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There was, as you know, a big issue over computer uses, which lapped
liens that had been sent to the Senate, indicating that we, that is the a lor couimittee, were going back to our proposals for a complete FW!ption. They gave the reason why. And the why was esentially tudies had ben sared to death by the Williams & Wilkins case.
Ilir ('ommissioner's report, the lowest court opinion in that case, W!h was in the ('ourt of Claims and doesn't follow the usual procedure in this type thing, had been a very sweeping victory for the au
un and publishers. And the educators and the classroom teachers and the lugher education community had been very concerned about
1. th.: bara um this was an interpretation of a fair use. The Williams & Wilkins ca eran counter to what they had felt had been agreed to as the tries and bounds of fair use in the early discussions. And they Wrir 11--ting either that there be an exemption, a complete exemp1.in, or that the Williamid Wilkins case, as it then stoo, be reversed by legislative proces. They asked that certain further safeguards, Hondah were similar, alıhough not exactly the ramme, as the ones they had put forward in the Senate in 1967 be added to the bill. This was preved with a certain amount of outrage, as you probably know, be
fir felt that, well, you make a deal but now you are going back 131 !!. But, it wasn't that simple, Mr. Chairman. There had been a long
abrirrt helpomping we were back, not quite to space 1. but almost.
the testimony you heard in along thone lines. But, vet, if you look at top whole puotare very carrfully going back to the leginning and
to trump it through than agreement tint sort of broke dow) d'itig strukture of the ag e nt till exemps and if you read the ..!on' tentimony parfully. I believe you can see that the approach
1 mula ointive took is a viable appronch, of certain things are
drain, I cannot do this justice, but let me give you, if you will 13. noe for uning the team, the wttom line of this chapter from 3.atenent:
l', tortison Borstory of this provision ( tion 107) ha- finalls pro 1. lat that mafifi foris proses the loqlantin n 11. n forrit gyms alle to the interesi part 1**. I latin,
n 11 the morning of 'tion 107.1* *116 h, anymore and adde "style Lartment of Jer no one 1817 1 111"'!".
I'm Ir partment of Justine sigerted changes that were sort of $0.9.17 1!. Arra of basic inue. We tlrrr fore feel it would be unwind and unnecessary to tinker with the language any more. We thirk we've got that pretty well nailed down.
But, the clarification of legislative intent is something elup 392 And this is why I tried to summarize the present positions, takilig 1.10 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 importame of the problem and the lack of judicial precedent, ('ongression. I clarify its intentions as to whether or not certain educational parts you are or are not to be considered fair use, but without fringi application of the doctrine or opening the door to widespreala .
In other words, you have to address this problem somehow, t'lari in the report or in the legislation.
Second: There are essentially two ways of accomplishing this: 111 br a detailed interpretation of fair use in the legislative report; of (2) hvan explicit statutory exemption.
Third: Following extended discussions, the authors and pul, poput agreed to the present wording of section 107 and to an interpniat:le commentary with respect to educational isps along the line of te 1960, 1917, and 1974 legislative reports; that in the Senate le tiva reports,
In other words, and I didn't mention this in my copr hem, but I supect you know it very well, the Senate 1974 report adopted all your language, or practically all, but with some changes which prodal's ought to be examined. The authors and publishers have constel. and strongly opposed any explicit educational exemption.
Fourth: Although the educators consistently favored an opl. exemption--and they never completely gave up on it, for that *** always their first choice thev bid agree at one point to li' rft the approach of a legislative interpretation of fair use on eritas conditions, including the expander wording of section 107 -and til has not been accomplished certain changes in the language of time commentary, and further insulation from liability from 11! 17fringement- and that goes back to chapter 3. After the fint l'out'.**
lones'u tecision in favor of the copyright on ner in the W;Zirruit Wilkins litigation, the educators returned to their proposal for an outright exemption, which clearly remains their first choice.
Mr. RAURICK. Whereinshe trading from!
M. Rinork, I am sorry, I am reading from page 6 of "hapter down at the bottom. I am going to skip around a lot, though.
Ilowever, it also appears that the position of the edu ator is all flexible enough for them to arrept the approach of a legislative 1112*** pretation of xylon 107. provided it is suficiently clear and readin from their point of view, and provided aitan change are hade ei where in the bill.
We take the portion and now I am on pare - that the project pription for educational uw is much to broad. But, in any party we Wriously coult whether mati-factory statutory laneniam for this
ON coild per l achieved. The situation is one that really anils for the floubistvo u tair in approach, rather than the rights of an outright exemption.
At the same Te I am trading from pare 27--we nowomize th.at the interpretative langia * in the 1974 S ate 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 in fair use in combination with other factors certainly plavá an important part in determining whether something is fair use; that is, if something were an infringement if it were commercial, it might not le 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 He 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. 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 noboly kas 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. found. ingly, we will recess for 10 minutes, and try to reconvene one that time before lunch and see if we can complete our work. So with the we will recess until 11:55. The committee stands in recess.
The Chair will announce that we will proceed as far as we can l! me are interrupted by another vote, we will conclude todars barn at that time. Otherwise, we will proceed for perhaps a half hour or ), covering as much ground as we can and then we will adjnorna part of the hearing over until 2 weeks from todar, until the en are in competition not only with activity on the House floor, birt at least one sister committee commands the attention of a couple of eit members. So, we will not protract this morning's excellent prema tion. But, you may proceed.
Ms. Rixter. Actually, I had completed my presentation, effectiver on chapter 2 of this draft report. Mír. Railshark had asked a quiet.nn. which I think was very germane, and I would invite other questions it the subcommittee cares to.
Mr. KASTENWETER. If the gentleman from New York has no que tions. I have no questions to present at this time on that chapter. I would prefer that you continue.
Js. RINGER. The next chapter is a long one and it covers the entire range of problems in section 1119, which is entitled, “Limitata Exclusive Rights: Reproduction by Libraries and Archives." Bisore of the theme of the chapter, which I will try to bring out this mese ing, is the interrelationship between section 107 on fair use and see tion low, the spitie library and arrival exemption, and that is an extremely important underlying problem here. I think that the in way to address the problem is probably by considering the two Sections together.
Tie history of this legislation, as it applies to educational is tortuona and I would say thint the same is true with respect to library photoonuing as an inde. But, in al lition, it has been startling til inct to a 78 bring. And I can only suunmarize the situation before the Senate (o! leration of the bill in the early 1970' s one of an agree Metit to agree, which produced legrimitive inaction. The lirit photo at pini proli'em has been with 114 for 11:1. mnr PR, for many draw. I tried to bring out in my leri lative history in 16 chapter. it was the subjet of dispute between libraries and pub-hers Joint 1910. It the wishignit of law p a rada! vintin in the short!! },,!!, which I mentioned in the 1914 T 14 pmr
on 11912"'r dealt with this pr bilem, too. And it was the subset of somethire that a rather upletantly called a meriter's age m at of 1.993. Which mostlr alt with mr roli!ın and parties'ir'
peate 4.1*** Tip of me?yalons of the probern were very d.:17!11, or a mes 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 periodral volumes in which copyrights still exist to make and deliver a *ingle photographic reproduction or reduction of a part thereof to a simar representing in writing that he desires such reproduction in daru of loan of such publication or in place of manual transcription and solely for the purpose of research. You see, it required a written opptativation. It is not too clear what this agreement was. The practical erferienie with this agreement was that it apparently was not too Szexpaful, but it did give a certain amount of stability to this problem & long as the photocopying activities of libraries or in libraries were tmrmarily limited by the cost of photostats and the inconvenience of 4 rotilm. And it is clear that this problem achieved entirely different dimensions, both quantatively and possibly qualitatively, when the Tronpring machines came into very widespread use in libraries. id I wonld say that event, in terms of impact, really hadn't been fils felt eren when you held hearings in 1965. I think that the practal problems have changed in dimension and perhaps in nature Anten.
But, in any case, I have tried to trace the early efforts to deal with th:- problem in the context of revision. I think it is perhaps to the
welst of my prelepesors that this was recognized as a problem, and that one of the winches in our revision series back in the 1950's was mesotel to this. This was really before there were so many Xerox or es ar photocopying machines around.
The 1961 Register's report made recommendations on this. It is tort internating to read some of these early efforts in light of the irl that we have been around on this problem. But, I will not try to preplet 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 cirrulation, And * * *4 strongly opposed by the authors and, to some extent, the pubre Hoppa The library community was not really organized in opposition,
it it is getting that way when this was under consideration. And pr. fonderlly, the discussions that were held on that sation of the pre!!!...ary draft rontributed to the library community iting orunized o this eption. But, in fact, the reaction wie somewhat inconclusive
By the time we vot to the drufting of the 1. lill, which was 1x veri in bill in the series that was introduced to the ('ongram, the & P had been drawn so wharply that there was a moment and I pembe the oravon very well - when lar en representing the
or and publishers on the one side and the library i top on the '.prwile, apud rither enthu-inctically, but with a very better trilir. fr*, that we should drop the provisjon entirely from the l:ll ard nur u p ropioplastruly to deal with library photos op np. But, taller there could be no nyrir!! a- to what the library lor roldn't do in this situation),
A le**9'- the a llert to for the proton was baril on entirely o rten. 7000 W?!
t to what the present law was, we were not alle plein tolalia they on the subject in this forum
Southep W wme testimony, but it was very little anil it was all in terms of what fuir un might or might not provide. There was no