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Members of the Council have also worked with individual school systems to 'develop guidelines for observing fair copyright practices. Over one dozen short articles on copyright, as it applies to audio-visual media, have been prepared for educational journals. These articles have been reprinted and distributed free of charge by EMPC to all interested individuals, schools and school systems. Several examples are attached as Attachments C, D and E.

In cooperation with AECT, EMPC is now in the process of preparing a booklet explaining the procedures for obtaining permission to duplicate if the need exceeds the limits of "fair use."

We believe all these activities have been helpful to both educators and copyright proprietors in both clarifying general principles and in solving specific problems. EMPC pledges to continue these efforts irrespective of the passage of any revision of the copyright law.

THE EDUCATIONAL AUDIO-VISUAL MATERIALS INDUSTRY

In order to understand fully the unique nature of the educational audio-visual industry, and the importance of copyright protection to the continued development and distribution of high quality materials, a brief description of the industry is in order.

The Educational Media Producers Council (EMPC) is an organization within the National Audio-Visual Association made up of approximately 100 producers and distributors of audio-visual materials for use in schools, colleges and libraries. These member companies create, produce and market items such as motion picture films and video tapes, filmstrips, slides, transparencies, and sound recordings. We estimate that our members account for over 80% of the annual production of audio-visual materials for use in American education.

In 1974 total income from sales and rental of educational audio-visual materials amounted to $277 million. This volume was produced by some 200 companies; and thus, since the 100 EMPC members account for approximately 80% of annual production, the industry is clearly one of active competition among quite small firms. In fact, 50% of our member companies gross less than $1 million per year; 90% gross less than $5 million.

The relative volume of the various products sold in 1974 is shown in the following table:

1974 sales of educational A-V materials

[Millions of dollars]

16 mm. films and videotapes:

16 mm. films--

Videotapes

Subtotal

Materials acquired for use and storage in individual schools:

8 mm. films (silent).

8 mm. films (sound)

Filmstrips (silent) –

Filmstrips with records__

Filmstrips with cassettes_

Overhead transparencies.

Slides

Records

Recorded tapes:

Reel-to-reel

Cassette

Study prints_-.

Multimedia kits__.

Games, manipulatives and realia_____

Subtotal

$63.3 1.6

64.9

7.7

.6

15.3

23.2

36. 0

11. 1

2.1

5.5

1.9

15. 6

9.5

62. 2

18. 8

209.3

Grand total_‒‒‒‒‒

274. 2

It will be noted this list of products is divided into two principal categories: 16 millimeter educational films and videotapes, which are comparatively lengthy and expensive and thus usually bought by school district film libraries, stored

centrally, and circulated on demand to individual schools; and "building level materials"-other types of materials which tend to be used more often and more intensively in the individual schools and therefore are purchased and stored by them rather than by a district library. With the increasing use of audiovisual materials in the educational process, and with the recent trend toward the individualization of instruction, this second category has been growing much more rapidly than the first in the last few years, increasing from 66.5% of total audio-visual sales only six years ago to 75.6% of the total sales in 1974.

USE BY LEVEL OF EDUCATION

Equally important to an understanding of the educational audio-visual industry is the pattern of use at the several levels of education. Sales of 68 representative companies can be broken down as follows:

1974 educational A-V sales by type of institution

Public schools___

Private schools____

Colleges and universities..

Public libraries__.

Churches, government, business and industry, etc---

Total

Percent

77.5

4. 4

7.6

3.9

6. 6

100.0

The percentage in these tables bring out two points quite graphically: 1. The only market for those materials is the educational market; they have no market among consumers in general or for general entertainment.

2. Sales to schools tend to be concentrated in the lower end of the grade level pyramid, with over 60% of total sales to the elementary schools, less than 30% to high schools, and less than 10% to higher education. Public libraries account for less than 4% of all sales and "all other" for 6.6%. Thus, the kinds of considerations which come into play in discussing library photocopying of highly sophisticated, original research materials are not pertinent here; our companies' materials are used for the instruction of students at basic levels of education.

SMALL VOLUME

The vast majority of audio-visual materials are not used in one-to-one situations as are textbooks. They are used generally in groups. This raises two points. First, the number of copies needed is quite limited. One or two copies of a 16 millimeter film may serve an entire school system of moderate size; a single copy of a filmstrip or sound recording will serve an entire school. Second, a typical audio-visual product will customarily sell relatively few copies over a period of five to ten years, as compared to the tens or hundreds of thousands of copies of a textbook. A 16 millimeter film may sell only several hundred copies over its useful life; a $50.00 set of filmstrips does well to sell four thousand. Thus the recapture of initial investment in research, development, editorial and production work-which costs as much for one copy as for thousands-is spread over the sale of a relatively limited number of copies. In addition to the substantial initial investments necessary for production of quality materials, there must be added operational expenses for the considerable period of time over which sales are made before a break-even point is reached. The combination of these factors-limited market, small volume and sales over an extended periodmeans that specific broadening of the "fair use" criteria could damage beyond repair the quality and diversity of materials available to our nation's students and teachers.

THE U.S. OFFICE OF EDUCATION EXPERIENCE

The U.S. Office of Education has granted millions of dollars over the years to government-funded educational research laboratories for developing innovative and more effective teaching methods and materials. Many good products were developed, but far too few ever were disseminated to the educational community. As a result, policies were developed by USOE which allowed commercial companies with marketing expertise to distribute the materials under protection of a limited (in time) copyright. Not until then did the educational community receive the benefit of the Federal research effort.

This points out very clearly the need to provide incentive to producers and protection for the rights of copyright holders. The Federally-funded materials which were developed and put on shelves now have a much better chance of being used by, and benefiting, the intended recipients-because those with the expertise necessary to make the materials available are given appropriate incentives.

WILLIAMS & WILKINS CASE

The 4-4 tie vote of the Supreme Court in the Williams & Wilkins case, leaves the issue of "fair use" in an unsettled state. We believe that Congress must act— clearly and explicitly-to outline the boundaries of this doctrine for all parties concerned. Once this is accomplished, EMPC commits itself to continue its efforts to work with educational institutions and organizations to establish guidelines to help resolve specific situations within the parameters set by Congress.

SUMMARY AND CONCLUSION

In summary let us repeat that we think that the bill which has been introduced as H.R. 2223 is a good bill and a workable bill, from the point of view both of the creators and the users of educational audio-visual materials, and we urge that it be expeditiously reported to the full House without amendments to Sections 107 and 108. If an educational exemption is added to Section 107, or the provisions of Section 108 (g) and (h) are weakened, EMPC could not support the bill. It is universally recognized that revision of the 1909 copyright statute is imperative, and the sooner this is accomplished the better for all concerned.

We appreciate this opportunity to appear before your subcommittee. My colleagues and I will be glad to elaborate on any points in our testimony which the members of the subcommittee may wish to explore further.

ATTACHMENT A

COPYRIGHT LAW REVISION: A POSITION PAPER BY THE ASSOCIATION FOR EDUCATIONAL COMMUNICATIONS AND TECHNOLOGY, MAY 1975

The members of the Association for Educational Communications and Technology (AECT) believe that technology is an integral part of the teaching-learning process and helps to maximize the outcomes of interaction between teacher and pupil.

Regulations governing United States Copyright were originally developed to promote the public welfare and encourage authorship by giving authors certain controls over their work. It follows that revisions in Title 17 of the United States Code (Copyrights) should maintain the balance between providing for the compensation of authors and insuring that information remains available to the public. Some of the revisions proposed in S. 22 and H.R. 2223 lose sight of this balance between user and producer.

AECT endorses the criteria to be used in the determination of "fair use" as contained in Section 107 of the proposed bill:

Section 107. Limitations on exclusive rights: Fair use

... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords, or by any other means specified by (Section 106), for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is fair use the factors to be considered shall 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.

However, we propose that the concept of "fair use" should apply equally to the classroom teacher and media professional-including specialists in audiovisual and library resources. Media personnel are becoming increasingly important members of educational planning teams and must have the assurance that they may assist classroom teachers in the selection of daily instructional materials as well as with long range curriculum development. Classroom teachers do not always operate "individually and at (their) own volition." The fact that the media professional makes use of advance planning and has knowledge afore

thought of the materials he prepares for the teacher should not invalidate the application of the "fair use" principle.

Concerning the use of copyrighted works in conjunction with television, AECT proposes that "fair use," as it has been outlined above, should apply to educational/instructional broadcast or closed-circuit transmission in a non-profit educational institution, but not to commercial broadcasting.

Once the doctrine of "fair use" has been established in the revised law, negotiations should be conducted between the proprietor and user prior to any use of copyrighted materials that goes beyond that doctrine. We believe that the enactment of the "fair use" concept into law prior to negotiations will guard against the erosion of the concept. Generally, a reasonable fee should be paid for uses that go beyond "fair use," but such fee arrangement should not delay or impede the use of the materials. Producers are urged to give free access (no-cost contracts) whenever possible.

We agree with the Ad Hoc Committee of Educational Organizations and Institutions on Copyright Law Revision that duration of copyright should provide for an initial period of twenty-eight years, followed by a renewal period of forty-eight years, whereas the proposed bill sets duration at the "life of the author plus fifty years." It seems reasonable that provisions should be made to permit those materials which the copyright holder has no interest in protecting after the initial period to pass into the public domain.

Regarding the input of copyrighted materials into computers or other storage devices by non-profit educational institutions, we agree with the Ad Hoc Commitee that the bill should clearly state that until the proposed National Commission on New Technological Uses of Copyrighted Works has completed its study, such input should not be considered infringement. The proposed bill states only that "... (Section 117) does not afford to the owner of copyright in a work any 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.

ATTACHMENT B

PREFACE BY THE CALIFORNIA ASSOCIATION FOR EDUCATIONAL MEDIA AND TECHNOLOGY AND EDUCATIONAL MEDIA PRODUCERS COUNCIL

The issue of copyright is an important one in our country today and is of special concern to everyone in the educational community. With the advent of recent technological developments, the ability to duplicate, store and transmit audio and visual materials has sharply increased. These developments promise to make ideas and information more accessible to all learners, teachers and scholars and this is the goal we all seek.

But the transmission of these ideas and information must be handled in a way that encourages, stimulates and rewards the creation and production of intellectual products-and that is the basis for copyright protection.

The basic copyright laws in effect today were passed in 1909. In 1955, attempts to produce a general revision of these laws were begun but, with the exception of a bill passed in 1972 to extend protection to sound recordings, these efforts have not succeeded as of the time of this writing. Legislation is pending at the present time in the Senate and, if passed, must be considered and approved by the House of Representatives.

This filmstrip and discussion guide are not intended to answer technical questions about copyright law. Rather, they are designed to stimulate discussion about some common types of questions and to provoke thought about the basic issue of copyright protection—with its moral and ethical implications. Guidelines are presented for helping to determine conditions under which mate

rials may or should be copied. Basic to such a determination is the concept of "fair use" which means the free and legal reproduction of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship or research. In the pending legislation, four criteria are set forth for establishing fair use:

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.

(These criteria are provided, on a detachable page, in Appendix B.)

The discussion guide which follows contains hypothetical examples of duplication of audio-visual media. It would be useful to keep three questions in mind as each of the situations in the guide is reviewed.

1. Is the theory of "copyright," as set forth in the Constitution, upheld? ("To promote the Progress of Science and Useful Arts by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.")

2. What are the economic implications to the publisher of copying?

3. How will they affect the availability of materials to the educational community?

Both educators and producers of educational media seek the widest and most effective dissemination of learning resources. It is hoped that this specific educational tool will assist in implementing our mutual objective with benefit to all.

COPYRIGHT AND AUDIO-VISUAL MEDIA

1. A school district buys one copy of a 16mm educational film and makes ten video cassette copies for individualized instruction at various school media centers.

This case illustrates a clear-cut example of copyright infringement resulting from utilization of new technology. The copyright laws forbid the reproduction of a copyright work by anyone except the copyright proprietor. The fact that the school district bought the copyrighted work does not mean it bought the rights to reproduce it.

2. A mobile media unit regularly travels from school to school in a district and converts phonograph records into audio cassettes for individual teachers.

Unauthorized duplication of sound recordings may subject the school district to legal liability. The United States Congress enacted the Sound Recording Amendment to the copyright laws, which protects recordings fixed subsequent to February 15, 1972 and prior to January 15, 1975. The proposed revision of the copyright laws now pending in the Congress of the United States provides for full protection of sound recordings. In addition, a decision by the U.S. Supreme Court (Goldstein v. U.S.) upholds the right of states to enforce their own record piracy laws in effect prior to the 1972 date.

3. A teacher makes excerpts in cassettes from various record albums owned by the school to illustrate comparisons among various musical forms.

In addition to the statements made in Case 2, another factor to be taken into consideration is copyright in the work which was recorded. However, the proposed revision to the copyright laws will give full protection to the record itself, not merely to the underlying work. Another factor involved in this case is the doctrine of fair use. One should consult the statutory provisions regarding fair use (see Appendix B) and discuss their ramifications for this case.

4. A school media center coordinator salvages some useful frames from discarded filmstrips and converts them into slides for student use.

Although technically copying is not involved in this situation, other factors must be taken into consideration. For example, the filmstrip producer may have only secured filmstrip rights for visuals which had to be procured outside of its own facilities. Another problem is co-mingling of these visuals with those from other sources so as to create a "derivative work"-which is one of the rights reserved exclusively to the copyright proprietor. The fact that the school has "discarded" the filmstrip does not mean that copyright protection has expired. 5. A student taping a report on new travel books in the school library used Around the World in Eighty Days as background music.

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