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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, prudemce,—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 correspondence.
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.
(6) 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.
If a school lacks copying facilities on its premises, it may go to commercial firms to have copying work done. A new firm has been established in New York, called Selected Academic Readings, Inc. A copy of a recent release from this firm is appended. It offers any collge teacher the opportunity to choose his own selections for a book of readings. It will then furnish these readings in bound books, printed by photo-offset for 242 cents a page up to 100 pages, and for 2 cents a page beyond 100 pages. These prices are for editions of only 100 copies. For editions of 1,000 copies or more, the prices would be perhaps half as much.
Give educational institutions the right to make multiple copies of extracts without paying for them, and these new devices will drive books of readings and anthologies from the market. It may be argued that it is educationally desirable to have anthologies tailored to the needs of individual teachers. Is it also desirable to deprive authors of their income and textbook publishers of their market?
The proposed Section 111 amendment must be considered in the text of new, advancing technology. In this context, it appears as a devastating threat to authors and publishers.
The prospect of computers The photocopy machines even in advanced forms are relatively unsophisticated. Beyond photocopy lies the computer. The actual present uses of computers and their future use in classrooms are illustrated in a publication of Dr. Wigren's division of the National Education Association. It is titled The Role of The Computer in Future Instructional Systems.
A computer network system of medical libraries began with Harvard, Yale, and Columbia Universities. It has since been extended nationally. Its potential is described in the words of McCandlish Phillips as reported in The New York Times, dated March 5, 1965.
“The medical libraries of three major Eastern Universities will be tied together in a network of computers and telephone lines to give scholars virtually instant access to their pooled resources ***
“Although there is much duplication, the three libraries will then contain 1,025,000 items. These can be searched by computers in seconds * * *
"When telecommunication and photographic reproducing devices are added to the network system, it will be possible to eliminate some duplication of material among libraries. Pages from a book in New York could be flashed to a user in another city and even reproduced for him in take-home form."
The September 9 issue of The Boston Herald describes a new computer program at Harvard University. The article begins as follows:
“A television and computer system being installed at Harvard will transmit audio and visual information from any source to Harvard students.
“Ten miles of television cables are being laid underground by WGBH to link its studios and classrooms, laboratories, lecture halls, and computer centers at Harvard.
“The project, expected to be completed soon after the first of the year, will provide what is the most vital tool of research scientists and teachers—instan. taneous transmission of information.
“The kinds of information to be transmitted are limitless.
“Besides carrying television shows of experiments and lectures to Harvard classrooms, the system will permit researchers to hook up to libraries, first to locate and then read on the TV screen copies of books and periodicals.”
In these and similar computer systems, printed material is transferred to electronic signals recorded on tape. Upon demand, any portion of the recorded material can be printed out in any quantity desired. Similar devices record printed material on microfilm and print out any portion of the recorded material in any quantity desired. The portions printed out would be the excerpts to which the ad hoc committee asks free, unpaid for access in their proposed amendment.
The use of computers in classrooms is not a far-out fantasy of science fiction. Today, there are eight computers in use in the classrooms of the New York City schools alone.
It is not surprising that the educators appearing before your Committee have been silent concerning the advancing technology in education. It is not their responsibility to present this topic in their testimony, but it is the responsibility of authors and publishers to do so. It is their responsibility to show that all of these devices are designed to make one copy of a book suffice where 100 have been used before. It is their responsibility to show potential damage in the innocentsounding request for free, unpaid use of excerpts.
Publishers can and will adjust to these changing circumstances, but only if their products and services are paid for and only if authors are assured of a reward for creating by an effective copyright law.
SELECTED ACADEMIC READINGS, INC.
NEW YORK, N.Y. The following is a step-by-step procedure in the S.A.R. custom-made readings book program:
1. A professor teaching a course submits a list of readings from journals or magazines and agrees to adopt this book as a required text (minimum yearly adoption of 100 copies). S.A.R. gives the professor the option of adding or subtracting articles each year, thereby up-dating the book as needs change.
2. S.A.R. undertakes to secure necessary permission to reprint the articles.
3. S.A.R. prints by Photo Offset, binds these articles in book form, including any prefatory material that the professor may desire.
4. S.A.R. ships these books either to the college bookstore or directly to the professor.
The cost to the student is based on a per page price of 212¢ for the first 100 pages and 2¢ for all subsequent pages. Therefore, the cost of a 200 page readings book to the student would be $4.50. Since our readings books do not contain any superfluous materials, the average page count is far less than conventional books.
NATIONAL NEWSPAPER ASSOCIATION,
Washington, D.C., August 16, 1965. Senator John L. MCCLELLAN, Chairman, Subcommittee on Patents, Trademarks and Copyrights, New Senate Office Building, Washington, D.C.
DEAR SENATOR MCCLELLAN: The National Newspaper Association submits its views in this letter for the record of hearings to be held by your Subcommittee on Patents, Trademarks and Copyrights on bills providing for general revision of the Copyright Law of 1909.
Most of the membership of more than 6,600 newspapers of the National Newspaper Association is made up of weekly or semi-weekly newspapers, but more than 850 are dailies. NNA members are located in all 50 states and all 435 Congressional districts. Newspapers published by its members go into approximately 25 million homes regularly and are read by about 100 million Americans.
Copyright revision is of great interest to newspaper publishers, both as crea. tors and users of copyrighted material. We will divide our discusssion into those two contexts. A. As creators of copyrighted material
Whereas newspapers have more often resorted to state remedies of unfair competition in the past when faced with unauthorized appropriation of their creative efforts, there is little question that the emphasis is shifting toward the necessity of federal copyright protection. The 1964 United States Supreme Court decisions in Sears, Roebuck & Co. v. Stiffel Co. (376 U.S. 225) and Compco Corp. v. Day-Brite Lighting, Inc. (376 U.S. 234) probably have limited state remedies to the “passing off” concept. That may be defined as the unfair competition situation where one appropriates a work or product of another and passes it off as his own, thus misleading the public as to the source. And the bill under consideration states unequivocally that its intent is to federally preempt state “unfair competition” equivalent to copyright, thereby abolishing the common law cause of action. (#301 ; see Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill (May, 1965) pp. 81-86.)
We might state first that it is somewhat difficult to determine the copyrightability of newspapers under the present bill. Whereas the present law plainly states at 5(b) that “periodicals, including newspapers" are subjects of copyright, we can only assume that they now fall within the category of "literary works” in 102(1) and somehow also within the term "collective work” in the definition section. (101—“A 'collective work is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.") (See 1965 Supplementary Report (note 3) p. 104.)