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legal profession, and thank the Lord that is why there are congresses, and that is why there is ongoing revision of statutes, just as the act of 1909.
Mr. KASTENMEIER. I would point out if the bill before us had been in effect at the time, and He had set it down already, the Lord would still have life plus 50.
Ms. LINDEN. That is true. We also gave it to Mary Baker Eddy, if you recall.
May I suggest, furthermore, that fair use, like all other statutory language, is susceptible to interpretation. We all know what love thy neighbor means, whether we obey it or not. We all know what fair use is, and we all know what the four criteria are.
May I also call to your attention that the bill now before you has a series of compromises of exemptions, which we have reluctantly accepted, because this is the era of compromise. This is the era where people have less regard for private intellectual enterprise than they did generations ago. We accept it. We are willing to live, survive, and struggle under it. We are asking for survival of the private intellectual authorship and publishing industry.
In conclusion, may I say that if any of you would be good enough to look at my testimony given before this very committee in 1965, we did in fact offer a clearinghouse. We made the point then-we make the point now-we have made it continually. We are agreeing that the copyright law is intended to grant the right of access. We are agreeing that access is the essence of intellectual information and is the whole purpose of publishing and production of audiovisual materials.
What we are saying, under our form of government, and our philosophy of free dissemination of competitive ideas, we do not wish to end up in a decade or so with a nationalized educational publishing system and with limited authorship under that kind of a budget.
I want to include my one statement—yes, we sympathize that the educators and librarians have problems balancing their budgets. We all do. And we know that if any of us could only get for free that which we in our society have to pay for, we would find it a much more easy task to balance our budgets. May I suggest that the librarians and teachers budgets should not be balanced at the expense of this intellectual property which is essential to their ongoing teaching process.
That, I submit, is in the public welfare.
Mr. KASTENMEIER. Thank you, Ms. Linden, for a very strong statement.
The Chair will personally say it is good to have you back after 10 years. Having seen you a number of times in the context of copyright, you have made enormous contributions in the field.
Next, Mr. Meell.
STATEMENT OF EDWARD MEELL ON H.R. 2223 on BEHALF OF THE EDUCATIONAL
MEDIA PRODUCERS COUNCIL My name is Edward Meell and I am Chairman of the Educational Media Prom ducers Council (EMPC) and Editorial Director of the Film Division of McGraw. Hill Book Company. I am appearing here today on behalf of EMPC and with me is Ivan Bender, Chairman of the EMPC Copyright Committee and Assistant Secretary and Legal Counsel of the Encyclopaedia Britannica Educational Corporation.
We are here to present our views on H.R. 2223, the general copyright revision bill, and specifically on the issues involved in the educational use of copyrighted audio-visual materials. We support the bill as introduced and oppose amendments which would weaken the protection provided in the bill for audio-visual materials
SECTION 107—-FAIR USE We specifically endorse Section 107, which writes into statutory law the main principles of "fair use" as that doctrine has been interpreted by the courts in individual cases over the years. We feel that Section 107 represents a fair compromise between the creators and users of copyrighted educational material a compromise which has been carefully negotiated over the past several years
Our industry is pleased with the recent technological developments which promise to make ideas and information more accessible to scholars, teachers and learners. These developments promise also to expand the role and contribution of educational media producers to the educational process of which we are an integral part. But in order to maintain and increase the incentives for the creation and production of quality materials for our schools, we must not diminish the statutory protection for intellectual products to which any author, creator or artist is entitled.
NO NEED FOR AN "EDUCATIONAL EXEMPTION" At the time that this testimony was prepared we were uncertain as to whether a broad educational exemption, to be added to the bill as it now stands, would be proposed by one or more organizations in the light of the positions taken by the Association for Educational Communications & Technology (see Attachment A). The language of previously-introduced amendments, however, in our view provided far more than a "limited" exemption. Among other things it would authorize use--for noncommercial teaching, scholarship and research--not only of "brief excerpts" from copyrighted works but also of the whole of short literary, pictorial and graphic works.
Let us take up these two concepts in order, as they would apply to educational audio-visual materials.
The concept of "brief excerpts" (which are not substantial in length in proportion to their source) is very difficult to apply to educational audio-visual marerials. A half hour education nature or biology film, for example, may be built around an exceedingly difficult photographic sequence which may take months of work to capture, but may in the final product only take up a minute or two of time in the film. To permit this minute or two to be reproduced freely under an educational exemption would very likely destroy the economic viability of the product.
The concept of exempting nse of "the whole of short, literary, pictorial and graphic works” presents difficulties equally great in relation to audio-visual materials. For example, is a short filmstrip a short work? Is a five minute andin cassette a short work? Is an eight minute 16mm film a short work? If so, it would very largely destroy the entire market for short filmstrips, cassettes or films, as they would be produced in extremely small numbers or not at all.
We trust that this subcommittee will not accept the idea of an educational exemption, if such an exemption should continue to be pressed by one or more organizations. If the exemption is adopted, few companies will be able to risk making the capital and time investments needed to produce educational matre rials and will turn their efforts to other kinds of products and markets. In such a situation, it might well happen that only with government subsidies could the producers in the private sector afford to finance the development and distribution of educational materials.
forb an exemption has no educational rationale. To the extent that school 81*** 16 mimba tu reproduce educational audiovisual materials in whole or in mert beyond the lists of "fair use,' our memberriand ready to discuss idetuilla arrabinets which will permit authorized reproduction. Modern metbods of to profit fur inany type of audiovisual materials are such as to make sur la Doineilltuota in w lavie or in part attractive to blue school Nystems and many of our teruutmins have already entered into licetsuk arrunxements which would Jeruit dupli-i.. under a Degotiatied compensation formula.
ANDORA MUNT OF su T10X 107 BY ALLT **ro are pleased that the principal profpomsfonal organization of educator de
'S moerued with the use of audiovisual materials in the educutional pruita 18 do in support of Section 107, without weakening amendments, 'This m'llport
Xwed in a statement fund buy the Executise Committee of the Ammia. l te faus I.J i Alsobal Communications and Tee inology (AEXT) in May of 19in,
**Atabeat A.) Bole of the statements made by the AEIT which were of
I derglug the use of copyrighted works in conjunction with television, AH! I foto ver llal 'fair use, as it has been outlined alone, should apply to romboltat abstructbegal broad ant or lowed irruit transmission in a nonprofit #k, ajtki institution, but not to cuttnerrial broadcasting.
Ime the describe of fair um has been extablished in the revised law, Exa'; * »Bestsid bon poud'ated briwert the proprietor and user prior to any -IS"prixed 1 tel. that has beyond that dotik,
4. Det eup right law that both users and producers can view an equitable
;Pe 1* !Ir mutual understanding of eab ollosis fers and the ability 1:"1&fc**,} xorde atac thies de la federa. Ile will participle in the publikua
Will Dauratwind Meedia Produrres (ouboil and similar interest *** tutub fisutnalls eine polable guidelines regarding the twundaries of
.", f.de iubire to be paid of u beyond fair use."
I 194 want someo to ut my wo Sul, there is s :: iba tably all kinnis of materiais ava'labits writrop mer... poble" neiext. It is uit!'r or not you consider the dipinti :: 11 mellettual projwrty right am such. I know that is ta. "Ivo Brifini law. I am not sure it is in our law. You may wali ??? to that.
Jr. PATTIBON. Is that not the fundumental decision sur la luan you say you are going to create a monopoly interest of twent of a juran who creates something, and allow him to give p*17. + or not, or conditionally, or any other way he wants and wi! oljert of that will. in fart, result in more dimination of forgon and more errative activity going on than if you give him 1.0 1.2 ail or give him a limited right!
Mr. Rurfind. The courts have answered that very lipoly. I. zat atutes until now, until this moment, give a presumptive e monopoly. Pretumably, you are not allowed to use one word. 1.2.73 have mund that is willy. It is not in the constitutional obiadur, #" in cammination, and therefore, the courts have dereloped the dotr of fair 11, the purpose of which is dissemination. And what up spo runding to you is that we are not talking about monopoly op sy monopoly. We think that, with due respect, is not the issue that Fournit are propoming. The issue really is, what is the nature of the vrable portion of the material, irrespective of the presumptive monito oly Land on that wore, if an issue is couched in those terms, that it in hotelurive, then the author cannot refuse, no matter how much wants. Once he has taken advantage of statutory copyright, he car::et mfum fall 11 ***, no matter how much he wants to.
Mr. l'Ammin Weure adopting the concept of fair use in this statuite. That is not the question. We have a situation here that I posed. w.. primumably omeone thought that it was not fair 11e, or it pmhe'r 8,4 not fair time. They asked the author for permission. He said na
Mr. Rimantan. 'Ihat is exactly what happened in Hindi Illins.
The thrust of your questions, if I may respectfully indicate, world le to put the burden on the copyright holder by saying let him ile the pike. We are having to the degree it is fair use or exemptible, i! publisher has no ekintrol.
Mr. Pinun. Here completely on that concept, errept no one Haems to aire on what fair use islam posing the question-***:** it io non fururand you ak the publisher, the author, if in fact we can be his pera, and it is not under the fair u fortrine, then the savjest was made thut his place was too high; he did not therrlimen the it, and the students and not teht.
Impremmng ** * part of my question that it was not fair men Vi Kinnlet14 polish
11, meer whatever the rules are, it is not fair e, me mar fi: ni veloce 1111 free
Ni l'artin Vu Hotely the prent'em. le 4* it is a mipa.
Mi Nould not for their sophasa pishe to post on t'ko popular Westin Biebeitilat. Milline, vi WII W IMI' kolo) in PO BUDE mation that her! 2011 fever in beline of chooni on of the deparing the terreniot
I have that the life of the author plus 50 prevents the author from has.ng a second choice to decide whether or not he wants to continue te material under copyright. Anybody from the minute they publish confruly grant the right to anyone to use it all along.
lat us say a copyright does exist. It is a valid copyright and must les rompwwted. The years, which must then be renewed, and which is treneurd in only 15 percent of the cases, gives to the author, the copyright holder, a chance to decide whether this should go into the public
or not. Life plus 30 really lo«ks it up. Mr. Pattison. We could create that rather simply by saying that aller a period of time a notitication goes to the author; if you do not : to row it or woh to withdraw your copyright, let us hnow. 1... could be done very simply.
Mr. Furt10. The pending legislation includes life plus 30.
Mr. P' Triwy. It may be a good idea to require the author to state 1. grand state of health at that point,
01.29 other question. Suppe someone is so foolish to decide they a's going to open up a school on a protit basis for a variety of reasons. V!!! poy ito not talle expect to make a profil. Certamli they would poveofthey had any intelligence. Let us suppose they want to do it for a varies of reasons they want that form of operation rather than i.avka - having the kind of form of operation you have with a nonpost corporation that has a lot of legal constraints in it. You want 1 dl up a whool for profit. There are many of course. What is the utrpel pil we have the same school. We are two whools; one under Ofe for nonprofit with a board of directors, and tries to raise many from the public: the other profit making, which may or may not L'apa protit. Atually, what is a proprietary operation; what is the Pernie to the student! Mr. Wk* We are not a-king for thin limited exemption for
any school whatever. Mr. PATTINOx. Why not?
Mr. War. We think the nature of theme is such that if they are a commercial operation, unlike a nonprofit institution, they there for should pay. They get money from their students to operate the s!.rol.
Mr.PTTIX. Soders Cornell.
* to end my hill to show with is irry streyfully being rain tot a profit making otration and cheaper. let 11e than the nonprofit homil. I et uw say that the tuition at the profit whool is 'n vrar,
attle price wholtin tut:on is sti) s vrar. That in per festly wible.
Mr. Way, I to not think tax law linii), penthem
Mr Parrows. For a variety of prawne, but not based upon what you er, at the pare
lamint mindering photos are tar proprietary.wile Mr.
Kriin. l-11.st not why, 124's,htxlaut tipable Tur tax law diningunheta beraie in one the true her dine pool traka futural profit, and in die boertlico para portelor dinner!!!!!1pron
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