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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 material. 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 of an 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.
Senator McCLELLAN. They cannot do it?
Senator McCLELLAN. Let me ask you something else. The thought occurs to me, suppose we just blot it all out, say they cannot use any of it. How would the authors, and composers, and so forth benefit from that? Would they like that?
Mr. ROSENFIELD. Mr. Chairman, in my major statement, I pointed out that despite the increase of copying, publishers were making more money, authors were making more money than ever before. Our point is that they are making the money because we encourage the use.
Senator McCLELLAN. Another thing, just by way of illustration. A composer composes a song, and it is copyrighted, and some publisher gets the right to publish it and put it out. Do you tell me then that a person could not make a copy of that song in his own handwriting, and make his notes and so forth, and keep it for his own information without violating the law ?
Mr. ROSENFIELD. That is what Mr. Karp said before the House committee yesterday.
Senator McCLELLAN. I am not against authors.
Senator McCLELLAN. I am just trying to find what is right and what is wrong. Mr. ROSENFIELD. Exactly.
Senator McCLELLAN. But I think it is a bit absurd to say that a teacher cannot make a full copy in her own handwriting, or on the typewriter or however she may want to do it, of a poem and that all she can do is give one verse to the students or part of one verse. It does not make much sense. There is something wrong here somewhere. If they cannot give it all to them, what is a student to do? I do not quite understand it. It is getting pretty involved.
Mr. ROSENFIELD. Mr. Chairman, I could not agree more with you. We do not think it makes sense to make us behave like furtive lawbreakers. All we are asking for is the basic practice of permitting nonprofit educational use by limited copying, extremely limited.
Senator McCLELLAN. Here is the thought I have. Take a composer of music, again. The composer's music is put out in sheet form. A mother wants to give a social or something to raise money for the PTA or something in the community, and they give a program and somebody takes that music and plays it as part of the entertainment of the evening. That goes to a nonprofit institution. Do they go so far as to insist that they ought to have some royalty out of that!
Mr. ROSENFIELD. Yes, sir.
Senator McCLELLAN. Well, I think they go too far. Once they put it out on the market, as long as somebody does not duplicate it for sale, in my judgment, so long as it is being used for educational purposes and for nonprofit entertainment, I do not think they are entitled to a royalty when it is used for that purpose. I just do not see it.
Mr. ROSENFIELD. Mr. Chairman, I wish you could put that in the statute. We would buy that right now.
Senator McCLELLAN. Well, I may be wholly wrong. That is my viewpoint at the moment, that they carry this thing a bit too far.
Mr. ROSENFIELD. Mr. Chairman, may I read you a letter the ad hoc committee received from the principal of a high school in Oregon, because I think it illustrates the very point you are making. May I do so, sir?
Senator McCLELLAN. Yes.
Mr. ROSENFIELD. This is a letter written on June 21, 1965. If you will permit me, I will not identify the school.
Senator McCLELLAN. Let us treat them the way these authors like to be treated; just quote from it.
Mr. ROSENFIELD. This one is in the public domain.
Furthermore, there was general agreement that the passage of this legislation
The bill before youwould result in fewer materials being used in the schools, thereby defeating one of the assumed objectives of the bill. * * * Under no circumstances would multiple copies of any of this material purchased by the school be purchased simply to give students lawful access to the diagram or picture. The student would just have to do without it.
What this principal ends up with, Mr. Chairman, is a very interesting thing. I shall not read the whole letter. He gives an actual lesson. They take 15- or 20-second clips out of a music library and put it on the recorder and then put the recording on the record player so the students of music can hear it. Then they take a 35-millimeter slide of the paper music, and put it on a screen so that the student can hear the music and see the music at the same time.
Senator McCLELLAN. These are not disseminated for them to keep, it is just for one exhibition?
Mr. ROSENFIELD. That is right. But they are illegal. We have been told they are illegal because they are illegal copies.
Now, what this principal says, and I just want to read one sentence: If it became illegal to use the materials above for instructional purposes, certain of the recordings and books would never have been purchased.
We make the point, Mr. Chairman, that our using this material brings royalties. We have innumerable cases where a book does not have a poem of a particular author, so the teacher will make 25 copies of a small poem on a mimeograph machine, distribute them to the students for discussion in the classroom. The bookstore of that school sells out the book with that poem. The students never would have known it before. What we are suggesting, Mr. Chairman, is exactly what you are suggesting.
Senator MOCLELLAN. Are you an attorney?
Senator McCLELLAN. Then let me ask you a question. Suppose I find a poem that has an appeal to me and I think it is appropriate in connection with some philosophy I am expressing in a public address, and I quote that poem. And incidentally, I get an honorarium for that speech. Have I violated the law. I quote the poem in full. It is a copyrighted poem.
Mr. ROSENFIELD. The whole poem is copyrighted ?
Senator McCLELLAN. Yes; I quote the whole thing to make my point and I get an honorarium for my speech.
Mr. ROSENFIELD. If the whole poem is copyrighted, I think it is illegal and you are violating the law and subject to $250 mandatory statutory damages.
Senator MOCLELLAN. I see some in the audience nodding their heads. Maybe they are experts.
Suppose I just leave out the last word, leave it blank. Would I then be violating the law ?
Mr. ROSENFIELD. Yes, I think you would be sufficiently
Senator McCLELLAN. Or it just has a hundred words in the poem, or 200 words. How many can I leave out without violating the law?
Mr. ROSENFIELD. Mr. Chairman, I do not know the answer to that, and I do not believe anybody knows the answer, because you then come into the question of "fair use," and "fair use" is determined by a set of criteria
Senator McCLELLAN. Understand now, I am taking a position. This poem has already been published, I find it in a book of poems that has been published that I bought and paid for. I am still violating the law if I quote it?
Mr. ROSENFIELD. That is right. Mr. Chairman, this is one lawyer's judgment. I regret to say that the difficulty with this field is if you get 5 lawyers, you get 12 answers.
Senator McCLELLAN. You get 5 lawyers and you get 12 answers. I will tell you what I am going to continue to do. I will be rather selective, because I would be selective in choosing the poem I want to quote anyhow in support of some argument I am making or some position I am taking on a public issue, but I will still quote them if I get them out of a book that I bought. I do not know what they will do with me, but they will have to convince me I did not have a constitutional right to use it if I bought it and paid for it.
Mr. ROSENFIELD. Mr. Chairman, the difficulty we are finding is this: one of the local school boards within 50 miles of here faced this issue. When this whole fuss came up about what may or may not be used in schools, the school board asked its attorney. The attorney did what attorneys frequently do and rendered an opinion. He said: It is impossible to tell in each case in advance whether or not we shall be subject to litigation. Therefore, do not use any copyrighted material.
The result is that school has been deprived of an effective, vital, current teaching program because of the perfectly normal desire of that school to avoid lawsuits.
Senator McCLELLAN. Yes.
Mr. ROSENFIELD. And this unhappy educational result is what we are trying to avoid.
Senator McCLELLAN. I am not altogether facetious in the questions I have asked you. I am trying to point up what is really at issue here and trying to rationalize where justice lies and what is equity under these circumstances. The authors have a property right; they created it. They should be compensated and they should be protected. But where does that protection end when I buy their product that they have released to the market, when I buy it? Is my use limited or should it be unlimited so long as I do not exploit it commercially! That is what I mean.