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greater or lesser rights with respect to the use of the work in conjunction with automatic systems..."
A new copyright law that both users and producers can view as equitable depends upon the mutual understanding of each other's needs and the ability to effectively work out the differences. We will participate in the continuing dialogue with the Educational Media Producers Council and similar interest groups to establish mutually acceptable guidelines regarding the boundaries of "fair use," and reasonable fees to be paid for uses beyond "fair use." This dialogue will be especially important in the area of storage, retrieval, and/or transmission of materials during the time period prior to the issuance of the report of the National Commission on New Technological Uses of Copyrighted Works.
We feel that the above modifications of S. 22 and H.R. 2223 are needed to insure that the revised law assists rather than hinders teachers and media specialists in their work.
Our major concern with fair use is that in studying the legislative history of the doctrine, fair use does not seem to apply equally to media professionals as to teachers. The previous House and Senate reports identify "spontaneity" of the use as an important determinant as to whether a use is fair or not. Fair use is extended to a classroom teacher who "acting individually and at his own voli tion makes one or more copies for temporary use by himself or his pupils in the classroom." However, classroom teachers do not always act individually or at their own volition. They are frequently assisted by media professionals with the selection of daily instructional materials as well as long range curriculum development. The fact that a media professional is frequently not classified as a "classroom teacher" and is sometimes even classified as "administration" should not prevent him from continuing his role in the instructional process. We are not suggesting that any rights beyond "fair use" be extended to media professionals, only that they be allowed as much freedom as other education professionals. We are currently working with others interested in this problem and will present alternative language to this subcommittee in the near future.
Even though we support the enactment of Section 107 with suggested changes, we realize that it will not solve the daily dilemmas faced by media professionals, teachers, and librarians. AUDIOVISUAL INSTRUCTION, a magazine published by my association, features a monthly column entitled "Copyright Today" that demonstrates the confusion over the bounds of fair use. The column (several reprints are attached) features copyright questions posed by readers with answers suggested by copyright experts, usually including at least one educator and one producer. As you can see from the examples, there are frequently as many answers to a given question as there are copyright experts.
Take the following question from the November 1974 issue of Audiovisual Instruction:
Question. Two teachers in this district are preparing audio tutorial packages for the fifth grade botany unit. They found five pictures they need in a color film owned by the district. They want to make slide copies of the five frames. Two copies of each slide is required. Would this be a violation of the copyright law?
There are two opinions as to the legality of this action provided in the articleone by an educator, the other by a representative of the producers. The educator felt the situation cited may be beyond fair use because more than one copy would be made and the copying would be done by someone (the media professional) other than a classroom teacher. The producers' representative states that the situation would fall within "fair use."
As I said we realize the enactment of Section 107 will not solve our problems. Even with the guidelines provided in that Section it is still difficult to determine what is fair use and what is not. And if an educator is not able to determine if the proposed use is fair and feels that permission to copy should be obtained in order to remain safely within the bounds of the law, how does he or she get permission from a publisher or producer to use the material?
Requesting permission to use copyrighted materials is currently a long and frequently tedious process for educators. An attached article entitled "Copyright As It Affects Instructional Development" (Audiovisual Instruction, December 1974) demonstrates the problems of contacting numerous producers with no predetermined procedures. Perhaps this problem could be solved by establishment of a clearinghouse either governmental or privately operated. Certainly this would make it easier for an educator if he or she has to contact only one source for permission rather than trying to deal with
numerous producers all with different procedures. But even a clearinghouse arrangement will still result in much time spent in waiting for reply.
We feel this delay, even if it is only (ideally) a week or so, might be detrimental to the teaching/learning process. It doesn't allow the education professional to take advantage of the "teachable moment." For example, on the day following a speech by a noted individual, a teacher may want to use the copy of the speech that appears in the local paper for reproduction and distribution to a speech class for critique. Clearly, if the teacher had to wait several weeks for permission to use the text, the impact of involving students in current events would be lost. So in many instances, some means other than a clearinghouse must be used.
AECT has spent many hours working with producers in an attempt to work out guidelines that would assist educators in upholding the copyright law. We have come increasingly to the conclusion that the best means of solving the problem is by developing voluntary licensing agreements between educators and producers. Such agreements would allow a pre-determined amount of copying, kind of copying, or maybe even unlimited copying either for no charge or for a pre-determined fee. Such an agreement would set the bounds of fair use in advance and would also allow educators to take advantage of the "teachable moment."
We are not asking you, the Congress, to legislate a licensing agreement. It would be almost impossible to include every possible type of necessary agreement in legislation. We think we as educators must take the responsibility to work with producers of materials to develop such agreement. AECT has had and will continue to have dialogue with producers of materials in an attempt to satisfy the needs of both groups. We are asking only support and encouragement from the Congress to both sides to sit down and develop licensing agreements.
The AECT position which has been presented in this testimony has been well received by both educators and materials producers. Representatives of both these communities viewed the position as a realistic step toward resolving the issue of defining the limits of fair use. The statement is viewed by members of each group as offering protection to educators that is not offensive to the producers.
We think the incorporation of the AECT position into H.R. 2223 and its legislative history is essential to the development of a new copyright law that is equitable to educators and creators of materials alike.
I wish to thank the Subcommittee for this opportunity to present our views. I only hope we can impress upon you that we are as concerned as you are with the necessity for a new copyright law that will allow us as education professionals to continue the improvement of education through the application of new technology and communications.
[Reprinted from Audiovisual Instruction, published by the Association for Educational Communications and Technology, November 1974]
(By Jerome K. Miller*)
This column is open to all readers of Audiovisual Instruction. News items and questions about copyright which are of general interest will be included as space permits. The identity of individuals submitting questions to this column will be held in the strictest confidence. Please send all news items and questions to Jerome K. Miller, Chairman, AECT Copyright Committee, 1025 Adams Circle, No. 2B, Boulder, Colorado 80303. It is impossible for the editor to respond directly to questions about copyright.
COPYRIGHT BILL IN THE SENATE
Preceding consideration of the Copyright Revision Bill (S. 1361) by the full Senate, it was considered and approved by the Senate Judiciary and Commerce Committees. The reports from these Committees (S. Rpt. #93-983 from the Judiciary Committee, and S. Rept. #93-1035 from the Commerce Committee)
Jerome K. Miller is assistant professor of instructional media, Central Washington State College, Ellensburg. He is currently on leave to pursue doctoral studies at the University of Colorado.
are helpful in understanding the Congressional intent behind the bill. Copies of the reports are available, free of charge, from the Senate Documents Room, U.S. Capitol, Washington, D.C. 20510. Please include a self-addressed label with your request. Your Senator can also assist you in obtaining copies of the report. The text of the Senate bill is included in the report.
Educators will be especially interested in the bill's definition of "fair use" copying. The bill defines it to include: 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work. The accompanying Judiciary Committee report states: "The fair use doctrine in the case of classroom copying would apply primarily to the situation of a teacher who, acting individually and at his own volition, makes one or more copies for temporary use by himself and his pupils in the classroom. A different result is indicated where the copying was done by the educational institution, school system or larger unit or where copying was required or suggested by the school administration, either in special instances or as part of a general plan."
AECT has opposed this interpretation and proposes that "fair use" should apply equally to the classroom teacher and media professional. AECT has also urged that the "fair use" principle should apply both to the selection and preparation of daily instructional materials as well as with long-range curriculum development.
Even if S. 1361 is approved by the Senate in the near future, there is little chance that the House will begin consideration of copyright revision until next year. However, any bill approved by one House of Congress this year could carry considerable weight in future consideration of the subject.
QUESTIONS & ANSWERS
Question. Two teachers in this district are preparing audio tutorial packages for a fifth grade botany unit. They found five pictures they need in a color film owned by the district. They want to make slide copies of the five frames, two copies of each slide are required. Would this be a violation of the copyright law?
Answer 1: If the "color film owned by the district" is a commercial copyrighted product, this could be interpreted as a violation unless permission were sought in advance from the copyright holder. Ownership of the prints by the district does not automatically include duplication rights. The danger points in this case which could be interpreted as a violation of fair use are: 1) the creation of more than one copy, and 2) by someone other than the classroom teacher.
EUGENE H. WHITE,
Director of Audio-Visual Services, Los Angeles City Schools.
Answer 2: In this situation there is illustrated a fairly good example of a practice falling within the doctrine of fair use. Taking into consideration the particular use to be made of the individual film frames, and the number of frames actually being copied. EMPC feels that this ought to be defined as fair use. The danger in this practice, however, could result if multiple copies of the frames are then reproduced for use in the classroom which will utilize the materials.
IVAN R. BENDER,
Chairman, Copyright Committee, Educational Media Producers Council.
Question. One of our teachers recently asked the district IMC staff to make 30 copies of a chapter of a book in the school library. The chapter describes the impeachment of President Andrew Johnson and was needed for a current events class. We were assured that the materials would only be used once. Is this a violation of the copyright law, and would it be a violation under the proposed law?
Answer 1: In this situation fair use would not apply because of the fact that 30 copies are being made of the chapter from this book. Multiple copying, even if it involves only excerpts from a work, is generally regarded as falling outside the scope of fair use. The question of the number of times that these copies would be used would relate only to the question of the amount of damages which might be granted to the copyright holder.
IVAN R. BENDER, Chairman, Copyright Committee, Educational Media Producers Council.
Answer 2: This should not be considered fair use, and thus would be a violation of the present law. In effect, this sort of multiple copying tends to deprive the copyright holder of potential commercial benefit. The Williams and Wilkins case (487 F. 2nd 1345) decided by the U.S. Court of Claims last November, should not be considered a precedent in this case, since the decision there favored governmental libraries making large numbers of copies of copyrighted material. Under Sec. 108 of the proposed legislation, it is legal for a library (which would be interpreted as to include IMCs) "to produce no more than one copy . . . of a work..."; therefore, such reproduction would be illegal under the proposed law as well. HAROLD E. HILL,
Professor of Communication, Head, Radio-TV-Film, University of Colorado.
Answer 3: The length of the copied chapter in relation to the entire book is an important criterion in determining fair use. But basically, the making of multiple copies of any length without permission of the copyright owner exceeds fair use and is thus a violation. If the teacher had computed the real cost of making photocopies, including the administrative time involved and the cost of paper, he (or she) probably would have concluded that it was cheaper to order reprints from the publishers.
[Reprinted from Audiovisual Instruction, published by the Association for Educational Communications and Technology, December 1974]
COPYRIGHT TODAY-COPYRIGHT AS IT AFFECTS INSTRUCTIONAL DEVELOPMENT (Jeanne Masson Douglas*)
(Ms. Douglas' article appears here this month because of its appropriateness to the December theme, "Instructional Development." The regular "Copyright Today" column will resume with the January issue.)
One of the major responsibilities of the instructional developer is that of making instructional materials available in an appropriate medium. Materials are often not useful in their existing forms; they may have to be altered to fit specific course objectives, to accommodate a preferred instructional mode such as independent study or inter-active instruction, or simply to provide multiple copies. Whatever the reasons for wanting to modify commercial instructional media, the copyright issue is unavoidable, and obtaining copyright clearances often becomes the responsibility of the instructional developer.
Having been involved for the last five years in instructional development activities, either in a management role or as a consultant. I have accumulated considerable data related to acquiring copyright clearances. During this time, I have communicated with several publishers, producers, chairmen of national associations and organizations, and even with presidents of private corporations in attempts to obtain permissions to reproduce their materials. The results have been interesting, and at times, surprising.
In my early attempts as a copyright agent, I made use of a form letter. I soon learned that this technique was getting only delayed responses or no response at all. An original letter for each transaction was found to be much more successful. Every letter had two things in common, however: the specification that the media we produced would be used only within our own institution, and that the materials would be used by our students only. (Sometimes phone calls have been necessary to prompt a response but, since I never make a duplication permission agreement except in writing, a written document is ultimately needed.) To demonstrate good faith in complying with the "fair use" principle, I always explain the purpose and effect of the use of the reproduced material, the quantity needed, and the nature of the reproduction.
My respondents have been of an amazing variety. At times, I have been fortunate to deal with someone known as the Rights and Permissions Officer or the Contract and Copyright Officer, or even the Product Development Director. On other occasions, I have been directed to the Public Relations Officer or the
Jeanne Masson Douglas is director, Educational Resources Center, Reading Area Community College, Reading, Pennsylvania.
Editor-in-Chief. Often, it has been necessary to negotiate with the Vice-President, Executive Vice-President, or the President of a firm. On one occasion, the producer concerned would not communicate except through his lawyer.
Another variation which keeps things interesting is what I have decided to call "passing-the-buck". For example, a New Jersey distributor referred me to a California producer who referred me to a New York photographer. And a midwestern publisher referred me to the copyright holder, who happened to be based in Japan. (Actually, this latter transaction took less time, in terms of number of mail days, than many more localized arrangements.)
As varied as the respondents are the responses themselves. These have ranged from the law firm's "no . . . and furthermore . to the following: "I am happy to grant you permission... I will also be pleased to supply lists of other materials that you may wish to consider for your programs . . ." and "I appreciate your courtesy in requesting permission. Thank you for asking. I hope we have helped in designing and developing improvements in your curriculum." One producer scolded, via telephone, "Why did you ask? Why didn't you just go down behind the barn and do it?" In extreme contrast to this attitude, however, is that of the publisher who sends along a printed copy of the company's policy statement related to copyright. One New York film producer responded to my letter with a telephone call, explaining that he was willing to grant permission verbally but would not "put it in writing because of possible complications." Again in contrast, a New Jersey publisher responded with a Permission to Reprint form which I had to complete in triplicate. An Illinois media producer responded. "Enclosed is our duplication policy statement to accommodate those making legitimate requests and to inform those duplicating illegally that a policy does exist. Dealers are asked to make positive identification of known illegal duplicators."
A review of some specific examples of clearance policies is helpful. For the sake of clarity, I will categorize by media type.
Print ------> Print
A New York publisher granted permission to make 500 copies of a short story for a $12 fee and use of a credit line on each copy.
A New Jersey publisher granted permission to reproduce a series of tests.
A Colorado publisher would not grant permission to duplicate an article because reprints were available at 50¢ each.
An Ohio publisher granted permission to copy pages from a dictionary and a thesaurus as slides.
A New York publisher granted permission to convert all the illustrations of a book to slides and the text to tape.
An Illinois manufacturer granted permission to copy as slides all the illustrations in a textbook.
A New Jersey manufacturer granted permission to copy all the illustrations of three of their books.
A California manufacturer provided permission, or sources of permission, by chapter and page of every illustration in their book, a listing consisting of five pages of single-spaced typing.
A national organization granted permission to convert all the illustrations in their book to slides.
Disc ------> Cassette
A New York producer's vice-president would not grant permission. In response to a later inquiry, the company's vice-president for copyright granted permission. A California producer permitted six copies each of 10 recordings.
A New York producer would not grant permission for reasons of “deprivation of royalty."
An Illinois producer allowed two copies only for independent study use.
A Colorado producer allowed one copy only, and that only to protect the original.
Reel ---- -> Cassette
A New York producer granted permission for a first copy, and charged 40 percent of the initial cost for each additional copy.
A Massachusetts producer of language tapes granted permission to convert an entire course from reel to cassette.