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a matter of principle, as a matter of public policy, as well as a matter of selfinterest. There are among our membership authors whose works command high prices in the commercial book market; many of our authors write for technical journals without compensation.
Our main concern is to stress before this Committee the soundness of the traditional, judicially constructed doctrine of fair use and to illustrate its instrumental significance in the process of higher education.
As has been recognized throughout this extended process of revising the Copyright Law, a statutory recognition of the doctrine of fair use is preferable to continued reliance upon case law development. As the Senate Report has recently put it, “... there are few if any judicial guidelines. . . ." bearing directly on the usage of teachers and libraries in the educational and research context which is our concern. See, S. Rept. No. 93–983, 93rd Cong., 2d Sess. 116 (1914). Given the paucity of decided cases in this area, it is necessary to recognize the difficulty of leaving the resolution of this important problem solely to the limited framework of existing decisions. We urge, therefore, the enactment of $ 107, as it now appears in H. 2223, 94th Cong., 1st Sess., as supported by adequate legislative history.
The recent decision of the Court of Claims in Williams & Wilkins Co. v. Irit. 1 States, 487 F. 2d 1345 (Ct. Cl. 1973), aff'd by an equally divided court, 43 L'.S.L.W. 4314 (1975), underscores the significance of the fair use doctrine to the educational and research community. By its affirmance of this Court of Claims opinion, the Supreme Court has left the resolution of this problem to the Congress.
In seeking to have codified the traditional fair use doctrines, adequately supported by legislative history, we are moved by the primary importance of the availability of copyrighted material to our teaching and research duties. First and most basic is the fact that the higher education community on whose behalf we appear today, consists of those institutions in our society charged with the ultimate task of transmitting and advancing knowledge. I emphasize both re search and teaching; each function is indispensable to and supportive of the other. Effective instruction of the next generation of citizens and professionals, requires that the current generation of teachers be involved as researchers on the frontiers of their own individual subject areas. If the individual teacher is to discharge this fundamental research obligation, that teacher must be kept abreast of the current developments within a given discipline. This necessarily requires the teacher to have available the work product of allied researchers.
The exponential rate of growth of knowledge expressed in tangible form during this generation, requires that this information be available to the teacher and the scholar. As the volume of published material has risen, the library budgets of colleges and universities are increasingly pressed. The typical library of a law school must expend a substantial portion of its annual budget merely to keep current its holdings of state and federal reports as well as statutes, treatisex, and looseleaf services.
In its support of higher education, outside its concern with Copyright Law, the Congress has recognized this basic financial constraint. Thus, its 1972 amend. ments to the Higher Education Act of 1965 (and related acts), Congress subported networks for the shared use of library materials (among other facilitis). Section 1033(a) of Title 20 U.S.C.A. (1974) provides as follows:
The Commissioner shall carry out a program of encouraging institutions of higher education (including law and other graduate professional schools) to share, to the optimal extent through cooperative arrangements, their technical and other ... resources. ...
Subsection (b) designates such authorized projects of shared usages as follows:
(1) (A) joint use of facilities such as .. libraries, including law li. braries . . . including joint use of necessary books. . .
Against the background of this clear, prior expression favoring shared ose, we express our concern that $ 108(g) of H.R. 2223 is inconsistent with, and bostile to, this stated desire of Congress.
We therefore urge this Committee to delete $ 108 (g) (1) and (2) from the present measure because we believe it improperly limits and is inconsistent with, the expression of the fair use doctrine contained in § 107 and the legislative history thereto. It is our recommendation that a period be placed after the phrase, "... separate occasions” in the first sentence of $ 108 (8) and that all language subsequent thereto be deleted.
We oppose the enactment of $ 108 (g) (1) as presently proposed, because it introduces an inarticulate and troublesome concept of "concerted reproduction"; we consider the reference to "systematic reproduction" in $ 108 (8) (2) to be equally vague and troublesome.
It is significant that the Senate Report No. 93-983, 93d Cong., 2d Sess. 122 (1974), states of the identical text of $ 108 (g) which appeared in S. 1361 :
However, neither a statute nor legislative history can specify precisely which library photocopying practices constitute the making of "single copies" as distinguished from "systematic reproduction.” (At p. 122.)
We urge that the legislative history to 8 108 reflect this concern with unduly limiting & 107. We object to the examples of permissible shared library usage under $ 108 offered in the above Senate Report, in that they are misleading. To the extent that they would guide a court in the interpretation of the phrase "systematic reproduction," this statement of legislative intent does so without any retlection of the interest of the teacher and scholar to have basic material made available. Moreover, the present expression of legislative purpose underisang $ 108 makes no mention of the considerations of the Higher Education Act's stated interest in shared usage.
It would be our preference that the text of the present $ 108 he modified as we have indicated above and that the legislative history of this provision reflect the dual concerns of the teacher and scholar's need for the availability of published materials as well as the Education Act's directive for shared usage. It seems to us that the examples in the present Senate Report give little if any weight to these two basic considerations.
From the standpoint of the teacher and the researcher, the doctrine of fair use must be enacted free of effective limitations on library practices. Availability of library materials remains basic both to the teaching and research functions of the higher education community. A teacher in a small private or public university located in the Southeastern part of the United States, may find that a work essential to a current research interest is to be found only at a university at some distance to the Northeast. That teacher may need to obtain only one chapter of a book or a few pages of either a book or a periodical. Having such material available is essential to the scholar. Inter-library lending has become a means of making this information available. A definition of fair use which left uncertain the availability of such material, even if photocopied, would frustrate the purpuses underlying both the fair use doctrine and the fundamental commitment to provide and advance knowledge by the university community.
Accordingly we would request that the legislative history of $ 108 (a) through (1) clearly state the importance of the availability of library and archival material to the teacher and the scholar.
Turning to the teaching function, the need for reasonable availability of copy. righted material for classroom use is inextricably linked to the needs of the scholar. Often a current news item or periodical article will bear directly and immediately upon a topic scheduled for classroom discussion the next day. The quality of teaching is greatly improved by making available to the students the laiest commentary about it while they are studying the topic. Denial of availability of such copyrighted material would not serve the interest of copyrigut proprietors. Students in the classroomn situation are not potential subscribers to the Bureau of National Affairs, Antitrust & Trade Regulation Report, for example, or to the Prentice-Hall multi-volume Federal Income Tax Service, during their tenure as students. Indeed, it is likely that having the benefit of a brief extract froin one of these services, complete with its full title, will advertise and acquaint the student with the utility of these loose-leaf services.
To deny the classroom teacher the availability of such material will mean only that the students will be without such current and timely material. Denial of the use of this material will mean simply that the educational process will be less well served and the copyright proprietor will be without even the benefit of having the availability of this material brought to the attention of students.
We reiterate that we do not seek the right to engage in inultiple copying out of the context of research and teaching. We seek only the right of the scholar and teacher to have available, subject to the limitations of the statutory fair use doctrine, such copyrighted material as is germane to research and writing, and we seek this availability in the public interest in the promotion and dissemination of education and scholarly pursuits. In taking this position, we recognize that the effect on the potential market for the copyrighted material, is an appropriate factor to be considered in the determination of fair use. We also recognize that in the overwhelming proportion of cases, any possible adverse effect on the economic interest of a proprietor will be nil or virtually so. On balance, such use of excerpts is likely to stimulate the sales of the material in the long run.
We should like to draw the Committee's attention to the forthcoming studies undertaken through the Copyright Office and the National Commission on Libraries and Information Science, of the library usage of copyrighted materials both in the inter-library loan context as well as in meeting requests of scholarly and research users. The feasibi of designing a "payments mechanism" for such library uses is one aspect of this study.
It is our concern that a determination of the feasibility of some means of com. pensation may serve to vacate the doctrine of fair use. We believe such a conclusion would do great harm to the public interest in the promotion of eduation and scholarly activities. Moreover, such an outcome would inflict irreparable harm on the educational community without conferring a derivative benefit on copyright proprietors.
We thus advocate that the House Report which accompanies this measure, be drafted to include an express reference to the effect that the doctrine of fair use would be applicable to copyrighted materials which might subsequently be designated as compensable, if photocopied for other uses. By clearly establishing that teaching and research uses are significant to the doctrine of fair use, subee quent uncertainty as to the treatment of library materials which might require compensation if copied for other purposes, would be avoided.
We consider that Chapter 5 of H. 2223 sets out definitions of infringement and remedies therefor, which are unduly restrictive of the doctrine of fair use in the educational context.
Accordingly we urge modification of the present measure, as follows. First, we urge that 8 502(a) be modified by the addition of the following sentence, “No temporary or final injunction shall be available against any library or user corered by $ 108 or $ 110."
In its present form, we believe 8 502(a) of the proposed measure would permit the use of the injunction to undercut the effective access by teachers and scholars to the fair use provisions. We would point to the withdrawal by Congress of injunctive relief against collective organizational activity in the labor relations arena by the Norris-LaGuardia Act, 47 Stat. 70 (1932); 29 U.S.C.A. $ 101 (1973). It is our position that the parallel should carry over here. The sole statutory framework controlling labor relations is the Labor Relations statutes themselves. We urge that the fair use doctrines of the proposed measure he enacted as the sole framework for governing the use of copyrighted materials in the educational context by teachers and scholars.
Secondly, we consider that the damages provision of $ 504 (c) (2) also encroaches upon the fair use doctrine of $ 107. We urge a change in the last pintence of this provision beginning at line 13 on page 49. In line 18, we would prefer that the reference to $ 107 be deleted in favor of the phrase, “88 107 through 117." Then we would urge that all language on line 18 after the phrase, “8 107", in the current version, be deleted. In its place we would urge the following final language as follows: "there shall be neither statutory damages, nor costs, nor attorneys fees."
TESTIMONY OF LEO J. RASKIND, PROFESSOR OF LAW, UNIVERSITY
OF MINNESOTA, REPRESENTING THE ASSOCIATION OF AMERI. CAN LAW SCHOOLS, THE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, AND THE AMERICAN COUNCIL ON EDUCATION
Mr. RASKIND. As Mr. Steinbach has said, Mr. Chairman and members of the subcommittee, I am professor of law at the University of Minnesota. I appear before you today on behalf of these organizations: The Association of American Law Schools, the American Association of University Professors, and the American Council on Education. We account, as a law school association, for some 6,000 law teachers. The American Association of University Professors comprises some 75,000 other university professors. The American Council on Education is an association of national and regional education organizations, and nearly 1,400 institutions of higher education.
We appear before you because of our concern over the revision of the doctrine of fair use in relation to our function. May I draw to your attention, on page 2 of my statement, to the second paragraph; we noto above the constitutional directive contained in article I, section 8, clause 8, of Congress' concern in this area of assuring to authors and others the rights to their writings.
As the higher education community, we are the principal institution concerned in this society with the task of transmitting and advancing knowledge. It is for that use that we deem the problem of fair use of copyrighted material as crucial to the discharge of this function.
As a classroom teacher with some 20 years' experience in law schools and departments of economics, I am here to assert to you that without the doctrine of fair use, adequately described in the statute, and supported by articulate legislative history, what we do would be greatly impeded without any derivative benefit to publishers and others.
We use this material—and examples of our use suggests that the students, who are the ultimate consumers of our concern as teachers, are not, at the time that they are students, potential subscribers to the journals for which protection is sought. Many of the journalsTime magazine, for example-recognize the students' status by offering student subscriptions. Many learned journals offer subscriptions. We are only asking through the doctrine of fair use, as researchers and scholars, to advance knowledge by having made available to us, in the library context, materials which our libraries do not have, no matter how good they are. The University of Minnesota has a fine law library, but we do not have everything. On occasion it is necessary for me, if I am writing an article, to have information from other libraries. That is the main nub of our concern with the doctrine of fair use. We think it is crucial for the discharge of our teaching and research. We do not see that it infringes on the economic rights of others.
I draw your attention, on page 2, in the third paragraph, that we expressly recognize that we do not seek to have removed from copyright protection basic material under the statute. We accept this premise as a matter of principle and a matter of public policy and a matter of self-interest. As lawyers, we recognize case law and I draw Four attention, now, to the next-to-the-last paragraph on page 2 that the existing state of case law in this area is not articulate, sufficiently articulate, to deal with fair use and describe it.
Therefore, we urge that this revision process produce a statutory doctrine of fair use and it be described by legislative history that will aid the interpretation of it.
I point out to you further-I will not read this statement; I will summarize it and make myself available to your questions—that Congress has, itself, as I point out on the bottom of page 3, enacted legislation suggesting such shared usage and recognizing that, as researchers, our libraries do not have adequate resources and cannot have adequate resources for every library to have a total collection of all the material that is needed for teaching and research.
can be shared more efficiently by medical libraries throughout the nation. Eleven major institutions have been designated Regional Medical Libraries to provide interlibrary loan services to other libraries in their regions.
The interlibrary loan program provides to requestory photocopies of artis from periodicals and brief excerpts from monographs for the purposes of private study, scholarship and research. Single photocopies are provided in lieu of loaning the original literature as a means of safeguarding XLII's aretiral collection and of assuring uninterrupted availability of the literature of VIN and the resource libraries of the Regional Medical Library network.
The term "systematic reproduction" as used in Section 10(8!!?) is not defined in the bill, but if it is to be used to describe that reproduction card out in connection with interlibrary cooperation, such as in the Biomedical Library Network, it will mean the end of this orderly and efficient inedial literature exchange.
Section 109 in H.R. 2233 is identical to Section 108 of S. 1361 which was read by the Senate in 1971. It is important to note that the Senate report which are panied $. 1361 dealt with this issue of kystematic reproduction.
The report indicated that Subsection (g)(2) stipulates that Section lin does not authorize the systematic reproduction or distribution of copies of artis in periodicals or of small parts of other copyrighted works whether or o* multiple copies are reproduced or distributed. Systematic reproduction or dirbo bution occurs when a library makes copies of such materials arailable to retet libraries or to groups of users under formal or informal arrangements who purpose or effect is to have the reproducing library serve as their muttee of sprida material. The report states that such systematic reproduction and distribute enable the receiving libraries or users to substitute the coples reprodured by the source library for suliseriptions or reprints or other copies which they !!.."! otherwise have purchased for themselves, from the publisher or the liere reproducing agencies,
The potential effects of Section 108 (g) are unsure; however, as the finale Subcommittee interpreted "systematic reproduction" in 1974, NIM': print interlibrary loan program might be found to be an infringement of the copyright law if amended as proposed in this legislation.
Although Section 10x/a)-(f) appears to allow for the photo pring of jellet.al Artetas Sulwertion 10318) (2) threatens to destroy the effectiveness of the biomedical library network and to seriously underinine the ability of veral me on libraries to provide medical literature and information requested and Dreveal by the health community. It could in efferit eliminate the present practice of interlibrary loans which would smlously impair the dissemination of met al information throughout the nation.
Deletion of subsection lusi81 (2) would permit the continuation of an uurestricted tow of medical information among libraries If deletion is not pasiboir, another approach which might accomplish the goal would be to amed Suntion 2016)(2) by adding the language underlined below:
(2) engages in the systematic and unlimited reprowinction or dinner bution of single or multiple copies or phononcords of the same ma'eral described in Sution «d) &o as to subsiantially impair the murhet for, at
ralue of, the pyrighted work. For parp* of avonding ambiguny the bill should include expii it definii, iak of “y sarmatic reproduction" and "fair use."
STATEMENT OF Kris J. KEANEY, GENERAL COUNSEL FOR THE FEDERAL LIBRARIANS
The Fearral Librarians Asiation, incorporated in the District of Columbia, lan ortauilloul primest librarians who work in the libraries atid **** mentati, euten of the US Government througtut the world as statement
H..!!e to enjoross the view of the swiat do realise tu ili pred ** Thult 1423!1e4a, parttılarly for tlon luigi(2).
***tivalen periaate the reporun of stigle copies of certain materials. In portals. Mrrannstatere, and under certain conditione, nis libraries and artires, 1.4 para criah (2142) with do that their or night in "... cames where ibe frary is asi laivae, or its empente:... Pagine iti ilir sistema de seguramos a up 'Di',!t1 of wine or bele copies of pokoonpurds of materials demibed
It is the view of this am lation that this paragraph will, on the obe hand sulgest the Mbrary and the librarian to a liability w mrious as to inhit di test
in entration id)."