the educational broadcasting community and of the Educational Ad Hoc Committee on Copyright represented by Dr. Wigren this morning. It represents, in our opinion, a fair and practical way of accommodating the interests of the copyright owner and the educational broadcaster to the mutual benefit of both, rather than the one-sided provisions of S. 597.

May I take just a moment to describe the tenor of our proposal. What we are proposing is that the present sections 110 (2) and 112(b) be entirely eliminated, and a new section added relating specifically to educational transmissions. This new section would establish three separate categories of educational transmissions: Those completely exempt under the copyright law; those governed by full copyright protection; and those subject to prescribed licensing procedures, as follows:

EXEMPT TRANSMISSIONS

Full statutory exemption would be severely restricted in that: (1) it would apply only to school broadcasts into classrooms or under equivalent conditions, and (2) it would apply only to direct teaching materials of a very limited nature.

PROTECTED TRANSMISSIONS

No exemption would be afforded plays, motion pictures, ballets, or similar dramatic works. In each case, the author or producer would be free to establish his own fees or to withhold permission altogether for school or home broadcasts.

LICENSED TRANSMISSIONS

Most copyrighted works would be subject to required licensing for educational broadcast at reasonable fees. Penalties would be imposed both ways: on the broadcaster if he does not seek a license or accept one at a reasonable fee; on the copyright owner if he does not reply to a request for a license or offer one at a reasonable fee. What is a "reasonable fee" would either be established between the parties themselves or left to the courts or another impartial tribunal selected by the parties.

Two further points should be made: First, this new statutory proposal is not intended in any way to impinge upon fair use but rather to supplement the application of that doctrine to educational broadcasting. Second, the prime emphasis of our proposal is on the educational transmission itself, rather than the electronic interconnection or recording techniques employed in broadcast or rebroadcast. Both of these considerations have been amplified in comments submitted to the subcommittee staff along with copies of our legislative draft. May I now introduce the educational broadcasting representative who will speak in its behalf today.

If I may now, sir, I would like to suspend because it gets a little bit more detailed in nature, and ask Mr. Hudson to pick up from

here on in.

Mr. HUDSON. Thank you, Mr. Chairman.

My name is Robert B. Hudson. I am senior vice president of National Educational Television with headquarters offices at 10 Columbus Circle, in New York City.

I will speak here briefly, giving some general background on educational television. Thus far today there has been very little discussion of open-circuit broadcasting, and its uniqueness in serving the educational, informational, and cultural needs of Americans, of young people as well as adults.

Noncommercial educational television stations have been operating in the United States for 14 years; 131 now operate in 40 States, plus Puerto Rico and American Samoa, and their signals can be heard by 135 million people. In five other States applications are pending for ETV construction permits. In all instances they are locally or State controlled. Some are licensed to local boards of education, some to universities, and in 18 States the department of education or an ETV authority, established by legislative act, operate stations. In most metropolitan areas, corporations not for profit or foundations have been set up as the licensees of one or two educational stations and they operate them in the interest of the respective areas. Metropolitan centers like New York, Philadelphia, Pittsburgh, Washington, Boston, Chicago, Dallas, St. Louis, San Francisco, Los Angeles, and others fall into this category.

ETV stations, almost without exception, devote their air time during school hours to the broadcasting of programs directly into the classroom. Programs at other hours are addressed to children and adults at home.

In all broadcasting, the end product is the program or, put another way, the impact on the viewer, it is at this point-the program--that access to educational materials must be kept open for educational television.

I need not stress here the premium that Americans put on education, not only as the birthright of children and youth, but as a continuing process throughout life. Furthermore, the increasing demands of our industrialized society are such that education and training and retraining can scarcely keep pace.

Access to educational materials in ETV is critical, but equally critical is the opportunity for repeated and multiple uses of them after they have been processed, or "produced" for television.

The production process is unique to television and to motion picture making. It is considerably more complicated than publishing in the print medium. It requires a variety of skills in a dozen to a score of professional people and their efforts must be jointly planned and coordinated to make optimum use of the visual and audio elements in the program. Educational materials given this treatment tend to "come alive" for students and adult viewers. History and social problems take on the qualities of reality; art is more than a page in a book; even mathematics takes on a new relevance. What television does for literature and plays is most striking. All of us now through television can experience Shakespeare and Shaw, Melville and Carl Sandburg in our schools and in our homes.

Since the television production process is so involved and so costly. it is hardly to be expected that each ETV station will produce all of

the programs it broadcasts. As a matter of fact, it does produce, on the average, one-third of its schedule, as compared with about 10 percent for most local commercial television stations. Furthermore, the ETV station produces these programs with limited staff and limited funds the median for all ETV stations for programs--people and materials-is $100,000 annually. Frequently programs are prepared and presented by teachers and the problems and logistics of clearing each copyrighted reference are as great here as in the conventional classroom.

As these figures indicate, television stations, commercial and noncommercial alike, depend heavily on nonlocal sources of programs. But for the educational station it is a cardinal principle that educational materials bear repetition. Programs supplied to ETV stations by the national educational television network-NET-are, as a matter of policy, a broadcast two or three times within a single week-often within a single day-and many of them are requested months later for further exposure. Programs of substance like, for example, "The Red Myth," a program series on communism produced by NET in cooperation with the Hoover Library at Stanford University, and "Focus on Behavior," produced by NET under a grant from the National Science Foundation, or NET programs on Saul Bellow and Robinson Jeffers, have enjoyed repeated uses on ETV and in addition have been shown on film in thousands of American classrooms.

In short, ETV produces and broadcasts the kind of programs that use copyrighted materials-not the entertainment oriented stuff of commercial television. It brings writers, poets, essayists, artists, musicians, choreographers, and their works to television; to larger audiences than they normally reach. There is substantial evidence that ETV creates a market for the output of creative people.

It should be noted here that the whole thrust of the recent proposals put forward by the Ford Foundation and the Carnegie Commission on Educational Television was aimed at strengthening the local station and increasing the quality and quantity of educational, informational, and cultural programs available to it.

Furthermore, in his message to the Congress on February 28, the President of the United States requested the establishment of a corporation for public television to do precisely that. The President is enunciating a national policy that places noncommercial television fully and adequately in the service of education and of the American people. Now it so happens that educational television stations are not interconnected on a regular basis but most certainly they soon will be. NET has interconnected many of the ETV stations for several demonstrations this year, but for the moment and until the proposed corporation for public television establishes landline interconnection or until a communications satellite is available, ETV stations continue to receive nonlocal programs in the form of recordings on videotape or film. But even when they are interconnected the principle of recording and repeating educational programs will be standard practice.

It is for this reason that severe restrictions on the number of recordings, the number of uses and the geographical territory covered, as proposed in the copyright law revision, can blunt the thrust of educational television just at the time when national policy in other respects

supports it and seeks to draw it more fully into the service of the Nation.

I should like to make it clear in this discussion that in no sense is ETV, that is, open circuit, asking for a "free ride." If one were to consider television as a form of publication, it would be more closely related to university presses than to commercial publishing-it pays fees but the fees are in keeping with its nonprofit character and its educational objectives. My organization, National Educational Television, the effective network for nonschool ETV, systematically pays fees for materials and talent used in its programs. It has negotiated contracts with all applicable performing unions and it regularly pays literary and music rights fees to copyright holders. But NET still has problems of clearance of obtaining timely consents and at reasonable fees for copyrighted materials. Thus our appearance here today is to draw attention to this need and to seek your assistance in devising ways to meet it.

Specifically, and in behalf of overall ETV programing, three principal proposals are being made bearing on the copyright law revision. I strongly endorse them. First is a clarification of "fair use" to include educational television irrespective of numbers of TV recordings, frequency of broadcast or geographical distribution, so long as only limited excerpts are used in a valid program context. The copyrighted excerpt is not the body of the program; it is employed to illustrate or illuminate the central theme an illumination possible only through the processes of a creative mind. The second is a compulsory licensing provision covering nondramatic literary, musical, and pictorial material (but not dramatic plays, motion pictures, or television programs) under which all such material would be available for use either at license fees mutually negotiated between owner and user or, in the event of disagreement, by a judicial tribunal. Third, is the classroom exemption which already is adopted as a recognized principle in the current copyright revision bill.

As to "fair use," all that we are asking is that ETV be given equivalent privileges with classroom teachers and educational publications. As to "compulsory license," we are asking for the principle of availability at a reasonable fee and providing for quick access. As to classroom exemption, we are only asking for a limited use of educational materials for teaching purposes-surely not an unreasonable asking of copyright owners.

Finally, let me emphasize that ETV, just as education in all its forms, and much more than in the case of commercial television, has great need for copyrighted material. If ETV is to fulfill its function, if it is adequately to play a major role in meeting the educational needs of the Nation, it must have access to all basic sources of information and creative work, and it must be free to comment, analyze, and criticize. This access, plus the right to record such comment for repeated uses locally, regionally, and nationally, is the burden of our plea.

We do not think that our position is extreme. We have tried to act responsibly in dealing with this complicated problem. We want to be fair to creative people and to their publishers, and at the same time fair to the American people, millions of whom can be reached with educational materials only through the broadcast media. We are committed to working with the Congress in developing a fair and workable

copyright law, and we stand ready to meet with the register and with all parties of interest to this end.

Senator BURDICK. I am sorry, that is the vote on the Consular Treaty. We will have hearings on this matter again about April 12, and those on the panel today that didn't get an opportunity to be heard will be scheduled again.

The meeting will be adjourned until tomorrow.

(Whereupon, at 2:55 p.m., the subcommittee adjourned until Friday, March 17, 1967.)

(The material submitted by Mr. Aleinikoff above referred to follows:)

PROPOSED NEW SECTION ON EDUCATIONAL BROADCASTING

(To be substituted for Sections 110(2) and 112(b)

Sec. Limitations on Exclusive Rights: Educational Transmissions (a) Certain Educational Transmissions Exempted—

An educational transmission embodying the performance or display of a nondramatic 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 audiovisual 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 Sections 502, 503, and 506, and the remedies included in Sections 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 transmissions" shall mean public broadcasts over non-commercial educational television and radio stations operated by non-profit educa