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main focus of the report, which as you know is primarily concerned with the organizations involved in presenting live professional performances of theatre, dance, and music.

The points you have raised should be explored, but at the moment, with our panel disbanded, we cannot make an extended study. We would like to suggesi, however, that in The Performing Arts: Problems and Prospects, the panel's view on copyright revision is not so one-sided as the interpretation that has been made. The panel states, page 141, that it is opposed to a blanket exemption from payment of fees for the use of copyrighted material by educational television. This does not mean that the panel would be opposed to any exemption whatsoever.

It is our understanding that the proposals which are being put forth by National Educational Television in the current hearing on copyright revision are for a partial rather than complete exemption. We also understand that there are practical problems of availability of material as well as payment of royalties involved. All of these very complicated technical problems must be resolved with the general public interest in mind.

Finally I would like to call your attention to the following statement on page 199 of the report: “The panel believes educational television has a great opportunity to make a significant contribution to the arts. The panel urges the community to provide the support necessary to exploit this opportunity vigorously.” Sincerely,

ALAN CAMPBELL. Senator BURDICK. There is another vote on the Senate floor.

Mr. ALEINIKOFF. Senator, would you like to hear us when you come back?

Senator BURDICK. You have completed your statement. We are grateful to you. Mr. ALEINIKOFF. Thank you, sir.

(Whereupon, at 3:45 p.m., the subcommittee adjourned to reconvene Friday, August 20, 1965, at 10:30 a.m.)

COPYRIGHT LAW REVISION

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FRIDAY, AUGUST 20, 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 10:35 a.m., in room 3302, New Senate Office Building, Senator John L. McClellan presiding.

Present: Senator McClellan.

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

Senator McCLELLAN. The committee will come to order.

Mr. Rosenfield, I understand that you had concluded your testimony, but a member of the subcommittee desired to have some questions submitted to

you

for your answers. I shall direct counsel to read the questions to you and you make your answers for the record.

STATEMENT OF HARRY N. ROSENFIELD- Resumed

Mr. ROSENFIELD.

I shall be delighted to respond. Mr. BRENNAN. The first question, sir: Do you believe that educational use of copyright materials should be free or should this use be paid for?

Mr. ROSENFIELD. Mr. Brennan, we believe that some use should be free and some use should be paid for. Under the present law, since 1909, there have been a large number of uses that have been free under the "for profit” provision. We believe that that is the correct point of view, that Congress adequately and properly expressed the public interest when it said that “nonprofit” uses of certain kinds should be free under the law. We do not believe that all uses should be free and are opposed to that.

Mr. BRENNAN. Thank you, sir.

The second question: If some arrangement could be made for securing copyright permission rapidly, such as through a clearing house, would you favor it?

Mr. ROSENFIELD. No.

Mr. BRENNAN. The third question: You seek permission to make a reasonable number of copies of excerpts. What is a reasonable number? How long is an excerpt?

169

Mr. ROSENFIELD. A reasonable number depends upon the use, Mr. Brennan. If the Congress were to adopt that concept and the teacher were to have a class of 30 students, 33 or 35 copies is reasonable; 350 is not reasonable. In other words, the use which Congress would authorize would itself determine the nature of the number that would be determined to be reasonable.

Your second question is, if I understood, How long is an excerpt? Mr. BRENNAN. Yes.

Mr. ROSENFIELD. In the proposal of the ad hoc committee, and the Senator asked if we had specific language and we do—the first page of the appendix of my original statement includes a new proposed section 111, and we say, “to make a reasonable number of copies or phonorecords of excerpts or quotations from the work, provided that such excerpts or quotations are not substantial in length in proportion to their source.”

Mr. BRENNAN. The fourth question: Does the proposed bill deprive teachers of any rights they enjoy under the present law?

Mr. ROSENFIELD. There are two answers to that, Mr. Chairman. We think in part the answer is “Yes,” because, as my original statement indicated, there is respectable authority that under the "forprofit” provision of the present law there is the possibility of some copying. Three authorities, which I cited, indicate that possibility. The difficulty on both sides, unfortunately, is that there is no judicial determination on the subject.

Second, I thought the Register the day before made a very interesting and fruitful point. The issue is not what the present inadequate law does or does not do; the issue is : what is it that should be done?

Mr. Brennan, the basic, the fundamental factor that we are facing in American education today is that throughout the length and breadth of the educational system, both public and private, teachers in good faith are making copies and are using these copies for classroom use. So the fundamental question is, as Grover Cleveland put it, we have a condition, not a theory.

Mr. Chairman, the school system of America looks to Congress to enact a law that makes it possible legally to do effective, good teaching, because this is the condition which must be protected.

Mr. BRENNAN. Let me interject and ask you to comment on this sentence in the Register's prepared testimony. On page 11, he states:

The bill would in no way whatsoever diminish the privilege the schools now have under the present law with respect to classroom uses of copyrighted ma. terial.

Do you wish to comment on that statement ?

Mr. ROSENFIELD. Yes; I would be very grateful for the opportunity. The trouble is that nobody knows what the present law authorizes, Mr. Brennan. We are talking about copying, which is the critical issue, as I testified, so far as the ad hoc committee's recommendations were concerned. The Register's supplemental report, at page 28, says that "fair use” does not cover "copying [an] entire work.”

The Deputy Register's testimony before the other House said the other thing. The American Book Publishers say the same thing. Mr. Karp says the same thing. Virtually the entire bar says the same thing, except for the sources which I cited in the footnote on page 6 of my prepared statement.

Now, if it be true that we do not have the right, then we object to not having what the present law does not give us but which almost universally practice around the country permits.

Let me say one further thing on that score if I may, Mr. Brennan. Various Federal agencies have submitted reports on the bill before you, and I believe that these reports substantiate what I regard as the folly of attempting to rely on "fair use" in terms of the predictable right to make copies for classroom use, either by students or teachers. The Federal Communications Commission's report, for example, says, and I quote:

* * we are also mindful that "fair use" is both limited and an indefinite doctrine * * * Further, there is no precise way of knowing how much of a copyrighted work can be used in a given situation under the doctrine of fair use. The prospective user would apparently need expert advice to judge each case individually, and, even so, there would be the risk of having to defend an infringement suit. We are therefore of the opinion

Said the Federal Communications Commission, Mr. Chairmanthat the doctrine of "fair use" would not in and of itself be an adequate answer for educational broadcasting purposes.

The HEW report says the same thing. The Deputy Archivist testified before the other body to the same effect.

The effect, Mr. Brennan, of the present law was best illustrated by testimony on the other side yesterday morning, when a very distinguished and renowned copyright lawyer said, and admitted before the House committee, that it is not "fair use" to make an entire

copy entire work by handwriting, even if it is a small poem. When the acting chairman of the House committee asked him specifically, this copyright lawyer replied that that was the story, but it was not important, because nobody was going to sue.

So what the teacher is being told to do around America is to be a blackmarket practitioner, to do things “under-the-table” which everybody knowingly knows to be wrong and illegal, and which the Register has said in his report is illegal.

Mr. Chairman, we ask to get on the top of the table. We do not want "under-the-table” activity by our teachers. Our people, the teachers of America, are law-abiding, moral people. They do not want to have to teach illegally.

Senator MCCLELLAN. What do you want them to do, pay for it, the schools to pay for the material ?

Mr. ROSENFIELD. Now, we suggest two things, that there be a right to make a single, no more than a single, copy of an entire small worka poem, a short story, an essay—just one full copy, and the right to make a reasonable number of excerpts of that work for classroom use. We were told yesterday and we have been told before that when a 16-year-old student hand-copies something for classroom use, it is illegal. This is absurd, Mr. Chairman, to ask us to operate under a law which makes the entire student body of America illegal.

Senator McCLELLAN. You mean a book that is published, that is copyrighted, a schoolteacher cannot write a whole chapter out of that and disseminate it to the class?

Mr. ROSENFIELD. That is what we are told.

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