of the night because educators are fearful that they will be prosecuted. Indeed, it is sad that educators feel that they do not have access to broadcast television programs. Public Law 94-553, Section 108, Library Off-Air Taping Before leaving the actual documentation in the law, two additional sections deserve examination with regard to schools taping of broadcast television programs. Section 108 of the law deals with all phases of library copying. In many ways it seems that Congress intentionally blurred the issue of off-air taping. In Section 108(f) (3) a library is permitted to make a copy of all or a portion of "audiovisual news programs" and to distribute by loan a limited number of copies provided that the loan does not have as its purpose any direct or indirect commercial advantage. The Conference Report defines "audiovisual news program" as local, regional or network newscasts, interviews concerning current news events, and on-the-spot coverage of news events. Does Section 108 (f) (3) allow taping of news documentaries? What is a documentary? What is news? What is news analysis? Is news different fom news analysis? Where do librarians and teachers get answers to these questions? Commentators on Section 108 often discount item (f) (3) since they assume that the use of audiovisual news programs is limited to research. What is research? Who is doing the research? How is research, researched? Is research a school activity? SECTION 3.-THE BROADCASTING INDUSTRY AND OFF-AIR TAPING Earlier in Section 1, "Rationale Supporting Off-Air Taping", this paper explored several facets of broadcasting history and technology. The eventual guidelines for off-air taping by educational institutions should also reflect the nature of the financing and profits of commercial broadcasting, as well as the funding of public broadcasting. Commercial broadcasting It is common knowledge that commercial television networks base their programming decisions and advertising rates on ratings. This ratings system has proven satisfactory and is well accepted by broadcasters, advertisers, artists, producers, etc. Since off-air taping of broadcast television programs would slightly increase audiences, the off-air taping guidelines might require commercial broadcasters to charge advertisers a fee for this larger audience, or the broadcasters can be required to underwrite off-air taping as part of the proposed licensing fee being considered by Congress. Artists, producers and other creators of television programs can be justly compensated for their work by a new off-air taping ratings system. Certainly if ratings of viewers are accurate, the ratings of a few videocassette recorders operated by educators can be just as accurate. The use of ratings would eliminate any need for a national clearinghouse for royalties, etc. Public broadcasting The Corporation for Public Broadcasting was established by Congress to fund the production and distribution of educational television programs by combining federal, state, and local tax dollars with donations from private foundations and individuals. PBS programs, indeed all educational television programs, are telecasted solely with the support of tax money or tax exempt donations. Most programs telecasted by a local educational television station are not available for rerecording even for seven days. The Corporation for Public Broadcasting has provided many grants for the production of television programs by its flagship stations. For instance, WGBH in Boston has been given federal funds for developing the Nova series for public broadcasting. The Nova series, funded by federal tax dollars, has been copyrighted by WGBH in Boston. The WGBH does not allow any off-air taping of the Nova series. However, if a school district does tape the program off-the-air they may purchase rights to use the program at the rate of $162.50 per program. Other programs in the Nova series are sold through Time-Life Incorporated. What may have been a classic abuse of copyright occurred when WNET in New York produced "The Adams Chronicles" for approximately six and a half million dollars of federal money and did not allow off-air taping of the series. The station then proceeded to sell the rights of the series to a commercial film vendor, Films, Incorporated. Thus, a series of historical programs, 13 programs in all, produced to celebrate the bicentennial was actually copyrighted by a locally tax supported public television station and sold to schools at a profit. School districts teaching American History were not allowed to videotape the program off-the-air and were forced to buy the program through a commercial film distributor. The "Guidelines for Off-Air Taping" must allow educators appropriate access to television programs provided by both public broadcasting stations as well as commercial broadcasting stations. SECTION 4.-FILM, VIDEOCASSETTE AND VIDEODISC SOFTWARE INDUSTRY AND OFF-AIR TAPING To further complicate an already complex set of circumstances, the negotiating committee must consider the rapidly changing media software industry 3/11 1. Within the past twelve months schools have been charged $750 to $2,000 for feature length motion pictures on either the 16mm film or 4" u-matic videocassette formats. 74 2. Retail outlets have been selling feature length motion pictures on 1⁄2" VHS and BETA videocassette formats for $49 to $79 per feature. 3. Videodiscs of new motion pictures, e.g., "Jaws", have been sold through retail outlets in Atlanta for $15 to $20 per feature. The educator/consumer must assume that everybody in the media software business is making a profit. The companies selling or leasing feature films on 16mm and 4" videocassettes to schools appear to be making a substantial profit at the expense of the public interest. A videocassette purchased for home use can be seen by as many viewers as a program purchased by a school district. Videocassettes purchased for loan by a public library will be seen by as many viewers as an identical program purchased by a school district. It is common practice for a public library to purchase a film collection for the use by the general public. As long as admission is not charged there is no restrictions on the number of showings, or the number of persons allowed to view the film. Assuming that school or public library can purchase a videodisc of the movie "Jaws" for $20, how much should an educational institution be required to pay for using its own equipment and time to videotape "Jaws" off-air when it is telecasted for "profit" by a commercial television network or station? The off-air taping guidelines negotiating committee must not only assess the nature of "fair use", but determine the amount of what is a fair return in the marketplace. Media producers and distributors have raised the issue that if schools tape programs off-air, they will not buy the same program. The solution to this problem is seen in the following alternatives: (1) Media producers may elect not to show programs on either public or commercial television stations. (2) Media producers, negotiating telecasting agreements with local television stations and/or networks, might require appropriate compensation, based on off-air taping ratings, for those nonprofit educational agencies who may chose to tape programs. Compensation should be paid by the network/station which sells the advertising for the program. CONCLUSION Copyright, off-air taping and learning Should non-profit educational agencies be allowed to tape programs off-the-air? The answer to the question seems obvious, considering the growth of the videocassette industry, the sale of the videocassette recorders to homes and the use of videocassette recorders in schools and colleges. We are fast approaching the 1980 Presidential election, with some campaigning already underway. Schools and colleges should be getting ready to follow the 1980 Presidential Campaign utilizing television to allow students to study the candidates and the issues. Television is the dominant medium of communication in the United States. Non-profit educational institutions must have access to broadcast television through the technology of off-air videotaping. 2 ASSOCIATION OF AMERICAN PUBLISHERS, INC. PRELIMINARY COMMENTS ON OFF-AIR VIDEOTAPING Submitted in connection with the March 2, 1979 Conference on Off-Air Taping for Educational Purposes convened under the auspices of the Copyright Office and the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the Judiciary Committee of the U.S. House of Representatives. The Association of American Publishers (AAP) is the major national association for publishers of general books, textbooks and educational materials in the United States. Its more than 300 members include most of the major commercial book publishers in the United States and many smaller or non-profit publishers, including university presses and scholarly associations. Many of these members are the owners and publishers of dramatic and non-dramatic literary works that are used in or are the basis for broadcast programs which are the object of possible off-air videotaping. In addition, AAP School Division members publish 85 percent of the books and educational materials used in elementary and secondary schools in America. Many of these School Division members participate directly in the audio-visual market selling videotape and other audio-visual materials for use in schools. Because our members are directly and indirectly involved in this field and because many already have experienced some difficulty due to unauthorized off-air videotaping by schools, the AAP is very concerned about this issue. We recognize the complexities and the need for addressing the issues in a cooperative spirit; however, such cooperation should not be allowed to encroach upon the fundamental rights of the owners of copyright. AAP has long been an advocate of the rights of owners of copyright and has seen in the print media tremendous infringement of these rights. We are therefore anxious to become involved at the early stages of these discussions in order to prevent infringement in the video medium as well. In light of these interests we also respectfully request that we be considered as members of any committee that may be formed to further examine these matters. Thank you for permitting us to file these comments in connection with this conference. 3 MOTION PICTURE ASSOCIATION OF AMERICA, INC., Re Videotaping off-the-air by educational institutions. DEAR MR. LEHMAN: Pursuant to your announcement at the conclusion of last Friday's conference on the above subject, we would respectfully suggest that the official record thereof should include the following: The decisions in Walt Disney Productions v. Alaska Television Network, 310 F. Supp. 1073 (W.D.Wash. 1969), and Encyclopaedia Britannica Educational Corporation v. Crooks, 447 F.Supp. 243 (W.D.N. Y. 1978). The order entered by the Court in the Crooks case, a copy of which is enclosed. We think it is particularly important that this order be entered in the record since it is not otherwise reported and will not otherwise be available to those concerned with this matter. Thank you for your consideration. Very truly yours, Enclosure. JAMES BOURAS. U.S. DISTRICT COURT, WESTERN DISTRICT OF NEW YORK Civ-77-560 ENCYCLOPAEDIA BRITANNICA EDUCATIONAL CORPORATION, LEARNING CORPORATION OF AMERICA AND TIME-LIFE FILMS, INC., PLAINTIFFS. C. N. CROOKS, JOSEPH S. PLESUR, WILLIAM MOORMAN, GEORGE MUELLER, RICHARD E. FORRESTEL, RICHARD M. PFEIFFER, FREDERIC SIEVENPIPER, JOHN STOVALL, THEODORE H. Ertel, Alvin J. KRAEBEL AND BOARD Of CoOPERATIVE EDUCATIONAL SERVICES, FIRST SUPERVISORY DISTRICT, ERIE COUNTY, DEFENDANTS. APPEARANCES: RAICHLE, BANNING, WEISS & HALPERN (R. WILLIAM STEPHENS, ESQ., OF COUNSEL) BUFFALO, NEW YORK, FOR PLAINTIFFS. ELLIS, KUSTELL & MULLENHOFF (CARL B. KUSTELL, ESQ., of Counsel) BUFFALO, NEW YORK, FOR DEFENDANTS. This cause came up to be heard on the motion of the plaintiffs for preliminary injunctive relief, and the court having considered the complaint, answer, order to show cause and all of the affidavits, exhibits, and other papers filed in this case, and having heard Raichle, Banning, Weiss & Halpern (R. William Stephens, Esq., of Counsel) for the plaintiffs in support of the said motion, and Ellis, Kustell & Mullenhoff (Carl B. Kustell, Esq., of Counsel) in opposition thereto, and having issued a written decision finding the plaintiffs entitled to a preliminary injunction, and having considered both the oral and written suggestions of counsel as to the form of the injunction, it is hereby Ordered, that the defendant BOCES is enjoined from videotaping off the public airways educational motion pictures or programs copyrighted by the plaintiffs pending a final decision in this case. Copyrighted motion pictures or programs shall include but not be limited to the following titles: "Bartleby," "My Old Man," "The Lady, or The Tiger," "The Crocodile," "The Lottery," "Dr. Heidegger's Experiment," "The Secret Sharer," "Walter Kerr On Theater," and "Opera With Henry Butler." "Symphony Sound With Henry Lewis and the Royal Philharmonic," "Felipa: North of the Border," "Geronimo Jones," "Miguel: Up From Puerto Rico,' "Siu Mei Wong: Who Shall I Be?," "Two Deserts: Sahara And Sonora," "Two Grasslands: Texas And Iran," "Two Mountainlands: Alps And Andes," "Ultimate Risk," and "Ultimate Machine (World We Live In).” It is further Ordered, that the defendant BOCES at its own risk may distribute to the school districts copies of the plaintiff's' films which have already been videotaped and are incorporated into the school curricula, provided that the following steps are taken to monitor the use of the films: 1. BOCES shall keep records of the number of copies made from each master tape, the date each copy was made, the name of the requesting school, the date the film was transferred to the school, the date it was returned, and the date it was erased. 2. Copies of master tapes shall be placed in the custody of a designated BOCES employee, who shall require the reciving school to sign a receipt for the film and to complete a form stating the number of times the film was shown, the date and time of each showing, the names of each teacher and the class to whom it was shown, and the number of students in each class who viewed the film. 3. Copies of the receipts and records referred to in ¶¶ 1-2 shall be filed with the court and with the plaintiffs' attorneys. 4. Each copy of a master tape shall be returned to BOCES within 30 days from the date the film was transferred to the school. Requesting schools shall be informed of this requirement in writing no later than the time the film is delivered. The designated employee referred to in 2 shall take responsibility for securing return of the film within the 30-day time limit. If any film is not returned within 45 days, this fact shall be reported immediately to the court and to the plaintiffs' attorneys. 46-894-79- -11 5. Each copy shall be erased promptly after it is returned to BOCES. 6. The determination of whether a film has been incorporated into the school curricula shall be made by BOCES. 7. A copy of this order shall be distributed to all of the participating schools within BOCES' district. The purpose of these provisions for monitoring the use of the films is to establish records which will enable the plaintiffs to measure their damages should they ultimately prevail in this action while at the same time preventing the disruption of existing services provided by BOCES to the schools. Notwithstanding any provision in this order, the defendant BOCES is authorized to enter into licensing agreements with the plaintiffs for the use of their films. So ordered. House Committee on the Judiciary, Subcommittee on Courts, Civil Liberties, and the Administration of Justice, Rayburn Office Building, Washington, D.C. DEAR MR. LEHMAN: I would like to comment of the "fair use" of off-the-air recordings of broadcast programs. In your committees' deliberations, I hope you will keep in mind the needs of educators, especially those of us concerned with teaching courses relating to the broadcast media. I teach courses in Television Production and Mass Media. In both these courses I have found that the use of off-the-air materials is invaluable. I have used video-tapes of broadcast programs to illustrate themes in contemporary programming, television's presentation of the news, approaches used by television advertiser's, and to demonstrate various techniques of production. The use of video-tapes allows contemporary material to be presented vividly. I hope the decisions your committee reach will allow me and other teachers to continue to make use of off-the-recordings as a teaching devise. DEAR MR. KASTENMEIER: As an educator and an administrator I am very concerned about the availability of teaching materials. The new Copyright Act has had a direct impact on the way we are able to provide materials for students' use in the classroom. We are particularly concerned about the lack of definition or guidelines in the use of off-the-air television programs. We know we must support the rights of the producers in order to maintain the quality of their production. We also know that these materials have valuable applications in our classrooms when they are broadcast. Therefore, I support the concept and definition of fair use as follows: "Fair Use" for recording off-the-air programs extends 30 days from the time a program is broadcast and, further, extends until the program is available for purchase, lease, rental or licensing." It seems to me that if such a definition were in effect, it would remove the barriers for immediate use in the classroom and provide us the opportunity to evaluate those materials for purchase. The most effective evaluation comes about when teachers, working with students, have an opportunity to react to the materials to see if they meet the learning needs. Thank you for the opportunity to comment on this very important matter. Sincerely, DAVID J. CARNAHAN, Associate Dean of Library Services. |