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When a film company permits a 3- to 5-minute segment to be used on a TV lesson, invariably many teachers request the entire film for use in their classrooms. Now, if the company requires the showing of the entire film, instead of an excerpt, often the film is omitted. However, if it is shown, this becomes an excellent preview opportunity for many teachers, and again, circulation increases.
But if the film company prohibits the use of films on instructional TV, or if fees are required which most school systems and ETV stations are unable to pay, the children lose the value of the film, and the company loses the stimulation for demand, and further circulation.
The same situation prevails in the inclusion of literary excerpts on TV lessons. It is difficult to secure permission to use stories and poems. However, where permission has been granted, and we have used such material, the libraries have been overwhelmed by pupil demand of the featured books.
In fact, libraries have requested that we warn them when such programs are offered so that they may be prepared. The librarians are impressed and pleased with this reaction; they now aid and abet us in the arduous and complex task of securing clearances. And this is a complex, time-consuming task which discourages many TV teachers.
Here is a list of 70 film producers, companies, and other producers, in which they have listed the various regulations for use. The regulations are different, and in some cases there is no differentiation of rates between educational and commercial stations. Also these regulations change from year to year. When you multiply this by the number of publishers that we have for books and other kinds of materials, you can see the great difficulty faced by the TV teachers; the maze is almost unbelievable.
My puzzlement increases when I realize that commercial companies pay handsomely for such promotion on commercial TV in the hope that they will reach a segment of the audience which will buy and use the product. The exposure of excerpts of books and films on instructional TV insures a captive audience of those most likely to request the item. I believe that commercial film producers and publishers do not realize the potential of their benefit which exists in the exposure of their product as a part of instructional TV.
Another matter of serious concern to educators in the proposed revision is the limitation on video tape recordings to 6 months. This will prove devastating to the development of libraries of excellent recorded programs for reuse over several years. In fact, the restriction will mean a sharp curtailment in the use of rich resources for TV lessons. It will force TV teachers to devise new ways to develop concepts and enrich their programs, but they will not make up the loss.
One of the most serious faults of the proposed law is its lack of clarity. No teacher, or school system for that matter, will risk the economic hazards of litigation if there is the slightest doubt of the legality of use of any copyrighted materials.
There has been disagreement among lawyers on the intent of some parts of this law. The classroom teacher, or his counterpart, the TV teacher, unschooled in legal intricacies, will consider this law a complete ban on copyrighted matetrials unless interpretation may be clear enough to give reasonable security. Ambiguity, fees, and the sheer frustration of circuitous procedures for clearance should be avoided.
The implications are extremely serious, because of the tremendous losses to children inherent in the situation, far beyond the intent of the law.
I am of the opinion that publishers, authors, film producers and others who are arguing for stricter legislation have not fully understood the educators' problems, and the educators are puzzled by what seems to be a concerted effort to secure copyright protection which will, in effect, deny many teachers and children access to desperately needed resources for the improvement of education.
I believe that most of the problems at issue can be negotiated. Therefore, I recommend further meetings of responsible, representative individuals to arrive at clear, mutually fair legislation with the needs of America's classrooms given high priority.
Mr. St. ONGE. Thank you very much, Miss Gable. Certainly I would endorse very heartily the last paragraph of your statement. If there is a conflict between educators and copyright owners and publishers, and they can resolve it among themselves, that would be very helpful to the committee.
Miss GABLE. I should like to say, sir, that a very well known author and illustrator of children's books is a neighbor of mine, and I had conversation about this the other night. I don't want to draw her into this, but she said, “No law is perfect, but if they err, I hope as an author that they err on the side of the children in the classrooms.'
Mr. Sr. ONGE. Mr. Poff?
Mr. St. Onge. The next witness will be Mr. Frank C. Campbell, representing the Music Library Association. STATEMENT OF FRANK C. CAMPBELL, MUSIC LIBRARY
Mr. CAMPBELL. I must first apologize for not having completely identified the committee that the recommendation represents. We are the Copyright Committee of the Music Library Association. I am the chairman. I am assistant chief in the Music Division of the Research Library for Performing Arts at Lincoln Center. Dr. Harold Spivacke, Chief of the Music Division of the Library of Congress; Brooks Shepard, music librarian of Yale University; and Harry Kownatsky of the Fleischer Library of Philadelphia are all on the committee.
Mr. ST. ONGE. Thank you.
Mr. CAMPBELL. The Music Library Association is an independent national organization with a membership made up of institutions and individuals. It can safely be stated that its membership represents every important music library in the United States and it is generally recognized, both nationally and internationally, as that organization which represents the field of music librarianship in our country. Therefore, we feel that we have the competence to speak for the field of music librarianship in this discussion of the new copyright bill.
Although an independent organization, the Music Library Association has maintained close relationship with all the other library associations in this country and it has a representative on the Joint Libraries Committee on Copyright. On the whole, we approve the statement already submitted by the Joint Libraries Committee on Copyright, but we feel that a separate statement from the Music Library Association is in order because there are certain points either not covered or insufficiently emphasized in the general statement. The field of music is a special area which has special problems, and we should like to present some of them.
First of all, we should like to endorse the inclusion of "fair use" in the new law with somewhat greater emphasis than did the Joint Libraries Committee. This is a more difficult matter for the music librarian than for the general librarian. The latter is most often faced with the problem of permitting a copy to be made of a page or a few pages from a book several hundred pages in length. The music librarian, however, is faced with a very difficult problem when he is asked to permit the photographing of a page or two of a song because this is frequently the bulk of the song.
As a matter of fact, our group would have preferred the earlier version of the bill as presented by Mr. Celler on July 20, 1964, in H.R. 11947 in which, in section 6, the philosophy behind the determination of the fair-use provision was very well stated.
Such things as the "amount and substantiality” or the "effect of the use upon the potential market” will still be among the deciding factors underlining the best judgment of the music librarian whether or not these statements are included in the law to be passed. The main point we are making is that the Music Library Association welcomes the inclusion of a fair-use section in the new law since it is of the utmost importance to its members in their daily work.
As a custodian of materials usually freely available to a public, a librarian considers himself also an agent of the law. Just as it is in the interest of his public to make his materials available, it is also in the general public interest for him to see that the rights of a copyright owner are protected from unlawful duplication. Without the aid of a copyright notice and a copyright term easily ascertained, the librarian's hands are tied in making judgments as to the legality of duplication.
In addition, librarians consistently use and give information on date of copyright, since the date of publication does not always coincide and is, therefore, meaningless in determining how up-to-date a publication actually is.
We also believe that the position of the notice should be specified for music as it was in the current copyright law. The present legal requirements have never been the cause of any hardship to any music publisher and the user, whether he be performer or music librarian, knows exactly where to find it. The expression used in H.R. 4347 "in such manner and location as to give reasonable notice of the claim of copyright" seems to us to be too vague and one which might lead to certain abuses. An unscrupulous publisher could hide the notice in a musical part and still allege that this was a reasonable position for it.
There may be justification for the change in other types of publication but we can think of no justification for the abandonment of the current legal requirements in the field of music publishing.
We should also like to recommend the addition of a new requirement connected with the notice. The publication of a “derivative” work in which copyright is claimed on editing, or the like, should include a clear statement as to the nature of the “new” material, similar to the phraseology used on the copyright application.
These editions which claim copyright are for the most part of works already in the public domain. They are not based on transcriptions or arrangements which involve new composition, but frequently only on such things as fingerings for the instrumentalists, suggested dynamics, or an explanatory or historical introduction to the work. The music itself is the same as that which has been in the public domain for decades or even centuries, but the user has no way of knowing this. We feel strongly that copyright claimants of such derivative works should be required to explain in the notice the new material on which the claim is based.
It is also illogical not to require prompt registration and deposit of copies and to deny legal redress when infringement occurs if the formal requirements of copyright have not been fulfilled. Forfeiture of copyright is the only appropriate penalty in cases of failure to comply, willfully or not.
The majority of the membership of the Music Library Association seems to support the position on duration taken by the Joint Libraries Committee; that is, they favor the fixed term both for the published and unpublished material. On the other hand, we have many members who feel otherwise and support the life plus 50 years term in the new bill and point out that it would be more difficult to determine the date of creation for a manuscript work than the death of a composer.
We strongly recommend that the publication of the Catalog of Copy, right Entries should be required by law, duly provided for by annual appropriations, in a specified form, and at intervals of every 6 months.
For music librarians, this is an invaluable reference tool. Unless required by law to be published with regularity, the Register might be left helpless in times of budgetary stringency. Lack of funds could seriously curtail publication or make necessary but regrettable changes in the form. Under such circumstances, the catalog would become less than useless and constant contact with the Copyright Office would become necessary.
Finally, there is one point omitted by the Joint Libraries Committee on Coypright which is of tremendous importance to the music librarian. We refer to the inclusion of phonorecords in the bill before Congress. We welcome this and endorse it wholeheartedly.
At present, the sound recording is in a “no man's land." Every record Jibrarian is frequently asked for permission to copy for scholarly use an old recording no longer on the market. The librarian really does not know whether or not he can grant this permission. Since the old law makes no provision for recordings, there is no term of ownership for this type of publication and, therefore, no public domain. Since all libraries of the country already have large collections of recordings or are in the process of acquiring them, we welcome a legal clarification of the problems connected with them.
I would like to make one other informal statement. I have only recently seen the draft report of the Joint Libraries Committee, and we would like to go on record as not endorsing the last paragraph which they include there, endorsing the ad hoc committee recommendations.
Mr. St. ONGE. You do not endorse the recommendations of the ad hoc committee !
Mr. CAMPBELL. No; we dissent.
Mr. St. ONGE. I can understand the reason for your recommendation. I think it would be, under our present system, extremely difficult for a legislative committee to provide for annual appropriations in a specified form. The Appropriations Committee might object to that.
Mr. CAMPBELL. I realize that.
Mr. St. Onge. This will conclude the hearings for the day, and the committee will stand in recess until Wednesday, August 11, at 10 a.m.
(Whereupon, at 12 noon the subcommittee recessed, to reconvene at 10 a.m., Wednesday, August 11, 1965.)