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that the result would be overwhelmingly in favor of retaining the language of Section 107 exactly as it stands at present. [Emphasis added.] There may be other questions concerning the terms of the bill that would find historians and archivists divided in opinion, but on one particular aspect they undoubtedly speak with a single voice."

There is even a difference of view as between Dr. Wigren, chairman of the ad hoc committee, and Mr. Rosenfield, the attorney for that committee. They do not agree a) on making a copy of an entire work, nor b) as to whether the making of multiple copies should be limited:

On August 28, 1965, Dr. Wigren appearing before your Subcommittee, said: "The (ad hoc) Committee is not asking for the right to make a single copy of an entire book or novel."

On the same day, before the same Subcommittee, Mr. Rosenfield said: "The proposed Section 111 would permit a teacher to make, first, only one copy or phonorecord of a full copyrighted work."

Again, Dr. Wigren stated before your Subcommittee: "The crucial point at stake here is the right to make limited—underline “limited"-copies or recordings of copyrighted works for nonprofit educational use by pupils and teachers without the need to obtain clearances and/or pay royalties. This would not include the copying of material from workbooks or answer sheets to standardized tests, which would be, in our estimation, both a poor teaching practice and an infringement of copyright, in our estimation."

On the other hand, Mr. Rosenfield in referring to the proposed Section 111 noted that it would permit "a reasonable number of copies" of excerpts. When questioned by Mr. Brennan as to the meaning of "a reasonable number," Mr. Rosenfield said that if a teacher were to have a class of 30 students, 33 or 35 is reasonable. If there were 10 sections of a class in a high school, 300 copies could be made. If there were 50 sections of freshman English in one of the universities, 1,500 copies could be made. This is not the "limited-underline limited-copies" to which Dr. Wigren was referring.

There is even disagreement among educators as to the basic question of paying for copies made for educational use.

Testifying on August 5, 1965 before the House Subcommittee, Dean Siebert said, "The American Council on Education is not opposed to the principle of payments to copyright proprietors."

Testifying on June 2, 1965, before the House Subcommittee, Dr. Harold Wigren, chairman of the ad hoc committee was asked by Committee council: "Do you have any philosophical objection to having the institution at some level or other pay for the use of copyrighted material, or is it that you just don't think that that is practical?" Dr. Wigren replied: "We think there should be a special recognition in the law for education. We make a distinction between commercial use and nonprofit use, education use *** Philosophically, yes, I do have some feelings about it. Why should w have to pay for materials usage that is in the public interest?"

Mr. Rosenfield, counsel for the ad hoc committee, appeared before your Subcommittee on August 20, 1965. He was asked by Mr. Brennan: "Do you believe educational use of copyright materials should be free or should this use be paid for?" Mr. Rosenfield replied, "We believe some use should be free and some use should be paid for."

So, in the matter of paying for use of copyrighted materials the teachers give three answers: 1) Yes; 2) No; 3) Yes and No. Publishers have only one answer: Yes.

2. Now to the second point: the disparity between the expressed needs of educators and the language of this proposed amendment.

The answer is simple: This is not a Communist state. Just as buildings, desks, and teachers' services are paid for, so should the use of authors' works be paid for.

(a) Dr. Wigren has testified that the ad hoc committee does not ask for the right to copy an entire book.

Mr. Rosenfield has testified that the proposed amendment gives a teacher this right.

(b) Dr. Wigren has testified that teachers want the right to make limited copies of excerpts.

Mr. Rosenfield's testimony shows that the phrase "a reasonable number" of copies really means no limit at all.

(c) Dean Fred Siebert testifying for the American Council on Education said: "The American Council on Education is not opposed to the principle of payments to copyright proprietors." Mr. Rosenfield stated: "We believe some use should be free and some use should be paid for."

The educators' proposed amendment provides for no payment for use whatever and would specifically exempt teachers and educational institutions from such payment.

Thus the language of the proposed amendment would permit copying far in excess of the expressed needs of educators, and it would permit free copying although no need for free use has been set forth.

V. The Section 111 amendment proposed by educators

Returning to Section 111 as a whole, we find some hesitancy among its advocates. Mr. Rosenfield, testifying before the House Subcommittee on August 19, stated: "*** we feel the need for a Section 111. Having said this, Mr. Chairman, let me make it clear we don't regard Section 111 as the tablets from Sinai." Dr. Wigren stated to your committee on August 18: "The (ad hoc) committee would like to see these uses are made clearly legal. We have prepared a new Section 111 to do this, but have no pride of authorship in the wording thereof, and if you feel that our new Section 111 does not say what we said over here on page 12, for goodness sake, change the wording to what we say. We do not want to stay with that forever. There (indicating) is what we really believe and wanted to say over here, and we thought we had drafted words that would say this. But if in your estimation we did not say that, then the wording should be changed to apply to what we have said here on page 12."

Since the educators themselves question their own Section 111, it is appropriate to state the position of publishers to this proposal. Briefly, they believe that the language of this amendment is so sweeping as to jeopardize the whole concept of copyright and that it far exceeds the needs stated by educators themselves. 1. No need has been stated or exemplified for copying an entire work of booklength. If one teacher had the right to do this, thirty teachers in the same school could make 30 copies of an entire book for the school's use.

2. No need has been stated or exemplified for copying from textbooks. Indeed, the proposed amendment specifically exempts consumable instructional materials. Dr. Wigren stated on August 18 before your committee: "Teachers repeatedly point out that their most serious copyright problems arise when they attempt to use contemporaneous materials in the course of their teaching. Their major difficulty is not with textbooks-for every student usually has one of these-but rather with obtaining the materials in newspapers, magazines, et cetera, which bring the textbook material up to date."

Dean Fred Siebert, representing the American Council on Education, stated on August 5: "Again, the council is not advocating indiscriminate use of photocopying, and the subcommittee's report and other legislative history should make it clear that copies of excerpts and single copies of whole works are not to be used to supplant instructional materials regularly available on the market."

No clearer evidence has been adduced to indicate that the language of the proposed amendment is too sweeping. If committee reports and legislative history are required to limit the effect of the proposed amendment, it is clearly improper to begin with. As proposed, this amendment covers all kinds of copyrighted materials, including textbooks.

3. No need has been stated for copying from standard reference works such as histories and encyclopedias. Indeed, Dr. Wigren has specifically stated the major difficulty facing teachers lies with "obtaining the materials, magazines, et cetera, which bring the textbook material up to date."

The proposal so stated would permit a school system to buy one encyclopedia and copy articles for its entire student body upon demand.

4. With no stated definition of an excerpt, the proposed amendment would permit a school or college to construct its own literature anthology or book of readings without payment of any author royalty. In fact, a whole book of readings from Hemingway, Faulkner, John Hersey could be constructed in this manner with passages from each of their published words.

Each of these four uses, permitted under the proposed amendment, circumvents the purchase of available copyrighted materials. Each of them reduces the market for the work from which a copy is made. Each of them is therefore a clear violation of the judicial doctrine of fair use as applied today.

The conclusion is inescapable: the proposed amendment Section 111 is in direct conflict with and would destroy the doctrine of fair use. Yet, the advocates of the amendment also favor recognition of fair use as in Section 107 of S. 1006.

VI. The question of excerpts

The ad hoc committee of educational organizations has consistently sought an automatic exemption to permit free educational use of excerpts. This sounds innocent enough, but the practical affects of such an exemption would be devastating to authors and publishers.

The meaning of "excerpt" is difficult to define. Yet, it is the key to the whole problem of copying. The dictionary is not helpful: it says merely than an excerpt is a passage. The proposed amendment Section 111 says "provided that such excerpts or quotations are not substantial in length in proportion to their source." This merely substitutes another undefinable term, the word "substantial."

We now come face to face with the basic fact in the educational use of copyrighted materials. The predominant use of copyrighted materials in schools is the use of excerpts. Encyclopedias, dictionaries, handbooks are never read in entirety, never read from cover to cover. Only small portions are used at any one time. To permit photocopying of these portions is to destroy the use of the books as books.

Indeed, all textbooks, novels, and other printed materials are studied section by section, excerpt by excerpt. On Monday, the assignment is to read pages 25-35- -an excerpt. On Tuesday, the assignment is to read pages 35-45-another excerpt, and so on to the end of an 800-page book.

The language of the proposed amendment would permit copying of any book in full on a continuous excerpt basis. Educators will deny that this is their intent, but their intent is not the question. The language of Section 111 which they propose clearly permits these free and damaging uses of copyrighted material.

It is an inescapable fact that the entire market for textbooks and 50 per cent of the market for new trade books such as juveniles, novels, and biography lie in schools and associated institutions.

VII. The question of fair use

The present law forbids absolutely the making of copies of copyrighted material without permission of the owner. The courts have evolved the doctrine of "fair use" to avoid absolute and rigid enforcement of the letter of the law where common sense urges some leeway. Guidelines laid down by Justice Story in 1841 have permitted users and owners of copyrighted materials to live together amicably and profitably. These guidelines are contained in the following quotation: "In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work."

It should be noted that no one has yet come forward to suggest removal of the doctrine of fair use from S. 1006. Nor has anyone complained that the judicial doctrine of fair use is itself unfair in practical application.

The educators object only that fair use is not explicit and definite enough as a guideline to classroom teachers. They seek certainty as to what may be copied and what may not. They seek a certainty that no statute can provide. In fact, their own language contains no such certainty.

Two points should be noted. First, Section 107 of S. 1006 for the first time makes fair use a part of the statute. It is a statutory limitation on the exclusive rights of copyright owners. It provides a statutory certainty that does not exist under present law.

Second, although fair use is not explicit, teachers have been given the greatest latitude in interpretation. No teacher has ever been sued for infringement of copyright because of classroom use.

What certainty can a statute give? Can a statute specifically list all the situations in which the question of fair use may arise? If it cannot, there will always be uncertainty as to whether a particular use is fair or not. This is the nature of human affairs. The law states a general rule as to restraint of trade, prudence, and leaves the application of the rule to individual parties of interest and to the courts.

Despite the efforts of the educators their Section 111 simply substitutes one set of uncertainties for another. And within these uncertainties it affords potential for serious damage to authors and publishers.

What have educators to lose under the doctrine of fair use embodied in S. 1006? In his testimony before the House Subcommittee on May 26, 1965, Mr. Cary, the Deputy Register of Copyrights, remarked:

"On balance, it seems to me that the fears of classroom teachers that the bill is going to hamper their educational activities is largely a simple case of misunderstanding. The bill, as I have stated, authorizes the use in a classroom without any copyright restrictions of all copyrighted materials and the doctrine of fair use will serve to meet most of the legitimate needs for copies of excerpts and quotations."

In the Register's Supplementary Report, this passage occurs: "We believe that a statutory recognition of fair use would be sufficient to serve the reasonable needs of education with respect to the copying of short extracts from copyrighted works, and that the problem of obtaining clearances for copying larger portions or entire works could best be solved through a clearinghouse arrangement worked out between the educational groups and the author-publisher interests."

The register is not saying in these passages that all copying of short extracts is fair use. He is saying that the copying of short extracts within the bounds so far determined by the courts is fair use.

As to a clearing house for uses other than short extracts, it should be noted that every publisher now maintains a permissions department. If a central permission service bureau would facilitate matters for teachers, it could no doubt be arranged. Such a bureau in self-defense would endeavor to establish what extracts are de minimis in the interest of avoiding the costs of correspond

ence.

Dr. Wigren has stated that without the proposed Section 111 amendment teachers would be seriously hampered in pursuit of their work. The following observations are pertinent:

(a) The Register of Copyrights has stated before Subcommittee that teachers are not deprived by S. 1006 of any rights they have under the present law.

(b) There is no evidence that teachers are being hampered in their work under the present copyright law. In the spring of 1965, the Grade Teacher Magazine engaged a national research organization, Trendex Inc., to make a nationwide survey of classroom teachers. They were asked how would you spend the funds available under the Elementary and Secondary Education Act? The majority of teachers replied that funds can be used to best advantage to purchase new and additional teaching materials and teaching equipment. They did not ask for more copying devices. They do not want Xerox copies; they want the original materials. This position is supported by the fact that less than 2 per cent of the nation's school budget is spent on instructional materials.

(c) There have been many critics of American schools, but none of them has advanced the notion that American education is hampered by inability to make copies of copyrighted material. This plea was never heard before the ad hoc educators' committee began studying the draft copyright legislation in 1963.

In short, good teaching is not hampered under the present copyright law and the accompanying doctrine of fair use. The Register of Copyrights has wisely suggested that the educational organizations are seeking new rights to use of copyrighted materials that they do not now have. Specifically, they want these uses free without payment of fees for their use. Authors and publishers maintain that free appropriation of their materials will destroy their markets and reduce the incentive to create and to publish. In the long run, this effect would seriously hamper the work of educators by depriving them of essential instructional tools.

It cannot be said too often that educational institutions comprise a major part of the entire market for books.

The Register of Copyrights has testified that the reasonable needs of teachers for copying short extracts are assured under S. 1006, which incorporates the doctrine of fair use. Uses beyond this limit should be negotiated between the parties and should not be expropriated by statute.

VIII. The prospect

We are today in a technological revolution in communications. The first electronic computer is today less than 20 years old. We can now take a close-up picture of Mars and transmit it 23 million miles through space, to be printed simultaneously in every newspaper in the land. Photocopies in color can now be transmitted by long distance xerography to points hundreds of miles away. These advances are only a beginning in the new technology.

The Register of Copyrights stated to your Subcommittee on August 18, 1965: "Just as the first copyright laws were a response to an earlier revolution brought on by the development of the printing press, so must a copyright statute today respond to the challenge of a technology based on instant communication and reproduction of an author's works throughout the world."

It is interesting that in all the educators' testimony before your Subcommittee only one mention was made of the new technology. An educator from California was thus quoted: "The specific problem I see coming with the increasing use of such copy machines as the Thermofax with its capability of producing a spirit master, and thus multiple copies, is whether or not this new technology may be freely used."

Authors and publishers have no desire to stand in the way of the new technology. Of course educators may and must freely use the new devices but not freely in the sense of unpaid for. All educators expect to pay for copying machines and the special papers these machines require. Why should they not pay for the author's creative product which is to be placed on that paper?

The prospects for photocopying.

Mr. Rosenfield, attorney for the ad hoc committee, is aware that the copying privileges sought under their proposed amendment would interfere with the market for books. His comment is that publishers are prosperous enough to absorb the loss. Unfortunately, Mr. Rosenfield is not in a position to estimate the extent of the loss in the future.

Testifying before your committee on August 18, he reported two surveys by government agencies of the impact of photocopying upon the market for copyrighted materials. He failed to state that

(a) these studies were made prior to 1963 and are therefore out of date; (b) the studies noted that photocopying at that time was primarily of journals; therefore the studies have no bearing upon the economic impact of photocopying of books;

(c) the surveys were primarily limited to libraries and therefore reveal nothing about photocopying in schools.

What, then, are the facts as to photocopying at present? and what is the prospect for the future?

1. Photocopying is increasing at a fantastic rate.—Mr. C. Peter McColough, executive vice president of the Xerox Corporation, spoke on June 3, 1965 to the Society of Financial Analysts in Los Angeles. He said, "As to the total copying market, its growth also continues at a rapid pace. In 1964, roughly nine and a half billion copies were produced in this country, resulting in total income for the industry of about $500 million. By 1969, I'd guess that some 25 billion impressions will be made by copiers. And the 'information explosion' will still be accelerating."

2. Improved models of photocopying devices appear frequently.-We are accustomed to think of photocopy machines in terms of the familiar desk models. There are now available photocopy devices which act as printing presses. The Xerox Corporation announced its Model 2400 on September 15, 1965. The model takes its name from the fact 2400 copies can be produced by this machine in a single hour.

This machine produces copies without use of plates, stencils, or masters of any kind. It produces them on ordinary paper where heretofore expensive papers were required.

The cost in quantities of more than 26 is 1⁄2 cent per page!

At this rate, 150 students can be provided with 10 pages of copied material for five cents a student.

100 students can be provided with a 300-page book of copied material for $1.50 per student.

The contrast between the 1964 cost to schools per page for printed textbooks and the cost of copying is as follows: College texts, $0.008; high school texts, $0.00645; elementary texts, $0.007; photocopy, $0.005.

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