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I hold in my hand two objects which illustrate the confusion which has characterized the various conferences which have preceded the drafting of the present bill.
One is a very popular copying machine. It is a ball-point pen-a modern version of the pencil, the quill pen, the stylus, or a dozen other instruments that have been used for copying in libraries for the past three thousand years or more.
The other is a copy of the well-known Opticks by Sir Isaac Newton. Although it first appeared in print in 1704, this volume bears the copyright date of 1952. It has been said that the copyright date may cover the introductory material, but actually much of the introduction is taken from contemporary reviews and comment of over two and a half centuries ago.
Seldom has anybody ever objected to library readers sitting at library tables and taking notes or copying. In fact this is one of the basic purposes of libraries. Many libraries even sell pens and paper as a convenience. To save their time and effort in copying, some readers have brought typewriters into our libraries while some have brought in cameras to take photocopies. Some libraries have photocopy machines available on which the reader can serve himself. We see no basic legal difference between the scholar who laboriously takes notes by hand and the man who uses a more modern tool, such as a typewriter or camera.
Studies have been made on the effect of such copying. The results show no appreciable effect in diminishing the sale of books and magazines. In fact, there have been tremendous increases in sales and circulation in recent years. The total volume of book sales by U.S. publishers was about $1.6 billion in 1963 and has been increasing at a rate of about 10% a year over the past ten years.
In these days of mass production, no isolated one-at-a-time copying system can ever compete in cost or in quality with original central publication on a mass production, assembly-line basis.
Scholars and researchers make and use copies because they want only small portions, or because the originals cannot be obtained at all, or within a reasonable time. As a librarian, I know from experience how much time lag there is in ordering single titles from publishers—and how often after a short time the publisher abandons any responsibility to keep a book or journal available and lets it go out of print.
The vast majority of authors could not carry on their work without some kind of note-taking. Notes are particularly important to those who write in scholarly publications, and who often receive no compensation.
Conversely, there is practically no interest in copying from the big-money, popular best-sellers.
I repeat, there is no substantial evidence that one-shot copying by scholars in libraries has injured authors or publishers.
Concurrently with their threats to the long-accepted practices in our libraries, the authors and publishers have advanced proposals to extend greatly the term of copyright, and to complicate greatly the process of determining what actually is subject to copyright.
To us it looks like both eating and having your cake, while locking the door to the bakery store.
To the knowledgeable, the copyright claim on Isaac Newton's Opticks after 261 years is meaningless, but it is symptomatic of the desire of some publishers to throw a false curtain of protection over many things in print.
Another "notice” apparently is intended to prevent libraries from putting a permanent binding on a paperback book :
“For copyright reasons this book may not be issued to the public on loan or otherwise except in its original soft cover.”
This is indeed a weird extension of copyright—to prevent binding a book. I find no justification for this whatever. Maybe the publisher thinks he has a patent on the book-bound or unbound. A patent gives its owner an exclusive right to a product or a process. He may use it himself; he may license others to use it, free or at a price; or he may prevent its use by anyone. Thus a patent controls the substance of a new development. A copyright is entirely different in this respect. It requires that the material be published-made avail. able to the public generally.
The present law provides for a term of 28 years from the date of the printed notice, plus a similar term for renewal. Statistics compiled by the Register have shown that the 28-year term is more than enough for 85 percent of the authors and publishers—they just don't renew. Yet now it is proposed to extend the term for the life of the author plus 50 years. This drops into the laps of librarians the job of determining who is dead and who is alive, easy enough for a few, but practically impossible for the great majority.
At one time over a year ago, certain representatives of authors and publishers seriously proposed that the entire notice of copyright might be omitted. But, fortunately, that proposal has not prevailed.
Similarly, nothing yet has come of a proposal by certain authors that public libraries be taxed for lending books.
We note with regret that the mandatory penalties for “innocent infringement” have been made unduly harsh in the bill under consideration.
One member of a self-appointed committee of copyright experts has boasted that his group developed plans for restricting every means of transmission of thought except smell and extra-sensory perception.
As real evidence of this line of thinking I submit a “notice" printed this year by a leading publisher.
"All rights reserved. No part of this book may be reproduced or utilized in any form, or by any means, electronic or mechanical including photocopying, recording or by any information storage or retrieval system without permission in writing from the P blisher."
All I can ask is: “What is the use of buying a book if you can't utilize it? If you can't read it and commit what you read to that most magnificent of all means of storing and retrieving, the human brain? Must a cataloger get permission to copy the title page onto a catalog card? or list the contents? Can the title be listed in a computer?”
To clarify our stand on copyright issues, the governing council of the American Library Association, representing over 27,000 librarians and trustees, in the service of some 50 million readers, approved the following resolutions in 1964:
1. That the principle of "fair use" by reaffirmed.
2. That the requirement of printing of notice and date of copyright be endorsed as absolutely essential to libraries and library users.
3. That proposals to make the duration of copyright be for a fixed term, both for published and unpublished works, be endorsed.
4. That the principle that libraries be exempted from import restrictions and penalties be reaffirmed.
5. That the principle that government material should not be subject to copyright be reaffirmed.
6. That proposals to have copyright subsist in the Federal Government after its expiration in the hands of the copyright owner be opposed.
7. That the requirement of American manufacture as a qualification for securing copyright of works by American authors be opposed.
8. That the “not for profit” principle as now embodied in the copyright law be endorsed.
On the whole, we wish to commend the Register of Copyrights for good workmanship, for his efforts to be fair, for his patience in the development of the present revision bill. We are grateful, also, to this Committee for its interest, and for this opportunity to be heard.
The ALA Committee on Copyright Issues has participated in some meetings of the Ad Hoc Committee on Copyright Revision affiliated with the National Education Association, and we are in sympathy with their efforts to meet their particular problems.
None of us in the American Library Association or the institutions we represent has a cent to gain in the proposed legislation. We believe in the constitutional principle of copyright, and we are dedicated to keeping clear the channels of learning and research which make possible our American way of life today and tomorrow.
STATEMENT FOR THE NATIONAL EDUCATION ASSOCIATION OF THE UNITED STATES
BY T. M. STINNETT Mr. Chairman and members of the subcommittee, I am T. M. Stinnett, assistant executive secretary for Professional Development and Welfare of the National Education Association. I have served as a high school teacher, principal, and superintendent of schools in Arkansas; as assistant state commissioner of education and director of teacher education and certification for the Arkansas State Department of Education; as executive secretary of the Arkansas Education Association; as executive assistant to the president of the University of Arkansas; as executive secretary of the NEA's National Commission on Teacher Education and Professional Standards for eight years (1951-1959). I have been in my present position since 1959. Like many teachers, I am both an author and a user of copyrighted materials. I have written seven college textbooks in teacher education; several public school textbooks; and numerous articles for professional journals. Therefore, I speak today both as a creator and as a user of copyrighted materials.
I appear before you today at the request of the president and the executive secretary of the National Education Association, both of whom are abroad attending the annual meeting of the World Confederation of Organizations of the Teaching Profession.
The National Education Association is the largest professional organization in America, consisting of 943,000 members representing the broad spectrum of American education from kindergarten teachers to college professors. Approximately 90 percent of our NEA members are classroom teachers, but our membership also includes administrators, supervisors, school principals, county and state superintendents of public instruction and their staffs, and other individuals.
WHY THE NEA IS INTERESTED IN COPYRIGHT LAW REVISION
The charter of the National Education Association, which was granted by the Congress of the United States, sets forth the purpose and objectives of the association in these words; "to elevate the character and advance the interests of the profession of teaching and to promote the cause of education in the United States." The NEA, therefore, has two primary concerns: the improvement of instruction in the nation's schools and the protection of the rights of teachers and their welfare. Both of these interests are affected by any revision of the copyright law. Improvement of Instruction
Education is in the midst of a gigantic revolution-a many-pronged revolution—especially so in the content areas and in methodology. There are new curriculum developments in the major disciplines which are based on widespread change in curriculum materials.
With the curriculum explosion facing us in every area and at every level in public education, close examination of all types and kinds of materials is a necessity if change is to occur at the practical level of classroom application. At best this is a difficult and complex enough problem. We feel that some of the current suggested revisions of the copyright statutes will impose yet another level of complication. There is little to be gained in working out new curriculum developments, if in the end teachers, who would otherwise strengthen and improve their teaching through uses of new materials, are only to be frustrated because of artificial and inflexible restrictions which in the long run will not really protect the rights of originators or producers, but will be a severe detriment to improving instruction. NEA has a deep interest in the widespread use of many materials of instruction to strengthen and enrich the efforts of classroom teachers in all subject areas. The teacher must be free to teach and must have access to materials to do his job. Rights and Responsibilities of Teachers
Teachers are both authors and users of materials. They want a law which will be fair and just to all concerned. We wish to see proper protection of the interests of those persons whose creative abilities produce fine instructional materials so as to stimulate the continued flow of such materials. At the same time, there is an over-riding public interest to be met also that of flexible availability of materials for instructional purposes.
Teachers and students must be able to use copyrighted materials with a minimum of time and effort devoted to making such materials available in their day-to-day classroom activities and on educational radio and television.
Once a reasonable law is obtained, the profession will itself be in a position to aid in enforcement of the law. But as long as arbitrary and impractical barriers to the use of materials exist, teachers will be reluctant to use materials, particularly when there is a possibility that such use constitutes an infringement.
NEA'S POSITION ON COPYRIGHT LAW REVISION Because education has a substantial interest in the copyright law, the NEA through its Division of Audiovisual Instructional Service and its National Commission on Professional Rights and Responsibilities, in July 1963, called a national conference of representatives of major educational organizations to discuss both the present copyright law and the proposals which were being made for revision of the law; to canvass education's needs in a new copyright law; and to determine what steps, if any, the profession should take to deal with the situation. As a result of this conference, the widely-representative Ad Hoc Committee on Copyright Law Revision was formed, and the NEA has been a member of this committee since its formation. (I should point out here that the Ad Hoc Committee is not an NEA committee but rather a committee of 35 educational organizations of which the NEA is one member.)
At its annual meeting in New York City on July 2, 1965, the NEA Representative Assembly reafirmed its previous stand on copyright law revision by adopting unanimously the following resolution :
“Maximum access to teaching materials is of vital concern to every teacher. The National Education Association recognizes that the present copyright law provides for two parallel sets of rights, the rights of those who create such materials to profit from their efforts through copyright, and the rights of education to use certain copyrighted materials in teaching. A revision of the existing law is now being considered. The National Education Association insists that the public interest requires that the copyright law provide special recognition for education which guarantees a legal right for teachers and educational institutions to make use of copyrighted materials, including a limited right to copy and record such materials for nonprofit educational purposes, as proposed by the Ad Hoc Committee (of educational institutions) on Copyright Law Revision."
The NEA feels that the Ad Hoc Committee's proposals are essential; and it strongly urges that the Congress not diminish its own great achievements in educational legislation by enacting a copyright bill which in its present form is not in harmony with the best interests of education and which would, in fact, inhibit the uses of materials which the Elementary and Secondary Education Act of 1965 provides. Today's teacher
The teacher in today's schools is different in many ways from the teacher in the schools which you and I attended. Earlier teachers tended to use the same textbook for each pupil; today's teacher uses many resources in his teaching. He has a variety of texts and supplementary materials, including trade and reference books, newspapers and magazines, educational motion pictures, film strips, overhead transparency projectors, opaque projectors, language laboratories, audio tape recorders, record players, slides, educational radio and television, teaching machines and programmed learning materials; and he uses these in orchestration to do specific jobs. The teacher selects resources to fit particular student needs so that certain tools are used with some students and other tools with other students.
Education is no longer the very simple process Mark Hopkins talked about, but an increasingly complex and intricate one. Even before Sputnik, burgeoning enrollments and an explosion in the content areas made it imperative that the teacher enlist the power tools of educational technology to help him do his job. Never has there been so much to teach to so many in so short a time. Never has there been such an urgent need for more effective quality instruction. Time is at a premium; ideas must be communicated with dispatch.
The teacher in today's schools must provide materials for large groups, for seminars and small groups, and for individualized learning. He needs to make transparency copies of examples and illustrations for many students to see at one time. Efficiency demands this. These illustrative materials are not available for use in projectors unless the teacher reproduces or transfers them to this form. In some cases the transparencies are discarded after use; in other instances they are kept for future classes. If the teacher is not allowed to do this, either he will have to pass the chart around the class or not use it at all.
Several teachers who are considered by supervisors as outstanding teachers have identified for us some of their practices in the use of copyrighted materials. Let me share some of these with you: 1. One English teacher writes :
“I have copied excerpts or paragraphs from novels and literature books for my entire class for the purpose of showing good examples for writings in the 'structured writing program.'"
2. Another English teacher writes :
"I dittoed some of T. S. Eliot's poems on a one-per-pupil basis for analysis in English class." 3. Another English teacher writes that she uses a piece of poetry as a model for writing in her classroom :
"If a student has his own copy to mark, I feel he learns much more than from merely reading a poem.” 4. A foreign language teacher writes :
“I tape portions of foreign language broadcasts on the radio for playing to my classes.” 5. A history teacher writes :
“In preparing tests in American history, I dittoed maps and made enough for the class." 6. A social studies teacher says:
“With the use of the opaque projector, I traced a map from a social studies textbook on a wall for use as a backdrop for an auditorium program." 7. A current events teacher says:
“I made a transparency of a chart from a textbook showing population growth.” 8. An economics teacher writes:
“To study the stock market, I used graphs and charts from the New York Times.” 9. A history teacher says:
“To tie current events to history, I use transparencies of newspaper articles.” 10. A foreign language teacher writes:
"I taped a portion of a modern French poem and asked students to repeat this and then tape it so they could themselves see the improvement of their
accent." 11. A social studies teacher writes:
"I prepared a ditto master of a chart from a United Nations pamphlet.” 12. A guidance counselor writes:
"I prepared a ditto master of a college application to show students how to fill it out."
B. Another guidance counselor says:
"I copied an article on study habits for distribution to 150 students.” 14. A shop teacher writes :
"I have made illustrations from mechanical drawing books for use on an overhead projector to clarify certain points." 15. A science teacher writes :
“I ditto charts and tables such as electro-magnetic spectrum, tables of valences and other values, gestation periods, etc.—the sort of things found
in handbooks of chemistry and physics or in college textbooks." 16. A science teacher writes:
“Charts for distribution of the stars in the heavens were taken from a text and reproduced by overhead projector.” 17. Another science teacher writes :
"I made a tape recording of an historic event in science from a telecast.” We will not argue about whether teachers have a right under law to do these things. The question is not what is or is not in the present law. The questions are instead: What are the present practices in good teaching? Does either the present law or the proposed bill fit the needs of teachers? What should teachers be doing with copyrighted materials for and with boys and girls to facilitate learning? Once we have decided what practices expedite and increase learning, then let's write a law to make these creative practices possible. Otherwise, teachers cannot teach as well as they know how! Now that the law is at long last being revised, we urge that it be written to fit the practice rather than cut good teaching practices back to conform to the law. The law should support good practice rather than restrict it.
If limited copying privileges are permitted under the proposed bill either in "fair use" or in some other place, then we ask that this be expressly written into the statutes so that teachers won't be doing things which they feel are unethical or in violation as they attempt conscientiously to do their job. Let's get rid of “under the table” uses and bring things out in the open. If teachers are writing you letters, it is not because they misunderstand the law but because they are concerned lest what they consider to be good practices will become illegal practices.