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Om linf of my organization, I would like to say we support II.R. in it hasleen introduced, especially section 107, which writes into

titory law the main principles of fair us as that doctrine has been .''preted is the courts over the years. We would hope that fair use L imitlerolle free u-e, We find the lat.fage, paperially in 107, represents an equitable com

*twitween the creators and users of copyrighted educational maPraha compromiso that has been painstakingly negotiated over the

opo meral years. The technology which permits the easy duplication of a lot:nial materials has been intro luced only very rrently--I si ti ning here of motion picture, sound film-trips, and audio 1. after hearing that your committee held in the sixties. It is a 1,5 ticant desclopment for our industry, one which has already ...gruat inpaat on its educational media industry, which merits

11 colteration by your committee

le point of fact, or induery is very pleased with the progress in ! jobb, t. It is not our intent to stop that march of progress of tech. 1. It piton to make ideas and information more accessible to en geboob?, trailers, and learners Tlappt deselopments promise also to exploither role and contribution of educational media producers to the e al tal pro*, whaxh waronder an integral part, 11. orderton 13.

09.11 b olning incenties for the creation and pro!.0,01 of material. We must not dimin-h the statutory pro 1. tur for internet product to which anv author, (rritor, or artist 15,"alWe are therefore oppened to any amendment which would i dit for an educional temption. We molely distribute, as I menP. 29 , to the medicational market, not to the consumer or the en

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rials may or should be copied. Basic to such a determination is the concept of "fair use" which means the free and legal reproduction of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship or research. In the pending legislation, four criteria are set forth for establishing fair use :

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. (These criteria are provided, on a detachable page, in Appendix B.)

The discussion guide which follows contains hypothetical examples of dupli. cation of audio-visual media. It would be useful to keep three questions in mind as each of the situations in the guide is reviewed.

1. Is the theory of “copyright,” as set forth in the Constitution, upheld? (To promote the Progress of Science and Useful Arts by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.")

2. What are the economic implications to the publisher of copying?

3. How will they affect the availability of materials to the educational community? Both educators and producers of educational media seek the widest and most effective dissemination of learning resources. It is hoped that this specific edu. cational tool will assist in implementing our mutual objective with benefit to all.

COPYRIGHT AND AUDIO-VISUAL MEDIA 1. A school district buys one copy of a 16mm educational film and makes ten video cassette copies for individualized instruction at various school media centers.

This case illustrates a clear-cut example of copyright infringement resulting from utilization of new technology. The copyright laws forbid the reproduction of a copyright work by anyone except the copyright proprietor. The fact that the school district bought the copyrighted work does not mean it bought the rights to reproduce it.

2. A mobile media unit regularly travels from school to school in a district and converts phonograph records into audio cassettes for individual teachers.

Unauthorized duplication of sound recordings may subject the school district to legal liability. The United States Congress enacted the Sound Recording Amendment to the copyright laws, which protects recordings fixed subsequent to February 15, 1972 and prior to January 15, 1975. The proposed revision of the copyright laws now pending in the Congress of the United States provides for full protection of sound recordings. In addition, a decision by the U.S. Supreme Court (Goldstein v. U.S.) upholds the right of states to enforce their own record piracy laws in effect prior to the 1972 date.

3. A teacher makes excerpts in cassettes from various record albums owned by the school to illustrate comparisons among various musical forms.

In addition to the statements made in Case 2, another factor to be taken into consideration is copyright in the work which was recorded. However, the pro posed revision to the copyright laws will give full protection to the record itself, not merely to the underlying work. Another factor involved in this case is the doctrine of fair use. One should consult the statutory provisions regarding fair use (see Appendix B) and discuss their ramifications for this case.

4. A school media center coordinator salvages some useful frames from dis. carded filmstrips and converts them into slides for student use.

Although technically copying is not involved in this situation, other factors must be taken into consideration. For example, the filmstrip producer may have only secured filmstrip rights for visuals which had to be procured outside of its own facilities. Another problem is co-mingling of these visuals with those from other sources so as to create a "derivative work"_which is one of the rights reserved exclusively to the copyright proprietor. The fact that the school has "discarded" the filmstrin does not mean that copyright protection has erpired.

5. A student taping a report on new travel books in the school library used Around the World in Eighty Days as background music,

The issue presented here involves the appropriation of a copyright musical composition. However, this situation might be comparable to an individual tapingIn usical works in his own home for his own personal use and might not be regarded as an infringement.

6. A school district occasionally makes a videotape of a preview print of a 16mm film in order to allow teachers to preview it over a longer period of time.

The issue being presented here is the unauthorized duplication of a copyright work. This is illegal, regardless of the fact that this particular use of the videotape may seem to be less harinful to the copyright proprietor than a situation in which the videotapes were used for student viewing. It would be advisable to seek permission from the copyright proprietor before proceeding.

7. A high school student uses an opaque projector to enlarge a map from his. yogoger brother's geography book to help him draw a poster showing the location of Indian reservations.

This would seem to be a clear example of fair use as defined in the preface,

WHEN Is It LEGAL TO DUPLICATE DUPLICATE DUPLICATE?

(By Ivan Bender and David Engler') "Making copies" has become almost a way of life for educators-as it has in most businesses and industries. However, conscientious teachers and administrators, recognizing the impact that widespread unauthorized duplication will have on the production, availability and cost of educational materials, are anxious to know what is or is not allowed by law.

The concern goes beyond a fear of "getting caught." It extends to the sense of fairness and respect for property that schools are striving to develop in their students. And when the material in question is the result of artistic effort-as is the case with most audio and visual materials a special urgency exists to ensure that the creative process does not become a financial dead end.

More than appeals to morality and justice, educators need specific guidelines as to what can or cannot be legally duplicated. While a full explanation of the intricacies of copyright law is beyond the scope of Media & Methods, several important provisions of that law can be examined.

The C.S. Constitution (Article 1, Section 8, Clause 8) empowers Congress “to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Under a 1909 copyright law now in effect, and through subsequent interpretations, almost all intellectual products of a literary, artistic, or creative nature can be registered for protection with the Copyright Office of the Library of Congress. Thus, such diverse products as books, maps and poetry, magazines and newspapers, plays and choreographies, lectures and sermons, melodies and lyrics, paintings and photographs, sculpture and architectural plans, motion picture films, videotapes and sound recordings can be covered by an exclusive copyright.

Once obtained, the copyright remains in effect for 28 years and can be renewed for an additional 28 years. Beyond this total period of 56 years, the work falls into the public domain and its use becomes unrestricted. An important exception applies to copyrights which would have expired beginning in 1902, the year when Congress undertook its still-uncompleted revision of the 1909 law. Since the new law will probably lengthen the period of copyright, Congress is extending, on a year-to-year basis, those copyrights that would have expired since 1962

What protection does copyright provide? Basically, it reserves for the proprietor the exclusive right to print, reprint, publish, copy, and vend the copyrighted work, including any abridgements, arrangements, dramatizations, adaptations and translations. The right to vend in this case means the right to transfer by lease or sale; therefore, if someone copies the work without authorization and gives the copies away free, they may be infringing on the proprietor's opportunity to vend by taking a way the exclusive right to do so.

Infringement on a proprietor's copyright can invoke specific statutory penalties, ranging from $100 to $10,000 per infringement. Although penalty monies go to the state, proprietors can recover damages in a civil suit if they can show economic loss.

1 In Bender is Assistant Secretary and Legal Counsel for Encyclopaedia Britannica Educational Corp: David Engler is President of General Educational Media. They are also chairman and vice-chairman of the Copyright Committee. Educational Media Producers Council.

Referring back to the Constitution, it is clear that incentives for producing creative works are preserved by securing certain rights for the proprietor eIclusively. Over the years, however, these exclusive rights have been tempered by a growing body of judicial decisions which have increasingly attempted to bal. ance the authors' need for compensation with the public's need for acrese to creative works. The courts have ea sed up on strict compliance with the law through a concept now known as the “Fair Use Doctrine." This doctrine is not yet delineated in statutory law, but Congress more than likely will include guidelines for the application of "fair use" in its revision bill.

Because present statutory law does not spell out specifically what constitutes copyright infringement, case law (i.e., judicial findings based on individual rases) has filled this void by recognizing certain uses as fair, even without permission of the copyright holder. Under case law, "fair use" applies only to reproduction for such purposes as criticism, comment, news reporting, teaching, scholarship or research. It encompasses four conditions, all of which must be met if duplicating or changing a product is to fall within the bounds of fair use. These standards are:

1. The purpose and character of the use.-The use must be for such purposes as teaching or scholarship, and must be non-profit. Fair use would probably allow teachers acting on their own to copy small portions of a work for the classroom, but would not allow a school system or institution to do so.

2. The nature of the copyrighted work.--Copying portions of a news article mas fall under fair use, but not copying from a workbook designed for a course of study.

3. The amount and substantiality of the portion used.--Copying the whole of a work cannot be considered fair use; copying a small portion may be. At the same time, however, extracting a short sequence from a 10mm film may be far different than a short excerpt from a textbook, because two or three minutes out of a 20minute film might be the very essence of that production, and thus outside fair use. Under normal circumstances, extracting small amounts out of an entire work would be fair use, but a quantitative test alone does not suflice.

h. The effect of the use upon the potential market for or rulue of the ropy. righted work.-If resulting economic loss to the copyright holder can be 10kn), even making a single copy of certain materials is an infringement, and making multiple copies presents the danger of greater penalties.

To re-emphasize, the fair use doctrine applies only when all four of the abore points have been satisfied. Even so, it is often difficult to reach a conclusion on the fair or unfair use of a product, particularly in the case of audio-visua' matarials. By posing a number of everyday examples which occur in schools and media centers around the country, and evaluating cach in terms of what can and cannot be duplicated, perhaps additional light will be shed on the provisions of the copyright regulations.

Erample.-A school district buys one copy of a 16mm film, and makes 10 videocassette copies for individualized instruction.

Eraluation. Just making one copy of the film is a clear-cut violation of copyright : making 10 copies only aguravates the violation.

Eromple.--A mobile media uit which regularly travels from school to school in a district converts phonograph records into audiocassettes for individual teachers.

Ernluation. In one sense the copyright question involved in this si:11ation is simple and straightforward. Anrone who rrmularly converts coprrighted phonograph records into andiocassettes without the copyriglit owner's permission is violating the law. Ilowerer, this situation may be complicated hr the fact that Copyright protection of sound recordings made before February 15, 1972did not apply to the recording itself, but only to the underlying work, such as a song or poem. If this underlying work had no copyright protection and was therefore in the public domain, then a duplication made before 1972 is not a violation of coprright. Apart from this exception. converting a phonograph record into an audiocassette is a violation of copyright even if the person doing the endring owns the record. Also, since the entire work is being copied, fair use standards would not be met.

Erample.--A student taping a report on new travel books in the school library uses the music from Around the World in Eighty Dane as background.

Eraluation. We cannot conceive of any copyright owner objection to this kind of use.

Erample.--I'pon the request of several schools, a district media center uses material appearing in an enerclopedia to prepare sets of color slides illustrating the evolution of the American flag.

Eraluation -- This is probably fair use, given the nature of the material's content and the relationship of this portion of the encyclopedia to the total work.

Erample.- A school videotapes various educational and commercial telecasts of the air for play back at more convenient times during school hours.

Eraluation. --Videotaping copyrighted television programs off the air for any purpose is a violation of copyright. Permission of the copyright owners should be secured before such videotapes are made.

Erample.-A school district occasionally makes a videotape of a 16mm preview print in order to allow teachers a longer period of time to preview it.

Eraluation.--This is illegal unless permission is granted in advance. Some educational producers are granting the right to make videotape copies for preview purposes only as long as the videotape is erased immediately after previewing and does not become a regular part of the school district's film collection.

Erample.-- The Department of Televised Instruction of a school district televises 16mm educational films from its library over its closed circuit system to esery school within the district.

Eraluation. The fundamental issue here is whether or not this practice Constitutes a "performance" as defined under the present copyright laws. In all likelibood, it would be so considered. Since the right to perform a copy righted work is granted exclusively to the copyrigh holder, appropriate permission must be obtained in advance of televising the material. Most educational film producers have television licensing policies which are easily obtained from each individual producer.

The producers of copyrighted materials are anxious to accommodate the needs of their customers in education. For this reason, many companies and individuals have developed licensing policies which permit limited reproduction of copsrighted materials. Each contract is worked out on the basis of user needs and producer fre schedules to permit duplication beyond "fair use." Already, some school districts-Granite School District in the suburbs of Salt Lake City, for example, and Fairfax County School District in Virginia--have entered into voluntary licensing arrangements.

This is a healthy trend. It enables the educational users to have greater flexibility and access, while at the same time providing producers with compensation and some degree of control over their materials. Additional information on licensing contracts can be obtained by writing: Educational Media Producers Council, 31.50 Spring Street, Fairfax, Virginia 22030.

EDITORIAL

ACADEMIC RIP-OFF

(By Henry C. Ruark) An unethical practice is underway in some educational circles. Educators, not *money-hungry commercial types," are responsible for this one.

The operation in question is worked quietly, with little open comment by either those engaged directly in the operation, or by those it is supposed to benefit Neither group wants to think too clearly about it.

Those involved know, in their hearts, if not in their heads, that what they are doing is wrong, both morally and legally. There have been too many professional educational statements, too much open discussion and far too many articles and explanations in the educational press for anyone now to claim total ignorance of the issue.

Probably many of those involved would resent being categorized as "specialized thieves," right along with counterfeiters, short-change artists, secondstory men, and pickpockets.

Yet too many persons do not hestitate to make use of the creative products of professional efforts by their own colleagues, without payment or credit.

Those paragraphs first appeared in the Blue Book Editorial for August, 1969. titled "If The Shoe Fits ..." We were castigated then for calling educators "thieves" ... a word which did appear in the Editorial ... and pirates"... a word which did not. We suggested that "If the shoe tits ... we hope it pinches."

What we were really doing then was recognizing, realistically and openly, the early symptoms of a cancerous practice which now threatens learning media development much more dangerously than it did then.

Only now, instead of isolated (if alarming) incidents, the practice of unanthorized copying of learning media, greatly facilitated by technological develop

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