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forward. We believe, Senator, that certainly within the school system itself, in fact, we will not hurt anybody in any substantive way.
Senator BURDICK. I have not made any proposals; I am just asking questions.
Mr. ROSENFIELD. That is why I switched to questions.
(The complete prepared statement of Anna L. Hyer and Robert Taylor, above referred to, follows:)
STATEMENT OF ANNA L. HYER AND ROBERT TAYLOR, DEPARTMENT OF AUDIOVISUAL
INSTRUCTION NATIONAL EDUCATION ASSOCIATION
Mr. Chairman and members of the subcommittee, I am Anna L. Hyer, Executive Secretary of the Department of Audiovisual Instruction of the National Education Association. With me is Robert Taylor, a member of the Department of Audiovisual Instruction, who is Director of Educational Communications in the Bedford Public Schools of Bedford, New York.
The Department of Audiovisual Instruction is one of several autonomous professional organizations related to the NEA. Established in 1923, our Department is made up of approximately 7,000 educators who are particularly concerned with the improvement of education through the more effective application of instructional media to the teaching-learning process. Media includes such items as pictures, slides, motion pictures, filmstrips, radio and television programs, recordings, and programed instruction. The members of DAVI are chiefly supervisors in schools and school systems or directors of audiovisual services in colleges and universities. The audiovisual services they provide include: helping teachers and students to select and use new media, producing instructional materials for teacher use when commercially prepared materials are not available, designing efficient and effective learning environments, and selecting and purchasing audiovisual materials and equipment.
The Association we represent has been a member of the Ad Hoc Committee (of Educational Institutions and Organizations) on Copyright Law Revision since it was organized three years ago. We are in agreement with the testimony presented in behalf of the Ad Hoc Committee by Harold E. Wigren. In brief, we feel that, with some greater degree of certainty written into the Committee Report and the legislative history, the "fair use" provision of The Bill is reasonably adequate as it applies to classroom teaching as it is usually conceived, but that The Bill places severe limitations on the emerging uses of the newer educational technology.
To understand how the proposed Copyright Law would adversely affect the work of the audiovisual supervisors, and in the long run the children, we propose to do two things. First, we will show through pictures some of the newer ways media are being used in teaching situations and how these methods differ from those formerly used. Secondly, we will state what aspect of the proposed legislation (including the provisions of the House Committee Report on H.R. 4347) will adversely affect the type of learning situations we have portrayed. Performance and Display Not Involving Copying
Until quite recently almost all uses of motion pictures, filmstrips, and the like in education took place in a classroom where the material, the projection equipment, the teacher, and the students were all present in a "face-to-face" teaching situation. This requires the moving into the classroom of the materials, the projection equipment, the projection screen, the darkening of the classroom for adequate reception, and the presence of a projectionist (sometimes the teacher). Sometimes projected materials were used with regular-sized classes and sometimes in large-group teaching.
Gradually a change has taken place in the use of projected materials. As a substitution for moving the materials, equipment, room darkening facilities, screen, and the like into the classroom, it is frequently more convenient and equally satisfactory to bring the projected materials to the classrooms situation electronically, such as over a closed-circuit transmission system. The proposed Copyright Bill would make such transmissions of motion pictures and other audiovisual works illegal since face-to-face teaching activities have been interpreted in the House Report on the idental Bill as intending “to exclude broadcasting or other transmissions into a classroom whether radio or television and whether open or closed circuit." The requirement seems to be that the transmission not go beyond the place where the material being projected is located. The Department of Audiovisual Instruction feels that a distinction should be made between open and closed-circuit transmissions since the latter is being directed to a controlled and limited audience.
Closed-circuit television is often used for purposes of enlarging pictures, models, and the like which, if displayed in the classroom, could be seen by only a very small number of students at one time. Our organization feels that no limitations should be placed upon the teacher that prefers to display the copyrighted picture, model, or the like to the class via closed-circuit television so that it can be seen adequately by all students simultaneously within a tightly controlled environment limited solely to the students themselves. We are not talking here of making copies, but only of performing or displaying the very items which the school bought and paid for. The question, then, is: How can we show what we bought to be shown? Closed-circuit television, we feel, should be accorded equal status with face-to-face teaching because that is what it is in modern technology.
In recent years increased emphasis has been given to the importance of individualizing instruction in order to improve the quality of learning. As a result, projected materials are being used more and more on an individual or smallgroup basis rather than with the entire class. Sometimes this use is in the classroom, sometimes in a learning resources center, or the student may even siga out the tabletop projector and take it and the slides and filmstrips or other materials home with him as home assignment work just as he would borrow a book from the school library. In other words it is increasingly the student, not the teacher, who uses the material and the equipment.
Methods of using audio recorded materials are also changing. These, too, were formerly presented to the class as a whole via record players or tape recorders. Most schools in the United States have public address systems, and many of these have the facility of directing, from one central location in the school, recorded material to any one classroom or group of classrooms. The proposed Copyright Law, however, would seem to make it illegal to use a copyrighted recording over the public address system directed to a particular classroom although the same recording could be played in that classroom if equipment were transported to the classroom.
Individualized instruction is also making use of recorded materials. Record players and tape recorders with sets of earphones are becoming common in elementary, secondary, and college and university settings. The language laboratory, which teaches students to speak a foreign language by presenting taperecorded speech patterns for them to imitate, is enjoying widespread use. Increasingly, however, students are not being moved to where the materials and equipment are, but rather the recorded messages are being moved to where the learners are. To this end, a very rapidly growing development is the audioremote-access systems sometimes known as dial-access. A few video-remoteaccess systems have also appeared. The proposed Copyright Law makes use of such modern information delivery systems illegal because the transmission is controlled by students rather than by the teacher on the basis that use by individual students substitutes for purchase of copies. It is our contention that since no copying is done, such uses as we have cited do not result in reduced sales, but do result in improved teaching and learning. The provisions of S. 597 will require us to use horse-and-buggy methods of performance and display with new technological developments.
You will note that we have not been talking about copying but merely the manner in which copyrighted material, which has been purchased for the very purpose of being performed or displayed, can be performed or displayed in the process of teaching. Three quotations from the House Report which accompanied H.R. 4347 will illustrate the source of our problems:
“Use of the phrase 'in the course of face-to-face teaching activities' is intended to exclude broadcasting or other transmissions into a classroom whether radio or television and whether open or closed circuit.”
“As long as there is no transmission beyond the place where the copy is located, both Section 109B and Section 110 would permit the classroom display of a work by means of any sort of projection device or process."
"Clause 2 of Section 110 ... was not intended to exempt the transmission of visual images to individual students at their control, thereby substituting for copies.” Reproductions by Teachers for Classroom Purposes
A major duty 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 class. (Transparencies 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, because according to the House Report on Section 107, the fair use doctrine, in the case of classroom copying, is limited to "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."
Further, we feel that it is an unnecessary hardship on a creative teacher, who makes a copy of a copyrighted work for use in his teaching, to be required to dispose of it at the end of the teaching period. Let us say that the teacher prepares a transparency of a section of a poem or a slide of a chart from a copyrighted book. Does the doctrine of spontaneity as basic to permissible copying mean that the teacher would only be able to use these materials temporarily because, according to the House Report, the use "could turn into an infringement if the copies were accumulated over a period of time .... or were collected with other material from various works so as to constitute an anthology."
Copying of the type described is frequently required in good teaching, because the material is not available in the media format that is needed. For example, most of the charts and pictures in books are not available as slides or transparencies. Disc recordings may not be available in tape form and so forth. It seems unduly restrictive to require teachers to destroy such teaching materials which are not available commercially. Must the spontaneously-copied items be destroyed and not available for use by the same teacher again, or for that matter by that teacher's next-door colleague? We respectfully suggest that such a requirement is not reasonable.
Members of the Department of Audiovisual Instruction are also concerned about the limitations 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, by representatives of the National Association of Educational Broadcasters in behalf of educational broadcasting, and the testimony of Dr. Fred Siebert and Dr. Arthur Miller concerning educational uses of the computer. In conclusion
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 school work is on an individualized basis and teachers want materials available for individual children whether presented by the teachers themselves or in a tutorial situation over a listening center or over a video-retrieval system.
The areas that we feel are damaging to education could be summarized as follows:
1) The severe limitations put on the use of the newer educational technology by individuals and for independent study when such teaching activities are a part of the regular school program.
2) The limitations placed on the use of copyrighted audiovisual materials on closed-circuit television which is solely within the school environment.
3) The undue restrictions placed on instructional broadcasting.
4) The limitations placed on fair use of copyrighted materials for educational purposes from a computer.
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.
Mr. WIGREN. The third part of our testimony will be presented by the group representing the uses of materials in educational broadcasting. I will ask them to come to the testimony table here. There are several of them and I will move over to the side.
Senator BURDICK. I would like to advise the witnesses first of all, I will accept all their statements without objection as part of the record. We have a very important vote coming up on the Senate floor, and I think that we will not be able to continue after 3 o'clock. I think we will have to conclude the hearings for the day, so I would like to have you guide yourselves accordingly for the remaining time that you have.
STATEMENT OF EUGENE N. ALEINIKOFF, GENERAL COUNSEL, AND
ROBERT B. HUDSON, SENIOR VICE PRESIDENT, OF NATIONAL EDUCATIONAL TELEVISION; EDWIN COHEN, EXECUTIVE DIRECTOR, NATIONAL CENTER FOR SCHOOL & COLLEGE TELEVISION; AND DONALD QUAYLE, APPEARING FOR DONALD TAVERNER, CHAIRMAN OF THE BOARD, EASTERN EDUCATIONAL TELEVISION NETWORK
Mr. ALEINIKOFF. I would like to begin and see how far we get, and come back at another time.
I am Eugene N. Aleinikoff, general counsel for National Educational Television. While we cannot put on the same kind of show that Dr. Hyer has—we don't have our equipment with us—but we will try to make it as interesting as we can for you about educational television, as well as audiovisual. Perhaps when we come back, we might be able to show you a couple of our programs.
With me here today Senator BURDICK. You have very good programs in North Dakota. I know something about the content.
Mr. ALEINIKOFF. I am very glad that you have. We have a station I believe in Vermillion, if you are talking about that one.
Senator BURDICK. Fargo.
Mr. ALEINIKOFF. I think maybe we had better come back another time. We have with us today Mr. Robert Hudson, who is senior vice president of National Education Television; Mr. Edwin Cohen,
who is executive director of the National Center for School & College Television; and Mr. Donald Quayle, who is substituting for Mr. Donald Taverner, the chairman of the board of the Eastern Educational Television Network.
I would like if I may, sir, to read the first few pages and that is about all, and then immediately shift to Mr. Hudson and Mr. Cohen and Mr. Quayle, who come from farther distances than I do.
Senator BURDICK. Proceed.
Mr. ALEINIKOFF. Mr. Chairman, I appeared for the first time before this subcommittee in August 1965, as an early pleader of the interests of educational television in copyright revision. May I express our appreciation for this additional opportunity to express our deep concern about the future of educational broadcasting under the proposed new copyright legislation.
For we are deeply concerned. The copyright bill reported out of the House committee and introduced in the Senate as S. 597, on which these hearings are being held, seems to us essentially discriminatory against educational broadcasting-probably more so than all of the prior revision attempts over the past 5 years. All of us appearing today are extremely apprehensive that if the copyright law is enacted as presently written, extremely serious consequences must result for every facet of educational broadcasting.
Recently, at President Johnson's urging, S. 1160 was introduced by Senator Magnuson for the support of what has come to be called public television. In that bill is included a congressional declaration of policy which, among others, affirms that “expansion and development of noncommercial educational television and radio broadcasting and of diversity in its programing depend on freedom, imagination, and initiative on both the local and national levels," and underscores the importance of Federal action to promote and assist noncommercial broadcasting responsive to local and national interests. Protracted hearings on the whole future of American educational television and radio will probably begin before the Senate Commerce Committee next month. To us, the copyright revision proposal before this subcommittee as
, S. 597 is simply not consistent with the lofty aims expressed in S. 1160. For not only has the “for profit” exemption, under which educational broadcasting has operated since its inception, been summarily deleted; whatever partial relief has been substituted is so restricted by accompanying conditions, either in the bill itself or in the House report, as to be virtually nullified.
To provide a sharper focus on this, a detailed copyright survey has been jointly conducted by two national ETV organizations—the National Educational Television & Radio Center and the National Center for School & College Television. Copies of this survey have already been made available to the subcommittee and its staff; it provides, we believe, an accurate picture of the current use of copyrighted materials on educational television. Among other things, it proves beyond question what had previously been more or less suspected—that the alleged educational broadcasting exemptions contained in sections 110(2) and 112(b) of the proposed bill are a snare and delusion, and, as a practical matter, provide almost no comfort at all for educational television or radio.
After much deliberation, therefore, we have prepared a proposed new statutory provision in replacement for both sections 110(2) and 112(b), which has already been submitted to the subcommittee staff. We would hope to have a chance to explain it in detail to the subcommittee in writing before these hearings end. I would say, at this point, however, that it has been endorsed by virtually all segments of