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has been complicated by the tremendous increase in number of publications so that it is no longer possible for most libraries to include all important and relevant publications in a single collection. There are an estimated 6,000 medical journals published each year and 206,000 articles were included in the 1971 edition of Index Medious.
One solution to this problem is the sharing of resources through interlibrary cooperation. Through the impetus of the National Library of Medicine, this concept became highly developed, resulting in the formation of a Regional Medical Library network across the country, in which libraries of excellence were designated as resources in 11 regions to assist those with lesser resources, such as the small community hospital libraries.
In this system, the distribution of library materials over distances was primarily accomplished through photoduplication. This process decreased the necessity of loaning original volumes, as selections from publications may be duplicated and transmitted through mail, or by telefacsimile or other processes. This method was highly successful and enabled scientists, practitioners and scholars to have ready access to great repositories of information. In the case of the physician in practice, especially in remote areas, it was a means of obtaining specific information required in patient care or for keeping up with areas of interest.
A recent court decision, however, is threatening to reverse this progress. Four years ago in a test case, the Williams and Wilkins Company, Baltimore, publishers of more than 30 scientific and medical journals, sued the National Library of Medicine, National Institutes of Health, alleging that their photocopying activities constitute an infringement of copyright. In February 1972, the Commissioner of the United States Court of Claims ruled that Williams and Wilkins clearly had grounds for complaint, that photocopying diminishes its potential market, and that the company is entitled to compensation.
The consequences of this action to libraries and the scientific community can. not yet be fully perceived. Suggested methods of compensation, such as a fivecent-per-page charge or increases in subscription, entail unwieldly accounting systems or a prohibitive increase in cost at a time when libraries are already burdened with budgetary problems. Officials at the National Library of Medicine have estimated that the cost to medical libraries may run into millions of dollars a year. This, in turn, may force many medical libraries to limit services or increase access time, with serious consequences to those concerned with health care—the researcher, the teacher, and the practitioner. A broader issue is the implications of this decision on the conversion of printed matter to microfilm, tape storage, and other media.
The Commissioner's ruling will be appealed to the full panel of seven judges on the U.S. Court of Claims, and, in likelihood, to the Supreme Court. In the meantime, the American Library Association, Association of American Medical Colleges, Medical Library Association, and other professional societies have joined forces to urge the Court to reject the Commissioner's conclusion of law.
The American Medical Association joins these groups in reaffirming its belief in the right of the scientific and scholarly communities to gain access to the intellectual resources of this country. Toward this end, the Association reiterates its position that the scientific community may continue to reproduce single copies from AMA scientific publications.
August 28, 1973. Hon. John L. MCCLELLAN, Little Rock, Ark.
DEAR SENATOR MCCLELLAN: Pursuant to our discussion in your office last week, I have prepared the attached statement on behalf of the Arkansas Broadcasters Association regarding Section 111 of Senate Bill 1361. I have done this not with a lot of legal mumbo jumbo, but rather in simple terms as I understand the situation.
Most of the attached information is already into the record of your committee, having been testified to by a representative of the National Association of Broadcasters. Our position is in agreement with the NAB.
Thank you, Senator, very much for the very informative meeting that we had with you in your office, and certainly we hope to have more of this type dialog in the future. Thank you for allowing us to submit this addendum paper for the record. Very cordially yours,
B. G. ROBERTSON.
STATEMENT OF B. G. ROBERTSON
My name is B. G. Robertson. I am Vice President and General Manager of television station KTHV, Little Rock, Arkansas. This statement concerning the CATV copyright provisions of Section 111 of S. 1361 has been endorsed by the Arkansas Broadcasters Association.
Cable television is no stranger to Arkansas. CATV systems have been in oper. ation there since the early 1950's and have played an important role in bringing television service to many in remote areas who otherwise would be without television altogether, or at least, with very limited service. But CATV did not come among us without raising problems. The principal questions it presented were (1) how many, if any, distant television signals should a system be allowed to bring into the market area of a local television station and (2) should CATV systems pay copyright fees for the use of the programs they retransmit. These questions were kicked around for years without any semblance of agreement on a resolution by the people concerned—the broadcasters, the cable operators and the copyright owners. Finally, in the latter part of 1971 the White House's Office of Telecommunications Policy presented the concerned parties with a compromise agreement and strongly urged each of them to adopt its provisions.
We broadcasters were not happy with the terms of the compromise. It permitted CATV to import more distant signals into our markets than we believed we could live with in terms of the effect those signals could have on our audiences and revenues. On the other hand, however, the agreement did offer an acceptable solution to the old nagging question of why CATV systems should not pay copyright fees just like we do. With a very short time allowed to decide whether we would support the agreement and faced with the stark reality that this might be the last chance to achieve a resolution of those old gnawing questions, we in Arkansas reluctantly advised our national trade association representatives to adopt the compromise. Broadcasters around the country apparently shared our views and our national representatives agreed to the compromise.
The FCC was delighted by this long sought agreement on the distant signal and copyright questions. They immediately went to work on implementing the regulatory provisions of the compromise and in a couple of months had issued rules reflecting what the parties had agreed upon as to distant signals. In other words, the cable operators got all they had bargained for by adopting the compromise. Copyright legislation—the other half of the deal-remained to be implemented.
The principal copyright provisions of the compromise agreement are as clear as the nose on your face:
1. All parties agree to support separate CATV copyright legislation as described in the agreement.
2. Compulsory licenses would be granted to CATV operators to cover all signals authorized under the FCC's February 1972 rules. There would be no compulsory license granted for distant signals authorized by the FCC subsequent to the February 1972 rules.
3. ('nless the copyright owners and CATV owners could agree on a schedule of fees in time for inclusion in the new copyright law, the law would simply provide for compulsory arbitration of the fee question.
Broadcasters have lived up to all aspects of the compromise and expect the other parties to do likewise. Yet it appears that the CATV people are not supporting copyright legislation as described in the agreement. They appear to be turning their backs on the agreement now that they have received the distant signals provided for in the agreement. This distresses us greatly.
Obviously, Congress is not bound by an agreement entered into by private parties. But for years Congress implored the concerned parties to settle their differences. Indeed, the distinguished Chairman of this Subcommittee informed the FCC Chairman in January 1972 that the agreement was in the public interest and reflects a reasonable compromise of the positions of the various parties. We would hope, therefore, that Congress would respect the compromise agreement and incorporate its copyright provisions into the new copyright law.
We agreed to the compromise with our eyes open. Though under considerable pressure, we nevertheless knew what we were agreeing to and were prepared to live up to each of those agreements. We have not waivered, and will not. Unfortunately, the cable people seem determined to conjure up excuses for not supporting the copyright aspects of the agreement. Only Congress can set things right. We strongly urge incorporation of the copyright terms of the compromise agreement in S. 1361.
Thank you for permitting us to submit this statement.
STATEMENT OF ASSOCIATION FOR EDUCATIONAL COMMUNICATIONS & TECHNOLOGY,
Howard B. HITCHENS, EXECUTIVE DIRECTOR, JULY 31, 1973 The Association for Educational Communications and Technology (AECT) represents eight thousand educators whose aim it is to improve the educational environment available to learners at all levels through the application of technology to instruction. Our members have a wide range of responsibilities including the study, planning, application and production of communications media for instruction. They are employed in schools and colleges; in the Armed Forces and industry; and in museums, libraries and hospitals. It is important to note that our members interpret educational technology as more than machines and equipment. Rather, it is a process, rooted in learning theory and communications research, that enables a learner to learn more effectively and efficiently. This basic assumption necessarily influences our position on the general revision of the Copyright Law (title 17 of the United States Code) and specifically on the issue of a general educational exemption.
Several bills have been introduced during the past ten years proposing revision of the 1909 Copyright Act. These bills have stimulated much activity within the educational community, as there are several aspects of copyright law revi. sion that potentially have a great impact upon education-duration of copyright, the doctrine of fair use, and, the topic of the current hearings, a general educational exemption.
It is important to note that the whole issue of copyright law revision has caused two parts of the educational community that generally share similar objectives and concerns, and that usually maintain a symbiotic relationship, to appear as adversaries. These are the educators and the producers of educational materials. As one copyright attorney has said, "The fundamental issue is clear: [Educators] are primarily interested in availability [of materials] for use; authors and publishers are primarily interested in payment for use." 1
There is little doubt that the success of each group depends upon the support of the other. If educators do not utilize instructional materials, the producers surely cannot remain in business. The teacher, media professional and librarian create markets for an author's works and give them visibility. Likewise, in this day of individualized instruction, the open classroom, ungraded schools, and student self-evaluation, the successful educator-teachers, librarians, curriculum developers—wants to utilize a wide range of learning resources. Certainly, when producers and users can act in concert, the student reaps the benefits. It is indeed unfortunate then, that a "we-they” atmosphere has developed where educational organizations and commercial producers “agree to disagree" on copyright issues.
The United States Constitution gives to Congress the power to grant copyrights. The concept of copyright was first developed with an eye toward protecting the public interest. "To promote the progress of science and the useful arts, Congress was empowered to grant to authors certain controls over their workin other words, a copyright. As stated in studies prepared for the Senate Judiciary Subcommittee on Patents, Trademarks, and Copyrights:
As a condition of obtaining the statutory grant, the author is deemed to consent to certain reasonable uses of his copyrighted work to promote
the ends of public welfare for which he was granted copyright. Congress is thus faced with maintaining a balance between providing for the compensation of the author and making information available to the public.
1 Eugene Aleinikoff. Copyright Considerations in Educational Broadcasting, (Stan. ford, California : ERIC Clearinghouse on Media and Technology), 1972, p. 1.
3 Copyright Law Revision, Studies Prepared for the Subcommittee on Patents, Trade. marks, and Copyrights. Senate Committee on the Judiciary, 86th Congress, 20 Sess., Committee Print, study 14, “Fair Use of Copyrighted Works,” (by Alan Latman), p. 7. And although the House of Representatives, the Supreme Court," and the Register of Copyrights have each supported the primacy of the public interest over that of the author if a conflict should arise, copyrights are nevertheless perceived by many as miniature monopolies.
The United States operates today with a competitive, free enterprise economic system, but not with a competitive, free enterprise political system. It is for this reason, perhaps, that the issues surrounding copyright law revision have become so complex. The central question underlying such revision is—how can the public welfare be accommodated within the free enterprise economic system? Is it possible for the two systems to be reconciled?
AECT believes that some sections of the proposed bill (S. 1361) do attempt to meet the needs of both the public and free enterprise system. This Subcommittee has worked hard to prepare a bill that reflects the input of diverse interest groups. The posture of this Subcommittee has helped these groups to become more aware of and more responsive to each other's needs. Real progress has been made toward agreement upon Section 107 of the bill and its legislative history. This progress was interrupted, however, by the original opinion handed down by U.S. Court of Claims Commissioner Davis in the case of Williams and Wilkins v. U.S.--a development which was extremely alarming to the educational community. The opinion stated that the National Library of Medicine and the National Institutes of Health had committed infringements of the copyright law. If this opinion was later upheld by the full court, the doctrine of "fair use" would be substantially weakened as far as libraries and schools were concerned. Time-honored practices such as interlibrary loans would be halted immediately, and all educational uses of copyrighted materials would be sharply curtailed. The dissemination of knowledge would be regulated by the interests of a few, rather than the interest of the public.
Thus, in an effort to secure more reliable protection for the uses of copyrighted materials than "fair use" was able to provide, a proposal for an educational exemption was drafted by the Ad Hoc Committee of Educational Organizations and Institutions for Copyright Law Revision.
AECT is ae much concerned as any other educator group with (a) the potential impact of the final decision of Williams and Wilkins on American educational practices, and (b) insuring that educators are able to have reasonable access to print and nonprint materials for instructional purposes. However, AECT has developed an alternative position to an educational exemption which we believe will provide sufficient protection to educators while at the same time be acceptable to the materials producers.
The full text of the AECT statement follows. Particular attention should be paid to the third paragraph, which deals with the issue of fair use.
COPYRIGHT LAW REVISION : A POSITION PAPER, MAY 1973 The members of the Association for Educational Communications and Technology (AECT) believe that technology is an integral part of the teaching-learning process and helps to maximize the outcomes of interaction between teacher and pupil.
Regulations governing United States Copyright were originally developed to promote the public welfare and encourage authorship by giving authors certain controls over their work. It follows that revisions in Title 17 of the United States Code (Copyrights) should maintain the balance between providing for the compensation of authors and insuring that information remains available to the public. Some of the revisions proposed in S. 1361 lose sight of this balance between user and producer.
AECT endorses the criteria to be used in the determination of "fair use" as contained in Section 107 of the proposed bill:
Section 107.—Limitations on exclusive rights: Fair use ... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by [Section 106], for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
3 House Report No. 83, 90th Congress, 1st Sess., on H.R. 2512, March 8, 1967, p. 29. * U.S. v. Paramount Pictures, Inc., 334 U.S. 331. 158 (1948).
5 Copyright Lano Revision, Report of the Register of Copyrights, House Committee Print, 87th Congress, 1st Sess. (July, 1961), p. 27.
(1) the purpose and character of the use;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work. Further, we endorse the concepts regarding the intent of these criteria as expanded in the legislative history of the bill as it existed prior to and without regard to the original opinion in the case of Williams and Wilkins v. U.S., for that opinion substantially narrows the scope of "fair use" and irreparably weakens that doctrine.
However, we propose that the concept of "fair use" should apply equally to the classroom teacher and media professional—including specialists in audiovisual and library resources. Media personnel are becoming increasingly important members of educational planning teams and must have the assurance that they may assist classroom teachers in the selection of daily instructional materials as well as with long range curriculum development. Classroom teachers do not always operate "individually and at (their) own volition.” The fact that the media professional makes use of advance planning and has knowledge aforethought of the materials he prepares for the teacher should not invalidate the application of the "fair use" principle.
Concerning the use of copyrighted works in conjunction with television, AECT proposes that "fair use," as it has been outlined above, should apply to educational/instructional broadcast or closed-circuit transmission in a non-profit educational institution, but not to commercial broadcasting.
Once the doctrine of "fair use" has been established in the revised law, negotiations should be conducted between the proprietor and user prior to any use of copyrighted materials that goes beyond that doctrine. We believe that the enactment of the "fair use" concept into law prior to negotiations will guard against the erosion of that concept. Generally, a reasonable fee should be paid for uses that go beyond "fair use," but such fee arrangement should not delay or impede the use of the materials. Producers are urged to give free access (no-cost contracts) whenever possible.
We agree with the Ad Hoc Committee of Educational Organizations and Institutions on Copyright Law Revision that duration of copyright should provide for an initial period of twenty-eight years, followed by a renewal period of forty-eight years, whereas the proposed bill sets duration at the “life of the author plus fifty years." It seems reasonable that provision should be made to permit those materials which the copyright holder has no interest in protecting after the initial period to pass into the public domain.
Regarding the input of copyrighted materials into computers or other storage devices by non-profit educational institutions, we agree with the Ad Hoc Committee that the bill should clearly state that until the proposed National Commission on New Technological Uses of Copyrighted Works has completed its study, such input should not be considered infringement. The proposed bill states only that“... [Section 117] does not afford to the owner of copyright in a work any greater or lesser rights with respect to the use of the work in conjunction with any similar device, machine, or process ..."
A new copyright law that both users and producers can view as equitable depends upon the mutual understanding of each other's needs and the ability to effectively work out the differences. We will participate in the continuing dialogue with the Educational Media Producers Council and similar interest groups to establish mutually acceptable guidelines regarding the boundaries of "fair use," and reasonable fees to be paid for uses beyond "fair use." This dialogue will be especially important in the area of storage, retrieval, and/or transmission of materials during the time period between the enactment of the new law and the issuance of the report of the proposed National Commission on New Technological Uses of Copyrighted Works.
We feel that the above modifications of S. 1361 are needed to insure that the revised law assists rather than hinders teachers and media specialists in their work.
Briefly, the AECT position supports the legislative history relating to "fair use" developed prior to the original opinion in Williams and Wilkins v. U.S. It is our perception that until that opinion was handed down, educators and materials producers were progressing toward the development of mutually acceptable guidelines regarding the boundaries of "fair use." Our position serves to erase