Now, the facts in the Williams and Wilkins case were that the two sets of Government libraries engaged in the systematic reproduction, on a vast scale, of copies of entire articles for their own patrons and the patrons of other libraries. In his opinion Commissioner Davis passed no judgment on educational copying in any of the permutations analyzed by the House Judiciary Committee.

What Commisioner Davis did was to confine his decision and opinion to the facts of this particular case, which is always done in fair use cases. He said that based on the facts of the particular Willams and Wilkins case-on the annual systematic copying of thousands and thousands and literally millions over a period of years-of journal articles-that this systematic copying was wholesale copying and was therefore not fair use. And he analyzed the criteria of fair use as it applied to those facts only.

He also pointed out that copying of entire articles could, under appropriate circumstances, be fair use and he said that there were many illustrations that might come to mind on reflection. And he re-emphasized that fair use, however, cannot support wholesale copying of the kind here in this suit.

One concluding comment, the educational spokesmen have told you today that "educators" must have access to these materials and they are really dealing with a large industry-publishing-which is only concerned with profiting itself. As a matter of fact, authors and publishers are also "educators" and make valuable contributions to the educational process, which they could not do-if this exemption were established-without considerable loss to themselves. On the other hand, education is one of the top 500 industries in the United States. And there are no educators, to my knowledge, who teach without pay or who occupy schoolrooms or school buildings which are not paid for. The educational system and the school boards do pay for other services and facilities that they use.

It might be pointed out that when teachers feel that the compensation they receive is not adequate, they have a remedy. They are allowed to organize in large groups and boycott the schools. They go on strike, and they stay on strike, keeping the schools shut down, until they receive what they consider adequate compensation. Ironically, they are entitled to do that under an exemption granted by another statute, the Clayton Act because the conduct of the NEA local chapters in various States, in striking schools, is a boycott, which would otherwise violate section 1 of the Sherman Act.

They are able to organize in large groups; namely, union, to fix the prices for their services-which would also violate the Sherman Act were it not for the exemption they have under the Clayton Act. We have no quarrel with that. What we do quarrel with is this new exemption they seek which would prevent publishers and authors from receiving reasonable compensation for their materials and their services, that is, when their copyrighted works are copied, beyond the limits of fair use.

The House Judiciary Committee suggested that where copying beyond fair use was desired by educators, that reasonable, voluntary arrangements should be worked out to make this possible it also sug gested that educators, authors, and publishers cooperate in establishing criteria for fair use. We are perfectly willing to do that and we

understand that the Association of American Publishers is. We think that these problems can be resolved. But we don't think they can be resolved by dealing a heavy blow to the copyright system, which after all is the underpinning for independent entrepreneurial creation and dissemination of literary, scientific, and artistic works. Because if copyright is undermined by this type of exemption, then the only thing we can do is go to a Government-subsidized system of creation and publication.

Thank you.

Senator MCCLELLAN. Thank you.

[The prepared statement of Irwin Karp follows:]

Mr. Chairman and members of the subcommittee, my name is Irwin Karp. I am counsel for The Authors League of America, a national society of professional writers and dramatists. I appear to present its views on the amendment to S. 1361 requested by The National Education Association and other groups ("The Ad Hoc Committee on Copyright Law Revision"). I respectfully request that this statement be included in the record.

The Ad Hoc Committee has requested the Subcommittee to add to the Copyright Revision Bill a new section which would create a "general educational exemption" permitting "educators", "scholars" and "researchers" to reproduce, copy and record copyrighted works beyond the limits of fair use; to store and retrieve materials in automatic systems to a greater extent than permitted by fair use or Sec. 117 of the Bill; and to record and retransmit broadcasts for five days to schools and colleges, a practice which constitutes infringement under the present law, and under the Revision Bill.

The Authors League urges the Subcommittee to reject this proposed exemption because (1) it would permit uncompensated educational copying beyond the limits of fair use, and destroy the reasonable, compromise solution to this problem which is reflected in the Report of the House Judiciary Committee and the draft report of this Subcommittee; (2) the exemption would be extremely damaging to authors and publishers; and (3) there is no substance to the educators' claim that the Williams & Wilkins decision is a valid reason for reviving this request for an educational exemption, which had previously been rejected by the House Judiciary Committee and by this Subcommittee.

We focus our discussion on those provisions of the proposed exemption which deal with the reproduction, copying and recording of copyrighted works. However, we should note that authors are as strongly opposed to those provisions of the NEA amendment which would permit the use of copyrighted materials in storage and retrieval systems beyond the limits of fair use, and to the clause which would permit the recording and retransmission of broadcasts.

(1) THE PRIOR REJECTIONS OF THE "EDUCATIONAL EXEMPTIONS"

As the Report of the House Judiciary Committee notes, the NEA and other members of the Ad Hoc Committee had requested Subcommittee No. 3 to insert "a specific, limited exemption for educational copying" into the Revision Bill. As the draft report of this Subcommittee indicates, the Ad Hoc Committee also requested that this educational exemption be included in the Senate version of the Revision Bill. The House Judiciary Committee refused the Ad Hoc Committee's request, and their "exemption" was not included in the Bill passed by the House, nor in S. 1361 or the prior Senate revision bills. The reasons why the educational exemption was refused by the House Judiciary Committee are as valid today as they were when the Report was issued in 1967; and nothing in Commissioner Davis' opinion in the William & Wilkins case-the Ad Hoc Committee's stated pretext for reviving its "exemption-affects the validity of the Judiciary Committee's reasoning.

The Committee noted that "photocopying and other reproducing devices were constantly proliferating and becoming easier and cheaper to use." It also took note of the contentions of authors and publishers that "education is the textbook publisher's only market, and that many authors receive their main income from licensing reprints in anthologies and textbooks; if an unlimited number of teachers could prepare and reproduce their own anthologies, the cumulative effect would be disastrous." (H. Rep. No. 83; p. 31). The Committee report noted

that "several productive meetings" were held between representatives of authors and publishers and of educators and scholars and that "while no final agreements were reached, the meetings were generally successful in clarifying the issues and in pointing the way to constructive solutions." (ibid)

Those constructive solutions were reflected in the Judiciary Committee's report, and it is fair to say they were— for a time, at least-accepted by the parties. The solutions were:

(i) The Committee's rejection of the exemption proposed by the NEA and other members of the Ad Hoc Committee: "After full consideration, the committee believes that a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control is not justified." (ibid)

(ii) The Committee's explicit recognition and affirmation that "any educational uses that are fair today would be fair use under the bill." (ibid)

(iii) Amendment of Sec. 504 (c) to insulate teachers from excessive liability for statutory damages. (ibid)

(iv) Amendment of Sec. 107 to restore a restatement of the criteria of fair use, to indicate it may include reproduction in copies or phonorecords: and "to characterize a fair use as generally being 'for purposes such as criticism, comment, news reporting, teaching, scholarship or research." (emphasis supplied) (ibid)

(v) A careful analysis by the Committee of the four criteria of fair use “in the context of typical classroom situations arising today." While, as the Committee noted, the analysis had to be broad and illustrative, "it may provide educators with the basis of establishing workable practices and policies." (H. Rep. No. 83, pp 32–36). Actually the Committee was modest in characterizing its analysis-it is an extremely clear and useful set of guidelines for educators, authors and publishers.

Moreover, the Committee's analysis of fair use in the context of typical classroom situations amply supports its judgment 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."

The House Judiciary Committee also urged educators, authors and publishers to "join together in an effort to establish a continuing understanding as to what constitutes mutually acceptable practices. . ." (H. Rep. 83, p. 33). The Authors League is willing and ready to join in such a continuing, cooperative effort at any time, as is the Association of American Publishers. The Judiciary Committee also urged the parties to join together "to work out means by which permissions for uses beyond fair use can be obtained easily, quickly, and at reasonable fees." Again, the Authors League is willing and ready to join in such an effort. Indeed, the League is willing-alone, or in cooperation with the Association of American Publishers and educational groups-to seek funds from the National Foundation for the Humanities, to establish and operate a pilot information clearing house to receive requests for permissions, process and transmit them to the appropriate licensor (author or publisher), and expedite the copyright owner's reply. As in the case of librarians, the Committee's suggestion for voluntary efforts to "workable clearance and licensing conditions" is anathema to educational spokesmen-they will not even let the phrase cross their lips, no less discuss it seriously. This is regrettable since a voluntary clearing house could well provide the means of establishing a continuing understanding as to what constitutes mutually acceptable practices . . .”

(2) THE PROPOSED EDUCATIONAL EXEMPTION

PUBLISHERS

WOULD INJURE AUTHORS AND

If the proposed educational exemption is only intended to permit educational copying that would constitute fair use under the Judiciary Committee's analysis of the 4 criteria "in the context of typical classroom situations arising today"then the proposed exemption is unnecessary. What was fair use under the Committee's analysis is still fair use.

Actually, the educational groups are seeking-via their proposed exemption— to legalize uncompensated, educational copying that goes far beyond the bounds of fair use. The right to quote “excerpts"-i.e. portions of a book or other work which is not substantial in length, in proportion to its total size-would be absolute, regardless of the circumstances of the reproduction. Thus, an unlimited

number of educators or institutions could then reproduce copies of such portions under a variety of circumstances which would make the reproduction an infringement under the Judiciary Committee's analysis of the 4 criteria, in its report. For example, many copies could be produced on an organized basis, rather than by one teacher, spontaneously. For example, multiple copies could be reproduced for many individuals and circulated beyond the classroom. And most important of ali, under the proposed exemption copies could be reproduced even though they had a serious adverse effect on the potential market for the work, or its value-and even though they supplanted some part of the normal market for the work.

Similarly, the proposed exemption would permit educators and institutions to reproduce copies of entire short works-a 2 page poem? a five page article? a seven page short story? And as with "excerpts", the exemption would allow educators to reproduce these copies under a variety of circumstances that would make the reproduction an infringement under the Judiciary Committee's analysis of the 4 criteria of fair use.

As we noted in our statement on library copying, and in our previous testimony to the Subcommittee, many authors earn a major portion of their income by licensing the reprinting of poems, articles, short stories and other short works and excerpts from longer works-in anthologies, text books, periodicals and collections. After it is originally published, the same work may be reprinted with the author's permission in many such books. The accumulation of reprint royalties produces a modest income--and for authors of poetry, essays and other works of literary value, it is often the larger part of the compensation they earn from the uses of their writings. Many of these anthologies and other books which reprint the author's short works and excerpts are sold primarily to high schools, colleges, universities and their libraries and book stores-and the student of these institutions are a primary audience for eminent poets, essayists and short story writers. In addition, several courses use articles from journals on various subjects in place of text books.

The proposed educational exemption would allow, educators and educational institutions to produce copies of an author's short works, and excerpts from longer works, thus displacing the sales of anthologies, text books and other collections that formerly reprinted these works. Many authors would thus be deprived of a substantial part of their income-the royalties from the publishers of the anthologies and text books-even though their works would still be widely used by educational audiences, disseminated by uncompensated educational copying.

(3) THERE IS NO JUSTIFICATION FOR REVIVING THE PROPOSED EDUCATIONAL EXEMPTION The excuse offered by the Ad Hoc Committee for reviving its proposed educational exemption, and thus disrupting the constructive solutions reflected in the House Judiciary Committee's report, is that purportedly Commissioner Davis' opinion in Williams & Wilkins created "uncertainties" and indicated "the unreliability of 'fair use' in providing necessary protection for teaching, scholarship and research..." (letter from Dr. Wigren of the National Education Association and Chairman of the Ad Hoc Committee, to Mr. Thomas C. Brennan, Chief Counsel of the Subcommittee; Dec. 11, 1972).

In reality, Commissioner Davis' opinion did nothing to change the doctrine of fair use; and it did nothing to change the application of fair use to educational copying, as analyzed in the House Judiciary Report. Educational copying that would constitute fair use under the Judiciary Committee's analysis of the 4 criteria is still fair use.

As the House Judiciary Committee emphasized, "each case raising the question (of fair use) must be decided on its own facts." And the Committee also said that "unauthorized library copying, like everything 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. (Emphasis supplied.) (H. Rep. No. 83, pp. 29, 36.) The particular facts of the case Commissioner Davis decided bore no resemblance to the various fact situations involving classroom use or other educational copying which the House Judiciary Committee considered in spelling out its guidelines and analysis of fair use vis-a-vis educational copying. The facts in Williams & Wilkins were that two set of government libraries engaged in the systematic reproduction-on a vast scale of copies of entire articles for their own patrons, and the patrons of other libraries. In his opinion, Commissioner Davis passed no judgment on educational copying in any of the many permuta

tions analyzed by the House Judiciary Committee. On the contrary, he confined his decision and opinion "to the facts of (his) particular case"-to this systematic, large volume reproduction of journal articles. What the Commissioner decided was that "Defendant's photocopying is wholesale copying and meets none of the criteria for fair use" (emphasis supplied). He then said:

"The photocopies are exact duplicates of the original articles; are intended to be substitutes for, and serve the same purpose as, the original articles; and serve to diminish plaintiff's potential market for the original articles since the photocopies are made at the request of, and for the benefit of, the very persons who constitute plaintiff's market."

Nothing in the Judiciary Committee's analysis of educational copying and fair use suggested that the systematic process of wholesale copying involved in Williams & Wilkins could be condoned as a fair use. Moreover, it should be noted that Commissioner Davis gave examples of photocopying of entire articles that would be fair use and said there are "probably many more which might come to mind on reflection". He then reemphasized that fair use "cannot support wholesale copying of the kind here in suit."

We submit there is nothing in Commissioner Davis' opinion which alters the judicial doctrine of fair use as it applies—according to the Judiciary Committee's analysis to educational copying, or to library copying. Consequently, there is no justification for the Ad Hoc Committee's effort to revive the educational exemption. Moreover, even if it be assumed that Commissioner Davis' opinion somehow changed the doctrine of fair use as it thus applied to educational copying, that would at most call for an amendment to restore fair use to the contours the Judiciary Committee thought it had. But that is not what the Ad Hoc Committee is asking for-as we noted, it seeks an exemption that would permit educational copying which far exceeds the boundaries of fair use indicated by the analysis of the House Judiciary Committee.

THE "PHILOSOPHICAL" ARGUMENTS

It has become customary for the Ad Hoc Committee to accompany its demands for new limitations on authors' rights with an assortment of "philosophical” arguments-e.g. attacks on the copyright system, suggestions that authors are anti-trust monopolists, and other contentions, including a claim that copyright protection infringes the First Amendment rights of teachers and students. We do not know if the Ad Hoc Committee intends to regale the Subcommittee with this assortment of invalid contentions. Anticipating that it will, we briefly recapitulate our responses, and respectfully refer to our previous testimony for a fuller discussion of these points. Moreover, if the Subcommittee wishes a fuller response to any such contentions which the Ad Hoc Committee may make, we will be pleased to supply it.

These are some of the contentions which have been made by various members of the Ad Hoc Committee, in Copyright Bill hearings and in the Williams & Wilkins case, and summaries of our replies:

(i) Ad Hoc members argue that copyright is a "monopoly" in the anti-trust sense. But an author's copyright does not give him the power to restrain or monopolize the business of book publishing. Copyright is a “monopoly" only in the innocuous sense that all property is a collection of rights granted by law. (ii) Ad Hoc members argue that exemptions are justified because a copyright is not property, but "only" rights granted by statute. But all property consists of rights granted by the State, through legislation (e.g. land grant acts) or court decisions. At common law the author's work is his absolute, private property. (iii) Ad Hoc members argue that copyright is only a "discretionary" grant because Art. I, Sec. 8 says "Congress shall have the power. . ." But the phrase precedes the enumeration of all powers, e.g. to tax, raise armies, borrow money, regulate. The authors of the Constitution did not consider the exercise of these powers, including enactment of copyright laws, as "merely discretionary."

(iv) Ad Hoc members argue that uncompensated library and educational copying must be permitted because they promote the progress of science and art. But the economic philosophy underlying the copyright clause, according to the Supreme Court, was to grant enforceable rights to authors and publishers to encourage individual effort by personal gain; that the independent, entrepreneurial system of creation and dissemination best served the public interest in promoting science and art.