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The purpose is to bridge the short but critical gap between broadcast and class ničeting. Such recordings should not-and under these restrictions, could notsubstitue for film or videotape versions which only become available through commercial sources months or years after the time of broadcast. By limiting to five days the life of such recordings as we propose here, immediate educational needs could be served without adverse effect upon the later commercial market for library copies or copies for classroom use in subsequent semesters.
In summary, as an alternate form of teaching, instructional broadcasting requires equitable treatment under the doctrines of fair use and educational exemption. Beyond these doctrines, producers of instructional programming are willing to pay reasonable copyright fees, but they cannot do so unless they have access to copyrighted materials under a system of terms and conditions which frees them from the present pattern of delays, high administrative costs and uncertainties. In order to achieve critical mass and needed economies of scale, instructional broadcasting must be free from arbitrary limitations upon the number of recordings which can be made, and their useful lifetime. Finally, there is a growing interest in using educational technology to bring into the classroom important programs which can contribute significantly to the instructional process which could not otherwise be available on a timely basis. Thank you. Senator McCLELLAX. Next?
Mr. STEDMAN. Mr. Chairman and members of the subcommittee, I am John Stedman, professor of law, the University of Wisconsin. I am a member of the Special Committee on Copyright Law of the Association of American Law Schools. Representatives of the American Association of University Professors and the American Council on Education have joined in the deliberations of that committee. I appear before you today at their request.
As you can gather from the associations involved here, our concern is primarily directed to university and college education and scholarship. In accordance with the procedures that have been set down, I will forego reading my prepared statement, which has been submitted to you, and simply attempt to state the highlights of it.
Senator McCLELLAN. All right. Your statement will be printed in the record.
Mr. STEDMAN. Our basic recommendation is this: We urge enactment of a statutory fair use provision accompanied by supportive language in the committee report comparable to that contained in House Report 2237 expressing its concept of fair use as that term was understood prior to William and Wilkins.
This is an important but a modest recommendation. It merely sug. gests after all that your committee stand by the approach that the House took in 1967 when it passed an earlier version of the copyright revision bill and the approach your committee takes at the present time as evidenced by the language of section 107.
The reasons behind our recommendations here are threefold: one, flexibility in usage is essential to teaching scholars; two, the "fair use" doctrine, properly understood and properly applied with respect to education, will provide this flexibility and do so without economic injury to the copyright owner; three, in the light of how the legal process works and some recent legal developments, it is essential that this doctrine, which has heretofore been a purely judicial doctrine, be expressly written into the copyright statute accompanied by supporting language in the committee report.
Let me take these three propositions in order.
(1) With respect to flexibility, effective teaching and scholarship are crucially important to our society and becoming more so every day. And the higher education community has been given a major responsibility for advancements in this area. I don't believe I need to belabor this point any further. These advancements cannot be accomplished without some flexibility in the use of copyrighted material. This is absolutely essential to effective teaching and scholarship.
In his role as a researcher, the educator must have the ready access to excerpts, articles, and hard-to-get materials. Here, single copy duplication of excerpts and inter-library lending are the only feasible solutions. In his role as a teacher, the educator must have access to excerpts, typically of current articles, and he must have these available for students if an adequate job of teacher-student communication is to be carried out. Duplication for such temporary usage is the only answer.
(2) Now, let me turn to the role of fair use in this. It is essential that these materials, in their limited form and scope and for their limited temporary and nonprofit use, be made available promptly and without cost to the users. Otherwise they will simply not be used. The copyright owner will gain nothing but education will suffer severely, and in the case of higher education, at least in most instances, the author as well will suffer. This is where the fair use doctrine comes in. In its basic concept, it is a sort of safety valve designed to permit usage of copyrighted materials and the information contained in these inaterials, in circumstances where a publie interest in such usage will be served and where that public interest would be frustrated if one were denied freedom to see it, and where allowing such usage will occasion little or no economic injury to the copyright owner in comparison to the public advantage that will accrue. This is exactly the case in the situation we are talking about here.
In future educational activities fair usage can and should play an important role.
(3) Finally, let me address myself to the reasons for legislation on the subject of fair use. The factors that make it important to write this doctrine into the statute and accompany it with a clear statement of legislative intent are, I think, fairly clear. The courts, as we know', are heavily influenced by precedent, and there has in the past been virtually no precedent with respect to educational usage presumably because such usage has not been controversial or challenged.
Now it is a matter of controversy and it has been seriously challenged as a result of the sweeping language and reasoning contained in the preliminary decision in the Williams and Wilkins case. Under these circumstances it becomes crucially important that Congress speak out and provide the courts with guidance in this matter.
And so we conclude as we began with a request that this committee continue the traditional recognition of fair use in the research and teaching context by the enactment of section 107 coupled with supportive legislative history as outlined in our prepared statement.
I should add one minor point. There are two clarifications that should be made in the existing language of section 107 of S. 1361 which we think should be made explicit. We would like to see the legislative history indicate that none of the other sections of the act limit the force of section 107. This is already written into some of the provisions. It is clearly stated several times in the House report. We want to see that in this report as well.
We would also like the history to show that the fair use doctrine protects the maker of a copy as fully as it protects the user of that copy.
Thank you very much.
Mr. BRENNAN. Mr. Chairman, for the benefit of the committee, 4 minutes remain to the committee.
[The statement of Mr. John C. Stedman in full follows:
STATEMENT BY John C. STEDMAN, THE COPYRIGHT COMMITTEE OF THE ASSOCIATION
OF AMERICAN LAW SCHOOLS, THE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS AND THE AMERICAN COUNCIL ON EDUCATION
Mr. Chairman and members of the subcommittee, I am John C. Stedman, Professor of Law, the University of Wisconsin. I am a member of the Special Committee on Copyright Law of the Association of American Law Schools. Representatives of the American Association of University Professors and the American Council on Education have joined in the deliberations of that committee. I appear before you today at their request.
This group urges as strongly as it can that the doctrine of fair use not only be preserved, but be given formal recognition by the Congress, both by express statutory provision and by appropriate language in the final committee report, as it has been earlier in this revision and in House Report No. 2237, 89th Congress, Second Session, pages 61 to 66 (1966). This is a modest, but important, recommendation. It merely suggests, after all, that your committee stand by the approach that the House took in 1967 when it passed an earlier version of the Copyright Revision Bill, and the approach your committee takes at the present time, as evidenced by the language of section 107.
Let me emphasize that we do not seek to remove protected material from copyright control. Nor are we adverse or hostile to the basic premise that legitimate rights in intellectual property should be protected. We accept that premise as a matter of principle, as a matter of public policy, and as a matter of self-interest. There are, after all, within our constituent membership many authors whose scholarly works command high prices in the commercial book market and authors whose royalties compare favorably' with the royalties of non-academic authors.
Our main concern is to stress before this committee the soundness of the traditional, judicially-constructed doctrine of fair use, and its fundamental importance in the process of higher education. Those among us who are law teachers are moved by an added sense of urgency and concern. Tradition and precedent play an important role in the judicial development of the law. But there is little case precedent to guide the courts with respect to permissible uses by teachers and researchers. Cases simply did not come up in this area. But given this scarcity of cases, if s. 1361, with its present section 107, were enacted without appropriate legislative history-at a time when educational usage has become a controversial issue-courts might interpret this silence as indicating a Congressional intent not to go beyond the precedents of the past. You will recall that Congressional silence in the 1909 Act with respect to the protection of phonograph records, despite the fact that phonographic technology existed at that time, resulted in this important area receiving no copyright protection down to the present time. We would not want to see this costly and unfortunate experience repeated in the educational fair use area, because the Congress failed to speak out on the subject. I should add that the dangers that exist here are aggravated by the sweeping language and reasoning contained in Commissioner Davis' opinion in the Williams and Wilkins Case.
In seeking to assure the application of traditional fair use doctrine through express statutory recognition coupled with supportive legislative history, we are moved by the essential importance of the availability of copyrighted materials in teaching and research. First and most basic is the fact that the higher education community, college and university administrators and their faculties, are primarily the institutions in which the ultimate task of transmitting and advancing knowledge is reposed. I emphasize that both research and teaching are involved in this process. Each is indispensable to the other. Effective instruction of the next generation of citizens and professionals requires that the current generation of teachers be involved as researchers at the frontiers of their own individual disciplines and specialties. But if the individual teacher is to discharge this duty, he must be current within his own discipline, and this requires that he have access to the work product of allied researchers.
The exponential rate of growth of knowledge in this generation and its expression in written and other forms, underscores the importance to the scholar and teachers of access to this information. As the volume of published material has risen, the library budgets of colleges and universities are increasingly pressed. The typical library of a major law school must spend a substantial portion of its annual budget to acquire the current volumes of the state and federal reports and the current supplements to the vast array of state statutes, treatises, and looseleaf services. It is not possible for every university and law library to acquire one or more copies of every book needed for research and teaching in the institution.
The relevance of this to the fair use doctrine is, I trust, clear, look at it first from the standpoint of the researcher. A teacher at a good private university in the southeastern United States who is interested in research on a particular topic finds that the basic works relating to that topic are available only at one or two distant universities in the northeast. He may want to consult only one chapter in such a work, or a few pages within that chapter to which he has found a citation in a periodical that is available to him. Access to such information is essential to the scholar. Inter-library "lending" has become the means to such access. A definition of fair use that left it uncertain whether such a portion could be photocopied and thus satisfy the researchers' needs, would frustrate the purposes that underlie the fair use doctrine, and would be inimical to the orderly extension of scientific knowledge.
Although the library associations are appearing here on their own behalf, we consider the need to permit restricted photocopying for the individual scholar so basic to the vital inter-library loan process as to warrant emphasis by us as well.
Turning to the teaching function, the need for reasonable photocopying for classroom purposes closely parallels the need of the scholar. Often a current new item will appear first in a newspaper or other periodical. Or it may be a one or two page excerpt from a voluminous book or article. Whatever its source, the quality of teaching is grealty improved by making the excerpt available to students. Denial of the opportunity to do this does not mean that students and teachers will go out and buy the entire book or periodical. They will simply do without. In short, the cause of education will have been disserved, and the copyright owner will be no better off.
In this connection, we reiterate that we do not seek the right to reproduce entire books or other publications. We seek only a clear expression of intent that the fair use doctrine, as set forth in section 107, includes classroom use by a teacher, together with a supportive statement in the legislative history to the effect that classroom use by a teacher was intended to be within he ambit of section 107. In urging this statement we accept the limitations cited in House Report No. 2237, 89th Congress, Second Session, at page 62 (1966) that in determining fair use it is appropriate for a trier of fact to consider the non-profit character of a school, the independent volition of the teacher and the spontaneity of the temporary use by the teacher and the students. We accept also the limitation that compilation of anthologies would be outside the ambit of fair use.
We reiterate that we do not seek the right to engage in multiple copying out of the context of research and teaching. We seek only the right of the scholar to have access to knowledge through a single copy of such portion of controlled works as are germane to his established research goals, and, for the classroom teacher, to have the right to use current materials in the non-profit and temporary use context that is his normal classroom situation. In this connection we recognize that the effect on the potential market for the copied work is an appropriate factor to be considered in the determination of fair use, but we also recognize that in the overwhelming proportion of cases, any possible adverse effect will be nil or virtually so. Indeed on balance, access to excerpts appears more likely to stimulate sale of the source product than to discourage it.
Two minor clarifications of points that seem implicit in the existing language of section 107 of S. 1361 would make their meaning explicit. We would like to see the legislative history indicates that none of other sections of the Act limit the force of section 107. We would also like the history to show that the fair use doctrine protects the maker of a copy as fully a sit protects the user of that copy.
We conclude as we began with a request that this committee continue the traditional recognition of fair use in the research and teaching context by the enactnient of section 107 coupled with supportive legislative history as outlined above. Mr. STEINHILBER. Mr. Chairman, my name is August W. Steinhilber and I am director of Federal relations for the National School Boards Association.
The National School Boards Association is the only major education organization representing school board members. Our membership is responsible for the education of more than 95 percent of all the Nation's public schoolchildren.
As representatives of the Nation's largest unit of government, both in terms of number and expenditures, our testimony today is not for the benefit of any vested professional or business interest.
We are locally elected officials. We are here as trustees of the taxpayer, who must eventually bear the cost which the limited monopolistic rights arising from copyright protection will entail. The term monopolistic is being used in the nonpejorative sense that to the extent legislative restrictions are placed on the public use of work, society is then being precluded from freely dealing with the ideas presented therein.
Mr. Chairman, may I stray a little from my prepared testimony. Having negotiated with private industry the last few weeks on the energy crisis, where we tried to obtain bids on fuel oil to keep schools open this fall plus retain current natural gas usage which you know is under the Federal Power Commission, I would indicate that any monopoly is indeed dangerous to the public and therefore the responsibility of this committee is very heavy to prevent such from happening in the copyright area.
We know the subcommittee recognizes that great care must be taken to weigh taxpayer cost in striking the balance between intellectual creation and intellectual pursuit. And, it is with respect to the latter, intellectual pursuit-specifically, taxpayer cost as it relates to classroom use of copyrighted materials
that my testimony is directed. The National School Boards Association supports the balance of interests expressed in the exemption proposed by Mr. Wigren of the ad hoc committee of copyright law revision. In the interest of time, my specific comments will focus on three issues: One, duration; two statutory damages; and three, other than face-to-face "not for profit
We strongly oppose an expansion of the current duration period of 28 years renewable for 28 years, particularly to a period as long as life plus 50 years. It totally defies commonsense to assume that the typical artist, in order to have financial incentive to produce, needs a copyright protection which will not only keep him financially secure, but will provide an ongoing source of income for his great-grandchildren. Under the current law, the artist, like the rest of the citizenry, in effect, has a life interest in the sale of his labor, which has thus far proven to be sufficient. Furthermore, except for the relatively rate instances of great works, we sincerely doubt whether the demand for most works in excess of 56 years of age is such that the balance between spot usage and royalties collected by heirs can justify burdening copiers with finding the publisher in interest, and then ordering copies or seeking permission to copy.
In speaking of expanding duration, it would appear that the publishing industry is the real beneficiary of the “life plus fifty" proposal.