with him but I shall not abuse this committee's scope of invitation to discuss a specific subject, unless you tempt me to.

Five preliminary observations may be in order as to Dr. Gerletti's

map.

First, the facts. The map was on the cover page, page 1, of the Sunday supplement which contained 48 pages. Dr. Gerletti was advised that the San Francisco Chronicle, the publisher, regarded this map as copyrighted. I personally telephoned the editor of this Sunday supplement on August 10. He told me, and I quote, "Normally we do copyright every issue." However in candor to this committee I have not been able to find any copyright notice on the work itself. Therefore, this particular map may be in the public domain.

But as Dr. Wigren previously told this committee on behalf of the ad hoc committee this very situation

reveals the difficulty that teachers are experiencing in knowing when and under what conditions a transparency of a map from a newspaper or a reproduction might be used in the classroom. * * *

The same confusion pointed out in the case of the periodicals exists even to a greater extent in the case of newspapers where one paper is copyrighted and another is not, where one part (the Sunday magazine section) *** is copyrighted and the rest of the paper is not. How do teachers know this?

If the committee is interested I have some other examples of newspapers to show this difficulty.

Second preliminary observation, the assumptions: In my further comments I shall assume that the map is copyrighted and shall deal with two assumptions as to the nature of that copyright.

The first assumption is that the map itself is copyrighted, and therefore that it represents an entire copyrighted work.

Assumption two is that the map is not separately copyrighted but that it appears in a supplement which is copyrighted. In this second assumption the map would be an excerpt and not the whole work.

Now these different assumptions are important not only in terms of "fair use" but also in terms of the ad hoc committee's proposal. You will recall that the ad hoc committee proposed a new section 111 which allowed only a single copy, only one copy, of an entire work. So much of the argument which has been presented against the ad hoc committee's proposal, including what you heard just prior to my testimony, seems to ignore this fact and to forget the fact that the ad hoc committee's proposal deals only with copies for nonprofit educational use. The third preliminary observation deals with the scope of my comments. Pursuant to your chairman's request I shall discuss each of these 11 examples in terms of 4 alternatives: the present law, the present educational practice, H.R. 4347, and the ad hoc committee's proposal.

The fourth observation involves the limitations of my comments. Any comment on the legal status of these 11 simple teaching devices is an exercise in crystal-ball gazing. As the Copyright Office's General Counsel wrote, "the courts have not ruled specifically on cases involving the reproduction of copies for purposes of research or teaching."

What may develop or be argued in a court case against a teacher is one thing. What can be said with certainty as to a guide for teachers in statutory interpretation is quite another. The position here taken is the latter, without prejudice to the former.

Lastly, the procedure in these comments. I have taken the liberty of grouping Dr. Gerletti's 11 examples into 6 groups on the basis of the legal issues involved. I have appended to my statement a chart which looks like this, Mr. Chairman, a chart which attempts to summarize my comments on each of the 11 examples. I regret to say that a chart cannot report all the nuances covered in my statement but nevertheless I hope it may be helpful to you.

As to the 11 examples: in group I of the six groups I have taken the liberty of placing examples Nos. 1 and 2. In example No. 1, Dr. Gerletti said he just posted the map on the bulletin board. In example No. 2 he used an opaque projector. This is a projector where you put the map into the machine; you don't make a copy but it projects the map on the wall without a permanent remaining tangible copy.

If you take this map out of the machine the copy disappears. Therefore, what we are talking about here really deals with no copies in the sense of the copyright law. We are only talking about exhibition of the original document either directly or indirectly through the projector.

Under either assumption, whether it is a whole work or an excerpt, and under any of the four alternatives which the chairman has put to me, examples 1 and 2 are legal uses. Therefore, you will note, Mr. Chairman and members of the committee, across the top line of the chart, on examples 1 and 2 you will find the word "yes" all the way across, "yes" meaning legal.

Now permit me, Mr. Chairman, to turn to group No. II which consists of examples 3, 4, and 5 on your chart. Example 3 consists of an instant copy of the original map, on a transparency. This is for showing in an overhead projector. This is different from an opaque projector discussed on examples Nos. 1 and 2.

For the overhead projector you have to make an actual copy. Example 4 is the same as the third except that they have colored the transparency copy. They have prettied it up. Example 5 is simply a slide for a slide projector.

Now in this group we are talking about actual copies in one form or another, tangible permanent copies.

Suppose we take assumption 1, that this map is the entire copyrighted work. First under the present law the answer according to the Register, the publishers and the authors, is categorically "No." In my judgment there is a possible "Yes." Now if you will permit me, under the present law I would like to consider the question separately under "fair use" and "for profit." We are still talking about the present law.

Under "fair use," I respectfully suggest that the answer is "No," it is not legal. In justification of this answer I cite the Register's supplemental report (p. 28) which says fair use does not cover copying an entire work. I cite the Deputy Register's testimony before the committee here to the effect that a full and complete copy of an entire copyrighted work is not permissible under the law. Mr. Karp's statement before the Register also said that "copying of an entire work is an infringement in any case." Today he testified that even if a teacher or pupil made a copy by hand it is not valid under "fair use." The American Book Publishers' statement

Mr. TENZER. I did not understand him to say that.

Mr. POFF. Are you quite sure he said that if a copy were made by pencil it would not be fair use? I do not mean to challenge that. Perhaps I misunderstood him, but I thought the point he made verbally was

Mr. ROSENFIELD. May I turn to page 12 of Mr. Karp's statement. I call your attention to the second sentence in the first full paragraph: No case holds that copying a copyrighted work is fair use because the copying is done by hand. I do not think it is.

I am reading from Mr. Karp's own statement. His footnote makes this clear:

The type of device used does not justify the making of unauthorized copies; infringement is infringement whether it is perpetrated by a letter press, an offset press, a mimeograph machine, a multigraph machine or other means.

I am only citing his statement.

Mr. TENZER. In other words, you read the words "or other means" to include pencil?

Mr. ROSENFIELD. He says:

No case holds that copying a copyrighted work is fair use because the copying is done by hand. I do not think it is.

Mr. Chairman, I do not mean to characterize Mr. Karp's comments. He is in the room, why don't we ask him?

Mr. TENZER. The statement "No case holds"-that is for very obvious reasons.

Mr. ROSENFIELD. Mr. Karp is here. Why don't we ask him? If I have misinterpreted him I apologize.

Mr. KASTENMEIER. Mr. Karp, do you take exception to the characterization of your remarks?

Mr. KARP. Yes, Mr. Chairman, only in this respect. I said I don't think it is followed but I don't think it makes a bit of difference whether it is or isn't-not in quite those words.

I said there is such a vast difference between copying by pencil and the other means that it is not even worth debating whether my technical observations which other copyright experts have made. I merely borrowed it.

Mr. KASTEN MEIER. The point is, Mr. Karp, you do not feel copying an entire work by hand is not an infringement. You feel it is an infringement.

Mr. KARP. Let me put it this way, Mr. Chairman. If in a monastery a hundred monks began to reproduce Alice in Wonderland by hand and they made a thousand copies of it, it would be an infringement.

Mr. KASTEN MEIER. And one copy would be.

Mr. KARP. If they made one copy it would be an infringement. The point is that as a practical matter that is not our problem. Our problem is what happens when you copy by these other devices which are really used to copy entire works by hand, not pencil which is seldom used and which no one has ever complained about and no one ever will.

Mr. KASTENMEIER. Mr. Rosenfield, you may proceed.

Mr. ROSENFIELD. Let me move from "fair use" to "for profit". Under the "for profit" provision of the present act, at best this is an uncertain proposition. I must honestly say to this committee that virtually the whole copyright bar seems to answer "No" but there is respectable authority to the contrary which I have cited to you before in my June statement, and in my written statement now, which I shall not repeat. The important thing is that in any event judicial holdings on this point are so scarce as to give no basis for reasonable prediction as to what is legal under the "for profit" provision.

What about examples 3, 4, and 5-actual copies which are used on projection machines of different kinds-under existing educational practice? These are teaching methods widely used, in good faith, by teachers at all levels of education. That is what Dr. Gerletti testified to. Under the proposed bill H.R. 4347, this would not be legal. Under the ad hoc committee's proposal it would be legal under the proposed new section 111. So much for assumption 1 that this is an entire work. Now let us take assumption 2 under the present law, that the map is an excerpt. Again under the present law at best it is uncertain under the present law. Again, let me take “fair use" separately. Whether this examples 3, 4, or 5-is, if an excerpt, usable legally is uncertain, in part because of the map's featured position on the cover page.

The fact that it is the major feature may make a tremendous difference. My principal statement to this committee the last time I testified indicates the uncertainty and unpredictability of determinations of "fair use." I won't repeat what I there said although I have covered it in my prepared statement at the bottom of pages 6 and 7. Add to that testimony what Mrs. Linden, a distinguished authority in the field, said on behalf of the American Textbook Publishers Institute:

The doctrine of fair use was never intended to afford certainty of the law. Only yesterday another distinguished copyright attorney, John Schulman, testified that:

the distinction between fair use and copyright infringement cannot be determined by resort to any fixed rules or criteria.

A half hour ago Mr. Karp admitted that:

No one has come forward with detailed and definitive guidelines.

Various Federal agencies have submitted reports or testimony on this bill, which also substantiate the folly of attempting to rely on "fair use" in terms of the predictable right of teachers to reproduce copyrighted material.

The Federal Communications Commission submitted a report which states in part as follows:

we are also mindful that "fair use" is both a limited and an indefinite doctrine *** there is no precise way of knowing how much of a copyrighted work can be used in a given situation under the doctrine of fair use. The prospective user would apparently need expert advice to judge each case individually under the provisions set forth in section 107, and, even so, there would be the risk of having to defend an infringement suit *** we are therefore of the opinion that the doctrine of "fair use" would not in and of itself, be an adequate answer for educational broadcasting purposes.

The report of the Department of Health, Education, and Welfare says in part:

1. With no reported judicial decisions on the subject, it would be useful to libraries, authors, publishers, scientists, and researchers to have the permissible limits of photocopying spelled out in the statute.

This is a magnificent concept, gentlemen-"permissible limits of photocopying spelled out in the statute."

2. The failure of a comprehensive revision of the copyright law to include a provision on photocopying might be deemed to indicate an intent by Congress not to authorize photocopying by libraries as a limitation on the exclusive rights of a copyright holder.

The Deputy Archivist of the United States testified before this committee, saying among other things:

The bill would virtually preclude the microcopying of collections of papers by a historical society or other custodian unless the documents are at least 100 years old. It is not even clear whether * ** a custodian could microfilm or otherwise copy a collection of papers *** when the purpose is to provide an insurance copy in case the originals are lost ***. The practical effect of H.R. 4347 in limiting the microcopying of collections to those over 100 years old will in our opinion seriously impede the use of documentary materials for research purposes * * *.

These are Government agencies I am quoting who have written to this committee on this very subject. Gentlemen, all of this seems to justify what a distinguished copyright lawyer, Mr. Dubin, who disagrees with the position of the ad hoc committee, said before the Register's panel on the "fair use" section.

just mentioning the term "fair use" as a recognized principle leaves the whole question up in the air. I for one would hesitate to advise a client as to what he could or could not do * * *. I think you are going to run into a great mass of confusion.

I agree with Mr. Dubin on this if not on other points. I respectfully suggest that a copyright law based principally on "fair use" might be a lawyer's paradise in lawsuits but a snare and a delusion to teachers.

Mr. Chairman, under the "for profit" provision on examples 3, 4, and 5 under the present law it is uncertain at best and I shall not expatiate on what I have written in my prepared statement. May I turn now to group III which consists of examples 6 and 7?

Example 6 consists of copies on what is called an instant fluid duplicator; according to Dr. Gerletti's example, 30 copies were made for students in 1 class. Example No. 7 consists of offset plate, 100 copies for students in 3 classes of the same school. These examples present the problem of multiple copies for student use in classroom work with the teacher. In other words, they are going to be tracing or putting rivers on the map, uniting the names of rivers or other things on it, the customary educational use.

If we make the first assumption that this is an entire work, under the present law the answer is clearly "No." Under educational practice, yes, it is being done in good faith within the classroom.

Under H.R. 4347, no, it is not legal. Let me point out that under the ad hoc committee proposal if this is the whole work we do not ask for it because section 111(a) allows only one copy of an entire work. So,

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