In speaking of expanding duration, it would appear that the publishing industry is the real beneficiary of the "life plus fifty" proposal. Even granting that promotion of the arts and sciences may require incentive for commercial sponsors, it is difficult to imagine how promotion could be encouraged by offering protection for a period which may very well exceed the life of the sponsoring individual, or the publishing company, which invested the risk capital. Indeed, it would appear at some point the need to encourage the arts will be discouraged if sponsors can reap long term profits from their past successes.

Second, we strongly endorse a waiver of statutory damages for innocent educational infringers. The nation's school boards can make this endorsement from the detached position of not being liable for the ultra vires violations of our teachers and librarians. Our concern is that such personnel should not be required to proceed with the judgment of a copyright lawyer-many of whom would also encounter difficulties in dealing with the factual complexities which may arise in applying the law on a day to day classroom basis. It is our opinion that penal provisions will not serve to deter good faith violations, as much as it will to foreclose teachers from pursuing justifiable exemptions to the law, and, in turn, foreclose the educational public policy which such exemptions seek to protect. In this regard, it can be assumed that school employees, and the units of government which oversee their activities, will operate in good faith and take steps to ensure adherence to the law.

Third, the educational exemption proposed by the Ad Hoc Committee on Copyright Revision is inclusive of those transferring mechanisms which would limit copyright protection beyond face-to-face teaching, such as educational television. While other witnesses can provide expert technical testimony to support such an exemption, we would like to especially emphasize our encouragement for the closed circuit educational television exemption. This teaching device costs the taxpayers millions of dollars every year, and it would be an enormous frustration of that expenditure if the use of educational television was impeded by restrictions, further costs, and delays in clearing administrative restrictions. In addition, it should be noted that the Congress has recognized the educational television priority through special provisions in the Emergency School Aid Act and Title III of the Elementary and Secondary Education Act. Therefore, apart from the taxpayer interest, the tighter the restriction on closed circuit television usage, presumably the less achievable will be Congress' legislated goals in educational innovation and quality integrated education-the purposes of the two acts which I just cited.

Mr. Chairman, this concludes my statement. On behalf of the National School Boards Association, I would like to thank you for permitting us to present our views on the educational exemption to the copyright laws.

Mr. ROSENFIELD. Mr. Chairman, reference has been made to the impact of Williams and Wilkins on the educational community's interest. For the interest and edification of the committee, may I submit a memorandum of law on the impact of the Commission's opinion and its relationship to the House committee report?

Senator MCCLELLAN. You may. It will be received. [The memorandum referred to follows:]

MEMORANDUM OF LAW

Re: Impact of Commissioner's Opinion in Williams & Wilkins.

The Commissioner's decision in Williams & Wilkins is inconsistent with the understanding of the House Judiciary Committee on the meaning of "fair use." The Commissioner's opinion undercuts the House Committee's understanding as to "fair use" in such a serious way as to make it impossible for education safely to accept the House Committee's bill and report at this time.

1. To date, the only action taken by either House of the Congress in connection with copyright revision was that taken by the House in 1966 and in 1967. In each instance, the House Judiciary Committee reported a bill with a report, the last instance being in 1967, H.R. 2512 and the accompanying H. Rep. No. 83, 90th Congress. 1st Session.

2. For the first time, a Congressional Committee proposed statutory recognition of "fair use." Some of the key considerations appeared in the House Committee's respective reports as follows:

(a) There were no available judicial precedents for the meaning of “fair use" in connection with nonprofit schools. House Rep. No. 2237, 89th Congress, 2nd Session, on H.R. 4347, pp. 60-1.

(b) In proposing statutory "fair use," the House Committee stated: "Section 107, as revised by the committee, is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way. . . ." H. Rep. No. 83, supra, at p. 32.

(c) To give some guidelines of what such statutorily-adopted judicial "fair use" meant, the Committee set forth, in considerable detail and specification, examples of teaching activities which it regard as "fair use" under the judicial doctrine which it was accepting without change.

3. In specific instances of major importance, the views of the House Judiciary Committee as to what "fair use" comprised were diametrically opposed to the Commissioner's decision in Williams & Wilkins. This being the case, the educational community cannot at this point safely rely on the views previously expressed by the House Judiciary Committee as to the meaning of judicially-determined "fair use."

4. Examples. The divergence between the Commissioner and the House Judiciary Committee are indicated in three items of major importance to the educational and library community, as follows:

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(A) AN ARTICLE FROM A PERIODICAL ISSUE

The Commissioner: there is no difference between an article and an entire periodical issue. each article in plaintiff's journals is protected from infringement to the same extent as the entire journal issue. (p. 6)

House Judiciary Committee: there is a difference. "Single copies of 'entire' works. . . . The educators have sought a limited right for a teacher to make a single copy of an 'entire' work for classroom purposes. The committee understands that this was not generally intended to extend beyond a 'separately cognizable' or 'self-contained' portion (for example, a single poem, story or article) in a collective work, and that no privilege is sought to reproduce an entire collective work (for example, an encyclopedia volume, a periodical issue). .. With this limitation, and subject to the other relevant criteria, the requested privilege of making a single copy appears appropriately to be within the scope of fair use." (34–5) (underlining supplied)

(B) COPY OF ENTIRE WORK

Commissioner: No. ". . . And the courts have held that duplication of a copyrighted work, even to make a single copy, can constitute infringement."

House Judiciary Committee: Yes, under some circumstances. "For example, the complete reproduction of a fairly long poem in examination questions distributed to all members of a class might be fair use..." (33)

"There are certain classroom uses which because of their special nature would not be considered an infringement in the ordinary case. For example . . . recordings of performances by music students for purposes of analysis and criticism, would normally be regarded as fair use unless the copies or phone-records were retained or duplicated." (34)

"Allows multiple copies of very short self-contained works." (p. 35)

DIFFERENCES BETWEEN SINGLE AND MULTIPLE COPIES

Commissioner: None. ". . . there is nothing in the copyright statute or the case law to distinguish in principle, the making of a single copy of a copyrighted work from the making of multiple copies..." (14)

House Report: There is a difference. "Single and multiple copying. Depending upon the nature of the work and other criteria, the fair use doctrine should differentiate between the amount of a work that can be reproduced by a teacher for his own classroom use . . . and the amount that can be reproduced for distribution to pupils . . ." (p. 33) (underlying supplied)

"... fair use can extend to the reproduction of copyrighted material for purposes of classroom teaching." (p. 33)

The educational community deliberately compromised on some of its major demands in specific reliance upon the understandings set forth in the House Judiciary Committee's report on the meaning of "fair use." The Commissioner's opinion in Williams & Wilkins negates the substance of that legislative under

standing and renders it unsafe and unwise, at this point, to rely on the understandings set forth in the House Judiciary Committee's interpretation of "fair use." The educational community, therefore, must have clearcut and decisive assurances that the statute will include what is needed for the educational community, in the way of reasonably copying and recording-needs which are rejected by the language as well as the thrust of the Commissioner's opinion. Senator MCCLELLAN. Is that all now?

Mr. WIGREN. Mr. Chairman, may I clarify one point before we leave the stand?

Senator MCCLELLAN. Yes.

Mr. WIGREN. Very frequently I have been asked, does the ad hoc committee's limited education exemption request go beyond the bounds of "fair use"? And I am sure some of the members of your committee would be interested in our interpretation of that question. I would say that our request goes beyond fair use in protection only, but not in substance. In other words, our request goes beyond "fair use" in four ways, as far as protection goes. First, the limited educational exemption would provide certainty that a given practice of teachers in the classroom is permissible. We do not have this certainty now.

Second, the limited educational exemption would provide us freedom from the aura of commercial competition in the normal "fair use" situation; that is, as I pointed out in my testimony, "fair use" is generic in nature and applies equally to both commercial and noncommercial

users.

We feel educational users need special protection over and above that provided commercial users, because of their public responsibility. Third, "fair use" is a defense in a lawsuit, and the teacher has the burden of proof under the present statutes. The limited educational exemption on the other hand puts the burden of proof on the publishers. The publisher has to prove that the teacher has infringed.

Finally, the limited educational exemption would protect us in the event there arises another court suit be it Smith versus Jones or whatever you want to call it, which might be similar to Williams & Wilkins. In the event that occurred we would be protected. Otherwise we would have the same thing to do all over again as we are doing today.

Let me point out that we are not asking for more substantive rights, but we are asking for more protection to assure that we get those substantive rights which we feel are appropriate for the educational community.

Thank you, sir.

Senator MCCLELLAN. All right. Thank you.

Call the next witness.

Mr. BRENNAN. We have five separate presentations in opposition to the ad hoc committee amendment. Each witness will be alloted 8 minutes.

Senator MCCLELLAN. There goes the bell. I will have to leave to vote, but will be back shortly.

[A brief recess was taken.]

Senator MCCLELLAN. The committee will come to order. Call the next witness.

Mr. BRENNAN. Mr. Chairman, the first witness in opposition to the ad hoc committee's amendment is Mr. Irwin Karp, counsel for the Authors' League of America.

Senator MCCLELLAN. All right, Mr. Karp, you may proceed.

STATEMENT OF IRWIN KARP, ESQ., COUNSEL FOR THE AUTHORS LEAGUE OF AMERICA, INC.

Mr. KARP. Thank you, Mr. Chairman.

I have submitted a written statement and I would respectfully request that it be included in the record.

Senator MCCLELLAN. It will be printed in the record in full.

Mr. KARP. I will simply comment on certain portions of my written statement.

The Authors League opposes the proposed educational exemption, which has just been discussed by the illustrious members of the panel who addressed you.

I will focus, as our statement focuses, on those provisions which deal with reproduction, copying, and recording. But I do want to state that the Authors League opposes the other aspects of the exemption which would permit storage and retrieval systems beyond the limits of fair use. And it also opposes the provisions on educational broadcasting, which as we just heard would apparently, in the eyes of the proponents, allow them to go into the wholesale business of using copyrighted materials for the preparation of television programs-involving such substantial investments that they must have even greater power to reproduce copies so they can, as the gentleman just told us, recoup their investment. I think that marvelous little phrase about recouping their investment exemplies a certain failure to envision the problems of producers of educational material and authors who must also recoup their investment. In a sense that myopic vision highlights and emphasizes the problems that have plagued us all through the copyright revision proceedings.

It should be emphasized, at the outset, that what the educators are doing is asking this committee and the House Judiciary Committee to throw out a carefully worked out compromise on the problem of educational copying. The same gentlemen who were before you just now, made the same pleas to the House Judiciary Committee and this committee back in 1967, and then again when this committee held hearings the following year.

The House Judiciary Committee, taking very careful note of all of the arguments, said that because photocopying and other reproducing devices were becoming easier and cheaper, and because of the dangers of educational copying to authors and publishers, a specific educational exemption was not warranted. However, the House Judiciary Committee took several steps to meet and balance the needs of authors and educators. They revised section 107 at the request of the educators to make it explicit that some use for purposes such as criticism, comment, news reporting, teaching, scholarship or research could be fair use. Then they made a very careful analysis of the four criteria of fair use, which they applied to specific typical classroom situations.

As the committee noted, the analysis had to be broad and illustrative. They said it might provide educators with the basis of establishing workable practices and policies.

Now, in reality the House committee's analysis of fair use, with its explicit examples and illustrations of how it applied to educational copying, was far more precise than the very vague amendment that this committee is being asked to adopt in the name, so we are told, of clarity.

The fact of the matter is that the House report and the draft report of this committee give far clearer guidelines to educators and publishers and authors than this proposed exemption, which concededly would go beyond the limits of fair use.

The House committee said, in its concluding remarks on this subject, that "the doctrine of fair use, as properly applied, is broad enough to permit reasonable educational use, and education has something to gain in the enactment of a bill which clarifies what may now be a problematical situation."

Now, that remark, Senator, that judgment and that analysis of fair use is just as valid today as it was when the House Judiciary Committee made the report because there is absolutely nothing in the Williams and Wilkins decision which changes the concept of fair use as it applies to educators or educational copying. And it requires a tortured reading of Commissioner Davis' very careful opinion-and a very partisan reading--to believe that this changed in any way the work of Mr. Kastenmeier and his committee which was then acceptable to the very people who just sat here before you. So, the decision is simply being used as a pretext to push once more for an exemption, which even the educators recognized after discussion to be

Senator MCCLELLAN. Oh, we just got a record vote call. I will have to recess for a few minutes, and I will hurry back.

Be at ease until I return.

[A brief recess was taken.]

Senator MCCLELLAN. The Committee will come to order.

Mr. KARP. As I said, the House Judiciary Committee completed its analysis of the problem of educational copying by stressing that the doctrine of fair use properly applied is broad enough to permit reasonable educational use.

Indeed, Mr. Rosenfield, counsel of this committee, very shortly thereafter, speaking for the ad hoc committee, said that the sine qua non of our agreement on the compromise of educational copying, the sine qua non of our agreement, is the present language of 107, unchanged. The proposed educatioal exemption will change that agreement considerably and will change 107.

I might say very briefly, that if the exemption is not intended to go beyond fair use, there is obviously no need for it-although in fact it concedely would go beyond fair use. We analyze this point in our statement and we point out that it would permit various types of copying that do not meet the criterion of fair use, including the most_important criteria-whether the use would affect the market value of, or market for, the copyrighted work.

We have discussed this afternoon in other testimony how educational copying can injure authors, and how library copying can do that also, and I will not repeat that analysis.

We then come to the Williams and Wilkins case, which is the pretext on which the educational community asks for another crack at the educational exemption. In the House Judiciary report it was emphasized that each case raising the question of fair use must be decided on its own facts. And the committee said that "unauthorized library copying, like anything else, must be judged a fair use or an infringement on the basis of all the applicable criteria and the facts of the particular case." That is a well-established doctrine of copyright law.