But they own it, and they have a right to put a price on it, I assume. But I think that must be an exception and not the rule. I think most of it would be made available at reasonable prices, wouldn't it?

Mr. SCHOECK. Well, as a general editor of a series of books, published by the University of Chicago presently, I know that it is not uncommon for a press to ask for a $200 or $300 or often a $500 fee for reprinting a single chapter or essay which is in some cases an essay which may have appeared in half a dozen places before. [The statement of Richard J. Schoeck in full follows:]

STATEMENT OF RICHARD J. SCHOECK

Mr. Chairman and members of the subcommittee, I am Richard J. Shoeck, a member of the Ad Hoc Committee on Copyright Law Revision. I am Director of Research Activities of the Folger Shakespeare Library in Washington, and Director of the Folger Institute of Renaissance and 18th-century Studies. I am also an Adjunct Professor of English in the University of Maryland and the editor of Shakespeare Quarterly. I appear before you today representing the Modern Language Association of America, which has a membership of 30,000, all of whom are teachers, most of whom are doing research and some of whom are writing (or have written) textbooks and other educational materials during their careers as college and university professors. Our point of view is therefore rather more complex than that of some groups that have a concern with copyright law revision, for the MLA must consider not only the problems of research and copyright, or of the writing of books and copyright, but also the impact of copyright upon teaching. We have always had to consider the interests of our students. The MLA therefore has long been a member of the Ad Hoc Committee, and it participated in the amicus brief of the Association of American Law Schools in Williams and Wilkins case. It now participates in and supports the statement of the chairman of the Ad Hoc Committee, Harold E. Wigren, on S. 1361.

Speaking for the MLA, I should stress the need for a clear delineation of what is permissible and what is not permissible in the uses of materials in the classrooms, in the uses of materials for research, and in the uses of materials for scholarly and textbook writing.

The report of Commissioner Davis in Williams & Wilkins (1972) must be seen as a landmark, for until that report there had been a fairly well understood and observed set of criteria under the unmbrella of fair use.' Now there is not, and a great deal of alarm and confusion has been produced within the educational community, because the effect of the Commissioner's report in Williams & Wilkins is to restrict the accessibility of intellectual resources to both teacher and scholar.

A scholar has always been considered to have a right to make a single copy of copyrighted material for his own personal use: this must be so to insure a free circulation of ideas, and this surely is the thrust of Article I. § 8 of the Constitution of the United States: "The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writing and Discoveries." The exclusive right is for limited times only; the end for which the other provisions of Article I are the means is the promotion of science and the arts, and such promotion cannot be fostered without the free circulation of ideas. The provisions of Title 17 of the U.S. Code are largely concerned with the printing or reprinting or publishing of the copyrighted work: copy as used in this section is to be construed as pertaining to copying in the same sense as printing or publishing. Scholarship that is restricted by newly erected walls of copyright protection would become parochial-and it would not take long for the effects of such constriction to be evident in the thinking of our children.

A scholar's copying of material has been traditional in the Western world since far before the time of Erasmus, and it continues to our own times. Even that prophet of the electronic age, Marshall McLuhan, has made or has had made handwritten or typewritten copies of entire works: I have one such copy in my possession. But even that traditional and never previously challenged right of scholars was questioned by Commissioner Davis, and because the courts had not previously had the occasion to spell out the legal basis for the tradi

tional right of scholars to make (or to have made) a single copy of copyrighted material for personal use, the fundamental procedures of scholarship are now being gravely challenged, and the very quality of scholarship in the U.S. is consequently threatened.

If the ruling of Commissioner Davis in Williams & Wilkins is affirmed by the Court of Claims, the scope and meaning of 'fair use' will in effect have been abrogated. The force of application of the Commissioner's ruling will be to the detriment of libraries-and especially to research libraries like the Folger, as you will have heard this morning-but also to the detriment of teaching and scholarship. Had this hearing been held before March of 1972, many of us who have testified would have spoken differently. But it is impossible now to talk about educational and research uses of copyrighted materials as if we were in a pre-Williams and Wilkins world: we are not.

Two alternatives appear to be open: the new legislation on copyright can specifically affirm fair use,' and this might be done by having the concepts, traditional interpretations, and effective application of fair use' written into the Congressional Report, as indicated by Dr. Wigren. Or, the Congress may (and as we believe, should) include in its new copyright law the so-called limited educational exemption: Notwithstanding other provisions of this Act, nonprofit use of a portion of a copyrighted work for noncommercial teaching, scholarship and research is not an infringement of copyright.

As the editor of a scholarly journal frequently called upon to give permission to reprint from its pages-as an author, editor or co-editor of about a dozen books and more than a hundred scholarly papers and articles-as a professor of more than twenty years of teaching expérience in several universities (Cornell, Notre Dame, Toronto, Princeton, and now Maryland)—and finally as a representative of the 30,000 members of the MLA, this requested limited educational exemption seems to me reasonable and equitable, and, still more, necessary for sound teaching and research and for the continuance of a healthy intellectual life in this country.

Senator MCCLELLAN. Who is next?

Mr. NORWOOD. Mr. Chairman, and members of the subcommittee, I am Frank Norwood, executive secretary of the Joint Committee on Educational Telecommunications, which is a consortium of national and regional nonprofit organizations and associations including most of the major national entities in instructional broadcasting. What I shall attempt to do this afternoon is to summarize the principal concerns regarding copyright revisions and instructional broadcasting as they have been expressed by those members of the ad hoc committee who are most directly concerned.

I want to state we fully support, as do my colleagues here, Dr. Wigren's testimony, and I want to paraphrase my written submission, but I still hope to touch on the four points which are before us:

First, we want to stress the need to make clear that both the doctrine of fair use and the proposed limited educational exemption applied to instructional radio and television the same way that they apply to other forms of teaching:

Second, that beyond "fair use." instructional broadcasting stands ready to pay reasonable and just fees for the use of copyrighted materials, but there is a need to assure prompt access to such materials under standard terms and conditions:

The third point that I want to take a moment to discuss is that statutory limits on the number of copies or span of use of instructional programs could have the effect of precluding the development of materials of highest quality for widespread use;

And finally, I want to talk briefly about the fact that teachers should not be prohibited by legislation from the delayed use in the classroom of broadcast programs so long as-and I think this is the

point, Mr. Chairman, that you expressed interest in-so long as in doing so the threat of adverse impact on the later market for commercially available films or tapes of the same program is removed. If I may, I would like to go back and pick up each one of those. Let me begin by saying when we talk about instructional broadcasting, we are using a term which is much more narrow in its definition than educational broadcasting or public broadcasting. By instructional broadcasting, we mean those transmissions which are a regular part of the systematic teaching activities of a government body or nonprofit educational institution. We are suggesting that, just as the teacher brings to the classroom a cartoon or a map from the morning's newspaper to illustrate her point, so too she should be allowed to do that if she addresses her class through the medium of television. And basically our concern stems from wording within House Report 83 which would appear to indicate that the doctrine of fair use is somehow different when applied to educational broadcasting. Insofar as narrowly defined instructional broadcasting is concerned, it is our contention that there should be no difference than the needs or rights of the teacher in the classroom without such broadcasting, or the same teacher when she uses television to reach her students.

Having said that, let me be quick to add that we are not arguing that all instructional television should be free to use copyrighted material under any circumstances at any time. Clearly there are instances in which the producers of instructional programs should be and indeed are willing to pay copyright fees which are reasonable and just. But that has its corrollary, we suggest, and that is that they should have access to those materials.

Just as my colleague has mentioned the problems dealing with publication and using materials that are reprinted elsewhere, the instructional television producer has a very large and complicated set of problems in gathering material to use in the television broadcasting area. The problem is not his unwillingness to pay, but the lengthy negotiations and the complex administration that is required. And so we suggest that in order to do this in an atmosphere in which the clerical costs are not, perhaps, greater than the costs of acquiring the rights to use copyrighted material, and in which the producer does not have to labor under the uncertainty of not knowing what material he will be able to acquire the waiting for letters which, perhaps, are never answered, and so on-that some form of standardized procedures and protocols be developed which would allow some certainty in this, and which will provide opportunities for the broadcaster and the copyright holder to have dealings which are prompt, simple, honest, and fair to both sides. We think that is a necessity.

The third point has to do with the proposed limitations on the number of videotapes which may be made. Instructional television has been something of a cottage industry during most of its life with the institutions involved doing their own programs locally. In order to produce programing of higher quality than is within the resources of any single institution, now more agencies are coming together-television stations. State departments of education, large school systems, and so on-to pool their resources and jointly to produce material of much better quality and much more educational value than they could produce by themselves. Then to put a limitation on how many copies

may be produced or how long the copies may be used, essentially deprives these people of the opportunity to recoup their substantial investments that high quality materials require.

Finally, and perhaps of most widespread interest to the teacher in the classroom, I would like to talk about a practice which is in question, but which there is substantial and growing interest, and that is the ability of the classroom teacher to use modern technology, particularly videotape recording, in order to bring into the classroom a television program as she might bring in a map or the picture from the newspaper that I spoke of earlier. Here we are aware of the fact that without some safeguards, such off-the-air recordings might represent a threat to the producers and to possible later sales. So we propose, as Dr. Wigren in his statement indicated, this be done within certain narrowly confined restraints which would mean that the recording should be made and used within a 5-day period; its basic purpose being simply to bridge that gap between the time when the program is on the air and the time when the class meets. After the 5 days, the record should be erased. Thus, for a library copy or for copies for use in subsequent semesters, the commercial market, which makes them available usually months after the program has been on the air, would still be the teachers' source for those later uses.

In summary, let me say again that as an alternate form of teaching, instructional broadcasting requires equitable treatment under the doctrine of fair use and educational exemption. Beyond that point, beyond those doctrines, producers of instructional programing are willing to pay reasonable copyright fees, but the producer cannot do so unless the producer has access to copyright materials under a system of terms and conditions which frees him from the present pattern of delays, high administrative costs and uncertainty. In order to achieve critical mass and needed economies of scale, instructional broadcasting must be free from arbitrary limitations upon the number of recordings that can be made and on their useful lifetime. Finally, there is a growing interest in using educational technology to bring into the classroom important programs which can contribute significantly to the instructional process which would not otherwise be available on a timely basis.

Senator MCCLELLAN. Thank you, sir.

[The statement of Frank W. Norwood in full follows:]

STATEMENT OF FRANK W. NORWOOD, EXECUTIVE SECRETARY, JOINT COUNCIL ON EDUCATIONAL TELECOMMUNICATIONS

Mr. Chairman and members of the subcommittee, I am Frank Norwood, Executive Secretary of the Joint Council on Educational Telecommunications, a consortium of national and regional non-profit organizations and associations including most of the major national entities in instructional broadcasting. What I shall attempt to do this afternoon is to summarize the principal concerns regarding copyright revision and instructional broadcasting as they have been expressed by those members of the Ad Hoc Committee who are most directly concerned.

I shall touch upon four points:

The need to make clear that "fair use" and limited educational exemption apply to instructional radio and television as they apply to other forms of teaching;

That beyond "fair use," instructional broadcasting stands ready to pay just fees for the use of copyrighted materials but there is a need to assure prompt access to such materials under standard terms and conditions;

That inappropriate limits on the number of copies of span of use of instructional programs could preclude the development of materials of highest quality for widespread use; and

That teachers should not be prohibited from the delayed use in the classroom of broadcast programs so long as the threat of adverse impact on the later market for commercially-available films or tapes of the same program is removed. "Instructional broadcasting" is a term much narrower and more precise than "educational broadcasting" or "public broadcasting." By instructional broadcasting we mean a broadcast transmission which is a regular part of the systematic teaching activities of a governmental body of non-profit educational institution. Under such a precise definition it is clear that the teacher who lectures from the television studio is no different than the teacher in the classroom and that his need to "use a portion of copyrighted work for noncommercial teaching" is precisely the same. Basically, our concern stems from wording within House Report 83 which would appear to indicate that the doctrine of fair use is somehow different when applied to educational broadcasting. Insofar as instructional broadcasting is concerned we hold that no differentiation should be made between the needs and rights of the teacher in the classroom and the same teacher when she reaches a number of classrooms via radio or television.

Having said that, let me be quick to add that we do not hold that all uses of copyrighted materials in instructional broadcasting should automatically be covered by fair use or educational exemption. Clearly there are many instances in which the producers of instructional programs should be-and, indeed, are willing to pay copyright fees which are reasonable and just. The willingness of instructional program producers to pay for the materials they use has its necessary corollary: that instructional broadcasters must have access to the materials for which they are willing to pay-access without undue delay, without staggering administrative burden and expense, and without the uncertainty which now prevails when requests for permission to use materials go unanswered. What instructional broadcasting seeks as relief from these problems is not complete freedom from copyright liability above and beyond their use and the limited educational exemption sought by the Ad Hoc Committee but some standard set of procedures and protocols under which the instructional broadcaster and copyright holder can have dealings which are prompt, simple, honest, and fair to both sides.

Solution to this problem can do much to provide a climate in which wellproduced, educationally sound, instructional programs can flourish. All of our experience testifies to the fact that instructional programming of the highest quality-particularly in television-requires substantial resources. Rather than rely on what their own limited resources can provide, school systems, statewide agencies and noncommercial broadcasters are coming together to form consortia to finance instructional series for their own use and for sharing with other educational groups. In order to achieve consortium financing and to recoup the substantial investments which are required for program series which are professionally produced under the guidance of educational experts in content and methodology, the programs must be available for widespread and prolonged use. Because instructional broadcasting-and particularly instructional television-is at last emerging from the cottage industry stage, we suggest that statutory limits upon the number of tape copies which may be made, or their useful life, are counterproductive. Further, since those in instructional broadcasting are willing to pay for the use of copyrighted materials to which they can have simple access, such restrictions are wholly inappropriate.

Finally, I want to speak about the retransmission of radio and television programs, particulary about the use of recordings made off-the-air for classroom use. Programs which may be of great instructional value do not-unfortunatelyalways appear on the broadcast schedule at the precise time when teacher and class meet. The advent of simple and inexpensive video tape recorders has made it possible to bridge that gap, and teachers are increasingly interested in recording programs for use when next their class meets. We believe that such a practice is sound and that it should be permitted under limited educational exemption within certain clear and narrowly-defined limits: that the user should make but a single copy for use within his educational institution and not for showing to a general audience. Further, such recordings should be made and used within a five-day period, and that after five days the recording should be erased.