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The right to record is not meant to be completely exclusive. The House report said:

"Nothing in this provision is, of course, intended to modify or restrict the established doctrine of fair use."

Thus, although fair use is not expressly written in the Copyright Act, Congress recognizes its existence in all courts and States that they don't wish to tamper with it. So the second clause of 1 (c) and (d) is not as absolute as it would seem, because fair use allows you to make a copy for your own or any permitted use. It is the illegal use which is prohibited, not the recording itself. That is, you can't record a poem in order to play the record publicly for profit, or sell copies, or reproduce the record. But you can make a record for yourself, play it privately, and other permitted uses.

To conclude, the recording clause of 1 (c) and (d) is only an extension of live performance rights to recordings plus the exclusive right to copy, vend, and reproduce records. It does not affect the right to make your own recording and you may use any recording in the same manner as a live performance. Thus, an educational not-for-profit show using nondramatic literary material may be performed live or recorded without any fear of legal reprisal.

Query: Can an educational not-for-profit show containing copyrighted nondramatic literary material be recorded and these recordings sold or leased to other educational not-for-profit outlets?

1(e)-RECORDING SECTION

In this paper it is concluded that the apparent prohibition of any recording or use thereof was not so. The real proscription is only a repeat of the live performance rights, which is "in public for profit" under 1(c), and “publicly" under 1(d). The question here concerns the recording rights under 1(e), which refers to musical works. The section says you can't perform the copyrighted work publicly for profit if it be a musical composition. But here the resemblance to 1(c) ends. The recording clause of 1(e) is not absolute at all. It says you can't make a recording for the purpose of a public performance for profit or a 1(a) use (copy, vend, and reproduce). Thus, we need no interpretation to allow a recording to be made for a nonprohibited use, since 1(e) already says this. Furthermore, if there is any doubt that a recording being made has a legal purpose, 1(e) provides an easy out if the musical composition has ever been recorded before with the permission of the copyright owner. A mere payment of 2 cents per copy legalizes the making of the record, and the only remaining worry is the for profit performance proscription. The determination of this is the same as for 1(c).

Mr. SIEBERT. From that we derived the conclusion, all of us who worked on this, that for the purposes of performance, we could make a recording.

Mr. FUCHS. Just that?

Mr. SIEBERT. Just that.

Mr. FUCHS. And no more?

Mr. SIEBERT. No more.

Mr. FUCHS. Thank you.

Mr. ST. ONGE. Thank you very much, Doctor.

Mr. SIEBERT. Thank you.

Mr. ST. ONGE. The next witness will be Miss Martha A. Gable, representing the Pennsylvania Educational TV Advisory Committee.

STATEMENT OF MARTHA A. GABLE, CHAIRMAN, PENNSYLVANIA EDUCATIONAL TV ADVISORY COMMITTEE

Miss GABLE. Honorable sirs, I request that my statement be made a part of the record. I appreciate very much this opportunity to be heard on this important matter.

8 Op. cit., note 6.

I am Martha Gable, chairman of the Pennsylvania State Educational TV Advisory Committee. The committee membership includes superintendents of schools, ETV station managers, representatives of universities, State colleges, diocesan schools, public schools, citizen groups, and the department of instruction, totaling about 40 persons. The committee was organized by the Pennsylvania Department of Public Instruction about 5 years ago to develop a plan for educational television stations which will serve the Commonwealth, and to guide the development of TV programs of substance and value for in-school and adult instruction.

There are now four educational stations operating in Pennsylvania. Three more are underway. One will be operative in September. The educational stations in Philadelphia and Pittsburgh each transmit on a two-channel VHF-UHF operation.

Among the objectives of educational TV are the bringing of outstanding teachers and resources to pupils in many classrooms; to share the talents of gifted teachers at this time when quality education is of prime importance and when the shortage of teachers is critical. Particular attention is being paid to the provision of additional educational opportunities for children in culturally deprived areas. At the same time, massive and diversified approaches to parent education are being developed to help improve the home climate for learning readi

ness.

There is also a grave concern about the need to keep pace with the explosion of knowledge. Educators are seeking ways to teach children the facts and knowledge which they must know, more effectively, more rapidly, so that there will be more time for the "think" aspects of education wherein children acquire understanding, and learn how to apply what they have learned and to explore and to create.

Television is a powerful teaching device which has value in achieving these goals.

The copyright law, in its proposed form, may dilute the potential of TV instruction because of the limitations placed on the TV teacher in the use of valuable and important resources such as certain pictures, maps, films, slides, literary excerpts, and other materials.

These are the natural tools of the good teacher. The TV teacher, actually, is an extension of the classroom teacher. The intent, the goals, the pupils, are the same. The desperate shortage of qualified teachers, and the potential of TV to help overcome some of these critical needs, makes it seem illogical to place additional restrictions on the TV teacher simply because he stands in a studio instead of a classroom, and shares his competency with many classes instead of one.

I believe that educators recognize the importance of material incentives and rewards for the fruits of creative effort. In fact, educators understand and appreciate that the wellsprings of creative resources should be carefully nurtured, and that the results of such labor should be protected. However, as one who has been in the business of providing a variety of classroom instruction by TV for more than 10 years, it seems that restrictions on the use of films, books, and other materials may become so rigid that the use of these materials will be curtailed rather than stimulated, and everyone will lose.

For instance, I am puzzled by the restrictions among producers of educational films in connection with their use on instructional TV.

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 class

rooms."

Mr. ST. ONGE. Mr. Poff?

Mr. POFF. Thank you for your testimony. I have no questions.
Mr. ST. ONGE. Mr. Tenzer?

Mr. TENZER. No questions.

Mr. ST. ONGE. Mr. Hutchinson?

Mr. HUTCHINSON. No questions.

Mr. ST. ONGE. The next witness will be Mr. Frank C. Campbell, representing the Music Library Association.

STATEMENT OF FRANK C. CAMPBELL, MUSIC LIBRARY
ASSOCIATION

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.

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