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defined as and remember the broad words of "to perform and exhibit" in section 106— to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

Obviously, the transmission, the communication from one location to another of images and sounds clearly includes information storage and retrieval.

Therefore, you are asked to grant exemptions to the kind of classroom uses of computers that the NEA describes in their monograph, and that the Wall Street Journal assures us is economically realistic.

The ad hoc committee of the NEA proposed a section i11, and it seeks to broaden even further these exemptions.

Their exemptions would include:

A reasonable number of copies or phonorecords of excerpts or quotations from that work, but only where the excerpts or quotations are “not substantial in length in proportion to their source."

When added to the performing, exhibiting, and transmitting the work by information storage and retrieval already exempted in section 109, the result would be that copyrighted works could be used in all phases of information storage and retrieval and the copyright owner completely bypassed if such uses were for educational purposes.

You have heard pleas from teachers and their representatives that their teaching activities are being hampered by uncertainty as to what they may and may not do under the doctrine of fair use. Yet their proposed section ill uses such uncertain terms as "excerpts,” "quotations,” and “reasonable number of copies" as exempt items.

What is an “excerpt”? Is it today's lesson? What is a "quotation"? It is any portion of a work that one quotes? What is a “reasonable number of copies"? Is it any number reasonably required by the number of students in a classroom?

It is submitted that the proposed section 111 in no way meets the teachers request for certainty in the law. Neither does the section 107, the fair use provision of H.R. 4347, meet their request for certainty.

The doctrine of fair use was never intended to afford certainty of the law. On the contrary, the whole purpose and philosophy behind a doctrine such as fair use is to give elasticity to what otherwise might be rigid statutory language.

For example, the copyright law gives exclusive copying rights to the author. Taken literally, this would mean that even in literary criticism, not a phrase of an author's writing could be quoted for in. clusion in a literary critique.

In order to avoid such and similar literal interpretations of the copyright law, a doctrine developed which essentially is one of commonsense and judicial judgment. It was not, and I submit, it is not intended as a broad umbrella under which a technological revolution can be sheltered.

The best analogy that comes to mind is the concept of "public welfare” which we readily acknowledge as an overriding consideration. This concept has been available to our courts since the adoption of our Constitution.

No one, to my knowledge, has ever seriously urged that the concept of “public welfare” should be defined in a statute so that there be certainty as to what it means and encompasses. Any statutory definition, qualitative or quantitative, of what constitutes public welfare” would result in the destruction of the very flexibility which it has preserved in our judicial and legislative systems.

We submit that any definition of what constitutes fair use, qualitatively or quantitatively, would destroy the flexibility and the public policy aspects of the doctrine of fair use itself.

Because it is the essence of the doctrine of fair use to provide commonsense flexibility in the application of a general rule to individual cases, we believe that the usefulness of the doctrine would be impaired or even destroyed by trying to make the doctrine itself into an inflexible general rule.

Certainly, we should not, under the guise of redefining fair use, attempt to make a major change in the underlying law itself.

The law should be stated in its own terms; fair use should remain as it is: a protection against the unreasonable or arbitrary or unfair application of the letter of the statute in specific cases.

As such, it is highly relevant to the practical needs of educators, but it is not a relevant device for amending the law.

Neither are the teacher's pleas for certainty as to what they may or may not do with copying devices presently on the market met by their proposed section 111.

Despite some affirmative responses to your inquiries as to whether education should have unpaid-for access and use of copyrighted works, it is not really likely that the teachers of this Nation really wish to destroy private authorship and private commercial educational publishing:

It is more likely that the syllogism of their position is as follows:

1. The teachers are hard pressed, hard working, and wish to make as much instructional material available to their students as possible.

2. To do so, they would like to make multiple copies of whatever they deem to be "excerpts” or “quotations” for use by their students, and one full copy for their own convenience.

3. They wish to have this right to reproduce copyrighted works without unnecessary red-tape.

4. The teachers know that the textbook budget in their respective schools is exteremely low. In fact, on a national average, the textbook budget is only between 1 and 112 percent of the total school budget.

5. Photocopying machines and paper are not part of the school textbook budget but come under the broad umbrella of "supplies. Therefore, to protect their textbook budget, they are seeking to obtain additional instructional material in other ways.

Our response to their syllogism is agreement with the principle of immediate access for teachers to copyrighted material for photocopy, overhead transparencies, or use in computers.

However, we believe that this use should be paid for. We believe that those who made the budgets for our school systems will provide the necessary funds.

Now as to our suggestions for a blanket licensing system. We are prepared to discuss and implement our proposed licensing system with the educators, with the school superintendents, and with all with whom we deal in that area. I should add that normally the teachers do not in fact pay for the textbooks. These are negotiated for and purchased by the school systems. It should not be all that difficult to negotiate blanket licensing systems with the appropriate parties.

We have followed your suggestions, Mr. Tenzer, made May 26, and therefore suggest specific language changes to take care of what we feel is inappropriate language, and inappropriate exemptions in proposed H.R. 4347. These are set forth in my full statement.

Mr. KASTENMEIER. Thank you, Mrs. Linden, for an excellent analysis, together with suggestions, specific suggestions both as to language and as to a process, dealing with this problem.

You perhaps would like to make your statement, at least that part of your statement which was not given orally, in which you describe the licensing arrangement, a part of the record.

Mrs. LINDEN. Mr. Kastenmeier, my statement does contain, I believe, more appropriate language, and therefore, with your permission, I would prefer if the entire statement was considered formally part of the record.

Mr. KASTENMEIER. Without objection, it will be received and made part of the record.

(Statement referred to follows:)

STATEMENT OF BELLA L. LINDEN ON H.R. 4347, SUBMITTED IN BEHALF OF THE

AMERICAN TEXTBOOK PUBLISHERS INSTITUTE Mr. Chairman, and members of the committee, I am a member of the firm of Linden & Deutsch, and am appearing today as copyright counsel of the American Textbook Publishers Institute.

I will not repeat the testimony of Senator Kenneth Keating and Mr. Lee Deighton offered on May 26. My statement today will be devoted to the impact of information storage and retrieval and new photocopying devices upon book publishing and the implications of this impact upon copyright legislation.

With your permission, I would like first to present the basic premise of my statement: a technological revolution in the world of authorship and book publishing is not imminent, is not prospective, but has already occurred. The computer age is here. The mechanisms of information storage and retrieval are in use. The devices of photoduplication are commonplace, economically feasible, convenient, and in constant use.

May I recall to you the words of the Register of Copyrights in the opening pages of his report to this committee, dated May 1965. He said:

"In recent years we have seen, among a multitude of technological developments, the introduction of communications satellites, the tremendous growth in information storage and retrieval devices, changing patterns in broadcasting including the emergence of educational television and community antenna systems, radical changes in teaching methods by the use of new audiovisual devices, the proliferation of copying machines, and remarkable developments in the use of video tape. * ** I realize, more clearly now than I did in 1961, that the revolution in communications has brought with it a serious challenge to the author's copyright."

Those of us who have regularly attended these hearings or have read all the testimony have responded with the deepest respect to your rapid grasp of a highly technical bill. We have the fullest confidence that you appreciate the far-reaching prospective nature of the legislation before you. It is not simply a matter of long overdue revision of a 1909 statute. You are in fact confronted with decisions that may determine whether the intellectual gross product of the United States will continue to be the output of private authorship and private, competitive publishing.

May I request that an address which I gave in a course of study entitled “Law and Computers in the Mid-Sixties,” cosponsored by the Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association and the Association of the Bar of the City of New York be accepted into the record since it compares the present copyright law with the proposed statute as they affect computer usage of copyrighted material.

Information storage and retrieval began as a response to the flood of data and reports emerging from the enormously expanded research efforts of the past two decades. Currently, it is being applied not only to research but to education as well. Its basic instrument is the computer which stores information on magnetic tape, but information systems are based also on microfilm and punchcards of several kinds.

At Bethesda, Md., stands the National Library of Medicine. It houses a sophisticated computer system and a highly trained staff who reads and indexes all of the articles appearing in current medical journals and books. The computer collates and prints out the Index Medicus, which is published and distributed on a regular schedule. This information system, known as "Medlars", is primarily devoted to indexing.

A related but significantly different information retrieval system was announced in the New York Times on March 4, 1965. I quote:

"The medical libraries of three major eastern universities will be tied to gether in a network of computers and telephone lines to give scholars virtually instant access to their pooled resources

*The libraries, at Harvard, Columbia, and Yale Universities, are ranked among the largest and best in the world. They are in the primary stages of electronic integration-and five other libraries have been invited to join the system.

“Although there is much duplication, the three libraries will then contain 1,025,000 items. These can be searched by computers in seconds *

“The system under development bere, with the help of a grant by the National Science Foundation will be equally adaptable to groups of law, business, or general libraries * * *

"When telecommunication and photographic reproducing devices are added to the network system, it will be possible to eliminate some duplication of material among libraries. Pages from a book in New York could be flashed to a user in another city and even reproduced for him in take home form."

Later in the same news item. Thomas P. Fleming, head of the Columbia University Medical Library, states:

"With the computer you can enter many, many more subject headings. These go in compact, miniaturized form on magnetic tape and are stored on disks. Just as in a jukebox when a person pushes the button, the arm finds what he wants, so the searching arm goes along with the disks and picks out what the researcher wants." [Emphasis added to call attention to what is clearly analogous—the jukebox exemption of the current law.]

The difference between "Medlars" and the medical library network is clear. At present, “Medlars” is devoted primarily to the indexing of journal articles. The new network is designed to retrieve and print out information from books.

"Current Research and Development in Scientific Documentation," volume No. 13, dated November 1964, issued by the National Science Foundation updates similar volumes previously published. In close to 500 pages, the current status of 150 information storage and retrieval systems is described. These include the activities not only of Government-sponsored research projects of universities, but of many of our major corporations such as Radio Corp. of America, Philco Corp., Motorola, Sperry Rand, IBM, ITEK, Bell Telephone Laboratories, Burroughs, Magnavox, and Chrysler Corp.

May I call your attention to page 243 of this publication which reports on the Recordak Corp., a subsidiary of the Eastman Kodak Co. The Recordak Lode Star Reader-Printer described in this report is in operation here in Washington. It makes possible automatic location and reproduction either on a screen or on paper the pages of a book or journal located in a central storage miles away. I have seen this system in operation. The access time for locating a document out of many thousands and flashing it on the screen is approxi. mately 7 seconds. Print-out appeared to me to be as rapid.

It should be noted that photoduplication, or print-out, as it is called, is part of the service rendered by information retrieval systems. At previous sessions of this committee you have heard requests for free (unpaid for) photocopying of copyrighted materials. I respectfully urge that you relate these requests to the mechanisms and practices of information retrieval.

How do information retrieval systems use copyrighted materials? The new science of documentation has already produced a highly technical vocabulary,

but the meanings of the words are fairly clear. The steps in the process of information handling are as follows:

Input: Text and data are fed into a computer. The input may be both indexes and documents. The documents may be tables of data, journal articles, whole books, or graphic material such as maps, charts, and infrared spectra.

Storage: The material fed into the machine is recorded on microfilm or tape at fixed "addresses."

Retrieval : By reference to an index of these locations, or addresses, the machine scans and searches the content of its memory, locating the information required.

Output: In response to request for specific information, the stored index entries, bibliography, or the documents themselves may be flashed on a screen or printed out as hard copy. Appropriate excerpts, paragraphs, or whole pages are made available either in microfilm or in normal-sized

printed form. In short, a copy is made. Let us consider these steps in terms of copyright law. Some of the techniques of input involve the translation of the content of a copyrighted work onto punchcards by means of a highly specialized electric typewriter. The copyrighted work is then transferred from the cards into electrical impulses which are stored on a magnetic tape. Thus the copyrighted work can in whole or in part, in its original form or in a derivative form such as an abstract, digest, or condensation, be stored in a memory core of the computer,

Computer programing, for which copyright protection is urged, is the organization of data and copyrighted works and the creation of instructions so that these works would be available for retrieval. What the computer programer is really doing is creating a new kind of anthology or compilation of copyrighted works that is published in a computer system rather than in the conventional bound book form. The storing of the anthology, compilation, or selections in the computer is merely a newer and more sophisticated use of the publishing or copying right which clearly inures to the copyright owner.

There is a question as to whether the scanning of copyrighted works in the "memory core," for the purpose of selecting appropriate sections, is subject to the exclusive rights of the copyright proprietor. This question must receive serious consideration,

Output or transmitting the copyrighted work in response to an inquiry for information may take many forms. It may consist of flashing a copy of the selections on a screen or a duplicate of the excerpts or pages may be printed out. In the area of text or reference books, the response rarely requires more than an excerpt, a paragraph or some other relatively small portion of the whole work. All the user requires is this small portion flashed on the screen or printed out as photocopy in response to pressing a button on the “jukebox" as Dr. Fleming, of Columbia University, calls the computer system. Thus, computer output is another phase of information storage and retrieval publishing.

If one supposes that information storage and retrieval systems are not now and are not likely to become commonplace during our lifetime, then we may leave the resolution of the rights of a copyright proprietor in respect of computer usage as a legacy to future generations. But in doing so, would we not be creating another jukebox exemption, this time one of even greater consequences to the world of private authorship and private commercial publishing?

The hard, inexorable facts are, that information storage and retrieval systems do exist and are increasing numerically as well as in the scope of their uses.

The Wall Street Journal dated May 3, 1965, carried a lead article entitled "Selling to Schools : Big Educational Outlays, New Teaching Methods Create A Vast Market. IBM Develops Computerized Learning Systems: Steel, Carpet Firms Also Score."

I quote:

"As school enrollments swell, such big and technically advanced companies as laternational Business Machines Corp., General Telephone & Electronics Corp., and Minnesota Mining & Manufacturing Co. are expanding efforts to develop and market school products. For some, educational research offers a way to keep laboratories busy when defense contracts are hard to come by * * *

"Many of these companies have been attracted by a revolution in teaching techniques and their selling zeal and technical skill are now hastening this. The "knowledge explosion" and a shortage of qualified teachers are driving more and more schools to new instruction methods relying heavily on such electronic

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