for use of their works. I am confident that regulations which foster these dual interests would well serve both owners and users of copyrighted audio-visual works. Respectfully submitted, 11 ROBERT I. FREEDMAN. OFF-AIR VIDEOTAPING: AN EDUCATIONAL SOLUTION WITH LEGAL PROBLEMS BACKGROUND The use of television programs in the classroom is an obvious and sensible application of technology to enhance and extend the educational process. Unfortunately, many valuable programs are aired at times when schools are closed or students are scheduled for other educational activities. The technological solution is to videotape these programs for later use in classroom instruction, but videotaping may or may not involve illegal use of copyrighted materials. The technology is available to many educators, and a copyright law is in effect which points the way but does not explicitly answer all the questions. Meanwhile, media professionals are caught between requests from teachers for off-air taping of television programs and prohibitions from media producers that off-air taping is a violation of their rights. With students and their highest welfare as a first consideration, this document is intended to point the way toward a more satisfactory solution to the use of television programming in schools. During the last decade, thousands of videotape recorders were sold to schools and colleges. These machines held tremendous potential through their ability to preserve shows on commercial television for nonprofit use in classrooms. The idea caught on fast (the programming was very useful) and millions of dollars have been spent to provide experiences that have great and far-reaching social value for students everywhere. The use of TV programs to help educate seems natural, because video experiences available on network and public television greatly extend the limits of the classroom. In 1976, a new copyright law was enacted. Due to the complexity of the issues and the multitude of interested parties, not all copyright problems were resolved, but the legislators did codify in the law the already judicially established criteria of fair use. Fair use is a right of teachers and students, among others, to reproduce copyrighted works under certain circumstances. The law says that "In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include: 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 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; 4. The effect of the use upon the potential market for or value of the copyrighted work." In other words, the areas of concern in determining fair use are: 1. The intended use of the copies; 2. The type of material to be copied; 3. The size of the portion of the item to be copied; and 4. The potential negative effect of the copies on the copyright owner's right to monetary profit. The law expressly grants teachers and students fair use of copyrighted works without permission of the copyright owner for nonprofit classroom use. In general, it was left to future agreements among interested parties to formulate rules as to exactly how much of what items could be copied, and to negotiate the most important fair use consideration: negative effect or profit vs. educational priorities. As a result of efforts to balance the rights of copyright owners with the needs of the educational community, mutually acceptable guidelines to fair use copying were subsequently developed in many areas. In regard to off-air videotaping, legislators recognized the inadequacies of the new law, and it was anticipated that future clarification of the issues would follow compromise between educators and copyright owners. However, consistent and lasting solutions have not been negotiated in regard to the application of fair use criteria to off-air taping. In addition to concern over the legitimate rights of teachers and students, an important concern is the right of copyright owners to remuneration from the sale or lease of their works. Maintaining the incentive to produce creative works is an important objective of the copyright law. Certainly, it is in the best interests of students and teachers that programs of educational value continue to be produced. A workable compromise must be found which balances the rights and needs of the copyright owners with the rights and needs of educators and students. At present, teachers and media professionals are often confounded with conflicting demands and legal opinions on the subject of off-air videotaping. Media professionals and administrative school employees are being asked to function as attorneys, when even attorneys themselves cannot agree as to what is correct. In reviewing the same circumstance involving off-air videotaping, one attorney will give one opinion, and another equally credible attorney will provide an opposing opinion. The media producers would deny all right to videotape commercially produced television programs, while many teachers are urgently pressing for off-air recordings to enhance their classroom activities. Educators are caught in the moral dilemma of interpreting and following the obligation to use copyrighted material in a proper and legal manner and the professional imperative to bring the most effective learning experiences to their students. Media educators deal with problems of copyright and off-air taping daily. They need concrete guidelines upon which to make decisions. The goal of the following proposals is to recommend a solution that has as its primary focus the best educational opportunity as well as recognize the inherent right of the producers and distributors of educational and commercial television programs to appropriate remuneration for their creative efforts. AGREEMENTS ON OFF-AIR TAPING Currently acceptable practices in the area of off-air videotaping are primarily confined to programs produced or distributed by the following non-commercial agencies: Great Plains National Instructional Television Library, Public Television Library, Agency for Instructional Television, and Public Broadcasting Service (PBS cannot authorize school recordings for all its programs and periodically issues lists of affected programs). Videotapes of public and instructional television programs are subject to the following conditions: 1. Copies may be made only by students or staff in a nonprofit educational institution; 2. Copies may be used only for classroom instruction or related educational activities in classrooms, auditoriums or laboratory exhibitions; 3. Copies may be used only in the educational institution for which made; 4. Copies must be erased or destroyed at the end of the seven day period of local ETV and other educational broadcast licensed by the distribution agency, unless authorization to retain the tape is specifically made in writing in advance by the distribution agency. Commercial broadcasters have not developed a policy permitting off-air videotaping for educational uses, except in the case of news programs. Libraries in publicly supported schools and private nonprofit schools whose collections are available to outside researchers may videotape and indefinitely retain copies for non-commercial use of the following types of programs: local, regional, or network newcasts, interviews concerning current news events, and on-the-spot coverage of news events. Permission has not been granted for videotaping most_documentary programs or magazine format and other public affairs broadcasts. In cases involving those programs and other non-news programs, the educator who wishes to tape off-air must carefully consider the copyright law's four fair use criteria. This is an especially difficult task in view of the polarized positions taken by organizations representing media producers and distributors on the one hand and those representing educators and librarians on the other. In an effort to balance the needs of the student with the rights of creators and distributors of television programs, the following guidelines are proposed. CMLEA POSITION AND GUIDELINES FOR FAIR USE COPYING OF The following guidelines are intended for students, teachers, and staff of publicly supported or nonprofit educational institutions. The guidelines are intended to answer the problem of obtaining advance permission to copy and to address the need for preview copies for future acquisition or rental. They are also intended to reinforce the inherent right of producers and distributors to remuneration for their creative efforts. Of-air videotapes of complete programs may be made and retained subject to the following restrictions: 1. Videotapes for preview purposes must be erased within one week unless an extension of the preview period is approved by the copyright holder. If the original broadcast includes notice that the material is available for sale, rental, or lease, the tape must be considered a preview copy. 2. If the material is not obviously available for sale, rental, or lease, the videotape may be retained curing the school year in which the tape was made. However, within a week of the original taping, a letter must be written to the copyright owner or network requesting information as to sale, rental, or lease of the material. The tape must be immediately destroyed in the event of receipt of formal notice from the copyright owner of the material's commercial availability to the educa tional institution. 3. Off-air videotaping may be performed only as a result of an individual teacher's request Media professionals are included in the definition of teacher). Programs may not be systematically copied in anticipation of requests. 4. The person making a request must sign a statement of responsibility. 5. Control persons must be designated at each campus or other videotaping site to monitor requests and maintain the integrity of the policy. 6. Records must be kept of the title of each program copied, the date of the videotaping, and the date of the erasure. 7. No duplicate copies should be made. 8. Videotapes should be used only in the course of face-to-face instruction in single classes. 9. Videotapes should be used only at the site for which the original teacher request was made. 10. The educators involved in off-air videotaping must endeavor to make themselves fully knowledgeable regarding the copyright law and related judicial decisions, especially in the areas of fair-use and off-air videotaping. COMPENSATION FOR COPYRIGHT OWNERS Many programs of educational value are already financed either through direct grants of public monies or through federal tax credits granted to businesses for program sponsorship. Since compensation from federal funds has been made to these producers, CMLEA endorses the concept that these programs fall within the public domain, and as such may be reproduced under the provisions of section 105 of the copyright law. Although we feel that our guidelines are allowable under the right of fair use, we realize that commercially sponsored producers will remain concerned over the problem of proper remuneration for their creative efforts. Therefore, we wish to advocate the consideration and congressional enactment to a tax benefit to producers and networks who will explicitly grant to educational institutions the right to videotape their programs for classroom use. The diverse nature of the authorship, production, and distribution of programs broadcast over television channels makes the problem of remuneration for copying privileges very complex. It is difficult for educators to locate all the parties involved in a film or other program, and it is difficult for the copyright owners to unanimously agree on permission to copy and on allocation of any copying fees. As an answer to these problems, we strongly endorse a public service tax concept because of the benefits which would accrue to the producers and networks as well as to the schools. The public service concept would allow producers and networks a limited amount of tax write-off in exchange for the schools' rights to videotape their programs. Arrangements would be made at the time a network contracts with a producer concerning a program to be aired on a future date. Attorneys would at that time have to work out how the money from the write-off would be distributed among the various interests in that particular copyright (i.e., how much to the screenwriter, the musicians, actors, etc.). A tax law expert has indicated that the write-off allowable to networks might consist of a specially designated tax credit. It could be based on a figure such as 2 percent of the original cost of the program to the network, Producers could be given a similar credit or could contract for payment from the network in return for public services rendered. The special tax credit would be allowed over and above presently allowable deductions (which range above the 70 percent level), against procuring a film for TV during the first year of usage. Such a solution would require a minimum of red tape for both copyright owners and educators. It would reward producers and networks for originating and airing programs of educational and artistic worth. Students would benefit from easier access to television programs. Educators would benefit from an agreeable resolution of the conflict of producers' rights versus students' rights. 12 New York, N.Y., March 6, 1979. Re conference on off-air taping for educational uses. DEAR BRUCE: We were encouraged by both the substance and tone of last Friday's conference, and I am sure you were pleased with the large and active turn-out. We look forward to either a direct or indirect continued participation in the resolution of these issues, and hope that our position significantly advanced the mood to reach an industry-wide consensus. Again, our appreciation for including our presentation on the agenda. Very truly yours, ROBERT N. GOLD. WNET'S STATEMENT TO BE DELIVERED ON MARCH 2, 1979 AT A MEETING OF THE HOUSE JUDICIARY COMMITTEE'S SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES AND THE ADMINISTRATION OF JUSTICE Mr. Chairman, and members of the Committee, I am Robert Gold, General Counsel of WNET. I am also speaking today on behalf of Boston's WGBH and KCET which is located in Los Angeles. Both of these prominent public television stations have endorsed our remarks. WNET is a noncommercial, community owned public television station licensed to Newark, New Jersey and serving its 300,000 contributing members and millions of other viewers in the tri-state New York City area. We appreciate the recognition by this Committee and the Copyright Office that stations like WNET, WGBH and KCET, which produce and supply programs broadcast by the more than 270 PBS stations, might provide a special perspective to these proceedings. The public broadcasting system's strength is in part derived from the diversity of its programming sources and the autonomy of local station managements. Although no one station can adequately represent the interests of all PBS members, we do hope that our brief remarks will reflect the positions of many of the other major producing stations who could not be in attendance. We do not, however, speak solely from the vantage point of a producer of nationally distributed programs, although we are a principal provider of prime-time PBS programs, such as the widely acclaimed "Great Performances" series, "The Adams Chronicles,' ," "Bill Moyer's Journal" and the heralded indepth news program, "The MacNeil/Lehrer Report," which is co-produced with WETA and originates nightly from studios in both New York and Washington. We also speak today as a community-based educational station with over 17 years of experience in providing instructional programs to local schools through our School Television Service. This past year close to 40% of WNET's total broadcast week was devoted to childern's programming, including 35 hours each week of in-school classroom courses which reached approximately 650,000 students in 1,700 schools. Our school service broadcast programs were produced or distributed by many organizations represented at this meeting. WNET's staff conducted numerous seminars and workshops, attended by some of the 9,000 teachers who participate in this service and we also published manuals to assist teachers in course selection and scheduling. In addition, WNET's Office of Higher and Continuing Education is producing and broadcasting courses for college credit by adult non-traditional students who share their learning experiences in regular sessions held at local centers staffed by college instructors. WNET therefore has a dual mandate: to produce innovative and stimulating cultural, public affairs and entertainment programs for its general audience; and to maintain and expand its direct classroom service to our viewers and colleagues in the educational community. In striving to fulfill this dual mandate, we have examined the thorny issues which are involved in the school off-air taping controversy and have wrestled with the following basic policy question: As a national producer, with program funding always in short supply and production expenses ever-rising, should we seek to maximize our ancillary income by withholding off-air taping rights, or do we have a superior obligation to enable students to view our programs for a limited time in classroom settings without financial benefit to us and even at the risk of reducing our eventual income? WNET has determined that despite the financial consequences, we should permit the school community to enjoy certain rights in our programs. As the recent Carnegie Commission stated: "We believe it is time to launch new efforts to tap the power of broadcasting . for learning. . . . The issue is not whether public broadcasting has a responsibility in education, but how best to carry out that responsibility"2 WNET looks to the establishment of fair industry-wide school off-air taping guidelines as a small first step in meeting this responsibility. Accordingly, we have concluded that these issues can most effectively be resolved through the proposed Ad Hoc Committee which is to be convened subsequent to this meeting. 4 3 Our initial suggestion to this committee would be to expand the traditionla definition of fair use and to use a fresh approach in seeking a consensus. The doctrine of fair use has been called both "obscure" and "the most troublesome in the whole law of copyright" and no court, to our knowledge, has previously ruled that reproduction of an entire audiovisual work-even by a school-should be condoned. Section 107 of the new Copyright Act merely codified the previous leading judicial decisions. Therefore, since the new committee will be establishing guidelines which may authorize limited copying of entire works by schools without permission of the copyright owner, we believe that a limited departure from the conventional fair use concept is essential. 5 Secondly, we would embrace the right of teachers at non-profit educational institutions to spontaneously tape entire programs off air for classroom use during a seven-day period without a fee and without the copyright owner's permission. We recognize, as did those who participated in the 1977 Airlie conference, that the seven-day period neither completely satisfies the schools-who claim they need more time to fit currently broadcast programs into future curriculum schedules-nor satisfies the producers and distributors who argue that their income is thereby reduced. We would respond by simply reminding the interested parties that some dissatisfaction is often the by-product of negotiation and compromise. As a footnote, we would ask the committee to consider whether occasional programs should be exempt from these school replay rights whenever production financing cannot be completed without agreement by the producer to withhold these rights from the schools. Thirdly, we would endorse the formation of a clearinghouse where schools could receive the names and phone numbers of copyright owners or distributors and, whenever the copyright owner or distributor so elected, also be provided with the terms and conditions of a licensing agreement which would become effective on the eighth day after broadcast. We would look to the educators on this new committee to devise reasonable policies for ensuring that tapes would either be erased after the seventh day or be retained by the schools under a license agreement. Finally, we oppose the adoption of any compulsory license arrangements for two basic reasons. First, WNET has enjoyed an exemplary working relationship with over a dozen creative and technical unions and guilds. Some of these guilds in fact have already expressly permitted seven-day school replays of programs created by their members, without requiring additional payments. We have appluaded this collaborative effort. However, guild members, as well as owners and creators of underlying literary and artistic properties justly are required to be paid additional compensation once programs leave the school seven-day replay sphere and enter the conventional audiovisual market. The cumulative additional payments for a major production are substantial and far exceed the producer's licensing fees received, for example, if only one school happened to exercise its compulsory license. Therefore the copyright owner must be in the position to decide whether it is economically feasible to distribute a program to audiovisual consumers on the eighth day after broadcast. 1 These consequences, incidentally even are more acute in the face of burdensome fundraising restrictions contained in proposed rules issued by the Federal Communications Commission in a current docket proceeding involving public broadcasting. In the Matter of Commission Policy Concerning the Non-Commercial Nature of Educational Broadcast Stations, Docket No. 21136. A Public Trust: The Report of the Carnegie Commission on the Future of Public Broadcasting, page 256 (1979). 32 M. Nimmer on copyright, page 13-48 (1978). Dellar v. Samuel Goldwyn, Inc., 104 F. 2d 661 (2d Cir. 1939). |