times" language of the Constitution. The history of motion pictures under the present law provides an example. While theoretically, under the present law, the fruit of the tree drops into the public domain at the termination of the statutory period to enrich the cultural pool of the public, this has not, in fact, happened. The majority of motion pictures created in the United States have disappeared altogether, many prior to the expiration of even the first twenty-eight year term of protection. The public has forever been deprived of this part of its cultural heritage which its ticket purchases have financed and the Constitution has held is its due. This harm is irreparable. Such works cannot and do not fall into the public domain because not a single tangible copy remains in existence. Copyright here has become a chess game in which the public is permanently checkmated. For the foregoing reasons I respectfully urge that no legislation be approved by this Subcommittee or by Congress which lengthens the term of statutory copyright, or which fails to make publication, defined as the sale of tangible copies to the public, a specific requirement to perfecting copyright protection. (Note: The Exhibits referred to by Mr. Foreman are in the files of the Committee.) AUGUST 7, 1973. STATEMENT BY MORTON I. GROSSMAN, VA WADSWORTH HOSPITAL CENTER, LOS ANGELES, CALIF. I am Morton I. Grossman, MD, PhD, Senior Medical Investigator, Veterans Administration Wadsworth Hospital Center, Los Angeles; Professor of Medicine and Physiology, UCLA School of Medicine, Los Angeles; former president of the American Gastroenterological Association; former member of the editorial boards of American Journal of Physiology, Gastroenterology, Handbook of Physiology, UCLA Forum in Medical Sciences, and others; currently Chairman of the Editorial Board of the official journal of the American Gastroenterological Association, Gastroenterology. I appreciate this opportunity to present my view of the copyright bill, S. 1361, and request that this statement be made part of the official record. I speak as a private individual, not as a representative for any of the organizations listed above. Any new provision of the copyright law that impaired the ability of individual scientists to obtain copies of individual articles published in scientific journals would be a serious impediment to the flow of information that is essential for scientific progress. I oppose any plan that would require the payment of royalties for photocopying individual articles in scientific journals. Such royalties cannot be viewed in the same light as royalties on literature for the writing of which the author earns part or all of his living. Scientists are not paid a fee for publishing their results in scientific journals. No fee should be charged for making individual copies of such articles. Copyright privileges in the case of scientific journals should be used only to safeguard against unethical use, not as a means of providing income to publishers or scientific societies. The proposal by the American Library Association to substitute section 108 (d) (1) of the present Bill with this new wording: "The library or archives shall be entitled, without further investigation, to supply a copy of no more than one article or other contribution to a copyrighted collection or periodical issue, or to supply a copy or phonorecord of a similarly small part of any other copyrighted work." would accomplish the purposes I have set forth. Respectfully submitted. SUPPLEMENTAL STATEMENT OF BELLA L. LINDEN, ON GENERAL REVISION OF THE U.S. COPYRIGHT ACT, SUBMITTED ON BEHALF OF HARCOURT BRACE JOVANOVICH, INC., AND MACMILLAN, INC. The particular impetus for this Supplemental Statement is the inquiry made by Senator Burdick into precisely how libraries can be expected to record and transmit compensation for numerous individual photocopying uses, and his request for a description of the administrative techniques and budgets which would be involved. Accordingly, this submission will be directed towards the issue of Films In Review, April, 1973, at page 224, Exhibit 4. 20-344-73-38 compensation for library photocopying. Insofar as compensation for the use of copyrighted materials in information storage and retrieval systems is concerned, most technologists seem to agree that there is no significant administrative or financial burden in programming computer systems to identify and record the various works stored, manipulated and retrieved. The current issues with respect to use of copyrighted materials in information storage and retrieval systems do not appear to be those of the mechanism of compensation, but rather the points at which the obligation of compensation should attach-i.e. at input, during manipulation, or upon retrieval-and whether a rate making authority, such as that discussed in connection with CATV, should be created. We believe these are issues best suited to consideration by the proposed National Commission on New Technological Uses of Copyrighted Works. With respect to library photocopying, it appeared to me that the hearings on July 31st revealed a general agreement among the parties and the Members of the Subcommittee that library photocopying can be a valuable research tool which should not be prevented, but that copyright proprietors are entitled to a fair compensation for such use of their works. The library representatives, however, appear to take the position that although copyright proprietors are entitled to such compensation the presence of an obligation to pay such compensation will involve unbearable administrative burdens of identifying and recording uses. Their objection, in sum, appears not to compensation per se, but rather to the manner in which it could be provided. Among the mechanisms of compensation for library photocopying which have been discussed are blanket licenses, subscription fee increments, clearing houses, per-use charges to requesting users, and others. Several, but not all, of these devices would admittedly involve "clocking" of individual uses. However the photocopying devices used by libraries today generally do record the number of pages copies and in many cases hardware manufacturers receive payment from libraries based upon such clocked uses. There is little doubt that any photocopying equipment can be adapted to use with similar clocking devices at nominal costs. Obviously, compensation schemes which will depend upon the number of pages copied by individual users will involve questions of identifying and segregating public domain and copyrighted materials. Similarly (and regardless of the particular compensation scheme envisaged) not all objects of photocopying must or should be treated in the same manner. Thus the copying of technical journals, of single encyclopedia entries, of text books, or of novels. poetry or music involve varying considerations and hence potentially varying forms and amounts of compensation. However these are problems which, again, the copyright proprietors themselves will have to resolve-and they will quite clearly be forced to resolve them in a manner which will assure a workable recordation and transmission of the compensation which they have stated they require in order to survive. To attempt to calculate specific budgets for the implementation of various compensation systems at this time is a rather fruitless task. Any realistic estimate of the amounts which would be involved will depend not only upon the particular system-such as blanket licensing or per-use charges-but would require clearly defined samplings of the current practices of libraries, their photocopying procedures, and the nature of the copied works. In all of American commerce the establishment of devices for payment of obli gations has always been a problem of the entity to whom the obligation is owed. provided however that the law recognizes the product or service as private prop erty and precludes preemption without the authorization of the owner. So too in connection with library photocopying the creation of workable devices for compensation is a problem which will have to be faced by those copyright proprietors who desire compensation. If their proposals and devices prove unworkable, the pressures of the marketplace will provide appropriate adjustments. It is submitted that there is no justification for vitiating the authors and publishers rights by including the librarians' proposed Sec. 108 in the Revision Bill. It is respectfully urged that Sec. 108 of the Act as passed by the House plus leaving the unresolved issues to the National Commission proposed under Title II of the Bill would be an appropriate alternative in the event this Subcommittee considers that the appropriate adjustment between users and n prietors cannot be left to the marketplace. DETROIT PUBLIC LIBRARY, Detroit, Mich., August 6, 1973. Hon. PHILIP A. HART, U.S. Senate, Senate Office Building, Washington, D.C. DEAR SENATOR HART: I am wriing to you in your capacity as a member of the Subcommittee on Patents, Trademarks and Copyrights-Senate Committee on the Judiciary, and asking if this letter can be placed in the record on Senate Bill 1361 (the copyright revision bill), Section 108(d), Photocopying for Libraries. At a hearing held July 31, 1973, Senator McClellan proposed that the record be held open until the 10th of August so that additional testimony could be given concerning the amendment proposed by the American Library Association. I am writing in support of that amendment, that libraries need more protection under th provisions than "fair use." The bill should specifically state that libraries are free to make single copies to aid in teaching, research, and particularly in interlibrary loan. This act should be permissible and not subject to possible suit on behalf of the public good. Thank you for your help in making this endorsement part of the record. The Detroit Public Library and its Commission feel strongly that this protection is essential in order to continue quality library service. Sincerely yours, MILDRED M. JEFFREY, Member, Detroit Library Commission. Senator JOHN L. MCCLELLAN, New Senate Office Building, INFORMATION INDUSTRY ASSOCIATION, DEAR SENATOR MCCLELLAN: We are pleased ot submit this letter as a supplemental statement on the Copyright Revision Bill, S. 1361. We respectfully urge that the library and education exemption proposals be referred to the National Commission on New Technological Uses of Copyrighted Works to be established by Title II of the Bill. These exemptions raise serious and far-reaching queestions bearing directly on the ability of the copyright laws to fulfill its original constitutionally mandated purposes in informaton technology areas. The proponents failed to provide any supporting economic data as to the impact of the proposed exemptions on suppliers of information and publications. The proponents failed completely to establish a sound case for their proposals. The information industry is the only industry with any significant experience in the day-to-day business of creating and supplying information services of the kind libraries and schools would be in position to perform free of copyright if the exemptions were to be adopted. Great private resources are being applied to obtaining permission to use copyrighted materials, to account for their use and to fulfill user needs in creative and meaningful ways. It is the burden of the proponents of the exemptions to demonstrate by economic data that these efforts would not be damaged by their proposals. They have failed to do so. We believe this failure is a logical extension of two factors: (1) The information industry is new and has grown up in the years since the Senate, in 1967, first passed legislation to create the National Commission. The Information Industry Association came into existence in 1969. (2) The Library exemption proposal has been resurrec ed from a much earlier phase of the copyright revision effort and it is patently clear no effort has been made to accommodate its language to the fact of the new information technology applications and capabilities represented by information industry activities. We believe this industry offers the most stimulating, creative and economically productive means for harnessing the new technologies to the dissemination of information and for the fulfillment of the purposes of the copyright law. There is no question that the effect of the proposed exemptions, together or separately, would be to destroy the economic foundations of this industry. We recognize that that is not the intent of the exemption proposal. But that nonetheiless would be the result. The development of the full potential of information technologies to store, search, find and deliver the precise information you want, when you want it. where you want it and in the form you want it is a costly and complex effort. The effort has only been started. Private risk capital is being devoted to developing and refining information services designed to deliver just the single copy desired. Granting exemptions to provide alternative sources for similar services free of copyright would not only construct and eliminate opportunities for the industry, but it would also deny the people of the United States the benefit of the innovations in products, services and systems currently being funded by private risk capital. It should be noted that no evidence was submitted as to the financial or other capabilities of publicly funded schools and libraries to perform these costly and sophisticated activities in place of the efforts currently being made with private risk capital. In this phase of technological development affecting the information service structure of the nation, the single copy and free-input exemption proposals far transcend the claim that they merely codify "Fair Use" in library and educational settings. Section 107 of the bill restates the fair use doctrine and provides guidance for individual users in schools and libraries. It is far better that there be some uncertainty about occasional individual uses that come close to the line in exceeding the known boundaries of fair use, than that the creative and economic resources devoted to developing economically sound information services for all aspects of our society be undercut and eliminated. No broadening of the fair use concept should be undertaken until the role of industry in this process is understood and taken into account. The appropriate mechanism for resolving the new technology questions raised by the exemption proposals is to refer both to the National Commission. They clearly fall within the jurisdiction and purposes of that Commission. The experience and existence of the information industry underscore the wisdom of establishing the Commission and the need to develop further information and economic data prior to legislation on these proposals. If necessary, the mandate to the Commission might be so defined as to ensure that these matters receive priority consideration. Without supporting economic data on which to evaluate their effect and on which to base a sound decision as to their effect on the operations of the copyright law of the United States, there is no basis for the enactment of these farreaching proposals. Thank you for this opportunity to share our perspectives with you. PAUL G. ZURKOWSKI, President. Hon. JOHN MCCLELLAN, THE JOURNAL OF INVESTIGATIVE DERMATOLOGY, DEAR SENATOR MCCLELLAN: It has come to my attention that the Copyright Revision Bill will in the near future be considered by your Subcommittee on Patents, Trademarks and Copyrights. As the editor of a limited subscription, highly specialized medical journal I would like to express some thoughts concerning this bill. Evidence has been developed, particularly by the Williams and Wilkins Company, that the increasing use of photocopying has led to a definite decrease in subscriptions to journals such as ours. I have examined this evidence and believe it to be valid. My basic feeling is that the cost of production of materials such as that which we publish should be spread as broadly as possible among the users of the material. For that reason, I feel it imperative that the new copyright bill be written in such a way that some royalty for use of the material can be returned to those who take primary responsibility for publication of the material. If this is not done, it is my belief that in the relatively near future we will see either the demise of journals such as ours or the need for very substantial governmental intervention so that type of medical information will not disappear. The simplest way seems to be to write the new copyright bill in such a way that the cost of production can be equitably spread. It is my hope that you will bring these views before the members of your subcommittee. I will be very happy to give you any further help in this matter. Sincerely, IRWIN M. FREEDBERG, M.D. U.S. SENATE, OFFICE OF THE MAJORITY LEADER, Hon. JOHN L. MCCLELLAN, Chairman, Subcommittee on Patents, Trademarks, and Copyright, U.S. Senate. DEAR MR. CHAIRMAN: Enclosed is a detailed letter and attachments I have received from Earl Morgenroth of the Rocky Mountain Broadcasters Association, Missoula, Montana, discussing the copyright bill now pending before your subcommittee. Mr. Morgenroth is presenting the views of the small market broadcasters and I would appreciate any consideration that can be given to the contents of the enclosed correspondence. Thanking you, and with best personal wishes, I am Sincerely yours, Enclosures. MIKE MANSFIELD. Hon. MIKE MANSFIELD, ROCKY MOUNTAIN BROADCASTERS ASSOCIATION, DEAR SENATOR MANSFIELD: On my last trip to Washington, D. C., I discussed with you the Copyright Bill currently in the McClellan Committee, and the CATV Broadcaster Compromise (Consumer Agreement). Attached please find the CATV Broadcast Compromise which was drafted two years ago but never implemented. It is a good agreement in part, but provides virtually no protection for the small market broadcaster. Any CATV copyright legislation adopted by Congress should include the following modifications of the "Compromise" in order to protect small market broadcasters: 1. Local Signal definition should remain the same as the current FCC Definition. 2. Television stations not in the top 100 markets must be extended the same syndicated programming protection as the compromise agreement gives to the second 50 television markets. 3. On leapfrogging, the language of B of the compromise agreement is okay, but the language of A should be changed to provide that on network signal importation, the closest such signal must be carried in all markets. 4. On Copyright Legislation, in B of the Compromise Agreement, the less than 3,500 subscriber exemption for existing independently owned CATV systems should be changed to a less than 500 subscriber exemption for such systems. 5. The Grandfathering provisions of the Compromise Agreement should be entirely deleted, with no Grandfathering exemption on Copyright liability provided to cable systems. 6. The Radio Carriage provision of the Compromise Agreement should be deleted, and replaced with a total ban on CATV carriage of AM or FM station signals. Under the heading "Radio Carriage," all aural signals including Muzak type signals and other taped music (without visual material) should be banned from CATV. CATV should be restricted to visual transmission. There is neither need nor justification for CATV aural-only transmission. In fact, under the "One-to-a-Market" rule of the FCC, an owner of a radio station in one market is prevented from owning a television station in the same market and vice versa. In addition, most small markets are adequately served by aural signals (AM and FM). If CATV Systems are allowed aural origination, it would severely limit the expansion of radio services in small market communities and in some cases, jeopardize existing service. |