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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 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.
(6) 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.