Could you more clearly define who is eligible for membership in these scholarly organizations, or the so-called "scholarly community" to which you refer? Mr. BURKHARDT. Yes, sir. It it not mentioned in the report, but I will be very glad to give you a general description. The eligibility varies with the societies. Two of them are honorary societies to which people are elected, and their membership is limited to people elected by the members. That is the American Philosophical Society and the American Academy of Arts & Sciences. Others are more conventional professional associations in which you have to have a Ph. D., be teaching, be a practicing member of the discipline, but almost all of them also permit membership by persons interested in the field. The overwhelming majority of our members, however, are members of faculties at universities in the humanities and social sciences, and are teachers and professors. Mr. TENZER. Teachers and instructors of education and engaged in the field? Mr. BURKHARDT. Yes, the large majority. Mr. TENZER. Again, I don't know whether your full statement contains anything specific on it, but we have had considerable testimony before this committee in support of the free use of copyrighted material for educational purposes. If your statement contains any reference to that, I would like you to point it out; otherwise, I would like to have your comments on that suggestion or proposal. Dr. BURKHARDT. By implication, I think some of the requests that have been made in the past seem to us to be altogether too wholesale a demand for free use. We do think that the authors, the people who have worked on and created works of art and scholarship, have rights that ought to be protected, and we think a reasonable compromise can be worked out to satisfy both the educational needs and the claims of the producer and creator. We think the fair-use doctrine and the other points discussed in our statement adequately cover the possibilities we need. Mr. TENZER. Thank you, Mr. Burkhardt. No further questions, Mr. Chairman. Mr. ST. ONGE. Mr. Hutchinson? Mr. HUTCHINSON. No questions, Mr. Chairman. Mr. ST. ONGE. Thank you very much, sir, for an excellent presentation of the viewpoint of the people you represent. Mr. BURKHARDT. Thank you. Mr. ST. ONGE. The next witness will be Dr. Fred S. Siebert, representing the American Council on Education. STATEMENT OF FRED S. SIEBERT, DEAN, COLLEGE OF COMMUNICATION ARTS, MICHIGAN STATE UNIVERSITY, EAST LANSING, MICH. Mr. SIEBERT. Mr. Chairman and members of the subcommittee, I am Fred S. Siebert, professor and dean of the College of Communication Arts at Michigan State University, East Lansing. I have been serving as copyright consultant to the American Council on Education, on whose behalf I appear before you. The membership of the American Council on Education consists of 1,113 colleges and universities, and 230 organizations in the field of higher education. You and the other members of the subcommittee are already familiar with the history and rationale of copyright legislation and with the extended efforts of the Copyright Office to produce a bill-H.R. 4347-which would be acceptable to a wide variety of conflicting interests. Education, and in particular higher education, has a deep and vital interest in copyright legislation. It is both a producer and a consumer of copyrighted materials. It is, therefore, interested in the utmost protection for the creators and proprietors of educational materials so as to stimulate the continued flow of such materials, and at the same time it is concerned that the educational process, including both teaching and various kinds of scholarly and scientific research, be able to utilize copyrighted materials with a minimum of time, effort, and expense. The widespread use of current materials for teaching and research purposes, and the ease of duplication through inexpensive and instantaneous duplication processes have raised problems for both the proprietors and the consumers of copyrighted materials. The history of copyright legislation will show that beginning with the first copyright statute enacted by the British Parliament in 1710, each successive act both in England and in America has enlarged the rights of the copyright proprietor. This present bill is no exception. Not only have the rights of proprietors of the traditional categories such as books, music, et cetera, been enlarged, but new categories have been added such as phonorecords, pantomimes, and choreographic works. Two additional candidates for copyright protection have not been included in H.R. 4347-performers' rights and rights in the products of digital computers-probably with good reason. Our civilization in the past has been based on what can be called the free flow of information. Fortunately, information cannot be copyrighted so that no one individual or organization can have a monopoly of a piece of it. Sometimes it is difficult to distinguish between information and its format as, for example, with a map. On the other hand, it is just and proper that the creator or innovator be able to receive some form of monetary return for his intellectual products. The problem is to strike a proper balance between the producer and the consumer of intellectual works. The American Council on Education is not opposed to the principle of royalty payments to copyright proprietors. Education probably contributes more royalties to copyright proprietors of literary works than any other identifiable group. However, the council believes that certain limited uses of copyrighted materials in teaching and research are proper without the inconvenience of clearance for these limited uses. Unfortunately, in its present form, H.R. 4347 has expanded the rights of the copyright proprietor beyond his rights in the present copyright law so as to limit educational uses. In other words, the existing law is, in a number of aspects, more favorable to education than the proposed law. Let me be specific: (1) The proposed extension of the term of protection results in a narrowing of the public domain and consequently the area from which education can utilize materials. Parenthetically, the first copyright act in 1710-a slow-moving period-limited protection to 14 years. The present bill extends this term-in a fast-moving period-to life plus 50 years. (2) The present bill eliminates the not-for-profit exemption for performances. This has particular significance for educational radio and television. (3) The present bill expands the protected categories to include phonorecords or recordings, thereby eliminating this category from general use. (4) Pantomimes and choreographic works, under the bill, are no longer in the public domain. I wish to point out that the American Council on Education is not opposed to these changes in the copyright law; in fact, it is in favor of them. I mention them only to show that education could be losing more than it is gaining under the proposed law. The American Council on Education recommends that the interests of teaching and research should be protected by the following changes in H.R. 4347: (1) A clarification of the statement on "fair use," section 107. (2) Some provision which would permit a limited amount of photocopying for instructional and research purposes. (3) An expanded right of transmission by educational radio and television of programs which are a part of the systematic instruction, including the right to make recordings of such programs. (4) The elimination or reduction of the minimum statutory damages for innocent infringers. Let me expand briefly on each of these recommendations. (1) The doctrine of "fair use": Section 107 as presently drafted neither adds to nor subtracts from the rights of education. It merely states that the judicial doctrine exists. The American Council on Education would prefer a more definite delineation of this concept, albeit in general terms. Suggested wording is appended to these remarks, appendix A. The council hopes that, in that portion of its report dealing with section 107, the subcommittee will refer to the factors covering fair use which were mentioned by the Register of Copyrights in his 1964 version of this bill, H.R. 11947, 88th Congress, section 6. (2) Photocopying: Although some might prefer to sweep this controversy under the rug, teachers and research workers need a more definite statement than fair use to guide them in this area. Book publishers have suggested the creation of some type of clearinghouse for educational uses, but no specific and workable plan has come to my attention. The problem separates itself in two parts: (a) copying of excerpts and (b) copying of whole works for educational purposes. Publishers and authors are justifiably afraid of any blanket permission for photocopying, but the need for language permitting a limited amount of copying is nevertheless present. Suggested language for a new section 111 is given in appendix B. Again, the council is not advocating indiscriminate use of photocopying, and the subcommittee's report and other legislative history should make it clear that copies of excerpts and single copies of whole works are not to be used to supplant instructional materials regularly available on the market. (3) Transmission and recording of educational radio and television programs, both closed circuit and broadcast: Section 109 of H.R. 4347 provides for a limited use of copyrighted material in this type of education. It limits the use to programs (a) directed primarily to classrooms and (b) which are a part of systematic instruction. The council recommends that the present wording of section 109 be expanded-see appendix C-to exempt also programs of systematic instruction where they are beamed to other audiences than those in a formal classroom. This would permit programs which are prepared for shut-ins, for adult home listening, and for other purposes that are purely educational. The council makes no request for a similar exemption for purely cultural programs transmitted by educational radio or television. In addition, it is recommended through addition of a new section 111-see appendix B-that provision be made for the recording of the above type of program for future use and rebroadcast. It would be prohibitive for a college or university to prepare a comprehensive closed circuit instructional program for transmission live and only once. Its only economy would be in the reuse of such programs from video tapes or kinescopes over a period of time. (4) Minimum statutory damages: I am quite sure that there is considerable technical infringement of copyright by teachers, professors, and research workers under the present law. As long as the law is indefinite, these types of infringements will continue to occur. To protect the unintentional infringer, the council recommends that the minimum statutory damages in the bill be either eliminated or further reduced, leaving the amount of damages to the discretion of the judge as it is in most other cases. Further, the American Council wishes to lend its support to two recommendations which either directly or indirectly affect education, but which are being primarily sponsored by other groups: 1. The council supports the recommendation for the complete elimination of the so-called manufacturing clause-sections 601, 602,. and 603. University presses as well as commercial publishers are opposed to the retention of these provisions which, if they belong anywhere, should be incorporated in a tariff act rather than a copyright act. These provisions place an undue burden on the American author as opposed to foreign authors writing in English. 2. The council also supports the position of the Deputy Archivist of the United States in his recommendation that since the proposed bill will include for the first time "unpublished manuscripts," provision be made for the duplication of such manuscripts for library and scholarly research purposes. In conclusion, I wish to say that as a representative of the American Council on Education, I have participated in most of the sessions of the ad hoc committee on copyright revision. The council has worked closely with this group and supports most of its recommendations, at least in principle, if not always in the exact wording proposed by the ad hoc committee. 1565 I shall be happy to attempt to answer any questions or to elaborate on any of the points brought up in this testimony. I appreciate this opportunity to appear before you. Mr. ST. ONGE. Thank you, Doctor. Your statement is an excellent one and we are very happy that you have suggested specific language where you have proposed changes. Are you a member of the ad hoc committee? Mr. SIEBERT. Yes. (Dean Siebert's prepared statement and the appendixes thereto follow :) STATEMENT OF FRED S. SIEBERT, DEAN, COLLEGE OF COMMUNICATION ARTS, MICHI- Mr. Chairman and members of the subcommittee, I am Fred S. Siebert, professor and dean of the College of Communication Arts at Michigan State University, East Lansing, Mich., and have been serving as copyright consultant to the American Council on Education on whose behalf I appear before you. The membership of the American Council on Education consists of 1,113 colleges and universities and 230 organizations in the field of higher education. You and the other members of the subcommittee are already familiar with the history and rationale of copyright legislation and with the extended efforts of the Copyright Office to produce a bill (H.R. 4347) which would be acceptable to a wide variety of conflicting interests. Education, and in particular higher education, has a deep and vital interest in copyright legislation. It is both a producer and a consumer of copyrighted materials. It is therefore interested in the utmost protection for the creators and proprietors of educational materials so as to stimulate the continued flow of such materials, and at the same time it is concerned that the educational process, including both teaching and various kinds of scholarly and scientific, research, be able to utilize copyrighted materials with a minimum of time, effort, and expense. The widespread use of current materials for teaching and research purposes and the ease of duplication through inexpensive and instantaneous duplication processes have raised problems for both the proprietors and the consumers of copyrighted materials. The history of copyright legislation will show that beginning with the first copyright statute enacted by the British Parliament in 1710 each successive act, both in England and in America, has enlarged the rights of the copyright proprietor. This present bill is no exception. Not only have the rights of proprietors of the traditional categories such as books, music, etc., been enlarged but new categories have been added such as phonorecords, pantomimes, and choreographic works. Two additional candidates for copyright protection have not been included in H.R. 4347-performers' rights and rights in the products of digital computers-probably with good reason. Our civilization in the past has been based on what can be called the free flow of information. Fortunately, information cannot be copyrighted so that no one individual or organization can have a monopoly of a piece of it. Sometimes it is difficult to distinguish between information and its format as, for example, with a map. On the other hand it is just and proper that the creator or innovator be able to receive some form of monetary return for his intellectual products. The problem is to strike a proper balance between the producer and the consumer of intellectual works. The American Council on Education is not opposed to the principle of royalty payments to copyright proprietors. Education probably contributes more royalties to copyright proprietors of literary works than any other identifiable group. However, the council believes that certain limited uses of copyrighted materials in teaching and research are proper without the inconvenience of clearance for these limited uses. Unfortunately, in its present form, H.R. 4347 has expanded the rights of the copyright proprietor beyond his rights in the present copyright law so as to |