in this respect on examples 6 and 7 we are not asking for as much as current educational practice, in good faith, permits.

Under assumption 2, assuming this is an excerpt, again it is uncertain but probably the answer is "No." Legal status under "fair use" is uncertain as I have indicated. Each case depends on its special facts. Here the fact that it is a cover page might militate against the teacher making the copies legally.

Conceivably the situation could depend on the newspaper's total circulation. It might conceivably be "fair use" if 30 or 100 copies were made of a newspaper that had 2 million circulation, but at least it would be very dubious in many cases.

Under present educational practice it is being widely done, as I indicated, in good faith. Under the present law it is probably "No" but uncertain. Under the ad hoc committee proposal it would be permissible as an excerpt under 111 (b), our proposed section.

Mr. KASTEN MEIER. Mr. Rosenfield, when you say that the present practice is being done by teachers in good faith, what do you mean by that?

Mr. ROSENFIELD. I mean that they think this is legal under the law. Mr. KASTENMEIER. In other words, they are ignorant of the law. Mr. ROSENFIELD. That is right. We have admitted, Mr. Chairman, that there have been infringements under the present law. All we are suggesting is that the new law make sense instead of making lawbreakers of decent teachers who are trying to do a good job.

Under group IV, Mr. Chairman: unfortunately I can't illustrate it here because of the nature of the two examples. They are examples 8 and 10. I have skipped 9 for a moment because 8 and 10 have the same basic legal issue. Eight consists of the original being displayed on a closed-circuit instructional television. Closed circuit can't get out to the educational community and is being used directly for instructional purposes.

Example 10 is the original displayed on an open-circuit instructional television. In other words, the mother and father at home or anybody else could look at it but it is beamed principally for instructional TV.

Here in these two examples we have a live display on instructional TV without tangible copies. On any of our four categories, and on either of the two assumptions, these two examples would be legal.

Group V consists of example 9. Here we have again a closed-circuit instructional TV in which, instead of a live exhibition, it is taped in advance for delayed broadcast. In other words, an actual copy is made. We have a single copy, again, not multiple copies a single copy for ITV. Under the present law, under assumption 1 virtually the entire copyright bar would say this is illegal. As I have indicated, there is a possible "yes," and I cited the sources in my written statement. As to assumption 2, this is possible but really quite uncertain. Under the present educational practice it is being done, again, Mr. Chairman, in good faith, on the assumption that this is legal.

Mr. KASTENMEIER. May I interrupt again to inquire, is this example 9?

Mr. ROSENFIELD. We are talking of 9, sir. This is an example in which closed circuit

Mr. KASTEN MEIER. You are talking about tape. I think you are confusing that point.

Mr. POFF. I believe there is an error in the table.

Mr. ROSENFIELD. I am afraid the chart is not as accurate as the statement on page 11 of my proposed statement. Example 9 consists of tape for delayed broadcast, closed circuit on instructional TV. I beg your pardon, Mr. Chairman. May I ask that I be permitted to correct the chart? Thank you for calling that to my attention.

Mr. KASTEN MEIER. Yes. Actually No. 9 on the table reading open circuit ITV should actually be 10 according to your description.

Mr. ROSENFIELD. No, sir; all that needs to be changed on the chart is the parenthetical description of examples 8, 9, and 10, which were inadvertantly reversed. Otherwise, the answers are correctly stated. Mr. FUCHS. Is "10" "9"?

Mr. ROSENFIELD. Yes, sir; but only so far as the parenthetical descriptions are concerned; otherwise, the numbers and answers fit together.

I appreciate your calling that to my attention. We have already covered the present law and the present practice. Under H.R. 4347, example 9 would be legal with a limitation, since section 110 on ephemeral recordings would limit this to 6 months' use. Under the ad hoc committee proposal this would be legal, without the time limitation, under section 111(a).

Group VI: the final group consists of example 11, tape for delayed broadcast for release among other nonprofit educational stations, with cost charges to the user but no profit to anyone. In other words, if it costs some money to mail it, it is sent out on a sort of bicycle arrangement to other stations. Mr. Chairman, here we have another single copy on ITV with at-cost charges to the user. Again under either assumption under the present law, "no," although there may be a "yes."

Under present educational practice it is being done in good faith. Under H.R. 4347 the answer is "no" as I read the bill. If this example means that the ITV station exchanges its recordings with others not under its own management, then the practice would not be authorized under section 110 because that prohibits the use of the recording by any other than the recording ITV station.

Likewise under our ad hoc committee's proposal, it would be allowed because the proposed section 111 has a similar although differently worded limitation.

Mr. Chairman, before concluding my oral statement, since my prepared statement includes an item that, by happenstance, is quite responsive to something Mr. Karp said with reference to educators, I would like to read an excerpt from a letter of June 21, 1965, written by a high school principal in Oregon.

We have received literally thousands of letters and frankly, Mr. Chairman, I chose one from Oregon so that no one on the committee would think I was trying to point a finger at his State and community. I think it is relevant to the issue under consideration, and I quote from the letter:

Furthermore, there was a general agreement that the passage of this legislation would result in fewer materials being used in the schools, thereby defeating one of the assumed objectives of the bill. Currently, teachers * * * are purchasing hundreds of single pieces of written material, portions of which may be reproduced for illustrative purposes in the learning situation. In this way students are benefiting from a greatly expanded horizon of view. Under no circumstances would multiple copies of any of this material be purchased simply to give students lawful access to a diagram or a picture. The student would just have to do without.

Is this the purpose of the bill?

In addition, a definite undercurrent of resistance is present among the staff These teachers are nearly unanimous in their determination to continue providing the broadest possible horizons. * * *

Attached you will find a short description of the materials used for one large group session (100 seniors). These teaching situations are becoming more frequent. We are convinced they are educationally sound. We fervently hope that we can continue to explore this approach in a legal manner.

Mr. Chairman, Mr. Karp has talked theory about what happens in schools. Let me by sheerest coincidence we happen to appear on the same day-talk actual practice. Let us see what happens in a classroom. This is an actual lesson of June 4, 1965, in an Oregon high school. It is a course in English at 8:45 in the morning, 100 seniors in the auditorium. The objective is to make direct comparisons between the architecture and the music of the baroque era, 1580 to 1750.

These students had spent considerable time discussing the various forms and uses of architectural types. These discussions centered about the literature of the period. The educational need was for a teaching session to solidify the central concepts of the baroque period.

What happened? What did the teacher do? On page 15 of my prepared statement I reproduced from this letter the materials used. They were of two types: A, taped; and B, visual. In the tape, there were seven recordings taped from the Willamette University music library. From these, eight short-15- to 20-second-examples were dubbed to final tape. In addition, four short examples were dubbed from two school-owned "History of Music" albums. Two longer examples were dubbed from personal collections of teachers.

B. Visual materials. A 35-millimeter slide was made of the actual music for each of the above-taped examples. The music-in most cases a few bars, sometimes a page-was projected while the tape was played and the salient instructional points were made. This is a characteristic use of the visual and the auditory together in a class

room.

Secondly, four architectural diagrams from two school-owned and two teacher-owned books were made into transparencies and used to make comparisons where appropriate. And finally, two pictures of buildings were reproduced into transparencies and used.

May I emphasize the last sentence of the Oregon principal's letter: If it became illegal to use the materials above for instructional purposes, certain of the recordings and books would never have been purchased.

Despite Mr. Karp's theory what we are suggesting, and we have suggested all along, is that his argument will result in less purchases and less sales of books and copyrighted materials to schools rather that in more. He is theorizing that if no copying is allowed we will run out and buy the work.

Here is a school principal quite unaware that Mr. Karp and I were going to be here this day and he says exactly the opposite. This I submit, Mr. Chairman, is the fact of life in the school systems of America. Mr. Chairman and gentlemen, President Cleveland once said that we are faced with a condition, not a theory. The condition is a present educational practice essential to the welfare of this Nation. The schools of America look to you gentlemen for protection of the Nation's children through protection of this present educational practice. Thank you very much.

Mr. KASTENMEIER. Thank you, Mr. Rosenfield. Let me say that this is a highly useful analysis, one of the finest presented in terms of what the committee was asking for, in my opinion.

Mr. ROSENFIELD. Thank you.

Mr. KASTEN MEIER. I am indebted to you for this analysis. I have only one question and this is strictly a personal question-I have not spoken of it to other members of the committee.

But in terms of fair use, and I am trying this on for size, what if the committee left the language as it now is but attempted in the accompanying report to describe some of the situations to accommodate to the difficulties that you and others have testified to. Do you think this in any respect might be acceptable or something to consider?

Mr. ROSENFIELD. Mr. Chairman, I too will be speaking off the top of my hat if I may be permitted to say this, not having consulted with the other members of our ad hoc committee which is a thoroughly democratic committee.

Speaking for myself let me say that your suggestion would be very useful but not sufficient. The main point that we have been making is that "fair use"-by its nature and by what the Register correctly reports to be the nature of the doctrine now-is so indecisive, so unpredictable, that even with the help of this committee's report material we feel the need for a section 111.

Having said this, Mr. Chairman, let me make it clear we don't regard section 111 as the tablets from Sinai. All we want is the statutory assurance of the legality of copying of the kind that we have described as being educationally essential, and we have indicated to you we are not asking for all the current educational practice. All we ask on this point is that copying of the kind that we have described be permitted to teachers under the law you pass.

Any effective means that you can devise will do, and we have great respect for both the learning, the imgination, and the public consciousness of this committee. We are fearful that "fair use" alone will not do.

Mr. KASTENMEIER. Thank you. Mr. St. Onge?

Mr. ST. ONGE. No questions.

Mr. KASTENMEIER. Mr. Tenzer?
Mr. TENZER. No, thank you.

Mr. KASTENMEIER. Mr. Poff?

Mr. POFF. Mr. Chairman, I want to be certain that the witness has sought and received permission to insert the graph as part of his remarks because I think it is a most dramatic and precise portrayal.

Mr. KASTEN MEIER. Without objection the precise statement including the graph will be made a part of the record.

(The full statement follows:)

SUPPLEMENTAL STATEMENT BY HARRY N. ROSENFIELD, ESQ., WASHINGTON, D.C.

At this committee's hearing on June 2, Acting Chairman Kastenmeier asked that both Mr. Cary and I return at a later time to discuss 11 examples illustrated by Dr. Robert C. Gerletti of the Los Angeles County school system in his testimony on behalf of the Department of Audiovisual Instruction of the National Education Association.

This committee may recall that Dr. Gerletti submitted for the record a map of Africa, taken from the cover of the Sunday supplement "This World" of the San Francisco Chronicle of January 31, 1965. He then demonstrated before this committee, with the aid of modern instructional devices, 11 "possible teacher uses in instruction." Mr. Kastenmeier asked that Mr. Cary and I discuss these 11 examples "in terms of the probability of infringement * ** under both the present law or particularly the legislation at hand, and the proposed revision." Four preliminary observations may be in order:

1. The facts

The map was on the cover page, page 1, of the Sunday supplement called "This World." The supplement contained 48 pages.

Dr. Gerletti was advised that the San Francisco Chronicle regarded this map as copyrighted. And I personally telephoned the editor of "This World," on August 10, 1965, who told me that "normally we do copyright every issue." However, I have not been able to find any copyright notice on the work itself and, therefore, the particular map may be in the public domain. But as Dr. Wigren said in his testimony on behalf of the ad hoc committee on June 2, 1965, this very situation "reveals the difficulties the teachers are experiencing in knowing when and under what conditions a transparency of a chart from a newspaper or a reproduction from a map in a magazine might be used in a classroom. Practices and policies of newspapers and publishing firms differ widely for different types of materials.

"The same confusion pointed out in the case of periodicals exists even to a great extent in the case of newspapers where one paper is copyrighted and another is not, where one part (the Sunday magazine section) of one paper is copyrighted and the rest of the paper is not. How do teachers know this? (Typed transcript, p. 454.)

2. Assumptions

In my further comments I shall assume that the map is copyrighted. In order to be most helpful to this committee, I shall deal with two assumptions as to the nature of this copyright:

Assumption No. 1: That the map itself is copyrighted and therefore represents an entire copyrighted work.

Assumption No. 2: That the map is not separately copyrighted but that it appears in a Sunday supplement which is itself copyrighted. In this instance the map represents an excerpt and not an entire copyrighted work.

3. Scope of comments

My comments as to the legal status of these 11 examples shall consider 4 situations, as follows:

(1) the present law;

(2) present educational practice;

(3) H.R. 4347; and

(4) the ad hoc committee's proposal.

4. Limitations of comments

Any comment on the legal status of these 11 simple teaching devices is an exercise in crystal-ball gazing. As the Copyright Office's General Counsel wrote recently, "the courts have not ruled specifically on cases involving the reproduction of copies for purposes of research or teaching," (Goldman, "Copyright Law Revision and Music Libraries," Library Journal, Mar. 15, 1965, at p. 1268). What may develop or be argued in a court case against a teacher is one thing: what can be said with certainty as a guide for teachers is quite another. The position taken here is the latter, without prejudice to the former.