that the present wording of section 109 be expanded (See Appendix C) to exempt also programs of systematic instruction where they are beamed to other audiences than those in a formal classroom. This would permit program's which are prepared for shut-ins, for adult home listening, and for other purposes that are purely educational. The Council makes no request for a similar exemption for purely cultural programs transmitted by educational radio or television.
In addition it is recommended through addition of a new section 111 (see Appendix B) that provision be made for the recording of the above type of program for future use and rebroadcast. It would be prohibitive for a college or university to prepare a comprehensive closed circuit instructional program for transmission live and only once. Its only economy would be in the re-use of such programs from video-tapes or kinescopes over a period of time.
(4) Minimum statutory damages.-I am quite sure that there is considerable technical infringement of copyright by teachers, professors, and research workers under the present law. As long as the law is indefinite these types of infringements will continue to occur. To protect the unintentional infringer, the Council recommends that the minimum statutory damages in the bill be either eliminated or further reduced, leaving the amount of damages to the discretion of the judge as it is in most other cases.
Copyright in U.S. Government Works.—There is a special problem here to which the Council wishes to direct the Subcommittee's attention. Section 105 of the bill provides that copyright protection shall not be available for any work of the United States Government and defines this in section 105(b) as "a work prepared by an officer or employee of the United States Government within the scope of his official duties of employment.” In its discussion of this provision the Supplementary Report of the Register of Copyrights on the 1965 bill notes :
"Under the definition in section 105(b) there would be nothing to prohibit an independent contractor or grantee from securing copyright in works prepared by him under a Government contract or grant, as long as the contract or grant permits it. We believe that it is important to preserve the basic right of private authors to secure copyright in these situations, and that any cases in which it is considered desirable to deny or limit protection should be dealt with by agency regulations or contract provisions, or by separate legislation.” (Supplementary Report pages 9-10)
The Council concurs in principle with the position of the Register of Copyrights with respect to the status of the independent contractor or grantee. Here again is a situation that perhaps can be best dealth with in the Committee's report on this bill, and in the subsequent legislative history. We hope that Congress will make clear its intent that section 105 is not intended to apply to publications resulting from Government support of research, especially in those cases where such suport is less than the entire cost of the research project. We believe, and we respectfully urge Congress to clarify this point, that in such situations the Federal agency involved should have discretion to permit the institution or person performing reserach to copyright the publications resulting from this research, provided always that the Government should have a royaltyfree, non-exclusive, and irrevocable license to use such publications.
In addition to the above, the American Council wishes to lend its support to two recommendations which either directly or indirectly affect education but which are being primarily sponsored by other groups:
1. The Council supports the recommendation for the complete elimination of the so-called "manufacturing clause" (sections 601, 602, 603). University presses as well as commercial publishers are opposed to the retention of these provisions which, if they belong anywhere, should be incorporated in a tariff act rather than in a copyright act. These provisions place an undue burden on the American author as opposed to foreign authors writing in English.
2. The Council also supports the position of the Deputy Archivist of the United States in his recommendation that since the proposed bill will include for the first time "unpublished manuscripts,” provision be made for the duplication of such manuscripts for library and scholarly research purposes.
In conclusion I wish to say that as a representative of the American Council on Education I have participated in most of the session of the Ad Hoc Committee on Copyright Revision. The Council has worked closely with this group and supports most of its recommendations, at least in principle, if not always in the exact wording proposed by the Ad Hoc Committee.
I shall be happy to attempt to answer any questions or to elaborate on any of the points brought up in this testimony. I appreciate this opportunity to appear before you.
APPENDIX A. FAIR USE
1964: SENATE BILL 3008, 88TH CONGRESS
Section 6. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of section 5, 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. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:
(1) the purpose and character of the use; (2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion use in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
1965 : SENATE BILL 1006, 89TH CONGRESS Section 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of Section 106, the fair use of a copyrighted work is not an infringement of copyright.
AMERICAN COUNCIL ON EDUCATION PROPOSED LANGUAGE
Section 107. Limitations on exclusive rights: Fair use
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 pot an infringement of copyright.
APPENDIX B. COPYING
NEW SECTION 111. LIMITATIONS ON EXCLUSIVE RIGHTS: EDUCATIONAL COPIES AND
Notwithstanding the provisions of section 106, it is not an infringement of copyright for anyone lawfully entitled under section 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 qoutations are not substantial in length in proportion to their source, solely for purposes of such person's or organization's own teaching, lawful performances, exhibition 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.
APPENDIX C. INSTRUCTIONAL BROADCASTING
Amendment to Section 109 (4), page 8, lines 4 and 5 as follows:
(4) "performance or transmission of a nondramatic literary or musical work, [otherwise than in a transmission to the public,] without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promotors or organizers if : (omit words struck out)
(A) there is no direct or indirect admission charge, or
(B) the proceeds, after deducting the reasonable cost of producing the performance, are used exclusively for educational, religious, or charitable
purposes and not for any financial gain." Mr. ROSENFIELD. Thank you, Mr. Chairman.
(Whereupon, at 4:30 o'clock the committee recessed, to reconvene at 2 p.m., Thursday, August 19, 1965.)