We do think these are improvements for teaching and we are grateful for these. We do feel there is one area which is uncertain: Whether in-school telecasts on closed-circuit and 2,500-megahertz (megacycle) installations are limited by the same restrictions as instructional broadcasts on open-circuit educational television and radio stations. Our committee strongly feels that closed-circuit and 2,500megahertz operations are simply extensions of the classroom and that teachers on these facilities should have the same statutory treatment as classroom teachers. Areas which are definitely damaging to education are these: (1) The severe limitations put on the use of the newer educational technology in the classroom, especially for individualized uses and for independent learning activities. Dr. Anna Hyer from the department of audiovisual instruction, will be commenting on this this afternoon. (2) Severe limitations on the use of materials on instructional broadcasting, especially in the prescribing of the 1-year limitation, the two copies, and the 100-mile radius. (3) Undue restriction on fair use of materials for instructional radio and television broadcasts. We have no indication in the report that fair use will apply in instructional radio and television. (4) Lack of any mention whatsoever in the bill as to instructional uses of computers. (5) Duration of copyright for a period of life plus 50 years. In conclusion, the ad hoc committee, in presenting its case to your committee today-I might say, I speak for the consensus of the ad hoc committee. Of course, I could not speak for every individual member of the 34 organizations, but we have thrashed all these out, have come to agreement section after section, and what I have mentioned to you today in our testimony is the consensus of the group. It is not too often when education gets together on matters we present to the Congres, but we truly have been together in this undertaking and we really have studied this at long length. The ad hoc committee asks the Congress to enact a law which will support rather than undermine or vitiate good teaching and learning practices. The ad hoc committee wants a reasonable and just law which is fair to both authors and users-one that can be enforced by the profession itself. It desires a new law that will provide adequately for the present and for the future both in the classroom and on educational broadcasting, that will enhance rather than inhibit the uses of materials, that recognizes the primacy of the public interest, and that enables teachers to do job for which our Nation employs them. In conclusion, the ad hoc committe would like to commend both the House and the Senate committeees, and the Register of Copyrights and his staff, for their diligent work and competent scholarship in spearheading this revision program. We are mindful and appreciative of their recognition and consideration of education's needs in the revision of the law. Thank you. Mr. Chairman, with your permission, I will move to the other members of the panel, who wish to speak. Senator MCCLELLAN. I note you have an attachment here. Dr. WIGREN. The attachment contains the recommendations of the ad hoc committees. Senator MCCLELLAN. This should be included in the record at the conclusion of your remarks. Dr. WIGREN. As well as the language we have recommended. Dr. WIGREN. We included all of this in one report so you would not have to go through the statements of all the members. Senator MCCLELLAN. That will all be printed in the record. Dr. WIGREN. I did not want to take time to list the names of 34 groups before you this morning, but I do want to say that on page 5 of the appendix, the complete list of the ad hoc committee members has been printed for you. Senator MCCLELLAN. It will be printed in the record. (The complete statement and appendix of Dr. Wigren follows:) STATEMENT OF AD HOC COMMITTEE (OF EDUCATIONAL INSTITUTIONS AND ORGANIZATIONS) ON COPYRIGHT LAW REVISION BY HAROLD E. WIGREN Mr. Chairman and members of the subcommittee, I am Harold E. Wigren, chairman of the Ad Hoc Committee (of educational institutions and organizations) on Copyright Law Revision. I am the educational television consultant for the National Education Association and the associate director of the NEA's Division of Educational Technology. My personal description is already a matter of record in the proceedings of this committee, inasmuch as I testified before you in August of 1965 with respect to S. 1006. Today I appear before you again in my capacity as the elected chairman of the Ad Hoc Committee on Copyright Law Revision to present the consensus of the Committee's views on S. 597, which is identical with H.R. 4347 reported by the House Judiciary Committee last year. My comments will also include the provisions of the House Committee Report on H.R. 4347. Our Ad Hoc Committee on Copyright Law Revision has 34 constituent members. (See list at end of appendix.) We have asked time to testify again because the bill on which you are holding hearings is, of course, not the same bill on which we testified previously. Further, the report on the former House bill has been released in the interim by the House Judiciary Committee. Therefore, we would like to let you know how we feel about the new bill and the report. The new bill contains some marked improvements for education. These we appreciate. There are also some areas about which we very frankly are dubious and other areas about which we are keenly disappointed. We should like to delineate each of these in the testimony which you will hear today. This morning I am joined at this table by six individuals, whose organizations are constituent members of the Ad Hoc Committee on Copyright Law Revision, who have been chosen to testify because they represent specific areas of major concern within the Committee's membership-elementary and secondary school teachers and college instructors in both public and parochial schools, in the fields of English, foreign languages, and music. This afternoon our Ad Hoc Committee testimony continues with additional experts. You will hear testimony from representatives of educational media specialists, educational users of computers, and educational broadcasters. May I add that we are most grateful to you and your committee for this opportunity to testify. In the Library of Congress display case exhibiting the Gutenberg Bible, the label under the Bible reads as follows: "Through the invention of printing, it became possible for the accumulated knowledge of the human race to become the common property of every man who knew how to read-an immense forward step in the emancipation of the human mind." This sums up in a succinct way the point of view and the concern which our Ad Hoc Committee wishes to express to the Congress in regard to revision of the copyright law. Our committee is speaking on behalf of the public interestthe right of every man to share in the accumulated knowledge of the human race, and the rights and responsibilities of teachers to make this knowledge available in the public interest. In keeping with this point of view, we should like to reiterate that there are certain fundamental needs of education which must be protected in any revision of the copyright law. These might best be summarized in this manner: the need to make limited copies of materials for classroom use; the need to have "fair use" extended to include educational broadcasting and educational uses of computers; the need for reasonable certainty that a given use of copyrighted materials is permissible; the need for protection in the event teachers and librarians innocently infringe the law; the need to meet future instructional requirements by utilizing the new educational technology now being made available to schools; and the need to have ready access to materials. I am briefly delineating herewith the extent to which education fared in each of these areas of need under the proposed Bill and the House Committee Report. My colleagues this morning and this afternoon will speak on these matters, and others, more fully in their statements. 1. The need of teachers to make limited copies of materials for classroom use The Ad Hoc Committee regards Section 107-the fair use provision of the Bill and the House Committee Report-as a marked improvement for classroom teachers over the previous draft. As we interpret it, Section 107 in S. 597 gives classroom teachers the right to make limited copies of copyrighted materials for purposes such as "criticism, comment, news reporting, teaching, scholarship, or research." We appreciate the addition to Section 107 in the new bill of the word "including such use by reproduction in copies or phonorecords." This will write into law for the first time that fair use of a copyrighted work includes copying to some degree. We are grateful that the House Committee Report enumerated at some length examples of reproductions by teachers for classroom purposes of single and multiple copying of materials in the course of teaching which would be considered as "fair" under the provisions of Section 107. This is in keeping with certain agreements we reached with the publishers and authors last June at the office of the Register of Copyrights. In our original testimony before your committee, you will recall, we had requested a statutory limited copying exemption for education-a new Section 111which we believed then, and we still believe, provides the simplest and easiest way to give the teacher the certainty he needs in his use of materials. As a result of the summit conferences held with the publishing industry representatives at the Register's office, the present wording of Section 107 was agreed upon by both groups as a compromise position, and we are willing to abide by this agreement as a means of reaching an accommodation between the two opposing positions. In so doing, however, we recognize that we have sacrificed a general exemption for certain much-needed educational uses of materials and have substituted in its stead a categorical exemption for specific types of uses which are spelled out in the House Report. We must emphasize that our acceptance of this compromise is dependent upon retention in the bill of the words "including its reproduction in copies or phonorecords" and of the full listing of examples of reproductions which would be considered "fair" now included in the Report, Anything less than this will be totally unacceptable to the Ad Hoc Committee. 2. The need to have “fair use” extended to include educational broadcasting and educational uses of computers The wording of the House Report would appear to add restrictions for educational broadcasting which seem uncalled for by the statutory language in Section 107-restrictions which, as a matter of fact, could very well negate altogether the application of the doctrine to educational radio and television. The Ad Hoc Committee sees no reason for this discrimination against educational broadcasting; the "fair use" needs of teaching are the same whether over the air or in the classroom. The Ad Hoc Committee holds that the same considerations of fair use should equally apply with respect to educational uses of computers. You will be hearing more from our committee members who will testify this afternoon on educational broadcasting and computer uses. 3. The need for reasonable certainty that a given use of copyrighted materials is permissible In our previous testimony before your committee, we pointed out that teachers want and need the certainty of knowing when a given use of copyrighted material in the course of teaching is legitimate. We pointed out that teachers do not want to condone under-the-table uses. While the new Section 107 and the House Report are helpful in making determinations as to what might be used and what should not be allowed, there is nevertheless widespread disagreement still between publishers and educators, despite several summit conferences to resolve our differences, as to what constitutes "fair use" of a work. Teachers still will have no positive assurance that a given use of a work is a fair or permissible use. It is argued in some quarters that it is impossible to guarantee such certainty. Yet, if the experts cannot agree as to what constitutes "the fair use" of a work, how can a teacher in Pocatello, Idaho, know the answer? Section 107 sets forth four criteria by which teachers may judge whether a given use of a work is a fair use. The Ad Hoc Committee is greatly concerned about Criterion No. 4 in this section which is "the effect of the use on the potential market for or value of the work." The House Committee Report goes on to explain this criterion by stating "where the unauthorized copying displaces what realistically might have been a sale, no matter how minor the amount of money involved, the interests of the copyright owner need protection." There are already those who argue that any given use of a copyrighted work would in effect be ruled out by this last criterion, particularly when followed by the clause "no matter how minor the amount of money involved." We implore the Senate, at the very least, to strike this explanation from the Report. It will cause apprehension and concern on the part of teachers nationwide. 4. The need for protection in the event teachers and librarians innocently infringe the law The Ad Hoc Committee commends the Congress for making provisions for the waiver of statutory damages for innocent classroom teacher infringers but urges that the Senate give the same remission of damages for certain infringements for librarians and teachers on television and radio whose work is also a vital and essential part of education. Authors are protected under the bill; teachers who teach on educational television and librarians whose business it is to make the rich depositories of information available to students and teachers are not proctected. 5. The need to meet future instructional requirements by utilizing the new educational technology now being made available to schools The Ad Hoc Committee, while applauding the action of Congress to update teaching from 1909 to 1960 in the new bill, feels that the most serious handicap education faces in the new bill is that teaching has been frozen at the 1960 level. Teaching as it will become in the 1970s and 1980s has been ignored. The bill makes no provision for the new technology in teaching and learning; in fact, under the present paragraph D of Section 110, entitled “Time and content," the uses of copyrighted materials-without clearance or payment of royalties-on dial access retrieval systems or in computer assisted instruction, closed-circuit television, 2500 megahertz, or on most audiovisual devices designed for individualized and independent learning, are virtually eliminated. American education is moving more and more toward individualized learning and independent study activities. The focus is increasingly on learning and less and less on teaching. The concept of teaching as a "stuffing" operation is gradually being dropped in favor of more dynamic inductive approaches to learning, including the examination of raw data material from which the student can make his own generalizations without mediation by the teacher at every step of the educative process. Paragraph D of Section 110 flies in the face of the future and relegates education to a horse and buggy period rather than to the jet age. It is difficult for us to understand why using machine aids to facilitate human use of copyrighted materials is considered an infringement, whereas similar but unaided use would not be an infringement. In our judgment, if copying with a pen or pencil is legitimate, then copying, reading, or analyzing with the aid of a machine should be considered legal. During the extensive debate on the copyright revision bill, much has been said about the need to protect publishers in the new technologies, but the teachers of America look to Congress to protect them when they use these new technologies for nonprofit purposes. Unquestionably, the bill poses serious problems for educational computer users of copyrighted materials. The bill makes no mention of computers, nor does it provide language applicable to computers and computer uses; yet computers are one of the fastest growing technological advances in American education. Some of my colleagues will speak in detail with regard to this matter during the afternoon session today. The section of the Report commenting on this paragraph is equally damaging to education and makes the statutory provisions air-tight, to the detriment of education. The Ad Hoc Committee has three recommendations to make in this regard. Our committee has ready specific language for Section 110, covering these recommendations. I have included this language in the supplement to this testimony. (See Appendix.) Surveys have shown that the alleged instructional television exemption in Section 110(2) in practice would mean an exemption for less than 1 percent of all instructional television programs due to the added restrictions in the statute on broadcast interconnections and recordings. As the result, the educational broadcasters have a new legislative proposal to present to you. It has been endorsed by the Ad Hoc Committee and is attached to my testimony. It appears to us to offer a reasonable compromise between the proprietary and educational broadcasting interests, and a workable means of insuring reasonable clearances for use of published materials on educational radio and television. (See Appendix.) 6. The need to have ready access to materials Education needs a copyright law which will enable teachers and professors, as well as scholars and students, to have maximum reasonable access to a widevariety of resources for teaching and learning. The Ad Hoc Committee feels that S. 597 would seriously handicap education's uses of copyrighted materials because it substitutes for the present duration period of 28 years plus 28 years a new copyright period measured by the life of the author plus 50 years. The Ad Hoc Committee urges now, as it did in its previous testimony, the retention of the present renewal provision of the law: a 28-year initial term of copyright plus a 28-year renewal period or even a 48-year renewal period. The present renewal provision enables teacher and students to use the non-renewed 85 percent of all registered copyrights from the 29th year because the owners in such cases have allowed the work to go into the public domain. Under the new bill it could be one hundred years or more before this very same kind of material goes into the public domain and becomes useable by education. This is neither necessary nor advisable for all works. The present renewal provision in the law is simple and readily enables teachers to know when a copyrighted work is in the public domain. We urge its retention. IN SUMMARY Areas Which Represent Improvements for Education 1. The statutory "fair use" provision of the proposed bill and the House report as they apply to classroom teaching. 2. The waiver of statutory damages for classroom teachers who innocently infringe. Areas Which Are Uncertain Whether in-school telecasts on closed circuit and 2500-megahertz (megacycle) installations are limited by the same restrictions as instructional broadcasts on educational television and radio stations. (Our committee strongly feels that closed circuit and 2500-megahertz operations are simply extensions of the classroom and that teachers on these facilities should have the same statutory treatment as classroom teachers.) Areas Which Are Definitely Damaging to Education 1. The severe limitations put on the use of the newer educational technology in the classroom, especially for individualized uses and for independent learning activities. 2. Severe limitations on the use of materials on instructional broadcasting. especially in the prescribing of the one-year limitation, the two copies, and the 100-mile radius. 3. Undue restrictions on fair use of materials for instructional radio and television broadcasts. 4. Lack of any mention whatsoever in the bill as to instructional uses of computers. 5. Duration of copyright for a period of life plus 50 years. |