Mr. BRUCE LEHMAN, Esq., 20 MEDIA ACTION RESEARCH CENTER, INC., Council Subcommittee on Courts, Civil Liberties and the Administration of Justice, Committee on the Judiciary, House of Representatives. DEAR MR. LEHMAN: I am writing regarding the fair use and off-air recording by non-profit educational institutions and the conference on Off-Air Taping for Educational Uses sponsored by the Subcommittee on Courts, Civil Liberties and the Administration of Justice and the Copyright Office of the Library of Congress on March 2, 1979. The Media Action Research Center, Inc. is an independently incorporated notfor-profit organization. It's work is made possible by grants and individual contributions. The center was established in 1974. MARC is incorporated in the State of New York under section 216 of the Education Law and section 404 of the Not-for-Profit Corporation Law. It has been granted sections 501(C)(3) and 509(A) (2) status by the United States Internal Revenue Service. MARC's purposes are: To study the impact of television on viewers through scientific research. To make available in understandable form information about what is known about TV's influence. To help viewers develop strategies for a more intentional selective questioning approaches to viewing through workshops and other events. To help bring about positive changes in the television system. It is MARC's position that off-the-air recording, duplication and exhibition of brief program segments and complete commercials should be allowed for use in training or teaching environments for the purpose of criticism, teaching and evaluation of the role and effects of television on society and on individual viewers. Furthermore, off-the-air recording should be allowed of total programs for the purpose of scientific research. This kind of use of off-the-air recorded material complies with the accepted fair use doctrine and should be clearly stated by law. Television, as no other medium, is not available to the consumer for careful study, evaluation and criticism. It cannot be scheduled for the convenience of reviewers, critics or teachers; commercials and programs often cannot be secured in any other way than off-the-air recording; social criticism is difficult and often impossible because the material is not available and is controlled by the producer and distributor. Since television programs are directed to the public, the public should have the right of access to the material, not to compete with the producer, but rather to allow comments in the public interest on programs and commercials. Sincerely yours, 21 NELSON PRICE. ROBERT KASTENMEIER, STATE OF Oregon, DEPARTMENT OF EDUCATION, Salem Oreg. March 14, 1979. Chairman, Subcommittee on Courts, House of Representatives, Rayburn Building, Washington, D.C. DEAR REPRESentative KasTENMEIER: Limiting off the air recording creates a problem in the schools in this state. There are many valuable programs, and we need them to use to help in the educational process. It is unrealistic to not allow schools to record material and use it for instructional purposes during the school year it is broadcast. If material is of short term educational value, less than one year, why establish rules that prohibit use of the materials. Such action only assures that our kids get the short end of the stick, educationally. What if the material is of only short term educational value, and the law establishes a fee system? Now a dilemma exists. Those who do not understand the system may choose again to do nothing; another short stick. Or they may choose to use the material and pay the fee. This means paperwork including purchase orders and other indirect costs to the district, probably exceeding the fee! Now the district may choose not to let the teacher use the information. Let's face it, the fee for usage of an item of short term value cannot be very much or it will prohibit use of that item; short stick again. Now a third option surfaces. What if the teacher chooses to use the material, and it really doesn't work that well so he decides to not fill the bureaucratic paperwork? It's nearly impossible to enforce the policy; so why enact it? That is like leaving the key in the ignition of your fancy, new sports car causing a good kid to go bad. We don't need any more moral decay in the USA. Upon close examination, who would be guilty of the moral decay? Would it be the legislator who chose to enact or interpret the policy? Would it be the lobbyist who convinced the legislator? Would it be the violator? Or would it be a combination of all the above? Unless it is entirely the violator, it would be unwise to enact such a policy. Broadcast materials having longer than short term value, more than one year, do not have the same inherent problem as short term materials. First, the teacher has had time to try the materials in the classroom and to evaluate their effectiveness. This is the same as most selection procedures for other educational materials such as filmstrips. Then, after examination, the school district can budget for the long term use. With a school year to try the materials, confusion over rights is lessened. Further, the moral issue subsides as now the material is proven to be of exceptional educational value, and rational decisions can be made. It is unrealistic to not allow schools to record broadcast material and to use it instructionally in the classroom during the year it is broadcast. I support any agreement that can be made toward allowing educational agencies to record programs off the air and to use these programs for nonprofit instructional purposes for the period of one school year. This would help teachers to integrate the materials into their curriculum. I would appreciate having this testimony included in the report read into the March 2 record. Cordially, JAMES W. SANNER, Specialist, Instructional Technology. 22 STATEMENT BY NEW YORK STATE EDUCATIONAL COMMUNICATION ASSOCIATION The New York Educational Communication Association, a professional association dedicated to the education of children through media, is quite aware of the problems educators face in using television programs for instruction. All too often special programs are broadcast which fit directly into the curricula but, because of the complexities and uncertainties of the copyright law, many educators refuse to use them out of fear of being in violation. In addition, sponsors frequently notify schools of the programs prior to broadcast and some even offer guides and supplemental materials relating directly to the programs and the teaching of the subject covered. Still, because of the uncertainties, teachers cannot use the programs. Although we recognize the problems facing educators who wish to use television programs for instructional purposes, we also understand the needs of the producers, craft unions and creative talent. Unfortunately, all sides in this copyright dispute seem to have expressed their positions as if they occurred in a vacuum. It is the position of this association that a common ground can be found if reason and cooperation prevail. A modest license fee would help alleviate the problems of all sides. Schools would be able to use the programs at the appropriate moment, producers and members of the craft unions could receive additional remuneration at the time of production and creative talent would have additional incentive to continue to be productive. There are 15,834 school districts in the United States, most with a multiplicity of school buildings. If a fee of ten dollars per program per district were set, and only one quarter of the districts responded, there would be an additional increase in revenue of almost forty thousand dollars. This example is illustrative only, but it does show how everyone can be legally served and still maintain a positive posture. If the claims of Mr. David Davidsen of Learning Corporation of America are correct, that the educational film industry, in 1977, spent two million dollars more in film production than it grossed, this industry should welcome a change to receive additional revenues without the expense of raw stock, previews, billing and collection. It is imperative that whatever solution is agreed upon, that the language be clear and concise. The ambiguities of the current law adds to the problems, since most sides seem to choose an interpretation which best suits a preconceived idea. Congress is to be applauded for its continuing efforts to bring all sides of this issue together. The New York State Educational Communication Association stands ready to assist in any way possible to help insure a just and concise resolution to off-air taping for educational purposes. Respectfully submitted, ARNOLD F. SPARR. 23 GROSSMONT UNION HIGH SCHOOL DISTRICT, Hon. ROBERT W. KASTENMEIER, Committee on the Judiciary, House of Representatives, Chair of the Subcommittee on Courts, Washington, D.C. DEAR MR. KASTENMEIER: For the last few years many educators have been playing mental gymnastics in trying to develop an off-air video tape policy—a policy that would firmly recognize present technology, and in doing so, attempt to balance the rights of the copyright holder with education's needs to utilize television programs for the "teachable moment". In March, 1978, after three years of research, discussion with copyright holders, educational entities and legal counsel, and "out-on-the-limb practices", our Governing Board adopted the attached copyright policy which deals with off-air video taping and other copyright guidelines. Inherent in the framework of this policy is the recognition that renumeration to a copyright holder for creative efforts is of paramount importance. This recognition acknowledges the underlying concern of producers/distributors and also provides the educational system with immediate access to preview/evaluation of materials that may be acquired as they become available. To insure that this privilege is not abused, the utilization of off-air video tapes is accomplished within a specified time frame and under systematic control of each of our educational sites. Determination of the availability/source for materials is accomplished through the use of correspondence to the appropriate networks. It is our experience that many distributors of instructional materials are encouraging the process of utilizing television as an evaluation tool. Further, in the three years we have openly operated this service, producers/distributors have expressed support for this system. My interest in providing this information to you is the Copyright Meeting planned for March 2, 1979 in Washington, D.C. Since this meeting will focus on resolving the off-air video taping controversy, I felt you should be apprised of a workable option presently in effect. While this position may raise more questions than it solves, it does attempt to speak to the issue of responsive balance, as well as meet several of the criteria for Fair Use. Much more could be said concerning the background rationale, research, and legal opinions that have been rendered concerning our District's present policy and regulations. If, after reviewing this information, you would like to discuss this material further, please contact me. Should the opportunity be available, I would enjoy participating in subsequent committee meetings discussing this topic. The March 2 meeting is the beginning of an eclectic process in working through a difficult, but obtainable, goal. I look forward to the impact and promise this, and subsequent meetings, will have in extracting us from the television/video taping quagmire. Good luck! Sincerely, Enclosures. RAY L. STANSBURY, Coordinator, District Media Services. COUNTY OF SAN DIEGO, OFFICE OF COUNTY COUNSEL, San Diego, Calif., February 1, 1978. Re Proposed policy concerning the reproduction and use of copyrighted materials (78-0011/RBH). Dr. LELAND B. NEWCOMER, District Superintendent, Grossmont Union High School District, La Mesa, Calif. (Attention of John C. Barrons, Assistant Superintendent, Business). DEAR DR. NEWCOMER: You forwarded to us for review and comment a copy of a proposed district policy intended to establish regulations governing the repro duction and use by personnel of your district of copyrighted materials. The proposal makes reference to the Copyrights Act, Public Law 94-553 enacted October 19, 1976 and made effective January 1, 1978, which revised Title 17 of the United States Code embodying the copyright law. In accordance with your oral request we have examined the policy to determine its general suitability to implement the provisions of the new statute and have not made a detailed analysis of particular provisions or terminology. A number of the restrictions and conditions in your policy apparently reflect assumptions made as to reasonable regulations which should be imposed to ensure compliance with the copyright law, but as many of these are not spelled out in the statute nor in any official implementing regulations of which we are aware, we are not able to express an opinion as to whether they would be upheld if challenged by court action. Nevertheless, we consider that the provisions of your policy are consistent with the provisions of the Copyrights Act of 1976 and also are in accord with information we have received concerning "guidelines" said to have been established by the House Judiciary Committee when considering the new legislation. Basic to the determination of appropriate regulations to avoid allegations of infringement of copyright by a school district are the limitations on the "exclusive rights" of the owner of copyright (set forth in 17 U.S.C. § 106) contained in 17 U.S.C. Section 107 which states in part that "Notwithstanding the provisions of Section 106, the fair use of a copyrighted work . . . for purposes such as criticism, comment, news, reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringment of copyright." A paragraph of your policy under the heading "Printed Materials" lists the factors set forth in 17 U.S.C. Section 107 to determine whether a use of a copyrighted work is a "fair use" and policy provisions relating to "Non-print (Off-The-Air Video Taping)" and "Printed Materials" are pertinent in an attempt to restrict reproduction and use of such materials to the "fair use" concept of the statute. However, it should be noted that the provisions of Section 107 apply to all copyrighted works concerning which the owner of copyright otherwise would have the exclusive rights listed in 17 U.S.C. Section 106, not all of which are covered by your policy. As stated in 17 U.S.C. Section 102 there is copyright protection in "original works of authorship fixed in any tangible medium of expression . . ." which include: (1) literary works: (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; and (7) sound recordings. In summary we consider the provisions of your policy to be acceptable and to constitute appropriate guidance for avoidance of copyright infringement with respect to the subjects with which your policy is concerned. It may be that certain of the provisions are even more restrictive than necessary, inasmuch as the "fair use" of a copyrighted work for "teaching" and "scholarship" as set forth in 17 U.S.C. Section 107 is not defined in the statute except by reference to the listed factors to be considered in determining whether the use made of a work in a particular case is a "fair use". However it is certain that there cannot be wholesale copying of copyrighted materials and that limits must be set as to time and content for reproduction and use of protected matter for education purposes without permission of the owner of copyright. If additional discussion of these matters is desired, please so advise us. DONALD L. CLARK, County Counsel. ROBERT B. HUTCHINS, Deputy. REPRODUCTION AND USE Of CopyrighteD MATERIALS (NON-PRINT/PRINT) It is the intent of the Governing Board to delineate, enforce, and abide by the provisions of the current copyright laws as they affect the district and its employees. Copyrighted materials, whether they be non-printed or printed, may not be duplicated without first receiving written permission from the copyright holder or fall within guidelines presented in administrative regulation ECHC-R. 46-894-79-13 The district does not sanction illegal duplication in any form. Employees who willfully violate the district's copyright position do so at their own risk and assume all liability-responsibilities. Adopted 3/6/78. Legal Ref.: United States Code, Title XVII. REQUEST FOR OFF-AIR VIDEO TAPING I, the undersigned, having requested the District Instructional Media Center to video tape the following program(s) within the parameters of the guidelines set forth March 6, 1978, am aware of said guidelines (see reverse side) and agree to accept responsibility for the use and erasure of this material to prevent any infringement of copyright law in lieu of expressed written approval of the copyright proprietor. Requestor's name (please print). School_. Department.. Date material is needed. Special instructions. GUIDELINES FOR VIDEO SERVICE FOR OFF-AIR RECORDINGS The District Instructional Media Center operates an off-air video tape recording service for district schools. The service is available 24 hours a day, Monday through Friday, and includes television channels 6, 8, 10, 12, 15, and 39, primarily, and other channels as they become available. The main purpose for this service is to provide a means of previewing instructionally related materials for possible purchase, lease, or rental by the district, and to enable teachers to replay television programs within a specified period. Therefore, in the absence of formal guidelines, and to help prevent problems involving copyright violations on the part of the district, or district employees, off-air taping of instructional materials shall be accomplished only under the following conditions: 1. Any teacher desiring that an instructionally related television program be taped by the district for classroom use shall complete a "REQUEST FOR OFFAIR VIDEO TAPING" form. Such request must be signed which, in effect is an agreement to abide by the provisions of this policy. If a school elects to video tape at the local unit, a similar form must be used. 2. Unless otherwise authorized, all video tape recordings shall be erased no later than three weeks after the taping of the requested program (e.g., some instructional television programs broadcast by the San Diego County Department of Education can be retained for the entire year. Consult your county instructional television guide for details.) 3. No taped program shall be exchanged with other schools in the Grossmont Union High School District, or other school districts, without specific written approval of the Associate Superintendent. 4. The taped program shall not be used for public viewing. 5. The taped program shall be used for the specific curriculum application for which the request was intended, and no other curriculum application is authorized. 6. Video tape libraries of commercial and non-commercial (educational) programs may only be established with written approval of appropriate copyright holder. The District Instructional Media Center will be responsible for directing all formal requests for permission to use or retain copyrighted television programs. 7. Published lists of authorized video tape libraries shall be prepared and maintained for each local unit collection. 8. Individuals are required to fill out and return a preview evaluation card for each program video taped. Requested programs will be duplicated in color. These color programs are compatible with an NTSC color signal standard. Sony color video tape recorders models AV-8600 or AV-8650 conform with this specification. The Sony Color Video Tape Recorder Model AV-5000(A), which the majority of schools have, do not utilize this standard and will therefore only play back a color program (generated on our equipment) in monochrome (black and white). Teachers requesting video service are required to supply the correct amount of tape to complete the duplication process. Video tape is available through the |