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COPYRIGHT REVISION LAW

THURSDAY, AUGUST 19, 1965

U.S. SENATE,
SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to recess, at 2:10 p.m.,

in room 3302, New Senate Office Building, Senator Quentin N. Burdick presiding.

Present: Senators Burdick and McClellan.

Also present: Thomas C. Brennan, chief counsel; Edd N. Williams, Jr., assistant counsel; and Stephen C. Haaser, chief clerk, Subcommittee on Patents, Trademarks, and Copyrights; and Mr. Horace A. Flurry, representing Senator Hart.

Senator BURDICK. Mr. Rosenfield.

STATEMENT OF HARRY N. ROSENFIELD—Resumed Mr. ROSENFIELD. Thank you, Mr. Chairman. So that the record may clearly indicate what the situation is, I appear on behalf of the Ad Hoc Committee on Copyright Law Revision, composed of 35 of the Nation's major educational organizations and institutions.

Some of the witnesses who were to testify yesterday as part of the educational panel arranged by the ad hoc committee with Mr. Brennan's kind approval, were not able to remain over in town to be here today, Mr. Chairman. They are Dr. Charles Gosnell, for the American Library Association,

Dr. Fred Siebert, for the American Council on Education, and Dr. T. M. Stinnett, for the National Education Association. They have asked that their statements be incorporated in the record, and will of course be glad to hold themselves available for any questioning which this committee might care to direct to them.

Senator BURDICK. Without objection their full statements will be made a part of the record.

Mr. ROSENFIELD. Thank you. Mr. Brennan was kind enough to say that they will be given the opportunity to appear later before the committee, if desired.

Dr. Wigren, Chairman of the ad hoc committee, asked me particularly to express his deep regrets at his inability to be here again today, owing to a longstanding out-of-town engagement. He too, of course, will be available gladly for further questioning by the committee at the committee's convenience.

Mr. Aleinikoff has returned today in order to complete our testimony, and we are available for questioning.

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Yesterday when you adjourned the hearing, I was discussing the single most urgent legislative proposal of the ad hoc committee, a proposed new section 111 designed to provide an educational exemption for limited copying by teachers for nonprofit educational use. The text of this proposal appears on pages 4 and 5, and in the appendix of my statement. I outlined the limited effect of our proposal, and pointed out the fallacious nature of the arguments made against it.

In this latter respect, I had already stated that the ad hoc's proposed new section 111 first was not a deprivation of property rights, but rather the means of furthering the most fundamental public interest of the American people and, second, it was necessary in addition to statutory "fair use" because of the uncertainty and unpredictability of "fair use" as a basis for effective teaching.

I was at the point of discussing the fallacious allegation of our opponents that the ad hoc committee's proposal would destroy the publishers of educational materials. With your permission, Mr. Chairman, I would like briefly to deal with this argument, and I would pick up on approximately page 20 of my statement.

I think I was at about the point of suggesting that in a speech last October the president of Scott, Foresman & Co., one of the largest textbook publishers, speaking before the New York Society of Security Analysts, predicted a compound growth of over 8.1 percent a year for the period 1964–70, and the Crowell-Collier, MacMillan Publishing Co., in its 1964 annual report, showed an increase of 66 percent in their net income in 1 year, from $1.30 to $2.16 a share.

A study by Hirsch & Co. of textbook publishers indicates a 10.7 percent cumulative annual growth in 10 years.

The New York Times for July 18, 1965, in a column captioned "Book Publishing: A Growth Theme," reports:

"Educational publishing has been dubbed by some observers as the biggest growth industry of them all.”

Please note the ad hoc committee is delighted the publishers are showing profits and hope and expect they will continue to do so. Our only point in noting these facts is to show that the publishers are prospering, and that they expect to prosper even more despite all the copying that is now going on in school. Teachers' copying of copyrighted works has not, and is not expected to, hurt publishers economically.

Furthermore, Mr. Chairman, two recent and impartial U.S. Government-sponsored studies concluded that there is no harmful economic impact of photocopying on publishers and authors.

A National Science Foundation sponsored study of scientific and technical photoduplication reached two conclusions on this point: First, that there is “no significant damage” to copyright owners in the scientific and technical fields "although duplication of this material is widespread and is growing rapidly." Second, that therefore there is no need for a clearinghouse of the ASCAP type” at this time.

The second impartial U.S. Government-sponsored study was financed by the Air Force Office of Scientific Research and dealt with scholarly publications, and its conclusion is:

The evidence presented in this study indicates that the reproduction of these materials by photocopying has not affected, nor is it likely to affect, the production of scholarly material in book form.

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And its first recommendation is, and again I quote: Claims that photocopying has a damaging effect upon publishing are not substantiated by evidence and should be disregarded.

Lastly on the so-called economic argument, there is reliable objective evidence of resultant advantage rather than harm to publishers and authors from such photocopying:

The National Science Foundation sponsored study found that over 55 percent of the authors stated it was a definite advantage.

2. The Air Force-financed study found that journals that were copied became subscription items.

3. Lastly, and particularly on this subject, and responsive directly to an observation by the ad hoc committee chairman Dr. Wigren, an editorial of the Chicago Tribune on August 18, 1964, read in part as follows:

** * permitting educational, not-for-profit circulation of an author's writings might serve the writer better than an iron-clad prohibition of such circulation without written permission. After all, an author's rights do not amount to much if no one wants to read what he has written-if no one has ever heard of him. Perhaps the school mimeograph should be viewed not as a piratical rival to the trade publisher but as a helpful unpaid publicity agent who helps publishers' long-term sales.

We respectfully suggest that (1) there is no merit to the economic arguments advanced against the ad hoc committee's proposal, and that (2) the adoption of the ad hoc committee's proposal for section 111 is in the paramount public interest.

At the outset of my remarks yesterday, Mr. Chairman, I stated that the ad hoc committee proposed four major amendments. I have discussed the first one, a new section 111 authorizing limited educational copying for nonprofit purposes. I should like to turn briefly only to the second, the "fair use" problem.

Únder present law,"fair use" is a wholly judicial doctrine and is not even mentioned in the present copyright statute. The only effect of section 107 of S. 1006 is to make such mention, "without any attempt to indicate the application or define the scope of the doctrine.”

The Register's earlier bill, H.R. 11947, 88th Congress, 2d session, section 6 (first sentence) included a provision which

was more mean( ingful and which was far more satisfactory to education.

We urge the restoration of that sentence in section 107 so that “teaching, scholarship, or research” are specifically mentioned as being legitimate purposes of "fair use."

In addition, the ad hoc committee urges that the burden of proof in instances of educational "fair use" be transferred to the copyright owner, since in the overwhelming proportion of the cases he, rather than the teacher, alone will have the evidence required under the criteria acquired by the courts to determine "fair use.

Therefore while the ad hoc committee agrees with the Register on including "fair use" in the statute, we believe first that it isn't enough, and that section 111 also is necessary, and second, that section 107 should be amended to read as set forth in our statement at page 26 as well as in the appendix of my prepared statement.

There are at least two other points we make in the statement, but which I shall not cover here, (1) that the statute should authorize the courts to make discretionary waiver of damages of innocent infringe

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ment by teachers and (2) that copyright duration should remain at the present term of 28 years plus 28 renewal or 28 years plus 48 years renewal as originally proposed by the Register himself.

This latter recommendation is in opposition to those provisions of the bill which the Register testified yesterday as being one of the foundation stones of the entire structure and content of the bill as it now stands.” However, I shall not discuss these matters orally, but leave them to my written statement, unless of course the committee wishes otherwise.

As I have indicated, for this committee's convenience I appended to my statement, in an appendix, all of our recommendations as set forth in haec verbi, in the hope that they may be helpful, as well as persuasive, to the committee.

In concluding, Mr. Chairman, I wish publicly to express the ad hoc committee's respect and admiration for the work of the Copyright Office, Mr. Kaminstein, Mr. Cary, Mr. Goldman, and Miss Ringer. They have been unfailingly kind even where they would not accept our recommendations. And I want also to express before this committee our appreciation to your staff and Mr. Brennan for their unfailing helpfulness and cooperation.

The last witness, Mr. Chairman, of the group that was to appear under the umbrella of the ad hoc committee is Mr. Eugene Aleinikoff, a distinguished attorney and member of the ad hoc committee, who will discuss the subject from the point of view of educational television.

Senator BURDICK. Mr. Aleinikoff.

STATEMENT OF EUGENE N. ALEINIKOFF, ON BEHALF OF THE JOINT

NATIONAL EDUCATIONAL TELEVISION-EDUCATIONAL TELEVISION STATIONS MUSIC AND COPYRIGHT COMMITTEE

Mr. ALEINIKOFF. Mr. Chairman, my name is Eugene N. Aleinikoff, and I am appearing today on behalf of the Joint National Educational Television-Educational Television Stations Music and Copyright Committee. Our committee represents virtually all of the educational television stations broadcasting in this country, as well as the two national organizations-NET and ETS—with which they are most closely affiliated.

We are very happy to endorse the proposals made before this subcommittee yesterday and this afternoon by the ad hoc committee on copyright law revision. We have been working in this educational group over the past 2 years toward developing copyright revision recommendations which would serve the best interests of all education, including educational television.

Ever since the earliest indication that the "nonprofit" exemption so long established in the copyright law would be under considerable attack, we in educational television have been particularly alarmed. It is absolutely clear to us that if this exemption were henceforth to be denied, educational television would have serious if not insurmountable difficulties in playing the role it can in meeting the everexpanding educational needs of the American people. For educational television's basic advantage derives principally from its ability to make available for teaching purposes otherwise unavailable re

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sources and materials. Undue copyright restrictions can have no result other than to limit seriously the educational utility of television instruction.

Unfortunately, it seems to be educational television alone that the authors and publishers, and their allied commercial interests, are adamantly seeking to deny the nonprofit exemption existing under the present copyright law. The Copyright Oflice itself has vacillated widely in its recommendations-in the beginning, urging continuance of the nonprofit exemption for educational television as well as other educational uses; later, questioning whether educational broadcasting should not be excluded from any educational exemption; in last year's proposed bill, specifically barring all educational television broadcasting uses; and finally in this year's bill, back to recommending an ETV exemption but only for classroom broadcasts during school hours.

We do not want to seem unappreciative of the Copyright Office's ultimate recognition of the necessity and validity of a classroom television exemption. We are, however, seriously concerned about those types of educational broadcasts which the Copyright Office has so arbitrarily distinguished from daytime inschool instruction.

As Vice President Humphrey noted at the recent White House Conference on Education, educational television is probably one of the most effective tools for furthering popular education today, and one of its chief advantages lies in the very fact that it is not restricted to formal institutional use. For not only can educational television open wide the classroom window on the outside world; perhaps even more important, it can bring information and instruction to those not attending schools and colleges either because of their own personal problems or difficulties created by our society. For example, many of the Federal poverty program plans for assisting the economically disadvantaged, for reaching the physically disabled, for upgrading skills, for retraining workers—in short, for making sure that all Americans have the knowledge and qualifications to occupy a fruitful place in our society-can best be undertaken on an informal rather than formal basis. Literacy courses for the illiterate, and lipreading courses for the deaf; English courses for Spanish-speaking citizens in the North, and Spanish courses for English-speaking residents in the Southwest; high school courses for dropouts, and post graduate lectures for professionals—all these are standard ETV programing. But more than that, if as is hoped the intellectual and cultural horizons of the American people are continually to expand, we submit that there is no better instrument to assist in this process than educational television.

In spite of this almost limitless potential for the public good, the commercial copyright interests—including both the literary publishers and the music licensing agencies-have centered on elimination of the educational television exemption as one of their more important objectives in the current copyright revision proceedings. There seem to be two prime motivating factors for this: first, the expectation that educational television is destined to become an important competitive communicaions channel with vast audiences across the Nation; second, the hope that educational television will afford a new and major source of financial support for serious authors and composers. While

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