lish, the wording of the report on section 107 is not as clear as we would like. And it is only by establishing the belief that he was operating within the provisions of section 107 that the teacher can establish his innocence under section 504.

The confident teacher will probably take full advantage of the privileges of section 107 and not worry about the structures of 504. Other teachers, however, uncertain of the scope of the threat intended by 504 and finding little additional clarification in the report, will ignore opportunities which 107 is meant to afford. It is then both the apparent reversal of judicial procedure in the law and the lack of helpful explication in the report that we call here to your attention. Other issues concern the National Council of Teachers of English. Yet, it is clear that the Office of Copyright and the Congress cannot serve each specialized interest of all the professions-teaching, scholarship, publishing, and writing-that feel a legitimate stake in the law. If we do not raise the other issues here, it is to highlight the three issues that we have discussed and about which we remain deeply concerned. But let none of this discussion blur for a moment our commendation of those who have worked so hard and so long to bring into being a law which will serve equitably the several groups it affects so directly.

(The complete prepared statement of Mr. Maxwell, above-referred to, follows:)

STATEMENT OF S. 597, A BILL FOR THE GENERAL REVISION OF THE COPYRIGHT LAW, SUBMITTED BY THE NATIONAL COUNCIL OF TEACHERS OF ENGLISH

I am John Maxwell, a member of the Executive Committee of the National Council of Teachers of English and Chairman of the Council's Secondary Section, which enlists over half the membership. The National Council is at once the largest subject matter organization of teachers in the world and the organization which provides a forum for American teachers of English at all levels, primary through graduate school. The Council has been from the outset an institutional member of the Ad Hoc Committee on Copyright Law Revision. I speak today for the Council's 117,000 members and subscribers in general support of the position outlined by Mr. Harold Wigren, Chairman of the Ad Hoc Committee, and in appreciation of the labors of the two legislative committees and of Mr. Kaminstein and the staff of the Copyright Office of the Library of Congress. Reshaping an obsolete law into a modern instrument that will reconcile conflicting interests and facilitate the optimum sharing of accumulated knowledge within a rapidly changing society is a monumental undertaking.

Without discounting the magnitude of the technological revolution in printing. photocopying, and phonorecording, we affirm that the major changes in the teaching of English since the passage of the original copyright law in 1909 have other and deeper roots: our dual concern for better teaching and its adaption to the varying needs of our increased student population. As a distinct discipline in the schools, English in 1909 was barely two decades old and had found its shape and thrust within the specialized demands for university entrance. Moreover, in 1909 compulsory education was neither the law in all states nor the fact in many states; only a fraction of those of secondary school age were enrolled in schools. The direction of change has been twofold: universal education has come closer to realization; and schools have been increasingly concerned with their educative potentialities rather than with their merely preparatory or custodial responsibilities. As the one subject that students undertake through all their school years, consuming as much as 25 percent of the entire instructional effort from kindergarten through grade 12, and as the subject whose responsibilities range from basic literacy to effective communication to passing on our highest cultural heritage. English has felt the impact of these changes at least as much as any discipline in the schools.

Consider for a moment changes that have occurred in the teaching of English since 1909, the date of the present copyright law. The teaching of literature con

sisted then primarily of acquainting selected and more or less docile students with a body of standard classics many of which were so old as to fall automatically into the public domain. Literature was not viewed as a means for clarifying the contemporary experience for the student or for sensitizing him to his developing world.

Our present generation rightly demands a meaningful bridge between the culture of the world-the streets, if you will-and the experience of the classroom. To capture the interest and commitment of today's nonselect and rarely docile generation of students, teachers need to be free to explore with students the leading edge of communication in the modern world and relate it meaningfully to the stable heritage of values out of which the modern world has grown. It was in response to this challenge that, in a remarkable evolution from the 1909 curriculum, contemporary literature made its way into the English curriculum.

In no less remarkable fashion, the teaching of oral and written expression has also undergone change. A focus limited to elocution and declamation, once thought essential and adequate for students who would later go into the ministry or law, has elaborated into broader concern for improved communication skills for all students. The secondary school composition program, born in the late nineteenth century in response to the decision of colleges to test composition skills prior to admission, now includes not only preparation for college, but for business. for personal growth and pleasure, and for the general arena of human affairs. To couple programs in oral and written expression to a few standard literary classics, indeed to any fixed set of books adopted by schools for five-year periods, would be to vitiate the program by denying the creative and spontaneous teacher an opportunity to "capture the moment."

Yet for all our long efforts to improve our teaching and to serve our students, there remains much that we do not know. Those students, nearly one third of the total secondary school population, who drop out of school before graduation, are a haunting reminder of how much we need to learn. It is with these students especially that teachers need freedom to explore, to attempt, to experiment, to evaluate, and if necessary reject without being tied to a curriculum whose roots are in a five-year adoption policy. The other two thirds are also our concern. Investigators in the recently completed National Study of High School English Programs, sponsored by the National Council and supported by the Office of Education, found in some schools shelf upon shelf of texts and collateral reading books mothballed as in some academic soil bank. books had become inappropriate as the student population had changed, the manner of teaching had changed, and the interests of students had changed.

The goal for a copyright law useful to teachers, as we see it, is to grant the teacher and his students the valid right and privilege of access to current literature and to current products of the mass media in, for example, the documentary of President Kennedy, or reports of hearings such as this one, of the McCarthy hearings, of the current drama of Adam Clayton Powell. Beyond this, the poetry, wisdom, and wit of the contemporary book, play, or TV program must with reasonable regulation, be accessible to the classroom. We recognize that other property rights are involved; but we know, too, that new freedoms are hammered out of the clash of seemingly settled rights.

Against this backdrop we find much to praise in the proposed bill, especially as we contrast it to the 1909 law and to the bill introduced into the Congress in February 1965. Especially welcome is the revision in section 107 to spell out the nature of "fair use" and to make clear that teachers and scholars stand in a special and unique relationship to materials under copyright.

We have come to recognize in the open and adaptive relationship of the four criteria for "fair use" a structure that can support the open and enriched classroom during a period when constant change is certain but its directions are not. This doctrine of "fair use"-in its explicit concern for the teacher's need to act with spontaneity in adopting and reproducing pertinent and timely materialsupports sound educational practice.

We are equally pleased with a similar recognition of the teacher in section 504, which grants to the court discretionary authority to reduce or to waive the minimum statutory damages in the case of a teacher who in the course of his normal face-to-face teaching activities innocently infringes the law. Mr. Kaminstein and his colleagues have received official thanks from the National Council recognizing in the current wording of these two sections of the proposed law the special needs and rights of teachers. Yet certain issues remain, and we are grateful for this opportunity to present them to you.

On the face of it, the provision for reproducing a reasonable number of copies of certain self-contained units of material "not substantial in length" when compared to the larger units from which they are taken seems to be a compromise that is fair both to student and publisher. We believe, however, that an unresolved issue remains in the language of the Report that accompanies the bill. The specific example cited in the Report, a "very short self-contained work such as a four-line poem" is not helpful. First, not many poems of value are so short; and, second, such wording might discourage a timid person from reproducing any poetry. Teachers, who are not lawyers, need clear language in order to take full and legitimate advantage of opportunities implied in the intent of the law so that they may teach with spontaneity.

One reason for our sensitivity to this issue is the thought that we may perhaps have unwittingly contributed the language here used. The issue was born of the difficult discussion concerning the relationship between excerpts and whole works. From the outset few persons doubted that in its final wording the law would grant to teachers the right to make multiple copies of excerpts; it also seemed for a time that no provision would be made for multiple copies of short whole works. In this context spokesmen for English teachers raised again and again the question: how can you excerpt a limerick, or a four-line poem? On this one issue we ask no change in the wording of the proposed law; but we do request that the Report to accompany the law will make clear either by other example or additional explanation that "a four-line poem" is a dramatic example, not a ceiling. We believe, moreover, that the principle of "fair use" so painstakingly developed to release the printed word for the classroom ought to extend to the classroom use of the spoken word on radio and the pictorial image on TV. Powerful and timely "essays" are broadcast each day. A capacity to analyze, to respond to aesthetic achievement, to understand the rhetoric of the moving picture these should be a part of the awareness of the alert contemporary citizen and should be taught by the schools. A good principle applied to the use of the printed word ought also to apply to other powerful modes of communication.

The schedules of commercial broadcasting were never intended to mesh with teaching schedules in the schools. The teacher cannot regularly change his schedule to incorporate classroom study of programs on radio and television. Indeed, even if he could so change his schedule, there is little on daytime radio or television that would make it worth the effort. But this criticism of the content of the media is fair only if it also takes into account the heights to which these same media reach at their very best, during evening hours and on weekends. It may be some time before teachers or schools have at hand portable videotape equipment. But most schools and some teachers have tape recorders. For any radio program and for some television programs-discussions of current affairs, for example, or literary readings-tape recording would be adequate for instructional purposes. I am not speaking here about instructional or educational broadcasting. Specialists in those fields will have an opportunity to speak later today. But we do ask for the teacher an extension of the privilege to make ephemeral recordings of broadcasts for such uses as fit the immediate needs of face-to-face teaching in his own classroom.

Again, the provision that the court may exempt the teacher who is an innocent infringer seems a fair and viable practice; but the stipulation that an alleged infringer should be charged with the burden of proving his innocence of intention to infringe seems a strange reversal of traditional judicial procedure. Beyond that, we may be dealing with an issue inherent in the Report as well as in the proposed law. In no small measure the issue pivots on degree of teacher confidence rather than of innocence. As we have already made an effort to establish, the wording of the Report on section 107 is not as clear as we would like. And it is only by establishing the belief that he was operating within the provisions of section 107 that the teacher can establish his innocence under section 504. The confident teacher will probably take full advantage of the privileges of section 107 and not worry about the strictures of 504. Other teachers, however, uncertain of the scope of the threat intended by 504 and finding little additional clarification in the Report will ignore opportunities which 107 is meant to afford. It is then both the apparent reversal of judicial procedure in the law and the lack of helpful explication in the Report that we call here to your attention.

Other issues concern the National Council of Teachers of English. Yet, it is clear that the Office of Copyright and the Congress cannot serve each specialized interest of all the professions-teaching, scholarship, publishing, and writing

that feel a legitimate stake in the law. If we do not raise the other issues here, it is to highlight the three issues that we have discussed and about which we remain deeply concerned. But let none of this discussion blur for a moment our commendation of those who have worked so hard and so long to bring into being a law which will serve equitably the several groups it affects so directly.

Senator MCCLELLAN. Do you have any questions, Senator Burdick? Senator BURDICK. In other words, the product of the House is satisfactory, but the report is not?

Mr. MAXWELL. I am sorry, I did not hear your questions, sir. Senator BURDICK. The product turned out by the House Committee is satisfactory?

Mr. MAXWELL. It is with the report that we are primarily concerned.

Senator BURDICK. The report is not part of the legislation, but part of the record

Mr. MAXWELL. Our concern is with the report.

Senator BURDICK. Parts of it.

Dr. WIGREN. Our next speaker is Dr. Charles Gary, on behalf of the music educators national conference.

Mr. GARY. I have a statement that I would like to read, with one addition I will make to it.

I am Charles L. Gary, associate executive secretary of the music educators national conference, the largest professional organization of music teachers in American schools and colleges. Many of our members are composers and authors as well as users of copyrighted material in many forms.

The conference is anxious to see passed a new copyright law that will continue to provide incentive for creative individuals but will at the same time permit the teacher of music to make his maximum contribution to the development of American culture by allowing him to teach his art with all the imagination and technical assistance at his disposal.

I want to make it clear that the music educators national conference supports the position of the ad hoc committee, as do two other music organizations which have participated in ad hoc deliberations and for whom I have the privilege of speaking they are the Music Teachers National Association, representing mainly private studio teachers, and the National Association of Schools of Music.

We are, like the other members of the ad hoc committee, pleased with the recognition of certain educational practices as "fair use" but we are deeply worried lest the hands of future teachers be tied by the restrictions represented by 110 (2) (D).

Let me conjecture in the area of music education. One of the big problems we face is the lack of enough adequately trained teachers of music for elementary schools. The curriculum for training an elementary teacher is so filled with all the subjects she must be prepared to teach that only those with previous musical education are able to teach music well when they leave college. There are not nearly enough specialists to do the job and no prospects that there will be for years.

To this bleak picture, which handicaps the efforts of every music educator in the country, comes the suggestion that the elementary classroom of the future may contain equipment that will make it possible for each individual child to acquire musical skills and knowl

edges. Let me make it clear that the "art" of music will never be imparted by machines but only by a musical teacher, but I am told that the possibility does exist for many fundamentals to be imparted through the new technology. What the exact nature of assistance may be or its relationship to copyrighted materials I cannot say, but I am loath to see a law written today that may tie our hands in the future. When I testified in 1965 before the subcommittee of the House Judiciary Committee concerning the original version of H.R. 4347, I pointed out that it had seemed possible to find language for what was then section 109 that did not interfere with the school's need to perform copyrighted music as part of its education function.

I asked why it would not also be feasible to find comparable wording for section 107 that would grant a clear exemption for certain educational uses of copyrighted materials. I now find mystelf in the position of being satisfied with section 107 in the amended version and deeply concerned over some additions that have been made to what is now section 110.

The attempt of section 110(4) (B) to free the copyright holder from being forced to contribute to a charity he did not wish to support is understandable but the possible consequences of this additional language are most perturbing to us. When one thinks of all the school performances across this country for which admission is chargedthe proceeds going to the school, and generally to its musical programone wonders how copyright holders could know of the imminent performance of their work. Is notification of intent to perform implied? Should this be the case, music educators would be much happier with the "not-for-profit" provision under which school performances operate today, for all the careful language of 110 (3) and (4) up to exceptions i, ii, and iii would be for naught.

Let me say the ad hoc committee was never consulted about these points-i, ii, and iii. We first learned about them when the revsion of H.R. 4347 was printed. It was not part of the discussion we had at the summit meetings and elsewhere with the members of the House committee or with the members of the Register's staff.

The request for the addition of language to require notice of intent, which I understand was presented to this body yesterday by the publishers, would set up a situation that would be exceedingly difficult to enforce and one that would involve a change in principle as far as schools are concerned. What is involved is more than appears in the language of the bill, and this proposed addition to it would create an onerous situation to which music educators would be strongly opposed. I think I can say that music educators would probably be enough opposed to it that they would want to defeat the whole bill, if they had that much power.

More is involved, I think, than appears in this language. I see this move as merely plowing the ground for a licensing system. To relieve the schools of the burden which such a provision would create, licensing agencies would approach the schools and offer to free schools of this bother by selling the schools an annual license. This would mean at least three such licenses at present-ASCAP, BMI, and SESAC.

Further, it would open up practices that might then be extended to other materials used by the schools.