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This is the item of chief concern to me, because of the fact that music educators feel that their whole program depends so strongly on performance and on public performance as a culmination of their activities in the classroom.

One other portion of section 110, as interpreted in the report, is of concern to music educators. This section reads: “Performances by actors, singers, or instrumentalists brought in from outside the school to put on a program” are ruled out of the exemption whereas "guest lecturers" are not.

More and more music educators are using persons from the community to enrich their teaching, and they are being encouraged to do so. I quote from a recent book published by our organization, the MENC. “Bringing musicians into the school is important. Professional and accomplished amateur musicians may be used for demonstration purposes. Some may play for assembly; others demonstrate correct vocal production for the school chorus. They may conduct sectional rehearsals of the band or orchestra. Chamber music groups may give counsel on the techniques of small ensemble playing.

Do such persons have to be employed by the school board to be "instructors" engaged in "face-to-face teaching activities of a nonprofit educational institution"? Is there any reason to discriminate with respect to a musician or an actor who give their services to the school while a “lecturer” (who is paid) is free to use copyrighted material?

Though we believe that the drafters of Senate 597 have attempted to give education some of its present needs, we also feel that the organizations represented by the ad hoc committee have made many concessions in such matters as duration and broadcasting, and we ask that any future revisions in the bill be made with the concerns of America's teachers in mind.

Senator MCCLELLAN. I had to leave the room a moment. What are you referring to in your closing paragraph?

Mr. Gary. There is a section in the report referring to 110, which I do not have before me at the moment. It specifies that musicians and actors may not use copyrighted materials in the classroom, whereas a lecturer could be construed as a member of the teaching team. I think this is an unnecessary discrimination against one type of

Senator McCLELLAN. In other words, a lecturer may be paid and he can use it?

Mr. Gary. He can use copyrighted materials without getting permission, whereas a singer coming in could not.

Senator MCCLELLAN. Whether they are paid or not?
Mr. Gary. Yes, whether they are paid or not.
Senator McCLELLAN. Are you sure of that?
Mr. Gary. This is the way I interpret it.

Senator McCLELLAN. Well, all right, you can explain it. I will not take further time. I just do not understand it.

Mr. Gary. There is a section which discriminates against music people who are not actually employed by the school but are brought in, say, from the community. If I want to go in and demonstrate in my boy's school, because I am not a part of the teaching team and I am not employed by Fairfax County. I am not allowed to use copyrighted materials without clearing in advance. My neighbor might


want to go in and give a lecture, and he would be allowed to do that without clearing copyrighted materials.

Senator McCLELLAN. We will look into that. Any questions? (No response.) Dr. WIGREN. Our next witness for the morning is Mr. Harmon Burns, Jr., counsel of the National Catholic Educational Association, and Father Friedman is with him.

Mr. BURNS. I am Harmon Burns, Jr., counsel of the National Catholic Educational Association in Washington. I am accompanied by Father Clarence W. Friedman, associate secretary of the association. We consider it a high honor to be invited to testify before this distinguished subcommittee on the use of copyrighted materials in the Catholic schools of our country.

In appearing before you, I may say that the National Catholic Educational Association has been a participating member in the Ad Hoc Committee of Educational Institutions and Organizations On Copyright Law Revision. We are in accord with its conclusions and commend the recommendations submitted to you by the chairman of the committee.

Speaking to the matter concerning which I have been asked to appear, may I say in brief that the problems, practices, and procedures followed in our schools in this regard are precisely those experienced in the public schools and other schools throughout the country. You have heard earlier in interesting and informed detail what these problems are.

It would be inappropriate, therefore, for me to impose on the subcommittee by reiterating them in depth. As a practical matter, our teachers, as with teachers in the public schools, make use of many types of material in the ordinary teaching techniques. We find it extremely helpful and beneficial to make hectographs, transparencies, and other such teaching aids out of materials taken from journals, pamphlets, and sometimes from research texts. This material is used solely for the purpose of improving instruction and without intention of infringing the rights of the authors.

It is assumed authors would favor educational use of their materials since those of most publications of a research nature expect their ideas to be investigated and expanded in instruction. It has become very common in the teaching process in our schools, both elementary and secondary, to make use of available material susceptible to treatment through the audio- and visual-type machine technique. This brings classroom teaching more up to date and, in addition, helps the teacher to be original and creative.

It is not unusual for teachers to take an excerpt from some published material, hectograph, or mimeograph sufficient copies for use in a classroom, and then have student discussion and criticism of the material as an aspect of developing student participation and understanding. In such instances there is no intention of abrogating the rights of the publisher.

I might add that automation is being developed more rapidly each day, and individual teachers are making greater use of isolated material in their teaching procedures. This can be done only through a culling process with resultant selection of data one feels helpful to the student and most relevant to the subject being taught. Much of this material is available to the teacher only in current printed media and necessarily must be duplicated for meaningful use.

In conclusion, educators insist that a teacher, to be vibrant, alive, creative, and, in turn, successful, must have fair freedom to make use of educational material at hand so that our Nation's children may have constantly available to them the best educational materials, techniques, and opportunities. Undue limitation of this hampers the attainment of that high goal of educational excellence which the Congress and the country so ardently desire.

Dr. WIGREN. I wonder if Father Friedman might like to add to that.

Father FRIEDMAN. The only thing I would add to what Mr. Burns has said is to emphasize the fact that our problems are the same. We have the same hesitations, the same concerns that have been expressed by other members of this committee, and I would not like to take the time of the committee to go into detail. .

Senator McCLELLAN. Thank you very much.

Dr. WIGREN. Mr. Chairman, if it is possible, would you mind if we have our attorney, Mr. Rosenfield, make a concluding statement for this panel this morning?

Senator McCLELLAN. I would be very glad to have him. We have moved along very expeditiously this morning, in spite of my interruptions.

Dr. WIGREN. We thank you for that.

Mr. ROSENFIELD. We appreciate the opportunity to answer questions. We do not regard them as interruptions, but as aids to us in expressing our view. Perhaps, it would be helpful to the committee if I were to list seriatim what our major points of interest are, both this morning and this afternoon, so they would be within an overall picture.

We see a need for change in the present law and/or report in eight different areas. First, the question of fair use.

You, Mr. Chairman, and Senator Burdick have frequently asked the question, Are we satisfied with section 107 in haec verba? The answer is “Yes.” We have accepted that fair-use provision, and we mean to live by it. But what we are saying, Mr. Chairman, and Senator Burdick, is that the language of the report does not carry out the agreements we reached. This is true in two respects:

One, in respect of the report's description of the fourth criterion; and, secondly, in respect of its exclusion of educational broadcasting as the report in the House has indicated on page 65. We believe this discriminatory lessening of the effect of fair use on educational broadcasting is unwarranted and this will be described in considerable extent this afternoon.

Senator McCLELLAN. Let me ask you, have you submitted language for our report that you would recommend in lieu of what is contained in the House report?

Mr. ROSENFIELD. We have not done so, Mr. Chairman, because it would be supererogation on our part, but if this is an invitation, we would be delighted to.

Senator McCLELLAN. Well, I am making a specific invitation so there will be no misunderstanding. I do not know that we will adopt your language.

Mr. ROSENFIELD. I understand.

Senator MCCLELLAN. I am not making a committal, but you criticize that language. If you submitted something of what you have in mind, that will give us the conflict and we would undertake to resolve it.

Mr. ROSENFIELD. We would be delighted at that opportunity.
Senator McCLELLAN. Senator Burdick?

Senator BURDICK. I have a question along the same line. Would you also point out wherein the language of the House differs from what you consider the compromise agreement to be?

Mr. ROSENFIELD. Of course, we would be delighted to do that.

The second of the areas that we have in mind is the confusion between open- and closed-circuit television. Under the present language of the House report, there is no distinction between closed-circuit and open-circuit television, between public television which anybody can get, and the limited, controlled, in-school, highly articulated educational operation. We believe that closed circuit ought to be assimilated to the treatment given to face to face teaching in section 110(1). Therefore, we have proposed specific language in proposed section 110(1A) to which Senator Burdick has earlier adverted. This is a new proposal, new language, which we believe is justified.

Third, as has been indicated by the testimony of various people this morning, and will be indicated again this afternoon, we are distressed by the difficulties which this bill, particularly secton 110(2) (D) creates for individualized instruction' in the schools. I will not pursue that any further, but it is of extreme urgency. It has been described and will be described further.

Fourth, we are disturbed by the serious, if not catastrophic, impact of the bill on instructional broadcasting. There has been attached to Dr. Wigren's statement a new proposal, statutory proposal, as a substitute for sections 110(2) and 112(B). This will be discussed at considerable length, in detail, this afternoon by people specifically involved in this discussion. It has already been referred to.

Fifth, we are distressed at the impact of the bill and the report on computer input. It is our position, as will be described by Dean Siebert and Professor Miller at the afternoon hearing, that input as such is not infringing. I shall not go into that except to say that we, too, are in favor of the study group, preferably appointed by the congressional committees, but we believe that the present bill in effect makes a decision which it is alleged it does not make.

Under the present bill and report, computer input is infringement, and the gentlemen I have referred to will describe our opposition to that.

Sixth, we are distressed by the limitation of the provisions of 504 (c) (2), the discretionary raiver, by a court, of innocent infringement as being limited only to the classroom teacher. We urgently suggest that this ought to be applied to the teacher on educational broadcasting as well as the librarian. This would require an amendment on page 11. lines 23 to 27.


Seventh, as indicated, we have difficulty with the duration provision in this particular bill. Our ad hoc committee represents a very large number of educational authors who do not agree with the Authors League, who testified yesterday, although there are some differences of opinion within our group. Our group,

group, as a consensus, believes that life-plus-50 is not in the best interest, but urge retention of a 28-plus28- or 28-plus-48-year duration.

Lastly, if I may be permitted the observation, Mr. Chairman, yesterday there were seven proposals for amendment made by the joint statement of the American Book Publishers counsel and the American Textbook Publishers Institute. Mr. Gary has already indicated an exception to the fifth of these proposals, the fifth of the seven. We should appreciate the opportunity to indicate our opposition. We have not had an opportunity yet as a whole.

We would appreciate the opportunity at a later time to indicate our objection to a considerable number of the proposals for amendment made by Mr. Manges in his statement.

Senator McCLELLAN. You may, without objection, submit it to us and we will weigh it at the time. It might be that we will want to cross examine you on it.

Mr. ROSENFIELD. That will be splendid.

Senator McCLELLAN. You may submit it and it will be included in the record.

Mr. ROSENFIELD. In conclusion, it is our view that, as the Attorney General of the United States has said, copyrights are monopolies that are being granted by the U.S. Congress in the public interest.

We believed that in the quid pro quo for the granting of the monopoly by Congress to various people, the public interest in protection of education is what we are bespeaking, and we hope that in the granting of a copyright monopoly, the interests of the educational community, which is the entire community, will be kept in mind for proper uses within that monopoly.

Senator MCCLELLAN. Thanks.

Dr. WIGREN. Thank you, Mr. Chairman, for allowing us to take this time this morning to appear before you.

Senator McCLELLAN. Thank you. You have had your presentation well organized, and we were able to move along expeditiously and conclude on schedule. This is going to be a long series of hearings, and it is going to take a lot of our time. We appreciate the witnesses coming prepared to make the kind of presentation you have this morning.

I regret very much that I shall not be able to be with you this afternoon and tomorrow. I have to leave the city. But the cochairman of these hearings, Senator Burdick, will preside this afternoon and tomorrow, possibly Monday and Tuesday, but I am going to be with him as much as I can when I am here. I have other work that takes some of my time and he has very kindly consented to preside at these hearings.

He will preside this afternoon and I have just asked him how soon he would like to resume, and he says 1:30 will be satisfactory to him, if that does not crowd you folks too much.

Mr. ROSENFIELD. We would be delighted to do that.
Senator McCLELLAN. Thank you very much.

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