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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 legis

lation

The bill before you

would 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 MCCLELLAN. Are you an attorney?

Mr. ROSENFIELD. Yes, sir.

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.

70-373-67-12

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 MCCLELLAN. 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.

Mr. ROSENFIELD. Mr. Chairman, let me indicate a constant argument made against us, and it runs right along the line you have just mentioned. People say, we buy a table and we pay for it. We buy a chair and pay for it. Why do we not want to pay for the use we make of a copy of a book? We own the book. We want to make a copy of a portion of a book to convey ideas-something you don't do with tables and chairs.

Senator MCCLELLAN. When you buy a book, I think you own the use of it.

Mr. ROSENFIELD. My answer is exactly that, that when we bought this chair, we do not pay for it every time we sit in it. We bought it, we can sit in it.

Senator MCCLELLAN. For your use. I do not think I could buy a book and take it and duplicate it and publish it. What I mean is if I buy the book and I want to use an excerpt from it, a poem that has been published in the book, say, by the author's consent; obviously, they cannot publish the poem and use it that way without getting permission. Once they do it and put it on the market and it is sold and I buy it, I think I have the right to use it unless I take it for the purpose of commercial exploitation.

Mr. ROSENFIELD. Mr. Chairman, we have asked that the copies proposed in section 111 be solely "for course work study" in connection with teaching, 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."

Senator MCCLELLAN. Well, I wish to thank you. I did not mean to get off on this thing. I have no doubt we shall have a visit from ASCAP or somebody like that pretty soon. I shall welcome it. I may be wrong. If they can show me I am wrong, all right. But these thoughts have come to me and I think they have a responsibility in this area to come in here with something that is practical, that is workable, that serves them and protects them as well as makes it possible for the educational authorities and people in this country to disseminate that which is good in education and do it on a basis where they know in advance whether they are becoming criminals or whether they are acting in the public image and performing in the public service. Thank you very much.

Mr. ROSENFIELD. Thank you, Mr. Chairman.
Senator MCCLELLAN. Call the next witness.

Mr. BRENNAN. Mr. Mark Carroll.

Senator MCCLELLAN. Mr. Carroll, I see you represent the Association of American University Presses, Inc. We welcome you. You may proceed to read your statement if you like I note it is relatively short-or you may summarize it for the record and it will be appended in full thereto. The choice is yours.

STATEMENT OF MARK CARROLL, CHAIRMAN, COPYRIGHT COMMITTEE, ASSOCIATION OF AMERICAN UNIVERSITY PRESSES, INC.

Mr. CARROLL. Thank you, Mr. Chairman. I should like to read the beginning portion of my prepared statement.

My name is Mark Carroll. I am associate director of Harvard University Press, and chairman of the Copyright Committee of the Association of American University Presses. I speak today on behalf of the association, which has 67 member presses (listed in annex I of this statement), 64 of them located in 36 States and the District of Columbia. University presses are nonprofit publishing organizations operating under the control of universities and research institutions, existing for public educational ends. Through the publication of scholarly books and periodicals, they provide a means of communication between scholars and serve the advancement of knowledge in the arts and sciences and the professions.

I would like to direct my remarks to three areas. The three areas are those concerned with copyright of U.S. Government works, the fair use section, an area where we support the present wording of the bill, and chapter 6, dealing with the importation of copies, which we strongly feel should be completely eliminated from the bill.'

Senator MCCLELLAN. Which section is that now?

Mr. CARROLL. This is an interpolation, Mr. Chairman, following the first full paragraph on page 2.

Senator MCCLELLAN. All right, go ahead.

Mr. CARROLL. The reasons for our positions on these matters are set forth in our prepared statement, which I should like now to enter into the record in its entirety.

Senator MCCLELLAN. The remainder of the prepared statement may be printed in the record in full at this point. (The statement referred to follows:)

STATEMENT TO THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY ON S. 1006 BY MARK CARROLL ON BEHALF OF THE ASSOCIATION OF AMERICAN UNIVERSITY PRESSES, INC., AUGUST 9, 1965

Our Committee has been impressed by the painstaking scholarship with which the Copyright Office has made the studies upon which the present Bill is based, and the fairness to the interests involved with which it has been drafted. There is no question that a new copyright law is urgently needed.

Our Association has been given the privilege of having an observer at the meetings of the Joint Copyright Committee of the American Book Publishers Council and the American Textbook Publishers Institute, and we have been impressed by the common sense and wisdom of its recommendations, and can generally associate ourselves with these organizations. But as professional publishing organizations that are also members of the scholarly community, we consider that there are a few areas of copyright law in which the interests and purposes of non-profit scholarly publishers, and of the scholar-authors and the educational community they serve, lead them to emphasize or modify the recomendations of their publishing colleagues. This statement will be confined to three such areas.

1. COPYRIGHT OF THE UNITED STATES GOVERNMENTS WORKS

Section 105 of the Bill should be eliminated, and there should be substituted for it Section 4 of the 1964 Bill, HR 11947. The present Bill prohibits without qualification copyright protection for "a work of the United States Government." Section 4 of the 1964 Bill, following the recommendation of the Copyright Office, permits copyright in such works under "exceptional circumstances."

The extent and scope of government publication have increased enormously in the last few decades. There are thousands of scholars on the government payroll-not to speak of the tens of thousands whose research is carried on with the aid of federal grants. The federal government is already the major sponsor of research in the natural sciences, and it may well have the same position in the near future in the social sciences and the humanities. A copyright law that does

not recognize federal involvement and participation in research and publication, in every area of knowledge, and that does not have some provision to protect the rights of authors employed by the federal government by permitting copyright of government publications under special and controlled conditions, will be fair neither to authors nor to our society's need for the widest dissemination of useful knowledge.

From the point of view of the scholar-author, a lack of provision for copyright protection of government publications puts a penalty upon his taking employment with the government, rather than with a university, a research institute, or a private enterprise. From the point of view of the general interest in the dissemination of knowledge, prohibition of copyright in governmental publication places a handicap on the operations of publishers, whether they are non-profit or commercial. Experience has shown that the government itself is an ineffective publisher: it can release a book, a report, or a pamphlet, but it cannot advertise, sell and promote it. Non-governmental professional publishing organizations, commercial or non-profit, are the most effective agencies for achieving proper publication and distribution. They can do so only with the protection for their publishing operations that copyright provides.

In the Association of American University Presses we are thinking primarily of works of scholarship written by government employees or by those supported by federal grant funds in line with or as a by-product of their official duties, that make recognizable contributions to their fields of study. Their authors should enjoy copyright protection for their contributions to scholarship equivalent to that of their fellow scholars outside the federal government. They can do so only if they-and their publishers-can be assured copyright protection under controlled conditions.

2. FAIR USE

These sec

Sections 107 through 110 of the Bill seem satisfactory as written. tions deal with the limitations on the exclusive rights of the copyright owner, the right of "fair use," and special privileges given educational and other nonprofit uses of copyright material. They represent a compromise between the rights of the author and the copyright proprietor to enjoy a return on their literary property, on the one hand, and the rights of educational and other nonprofit uses of copyright material. They represent a compromise between the and effort and expenditure. On the whole, the compromise put forward in these sections seems reasonable. Specifically, it is proper that the doctrine of fair use be recognized in the Bill, but that no attempt be made to define it precisely, leaving it to the courts to give it meaning in terms of rapidly changing times. The exemptions granted in Section 9 to the use of non-dramatic literary works for educational, religious and non-profit purposes seem sufficient.

In general, we would observe that it is important now to attempt to foresee the probable effect that new developments in the field of information retrieval are phrase the Bill broadly enough to allow for such developments. We do not likely to have on the distribution of books and other printed material, and to quarrel with the practice of one-copy-per-user whereby a user makes a single copy of a document or portion of a book or periodical in a non-classroom situation and in lieu of notetaking, for this is now a technological fact of life. We do oppose any wider applications of this practice, by whatever individuals or organizations, for profit or not, without the permission of the copyright proprietor. Technological advance is welcome and inevitable-but not at the sacrifice of all rights of the author and the undermining of the economics of the publishing process.

In his supplementary report, Part 6, the Register has stated, "the intention of section 107 is to give statutory affirmation to the present judicial doctrine, not to change it." We support this view.

3. MANUFACTURING CLAUSE

Chapter 6 of the Bill, the so-called "manufacturing clause," which denies copyright protection (with some minor exceptions) to books and other printed materials of American authorship manufactured outside the United States, should be eliminated entirely. This has been the unanimous opinion of the members of the Association of American University Presses, recorded at its annual meetings, for a number of years. Most of the associations representing publishers or authors have also gone on record against this clause, as have a number of educational organizations. The Register of Copyrights omitted such

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