(v) Ad Hoc Committee members argue that exemptions must be granted because library and educational copying is "non-profit." But as the House Judiciary Committee said, “the educational groups are mistaken in their argument that a 'for profit' limitation is applicable to educational copying under the present law." (vi) Ad Hoc members argue that any copyright limitation on uncompensated library or educational copying restrains "freedom" to read under the First Amendment. But the First Amendment "was fashioned to assure unfettered interchange of ideas (376 U.S. 269) and it is axiomatic that an author's copyright does not prevent anyone from discussing or repeating his ideas (366 F. 2d 303). The Supreme Court has never interpreted "freedom" in the First Amendment to mean "gratis" or "free of charge"; and it has frequently emphasized there is no conflict between publication for profit and the First Amendment.

It is indeed strange that the National Education Association should argue, as it did in Williams & Wilkins, that requiring compensation to copyright owners, for library copying that exceeds fair use, violates the First Amendment freedom to read. NEA teachers insist on their right to be adequately compensated for making published materials available to students, and for other teaching services. To obtain what they consider adequate compensation, teachers-by the thousands each year-deny students access to books and other copyrighted materials for prolonged periods of time; their strikes close down schools, school libraries and classrooms. Ironically teachers are thus able to deny students access to copyrighted materials by grace of federal legislation-the exemption of the Clayton Act makes it possible for large groups of teachers to engage in boycotts (strikes) that would otherwise violate Sec. 1 of the Sherman Act; and for these large groups of teachers to combine and fix the prices for their services, which also would otherwise violate the Sherman Act. By contrast, copyright owners do not seek to close down schools or libraries, and do not seek to prevent schools and libraries from making reprints of copyrighted articles; copyright owners simply ask that reasonable compensation be paid them when library or educational copying exceeds the boundaries of fair use.

The Authors League thanks the Subcommittee for this opportunity to present its views on the proposed Educational Copying Exemption.

Senator MCCLELLAN. Senator Burdick will be here in a few minutes. I have to go now. It is almost 4 o'clock.

[A brief recess was taken.]

Senator BURDICK [presiding]. Call the next witness.

Mr. BRENNAN. Mr. Chairman, the next witnesses appear on behalf of the Association of American Publishers, Inc.

Mr. Sackett, would you identify yourself and your associates for the record?

STATEMENT OF ROSS SACKETT, ON BEHALF OF THE ASSOCIATION OF AMERICAN PUBLISHERS; ACCOMPANIED BY W. BRADFORD WILEY, CHAIRMAN OF THE ASSOCIATION'S COPYRIGHTS COMMITTEE, AND CHARLES LIEB, COUNSEL

Mr. SACKETT. I am Ross Sackett, president of the Encyclopædia Britannica Education Corp., and am appearing here today on behalf of the Association of American Publishers, Inc., of which I am currently the chairman.

I am accompanied on my left by Brad Wiley, chairman of the association's copyright committee and on my left by Charles Lieb, our copyright counsel.

The association is a trade association organized under the laws of New York State and is composed of publishers of general books, textbooks, and educational materials. Its more than 260 members, which include many university presses, and religious book publishers, pub

lish in the aggregate the vast majority of all general, educational, and religious books and materials produced in the United States.

In the few minutes available to me I would like to summarize our objections to the educational exemption proposed by the National Education Association Ad Hoc Committee on Copyright Law Revision. With your permission we will file a full statement for the record on or before August 10.

Senator BURDICK. Without objection, it will be received.

Senator BURDICK. Proceed.

Mr. SACKETT. In our view, the proposal for an educational exemption is unwarranted and should be rejected for an number of reasons, among which are the following:

One. The exemption is unnecessary and redundant insofar as the classroom teacher is concerned. There is no evidence in our opinion of any unmet real needs of the teacher which are not amply provided for under the fair use doctrine. In this connection it is important that you know that we have on many occasions offered to cooperate with the ad hoc committee to establish guidelines for the use of the classroom teacher which we are confident would eliminate much of the existing uncertainty about what he may copy. Neither the NEA nor the ad hoc committee has been willing to cooperate with us in such an effort but we remain hopeful that they will do so.

Two. To the extent that the proposed educational exemption would permit educators to copy educational and research materials without paying for its use it would, because of its confiscatory effect upon publishers, retard and ultimately perhaps choke off the creation of further material.

Three. The exemption is so sweeping, so imprecise, and so overlapping of other provisions of the revision bill that its adoption would destroy the series of compromises which are delicately balanced in the bill as presently drafted. In other words, to give serious consideration at this late date to the proposed educational exemption would require at the very least a reexamination of the fair use provisions of section 107, the library reproduction provisions of section 108, the classroom teaching provisions of section 110, and of other sections of S. 1361 as well.

Four. In addition to the exemption requested for the single and multiple copying of literary, pictorial, and graphic works, the ad hoc committee proposal would permit the free and unrestricted input of copyrighted works into computer systems, the retrieval of which would be subject to "rules otherwise applicable under the law." What the ad hoc committee has in mind, obviously, is that input of works in copyright should be free (an encyclopedia or reference work for example) and that bit-by-bit retrieval should be permitted, without payment, under the claim of fair use. Also that input should be free so that internal computer manipulation of the copyrighted material would also be free.

The proposal is destructive, illogical, and unnecessary. If adopted it would bypass or undercut the function assigned to the national commission under title II to study the reproduction and use of copyrighted works in conjunction with computer systems, and the provisions of section 117 which would leave existing law as it is until action is taken on the recommendations of the national commission.

The ad hoc committee's present request for an educational exemption is an attempt to revive a proposal which was considered a number of years ago by the House Committee on the Judiciary, was flatly rejected by the committee, and was then abandoned by the ad hoc committee in the hearings before this subcommittee.

In its report the House committee said that the doctrine of fair use. as properly applied, is broad enough to permit reasonable educational use. It suggested however that teacher and publisher should join together to establish ground rules for mutually acceptable fair use practices, and that they should work out means by which permissions for uses beyond fair use can be obtained "easily, quickly, and at reasonable fees."

We share the views expressed by the House committee; we urge that they be adopted by this subcommittee and that the proposed educational exemption be rejected out of hand.

For our part, we renew our efforts to meet with the ad hoc committee to establish ground rules for fair use and to establish workable arrangements for the clearance of permissions for uses beyond fair

Mr. BRENNAN. Mrs. Bella L. Linden, copyright counsel, on behalf of Harcourt Brace Jovanovich, Inc., and Macmillan, Inc.

STATEMENT OF AMBASSADOR KENNETH B. KEATING, HARCOURT BRACE JOVANOVICH, INC., AND MACMILLAN, INC.

(NOTE: Following testimony was given during the morning session.)

Mr. KEATING. I would like to turn now to the general educational exemption.

Senator MCCLELLAN. This would appear appropriate for our afternoon session. I would like to let it appear in the record when we are hearing testimony on that. If you want to insert it in the record now, or read it.

Mr. KEATING. The general educational exemption?

Senator MCCLELLAN. Yes.

Mr. KEATING. But you would like to have it in the record later? Senator MCCLELLAN. In the afternoon, so it would have continuity with the other testimony.

Mr. KEATING. Could I be heard on it now?

Senator MCCLELLAN. Yes, you may proceed.

Mr. KEATING. Section 110 of both the House act and S. 1361 specifically exempts certain educational or instructional performances and displays from the rights of copyright proprietors. These provisions are in addition to the generally applicable doctrine of fair use. set forth in section 107. We are not here to oppose them.

We understand, however, that certain interests are urging the adoption of a broad based "educational" exemption transcending the limits of sections 107 and 110 and such an extension we do object to.

Certainly, the educational needs of our country are of the highest priority. We must not, however, ignore that such needs are served

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by a publishing industry whose continued vitality depends upon the very incentives of private ownership attacked by advocates of educational exemptions. The textbooks, audiovisual materials, reference works, films, and so forth, to be subjected to free use under such exemptions emanate from publishers who make very substantial investments in research, design, packaging, consultation, and training, as well as in manufacture and marketing. For such investments to continue, the economic incentives envisaged by our constitutional premise of copyright must be maintained.

Of course, education is in the public interest-but this interest is served in our system by private, commercial businesses which require a profit to survive. The erosion of the rights and incentives accorded by copyright will endanger rather than serve the educational needs of our country.

May I repeat a short statement that I made before the House subcommittee in 1955: Will . . . publishers continue publishing if their markets are diluted, eroded, and eventually, the profit motive and incentive completely destroyed. To pose this question is to answer it. I have been a teacher myself. I know of no higher calling and no more dedicated group of our citizenry than those who instruct and guide the youth of our land. I have been in the nature of a crusader at all levels of government to provide higher pay and more benefits for teachers. Just as I feel that they should be amply rewarded for their hard work and dedicated service, so it seems to me should those who author and prepare the material which the teachers use in their work.

Our concern with the erosive and preemptive effect of educational exemptions is not limited to the domestic scene. It is particularly relevant to the recent accession of the United States to the 1971 Paris Revision of the Universal Copyright Convention. This revised treaty grants broad prerogatives to an undefined class of developing countries at least 80 countries by latest count-to engage in unauthorized reproduction and translation of works under compulsory licenses. Although expressed as "compulsory licenses," the standard of compensation established in the treaty and our international experience leave no doubt but that the remuneration to be expected under these provisions will be negligible. The end result is that the U.S. Government, in effect, has acquiesced in advance to alien expropriation of rights of a class of American citizens-U.S. authors and publishers. These compulsory licenses are, at least in theory, circumscribed by references to educational purposes. For the analysis it provides concerning the effects of educational exemptions on authorship and publishing, I ask that this subcommittee receive Mrs. Linden's testimony before the Senate Foreign Relations Committee concerning ratification on the revised Universal Copyright Convention as exhibit B to my statement.

Senator MCCLELLAN. It may be received and made exhibit B to the witness' statement.

Mr. KEATING. During the hearings before the Committee on Foreign Relations, the publishers I represent took the position that if the revised convention be ratified by the United States, Congress adopt legislation to assure U.S. authors and publishers compensation for the economic injuries they would suffer upon implementation of

the compulsory licenses by the developing countries. The rationale and precedent for such legislation is fully discussed in Mrs. Linden's testimony which I have offered as exhibit B.

When the Senate advised and consented to ratification of the treaty on August 14 last year, reference was made in debate to the consideration of incorporating such a compensatory provision in subsequently enacted domestic copyright legislation. We believe that a particularly appropriate vehicle to insure such consideration is the National Commission proposed in title II of S. 1361.

We therefore propose that the mandate of the Commission be broadened to include an investigation of the effect of the 1971 Paris Revision of the Universal Copyright Convention on the rights, markets, and businesses of U.S. authors and publishers and the recommendation of legislation to compensate such authors and publishers for injuries to their interests ensuing from that treaty.

STATEMENT OF MRS. BELLA L. LINDEN, COPYRIGHT COUNSEL, ON BEHALF OF HARCOURT BRACE JOVANOVICH, INC., AND MACMILLAN, INC.

Mrs. LINDEN. The educational exemption in all of the illustrations given by the earlier speakers dealt with classroom use. Also, an urgent and sincere plea was made by Dr. Wigren that they are not part of the commercial sector and that all they are interested in is improving teaching.

Now, I thought that part of the record should include a page, an advertising page, from Advertising Age of July 9, 1973, in which Today's Education magazine is listed as the best seller in education and in which the income of teachers, their travel expenses, et cetera is also listed. I may say as an aside that the Authors League would be rather impressed with the travel, income, et cetera, as listed in Today's Education magazine.

May I further add that Today's Education lists a circulation of 1,189,755 and a page rate of advertising, which is what they are searching for, is $4,950. Underneath this are listed the competitive educational magazines that reach the teachers and the school market. Two of my clients are listed underneath, not even as a poor second, but as a third and fourth.

The current issue of Literary Marketplace indicates that Today's Education was formerly known as the NEA Journal and is published by the National Education Association and in the footnote it says, "occasionally uses excerpts from books."

I would like, if I may, to present the original of the Advertising Age advertisement and the marked part of the Literary Marketplace for your consideration, Senator.

Senator BURDICK. The two documents are received for the committee files.

Mrs. LINDEN. The point I would like to make is that contrary to what the teachers believe and what they want, the technical language which they are asking for is more than a mere protection for the educational area, but a competitive position taken by the educators in the name of noncommercial and nonprofit enterprise.