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owner of copyright in the collective work.” We think that the parenthetical language in Section 403(a) should be deleted from the Bill because it would mean that newspapers cannot protect their copyright in advertisements unless they use a separate copyright notice on each such advertisement. While newspapers do publish ads which are wholly created by the advertiser and copyrighted in the name of the advertiser, they also publish many other ads in which newspapers hold a copyright interest either under the terms of a written document or because the ad was created or composed solely by the newspaper. There is presently pending litigation in which a newspaper publisher asserts such a copyrighit interest against a defendant charged with the infringement of the copyright in the advertisement by photographically copying the ad for use in another publication. We believe it would be wiser to permit this question to be resolved in the courts rather than insert in the Bill what amounts to a statutory rule that newspapers do not have a copyright interest in the newspaper advertisements. In light of these considerations we urge that the parenthetical language in Section 403(a) be deleted.
We respectfully urge that in considering the merits of Bill s. 1006 the Subcommittee consider the foregoing matters which are of vital concern to American newspapers. Very truly yours,
STANFORD SMITH, General Manager.
NEW SMYRNA BEACH, FLA., July 21, 1965. Hon. JOHN MCCLELLAN, Chairman, Senate Subcommittee on Patents, Trademarks and Copyrights, Senate Office Building, Washington, D.C.
DEAR SENATOR MCCLELLAN : 1. I am a member of the Committee on Patents, Trademarks and Copyrights of the American Bar Association, and having more than a casual interest in said Revision, I have already given Congressman A Syd Herlong, Jr., representing my Congressional District in Florida, some of my observations on the Proposed Revision, and have fully documented my reasons therefor.
2. According to the Congressional Record of July 12, 1965, at page 15856 thereof, there will be meetings of the Standing Sub-Committee on Patents, Trademarks and Copyrights, on Wednesday, August 4th, and Thursday, August 5th, 1965, at 10 a.m., in Room 3302 of the New Senate Office Building, at which time and place anyone who wishes to testify or submit a statement for the record for the General Revision of the Copyright Laws, should communicate immedi. ately with the office of the Sub-Committee, Room, 349-A of the Senate Office Building, Washington, D.C., Telephone 225–2268.
3. I have planned to attend the Annual Meeting of the American Bar Association in Miami, Florida, which, as you probably know, will open there on August 6th, and run until August 13th, 1965.
4. I shall endeavor to appear before the Committee on Copyrights of the American Bar Association in Miami to relate my observations as to how your committee reacted to my testimony, and to my documentation in support of my testimony, if I am given the opportunity to appear before your Committee.
5. Should I find it impossible to appear before your Committee, I will file with it a typed statement of perhaps three pages, together with a list of my documentations, which consist of citations from pages of recent issues of the Congressional Record bearing on the new proposed Copyright Law together with photostats of correspondence from some of members of the American Bar Association appearing in recent issues of the Journal of the American Bar Association, pertinent to your current hearings on a new Copyright-several of said letters are so interesting as to be unforgettable.
6. I hope to arrive in Washington the week preceding the above hearings, andon my arrival will phone your office relative to this letter. Respectfully.
JOHN F. KAVANAGH. (NOTE.—Mr. Kavanagh submitted the following for inclusion in the appendix.)
I have neither the time nor the assistance necessary to do that job so I will confine my criticisms on this point to the following pages of the proposed Copy
right Bill, H.R. 4347 supra, to wit: page 21 Chapter 4, Section 401, Line 31 (2)— Amend the language reading “the year of first publication of the work”, by adding the words “and date of month” to precede the words “of first publications of the work."
In support of my suggestion I refer to our correspondence, your letter to me of February 4th, 1965, concerning the date of copyright of the book entitled “WHO KILLED KENNEDY?”.
My suggestion is further fortified by referring to page 26, Section 408 of H.R. 4347—“Application for registration” where at line 33, Subsection (8), and I now quote "(8) if the work has been published the date and nature of the first publication”. (Underscoring supplied).
The same suggestion is also fortified by reference to P. 27 of H.R. 4347, sec. 409: Registration of Claim and Issuance of Certificate, Line 21 (d), and I now quote from that section :
“The effective date of a copyright registration is the day on which [italic mine.]
You will notice, of course, the Section does not say "the year”-it specifically says "day", which is the main reason I wrote you under date of January 27th, 1965, with reference to the copyright date of “Who Killed Kennedy?”.
You will also recall the other reason for my original letter to you is that a fee of $3. I thought was too high for merely looking in a book the Copyright Section was by law required to keep inasmuch as I supplied them with the Library Card number and year of filing which was printed on the flyleaf of “Who Killed Kennedy?”.
In the proposed bill H.R. 4347 that fee is hiked about 67%, as will be noted by reference to Section 708 of page 37, Lines 39 to 41, inclusive, of H.R. 4347 which mentions that the cost for the making of a search has been increased to $5. an hour or fraction of an hour;
It could be argued from the rate of payment that under that section a "search" which would consist of merely looking in a book for the date (as in "Who Killed Kennedy?") with information similar to that which I supplied to the Copyright Office, and which could be done in less than two minutes, would be $5.00 for two minutes or less, and as there are 2,400 minutes in a 40-hr week, work like that entailed in my case would cost the inquiries the ridiculous sum of $6,000.00 a week, for 1,200 jobs of 2 minutes each like that sought by me.
I have been supplied with some references to comparatively recent insertions by Members of Congress in the Congressional Record Zerox copies of which I enclose for your information, the most hair-raising insertion being that by Congressman Mac Mathias of Maryland in which is printed correspondence between Mr. Abram Chayes who was at the time Legal Advisor to the State Department, and who was requested by Dean Rusk to explain a glaring violation of the present Copyright Law. This violation was called to the attention of the State Department by
NOTE.—The foregoing is a carbon copy of page 3 of a letter sent by John F. Kavanagh member of the Committee on Copyright of the American Bar Association to Congressman Edward J. Gurney under date of February 19, 1965, by registered mail.
ROYALL, KOEGEL & ROGERS,
New York, N.Y., September 28, 1965. Hon. John L. MCCLELLAN, Chairman, Subcommittee on Patents, Trademarks, and Copyrights, U.S. Senate,
Washington, D.C. DEAR JOHN: I am responding to your generous invitation to comment on testi. mony offered by educational organizations before your Subcommittee in respect to the copyright legislation.
The enclosed analysis is based on the educators' testimony before your Sub. committee and the House Subcommittee. It puts the case for publishers, who are my clients, and incidentally for authors as well. I hope you will find it fair. minded, factual, and detailed. In summary, it makes the following case:
1. To make copies of a book is to reduce the market for that book whether the copies are sold or not. However, the educators' proposed amendment would permit them to actually sell copies in competition with private publishers who produced the original so long as no profit derived from the sale.
2. The only market for textbooks lies in educational institutions. This market would be destroyed if these institutions could make copies freely, whether or not anyone makes a profit from such copying. With the erosion of its market, the private textbook industry would be crippled. In its place, there would have to be a nationalized textbook industry.
3. Every right that teachers now have to make copies under the present law is preserved for them under S. 1006.
4. There is no clear unanimity among educators as to what they want to copy, in what quantities, or even as to whether they should pay for this copying.
5. The amendment proposed by the educators asks for far wider copying privileges than they have expressed a need for. For example, the educators don't need or want to copy instructional materials, but their amendment would permit them to do so.
6. It would be destructive to write into the bill a flat exemption for the use of excerpts because this is virtually the only use that schools make of copy. righted materials.
7. The teachers seek certainty as to what they may legally copy, but the language of their proposed amendment simply adds new uncertainties. It is unlikely that any language can be devised to pin down "fair use" in the statute without serious damage to authors, composers, and publishers. The danger to these persons is greater than any possible gains to educational institutions.
8. The doctrine of fair use amply protects teachers in the legitimate use of copyrighted material. The Register of Copyrights is authority for the statement that the statutory recognition of fair use meets the reasonable needs of education for the copying of short excerpts. By the way, the essence of "fair use" is that no use is fair which prejudices the sale or diminishes the profits of the original work. This doctrine has been around and working successfully for 125 years.
9. It is now cheaper to copy a book than to buy the book itself. The growing technology in photocopying and computer uses of information will destroy the market for creative works if educational institutions are granted an exemption from copyright.
It seems to me that the publishers and authors make a strong case, and I hope you will see it that way. No one can be indifferent to the real needs of education. But neither can we be indifferent to the needs of authors and a private publishing industry which, directly or indirectly, furnishes employment to thousands of workers. Teachers and textbook publishers live together in a kind of symbiosis. Destroy or frustrate one and you destroy or frustrate the other.
I am convinced that adoption of the educators' amendment would be destructive to authors and publishers. And the real point is that educators don't need that amendment in order to do their jobs. Very sincerely yours,
KENNETH B. KEATING,
THE CASE AGAINST THE PROPOSED SECTION 111 AMENDMENT TO S. 1006 The following statement is a response to the testimony of representatives of an ad hoc committee of educational organizations on copyright revision. I. The making of copies
To make copies of a work is to reduce the market for work whether the copies are sold or not.
The ad hoc committee of educational organizations has proposed an amendment to S. 1006 to give schools the right to make multiple copies of parts of a book. In good faith, they have inserted the proviso: “* * * provided that no such copyrighted material is sold or leased for a profit, and no direct or indirect commercial advantage or other private gain in involved."
This language concerns only the possible profits to the copier. It says nothing about the losses sustained by author and publisher from such copying.
This loss is inevitable because for each book published, there is a fixed and limited market. For textbooks and other instructional materials, the sole market is the schools, which usually buy multiple copies.
If these institutions were permitted as a matter of law to buy one book and to make copies from it, the market for any new book would be severely reduced. Even though made for nonprofit use, these nonprofit copies would cut the author's market just as effectively as a pirated edition sold for profit.
The educators' proposed amendment is so sweeping that it would permit them to go into business in competition with publishers, using the very materials that authors and publishers have produced. The language of the amendment would permit educational institutions not only to make but to sell or lease copies of excerpts provided only that no profit is involved. But in any event, if schools are permitted to make copies, the market for published books is destroyed.
The new technology of photocopying, discussed below, provides the means for cheap and rapid reproduction. The language of the proposed amendment would provide legal sanction for setting up a nonprofit agency in direct competition with private publishers and would appropriate their materials for this purpose. Proponents of the amendment will deny that this is their intent, but their intent is beside the point. It is their language that matters.
In the matter of copying, the question of profit to the copier is irrelevant. If a copy is made, the market is reduced. Unrestrained nonprofit copying would destroy the market for copyrighted materials. II. The nature of literary property
With books, music, and other printed materials, two kinds of property are involved. The first is the physical thing itself. The second is the intellectual content which is the author's creative product. This is his property. He does not own the books themselves, for they are the property of his publisher. The author's only property is the intellectual content and the exact manner in which it is written down.
To define this matter even more sharply, ideas cannot be copyrighted. It is only the written statement of these ideas that can be copyrighted. An author dedicates his ideas to society. It is only his exact expression of them that he reserves as his property.
The author derives income from his creative work by the sale of copies. If anyone else may make copies to sell, the author has no income. It is for this reason that all civilized countries have granted to authors the exclusive right to determine who shall copy their work and under what conditions. It is basic in American public policy that the creative product of authors is required in our society and must be encouraged. This is why we have had a copyright law since 1790.
In a system of private enterprise the only way the creative product can be assured is by payment of the author according to the demand for his work. III. S. 1006 gives teachers as much protection as the present law
The educators and their attorney have asserted to your Subcommittee and to the House Subcommittee that the present law permits copying for nonprofit use by educational institutions. They further state that S. 1006 deprives them of this privilege.
This is a serious charge against the bill and should be thoroughly explored. Who can provide the answers?
Your subcommittee has as advisers the leading copyright experts in this country. They have devoted 10 years of concentrated study to our copyright law. No one would seriously challenge the pre-eminence of the Register of Copyrights and his staff in this field.
On September 2, 1965, the Register stated to your Subcommittee: “The bill would in no way whatsoever diminish the privilege that schools now have under the present law with respect to classroom uses of copyrighted material. Anything that can de done under the doctrine of fair use now could be done under the bill, and the bill, even more clearly than the present law, completely exempts performances and exhibitions in classrooms and 'in-school' instructional broadcasts."
He went on to say, "While the present law contains a 'for profit' limitation with respect to the right of public performance, the right of copying is an absolute right, unqualified by any 'for profit limitation. Any nonprofit copying under the present law could clearly constitute infringement unless the doctrine of fair use were applicable.".
The present law permits the use of non-dramatic copyrighted materials in nonprofit broadcasts over educational radio and television. In S. 1006 now before you, the concept of nonprofit performance has been dropped. Instead, broadcasts for instructional purposes in educational institutions are given a general exemption. This is a performance right which has nothing whatever to do with the protoduplication of copyrighted works.
The educators and their attorney appearing before your committee have taken the opposite position not only before your Subcommittee but in testimony before the other house.
At that time, the educators' attorney quoted three “experts" to support his view. One of these experts, Dean Fred Siebert, subsequently disclaimed under questioning the view attributed to him and agreed with the Register of Copyrights that the for-profit exemption does not apply to making copies. (House Subcommittee, August 5, 1965.)
In his closing remarks to the House Subcommittee on September 2, 1965, the Register of Copyrights said: “I believe that there have been serious misconceptions on this point among the educational community which have clouded and distorted the true issues and have made solutions much more difficult. The Copyright Office is preparing a legal memorandum on this subject which we plan to present to the Committee for its information, and I hope that the representatives of the educational group will also help to clear up this unfortunate misunderstanding."
In sum, the assertion that S. 1006 deprives education of copying rights under existing law is not supported by informed opinion. One expert quoted by the educators' attorney in support of his position has explicitly denied this support. The question must therefore be raised as to how far the educators' position is based upon misunderstanding. IV. The needs of educators
Senator McClellan has stated: “I am sympathetic and friendly to our educational endeavors in this country and educational institutions and to the students whom they are endeavoring to train and to instil a little culture in.”
We must all be sensitive to the real needs of education. It has become the largest single force in our country. This year more than 70 million Americans are engaged in education of one form or another, using copyrighted instructional materials. It is important to ask what are the real needs of educators and teachers with respect to these materials.
When we ask this question, we discover two imposing facts. First there is no clear unanimity among educators themselves. Second, there is a striking disparity between expressed needs and the language of the amendment proposed by the ad hoc educational committee for S. 1006. This amendment, offered as a proposed new Section 111, would permit the making of one copy of whole book and multiple copies of excerpts for educational use and would thus usurp a part of the authors' and publishers' market.
1. First, as to the unanimity of educational opinion.—The National Association of Science Teachers originally sat with the ad hoc committee and subsequently withdrew. They do not support the position of that committee. The position of the science teachers was made clear in letters addressed to the House Subcommittee on July 6, 1965 by Dr. Darrell Barnard, past president of the association.
Dr. Julian Boyd, the distinguished historian from Princeton University who is editing the Jefferson papers, testified before the House Subcommittee on June 17, 1965 on behalf of the six leading historical societies of America. He said :
"* * * In the far-flung community of historical scholars it is not to be expected that all would agree on the extent or magnitude of the dangers that seem apparent in its (the bill's) various provisions. It may be true, for example, that some teachers of history support the proposed substitute for Section 107 which would greatly extend the use of copyrighted materials for the purposes of instruction or promotion. Their motive in doing so is beyond question. They wish to improve the quality of teaching. They not only do not ground their proposal on any consideration of economic self-interest but in fact propose to limit such use strictly to those aspects of teaching and research in which commercial advantage and private gain are not involved. But it is equally beyond question that the vast majority of historians welcome the proposed statutory recognition of the doctrine of fair use as developed by the courts. [Emphasis added.] As set forth in the language of the bill, the standard by which such use is to be determined is neither raised nor lowered. It remains precisely where experience, reason, and the law all agree in indicating that it should remain. It is general and flexible, permitting the reasonableness and the fairness of the use to be determined on the facts in each case through the only proper agency in which the decision should be vested, the judiciary. If the question were to be fully explained in all of its ramifications and were to be put to a vote of all of the members of the historical and archival professions, I have no doubt whatever