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STATEMENT OF EDWARD MEELL ON H.R. 2223 ox BEHALF OF TIIE EDUCATIOXAL
MEDIA PRODUCERS COUNCIL My name is Edward Meell and I am Chairman of the Educational Media Pro ducers Council (EMPC) and Editorial Director of the Film Division of JcGrawHill Book Company. I am appearing here today on behalf of EMPC and with me is Ivan Bender, Chairman of the EMPC Copyright Committee and Assistant Secretary and Legal Counsel of the Encyclopaedia Britannica Educational Corporation.
We are here to present our views on H.R. 2223, the general copyright revision bill, and specifically on the issues involved in the educational use of copyrighted audio-visual materials. We support the bill as introduced and oppose amendments which would weaken the protection provided in the bill for audio-visual materials
SECTION 107--FAIR USE We specifically endorse Section 107, which writes into statutory law the main principles of "fair use" as that doctrine has been interpreted by the courts in individual cases over the years. We feel that Section 107 represents a fair compromise between the creators and users of copyrighted educational materials a compromise which has been carefully negotiated over the past several years
Our industry is pleased with the recent technological developments which promise to make ideas and information more accessible to scholars, teachers and learners. These developments promise also to expand the role and contribution of educational media producers to the educational process of which we are an integral part. But in order to maintain and increase the incentives for the creation and production of quality materials for our schools, we must not diminish the statutory protection for intellectual products to which any author, creator or artist is entitled.
NO NEED FOR AN "EDUCATIONAL EXEMPTION"
At the time that this testimony was prepared we were uncertain as to whether a broad educational exemption, to be added to the bill as it now stands, would be proposed by one or more organizations in the light of the positions taken by the Association for Educational Communications & Technology (see Attachment A). The language of previously-introduced amendments, however, in our view provided far more than a "limited" exemption. Among other things it would authorize use--for noncommercial teaching, scholarship and research--not only of “brief excerpts" from copyrighted works but also of the whole of short literary, pictorial and graphic works.
Let us take up these two concepts in order, as they would apply to educational audio-visual materials.
The concept of "brief excerpts" (which are not substantial in length in proportion to their source) is very difficult to apply to educational audio-visual materials. A half hour education nature or biology film, for example, may be built a round an exceedingly difficult photographic sequence which may take months of work to capture, but may in the final product only take up a minute or to of time in the film. To permit this minute or two to be reproduced freely under an educational exemption would very likely destroy the economic viability of the product.
The concept of exempting nse of "the whole of short, literary, pictorial and graphic works" presents difficulties equally great in relation to audio-visual materials. For example, is a short filmstrip a short work? Is a five minute andi, cassette a short work? Is an eight minute 16mm film a short work? If so, it would very largely destroy the entire market for short filmstrips, cassettes or films, #10 they would be produced in extremely small numbers or not at all.
We trust that this subcommittee will not accept the idea of an educational exemption, if such an exemption should continue to be pressed by one or more organizations. If the exemption is adopted, few companies will be able to risk making the capital and time investments needed to produce educational mate rials and will turn their efforts to other kinds of products and markets. In such a situation, it might well happen that only with government subsidies could the producers in the private sector afford to finance the development and distribution of educational materials.
Such an exemption has no educational rationale. To the extent that school erstems wish to reproduce educational audio-visual materials in whole or in Jurt beyond the limits of "fair use," our members stand ready to discuss licensing arrangements which will permit authorized reproduction. Modern methods of reproduction for many types of audio-visual materials are such as to make sucha
production in whole or in part attractive to some school systems and many of our members have already entered into licensing arrangements which would permit duplication under a negotiated compensation formula.
ENDORSEMENT OF SECTION 107 BY AECT We are pleased that the principal professional organization of educators directly concerned with the use of audio-visual materials in the educational process is also in support of Section 107, without weakening amendments. This support was expressed in a statement issued by the Executive Committee of the Association for Educational Communications and Technology (AECT) in Jay of 1973. Ise Attachment A.) Some of the statements made by the AECT which were of greatest interest to us were the following:
1. “AECT endurses the criteria to be used in the determination of fair use' as contained in Section 107 of the proposed bill.
2. "Concerning the use of copyrighted works in conjunction with television, AECT proposes that 'fair use', as it has been outlined above, should apply to educational/instructional broadcast or closed-circuit transmission in a nonprofit educational institution, but not to commercial broadcasting.
3. "Once the doctrine of fair use' has been established in the revised law, Degotiations should be conducted between the proprietor and user prior to any Use of copyrighted materials that goes beyond that doctrine.
4. "A new copyright law that both users and producers can view as equitable dejminds upon the mutual understanding of each other's needs and the ability to flectively work out the differences. We will participate in the continuing dialogue with the Educational Media Producers Council and similar interest groups to establish mutually acceptable guidelines regarding the boundaries of *fair use, and reasonable fees to be paid for uses beyond fair use.'"
LIMITED LIBRARY REPRODUCTION NOT APPLICABLE
After conducting hearings in 1973, the Senate added subsection (g) to Section 109 (Library Photocopying), to define and place limits on "systematic reproduction" which exceeds "fair use" or permissible use under other subsections of the bill. Subsection (h) was also added, exempting musical works; pictorial, graphic or sculptural works; or motion pictures or other audio-visual works from the reproduction rights granted in Section 108 except for providing archival copies or replacing a damaged work
We feel both subsections are vitally important-(g) because it defines reasorable parameters for copying; and (h) because it is necessary to ensure the continued creation of the special kinds of works mentioned above. Because of the nature of audio-visual works-that is the manner in which they are used and the fact that one film, filmstrip or recording serves multiple numbers of users during each use—it is manifestly unfair to extend the rationale behind Section 108 to these materials. Each library traditionally buys only one or two copies of a film, filmstrip or sound recording. The library market is an important source of business to producers, though very limited. To permit copying of these audiorisnal materials under Section 108 is wholly unnecessary to meet the librarians' need for some freedom to copy some literary works to effectively serve their users. Section 108 would, if extended to audio-visual materials, severely and irrevocably remove the library as a market for audio-visual producers.
LIAISON WITH OTHER EDUCATIONAL ORGANIZATIONS EMPC has mounted a strong effort to establish and maintain dialogues with tisers of educational materials over the last three years. We have cosponsored over two dozen panels during state, regional and national meetings of educational groups to explain the producer's point of view and to listen to the educator's preds. Attachment B illustrates the format and content of these discussions. One of the most important results has been the development of licensing plans by major educational media companies to increase school districts' access to materials in an economical fashion.
Members of the Council have also worked with individual school systems to develop guidelines for observing fair copyright practices. Over one dozen short articles on copyright, as it applies to audio-visual media, have been prepared for educational journals. These articles have been reprinted and distributed free of charge by EMPC to all interested individuals, schools and school systems. Several examples are attached as Attachments C, D and E.
In cooperation with AECT, EMPC is now in the process of preparing a booklet explaining the procedures for obtaining permission to duplicate if the need exceeds the limits of "fair use."
We believe all these activities have been helpful to both educators and copyright proprietors in both clarifying general principles and in solving specific problems. EMPC pledges to continue these efforts irrespective of the passage of any revision of the copyright law,
THE EDUCATIONAL AUDIO-VISUAL MATERIALS INDUSTRY
In order to understand fully the unique nature of the educational audio-visual industry, and the importance of copyright protection to the continued development and distribution of high quality materials, a brief description of the industry is in order.
The Educational Media Producers Council (EMPC) is an organization within the National Audio-Visual Association made up of approximately 100 producere and distributors of audio-visual materials for use in schools, colleges and libraries. These member companies create, produce and market items such as motion picture films and video tapes, filmstrips, slides, transparencies, and sound recordings. We estimate that our members account for over 80% of the annual production of audio-visual materials for use in American education.
In 1974 total income from sales and rental of educational audio-visual materials amounted to $277 million. This volume was produced by some 200 companies ; and thus, since the 100 EMPC members account for approximately 80% of annual production, the industry is clearly one of active competition among quite small firms. In fact, 50% of our member companies gross less than $1 million per year; 90% gross less than $5 million.
The relative volume of the various products sold in 1974 is shown in the following table :
1974 sales of educational A-V materials
Materials acquired for use and storage in individual schools :
8 mm. films (silent) --
274.2 It will be noted this list of products is divided into two principal categories: 16 millimeter educational films and videotapc8, which are comparatively lengthy and expensive and thus usually bought by school district film libraries, stored centrally, and circulated on demand to individual schools; and "building level materials"-other types of materials which tend to be used more often and more intensively in the individual schools and therefore are purchased and stored by them rather than by a district library. With the increasing use of audiovisual materials in the educational process, and with the recent trend toward the individualization of instruction, this second category has been growing much more rapidly than the first in the last few years, increasing from 66.5% of total audio-visual sales only six years ago to 75.6% of the total sales in 1974,
USE BY LEVEL OF EDUCATION Equally important to an understanding of the educational audio-visual industry is the pattern of use at the several levels of education. Sales of 68 representatire companies can be broken down as follows:
1974 educational A-V sales by type of institution
100.0 The percentage in these tables bring out two points quite graphically:
1. The only market for those materials is the educational market; they have no market among consumers in general or for general entertainment.
2. Sales to schools tend to be concentrated in the lower end of the grade level pyramid, with over 60% of total sales to the elementary schools, less than 30% to high schools, and less than 10% to higher education. Public libraries account for less than 4% of all sales and "all other" for 6.6%. Thus, the kinds of considerations which come into play in discussing library photocopying of highly sophisticated, original research materials are not pertinent here; our companies' materials are used for the instruction of students at basic levels of education.
SMALL VOLUME The vast majority of audio-visual materials are not used in one-to-one situations as are textbooks. They are used generally in groups. This raises two points. First, the number of copies needed is quite limited. One or two copies of a 16 millimeter film may serve an entire school system of moderate size; a single cope of a filmstrip or sound recording will serve an entire school. Second, a typiral audio-visual product will customarily sell relatively few copies over a period of five to ten years, as compared to the tens or hundreds of thousands of copies of a textbook. A 16 millimeter film may sell only several hundred copies ores its useful life; a $50.00 set of filmstrips does well to sell four thousand. Thus the recapture of initial investment in research, development, editorial and production work-which costs as much for one copy as for thousands is spread over the sale of a relatively limited number of copies. In addition to the substantial initial investments necessary for production of quality materials, there must be added operational expenses for the considerable period of time over which sales are made before a break-even point is reached. The combination of these factors limited market, small volume and sales over an extended period means that specific broadening of the "fair use" criteria could damage bevond repair the quality and diversity of materials available to our nation's students and teachers.
THE U.S. OFFICE OF EDUCATION EXPERIENCE The U.S. Office of Education has granted millions of dollars over the years to government-funded educational research laboratories for developing innovatire and more effective teaching methods and materials. Many good products were developed, but far too few ever were disseminated to the educational community. As a result, policies were developed by USOE which allowed commercial companies with marketing expertise to distribute the materials under protection of a limited (in time) copyright. Not until then did the educational community receive the benefit of the Federal research effort.
This points out very clearly the need to provide incentive to producers and pro tection for the rights of copyright holders. The Federally-funded materials whicoba were developed and put on shelves now have a much better chance of being u 1 by, and benefiting, the intended recipients--because those with the expertise necessary to make the materials available are given appropriate incentives.
WILLIAMS & WILKINS CASE
The 4 4 tie vote of the Supreme Court in the Williams & Wilkins case, leaves the issue of "fair use" in an unsettled state. We believe that Congress must actclearly and explicitly-to outline the boundaries of this doctrine for all parties concerned. Once this is accomplished, EMPC commits itself to continue its efforts to work with educational institutions and organizations to establish guidelines to help resolve specific situations within the parameters set by Congress.
SUMMARY AND CONCLUSION In summary let us repeat that we think that the bill which has been introduced as H.R. 2223 is a good bill and a workable bill, from the point of view both of the creators and the users of educational audio-visual materials, and we urse that it be expeditiously reported to the full House without amendments to SH tions 107 and 108. If an educational exemption is added to Section 107, or the provisions of Section 108(g) and (h) are weakened, EMPC could not support the bill. It is universally recognized that revision of the 1909 copyright statute is imperative, and the sooner this is accomplished the better for all concerned.
We appreciate this opportunity to appear before your subcommittee. My colleagues and I will be glad to elaborate on any points in our testimony which the members of the subcommittee may wish to explore further.
COPYRIGUT LAW REVISION: A POSITION PAPER BY THE ASSOCIATION FOR EDUCATIONAL
COMMUNICATIONS AND TECHNOLOGY, MAY 1975 The members of the Association for Educational Communications and Technology (AECT) believe that technology is an integral part of the teaching-leim. ing 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 authors certain controls over their work. It follows that revisions in Title 17 of the United States Code (Copyrights) should maintain the balance between providing for the com. pensation of authors and insuring that information remains available to the public. Some of the revisions proposed in S. 22 and H.R. 2223 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, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the yee 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 copy. righted work as a whole; and
(4) the effect of the use upon the potential market for or valne of the cops. righted work.
However, we propose that the concept of "fair use" should apply equally to the classroom teacher and media professional-including specialists in audiovisual 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 well as with long range curriculum development. Classroom teachers do not always operate "individually and at (their) own volition." The fact that the media professional makes use of advance planning and has knowledge afore.