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gram 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 case's 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 not an infringement of copyright.

APPENDIX B. COPYING

NEW SECTION 111. LIMITATIONS ON EXCLUSIVE RIGHTS: EDUCATIONAL COPIES AND RECORDINGS

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.)

COPYRIGHT REVISION LAW

THURSDAY, AUGUST 19, 1965

U.S. SENATE,

SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 2:10 p.m., in room 3302, New Senate Office Building, Senator Quentin N. Burdick presiding.

Present: Senators Burdick and McClellan.

Also present: Thomas C. Brennan, chief counsel; Edd N. Williams, Jr., assistant counsel; and Stephen C. Haaser, chief clerk, Subcommittee on Patents, Trademarks, and Copyrights; and Mr. Horace A. Flurry, representing Senator Hart.

Senator BURDICK. Mr. Rosenfield.

STATEMENT OF HARRY N. ROSENFIELD-Resumed

Mr. ROSENFIELD. Thank you, Mr. Chairman. So that the record may clearly indicate what the situation is, I appear on behalf of the Ad Hoc Committee on Copyright Law Revision, composed of 35 of the Nation's major educational organizations and institutions.

Some of the witnesses who were to testify yesterday as part of the educational panel arranged by the ad hoc committee with Mr. Brennan's kind approval, were not able to remain over in town to be here today, Mr. Chairman. They are Dr. Charles Gosnell, for the American Library Association, Dr. Fred Siebert, for the American Council on Education, and Dr. T. M. Stinnett, for the National Education Association. They have asked that their statements be incorporated in the record, and will of course be glad to hold themselves available for any questioning which this committee might care to direct to them. Senator BURDICK. Without objection their full statements will be made a part of the record.

Mr. ROSENFIELD. Thank you. Mr. Brennan was kind enough to say that they will be given the opportunity to appear later before the committee, if desired.

Dr. Wigren, Chairman of the ad hoc committee, asked me particularly to express his deep regrets at his inability to be here again today, owing to a longstanding out-of-town engagement. He too, of course, will be available gladly for further questioning by the committee at the committee's convenience.

Mr. Aleinikoff has returned today in order to complete our testimony, and we are available for questioning.

Yesterday when you adjourned the hearing, I was discussing the single most urgent legislative proposal of the ad hoc committee, a proposed new section 111 designed to provide an educational exemption for limited copying by teachers for nonprofit educational use. The text of this proposal appears on pages 4 and 5, and in the appendix of my statement. I outlined the limited effect of our proposal, and pointed out the fallacious nature of the arguments made against it. In this latter respect, I had already stated that the ad hoc's proposed new section 111 first was not a deprivation of property rights, but rather the means of furthering the most fundamental public interest of the American people and, second, it was necessary in addition to statutory "fair use" because of the uncertainty and unpredictability of "fair use" as a basis for effective teaching.

I was at the point of discussing the fallacious allegation of our opponents that the ad hoc committee's proposal would destroy the publishers of educational materials. With your permission, Mr. Chairman, I would like briefly to deal with this argument, and I would pick up on approximately page 20 of my statement.

I think I was at about the point of suggesting that in a speech last October the president of Scott, Foresman & Co., one of the largest textbook publishers, speaking before the New York Society of Security Analysts, predicted a compound growth of over 8.1 percent a year for the period 1964-70, and the Crowell-Collier, MacMillan Publishing Co., in its 1964 annual report, showed an increase of 66 percent in their net income in 1 year, from $1.30 to $2.16 a share.

A study by Hirsch & Co. of textbook publishers indicates a 10.7 percent cumulative annual growth in 10 years.

The New York Times for July 18, 1965, in a column captioned "Book Publishing: A Growth Theme," reports:

"Educational publishing has been dubbed by some observers as the biggest growth industry of them all."

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 noting these facts is to show that the publishers are prospering, and that they expect to prosper even more despite all the copying that is now going on in school. Teachers' copying of copyrighted works has not, and is not expected to, hurt publishers economically.

Furthermore, Mr. Chairman, two recent and impartial U.S. Government-sponsored studies concluded that there is no harmful economic impact of photocopying on publishers and authors.

A National Science Foundation sponsored study of scientific and technical photoduplication reached two conclusions on this point: First, that there is "no significant damage" to copyright owners in the scientific and technical fields "although duplication of this material is widespread and is growing rapidly." Second, that therefore there is no need for a clearinghouse "of the ASCAP type" at this time. The second impartial U.S. Government-sponsored study was financed by the Air Force Office of Scientific Research and dealt with scholarly publications, and its conclusion is:

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.

And its first recommendation is, and again I quote:

Claims that photocopying has a damaging effect upon publishing are not substantiated by evidence and should be disregarded.

Lastly on the so-called economic argument, there is reliable objective evidence of resultant advantage rather than harm to publishers and authors from such photocopying:

The National Science Foundation sponsored study found that over 55 percent of the authors stated it was a definite advantage.

2. The Air Force-financed study found that journals that were copied became subscription items.

3. Lastly, and particularly on this subject, and responsive directly to an observation by the ad hoc committee chairman Dr. Wigren, an editorial of the Chicago Tribune on August 18, 1964, read in part as follows:

* 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 publishers' 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 for section 111 is in the paramount public interest.

At the outset of my remarks yesterday, Mr. Chairman, I stated that the ad hoc committee proposed four major amendments. I have discussed the first one, a new section 111 authorizing limited educational copying for nonprofit purposes. I should like to turn briefly only to the second, the "fair use" problem.

Under present law, "fair use" is a wholly judicial doctrine and is not even mentioned in the present copyright statute. The only effect of section 107 of S. 1006 is to make such mention, "without any attempt to indicate the application or define the scope of the doctrine."

The Register's earlier bill, H.R. 11947, 88th Congress, 2d session, section 6 (first sentence) included a provision which was more meaningful and which was far more satisfactory to education.

We urge the restoration of that sentence in section 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 he, rather than the teacher, alone will have the evidence required under the criteria acquired by the courts to determine "fair use."

Therefore while the ad hoc committee agrees with the Register on including "fair use" in the statute, we believe first that it isn't enough, and that section 111 also is necessary, and second, that section 107 should be amended to read as set forth in our statement at page 26 as well as in the appendix of my prepared statement.

There are at least two other points we make in the statement, but which I shall not cover here, (1) that the statute should authorize the courts to make discretionary waiver of damages of innocent infringe

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