LIBRARY REQUISITION FOR OUT-OF-PRINT COPYRIGHTED MUSIC

This form approved by Music Library Association ("MLA"), Music Publishers' Association ("MPA") and National Music Publishers' Association ("NMPA").

1. If in print, please send us

copies of the work(s) and bill us.

2. If permanently out of print, please sign the duplicate of this form, which shall constitute permission by you to us to make or procure the making of copies of the work (s), but only on the following conditions:

(a) The copyright notice shall be shown on all copies.

(b) All copies shall be used for library use only.

(c) No recording use or performance for profit use or use other than library use shall be made of any copy unless such use shall be expressly licensed by you or an agent or organization acting on your behalf.

(d) We shall pay

mission but not otherwise.

for the right to copy pursuant to this per

(e) We (do) (no not) own a copying machine.

3. If any work referred to above is unpublished and available on loan to us, please advise the terms and conditions of such loan. If not available to us, please insert an X here and return the duplicate of this form to us promptly. 4. If any work referred to above is not in your catalog, please insert an X here and return the duplicate of this form to us promptly. Very truly yours,

Agreed to:

By

(Name of publisher)

-By

(Name of library)

This form should be prepared in duplicate. Additional copies may be secured from MLA or MPA, 609 Fifth Avenue, N.Y., N.Y. 10017, 4th floor, or NMPA. 460 Park Avenue, N.Y., N.Y. 10022.

Mr. KASTENMEIER. The next witness is Irwin Karp. [The prepared statement of Irwin Karp follows:]

STATEMENT OF IRWIN KARP, COUNSEL, THE AUTHORS LEAGUE OF AMERICA Mr. Chairman, my name is Irwin Karp. I am counsel for the Authors League of America, the national society of professional writers and dramatists. The League's 6,500 members include authors of biographies, histories and non-fiction books on every subject, novels, plays, poetry, childrens' books, musical plays, magazine articles, textbooks and other works. Several also write for motion pictures, television and radio. And, of course, the works of many members are adapted for use in these media. Copyright is a matter of paramount concern for our members, the full-time professionals and those who also work as teachers or in other fields, for their compensation as writers depends on the Copyright Act, as does their ability to provide for their immediate families after death. I should stress at the outset that most of our members own the copyrights in the works they create. My testimony this morning addresses two subjects: (1) the "Educational exemption" proposed by members of the Ad Hoc Committee; and (2) demands that your Subcommittee reject the copyright term provided in Sec. 302 (H.R. 2223); i.e. the author's life-plus-50 years after his death. The Authors League supports the term of life-plus 50 years, as it did in previous testimony to your Subcommittee by Rex Stout (then its president), Elizabeth Janeway, John Hersey (its current president), Herman Wouk and myself. [Hearings Before Subcommittee No. 3; 89th Cong., 1st Sess.; Part I, Part III]. In the Senate, testimony supporting the life-plus-50 term was given by Mrs. Janeway, Mr. Wouk and the late John Dos Passos. As it has in the past, The Authors League opposes the "educational exemption" which previously has been rejected by both Judiciary Committees and therefore was not included in the Revision Bills passed by the House of Representatives in 1967 and the Senate in 1974.

PRIOR REJECTION OF THE EDUCATIONAL EXEMPTION

As your Committee's Report noted, members of the Ad Hoc Committee had requested the insertion of "a specific, limited exemption for educational copying" into the Revision Bill. The reasons why your Committee and the Senate Committee refused the exemption are as valid today as they were when the Report was issued.

Your Report stated that "photocopying and other reproducing devices were constantly proliferating and becoming easier and cheaper to use" (as indeed they have). It also noted the contentions of authors and publishers that "education is the textbook publisher's only market, and that many authors receive their main income from licensing reprints in anthologies and textbooks; if an unlimited number of teachers could prepare and reproduce their own anthologies, the cumulative effect would be disastrous." (H. Rep. No. 83, p. 31).

THE CONSTRUCTIVE SOLUTIONS ACHIEVED BY THE SUBCOMMITTEE

Your Report noted that "several productive meetings" were held between representatives of authors, publishers and educators, and that "while no final agreements were reached, the meetings were generally successful in clarifying the issues and in pointing the way to constructive solutions." These solutions were reflected in your Committee's Report, and it is fair to say they were for a time at least-accepted by the parties. The solutions were:

(i) The Committee's rejection of the "educational exemption", because "After full consideration, the committee believes that a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control is not justified."

(ii) The Committee's explicit affirmation that "any educational uses that are fair today would be fair use under the bill."

(iii) Amendment of Sec. 504 (c) to insulate teachers from excessive liability for statutory damages.

(iv) Amendment of Sec. 107 to indicate that fair use may include reproductions in copies or phonorecords, and may be for such purposes as “teaching, scholarship or research."

(v) A careful analysis by the Committee of the four criteria of fair use "in the context of typical classroom situations arising today." The Committee noted that although its analysis had to be broad and illustrative, “it may provide educators with the basis of establishing workable practices and policies." (pp 32-36)

Actually, the Committee was modest in characterizing its analysis-it is an extremely clear and useful set of guidelines for educators, authors and publishers. Moreover, the Committee's analysis of fair use amply supported its judgment that "the doctrine of fair use as properly applied is broad enough to permit reasonable educational use, and education has something to gain in the enactment of a bill which clarifies what may now be a problematical situation."

The Committee also urged educators, authors and publishers to "join together in an effort to establish a continuing understanding as to what constitutes mutually acceptable practices." The Authors League is willing, as it has stated before, to sit down with educators and publishers periodically to establish and review these practices, to fill out workable guidelines of fair use. This must be done in meetings, with the parties working together. And there should be periodic meetings so that the parties could revise guidelines in light of changing conditions. This would enable them to deal reasonably with current practices, without fear of creating immutable rules that could become damaging if technology or other conditions changed in the future. The Judiciary Committee also urged the parties to join together "to work out means by which permissions for uses beyond fair use can be obtained easily, quickly and at reasonable fees." Again the Authors League is willing, as it stated in the past, to sit down with educators and publishers to work out these methods.

THE PROPOSED EDUCATIONAL EXEMPTION WOULD INJURE AUTHORS

If the proposed exemption, as it bears on copying, is only intended to permit educational copying that would be fair use under this Committee's analysis it would be unnecessary. If the Ad Hoc groups contend that the purpose is to provide clarity then certainly the amendment should be rejected. For as we testified before Senator McClellan, your Committee's analysis of fair use, with

its explicit examples and illustrations, is far more precise and instructive to teachers than the completely vague amendment offered by the Ad Hoc groups. Actually the purpose of the amendment is to legalize uncompensated educational reproduction of copies that goes far beyond the limits of fair use. The privilege of making copies of portions of a work which are not substantial in proportion to its total size would be absolute, regardless of the circumstances of the reproduction; although some of these would clearly involve infringement under your Committee's analysis. Under the Amendment, many copies could be produced on an organized basis, rather than by one teacher acting spontaneously. Multiple copies could be reproduced for many individuals and circulated beyond the classroom. And most important, under the Amendment copies could be reproduced even though they had a serious adverse effect on the work's potential market or value, and even though it would supplant some part of its normal market. Moreover, the proposed exemption would permit educators and institutions to reproduce copies of entire short works. How short is short? Would a poem 2 pages long be fair game for educational reprinting? or 4 pages? or 6 pages? Would the Amendment allow a story or article 5 pages long to be reproduced in multiple copies? or 10 pages? or 15 pages? Moreover, as with excerpts, the exemption would allow educators to reproduce these copies under a variety of circumstances that would make them an infringement under your committee's analysis of the four criteria of fair use.

As we noted in our statement on library photocopying yesterday, and in our previous testimony, many authors earn a major portion of their income by licensing the reprinting of poems, articles, short stories and portions of longer works in anthologies, textbooks, collections and similar books. The same poem or story may be reprinted in several of these, and the accumulation of small fees produce a modest income-often the largest part of the income authors of valuable literary works earn from their writings. These anthologies and other collections are sold primarily to high schools, colleges and universities, and their libraries and book stores. Their students are a primary audience for eminent poets, essayists and short story writers.

The proposed educational exemption would allow educators and institutions to produce copies of an author's short works and portions of longer works, thus displacing the sale of the anthologies textbooks and other collections that previously brought these works to educational institutions. Many authors would thus be deprived of a substantial or major portion of their income, even though their works would still be widely used by educational audiences, disseminated by uncompensated educational reproduction that far exceeded the limits of fair use. [Although some educational spokesmen have said they do not intend to "anthologize", it should be noted that the effects are the same whether several short works are provided at one time between covers, or are produced and distributed by the school seriatim.]

THE WILLIAMS & WILKINS DECISION

The Ad Hoc Committee's excuse for requesting the exemption in the Senate was that the Trial Judge's decision in Williams & Wilkins created uncertainties as to fair use. As we there pointed out, this was a feeble excuse for disrupting the constructive solutions reflected in your Committee's prior report. It would be an even feebler excuse now, considering the majority opinion in the full Court of Claims. As your report correctly stated, fair use-in the case of library copying as in other instances depends on the four criteria "and the facts of the particular case." (Emphasis ours). The trial judge confined his decision to the facts of that case, stressing that the large scale reproduction of copies involved "was wholesale copying." The facts before him bore no resemblance to the various fact situations involving educational copying and other uses which your Committee considered in spelling out its guidelines and analysis of fair use vis-a-vis educational copying. Nothing in the trial court's opinion cast any doubt on your Report's analysis of guidelines. And there is even less reason for Ad Hoc Committee spokesmen to contend that any doubts have been cast upon them by the majority oninion in the Court of Claims which reversed the judgment below and dismissed Williams & Wilkens complaint. The majority opinion did not imperil fair use in education or detract from your conclusions, nor did the minority opinion.

THE "OTHER" ARGUMENTS

As we noted in our testimony on library photocopying. Ad Hoc Committee spokesmen are wont to accompany their demands for an "educational exemption"

with a variety of attacks on copyright. Some of these we discussed yesterday: the "monopoly”, “restraint of information" and "mere privilege" claims. As to the others:

Ad Hoc spokesmen contend that uncompensated educational copying beyond the limits of fair use must be legislated because it allegedly "promotes" the progress of science and art. This misses the very point of the Constitution's copyright clause, which intended that authors be granted "valuable, enforceable rights" to encourage them to produce works of lasting value. Granting rights, not destroying them, was how the Constitution intended to promote the progress of science and art. Compensating authors for uses of their work, not depriving them of remuneration, was the method chosen by the Constitution. Authors whose works are used in schools make a positive contribution to the educational process, and for reproduction beyond fair use, they are entitled to compensation. As your Report noted, "the educational groups are mistaken in their argument that a 'for profit' limitation is applicable to educational copying under the present law."

Ad Hoc Committee spokesmen have argued that any copyright limitation on uncompensated educational copying beyond fair use restrains "freedom" to read under the First Amendment. This utterly fallacious argument was made by them in the Williams & Wilkins case, and was completely ignored by majority and minority opinions. The First Amendment was fashioned to assure unfettered interchange of ideas (Sullivan v. N.Y. Times) and it is axiomatic that an author's copyright does not prevent anyone from discussing or repeating his ideas (Rosemont v. Random House). The Supreme Court has never interpreted the "freedom to read" under the First Amendment to mean that copyrighted works must be provided free of charge; and it has frequently emphasized that there is no conflict between publication for profit and the First Amendment. Under the Ad Hoc theory of "freedom to read", teachers and librarians should work without pay, colleges should cease charging tuition and the Xerox Corporation should be denied copying fees when its machines reproduce "educational" materials.

Our discussion has focused on the copying aspects of the Ad Hoc Committee's proposed exemption, but the Authors League opposes its other provisions as well. It would be highly dangerous to add an "input" exemption with respect to computers. And the educational community is not entitled to further additions to an already too-broad television exemption.

LIFE-PLUS-50 YEARS

The Revision Bill would establish a single term of copyright for new works, lasting for the author's life and 50 years after his or her death. This is the copyright term employed by most other countries. Existing copyrights would continue under the present system: a first term of 28 years which can be renewed for a second term, that would be enlarged from 28 to 47 years. [Secs. 302, 304] As in prior hearings, the Authors League strongly supports these provisions. We urge your Subcommittee to retain them and to reject demands by Ad Hoc Committee spokesmen to turn back to the present two term system, and proposals for a single term of shorter or different duration. Your Committee's Report noted there "was overwhelming support for a life-plus-50 system", and this was based on sound reasons which are analyzed in the Report.

THE "INCREASE" IN TERM

The Report cited findings by the Register of Copyright that a life-plus-50 term would, on the average, add no more than 20 years to the present 56 years. It would add very few years, sometimes none, to a work published later in an author's life.

On the other hand, life-plus-50 would drastically reduce the period of protection now available to unpublished works and those published long after an author's death. Under our dual system, a work is protected absolutely until it is published. 200 year-old diaries, 150 year-old letters cannot be used by historians or scholars because their owners have absolute property rights under common law. And when any unpublished work, no matter how old, is published-it receives another 56 years of protection under the present Act. Mark Twain's Letters From the Earth was published decades after he returned to it. The memoirs of a Civil War reporter, who wrote here in Washington, was first published in the 1960's. Both received 56 years of statutory protection on publication. Under the proposed life-plus-50 term, copyright would have terminated 50 years after the

author's death, as it would for all unpublished (as well as published) journals, books, letters and other works. Authors like Ernest Hemingway would no longer be able to provide for their families by leaving unpublished novels to be issued years after their death.

THE NEED FOR MORE ADEQUATE PROTECTION

With an increasing lifespan, authors outlive their copyrights. Many are unable to provide for their immediate families since their renewal copyrights expire soon after their death. Their wives, husbands and children are denied any share of the income their works continue to produce for others compensation their families would have under a life-plus-50 term.

Widows of illustrious American authors have outlived their husbands by several decades. In their advancing years, the only income which permits some of these widows to live in dignity and a semblance of comfort are the royalties from great works written by their husbands. This income is taken from them when the renewal copyright expires. Under life-plus-50 they would continue to receive this desperately-needed income. Ours is the only western country which denies aging authors or their surviving families this income. All the others have a copyright term of live-plus-50 (or more) years.

It should be remembered that life-plus-50 years benefits only those authors who created books, plays and music of sufficient value to survive. And I should stress that it is authors, and the families of deceased authors, who will benefit from the longer term. They would receive at least 50%, and often all, of the copyright income from their books, poetry or plays during the extended period of protection-because of the "reversion" provision, and the nature of publishing arrangements most professional authors make. Life-plus-50 years would not provide windfalls for book publishers, and is not a matter of grave concern to them. LIFE-PLUS-50 IS JUSTIFIED BY THE ECONOMIC/LEGAL REALITIES OF THE COPYRIGHT SYSTEM

As we stressed in our testimony yesterday, the instrument chosen by the Constitution to serve the public interest-to secure literary and scientific works of lasting value is an independent, entrepreneurial, property rights system of writing and publishing. The free-lance author must earn his living from income produced by the books, plays, articles, poems, etc. he creates. He must look for his income to the payments made for their various uses-so long as he retains his copyright.

Whether or not copyright is "property" (and it is), the author is required to survive as a property owner. He is not paid an annual salary. He writes at his own risk. Some of the greatest literary, dramatic and musical works contributed to our society and posterity would not, even under life-plus-50, provide their authors with adequate compensation for the value of their contributions to society. But these authors are entitled to at least that much for themselves and their families. In this connection, it should be stressed that an author's compensation consists of an accumulation of royalties, often small, for uses of his work over a period of many years. These uses are made by reprint publishers, book clubs, anthologists, periodicals and others, as well as by his initial publisher. Once his copyright is lost, all of these other users are free to produce income from his books or other works without paying any compensation to him or his family.

Often an author's works do not commence to earn income for him until years after they are published, when he has finally won recognition. Often a book is discovered or rediscovered thirty years or more after it was originally publishedand for the first time becomes a commercial success. Its useful copyright life under our present system may be only 15 or 20 years near the end of the termnot 56 years.

Moreover, the author faces the constant risk that two or three years of work may go down the drain-his book or play may be a literary success but a financial failure. Throughout his career, only two or three works may produce substantial income for him. These must compensate him for a lifetime of writingwhich may have produced several works which, although financially unsuccessful, are of lasting value to society.

Under these circumstances, the Authors League does not believe a term of copyright ending 50 years after the author's death is "too long". The author must produce his works under the risks and hazards of an entrepreneurial system. He is entitled to receive a small measure of the protection accorded to other, often less