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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 inschool 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 postsecondary 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 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 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 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.

A foreign language teacher tapes a portion of a modern French poem and nsks 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 Wall 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 doctrine, where long-established and non-contested custom and practice has in fact 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 eopyright. 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 permitted through the non-renewal 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 85 percent 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 free society should be sacrificed, especially when the author or 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 even more-interested in seeing their works used and their ideas disseminated as they are in receiving remuneration 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 discussion 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, scholarly, 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 II.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 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. 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. However, 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.

Another 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 permitted through the nonrenewal 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 2 years plus a 28-year renewal period to approximately 75 years. Copyr 24 Office records show that approximately 85 percent 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 in more than it would the author or creator himself or herself. We a therefore, why the principle of free access to information so essential to a free society should be sacrificed, especially when the author or 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 evra more-interested in seeing their works used and their ideas dissetinated as they are in receiving remuneration 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 discussion 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 (1) retains and clarifies an overall not-for-profit concept for eduational, scholarly, and research uses and copying, whether couched a-a limited educational exemption or in some other suitable comprehen sive form; (2) clarifies the meaning of fair use as applied to tea, jers and learners; and (3) 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.

Mr. Chairman, I would like to submit for the record the adhe committee's proposal on the exemption.

Mr. KASTEN METER. Without objection, that proposal will be received and be made part of the record.

[The material referred to follows:]

AÐ Hoe COMMITTEF'S PROPOSAL. for Iimited Forcational FxPMPTION: LIMITATIONS ON EXCLUSIVE RIGHTS: REPRODUCTION FOR TEACHING, SCHOLARSHIP AND RESEARCH

Notwithstanding other provisions of this Act, nonprofit use of a portion of a copyrighted work for not commercial teaching, scholarship and research is it an infr.rgement of cops right.

For purposes of tiis meetion.

(1) "1 se” shall mean re; rodu ton copying and recording · sturge and re trieval by antotastic systen « estable of storing processung, retrievi' 2 or fring ferring inform, ation, or in confimerion with any sin anr device, machine of par cess (2) "Port.ou" shall mean brief excerpts (which are not substant al in length In propertion to their sources frota copyrighted works exerpt that it shall do irande (a) the whole of short literary pletorial and grond è works; tha ettire works reproduced for storize in automatic systemis capable of woring prommuung retrieving or transferring information or in conjunction with any similar device, machine or process, provided that

(1) A method of recording retrieval of the stored information is established a' the time of reproduction for storage, and

(i) The rules otherwise applicable under law to copyrighted works shall apply to informtion retrieved from such systems;

(c) Recording and retransmission of broadcasts within five school days after the recorded broadcast; provided that such recording is immediately destroved after such 5-day period and that such retransmission is limited to immediate Ta wing in schools and colleges.

Provided that "portion" shall not include works which are

(a) Originally consumable upon use, such as workbook exercises, problems, of standardized tests and the answer sheets for such tests;

ch) Used for the purpose of compilation within the provisions of Section 103.a).

Mr. STEINBACH. I would next like to introduce Dr. Howard B. Hitchens, executive director, Association for Educational CommuIations and Technology.

[The prepared statement of Howard B. Hitchens follows:]

STATEMENT OF HOWARD B HITCHENS. EXECUTIVE DIRECTOR, ASSOCIATION FOR EDUCATIONAL COMMUNICATIONS & TECHNOLOGY】

The Association for Educational Communications and Technology represents eght thousand educators whose professional commitment is directed at finding fect nological solutions for the wide range of educational problemas. It is imprtant to note here that we regard technology as far more than a collection of educational machines and materials, Technology represents a systematic approach to practical problems that emphasize the application of relevant Tesearch Professionals in my field occupy any number of roles - whether !s directing media programs; developing specific Instructional materials for Classt oma of individual use, assisting teachers or others in selecting mate. me to meet a specific educational objective; evaluating materiais, ideiifyingle grange educational objectives and developing long range plans to meet Pose objectives Our members with this wide variety of jols are employed in is and ev leges: in the Armed Forces and industry, and in malling Iraries and hospitals throughout the country

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