Now, with respect to computer technology and their urging of exemption there, it is very disheartening and disconcerting that those who talk in the name of the public welfare and proclaim that all they are asking for is access and availability, are really not talking about access or availability but an unwillingness to pay.

There is another basic issue here that should be of great concern to those interested in the public welfare-and I know that I count this committee of Congress amongst those that are genuinely interested in the public welfare-and that is the problem that, if you open the door to free, gratuitous, unauthorized, and unpoliced input into information systems, you are also opening the door to truncation, distortion, dilution, and basically censorship of any piece of authorship. The report of the Cosat I panel to which I referred this morning goes to great depths into the problems of censorship that would result from unauthorized and unpoliced input in information systems.

I urge that copyright legislation not be used as a vehicle to open the door to genuine difficulties of antitrust, monopoly, censorship, and distortion of information analyzed by the Cosat I panel.

And I urge this committee to recognize that the specific technical language of this proposed exemption is diametrically opposed to the purpose and intent of copyright legislation generally.

I conclude by respectfully requesting that this committee look to the proposed national commission, to which I referred this morning, to get impartial, appropriate, in-depth information, particularly from the technocrats and the hardware manufacturing field people, and from the publishers, authors, and teachers in the field so that your committee will have an appropriate report and can base its decision on the legitimate balancing of interests rather than this random focusing on one or two exceptions, or one or two emotionally charged situ

ations.

Thank you.

Senator BURDICK. Thank you.

[Exhibit (B) referred to by Ambassador Keating follows:]

EXHIBIT B

STATEMENT OF BELLA L. LINDEN ON RATIFICATION OF THE PARIS REVISION OF THE UNIVERSAL COPYRIGHT CONVENTION

Mr. Chairman, and members of the Committee, my name is Bella L. Linden. I am a partner in the law firm of Linden and Deutsch, and am appearing on behalf of Crowell Collier and Macmillan, Inc., and Harcourt Brace Jovanovich, Inc. Crowell Collier and Macmillan and Harcourt Brace Jovanovich are among the five largest educational publishers in the United States.

Mr. William Jovanovich, Chairman and Chief Executive Officer of Harcourt Brace Jovanovich, Inc. and Mr. Raymond Hagel, Chairman of the Board, President and Chief Executive Officer of Crowell Collier and Macmillan consider this Committee hearing to be of such fundamental importance to the interests of educational, professional and scientific authorship and publishing that they both are here today. May I present Mr. Hagel and Mr. Jovanovich; both are available to answer questions.

I was among the panel of advisors to the United States delegations to the Stockholm Conference for revision of the Berne Copyright Convention in 1967 and to the Paris Conferences for revision of the Berne and Universal Copyright Conventions in 1971. I was counsel for many years to the American Textbook Publishers Institute, which has recently merged with The American Book Publishers Council. I was a member of the Panel of Experts appointed by the Register of Copyrights to consider revision of our domestic copyright law, and am

now a member of the Committee on Scientific and Technical Information (COSATI) of the Federal Council for Science and Technology and Chairman of the COSATI sub-panel on rights of access to computerized information systems.

I was present at the Stockholm Conference five years ago when the Stockholm Protocol for Developing Countries was railroaded to adoption as part of a revision of the Berne Copyright Convention. The Stockholm Protocol granted, in substance, the same broad concessions to the eighty so-called developing countries for use of others' literary properties as are before this Committee for consideration. The United States delegation was then among the leaders in its vocal and active objection to the Protocol. The Stockholm Protocol was so effectively criticized in the developed countries that it never came into effect. In July, 1971 diplomatic conferences at Paris led to parallel revisions of both the Universal and Berne Copyright Conventions. The draft documents for the Paris revisions were principally designed to make it cheaper for developing countries to use intellectual property created by authors and publishers in the developed countries, but these drafts were also intended to give authors and publishers of the developed countries adequate protection for the fruits of their labors. During the Paris conferences, however, the same bloc of countries which operated at Stockholm again railroaded concessions so that the Paris revision of the Universal Copyright Convention now before this Committee, albeit in different verbiage, effects the same results as the Stockholm revision which the United States Delegation, the Copyright Office, and representatives of those interested in protecting private property rights in literary property so successfully decried after Stockholm.

I recognize among those who have testified this morning some of my most vocal and staunch friends in the successful effort to defeat the Stockholm Protocol. All grow older; apparently, some more tired than others. To paraphrase an indelicate cliche, I seem to perceive the prevailing attitude today asif an Act is inevitable, relax and accept it. Apparently this holds especially true with respect to the Paris revisions of the Universal Copyright Convention.

What all objected to at Stockholm, and what we object to today, is the following. The Universal Copyright Convention as revised at Paris:

1. Establishes a vehicle for the expropriation of the private property of American citizens without adequate compensation. Senate ratification of this treaty will constitute prior, formal United States approval of multi-national expropriation in form and magnitude without precedent in our history;

2. Effectively eliminates in excess of eighty countries from a normal and needed market of American authors and publishers; and

3. Is entirely self-defeating in terms of the concept of international copyright. In discussions and correspondence which have taken place prior to today's hearing, it has been explained that the Executive Branch of the Government views the Paris revision in terms of foreign economic assistance and a national policy commitment to help fulfill certain needs of the developing countries. We do not agree. The educational budget of a developing country is spent for school construction, teachers' salaries, and classroom equipment. The cost of textboks generally amounts to less than five percent (5%). Authors' royalties normally might represent about ten percent (10%) of this five percent, a fraction of one percent (1%) of the educational budget, but representing a substantial loss of income to individual authors-hardly among our most affluent citizens. Thus, while the loss of potential royalties would be sore deprivation to educational authors and severely disabling to American educational publishing, the financial contribution to education in developing countries is illusory.

The revised Universal Copyright Convention does not provide developing countries with printing presses, nor make any effort to encourage the development of indigenous industry and native creative effort in the developing countries. The fact is that the provisions respecting foreign manufacture of works produced under the compulsory licenses granted the developing countries under the Paris revisions will lead to the establishment of publishing consortiums of private wealth operating on a profit making basis, serving a safe market protected from American competition, and not even offering the possibility of employment to citizens of the developing countries.

Much has been made by the proponents of ratification of the fact that the concessions are limited "only to teaching, scholarship and research." They point out that compulsory translation licenses may only be granted for the purposes of "teaching, scholarship or research", while compulsory reproduction licenses are limited to use in connection with "systematic instructional activities".

The proponents of ratification therefore contend that expropriation of the rights of American authors and publishers is limited only to all of the textboks, audio-visual materials, scientific, technical and reference works, film and microforms, and programmed learning materials of Crowell Collier and Macmillan, Harcourt Brace Jovanovich and all other American publishers of similar products and all of the authors who create the works of education, research and scholarship. Their "modest" demand is that, in the national interest, these companies and authors must forego their entire market in more than 80 countries.

THE AUTHORS OF EDUCATIONAL, SCIENTIFIC AND RESEARCH WORKS

The authors of educational, scientific and research works are not the highly publicized personalities who write best sellers and appear on late evening television talk shows. Most are practicing teachers. Few become rich as a result of their writings. They do not have an organization to speak for their interests. The cooperative relationship between publishers and authors of textbooks, scientific and technical works is such that traditionally these authors look to their publishers to protect their interests. Accordingly, although not designated by anyone as their official spokesman, it falls upon us to call their interests and needs to the attention of this Committee.

To the extent it is possible to describe a "typical textbook author," he or she is a member of the faculty of a highly regarded, though probably not Ivy League, college or university, enjoys an excellent reputation in his or her own field but is little known outside of it, has an income well under $20,000 a year and counts on royalties to pay for braces for the children's teeth, a second car for the family, a vacation or study year abroad or some similar expense. More often than not, royalties on textbooks, reference works, or professional books are split between several authors. Sole authorship of an educational or reference work usually entails many thousands of hours over a period of several years doing library and other research, field-testing and consulting.

Authors' royalties on school textbooks average about 6.3 percent of the total selling price on college and professional works authors' royalties represent an average of 15.8 percent of sales-in either case a small fraction of one percent of any nation's total educational expenditures.

THE PUBLISHERS OF EDUCATIONAL SCIENTIFIC AND RESEARCH WORKS The role of American educational publishers combines many of the functions of literary expression, artistic design and technical skills in applied research, packaging, consulting and training as well as manufacture, marketing and distribution. Except in the case of scientific and technical works, it is rare for an author to submit a finished work to his publisher. By and large it is the publisher who discerns educational needs, searches out and selects the author (or, more commonly, groups of authors) to create the books and materials to satisfy the requirements of schools and universities, and directs and supervises the planning, design and creation of the works. In the case of innovative materials, the publisher also provides consultants and conducts workshops to train teachers in the use of the new teaching tools.

The traditional stock-in-trade of the educational publisher has been the textbook and the somewhat later developed "Teachers Edition". Beyond these traditional learning media, technological progress has created the market and technique for a variety of innovative materials of the new educational media. Thus, filmstrips and slides, motion pictures, transparencies, sound recordings, video cassettes and tapes, microform reprints, computer-assisted learning materials and similar elements of "multi-media", "audio-visual" and "programmed" instruction are finding wide use in the school room. Closed system broadcasting has created another vehicle for bringing these materials, as well as the more traditional products of educational publishing, into use. Let no one confuse the notion of "developing" countries with an inability or disinclination of such countries to utilize these innovataive materials or the vehicle of broadcasting. It was not academic considerations which led the Paris draftsmen to make specific provisions for concessions with respect to "audio-visual fixations", and the Report of the General Rapporteur of the Paris Conference (UCC) notes that "it was urged that broadcasting is coming to play a more and more important part in the educational programmes of developing countries. . ." (Report, par. 82).

Very large investments are needed to produce a major instructional program. It is not at all uncommon, for example, for a publisher to invest more than one million dollars in prepublication development costs alone for the creation of an elementary reading program which will take five or ten years to reach the market and another three to five years to gain acceptance and even to begin to pay off the investment. It has been estimated that the preliminary investment in plates for a single high school history textbook, workbook, teachers manual and test combination may exceed one hundred thousand dollars. With the wide acceptance of the types of innovative educational materials noted above, the investment of time, effort and money of educational publishers in their products increases multifold.

In many respects publishing exists apart from other businesses. Educational publishers are in a very real and essential sense engaged in public service; they are also engaged in the operation of commercial businesses. To progress, the educational publisher must anticipate and effectively serve a broad range of instructional and scholarly needs. To survive, the educational publisher must make a profit.

Academic Press, a subsidiary of Harcourt Brace Jovanovich, is the largest scientific and technical publisher in the United States and enjoys a large foreign market for its works. The pressures for scientific and technical progress in the so-called developing countries are so widely known that for the purpose of this hearing it seems only necessary to state that the Paris revisions will adversely affect the interests not only of the authors and publishers of scientific and technical works, but also of American manufacturers of products which find their relevance in technology. Obviously, the preemption of more than eighty countries as a market for these publications is a serious erosion of the rights and incentives that we have traditionally accorded to American citizens.

THE DEVELOPING COUNTRIES AS A MARKET FOR AMERICAN EDUCATIONAL, SCIENTIFIC AND RESEARCH PUBLISHING

Assisting in the educational progress of developing nations is a matter of urgent commercial as well as social interest to American educational publishers. As our own school age population ceases to grow, they must look overseas for future market growth. Some 63 percent of the world's school age children live in the developing countries. The export market for textbooks, which used to be almost entirely British, increasingly is becoming an American market, particularly in scientific and technical fields. The Macmillan Company, a subsidiary of Crowell Collier and Macmillan, tells me that the developing countries account for between 37 and 38 percent of its total export.

The developing countries as a market for the products of American publishing are not limited to original editions of new works. It is generally conceded that the largest number of translations throughout the world are made of American and British publications; similarly, the widespread adoption of the English language has created, a great foreign demand for facsimile reprints of prior American works.

A short time ago our office prepared an analysis of the Paris revisions and a set of charts comparing the provisions of the Stockholm Protocol and the Paris Convention with respect to the issues that reach the jugular of educational, scientific and technical publishing. We analyzed the concessions to be accorded to the developing countries and we concluded that in each instance where Stockholm gave away six, Paris gives away a half dozen. A distinction in form without difference in substance. Annexed as Exhibit A is the statement of our analysis and the supporting charts.

This statement was circulated on behalf of Crowell Collier and Macmillan and Harcourt Brace Jovanovich among various interested groups and individuals, including members of this Committee, other members of the House and Senate, and the State Department. Many have responded with deep concern for the damage the Paris revisions will inflict on American authors and publishers and have expressed support for our position that ratification can only be justified if steps are taken to insure compensation for such injuries.

In a letter to the Chairman of this Committee, the State Department responded to our earlier statement and analysis. The Department's response included charts prepared by the Copyright Office which compared the provisions of the Stockholm Protocol and the Paris revisions.

We must emphasize in all fairness that nowhere in their response did the Department claims that the Copyright Office charts in any way contradict the charts

prepared by our office. Nor did the State Department in any manner respond to our position that monetary compensation must be a sine qua non of ratification. We appreciate that in their official capacity the State Department did not find it appropriate to express their views on compensation. Perhaps, in the subtleties of diplomatic correspondence, their failure to comment on our request for compensation may be construed as a silent expression of sympathy.

With respect to ratification, the State Department appears to feel that formal accession to the demands of the developing countries for free access to American works is the only alternative to those countries unilaterally obtaining such access. Threats by foreign countries to expropriate American property are not unprecedented. However, I do not recall any instance in our history where the Senate has consented in advance to such expropriation because of fear that such threats would be acted upon.

Exhibit B is the letter of the Department of State to Chairman Fulbright. Exhibit C is our response to the Department's comments.

The accuracy of our analysis of the Paris revisions is supported in an article entitled "Downgrading the Protection of International Copyright," by Irwin Karp, counsel to the Authors League. In this article, annexed as Exhibit D, Mr. Karp carefully examines the operation of the Paris concessions in the light of the real facts of publishing life. He concludes that the compulsory licensing system established by the revised Convention is a "dismal prospect" for authors in both the developed and developing countries and that "a careful analysis of the effects and consequences of the two new conventions is imperative, before the Senate decides what action the United States should take." I would note that the authors group represented by Mr. Karp whose interests he sees as "dismally" affected generally does not include the authors of educational materials, whose futures are that much dimmer.

Exhibits A, C, and D fully explain our position with respect to ratification and compensation and contain supporting analysis and precedent. At this point, I will only summarize our conclusions.

THE REVISED UCC ESTABLISHES A VEHICLE FOR THE EXPROPRIATION OF THE PRIVATE PROPERTY OF AMERICAN CITIZENS WITHOUT ADEQUATE COMPENSATION

The revised Universal Copyright Convention withdraws property, representing substantial investments of time, effort and money, from the control of its owner, substituting a national agency of a developing country and allowing it to deal with such property as it sees fit in the name of teaching, scholarship and research. What clearer example can there be of expropriation, defined in the dictionary as "to dispossess (a person) of ownership."

There is nothing in this country's history or experience with foreign nationalization of American businesses which would give us any reason to expect that the developing countries will have a reasonable concept of “adequacy" of compensation in dealing with the literary property of American authors and publishers.

THE REVISED UCC EFFECTIVELY ELIMINATES IN EXCESS OF EIGHTY COUNTRIES FROM A NORMAL AND NEEDED MARKET OF AMERICAN AUTHORS AND PUBLISHERS

We have previously described the interests of American authors and publishers of educational, research and scientific materials in the developing countries as a market. The provisions of the revised convention will effectively bar these countries from reach; indeed, certain provisions of the revision will give impetus to the establishment of foreign publishing enterprises, operating on a profit making basis and servicing a safe market of developing countries. There can be no legitimate reason for depriving American publishers of the opportunity to serve these markets, either through export or cooperation in the development of indigenous publishing.

American publishers are not insensitive to certain specific needs of the developing countries; it is an established practice of several American publishers to manufacture special editions of their works in foreign countries in order to make inexpensive copies available to foreign students. However, to make such special provisions a matter of national economic assistance policy rather than individual initiative requires that our government either assume the function of providing the assistance or assume the responsibility of assuring compensation to our authors and publishers for their enforced contributions.