I am going now to the section on reproductions by teachers for classroom purposes. We are talking about limited copying. One of the major duties of audiovisual supervisors in schools and colleges is to encourage the increased and improved use of new media in teaching.

One way to do this is to hold formal classes for teachers, but this, it has been found, is not as satisfactory as more indirect teaching methods. Let's assume that an audiovisual supervisor has been trying to encourage a teacher to use transparencies in his history classtransparencies are large slides on transparent acetate for use on an overhead projector the audiovisual supervisor sees a good picture in a magazine which is copyrighted, and he wishes to make a transparency of this picture, present it to the teacher, and encourage him to use the material for the improvement of his instruction. This type of activity is prohibited by the proposed copyright law.

Senator BURDICK. This is a question of delegation. Are you drawing a fine distinction that the teacher could not do it, but her supervisor could do it?

Dr. HYER. Well, again, in the House report on section 107, it says that the fair-use doctrine in the case of classroom copying is limited to, and I quote, "a teacher who, acting individually and on his own volition, makes one or more copies for temporary use by himself or the pupils in his classroom."

Now, I think it does go on to say that the teacher could ask someone to make it for him, but someone else could not automatically make one and say to the teacher, "Look what I found, this would help you in your class."

Senator BURDICK. That is cutting it pretty fine.

Dr. HYER. This creative teacher, too, once he has made the transparency

Mr. ROSENFIELD. May I read that next sentence?

Senator BURDICK. I understand it.

Mr. ROSENFIELD. It is on page 62.

Senator BURDICK. I think there is some implied agency here to let someone act for the teacher.

Mr. ROSENFIELD. This is specifically excluded: "A different result is indicated where the copying is done by the educational institution, school system, or larger unit, or the copying is required or suggested by the school administration, either in special instances or as part of the general plan." It is specifically excluded.

Senator BURDICK. Proceed.

Mr. TAYLOR. This means, then, that our summer workshops, in preparing materials for use in this system that I explained earlier, the dial-access system, which we hope will help students to learn individually at their own rates of speed, will be hampered greatly.

A teacher may come in and make her own material now, but we cannot make it for her use in the classroom and give it to her as part of a package.

Dr. HYER. It appears, too, from the language, that even if the teacher himself made this or made a slide of another type, he is supposed to destroy it at the end of the teaching period, because it emphasizes the temporariness of this and says it can turn into an infringement if these are accumulated over a period of time.

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Now, copying also is necessary in our work because materials are sometimes not available in a medium format that we need them in. I think, again, I would like you to comment on that.

Mr. TAYLOR. Yes. Recently, in our school districts, we had some students who had serious reading problems. In the course of teaching, one of our teachers found an excellent book by the name of "Susyouki Bean," which uses slang language. This book, when she made reference to it and made quotes from it in the classroom, really sparked students who had heretofore been sort of lackadaisical. They enjoyed the language they heard. However, these same students could not read this book.

It was well illustrated, but still they cannot read it because of their reading difficulties. Using this as a stepping-off point, she thought it would be a great teaching device.

She came to me and said, "Would you please transfer this to video tape, just show the pictures, as Captain Kangaroo does, show the pictures as you read the book."

I said, "No, we cannot do this, under, as I understand it, the present copyright situation.”

So I wrote to the publisher and asked, "Will you give us permission to make this transfer."

Two weeks later I received the reply, which said, "We do not hold the copyrights on this, somebody else does; write to them."

So we have written to them. We have as yet received no reply. We have not done this, and the teachable moment is lost for these students, where we felt we had hit upon something that would interest these students.

Dr. HYER. So often, materials that are on recordings are not available as tapes, and if they are in a book, they are not available for transparency, and so on. So we need to do these things, and to keep them over a period of time.

Now, members of the department of audiovisual instruction are also concerned about the limitations that are placed on educational broadcasting and on the educational uses of the computer in the proposed bill.

Because of our limited time, however, we are not including detailed testimony on these items. We are, however, strongly endorsing testimony related to these topics as presented by Dr. Wigren for the Ad Hoc Committee on Copyright Law Revision-and that will be presented following us by representatives of the National Association of Educational Broadcasters. We just want you to know that we are much back of their testimony.

In conclusion, I think from our testimony, it is evident that teaching has been changing in character and in the way in which it utilizes the materials of instruction. There is decreasing emphasis on the teaching of "a class" and more on the teaching of the "individual child." Much of the schoolwork is on an individualized basis and teachers want materials available for individual children whether presented by the teachers themselves in a face-to-face system or in a tutorial situation over a listening center or over a video-retrieval system.

The department of audiovisual instruction feels sure that many of the hardships that the bill as proposed would create for teaching

and learning were accidental and not intentional. We therefore strongly urge your consideration of the specific amendments to section 110 which the Ad Hoc Committee of Educational Institutions on Copyright Law Revision has presented in the appendix of its testimony. We feel that these changes would go a long way in correcting the limitations now placed upon the use of copyrighted materials for the present and emerging patterns of teaching.

Thank you, Mr. Chairman, for this opportunity to appear before your committee.

Senator BURDICK. If this committee should permit the use of these audiovisual methods, schoolwide, would that be adequate?

Dr. HYER. Do you say, would it be ethical?

Senator BURDICK. That would certainly be a step in the right direction. I do not feel, however, that you would have any adverse effects with a broader interpretation than schoolwide. I think that it is just the matter, as I say, of moving these things in a most economical way. Schools do not, in the United States, even in three elementary schools that are in close proximity to each other, use the same materials in the same way at the same time, so that you are not going to have one use of these, or one copy of something satisfying the needs of all the schools anyway.

Teachers more and more want these things in their classrooms. We see this, and they are going to want them in their individual schools. We see this with film-strip libraries that are going in, and with tape libraries, and pictures. So I think that, as the people said this morning, putting this school-system-wide would not do any more damage than schoolwide.

Senator BURDICK. Well, I want the same things you do. But I am concerned, and that is why we are here. If someone puts a lot of talent and a lot of thought into some kind of audio visual program and that could be used statewide or nationwide, you probably would not have many of those produced. That is what bothers me.

Mr. TAYLOR. Sir, this would be exactly our contention and our fear if there were a possibility of this happening. If we thought we could buy one copy for the State of New York and distribute this, we know we would be cutting our own throats, because to produce a program as good as those commercially available is a very difficult task, a timeconsuming one. We could not afford to do it.

Senator BURDICK. This is my point.

Mr. TAYLOR. We recognize, however, as many of my colleagues do, that if we allow the use on such closed-circuit television programs as you see here, a teacher is not going to be satisfied with this. He will want to screen more of these.

I know that the sales of motion pictures, for instance, in the last year in New York State, in many instances, have gone up 100 percent. This is because we are now getting materials closer to the teacher. The closer we can get them, even with this business of distributing them via closed-circuit television, in many cases, it is for one classroom only.

There is a system available in Norwalk, Conn., where the gentleman can put a film on a projector and send it to one school 10 miles away. They could not afford a film library large enough to handle his teach

ers' needs. But doing this, they are now finding more teachers want more films available, no matter what form they come to them in.

I would agree with you, yes, we are concerned that we not drive any publishers out of business, because we would be damaging our own interests at that point.

Senator BURDICK. I am not talking about driving publishers out alone. I am talking about drying up ingenuity.

Mr. TAYLOR. Yes, this problem of creativity.

Senator BURDICK. Senator Fong?

Senator FONG. Yes, Mr. Chairman.

Where would you draw the line on closed-circuit transmission? Dr. HYER. I do not know. It seems to me that I would like to put this question, really, back to your committee. I think you are finally the ones who are going to have to decide it. We would like it as broad as possible, without drying up the sources of our supply of instructional materials.

We definitely, let us say, are against the copying of such things as films and filmstrips, and encyclopedias, and things of this sort. We have no intention and have never asked for this sort of thing. We have asked for excerpts of those. The ability to display in new ways things which we have bought to display, that is what we are trying to point

out.

I suppose I would look at the answer to your question quite differently, then, perhaps, Mr. Deighton, who is probably still in the back of the room, would look at it. I think I would have to just say that when we both present our cases, you members of the committee will have to judge.

Senator FONG. Following the same line, how much of a book do you think you could take out and not hurt the author? I can see where you would take out one picture and show it, or one graph and show it. I can see that would be of no harm. If you take 50 graphs from the same book and 50 pictures from the same book, then there would be some detriment there. Where would you draw the line, again?

Mr. TAYLOR. Do you mean in using such a thing as a transparency instead of the book?

Senator FONG. Yes.

Mr. TAYLOR. I might cite this: I have found, again using somebody like Captain Kangaroo's program. He reads a book on television and displays this over television, and our local libraries are deluged with requests for this same book.

There, too, if one of these is made for classroom presentation by a teacher instead of the old-fashioned method of holding it up here [indicating] and you do not know what is on here, those same students may go to the library and ask for more copies of one book.

So in one way, it can increase demand for that material.

Senator FONG. But you have not answer my question. My question is, how many graphs can you take from a book and still not say you have purloined the property from the copyright owner?

Mr. TAYLOR. I do not think there is a way of saying how much of it you could do this way.

Senator FONG. Is this your statement to us, then?

Dr. HYER. I think there is a difference of whether you are displaying it or copying it. If you are copying it, you should not be using a sub

stantial portion that can replace the total work. I think this is spelled out fairly well. But if you are displaying it, you expect to display the whole thing. If you purchase a book for use, you expect to have the whole book. If you are copying a map out of the New York Times, I expect to copy the whole map.

Senator FONG. Suppose à person is in your position, where you are not the classroom teacher, but you see something that is good in a book, and you see 10 graphs in that book that are very good. So you copy it, and then you audiovisualize it to the whole school. Now, how many of those graphs will they permit you to copy?

Mr. ROSENFIELD. May I make an observation, Senator, so that we are not attempting to miss your question?

So far as display is concerned, as Dr. Hyer indicated, we are not copying, we are showing the original. We believe we ought to have the same right as if we were in the library, looking at the whole book.

We are not making any copies. We bought the material to show and we are showing it. That is the concept of display.

When it comes to copying, we are limited by 107 with the four criteria, and there the limitation is exactly the same as it is for books. We cannot copy the whole book, we cannot copy that much of it which would be destructive, substantially destructive of the market.

Therefore if we break those two things, just as Dr. Hyer has done in her statement, we get a different answer, depending upon which part you are dealing with.

Senator FONG. Yes; but the House answered your question, and you said that the House has been too limiting.

Mr. ROSENFIELD. Exactly.

Senator FONG. Now, if we want to broaden what the House has done, how far should we go? You say we should go all the way?

Mr. ROSENFIELD. No, sir.

Senator FONG. As long as you do not copy it, as long as you present the original, you say we should go all the way. Is that not correct?

Mr. ROSENFIELD. Not quite, sir. The objection we are making to the House report on this score is as to the language relative to the fourth criterion in "fair use," which deals with copying. And there we are saying we are not going the whole way, we do not want the right to copy all of the encyclopedia or all of the entire map.

On that, so far as copying is concerned, all we are suggesting is that the language, "no matter how minor," be eliminated. This does not mean that we are saying, "no matter how major." We are not going the whole way completely the other way.

Senator FONG. There is a distinction between copying and showing the original?

Mr. ROSENFIELD. That is precisely right.

Senator FONG. In the showing of the original, you are willing to go all the way; you want to go all the way?

Mr. ROSENFIELD. That is what we bought it for.

Senator FONG. That is precisely the fact.

Senator BURDICK. But you talk about educational broadcasting in your statement. Does that mean closed circuit any distance?

Mr. ROSENFIELD. Just as Dr. Hyer said, we believe that your proposal-not proposal, your query for at least the school-is a long way