[H.R. 2223] COPYRIGHT LAW REVISION: A POSITION PAPER BY THE ASSOCIATION 10 The members of the Association for Educational Communications and Technology (AECT) believe that technology is an integral part of the teaching, learning process and helps to maximize the outcomes of interaction between teacher and pupil. Regulations governing United States Copyright were originally developed to promote the public welfare and encourage authorship by giving aufbr certain controls over their work. It follows that revisions in Title 17 of the United States Code (Copyrights) should maintain the balance between pro viding for the compensation of authors and insuring that information rem”8 available to the public. Some of the revisions proposed in 8. 22 and H.R. 23 lose sight of this balance between user and producer. AECT endorses the criteria to be used in the determination of "fair use" as contained in Section 107 of the proposed bill: Section 107. Limitations on exclusive rights: Fair use ⚫ the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords, or by any other means specified by (Section 106), for purposes such as criticism, comment, news reporting. scholarship, or research, is not an infringement of copyright. In Geler mining whether the use made of a work in any particular case is fair use the factors to be considered shall include : (1) The purpose and character of the use; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work. However, we propose that the concept of “fair use” should apply equally to the classroom teacher and media professional—including specialists in audiotsmal and library resources, Media personnel are becoming increasingly important members of educational planning teams and must have the assurance that they may assist classroom teachers in the selection of daily instructional materials as wel as with long range curriculum development, Classroom teachers do not always operate "Individually and at (their) own volition." The fact that the media jo fessional makes use of advance planning and has knowledge aforethought of le materials he prepares for the teacher should not invalidate the application of the "fair use" principle. Concerning the use of copyrighted works in conjunction with television, AECT proposes that “fair use." as it has been outlined above, should apply to educa tional/instructional broadcast or closed-circuit transmission in a non-profit edacational institution, but not to commercial broadcasting. Once the doctrine of "fair use" has been established in the revised law, negotiations should be conducted between the proprietor and user prior to any use of copyrighted materials that goes beyond that doctrine. We believe that the ela tment of the “fair use” concept into law prior to negotiations will guard against the erosion of the concept. Generally, a reasonable fee should be paid for uses that go beyond "fair use,” but such fee arrangement should not delay or impede the use of the materials. Producers are urged to give free access (no-cost contracts) whenever possible. We agree with the Ad Hoc Committee of Educational Organizations and Ins'i tutions on Copyright Law Revision that duration of copyright should provide for an initial period of twenty-eight years, followed by a renewal period of forty-eight years, whereas the proposed bill sets duration at the "life of the author plus fifty years." It seems reasonable that provisions should be made to permit those materials which the copyright holder has no interest in protecting after the initial period to pass into the public domain Regarding the input of copyrighted materials into computers or other storage devices by non-profit educational institutions, we agree with the Ad Hoc C‹•• mittee that the bill should clearly state that until the proposed National Comr.*sion on New Technological Uses of Copyrighted Works has completed its study. wich input should not be considered infringement The proposed bill states only that “... (Section 117) does not afford to the owner of copyright in a work any greater or lesser rights with respect to the use of the work in conjunction with matic systems...” new epyright law that both users and producers can view as equitable depends upon the mutual understanding of each other's needs and the ability to effective y work out the differences. We will participate in the continuing dialogue with the Educational Media Producers Council and similar interest groups to -4 metually acceptable guidelines regarding the boundaries of "fair use." and re-sonable fees to be paid for uses beyond "fair use." This dialogue will be espera ly important in the area of storage, retrieval, and/or transmission of materials during the time period prior to the issuance of the report of the ta' Corlission on New Technological Uses of Copyrighted Works, We feel that the above modifications of 8. 22 and HR. 2223 are needed to insure fast the rev sed law assists rather than hinders teachers and media specialists 0år nå, or concern with fair use is that in studying the legislative history of tledere fair use does not seem to apply equally to media professionals as In teachers. The previous House and Senate reports identify "spontaneity" of the an important determinant as to whether a use is fair or not. Fair use ed to a classroom teacher who "acting individually and at his own voli5 tak vote or more copies for temporary use by himself or his pupils in the བ ་མ་ལ་་། However classroom teachers do not always act individually or at Al Veld on They are frequently assisted by media professionals with the n of day instructional materials as well as long range currier'um deTV ***** The fact that a media professional is frequently not classified as a Kom teacher" and is sometimes even classifed as "administration' should m from contineing his role in the instructior al process. We are not treating that any rights beyond "fair use" be extended to media professionals, y that they be allowed as much freedom as other education professionara, optis working with others interested in this problem and will present *** alive, 1 gs ge to this subcommittee in the near future. eich We support the enactment of Section 107 with suggested changes, * Pat it will not solve the daily dilemmas faced by media professioȚIRİN, feyzers, and librarians, AU DIOVISUAL INSTRUCTION, a magazine published It hy association, features a monthly column entitled "Copyrat Today that demonstrates the confusion over the bounds of fair use. The column (several rests are attached) features copyright questions posed by readers with answers »ggested by copyright experts, usually including at least one educator and one producer. As you can see from the examples, there are frequently as many ausweis Dag vet question as there are copyright experts, Tike the following question from the November 1974 issue of Audiovisual Instruction: Queation. Two teachers in this district are preparing audio tutorial packages fette Lích grade botany unit They found five pictures they need in a color fa oward by the district. They want to make slide coples of the five frames Two copies of each slide is required. Would this be a violation of the copyright law › T'ere are two opinions as to the legality of this action provided in the article fre by an educator, the other by a representative of the producers. The educator feit the situation cited may be beyond fair use because more than one copy wold be made and the copying wou'd be done by someone the media profes koler than a classroom teacher. The producers" representative states bal the situation would fail within "fair use And sad we realize the enactment of Section 107 w!) Laf solve our problem a Even with the guideilues provided in that section it is still d "eult to deter Wat is fair use and what is not And if an edgen' r is not able to deter here if the proposed time is fair and feels that permission to copy and be 40 *a.sed in order to remain safely within the bounds of the law, how das he of the get [wy! lesion from a publisher or producer to use the material? Roque fug peruussion to use copyrighted materials is currently a ic free entry tedious process for educators An attached article entitled As It Affects Instructional Deveing tut tal" Deventer 1974) demonstrates the problems of contacting vra with no predetermined procedures Perhaps flis prot *ted by eats 1shment of a clearinghouse eitt er governmental or private's stersted. Certainly this would make it easier for an educator if he or sle has to contact only one source for permission rather than trying to deal with xt 『་ numerous producers all with different procedures. But even a clearinghee arrangement will still result in much time spent in waiting for rep 3. We feel this delay, even if it is only (ideally) a week or so, might be de mental to the teaching/learning process. It doesn't allow the education profeso sional to take advantage of the "teachable moment." For example, on the m following a speech by a noted individual, a teacher may want to use the org of the speech that appears in the local paper for reproduction and distrantia to a speech class for critique. Clearly, if the teacher had to wait several weeks for permission to use the text, the impact of involving students in eerry events would be lost. So in many instances, some means other than a Grafiné house must be used. AECT has spent many hours working with producers in an attempt to work out guidelines that would assist educators in upholding the copyright las We have come increasingly to the conclusion that the best meats of sẽ v the problem is by developing voluntary licensing agreements between educators and producers. Such agreements would allow a pre-determined amount of exp3 ing, kind of copying, or maybe even unlimited copying either for no charge t for a pre-determined fee. Such an agreement would set the bounds of fat use in advance and would also allow educators to take advantage of the "teas.. able moment." We are not asking you, the Congress, to legislate a licensing agreemen' l' would be almost impossible to include every possible type of necessary datin ment in legislation. We think we as educators must take the responsiblity 1 work with producers of materials to develop such agreement. AECT Las tal and will continue to have dialogue with producers of materials in an a' to satisfy the needs of both groups. We are asking only support and encourage ment from the Congress to both sides to sit down and develop hezisá agreements, The AECT position which has been presented in this testimony has been wri received by both educators and materials producers. Representatives of ba these communities viewed the position as a realistic step toward resuiting the issue of defining the limits of fair use. The statement is viewed by methi of each group as offering protection to educators that is not offensive to the producers. We think the incorporation of the AECT position into HR. 223 and "'* legislative history is essential to the development of a new copyright laa that is equitable to educators and creators of materials alike. I wish to thank the Subcommittee for this opportunity to present our Views I only hope we can impress upon you that we are as concerned as you are w the necessity for a new copyright law that will allow us as education profes sionals to continue the improvement of education through the appucali a of new technology and communications. [Reprinted from Audioviena! Instr etion, published by the Assetation for Etscati sal (mmuncatius and Tecki gy, Noven, er 1974] COPYRIGHT TODAY (By Jerome K. Miller®) This column is open to all renders of Audiovisual Instruction. News Pots and questions about copyright which are of general interest will be inceded as space permits. The identity of individuals submitting questions to this column will be held in the strictest confidence. Please send a'l news d'ens and questions to Jerome K. M her, Chairman, AECT Copyright Commer 1025 Adams Circle, No. 2B, Bon'der, Colorado S0203. It is impossible for the editor to respond directly to questions about copyright, COPYRIGHT BILL IN THE SENATE Preceding consideration of the Copyright Revision Bill (8. 1361) by the ful Senate, it was considered and approved by the Senate Judiciary and Comme TEE Committees The reports from these Committees (8. Rpt. #93 163 from the Judiciary Committee, and 8. Rept. #93 1035 from the Commerce Committee) Jerme K. Miller is maststant professor of instructional media Central Washingt↑ State ( Lege Feraturg. lle la currenty on lease to pursue dictoral studies at *B* Liveraity of Colorado are helpful in understanding the Congressional Intent behind the bill. Copies of the reports are available, free of charge, from the Senate Documents Room, US Capitol, Washington, D.C, 20510. Please include a self-addressed label with y otros, est Your Seuator can also assist you in obtaining copies of the report, T'es of the Senate bill is included in the report. Educators will be especially interested in the bill's definition of "fair use" « The bill defines it to include: 1) the purpose and character of the use; esture of the expyrighted work; 3) the amount and substantiality of te pori, in used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work Ile accompanying Judiciary Committee report states: “The fair use dare in the case of classroom copying would apply primarily to the station of a teacher who, acting individually and at his own volition, makes ote or more copies for temporary use by himself and his pupils in the class= Pet A different result is indicated where the copying was done by the cdnenval institution, school system or larger unit or where copying was tesstred or suggested by the school administration, either in special instances or as part of a general plan,” AFCI has opposed this interpretation and proposes that "fair use" should #¡¡y equally to the classroom teacher and media professional. AECT has also kind that the "fair use" principle should apply both to the selection and prepn of daily instructional materials as well as with long-range curriculum deve pinetit. Even if 8 1361 is approved by the Senate in the near future, there is little elance that the Honse will begin consideration of copyright revision until next year However any bill approved by one House of Congress this year could carry derable weight in future consideration of the subject. QUESTIONS & ANSWERS Queston Two teachers in Phils district are preparing audio tutorial packages fest7th grade be any mat. They found five pictures they need in a color flim rated by the district. They want to make side coples of the five frames, two 6,ses of each slide are required. Would this be a violation of the copyright law? A lower 1. If the "color film owned by the district" is a commercial copyfla - od product, this could be interpreted as a viciation unless permission were ast in advance from the copyright holder. Ownership of the prints by the darit does not automatically include duplication rights. The danger jitila In from enne which could be interpreted as a violation of fair use are: 1) the creation of more than one copy, and 2) by someone other than the classroom Director of Audio-Visual Services, Los Angeles City schools, Answer 2. In this situation there is illustrated a fairly good example of a vfa dng within the doctrine of fair use. Taking into consideration the cat lie to be made of the individual film frames, and the nur ber of a ly being copied 1 MPC feels that this ought to be defined as fair le danger in this practice, however, con d res at if multiple cries of es are then reproduced for use in the classroom which will utilize the IVAN R BENDER, Chairman, Copyright Committer, Educational Media Producera Council Queston Chue of our teachers recently asked the distilet IMC staff to make ties of a chapter of a book in the school library Le chapter denn „* achiend of Prydent Andrew J. lison and was needed for a current Turan. We were as-ured that the materinis wou'd only be used once Is !1 1s all 5 of the copyright law, and would it be a vidation under the pro 1 In this situation fair use would not aptly because of the fact that egies are being made of the chapter from †? is book. Multiple copying even involves only excerpts from a work, in generally regarded as falling witwide •pe of fair use. The question of the number of times 11 at these ei pitem wound be used would relate only to the question of the amount of damages which mit be granted to the copyright holder. IVAN R. BENDER, ('hairman, Copyright Committee, Educational Media Producer a Counetă, Answer 2: This should not be considered fair use, and thus would be a vida a of the present law. In effect, this sort of multiple copying tends to deprite te copyright holder of potential commercial benefit. The Williams and Wilkinsam (487 F. 2nd 1345) decided by the U.S. Court of Claims last November, sh not be considered a precedent in this case, since the decision there favored g ernmental libraries making large numbers of copies of copyrighted matera Under Sec. 108 of the proposed legislation, it is legal for a library (which wi be interpreted as to include IMCs) "to produce no more than one copy ......... work..."; therefore, such reproduction would be illegal under the proposed aw as well. HAROLD E. HI11, Professor of Communication, Head, Radio-TV-Film, University of Colorad Answer 3: The length of the copied chapter in relation to the entire book is at important criterion in determining fair use. But basically, the making of malar copies of any length without permission of the copyright owner exceeds fair lat and is thus a violation. If the teacher had computed the real cost of max 14 photocopies, including the administrative time involved and the cost of jajet he (or she) probably would have concluded that it was cheaper to order rept. * from the publishers. SUSAN ENGEL HART, [Reprinted from Audiovisual Instruction, published by the Association for Eda ath ski Communications and Technology, December 1974] COPYRIGHT TODAY-COPYRIGHT AS IT AFFECTS INSTRUCTIONAL DEVELOPMENT (Jeanne Masson Douglas) (Ms. Douglas' article appears here this month because of its appropriatem to the December theme, "Instructional Development." The regular "Copy" 795 Today" column will resume with the January 188ue ) One of the major responsibilities of the instructional developer is that of maa ing instructional materials available in an appropriate medium. Materials am often not useful in their existing forms; they may have to be altered to £° specific course objectives, to accommodate a preferred instructional mode sch as independent study or inter-active instruction, or simply to provide multije copies. Whatever the reasons for wanting to modify commercial instructiona media, the copyright issue is unavoidable, and obtaining copyright clearances often becomes the responsibility of the instructional developer. Having been involved for the last five years in instructional development ar tivities, either in a management role or as a consultant. I have accumulated considerable data related to acquiring copyright clearances, During this time I have communicated with several publishers, producers, chairmen of na'i ta. associations and organizations, and even with presidents of private corporati ** in attempts to obtain permissions to reproduce their materials. The results have been interesting, and at times, surprising. In my early attempts as a copyright agent, I made use of a form letter. I soc learned that this technique was getting only delayed responses or no resprise at all. An original letter for each transaction was found to be much more sUCERful Every letter had two things in common, however · the specification that the media we produced would be used only within our own institution, and that the materials would be used by our students only. (Sometimes phone calls have been necessary to prompt a response but, since I never make a duplication perm wat is agreement except in writing, a written document is ultimately needed ). To de " onstrate good faith in complying with the "fair use" principle, I always ex; alt the purpose and effect of the use of the reproduced material, the quantity needed and the rature of the reproduction. My respondents have been of an amazing variety. At times, I have been fortynate to deal with someone known as the Rights and Permissions Officer of the Contract and Copyright Officer, or even the Product Development Director On other occasions, I have been directed to the Public Relations Officer or the •Jeanne Masson Donglas is director. Educational Resources Center, Reading Area Commity Clege, Reading, Pennsylvania |