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The fundamental educational issue posed in copyright law revision is whether teachers shall have the right to make copies of copyrighted material for classroom use. Under present law, there is controversy whether, and to what extent, copies and recordings of copyrighted materials, in whole or in part, may be made by teachers.
Nevertheless, over the years since the copyright law was passed in 1909, a general and largely unchallenged practice has grown up for teachers to make copies and recordings of such works for classroom use, educational television, and related teaching purposes. At present, this practice has been defended as authorized under two aspects of the copyright law:
(1) The not-for-profit provision; and (2) "Fair use."
If the proposed S. 1006 is enacted in its present form, it would seriously curtail present teaching practices. In his testimony before the Congress on May 26, 1965, the Deputy Register of Copyrights said that H.R. 4347 (S. 1006) would not grant teachers “the right to make multiple copies of substantial excerpts and quotations and a full and complete copy of any copyrighted work."
He also said that "the right to make multiple copies of excerpted quotations of unspecified length *** goes beyond fair use and is not sanctioned by the bill.” Therefore, S. 1006 would forbid a teacher, for example, from making a copy of a small copyrighted poem for classrooom purposes. It would throw into doubt the teacher's legal right to make tapes for his foreign language class when excerpts are selected from the copyrighted textbook owned by each member of the class. In other words, the bill would challenge and jeopardize the present practice of teachers in limited copying and recording for purely nonprofit teaching purposes.
In order to protect the teaching process and enable teachers to teach creatively, the ad hoc committee recommends that the law be written specifically to authorize teachers to make copies or recordings for purely noncommercial teaching purposes as follows: Single copy of an entire work such as—
or a magazine; a short story; an essay; a map; a TV or radio program; an article from a magazine. (The committee is not asking for the right to make a single copy of an entire book or novel; dictionary, reference book, encyclopedia, magazine or newspaper, pamphlet or monograph; workbook or standardized test; motion picture or filmstrip.)
Multiple copies of excerpts or quotations from copyrighted works such as excerpts from contemporary writings in a duplicated examination, the reproduction of a map or a chart from a newspaper or from a text for classroom use, the making of a diagram from a magazine for overhead projection, or the recording of a school orchestra for the purpose of self-evaluation.
(The committee is not asking for the right to make copies of materials originally consumable upon use, such as workbook exercises, problems, answer sheets for standardized tests.)
Mr. WIGREN. As we see the situation, uses of copyrighted materials by teachers fall into three categories: the white areas, the black areas, and the gray areas. The white areas are those which both the law and good teaching practice would condone. These are minimal uses, ranging from a "single reproduction of a small work to illustrate a lesson” to reading something aloud in class or projecting a motion picture, et cetera.
The black areas are the forbidden uses which the law, either present or proposed, would not permit and which teachers are not asking for, because good teaching does not require such uses. These would be unethical because they would damage the author or publisher. These black areas include making a copy of an entire work such as a textbook, a novel, an encyclopedia or reference work, a motion picture or filmstrip, or an entire copy or multiple copies of excerpts from workbooks or answer sheets to standardized tests. No teacher wants such privileges as these. We are not asking for these.
Let me say that if we do need to do any of these things at any time, we would certainly expect to pay for them. We do not expect that "black area uses” should be given to us as an exemption, free of charge. We fully expect to pay for such uses, if we have to do these things in the course of teaching.
The gray areas are those of greatest contention and where the differences between us arise. Good teaching practice and modern instructional technology mandate certain uses of copyrighted materials in the course of teaching, but it is doubtful that present or proposed law supports such uses.
These uses include such things as making: a transparency copy of a map, chart, graph from a book for showing to the class; a reproduction of a map in multiple copies for students' classroom use; work copies of tape recordings for language laboratory use from a master copy purchased from a publisher; multiple copies of entire short poems or essays for pupil study and interpretation; a recording of a school orchestra for self-evaluation purposes prior to a concert; dittoed excerpts from a work for critical interpretation on an examination; a tape of a radio program at home or at school to play to a class which meets at a later period in the day.
The ad hoc committee submits that these are important uses of materials in teaching and learning, and such uses should be legitimatized because they form the bulk of good examples which a teacher uses in teaching. The committee would like to see these uses 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, then we suggest that the wording be changed to encompass what we said. We do not want to stay with our wording in section 111 forever. What we really believe and wanted to say we stated previously, and we think we have 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.
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.
In 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.
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.
(Whereupon, at 12:05 p.m., the committee recessed, to reconvene at 2 p.m. on the same day.)
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