IN CONCLUSION

The Ad Hoc committee, in presenting its case to your committee today, 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 the job for which our nation employs them.

In conclusion, the Ad Hoc committee would like to commend both the House and the Senate committees, 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.

APPENDIX

Section 110. Limitations on exclusive rights: Exemption of certain performances and displays

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

"(1) * * *

“(1A) performance or display of a work by instructors or pupils by or in the course of a closed transmission by a governmental body or other nonprofit organization if such performance or display is in the course of the teaching (or research?) activities of a nonprofit educational institution.

“(2) * * *"

(NOTE.-Italic matter is new.)

(It was the intent of the Ad Hoc committee on Copyright Law Revision that 110(1A) refer to controlled or closed transmissions and that 110(2) refer to uncontrolled or open transmissions.)

PROPOSED NEW SECTION ON EDUCATIONAL BROADCASTING TO BE SUBSTITUTED FOR SECTIONS 110(2) AND 112(B)

Section Limitations on Exclusive Rights: Educational Transmissions (a) CERTAIN EDUCATIONAL TRANSMISSIONS EXEMPTED.-An educational transmission embodying the performance or display of a non-dramatic musical, literary, pictorial, graphic or sculptured work is not an infringement of copyright if—

(1) the content of the transmission is a regular part of the systematic instructional activities of a governmental body or non-profit educational institution;

(2) the performance or display of the copyrighted work is directly related to the teaching content of the transmission and is of material assistance to the instruction encompassed thereby; and

(3) the transmission is primarily for

(A) reception in classrooms or similar places normally devoted to instruction, or

(B) reception by students regularly enrolled in non-profit educational institutions, or

(C) reception by persons other than regularly enrolled students to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places similarly devoted to instruction, or

(D) reception by governmental officials or employees in connection with their official duties or employment.

(b) CERTAIN EDUCATIONAL TRANSMISSIONS FULLY ACTIONABLE.-An educational transmission embodying the performance or display of a dramatic or choreographic work, pantomine, motion picture or continuous audio-visual work is actionable as an act of infringement under Section 501 and is fully subject to the remedies provided by Sections 502 through 506.

(c) LIMITATION OF LIABILITY FOR CERTAIN EDUCATIONAL TRANSMISSIONS.— With respect to an educational transmission embodying the performance or display of a copyrighted work outside the scope of subsection (a) or (b), liability for infringement under Section 501 does not include the remedies provided in Section 502, 503, and 506, and the remedies included in Section 504 and 505 are limited to recovery of a reasonable license fee as found by the court under the circumstances of the case, except as follows:

(1) Where the court finds that the infringer either has failed to make a timely request for a license or has not accepted a timely offer of a license for a reasonable fee, it shall award as statutory damages under Section 504 (c) the sum of not less than $100 nor more than three times the amount of a reasonable license fee as the court considers just, to which may be added a discretionary award of costs and attorneys' fees under Section 505;

(2) Where the court finds that the copyright owner either has failed to make a timely reply to a request for a license or has not made a timely offer of a license for a reasonable fee, it may reduce or withhold any award of damages under Section 504 and may, in its discretion, award to the infringer costs and attorneys' fees under Section 505.

(d) DEFINITIONS.-As used in this section:

(1) "Educational tranmissions" shall mean public broadcasts over noncommercial educational television and radio stations operated by non-profit educational organizations under license by the Federal Communications Commission or other appropriate agency;

(2) "Educational transmissions" shall not be precluded from the provisions of this Section - by virtue of being :

(A) relayed from, forwarded to, converted into or otherwise interconnected with other educational transmissions or re-transmissions by wire, radio or other communication device; or

(B) fixed on film, tape, disc and/or other copying devices for transmission or re-transmission purposes; and said interconnection and fixation processes shall be deemed integral parts of the educational transmissions subject to subsections (a), (b), and (c) respectively.

AD HOC COMMITTEE ON COPYRIGHT LAW REVISION (EDUCATIONAL ORGANIZATIONS AND INSTITUTIONS)

1. American Association of Colleges for Teacher Education.

2. American Association of Junior Colleges.

3. American Association of School Administrators.

4. American Association of Teachers of Chinese Language and Culture.

5. American Association of Teachers of French.

6. American Association of Teachers of Spanish and Portuguese.

7. American Association of University Women.

8. American Council on Education.

9. American Educational Theatre Association, Inc.

10. Association for Childhood Education International.

11. Association for Higher Education.

12. College English Association.

13. Council of Chief State School Officers.

14. Department of Audiovisual Instruction, NEA.

15. Department of Classroom Teachers, NEA.

16. Department of Foreign Languages, NEA.

17. Department of Rural Education, NEA.

18. International Reading Association.

19. Midwest Program on Airborne Television Instruction, Inc.

20. Modern Language Association.

21. Music Educators National Conference.

22. National Art Education Association.

23. National Association of Educational Broadcasters.

24. National Catholic Educational Association.

25. National Catholic Theatre Conference.

26. National Catholic Welfare Conference.

27. National Commission on Professional Rights and Responsibilities, NEA. 28. National Council for the Social Studies.

29. National Council of Teachers of English.

30. National Education Association of the United States.

31. National Educational Television and Affiliated Stations. 32. National School Boards Association.

33. New Jersey Art Education Association.

34. Speech Association of America.

Senator MCCLELLAN. If you will call on your associates.

Dr. WIGREN. The first two individuals represent the classroom teacher uses of copyrighted materials.

Dr. Lois Edinger.

Dr. EDINGER. Mr. Chairman, members of the subcommittee, if I might have permission as Dr. Wigren did to have my comments entered into the record, I can also sort of summarize them.

Senator MCCLELLAN. Your statement will be printed in the record in full. Any part of it that you do not quote will be inserted in the proper place in the record.

Dr. EDINGER. I think I can, therefore, omit my past history. I am Lois Edinger and I have served as a classroom teacher in North Carolina and as a studio teacher in our North Carolina in-school television project. I am now an associate professor at the University of North Carolina at Greensboro, where I now work with the professional program for teachers.

I am appearing today in my capacity as a member of the Board of Trustees of the NEA, whose membership includes every facet of American education. Its membership ranges from kindergarten teachers to college professors. Ninety percent of its members are classroom teachers.

NEA has two primary interests: the improvement of instruction in the Nation's schools and the protection of the rights of teachers and their welfare. Both of these interests are affected by any revision of the copyright law.

IMPROVEMENT OF INSTRUCTION

I need not tell the members of this committee education is in the midst of a revolution-both in the content areas and in methodology. There are new curriculum developments in the major disciplines which are based on widespread change in curriculum materials. With the curriculum explosion facing us in every area and at every level in public education, close examination of all types and kinds of materials is a necessity if change is to occur at the practical level of classroom application. At best this is a difficult and complex problem. There is little to be gained in working out new curriculum developments, if in the end teachers, who would otherwise strengthen and improve their teaching through uses of new materials, are only to be frustrated because of artificial and inflexible restrictions which in the long run will not really protect the rights of originators or producers, but will be a severe detriment to improving instruction. NEA has a deep interest in the widespread use of many materials of instruction to strengthen and enrich the efforts of classroom teachers in all subject areas. We believe the teacher must be free to teach and must have access to materials to this job.

79-397-67-pt. 1- -11

RIGHTS AND RESPONSIBILITIES OF TEACHERS

I would remind you that teachers are both authors and users of materials, and therefore, they want a law which will be fair and just to all concerned. At the same time, there is an overriding public interest to be met also that of flexible availability of materials for instructional purposes.

I might say that the good teaching moment is not always known ahead of time. A teacher must be free to make use of the material that is needed at a particular moment for the needs of a particular child. Today's teacher is a far cry from the teacher who taught you and me. The teacher of today does not use just one textbook, but makes use of many resources in his teaching. Dr. Wigren has already pointed this out. The teacher of today uses supplementary materials, including all sorts or reference books, newspapers, and magazines, educational motion pictures, filmstrips, overhead transparency projectors, opaque projectors, language laboratories, audio tape recorders, record players, slides, educational radio and television, teaching machines and programed learning materials, and he uses these in orchestration to do specific jobs. The teacher selects resources to fit particular student needs so that certain tools are used with some students and other tools with other students.

Education is no longer a simple process. I am not sure it ever was. It is an increasingly complex and intricate one. Never has there been a need to teach so much to so many in such a short period of time. There is an urgent need for more effective quality instruction today. Time is at a premium and ideas must be communicated with dispatch. Because education has a substantial interest in the copyright law, the NEA through its division of audiovisual instructional service and its national commission on professional rights and responsibilities, in July 1963, called a national conference of representatives of major educational organizations to discuss both the present copyright law and the proposals which were being made for revision of the law; to canvass education's needs in a new copyright law; and to determine what steps, if any, the profession should take to deal with the situation. As a result of this conference, the widely representative ad hoc committee on copyright law revision was formed, and the NEA has been a member of this committee since its formation.

At its annual meeting in Miami Beach, Fla., July 1966, the NEA representative assembly reaffirmed its previous stand on copyright law revision by adopting unanimously the resolution which is presented in my prepared statement.

Let me simply say as a summary of that resolution that it points out that there are two parallel sets of rights-the rights of those who create materials, and the rights of educators to use certain copyrighted materials in teaching; that the public interest requires that the copyright law provide special recognition for education which guarantees a legal right for teachers and educational institutions to make use of copyright materials, recognizing a limited right to copy and record such materials for nonprofit educational purposes, including educational broadcasting as proposed by the ad hoc committee.

The NEA feels that the ad hoc committee's proposals are essential; and it strongly urges that the Congress not diminish its own great

achievements in educational legislation by enacting a copyright bill which is not in harmony with the best interests of education and which would, in fact, inhibit the uses of materials which recent Federal enactments provide.

I should like to state for the record that the NEA has philosophical objections to any statutory licensing system, or clearinghouse proposal. Our objections are these:

One. There has long been a recognition in the copyright act of a vital distinction between commercial and noncommercial uses of copyrighted materials. We believe that this distinction, at least for education, should be continued in the new copyright law. Further, we believe that, as a matter of public policy, education should be authorized to use and to make limited copies of copyrighted materials without clearances or royalties.

Two. On the basis of the clearinghouse proposals we have heard thus far, a statutory licensing system would require continuous monitoring of classrooms to know the extent and nature of the use being made of materials in order to determine the fees to be charged to the schools and the distribution of the income among producers of the materials used. It is quite obvious that classroom monitoring of teacher uses of materials could lead to an unhealthy policing of materials' usage in the schools with accompanying pressure by publishing groups or others on teachers to use their materials in order that they might obtain a larger portion of the income received by any clearinghouse.

Three. The problems of imposing a rigid system of clearances on top of an informal and "fair use" arrangement would, we believe, unduly restrict practices that would be considered legitimate under the "fair use" section of the law as it is now proposed.

Four. The problems of administering a clearinghouse system would be many, and it is likely that the overhead cost required to administer such a clearinghouse would far exceed the revenues received therefrom. Educators might in all seriousness ask several other pertinent questions. I have listed some here in my prepared statement. We would have to know if the clearinghouse is going to consider all types of material or if we are going to have to go to a different clearinghouse for different sorts of materials. We would have to say that if a multiplicity of such clearinghouses were to be initiated, we feel it might even be necessary to institute a clearinghouse for clearinghouses.

The situation becomes enormously complex and intricate, and rather than make arrangements with several clearinghouses the teacher would instead forego using materials at all and avoid being involved in this network of red tape.

Having been a teacher almost all of my life, I can tell you that teachers really do not like to get involved in a lot of redtape which takes them away from the process for which they have been specially prepared; that is, the process of teaching. Therefore, we feel the clearinghouse would have an effect opposite to that desired by the publishers and would inhibit rather than facilitate access to materials.

In conclusion, may I say the National Education Association applauds the Congress for its great concern for education in the historic legislation which has been enacted to date. It is our sincere hope that the Congress will continue its concern for education as it enacts significant new copyright legislation.