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But we are urging, therefore, that most of the gray area uses be made white in order to keep the law abreast of current and future uses of materials in teaching and learning.

With burgeoning enrollments and mounting problems, even if funds are available for this purpose, teachers do not have time to run down clearances on materials which they need in their day-to-day teaching, nor do they have the secretarial help to do this for them.

What will happen, therefore, is not that teachers will buy additional copies, but rather that they in all likelihood will not use the materials at all

, thus defeating the very objectives of quality teaching and learning in our classrooms which the new education bill recently passed by this Congress sought to encourage. Why should teachers be required to go to such lengths in order to use materials which this Congress expects them to use as part of their teaching responsibilities? In conclusion

In the revision of the copyright law, two parallel sets of rights and interests are involved: those of the author-producer and those of the consumer-user.

Education is both a producer and consumer of copyrighted materials. It is interested in a new law which will be fair and reasonable to all concerned. It recognizes that creators and proprietors of educational materials need protection so as to stimulate the continued flow of such materials. · At the same time, there is an overriding public interest to be met also. Teachers must be able to utilize copyrighted materials with a minimum of time and effort devoted to making such materials available to students and with a minimum of cost and clearance requirements.

Please bear in mind that when we recommend that education may make restricted copies of copyrighted materials, the members of the ad hoc committee are saying that they are willing to authorize limited copying of their own copyrighted works. Not all the members of the educational field may agree with this, but the members of the ad hoc committee and I could show you their statements have indicated by resolution or otherwise, in their own groups, that they feel that they must not ask for the privilege to have any kind of exemption, even though a limited one, without certainly being willing in turn, in their own publications, to allow other educators to make the same kind of use of our materials. We feel this is only fair to do this.

As teachers we create markets for the works of authors and publishers because ours is the responsibility to motivate students to want to read and to acquire books and other copyrighted works of their own. Ours is the responsibility to create an appetite for learning which is lifelong. We do not use copyrighted materials for our own gain but rather for the benefit of students for whom we are responsible.

There are those who say that our position would stifle the author's creativity. The contrary, in fact, is true. Education's position would give the author a new kind of visibility which he would otherwise not have.

On the other side of the picture, more needs to be written about the teacher's creativity, as well as the author's creativity. The creative teacher is one who is resourceful. He uses many materials and resources in his teaching in an imaginative way and, therefore, communicates more effectively with the children. To restrict the flow of

information by imposing undue hardships in obtaining clearances and payment of royalties would interfere with and thwart creative teaching and learning in the classroom.

În presenting its case to you, the ad hoc committee pleads for the same special recognition for education in this law as has been granted in other laws enacted by the Congress pertaining to educational television, reduced mail rates, nonprofit status, tax exemption for contributions, distribuiton of surplus supplies.

The ad hoc committee wants a reasonable and just law which is fair to both authors and users one that can be enforced by the profession itself. It desires a new law that will provide adequately for the present and future uses of copyrighted materials in the classroom and on educational broadcasting, that will enhance rather than inhibit the uses of materials, that will recognize the primacy of the public interest, and that will enable teachers to do the job for which the cities, counties, and States of this Nation employ them.

I speak, Mr. Chairman, for the ad hoc committee. Mr. Rosenfield, our attorney, will give you the more detailed analysis, if you wish, sir. Thank you very much for this opportunity.

Senator McCLELLAN. Because I have another appointment in about 5 or 10 minutes, I will not have time, nor the opportunity to ask you any questions, or at least many questions. There is only one that I would like to take advantage of the next 2 or 3 minutes to ask.

Do you feel that your committee and Mr. Kaminstein might have a conference and arrive at some middle ground here as between this bill and what you recommend?

Mr. WIGREN. We are very hopeful, sir, that this can be done.

Senator McCLELLAN. You have both stated that you thought all of these differences could be resolved. If you could get together and resolve them, it would be very helpful to us, I am sure. Because both of you know far more about this than any member of the committee, I assume—at least, I know you do know more than the chairman. Since you both agree that the differences could be resolved and should be resolved, I would like to urge you to hold some conferences and see what you can do to resolve these principal differences and come back in here and submit something that would be helpful to us.

Mr. WIGREN. We have had several conferences and

Senator MCCLELLAN. You say that they can be resolved, and I am going to take your word for it and ask you to do it.

Mr. WIGREN. I think they can be resolved, but I think we have to air both sides. Each time we talk about this situation, we understand better the other's point of view about this matter.

Senator MCCLELLAN. Now I must recess the committee. As I stated, I shall not be here this afternoon. I have other duties that are compelling. I am chairman of the Senate Appropriations Committee's Subcommittee on State, Justice, and Commerce Departments, and I have a conference in the House to try to resolve some differences there. I regret that I cannot be here, but Senator Burdick has very generously agreed to sit this afternoon and preside.

Now. Mr. Brennan.

Mr. BRENNAN. Mr. Chairman, Mr. Schulman has arrived. We can hear him this afternoon also.

70-373—67—7

Senator McCLELLAN. Oh, yes, Mr. Schulman. If he will return this afternoon, I will instruct counsel to ask Senator Burdick to hear him, and you gentlemen return. It may very well be that counsel and Senator Burdick may want to ask you some questions. At least, Mr. Shulman can probably testify, and I will suggest that he be called as the first witness this afternoon.

Mr. WIGREN. The other two members of our panel will also appear then.

Senator MCCLELLAN. You too will return.

Mr. WIGREN. But I mean there are two others who are not here who will be here by then.

Senator MCCLELLAN. Very well. Counsel will acquaint Senator Burdick and the other members who may be present this afternoon of this situation.

Thank you very much.
Mr. WIGREN. Thank you, sir.
Mr. ROSENFIELD. Thank you, Mr. Chairman.
Senator McCLELLAN. The committee is recessed until 2 o'clock.

(Whereupon, at 12:05 p.m., the committee recessed, to reconvene at 2 p.m. on the same day.)

AFTERNOON SESSION

Senator BURDICK. Mr. John Schulman is the next witness.

STATEMENT OF JOHN SCHULMAN, CHAIRMAN FOR REVISION OF

COPYRIGHT LAW, AMERICAN BAR ASSOCIATION Mr. SCHULMAN. Mr. Chairman, and members of the committee, my name is John Schulman. I am an attorney engaged in the practice of law at 19 West 44th Street, New York City. I have, for more than 30 years, specialized to a great extent in the law dealing with copyright and literary property, and the problems encountered by authors, publishers, and users of literary, scientific, and artistic works.

Senator BURDICK. Mr. Schulman, would you like to have your statement printed in full in the record ?

Mr. SCHULMAN. I would like it, sir, and I won't read it. I won't take the time to read it.

Senator BURDICK. Without objection the complete text will be made a part of the record.

(The prepared statement of Mr. Schulman follows:)

STATEMENT OF JOHN SCHULMAN

My name is John Schulman. I am an attorney engaged in the practice of law at 19 West 44th Street, New York City. I have, for more than thirty years, specialized to a great extent in the law dealing with copyright and literary property, and the problems encountered by authors, publishers and users of literary, scientific and artistic works.

Among other activities, I was for many years counsel to the American Guild of Authors and Composers, formerly known as The Songwriters Protective Association. I participated as one of the counsel to the Dramatists Guild of the Authors League of American in the preparation of the standard form of agreement for the production of plays upon the living stage, and in the neogtiation of a collective bargaining agreement between the Writers Guild and the television companies. I have been and am counsel to individual writers, publishers and other persons as well as industrial companies dealing with copyrighted material.

My activities have also included writing on the law of copyright, and lecturing before professional groups in the United States and other countries on matters relating to copyright. I have over a period of thirty years appeared before various Congressional and Senatorial committees to give testimony on copyright legislation.

It was my privilege to serve the Government of the United States as a member of its Delegation which attended the Diplomatic Conference in Brussels in 1948 at which the Berne Convention was last revised, and as a member of the Dele gation and consultant to the State Department at all of the meetings and diplomatic conferences which led to the preparation of the Universal Copyright Convention, a treaty to which we adhered in 1954, and to which fifty nations of the world are now parties.

I have been an active participant in the work of the Patent, Trademark and Copyright Section of the American Bar Association in its study of the copyright system and have been a member of its Council and chairman of its Copyright Division. Among other organizations with which I have served are the American Patent Law Association of which I am a member of the Board of Managers, the New York Patent Law Association of which I am a member of the Board of Governors, and the Copyright Society of the United States of which I was at one time Vice-President and am now a Trustee. As member of the Librarians Panel of Specialists since its inception, and as Chairman of Committee 304 of the Patent, Trademark and Copyright Section of the American Bar Association, I have participated actively in the studies and the preparatory work which resulted in the development of H.R. 4347.

May I at this juncture both apologize for the foregoing immodest recitation of my credentials, and hasten to explain that I do not present this statement on behalf of any of the individual groups or organizations which have been mentioned. They have appeared or will appear by their own spokesmen. The resolution presented to you by Mr. Toomey represents the official view of the American Bar Association.

Although I have represented and am presently copyright consultant to authors, composers, publishers and others, my appearance before you is not for the purpose of pressing claims of any special interest or serving any limited cause. I wear only one hat and before you serve only one master. My appearance is motivated by a desire to achieve the enactment of a new copyright law which will further the public interest. And if I appear to be oriented in the direction of authors and other creators, it is only because of my sincere conviction that the copyright system is an integral part of our system of free enterprise and should be dealt with in the light of our basic philosophy of the right of an individual to own and profit from private property and to enjoy the economic benefits flowing from his own labor and the exercise of his skill and talents.

And it is equally my conviction based upon years of study and practical experience that the keystone of a sound copyright system is a proper regard for the man who, as Burton Lane testified, starts with a blank piece of paper and by his efforts and genius produces the product which did not exist before and from which we all profit and from which our entire society benefits.

In preparation for my appearance before you, I have given long and serious consideration to the question of the way in which my testimony could provide the utmost assistance to this Committee and to Congress.

We are engaged in a mutual effort to establish a regime for copyright which will in all probability endure for the next half century. Upon the resultant copyright law will rest the welfare of our authors, publishers and other creative groups, and the cultural health and the economic well-being of our society.

With this objective, it seems to me that my proper role should be not to espouse the cause of any group which has appeared before you, or to support or rebut any proposal by any special interest. It is for the Congress to determine what particular solution should be adopted in those areas where opinions differ widely, or to effect a compromise between contending interests. But to make the proper choice and to reach a just result, this Committee and the Congress should be fully informed about the nature of copyright, its origins, the concepts which led to the Constitutional grant of power to Congress, as well as to the effect of the copyright system upon, and its relationship to, the society in which we live.

I have accordingly prepared and presented here as an appendix a discussion of these relevant matters, with the hope that their presentation in proper per

spective will aid in arriving at the proper choices or alternatives even though the ultimate solutions were not to be those which I or others would have chosen.

May I at this time also pay tribute to the Register of Copyrights, Hon. Abraham L. Kaminstein and to his loyal and devoted associates, George D. Cary, Barbara A. Ringer and Abe A. Goldman, for their service to our nation in carrying out the project entrusted to them of studying our copyright system and preparing the bill which has been submitted. But we should also pay our respects to the hundred or more individuals who served on the Panel of Specialists, and on the various committees, and who participated in the meetings, panels and symposia out of which this bill was forged. In all of my experience I can remember no other effort in the field of intellectual property in which so many participated and out of which there came so excellent a result. And last but not least, I should like to pay homage to the members of this committee whose industry, patience and quest for knowledge and information at these hearings will always stand out as a symbol of the true virtues of the democratic process in lawmaking.

APPENDIX TO STATEMENT OF JOHN SCHULMAN

PART I

THE NATURE OF COPYRIGHT

The copyright system is concerned with the content of writings. It is a system of law dealing with the communication of information, ideas and entertainment, when reduced to a definitive form from which the material communicated may be perceived by a reader or viewer and from which it may be reproduced. Embraced within the copyright system are such intellectual products as books, plays, songs, newspapers, magazines, pictures, motion pictures, television programs, computer programs and a host of other creations referred to generically as literary, artistic and scientific works. The proprietary interest in these writings is often called literary or intellectual property.

The objective of a copyright system is to stimulate and encourage the creation and dissemination of material of this nature by enabling authors to profit from their labors, and by making it possible for industry to profit from the publication, distribution and promotion of these products. An adequate copyright system ensures widespread communication of these works by providing a legal basis which permits their distribution and dissemination without loss of dominion over the inherent literary property.

The copyright statute and the common law rules of literary property in unpub. lished works together presently constitute the copyright system under which this form of property is protected against invasion in the United States. It serves the same purpose in this area as that which a negotiable instruments law provides in financial transactions, and that a sales act or commercial code provides in respect of tangible personal property. They all provide the ground rules by which the pertinent activities are governed and judged.

The right secured by the copyright system is a highly sophisticated form of property. It is not capable of being possessed in the ordinary sense of physical possession, nor can it be measured in metes and bounds or surrounded by a fence. It finds its safeguard only in a general respect of the community for the legal rights established, the possibility of enforcement of these rights in the courts, and the sanctions which the law imposes for any trespass upon this property. The rights in this kind of property rest solely upon the concepts which the law supplies and the means of enforcement which it provides.

A significant attribute of this property is that it flows from an affirmative contribution to the common reservoir of property enjoyed by society, and not from any withdrawal of property from that reservoir. A book written by an author or a song of a composer could not have come into being except by his personal effort. Intellectual property does not exist in nature, nor is it a machine made product. It stems entirely from human ingenuity, initiative, effort and imagination.

It would be difficult to find more eloquent language to describe this unique property than that which Drone, in his Treatise on Copyright (p. 82), quotes from Benjamin Disraeli:

“There are works requiring great learning, great industry, great labor, and great capital, in their preparation. They assume a palpable form. You may fill warehouses with them, and freight ships. And the tenure by which they are held is, in my opinion, superior to that of all other property; for it is original.

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