These three methods are, of course, often combined to help the publication meet its production costs. In some instances, the result will be profit, while in others (depending on the nature of the research, the financing mechanisms, and the materials,) the publication will do little more than meet its costs.

Several solutions have been offered to permit libraries to photocopy materials without endangering the publishers' income or copyright. None of these confront the basic problem. In order to assure the unhindered flow of biomedical knowledge and information, while still achieving the most rational and responsible distribution of its costs, the Association recommends that a study be commissioned to investigate the complex set of factors involved in the transmission of biomedical information. Included in its considerations would be the determination of the number and types of biomedical journals necessary to maintain an adequate flow of the growing volume of scientific information; how the costs of these publications should be borne by the public, the researchers, the readers, and the institutions; and finally, the most appropriate role of the federal government in this area.

Until these issues are dealt with, we will continue to have an incomplete resolution of the problems of biomedical publications and an adequate dissemination of information to investigators and to a broader community of professionals who can apply the results of research to the improvement of health care.

Mr. Chairman, the Association would like to thank you for this opportunity to express its views. I and the staff of the Association stand ready to provide whatever assistance you might desire in this matter.

Sincerely,

JOHN A. D. COOPER, M.D.

STATEMENT WITH RESPECT TO THE PROPOSED "GENERAL EDUCATIONAL EXEMPTION" AMENDMENT TO THE COPYRIGHT REVISION BILL (S. 1361), SUBMITTED TO THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY BY THE ASSOCIATION OF AMERICAN PUBLISHERS The present statement is intended to extend and amplify the necessarily brief oral statement presented to the Subcommittee by Ross Sackett, President of Encyclopaedia Britannica Educational Corporation on behalf of the Association of American Publishers, of which Mr. Sackett is Chairman of the Board of Directors, in opposition to the proposed amendment to the Copyright Revision Bill (S. 1361) granting a general educational exemption.

The Association of American Publishers in the general association of book publishers in the United States, including textbooks and other educational materials. Its more than 260 members, which include many university presses and non-profit religious book publishers, produce the vast majority of all general, educational and religious books and related materials published in the United States.

The Copyright Revision Bill as it stands (S. 1361) provides many limitations on the rights of copyright proprietors that are intended to facilitate the educational use of copyrighted materials. Section 107 for the first time would embody in statute law the judicial doctrine of fair use. It would explicitly define certain uses of copyrighted works in teaching as being fair use if it meets the other specified criteria. Section 108 in certain circumstances would permit copying by a library, including a school or college library, even though it may exceed fair use. Section 108 also exempts school and college libraries from liability for infringements committed on coin-operated copying machines on their premises, provided an appropriate warning has been placed on the machines. Section 110 (a) permits the non-profit performance or display of a copyrighted work in the classroom. Section 110(b) permits the broadcast of a nondramatic work in organized instructional programs. Section 112 (b) entitles a school to produce and for five years make unlimited use of tapes or other records of live performances of works it broadcasts. Section 504 (c)(2) relieves a teacher of liability for statutory damages if he commits an infringement and if he believed on reasonable grounds that the infringing use was a fair use under Section 107 of the act.

These numerous special exemptions for educators reflect the concern that the Judiciary Committees of both Houses and the Copyright Office have consistently shown through the long consideration of copyright revision that no unreasonable impediments should be placed in the way of educational use of copyrighted materials. Publishers share that concern. For that reason, almost all of the special exemptions now in the bill have been not only accepted but supported by pub

lishers. Educators and educational institutions are the sole market for the educational materials produced by publishers, and are by far the most important customers of the industry. The producers and the users of educational materials are hence partners, not opponents. They share a common purpose in achieving the maximum and the most efficient use of educational materials in the actual teaching process.

The provisions of the bill as they affect educators were quite satisfactory to the Ad Hoc Committee when it testified before the Senate Judiciary Subcommittee. (See the testimony of Harry Rosenfield on S. 597, March 1967, Part 1, pp. 187-189.) Now, however the Ad Hoc Committee has revived a proposal for a sweeping exemption.

This exemption would allow anyone to make an unlimited number of copies in any form for the purposes of "noncommercial teaching scholarship or research" of "brief excerpts from literary, pictorial, and graphic works which are not substantial in length in proportion to their source" and also of the "whole of short literary, pictorial and graphic works."

It would also allow an entire copyrighted work to be stored in a computer or other automatic system for storing, processing, retrieving or transferring information, leaving the proprietor with only such control as he can achieve over the retrieval of the information.

Many, perhaps most, of the uses described by the representatives of the Ad Hoc Committee as a justification for this proposed exemption would in any case be lawful under section 107 or other provisions of the bill, particularly the reproduction of brief excerpts in ways that do not reduce the market for the original. Insofar as the proposed general educational exemption relates to uses that would be legal under 107, it is meaningless and unnecessary. The only real purpose sought by the amendment, and indeed the only purpose it can serve, is to legalize uses that a court would otherwise hold to be unfair because they are excessive in quantity or reduce the market for the original work or otherwise exceed "fair use." If no excessive uses or competitive uses are planned, the proposed amendment is simply pointless.

What are some of the uses that would be authorized by the proposed general educational exemption that would be likely to be held to exceed fair use today or under Section 107? The most dangerous of those probably relate to the freedom to make and distribute an unlimited number of copies of entire "short" copyrighted works without the proprietor's permission. The only limitation on this freedom would be that the copying must not be for profit, that it must be for "noncommercial teaching, scholarship, and research," that the copies of the separate whole works must not be compiled, as in an anthology, and that the materials copied must not be "consumable."

A "short" whole work is presumably an individual short story, essay, or poem; a map; a transparency; a globe; a wall chart; a slide or photograph; the score of a short music composition. It is difficult to conceive works that are shorter and yet are whole, separately copyrightable "works."

Under the proposed language a city school system, or a state department of education, or the United States Office of Education could, on a nonprofit basis, produce a dozen, or a hundred, or a thousand copies of a slide or of all of the slides a publisher has produced and make them available free, or at the bare reproduction cost, to schools in their jurisdiction for noncommercial teaching activities. Time and time again, a teacher could make multiple copies of a poem or a short story, and hand it out to members of a class or group of classes. A school could reproduce the words and music of a "short" copyrighted song for all the members of a school orchestra and choir. A school system could reproduce for every classroom a copyrighted wall chart or map; the Department of Defense could reproduce a hundred thousand copies of a short copyrighted work to use in training courses. And so through dozens of similar situations in which the uses are clearly not "fair" but would apparently be legal under the proposed language, We are quite prepared to believe that the sponsors of the general educational exemption had no such sweeping uses in mind; but if that be true, they should not seek legislation that would legalize such abuses.

As we understand it, the sponsors of the general educational exemption assert that they do not wish to cover under the exemption uses that would injure copyright proprietors or that would go beyond what are normal and professionally approved classroom activities now. Their declared purpose is apparently not so much to enlarge the area in which copyrighted works may be used without the owner's permission as to define more clearly the present boundaries of that area. They would contend that the uses they envision as actually carried on under the

proposed exemption would in almost every case be "fair" uses, but that teachers cannot safely rely on the doctrine of "fair use" because of its vagueness. Teachers may expose themselves to legal peril, the advocates of the exemption say, or more likely they may be deterred from making proper and desirable uses of copyrighted material because they do not know whether or not they are "fair uses" within the meaning of the law.

Admittedly the concept of "fair use", like the concept of "negligence" or of "prudence" in the common law, is one that by its very nature is not susceptible of precise and unvarying definition. But the proposed amendment does not cure this vagueness. It compounds it by introducing a number of terms new to copyright law and uninterpreted by the courts:

How short is a "short" work? Is a 15-page short story "short"? Ten pages? Five pages? Does it depend on the size of the page?

What is "nonprofit" use? Is a professor doing research which he hopes to embody in a textbook from which he hopes to receive substantial royalties engaged in "non profit" research? If he is working on a biography from which he hopes to receive modest royalties? If he is doing an article for a learned journal for which he will receive no payment but hopes for a promotion? Is the Department of Defense engaged in "non-profit" research when it puts the entire content of a highly technical set of copyrighted tables into a computer to use in designing the airfoil of a new plane? Is an aircraft manufacturer engaged in non-profit research when it does the same thing under a contract with the Department of Defense? The very essence of such legal concepts as "fair use" (or "negligence" or "prudence") is that they do avoid rigid a priori definitions and permit a judgment of fairness and equity to be made on the basis of the application of common sense and experience to the actual situation in each individual case. To introduce certainty is to introduce rigidity. Any effort to get away from the doctrine of "fair use" and define the area of permissible use in predetermined objective or numerical terms is simply unworkable. Any such inflexible rule, if it is narrow enough to eliminate truly abusive uses of material will eliminate along with them many wholly proper uses. If it is broad enough to include all the uses we all agree are proper, it will open the door to a host of improper uses. There is simply no substitute for the use of informed and impartial judgment in the application of general principles to specific cases.

If the proposed general educational exemption is not intended to legalize sweeping uses of copyrighted material that are clearly beyond the bounds of fair use, and if it is not successful in clearly defining boundaries of use, what is the need for it?

Indeed we believe the needs that have been alleged are hypothetical and illusory. The 1909 Copyright Act under which we now live contains none of the special concessions to education that appear in S. 1361 and that we for the most part support. It is much more restrictive than S. 1361 in its present form. Yet under the present more restrictive law, hundreds of thousands of teachers, scholars, and researchers daily make millions of uses of copyrighted material. No doubt many of those uses may exceed the boundaries of what we would all agree to be fair use. Yet the result when any such well-intentioned excessive use comes to the attention of the publisher is at most a statement of concern followed by discussion and the modification or abandonment of the objection to use or else an agreement that in the circumstance it is proper or, in some cases, a license to continue the use. What are the desirable educational practices that in actual fact go unused for fear of a vaguely defined copyright liability? We have evidence of any. There is simply no reason to believe that under the copyright law as it would be liberalized by S. 1361 without the proposed general educational exemption, as well as under the 1909 law, educators and publishers would not continue to go forward as they have in the past in an easy collaboration, resolving by discussion any occasional differences in the interpretation of fair use that may arise.

But if it is difficult to see any need for or benefits from the proposed exemption. it is only too easy to see the difficulties it would bring to education as well as to authors and publishers:

(1) It would legalize the potential large-scale competitive reproduction for noncommercial teaching use of a host of "small" whole copyrighted works. The limitation of this exemption to "noncommercial teaching" is no protection to the producers of such material, for "noncommercial teaching" is substantially the whole of the market for educational material. Such large-scale reproduction would not only injure authors, producers and publishers; by the lessening of the incentive to produce such works for the educational market, it would injure teachers, students, and the whole educational process as well.

(2) By permitting the unlimited input of copyrighted material into computers and similar devices, it would effectively destroy the creator's control over his copyrighted property. The provision for copyright control over output from such a device is meaningless. It is obviously the assumption of the sponsors that the output from such a system will be of such brief excerpts as to be protected by fair use, thus eliminating copyright control at both ends. But even if the output is not protected under fair use, it is obviously unrealistic to apply copyright protection at that point. It is in the nature of the operation of a computer or similar system that one does not know what its output will be until it has in fact been pointed out. There is no way the prior permission of the copyright proprietor can be obtained. He is presented with a fait accompli. On the other hand it is perfectly feasible to get the permission of a copyright proprietor before the input of the material, and such permission can include the manipulation, processing, and output of the material as well.

(3) By establishing a presumption that the kinds of uses authorized by the general educational exemptions are not "fair uses" that would be protected by Section 107, it would actually in many ways narrow the protection afforded educators. By departing from the flexible "fair use" concept and endeavoring to define specific exemptions, it establishes the presumption that uses not specifically exempted are infringements. This may work to the serious detriment of educators and education as new and unforeseen materials and uses are developed in the future, to which the doctrine of "fair use" could be applied, but which fall outside the specific exemptions this amendment would provide.

(4) It would upset the balance of compromises carefully worked out in the past by the subcommittee. Its sweeping and imprecise language overlaps many other sections of the bill. To give serious consideration at this late date to the educational exemption would require the committee to reexamine at least the fair use provisions of Section 107, the library reproduction provisions of Section 108, and the classroom teaching provisions of Section 110.

(5) The provision of the general education exemption are, of course, in complete contravention of Section 117 and of the intention of Title II of S. 1361. It was this subcommittee that concluded that the problems of computer use of copyrighted material were too complex to be acted on legislatively without further impartial expert examination. The subcommittee proposed, in Title II, the creation of a National Commission on New Technological Uses of Copyrighted Works to make a thorough study of this and related problems. Meanwhile, by Section 117 the subcommittee proposed that all rights with respect to computer and related uses be frozen precisely as they are under present law pending the report of the Commission. This was a statesmanlike proposal, completely accepted by all the various conflicting interests concerned including, at the time, the sponsors of the general educational exemption. Now, however, those sponsors have proposed to upset this entire understanding, abolish Section 117, and bypass the impartial study proposed in Title II, subverting the whole carefue constructed arrangement.

There is a further major objection to this sort of specific exemption. We are living and working, in 1973, under the provisions of the Copyright Act of 1909. It is likely that any general copyright revision act this Congress will pass will remain the law of the land until far into the twenty-first century. It will need to be applied to meida of communication and forms of reproduction and use not now even conceived of, just as the 1909 Act has had to be applied to television, satellites. and computers.

When the 1909 Act provided general principles and policies through its general definition of the rights of authors and through its silence on fair use, thus allowing the prior judicial doctrine to prevail, it has been possible for the courts in acting on individual cases and private parties by contractual arrangement to apply the principles of the Act to the new media without undue strain. It is the highly specific provisions of the 1909 Act attempting to go beyond principle and fix details, that have become anachronistic and unworkable-provisions like the manufacturing clause, the so-called "juke-box" amendment, the fixed 2¢ royalty for mechanical rights, etc. These detailed provisions have had totally unintended consequences in the face of new media and radically new circumstances.

No one is wise enough in 1973 to devise the sort of specific and detailed provision in the general education exemption, intended to govern copyright for decades to come. What is needed, with respect to the concerns we are dealing with here, is a general definition of the exclusive rights of authors and their assignees, as in Section 106, and a general assertion, as in the present Section

107, that these exclusive rights shall not bar those fair and non-competitive uses of copyrighted works for socially desirable purposes that are covered by the broadly and flexibly conceived doctrine of fair use. Both now and as new media are introduced in the future, realistic applications of these general principles can and will be worked out.

Denial of the unwarranted educational exemption will not “deprive” teachers of any "right" they may erroneously feel is possessed under existing law. "As shown by a Copyright Office study dated July 22, 1966, the educational groups are mistaken in their argument that a 'for profit' limitation is applicable to educational copying under the present law." (House Report No. 83, 90th Congress, March 8, 1967.)

In its Report, the House Judiciary 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." (pp. 32–33)

We share the views expressed by the House Judiciary 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 offer 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 use.

STATEMENT OF THE ASSOCIATION OF RESEARCH LIBRARIES, ON THE AMENDMENT RECOMMENDED BY THE LIBRARY ASSOCIATIONS TO S. 1361, GENERAL REVISION OF COPYRIGHT LAW

In order to clarify the proposed amendment and distinguish between it and the language of S. 1361 in its present form, it appears desirable to discuss the sections of the amendment and then to note the difference between these provisions and those of S. 1361.

The initial paragraph of section d reads the same as section d in the printed Bill except that the phrase "but only under the following conditions" is substituted for the word "if" at the end of the paragraph.

Section (1) under d of the proposed amendment refers only to an article or other contribution to a copyrighted collection or periodical issue or to a similar small part of a work. The purpose of this amendment is to enable libraries to continue to supply a photocopy of a small part of a work without being required to do any checking to see whether the issue of the periodical or the book in which the item appears is available for sale. This is particularly important with respect to articles in periodicals, since there is no easy way to determine whether or not a particular issue of a periodical is still available from the publisher or dealer. Even if it should be determined that an issue can be ordered from the publisher, the time required to place the order and receive the issue results in a delay which will probably not meet the need of the user.

Section (2) refers to an "entire work," that is, a book or a major part of a book. In this case the amendment would require that the library determine whether or not the book is still in print before providing a photocopy of it. This can be done with relative ease by checking Books In Print.

The distinction may be put in this way: section (1) refers to a periodical article or short excerpt of which a photocopy may be provided without any checking. Section (2) refers to an entire book or a major part of it and in this case a check to see whether the book is still in print is required.

Section (2) of the proposed amendment is similar to section 108 (d) (1) in the printed Bill, S. 1361. Section (1) of the proposed amendment is a specific exemption for a periodical article or short excerpt. In this respect, it is an addiction to S. 1361.

"REASONABLE INVESTIGATION"

The phrase "reasonable investigation" is used in the amendment which we are recommending but only in section 108 (d) (2). This section refers to books, not to periodical articles. A reasonable investigation of the availability through trade sources of a book can easily be made by checking the annual catalog Books In Print. There is no comparable catalog listing all periodical articles. 20-344-73-37