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articles and full text. If it is read in its broadest scope, “systematic” might be judged that way. I think that, quite clearly, from the legislative history and from the Senate report, Mr. Chairman, that was not the intention, but the librarians are also objecting to some of the breadth of the language of the Senate report. And I do include, on pages 33 and 34, the entire text of that report, because I think you should have before you, in deciding this issue, what the Senate was saying it meant by this phrase.
Now, the opposition to this is outlined in my statement. I also think I should refer to a letter that was sent to both Chairman Rodino and Chairman Eastland from David Matthews, the new Secretary of HEW, who was obviously representing the National Library of Medicine as much as anything else in his comments. And he supported the outright deletion of (g) (2).
But, in addition, he suggested an alternative which would amend the section to refer not only to "systematic” but also to "unlimited" reproduction, and make clear that the limitation only applies if the reproduction substantially impairs the market value of the copyrighted work. And that language, incidentally, comes from the fair use section directly.
Secretary Matthews also recommends avoiding any ambiguity in the bill by having the bill include specific definitions of systematic reproduction and fair use. And section 107, Mr. Chairman, is really a definition of fair use, if Congress wants to go so far.
Next, there is also the unanswered question that the Commissioners of the new national commission now known as CONTU wrestled with yesterday, which is what it is supposed to do with respect to library photocopying now that things are in their present state in the Congress. Mr. DRINAN. Mr. Chairman? Mr. KASTENMEIER. The gentleman from Massachusetts.
Mr. DRINAN. Would the people who put out learned publications go along with Secretary Matthews' compromise version here? Is there any reason why the publishers of learned journals of medicine or astronomy would say no?
Ms. RINGER. Yes, I think thev could possibly say no, although I don't know. I judge this as an effort not to simply knock out the limitation but an effort to compromise it. I don't think they would accept the breadth of the language without sufficient explanation in the report, but I can't really speak for them. I think that the word unlimited is equally objectionable from their point of view to the word systematic from the librarians' point of view.
Mr. DRINAN. I thought HEW might have consulted with them informally in an advisory capacity.
Ms. RINGER. My impression is that they have not. This language has been floating around for a while, but I have never heard it discussed in the author and publisher community, and I don't know whether they were aware of it before Secretary Matthews' letter.
Mr. DRINAN. Thank you.
Ms. RINGER. I come to the comments and recommendations on page 39. I first talk about the interrelationship between sections 107 and 108.
The librarians finally decided to seek express photocopying exemptions because the flexible and untested doctrine of fair use does not provide enough assurance that some of the things they now want to
do are legal. They object strenuously to the provisions expressly limiting the scope of those exemptions, because they fear that these express limitations will also have the effect of limiting the scope of what a court might hold to be fair use today. On the other hand, authors and publishers argue that, if section 108 consists only of unlimited exemptions, they would be placed in an impossible situation. To take an extreme example, suppose that under the new law a library were providing multiple copies of entire books still in print. This is clearly not covered by the exemptions in section 108. Should the library be able to argue that, irrespective of section 108, its activities constitute fair use under section 107, and support its position with exactly the same arguments the National Library of Medicine used in the Williams & Wilkins case ?
Although it has not been stated, or perhaps even perceived, in these terms, I think this is the real crux of the dispute over subsections (g) and (h). If section 108 were made to supersede the fair use doctrine completely, no limitations, such as those in (g) and (h) would be necessary; the only exemptions would be those stated in subsections (a) through (e). As long as fair use applies to library photocopying, without much more definitive legal authority as to its scope than now exists, some limitations are essential if section 108 is to settle any. thing.
No one is arguing that the fair use doctrine should be made inapplicable to library photocopying and such an argument would be very hard to sustain. The very amorphousness of fair use provides a needed safety valve. But as long as the revişion bill contains, both a section 107 and a section 108, the latter must put some express limitations on the express exemptions it provides. It would be a mistake to delete subsections (g) and (h) out of hand. What is needed is a much clearer statement in the report concerning the interrelationship between sections 107 and 108, and a careful look at the wording and content of subsections (g) and (h).
Let me now skip to page 46, which deals with systematic reproduction. I have some things to say about multiple copying and the subject matter of music and pictorial and record and sculptural records. But I will come back to that.
As indicated above in paragraph 1 of this section of chapter III, the Copyright Office believes that it would be a mistake to delete paragraph (g) completely. Instead, the meaning of fair use in the context of library photocopying and section 108 must be clarified. As a part of that process, both the language of subsection (g) (2) and the commentary on it in the report should be carefully reexamined in light of the real concerns of librarians.
And I would say, in light of the proposal put forward by Secretary Matthews, that I think that is something that should be considered in this context.
A line must be drawn between legitimate interlibrary loans using photocopies instead of bound books, and prearranged understandings that result in a particular library agreeing to become the source of an indeterminate number of photocopies. To find that line and draw it clearly is one of the most difficult legislative tasks remaining in the revision program.
57–786—76—pt. 3— 27
And in view of what the Senate Judiciary Committee did Tuesday, I think it is almost entirely up to you at this point, because they did not take it up and make any effort to address this problem in their markup.
I also indicate that I think CONTU, the new National Commission on New Technological Uses of Copyrighted Works, should not be forgotten here. There are legitimate things it can do. But, at the meeting yesterday, at one point, there was a suggestion made that they shouldn't try to reinvent the wheel and that the Congress has a long history behind this provision. And I think that proposals are coming to you, and maybe already have, that you should delay action on, or you should make interim action, pending what CONTU does. And I don't argue with that, as long as you lay a groundwork for what it does. I do feel the interrelationship between 108 and the Commission should be addressed in your report. I think it is important that you get out of the Commission what you want. You created it and it should do what you want it to do, in relation to this problem.
I will come back to the question of videotape archives, which does need to be addressed in this context, Mr. Chairman. A problem arose in the context of a hassle between CBS and Vanderbilt University over the archives that Vanderbilt started building of the Walter Cronkite program. That, essentially, was the start of it. They are now doing all of the network programs, and without authority. And, as these things. grow, they have started editing a little bit and they are distributing duplicates of the videotapes and so on. They are compiling some programs by subject matter, and so forth. Everything is nonprofit, but CBS sued them, and I think the case is now in coldstorage for a while. I think one of the reasons is that they are waiting to see what Congress does with this subsection. And there is a good deal I can say on this. I do have a kind of independent proposal, although it really isn't mine. But, let me just read you from page 43, which states:
At the moment, the highly publicized copyright infringement action of CBS against Vanderbilt University for unauthorized off-the-air taping of copyrighted network newscasts and distribution of the tapes, in some cases in slightly edited or compiled form, is in a state of suspension, apparently awaiting a possible agreed settlement, congressional action, or some other form of rescue. The public issues underlying the case, and the Baker amendments to section 108, are important, difficult, fascinating, and in some ways, dangerous.
The Copyright Office cannot support the Baker amendments as they stand. They go far beyond Senator Baker's announced purpose of insulating Vanderbilt from liability under the new law and assuring it that it can continue its valuable work. The language could be construed to exempt activities that were in no way contemplated by the sponsors of the legislation, and that could open the door to completely unjustified uses.
The Copyright Office believes strongly that the fundamental problems addressed in this legislation should be dealt with by establishing, through the mandatory copyright deposit system already in the bill, a national repository of television films, including but not limited to "hard news” programs, in the Library of Congress and the National Archives.
might add; agreemene Library, he line
I might add, parenthetically here that the Library and Archives have a working agreement for the moment as to who is going to collect what in this area, and the Library will collect nonhard news and the Archives will collect hard news. The line is a little hard to draw, but I think they have worked out a satisfactory arrangement.
Mr. KASTENMEIER. On this point, did not Mr. Évans testify for CBS and did he not indicate support for such a proposal ?
Ms. RINGER. Yes, and I think that he testified very clearly in support of the bill to this effect that Senator Baker had introduced last year before this exemption was put into the bill. Now, that Baker bill was not reintroduced into this Congress. On the other hand, it did provide for a Library of Congress archive. It didn't mention the National Archives in this context. But, he certainly supported the idea, yes.
Recognizing the commendable initiative Vanderbilt has taken in preserving material of great historical value that was otherwise threatened with loss, and that other institutions or individuals might be in the same situation—and I am not sure Vanderbilt is the only one doing this—there should be no objection to allowing them to continue ongoing activities, at least up to a reasonable point.
I think that Vanderbilt should not be disadvantaged by the fact that they did something that really needed doing, and I think the fact that they may have gone a little further than they should have should not necessarily impair their activities.
I go on to state that we recommend a grandfather clause for this purpose, coupled with amendments to the current revision bill establishing a national television repository that would preserve rather than destroy fully justified copyright protection while, at the same time, giving scholars, the public, and future generations the real benefits that Mr. Simpson and the Vanderbilt University have been seeking to provide.
This proposal is new to the discussions of the copyright revision bill, but consideration of it, or variations of it, have been going on for several years. Our television heritage is slipping away from us, but agreements on how to save it are hard to achieve. The Baker amendment, and the testimony on it in the 1975 House hearings, reflect a bitter and unproductive controversy in which the public has been the principal loser. We believe that the best answer lies directly in the copyright revision bill, but not by means of the approach accepted by the Senate in section 108. We recommend that the Baker amendment be deleted, and that substitute amendments be drafted along the line suggested here. The Copyright Office would be proud to play a part in such a program.
The Library of Congress is in discussion of this with the National Archives and the Ford Foundation and the American Film Institute. And we believe that the copyright deposit system does offer a very convenient, useful way of making this
Mr. DRINÁN. If that proposal were agreed that the Library of Congress and the National Archives had this television center, would that satisfy all the purposes of the Baker amendment and would he with. draw it?
Ms. RINGER. I believe so, as long as Vanderbilt itself was insulated
Mr. Drinan. By the grandfather clause, you mean?
Mr. DRINAN. Thank you. .. Ms. Ringer. Yes, I think so. I am answering your question as of now, but I don't know for sure.
Mr. KASTENMEIER. You may proceed.
Ms. RINGER. The only other point I had regarding this chapter, Mr. Chairman, is a subject quite a few others talked around and perhaps I should mention before I come to the question of music. There is language with respect to limiting the exemption under section 108 to reproductions that are made without any purpose of direct or indirect commercial advantage and, in truth, when you look at the history of this and the language itself, it is not absolutely clear what this covers. I believe that the intention was not to exempt libraries in industrial concerns or large law firms or corporations and so forth. Obviously, it only applies to libraries and archives, but a simple collection of books could be considered an archive or a collection of periodicals could be considered an archive, too. And the limitations of the exemption do not apply only to nonprofit organizations.
In other words, it is the act that has to be nonprofit and not the organization doing it, and the Special Libraries Association, whose principal membership consists very largely of profitmaking organizations, has become concerned and wants to become included in the exemption. I don't think this was the intention originally, but I do think you should look at this question very closely.
The next point on-if you will bear with me
Ms. RINGER. I am looking for it; yes, page 40. Page 40 covers profitmaking organizations and this language was in the librarians' own draft, as put forward in a document by the Judiciary Subcommittee in 1969. This question of interpretation had not been raised until your hearings. And the legislative history, which I laid out here on pages 41 and 42, that history is not all that conclusive.
It should be noted—and I am reading from the middle of page 42— it should be noted that, as the section is now written, it makes no difference whether the library or archive is part of a profitmaking organization; the question is whether the reproduction is made without any purpose of direct or indirect commercial advantage.” And that point should certainly be clarified.
On the substance of the question, the Copyright Office adheres to its 1961 position. We believe that a library or archive in a profitmaking organization should not, without copyright licenses, be entitled to go beyond fair use in providing photocopies to employees engaged in furtherance of the organization's commercial enterprise. We believe that this was the meaning intended by the drafters of the language in question, and that this interpretation should be reflected in the report. But, I think this is something that you need to debate. The implicaions are rather broad and much broader than the rather limited testimony that you heard on this subject.
I would say that the other issue in all of this that you will need to consider carefully is the scope of subsection (h), which was one of the