Lapas attēli
PDF
ePub

Section . Limitations on exclusive rights: Reproduction for teaching, scholar

ship and research Notwithstanding other provisions of this Act, nonprofit use of a portion of a copyrighted work for noncommercial teaching, scholarship and research is not an infringement of copyright.

For purposes of this section, (1) "use” shall mean reproduction, copying and recording; storage and retrieval by automatic systems capable of storing, processing, retrieving, or transferring information or in conjunction with any similar device, machine or process ;

(2) "portion” shall mean brief excerpts (which are not substantial in length in proportion to their source) from copyrighted works, except that it shall also include

(a) the whole of short literary, pictorial and graphic works,

(6) entire works reproduced for storage in automatic systems capable of storing, processing, retrieving, or transferring information or in conjunction with any similar device, machine or process, provided that

(i) a method of recording retrieval of the stored information is established at the time of reproduction for storage, and

(ii) the rules otherwise applicable under law to copyright works shall apply to information retrieved from such systems; (c) recording and retransmission of broadcasts within five school days after the recorded broadcast; provided that such recording is immediately destroyed after such 5-day period and that such retransmission is limited

to immediate viewing in schools and colleges. Provided that “portion” shall not include works which are

(a) originally consumable upon use, such as workbook exercises, problems, or standardized tests and the answer sheets for such tests ;

(6) used for the purpose of compilation within the provisions of Section 103(a). Senator MCCLELLAN. Proceed.

Mr. WIGREN. I appear before you today, on behalf of the Ad Hoc Committee on Copyright Law Revision, which represents the interests of teachers, professors, school administrators, elected school board members, subject matter specialists, educational broadcasters, librarians and, most importantly, students themselves. Actually, we represent the only major organized group of nonprofit copyright users. Our clients are students, and they are completely dependent on the ease with which copyrighted information can be made available to them in reasonable proportions. In an information society, Mr. Chairman, the quality of their education is in your hands and the hands of the committee. A list of our members is attached to this statement (exhibit A). For the record I would like to point out that we support the testimony given by the library associations this morning. These groups are members of the Ad Hoc Committee on Copyright Law Revision.

I am accompanied today by a panel of representatives of members and participants in the ad hoc committee who will address themselves to particular aspects of our position. We will not dwell on some of the other concerns we have in the bill, but instead will concentrate on the main thrust of this hearing-namely, our proposal that a limited educational exemption be provided for teachers, scholars, and researchers to use materials for nonprofit purposes in carrying out their day-todav work.

First, we would like to point out to the subcommittee the rationale for this limited educational exemption. During the past 8 years, the ad hoc committee has made every effort to maintain contact and dialog with publishers, authors, and materials producers to reach some type of accommodation which would take into account the interests of all parties concerned in the revision effort in order to strike a fair balance between the rights of proprietors and the rights of consumers/ users of materials.

Our discussions, however, have been frustrated by the impact of the recent ruling by Commissioner Davis of the U.S. Court of Claims in favor of Williams & Wilkins, in its copyright infringement suit against the National Library of Medicine. Commissioner Daris' report, in our judgment, has great impact not only on library operations but also on the ability of the educational community to gain access to the intellectual resources of this Nation. This ruling, if affirmed by the entire Court of Claims, would seriously limit the scope and meaning of "fair use.” The Commissioner's ruling has caused considerable consternation and alarm within the educational community not only because of its effect on libraries but also because it would undercut the accepted and traditional meaning of "fair use" for teachers. The language and rationale are just as applicable against teachers and schools as against libraries.

Senator McCLELLAN. I don't want to interrupt you, but I do think this question ought to be borne in mind, and I would like for some of you to give us an answer to it.

Is there any danger of this material drying up or being greatly diminished by reason of the inability of the producers to finance the costs of it unless they get revenues, additional revenues in some other way?

Mr. WIGREN. Well, we think that we are creating markets for the author's works, and we think that the author needs us and we need him. We give his works visibility.

Senator MCCLELLAN. There is no question about that, but if they can't produce it, and get a return, at least on their investment, enough to keep them in business, you are not going to have the material.

Mr. WIGREN. Well, we are asking for only minimal things in the course of teaching and learning that we feel will not undercut at all the ability of the publisher to make sufficient profit, which, of course, we think he should do.

Senator McCLELLAN. But on the other hand, if they don't have anybody to subscribe for it, they are certainly not going to produce any of it.

Mr. WIGREN. That is right.

Senator McCLELLAN. So we have a problem. There has to be a little give and take here.

Mr. WIGREN. We understand this and Congress needs to strike a fair balance between the rights of proprietors and the rights of users.

Because the Williams and Wilkins decision proves the unreliability of "fair use" for schools and libraries, the ad hoc committee urges Congress to adopt the concept of a limited educational exemption which would neutralize the harmful effect of the Commissioner's opinion on both schools and libraries and at the same time not be detrimental to publishers or producers of materials. In light of Williams and Wilkins, our request for a limited educational exemption is submitted to this committee not in lieu of "fair use" but in addition to "fair use" in the statutes. “Fair use" is generic in nature and is applicable to everyone-commercial and noncommercial user alike. Educational users need special protection over and above that provided commercial users because they have a public responsibility for teaching the children entrusted to them. They work for people--not for profit.

They do not use materials for their own gain, but for the benefit of the children of all of our citizens, including those of authors and publishers. This is the foundation stone for American education,

Now, the whole proposed language of the ad hoc committee's recommendation, including definitions and limitations, is attached to this statement in exhibit B. It is too long to read here because it takes up a whole page, but I respectfully request that it be inserted into the record.

Senator McCLELLAN. Let that also be inserted in the record.

Mr. WIGREN. Also I would like to request that exhibit A be inserted into the record

Senator MCCLELLAN. Let that also be inserted into the record.

Mr. WIGREN. In short, the ad hoc committee's recommendation would enable teachers to make copies or recordings for purely noncommercial classroom teaching purposes of the following, for example:

A short poem; a short story; an essay; a map.
An article from a magazine or newspaper.

A transparency of a chart from a newspaper or from a text for classroom use.

A transparency of a graph or diagram from a book, newspaper, or a magazine.

A TV or radio program which is used within 5 school days after the recorded broadcast, then erased.

A rendition of a school orchestra for the purpose of selfevaluation.

A recording of a musical excerpt for the purposes of study,

Excerpts or quotations (such as excerpts from contemporary writings in a duplicated examination). The ad hoc committee is not asking for the right to copy an entire book or novel; a dictionary, reference book, musical score, encyclopedia, magazine, newspaper, pamphlet, or monograph; a motion picture or a filmstrip. The ad hoc 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; nor is it asking for permission to anthologize.

In conclusion, we would like to point out that the doctrine of "fair use" alone is insufficient, in our judgment, to provide the certainty that teachers and other nonprofit educational users of copyrighted materials need for their own protection, particularly in light of recent developments in the Williams and Wilkins case.

In the event that this subcommittee cannot grant our request, the ad hoc committee will be unable to support the proposed legislation (S. 1361) unless it is changed in two major respects: (1) unless the bill specifically provides adherence to the concepts and meanings of "fair use" which were written into House Report No. 83, of the 90th Congress, as amended in the following respects:

(a) The elimination of the expression “no matter how minor" in reference to the fourth criterion.

(6) The authorization for classroom purposes for limited multiple copying of short whole works, such as poems, articles, stories, and essays.

(c) The application of the full impact of "fair use" to instructional technology

(2) Unless the decision of the Commissioner in the Williams and Wilkins case is specifically rejected to the extent in which it differs from that House report, as amended above.

The 41 organizations represented on the ad hoc committee have thrashed out their differences, and the position we take now at this hearing best states the preponderant view of our committee.

I turn now to the panel members. In the interest of time, I will ask each panel member to introduce himself to the subcommittee and indicate the needs and concerns of the organization or organizations he represents relative to the ad hoc committee's recommendation to the Congress.

Mr. Harry Rosenfield, to my left, is our counsel and we may call upon him during the question period.

Mr. ROSENFIELD. Mr. Chairman, before any other witness speaks, would it be possible to have the whole of each of these statements put in the record; they are being read in substance, and not in verbatim form.

Senator McCLELLAN. We have so ordered this morning that any witness may have his entire prepared statement placed in the record and just highlight it and supplement it as he may choose.

[The statement of Harold E. Wigren in full follows:]

STATEMENT OF Ad Hoc COMMITTEE (OF EDUCATIONAL INSTITUTIONS AND ORGANI

ZATIONS) ON COPYRIGHT LAW REVISION BY HAROLD E. WIGREN Mr. Chairman and Members of the Subcommittee: I am Harold E. Wigren, chairman of the Ad Hoc Committee (of 41 educational organizations) on Copsright Law Revision, a consortium covering a wide spectrum of organizations within the educational community which have joined to protect the public interest in the revision of the copyright law. I am a member of the staff of the National Education Association, and serve as the NEA's Educational Telecommunications Specialist. I appear before you today, however, on behalf of the Ad Hoc Committee on Copyright Law Revision, which represents the interests of teachers, professors, school administrators, subject matter specialists, educational broadcasters, librarians and, most importantly, students themselves. Actually, we represent the only major organized group of copyright users. Our elients are students, and they are completely dependent on the ease with which copyrighted information can be made available to them in reasonable proportions. In an information society, gentlemen, the quality of their education is in your hands. A list of our members is attached to this statement (Exbibit A). For the record, I would like to point out that we support the testimony given by the library associations this morning. These groups are members of the Ad Hoc Committee on Copyright Law Revision.

Our committee has appeared before you on previous occasions to outline our concerns in the critical matter of copyright law revision. These concerns included the need for a clear delineation of "fair use" so that teachers can know what is permissible and what is not permissible in the uses of materials to stimulate learning. We have still other concerns regarding the copyright legislation now before you. Because of time constraints, we have set forth those concerns in a footnote. We will not, therefore, dwell on any of these matters today but instead will concentrate on the main thrust of this hearing—our proposal that a limited educational exemption be provided for teachers, scholars, and researchers to use materials for nonprofit purposes in carrying out their day-to-day work.

First, we would like to point out to the Subcommittee the rationale for this limited educational exemption. During the past eight years, the Ad Hoc Com

1 Other concerns of the Ad Hoc Committee : (a) the expansion of the duration of copy. right from 28 year plus 28 years in the present law to life of the author plus 50 years in the proposed law (This we feel is unwarranted and will prevent materials from going into the public domain for at least 75 years and, in some cases, as much as 120 years.); (b) the liability of innocently infringing teachers and the excessive penalties which are possible under the proposed law; (c) the need for "fair use" to apply to instructional broadcasting and to instructional uses of computers and other technology; and (d) concerns as to the composition of the proposed commission on the technological uses of copyrighted works.

mittee has made every effort to maintain contact and dialogue with publishers, authors, and materials producers to reach some type of accommodation which would take into account the interests of all parties concerned in the revision effort in order to strike a fair balance between the rights of proprietors and the rights of consumers/users of materials.

Our discussions, however, have been frustrated by the impact of the recent ruling by Commissioner Davis of the U.S. Court of Claims in favor of Williams & Wilkins, in its copyright infringement suit against the National Library of Medicine. Commissioner Davis' report, in our judgment, has great impact not only on library operations but also on the ability of the educational community to gain access to the intellectual resources of this nation. This ruling, if affirmed by the entire Court of Claims, would seriously limit the scope and meaning of "fair use.” The Commissioner's ruling has caused considerable consternation and alarm within the educational community not only because of its effect on libraries but also because it would undercut the accepted and traditional meaning of "fair use" for teachers. The language and rationale are just as applicable against teachers and schools as against libraries.

Because the Williams & Wilkins decision proves the unreliability of "fair use" for schools and libraries, the Ad Hoc Committee urges Congress to adopt the concept of a limited educational exemption which would neutralize the harmful effect of the Commissioner's opinion on both schools and libraries and at the same time not be detrimental to publishers or producers of materials. In light of Williams & Wilkins, our request for a limited educational exemption is submitted to this committee not in lieu of "fair use" but in addition to "fair use" in the statutes. "Fair use" is generic in nature and is applicable to everyone commercial and noncommercial user alike. Educational users need special protection over and above that provided commercial users because they have a public responsibility for teaching the children entrusted to them. They work for people—not for profit! They do not use materials for their own gain but for the benefit of the children of all of our citizens, including those of authors and publishers. This is the foundation stone for American education.

THE AD HOC COMMITTEE'S RECOMMENDATION The Ad Hoc Committee on Copyright Law Revision therefore respectfully asks the Congress to include in its new copyright law the following operative wording of the limited educational exemption:

“Notwithstanding other provisions of this Act, nonprofit use of a portion of a copyrighted work for noncommercial teaching, scholarship or research is not an infringment of copyright." The whole proposed language including definitions and limitations is attached to this statement. (See Exhibit B.)

In short, the Ad Hoc Committee's recommendations would enable teachers to make copies or recordings for purely noncommercial classroom eaching purposes of the following, for example:

A short poem.
A short story.
An essay.
A map.
An article from a magazine or newspaper.
Transparency of a chart from a newspaper or from a text for classroom use.
Transparency of a graph or diagram from a book, newspaper or a magazine.

A TV or radio program which is used within 5 school days after the recorder broadcast, then erased.

A rendition of a school orchestra for the purpose of self-evaluation.
A recording of a musical excerpt for the purposes of study.

Excerpts or quotations (such as excerpts from contemporary writings in a duplicated examination). The Ad Hoc Committee is NOT asking for the right to copy an entire book or novel; a dictionary, reference book, musical score, encyclopedia, magazine, newspaper, pamphlet or monograph ; a motion picture or a filmstrip. The Ad Hoc Committee is NOT asking the right to make copies of materials originally consumable upon use, such as workbook exercises, problems, answer sheets for standardized tests; nor is it asking for permission to anthologize.

In conclusion, we would like to point out that the doctrine of "fair use" alone is insufficient to provide the certainty that teachers and other nonprofit educational users of copyrighted materials need for their own protection particularly

« iepriekšējāTurpināt »