There was, as you know, a big issue over computer uses, which lapped over into the educational area. There was legislation aimed at setting up the National Commission on New Technological Uses of Copyrighted Works, which sought to deal with that. And the library photocopying issue was extremely lively in that context and in the context of the general revision bill. But, the classroom teaching question was quiescent.

But, the compromise, if that is what it was, just could not hold together that long. It was not nailed down tight enough. And meanwhile, the Williams & Wilkins case was pursing its way through the courts. In 1973, after all of these years, the Senate held a hearing which included this very issue. It had been raised again by a letter or letters that had been sent to the Senate, indicating that we, that is the ad hoc committee, were going back to our proposals for a complete exemption. They gave the reason why. And the why was essentially that they had been scared to death by the Williams & Wilkins case. The Commissioner's report, the lowest court opinion in that case, which was in the Court of Claims and doesn't follow the usual procedure in this type thing, had been a very sweeping victory for the authors and publishers. And the educators and the classroom teachers and the higher education community had been very concerned about all this, because this was an interpretation of a fair use. The Williams & Wilkins case ran counter to what they had felt had been agreed to as the metes and bounds of fair use in the early discussions. And they were insisting either that there be an exemption, a complete exemption, or that the Williams & Wilkins case, as it then stood, be reversed by legislative process. They asked that certain further safeguards. which were similar, although not exactly the same, as the ones they had put forward in the Senate in 1967 be added to the bill. This was greeted with a certain amount of outrage, as you probably know, because they felt that, well, you make a deal but now you are going back on it. But, it wasn't that simple, Mr. Chairman. There had been a long delay.

Nevertheless, we were back, not quite to space 1, but almost. And the testimony you heard is along those lines. But, yet, if you look at the whole picture very carefully, going back to the beginnings and trying to trace it through this agreement that sort of broke downand the structure of the agreement still exists-and if you read the educators' testimony carefully, I believe you can see that the approach that your subcommittee took is a viable approach, if certain things are done.

Again, I cannot do this justice, but let me give you, if you will forgive me for using the term, the bottom line of this chapter from my statement:

The tortuous history of this provision (section 107) has finally produced a text that satisfactorily expresses the legislative intent and, as far as it goes, is acceptable to the interested parties. That is, nobody is wrangling over the wording of section 107, as such, anymore--and aside from the Department of Justice no one has suggested any changes.

The Department of Justice suggested changes that were sort of outside the area of basic issue. We therefore feel it would be unwise

and unnecessary to tinker with the language any more. We think we've got that pretty well nailed down.

But, the clarification of legislative intent is something else again. And this is why I tried to summarize the present positions, taking into account the history and the hearings that you have held. And the summary of positions is as follows:

First: There is general agreement that, because of the importance of the problem and the lack of judicial precedent, Congress should clarify its intentions as to whether or not certain educational practices are or are not to be considered fair use, but without freezing the application of the doctrine or opening the door to widespread abuse. In other words, you have to address this problem somehow, either in the report or in the legislation.

Second: There are essentially two ways of accomplishing this: (1) by a detailed interpretation of fair use in the legislative report; or (2) by an explicit statutory exemption.

Third: Following extended discussions, the authors and publishers agreed to the present wording of section 107 and to an interpretative commentary with respect to educational uses along the lines of the 1966, 1967, and 1974 legislative reports; that is, the Senate legislative reports.

In other words, and I didn't mention this in my copy here, but I suspect you know it very well, the Senate 1974 report adopted all your language, or practically all, but with some changes which probably ought to be examined. The authors and publishers have consistently and strongly opposed any explicit educational exemption.

Fourth: Although the educators consistently favored an explicit. exemption-and they never completely gave up on it, for that was always their first choice-they did agree at one point to accept the approach of a legislative interpretation of fair use on certain conditions, including the expanded wording of section 107-and that has not been accomplished-certain changes in the language of the commentary, and further insulation from liability from innocent infringement and that goes back to chapter 5. After the first Commissioner's decision in favor of the copyright owner in the Williams & Wilkins litigation, the educators returned to their proposal for an outright exemption, which clearly remains their first choice.

Mr. RAILBACK. Where is she reading from?

Ms. RINGER. I am sorry, I am reading from page 26 of chapter 2, down at the bottom. I am going to skip around a lot, though.

However, it also appears that the position of the educators is still flexible enough for them to accept the approach of a legislative interpretation of section 107, provided it is sufficiently clear and reasonable from their point of view, and provided certain changes are made elsewhere in the bill.

We take the position-and now I am on page 27-that the proposed exemption for educational uses is much too broad. But, in any event, we seriously doubt whether satisfactory statutory language for this purpose could ever be achieved. The situation is one that really calls for the flexibility of a fair use approach, rather than the rigidity of an outright exemption.

At the same time-I am reading from page 27-we recognize that the interpretative language in the 1974 Senate report, consists, with

some changes, of a text prepared nearly 10 years ago by your subcommittee. Given the importance of this section and of the committee reports to an overall solution of this important problem, we recommend that the commentary be carefully reviewed and, where necessary, revised to take account of some of the criticisms leveled at particular

statements or omissions.

Over the years, the educators have argued off and on, and again, to you in 1975, that under the present law they enjoy a not-for-profit exemption with respect to educational uses other than performances. And this is simply not so. The only not-for-profit exemption in the present law applies to performances and nothing else.

But, the commercial or nonprofit character of a use, although it is not necessarily conclusive with respect to whether or not something is fair use, in combination with other factors certainly plays an important part in determining whether something is fair use; that is, if something were an infringement if it were commercial, it might not be if it were nonprofit. The motives and purposes of the use play an important role with respect to fair use decisions. I think it would certainly be appropriate to emphasize this point in the legislative commentary dealing with fair use and educational photocopying. There was a letter to Chairman Kastenmeier, sent on August 1, 1975, which I think is worth noting here. The parties that participated in the testimony on this subject through their representatives have apparently heard your plea that they get together and see if something couldn't be worked out, and they have been meeting. I believe that you will know the results of this before you finish your work this fall. I can't guarantee it will produce much of anything, but at least the parties, thanks to you, are talking again. And I do feel this will play a role in what you say about fair use and educational copying in the final report. I won't pursue this down to the ground, Mr. Chairman, but essentially what I am arguing here is that if you go back to your original idea, which was to deal with this through a fair use section and a rather elaborate explanation in the report, and if you reexamine the language you came up with in 1967 and seek to bring it up to date and take into account some of the points that have been made, then I believe that this is a preferable approach and it is acceptable to the educators, provided certain further insulation is written into chapter 5. Now, Professor Raskind proposed that there be no remedies other than actual damages. It seems to me that really you might as well not give any protection at all in this area. But it does seem to me that there are things you can do with respect to presumptions as to fair use in the case of individual teachers. I think there are certain further amendments you can do with respect to statutory damages, perhaps directing that if a teacher is completely innocent then statutory damages, not actual damages, but statutory damages be waived. This might be the way out of the problem. And what I am basically suggesting is the problem really, as I judge it, is not as serious and not as insoluble as it may appear from that testimony.

Mr. RAILSBACK. Could I just ask one quick question?

Mr. KASTEN MEIER. Yes.

Mr. RAILSBACK. You know, I appreciate your remarks, except you go on later to express the difficulty that is going to be encountered in having individual teachers obtain permission. And you suggested a clearinghouse. Are you going to go into that at all?

Ms. RINGER. Yes. I felt I had to address that last paragraph. Mr. RAILSBACK. I think you are right. I think that is why they think that not for profit has been excluded, because probably nobody has ever enforced it.

Ms. RINGER. That is right.

Mr. KASTENMEIER. At this point, I regret we have to interrupt again. We have had the second bell on a recorded vote on the floor. Accordingly, we will recess for 10 minutes, and try to reconvene one more time before lunch and see if we can complete our work. So with that, we will recess until 11:55. The committee stands in recess.

[Recess.]

Mr. KASTENMEIER. The subcommittee will come to order.

The Chair will announce that we will proceed as far as we can. If we are interrupted by another vote, we will conclude today's hearing at that time. Otherwise, we will proceed for perhaps a half hour or so, covering as much ground as we can and then we will adjuorn this part of the hearing over until 2 weeks from today, until the 23d. We are in competition not only with activity on the House floor, but at least one sister committee commands the attention of a couple of our members. So, we will not protract this morning's excellent presentation. But, you may proceed.

MS. RINGER. Actually, I had completed my presentation, effectively, on chapter 2 of this draft report. Mr. Railsback had asked a question. which I think was very germane, and I would invite other questions if the subcommittee cares to.

Mr. KASTENMEIER. If the gentleman from New York has no questions, I have no questions to present at this time on that chapter. I would prefer that you continue.

Ms. RINGER. The next chapter is a long one and it covers the entire range of problems in section 108, which is entitled, "Limitations on Exclusive Rights: Reproduction by Libraries and Archives." But one of the themes of the chapter, which I will try to bring out this morning, is the interrelationship between section 107 on fair use and section 108, the specific library and archival exemption, and that is an extremely important underlying problem here. I think that the best way to address the problem is probably by considering the two sections together.

The history of this legislation, as it applies to educational uses is tortuous, and I would say that the same is true with respect to library photocopying as an issue. But, in addition, it has been startlingly subject to zig-zagging. And I can only summarize the situation before the Senate consideration of the bill in the early 1970's as one of an agreement to disagree, which produced legislative inaction. The library photocopying problem has been with us for many, many years, for many decades. As I tried to bring out in my legislative history in this chapter, it was the subject of dispute between libraries and publishers back in the 1930's. It was the subject of law review articles and a provision in the Shotwell bill, which I mentioned, in the 1940's. That provision actually dealt with this problem, too. And it was the subject of something that was rather unpleasantly called a gentlemen's agreement of 1935, which mostly dealt with microfilm and particularly photostating. The dimensions of the problem were very different, of course, but the problem was there then."

And the gentlemen's agreement, as it was called, did allow a library, archive, office, museum, or similar institution owning books or periodical volumes in which copyrights still exist to make and deliver a single photographic reproduction or reduction of a part thereof to a scholar representing in writing that he desires such reproduction in lieu of loan of such publication or in place of manual transcription and solely for the purpose of research. You see, it required a written certification. It is not too clear what this agreement was. The practical experience with this agreement was that it apparently was not too successful, but it did give a certain amount of stability to this problem as long as the photocopying activities of libraries or in libraries were necessarily limited by the cost of photostats and the inconvenience of microfilm. And it is clear that this problem achieved entirely different dimensions, both quantatively and possibly qualitatively, when the photocopying machines came into very widespread use in libraries. And I would say that event, in terms of impact, really hadn't been fully felt even when you held hearings in 1965. I think that the practical problems have changed in dimension and perhaps in nature since then.

But, in any case, I have tried to trace the early efforts to deal with this problem in the context of revision. I think it is perhaps to the credit of my predecessors that this was recognized as a problem, and that one of the studies in our revision series back in the 1950's was devoted to this. This was really before there were so many Xerox or other photocopying machines around.

The 1961 Register's report made recommendations on this. It is very interesting to read some of these early efforts in light of the circles that we have been around on this problem. But, I will not try to reflect them too much here, because it is too complicated.

In any case, we did attempt to get a library photocopying section in the earliest draft of the bill that was given public circulation. And it was strongly opposed by the authors and, to some extent, the publishers. The library community was not really organized in opposition, but it was getting that way when this was under consideration. And undoubtedly, the discussions that were held on that section of the preliminary draft contributed to the library community getting organized on this section. But, in fact, the reaction was somewhat inconclusive. By the time we got to the drafting of the 1964 bill, which was the very first bill in the series that was introduced to the Congress, the issue had been drawn so sharply that there was a moment-and I remember the occasion very well-when lawyers representing the authors and publishers on the one side and the library group on the other side, agreed rather enthusiastically, but with a very bitter undertone, that we should drop the provision entirely from the bill and rely on fair use completely to deal with library photocopying.

But, because there could be no agreement as to what the library could or couldn't do in this situation, and because the agreement to drop the provision was based on entirely opposite assumptions with respect to what the present law was, we were not able even to have a dialog on the subject in this forum.

Now there was some testimony, but it was very little and it was all in terms of what fair use might or might not provide. There was no