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I draw your attention to Congress' joint- and shared-use provisions in the Higher Education Act, section 1033.

Against this background, we have reviewed the proposed H.R. 2223 and found, as was pointed out to you yesterday, that, for example, section 108(g) trenches and undermines the interpretation of section 107 that we would seek. The details of that, I leave to my statement.

I would draw your attention now to page 6 of my statement, and to the second paragraph; the first and second paragraphs.

Our position is that to deny the classroom teacher the availability of such copyrighted material, in the context of teaching and research, would be to make the teaching and research process less fruitful, less meaningful and less important to scholars; and to do so would not benefit the economic interest of copyrights. We would simply do without, if it were necessary, if we could not have access to this material.

We reiterate, as I say in the second paragraph on page 6, we do not seek the right to engage in multiple copying outside the context of research and teaching. We seek only the right of the scholar and teacher to have available subject matter, subject to the limitations of the statutory doctrine of fair use.

I will close now, and make myself available to your questions. Mr. KASTENMEIER. Unless members are strongly disposed to do so, I would urge they defer questions until each of the witnesses has concluded; then you may ask questions of any of the witnesses who have testified.

Mr. STEINBACI. I next would like to introduce Bernard J. Freitag, Council Rock High School, New Town, Pa., on behalf of the National Education Association; accompanied by Dr. Harold E. Wigren.

[The prepared statement of the National Education Association follows:

STATEMENT OF JAMES A. HARRIS, PRESIDENT, NATIONAL EDUCATION ASSOCIATION

I am James A. Harris, President of the National Education Association. The NEA represents almost 1.7 million teachers in every state across the nation and is the largest professional association in the United States. Its members are active at all levels of education from early childhood through postsecondary and adult. Thus, our interests cover the whole spectrum of educational programs. We appreciate the opportunity to present our views regarding the need to reform copyright law and retain certain positive aspects of the present law, and to comment on H.R. 2223.

The National Education Association is in favor of reform of the U.S. Copsright Law of 1909, but NEA will not support a law which deprives educators of rights derived through long-established practice and which denies teachers and students the right of reasonable access to both print and non-print materials for purposes of teaching, scholarship, and research.

The NEA therefore opposes H.R. 2223 in its present form. It is a regressive bill that curtails or repeals existing rights for education-rights which have been established through the years. We object to H.R. 2223 on a number of grounds.

(A) The language of H.R. 2223 severely curtails the applicability of the "not. for-profit" concept in the present law and substitutes restrictive language that is not acoeptable in meeting the needs of education consumers. Under the not-forprofit principle, a distinction is made between commercial and noncommercial uses of materials-a distinction which we feel is valid and defensible and which should be preserved in the new law. Educational users need special protection over and above that provided commercial users because they have a public responsibility for teaching the children entrusted to them. They work for people not for profit. They do not use materials for their own gain but for the benefit of the children of all of our citizens, including those of authors and publishers.

Tenhers therefore need the assurance that the present law's not-for-profit principle, granting special exemptions for nonprofit uses of copyrighted materials, will become part of the new law.

Section 110 (1) of H.R. 2223 limits permissible uses of copyrighted materials to face-to-face classroom teaching situations and would rule out closed-circuit insrlool uses as well as uses over dial- or remote-access system in schools, all of which are designed to bring materials to learners rather than transport learners to materials. Section 110(2) would restrict the transmission of instructional television programs to "reception in classrooms or similar places normally devoted to instruction" and would rule out the use of such programs in open learning situations in community store front learning centers or for high school or pwxstrecondary formal viewing situations in dormitories or at home. Education is rapidly moving in the direction of providing many alternatives and options in learning wherein school is becoming a concept rather than a place.

(B) The bill also fails to clarify the meaning of "fair use" as applied to the use & of instructional materials by teachers and students. The recent Supreme (onrt decision in the Williams & Wilkins case validates our position that fair UNP is unreliable at best and is, in the words of the Court of Claims, an "amorpbous doctrine." The bill leaves it in that status. If eight Justices of the Supreme Court are unable to reach agreement on whether a given use of a work is a fair Uve, how can one expect a non-jurist to know? The language and rationale are just as applicable against teachers and schools as against libraries.

The NEA does not condone "under-the-table" uses. It simply wants teachers to have reasonable certainty that a given use of copyrighted work is permissible so that they won't be afraid to use a wide variety of materials and resources in the classroom.

The bill further fails to recognize custom and practice in education as a proper basis for "fair use," as was decided in the Williams & Wilkins case. For many years teachers have been accustomed to certain classroom uses of materials being unchallenged or unquestioned. For example:

A clars is having difficulty understanding symbolism in literature, and the class text does not go far enough in its explanation. The teacher therefore makes multiple copies of a short poem or a short essay (from another book) that would help the class understand the concept.

A foreign language teacher tapes a portion of a modern French poem and nske students to verbalize the recorded portion and then tape it so they can see the improvement of their accent.

An economics teacher reproduces 30 copies of graphs and charts from the It all Street Journal to study the stock market.

They consequently have assumed that such uses were legitimate. We argue that custom can become law when it isn't questioned! This is particularly true in cases where the law is ambiguous, as in the case of the fair use dor. trine, where long-established and non-contested custom and practice has in Inct established a meaning for the statutes.

In this regard, the NEA is also concerned the bill still places the burden of proof on the classroom teacher to prove that he or she has not infringed copyright. The NEA believes strongly that this burden of proof should be shifted to the alleger of the infringement, who has all the data involved in all the criteria for fair use which are specified in Section 107.

IC) This legislation further reduces accessibility non permitted through the non-reneral of copyrights after 28 years. It does this by eliminating the renewal requirement and by providing for duration of life plus 50 years. This is a curtailment of education's present rights of access because it unduly extends copyright monopoly from "28 years plus a 28-year renewal period" to approximately 75 years. Copyright Office records show that approximately 83 pesrpnt of copyrighted works have not been renewed after the initial 28-year period, but have passed instead into the public domain. The unwarranted extension of copyright in H.R. 2223 would protect the author's or creator's heirs more than it would the author or creator himself or herself. We ask, therefore, why the principle of free access to information so essential to a frre society should be sacrificed, especially when the author or creator him. pell or hersell has not seen fit to renew the copyright. Many teachers who are also authors tell us that they are as much-or even more interested in seeing their works used and their ideas disseminated as they are in receiving re. muneration each time their works are used. The profit motive is not the only motive that prompts an author or other creator to produce. There is also the

satisfaction that comes from getting one's ideas into the open for diskussion and debate, with the hope of finally seeing them adopted and thereby creating a better life for others who follow.

In summary, the NEA will not be able to support a bill unless it

Retains and clarifies an overall not-for-profit concept for educational, schol. arly, and research uses and copying, whether couched as a limited educational exemption or in some other suitable comprehensive form;

Clarifies the meaning of fair use as applied to teachers and learners;
Shifts the burden of proof from the teacher to the alleger of the infringement.

NEA therefore urges the adoption of language by this committee that encompasses the above-stated concepts and makes copyright reform meaningful for the teachers, scholars, researchers, authors, and publishers who create, transmit, and perpetuate our heritage for future generations.

TESTIMONY OF BERNARD J. FREITAG, COUNCIL ROCK HIGH SCHOOL, NEW TOWN, PA., ACCOMPANIED BY HAROLD E. WIGREN, ON BEHALF OF THE NATIONAL EDUCATION ASSOCIATION

Mr. FREITAG. Mr. Chairman, members of the subcommittee, I am Bernard Freitag, teacher of German and foreign language department chairman at the Council Rock High School, New Town, Pa.

I am appearing on behalf of President James A. Harris, President of the National Education Association.

With your approval, I am skipping the first two paragraphs. I now request that the entire statement appear in the record.

The NEA opposes H.R. 2223 in its present form. It is a regressive bill that curtails or repeals existing rights for education-rights which have been established through the years. We object to H.R. 2223 on a number of grounds.

(A) The language of H.R. 2223 severely curtails the applicability of the not-for-profit concept in the present law and substitutes restrictive language that is not acceptable in meeting the needs of educational consumers. Under the not-for-profit principle, a distinction is made between conimercial and noncommercial uses of materials—a distinction which we feel is valid and defensible and which should be preserved in the new law. Educational users need special protection over and above that provided commercial users because they have a public responsibility for teaching the children entrusted to them.

They work for people, not for profit. They do not use materials for their own gain, but for the benefit of the children of all of our citizens, including those of authors and publishers. Teachers therefore need the assurance that the present law's not-for-profit principle, granting special exemptions for nonprofit uses of copyrighted materials, will become part of the new law.

Section 110(1) of H.R. 2223 limits permissible uses of copyrighted materials to face-to-face classroom teaching situations and would rule out closed-circuit in-school uses as well as uses over dial- or remote-access systems in schools, all of which are designed to bring materials to learners rather than transport learners to materials. Section 110(2) would restrict the transmission of instructional television programs to reception in classrooms or similar places normally devoted to instruction and would rule out the use of such programs in open learning situations in community storefront learning centers or for high school or postsecondary formal viewing situations in

dormitories or at home. Education is rapidly moving in the direction of providing many alternatives and options to learning wherein school is becoming a concept rather than a place.

(B) The bill also fails to clarify the meaning of fair use as applied to the uses of instructional materials by teachers and students. The recent Supreme Court decision in the Williams & Wilkins case validates our position that fair use is unreliable at best and is, in the words of the Court of Claims, an amorphous doctrine. The bill leaves it in that status. If eight Justices of the Supreme Court are unable to reach agreement on whether a given use of a work is a fair use, how can one expect a nonjurist to know! The language and rationale are just as applicable against teachers and schools as against libraries.

The NEA does not condone "under the table” uses. It simply wants teachers to have reasonable certainty that a given use of copyrighted work is permissible so that they will not be afraid to use a wide variety of materials and resources in the classroom.

The bill further fails to recognize custom and practice in education as a proper basis for fair use, as was decided in the Williams & Wilkins case. For many years, teachers have been accustomed to certain classroom uses of materials being unchallenged or unquestioned. For example: A class is having difficulty understanding symbolism in literature, and the class text does not go far enough in its explanation. The teacher therefore makes multiple copies of a short poem or a short essay—from another book—that would help the class understand the concept.

Allow me to give some personal examples:

Teachers in my department make synchronized tape presentations for classroom use. The basis of those slide tape presentations are, by and large, their own materials: Pictures taken on their own trips. IIowerer, some specific items may not be available to the teacher, because you need special permission to get access to the area, or perhaps the pictures taken by the teacher did not turn out quite as well as could be desired. In such an instance, the teacher may prefer to take a picture from the available magazine, make a slide of it, incorporate it right into the slide tape program.

Inother example, dealing with foreign exchange values, dealing with the currency of a given country: On the day that that topic may come up, the teacher would perhaps make copies, 30 copies, of the foreign exchange rates of the previous day in order to help the children make the decision on what the daily rate concerning the story at hand, or topic at hand, would be for, say, marks, shillings, or Swiss francs.

Teachers, consequently, have assumed that such uses were legitimate. We argue that custom can become law when it is not questioned. This is particularly true in cases where the law is ambiguous, as in the case of the fair use doctrine, where long-established and noncontested custom and practice has in fact established a meaning for the statutes.

In this regard, the NEA is also concerned that the bill still places the burden of proof on the classroom teacher to prove that he or she has not infringed copyright. The NEA believes strongly that this burden of proof should be shifted to the alleger of the infringement, who has all the data involved in all the criteria for fair use which are specified in section 107.

(C) This legislation further reduces accessibility now permited through the nonrenewal of copyrights after 20 years. It does this on eliminating the renewal requirement and by providing for duration of life plus 50 years. This is a curtailment of education's present rige? of access because it unduly extends copyright monopoly from 2 years plus a 28-year renewal period to approximately 75 years. Copyr...! Office records show that approximately 85 percent of copyright works have not been renewed after the initial 28-year period, but late passed instead into the public domain. The unwarranted extension of copyright in II.R. 2:223 would protect the author's or creator obiecte more than it would the author or creator himself or herself. We arti therefore, why the principle of free access to information so esselin to a free society should be sacrificed, especially when the author of creator himself or herself has not seen fit to renew the copyright. Many teachers who are also authors tell us that they are as much--or pipa more interested in seeing their works used and their ideas di-sil inated as they are in receiving remuneration each time their works ir used. The profit motive is not the only motive that prompts an author or other creator to produce. There is also the satisfaction that is the from getting one's ideas into the open for discussion and debate, with the hope of tinally seeing them adopted and thereby creating a bit.! life for others who follow.

In summary, the NE.I will not be able to support a bill unleras it (1) retains and clarities an overall not-for-protit concept for eduational, scholarly, and research uses and copying, whether couheda a limited educational exemption or in some other suitable comprehr. sive form; () clarifies the meaning of fair use as applied to tra ipata and learners; and (3) shifts the burden of proof from the tears to the alleger of the infringement.

VEA therefore urges the adoption of language by this contle Ifritt that encomienne's the above-stated concepts and makes copsrigitte form meaningful for the teachers, scholars, researchers, author :: publishers who create, transmit, and perpetuate our heritage for iut. generations. * Jir. (Chairman, I would like to submit for the record the al hx committee's pronal on the exemption.

Vir, KAS M R. Without objiretion, that proposal will be this a: Ime made part of the record.

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