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Under a clearinghouse structure, there would be a need for the creation of clerical positions or even offices in larger educational systems to handle royalty/ license payments. Many school offices are experiencing great difficulty in handling royalty payments for using music in campus performances as dictated by the new law. Schools are organized differently than radio stations. A recent article in Variety reported that more than 1,000 colleges and universities have not responded to BMI alone in regard to licensing arrangements. There is widespread dissatisfaction with rates charged as well as payment for materials not used. Letters have been sent threatening costly legal actions. These letters add to the frustration of educational institutions over the licensing approach. The clearinghouse concept with respect to video recording would intensify the problems we are presently experiencing while adding further financial burdens.

It is realized that the public service concept might require additional legislative action, but it seems that it would provide greater uniform fairness, broader and easier access to materials, and perhaps most importantly larger and more dependable income to producers and copyright holders. Once enacted, there would be no expense to government agencies for enforcement. Attorneys are always quick to point out to educator audiences that guidelines outline the most conservative practices in regard to fair-use-school applications. Guidelines often leave users with a very unclear idea of what is and is not acceptable, and as the lawyers say they bear absolutely no force of law".

In closing I would like to say that enactment of the public service concept or some measure that would give all students in the United States, access to our best experiences would represent a tremendous contribution by the legislature to our citizens of the future.

Submitted by,

F. WILLIAM TROOST, Ph.D.,
College Media Consultant.

This statement separate and distinct from position of the Los Angeles Community College District.

BMI WARNS COLLEGES

Some 1,000 colleges who've failed to sign agreements with BMI have been placed on notice by the music licensing organization to cease and desist from further public use of BMI music.

The notices are based on the new Federal copyright law, which went into effect Jan. 1, which requires licensing by these institutions. Alan H. Smith, BMI licensing veepee, has informed the colleges on notice: "Continued use after this notice may be considered as a willful infringement and we will be compelled to take whatever legal steps may be necessary to protect our rights."

SCHOOL ASSOCIATION DIRECTOR HITS MUSIC LICENSING DEALS WITH COLLEGES

Editor, Variety:

COLUMBIA, S.C.

In a recent issue of Variety (Jan. 3) Stanley Adams of ASCAP reported, among other things, that ASCAP had "negotiated" with the educational community regarding music use licenses and that there had been "widespread general acceptance" among the campuses of these licenses. As a member of the delegation from the educational organizations involved in these discussions with ASCAP, I must take issue with these statements.

A meeting where ASCAP asserts its rates with little change or effective discussion is not ordinarily called "negotiation." In addition, the results of these discussions were accepted by the educational community only in the most grudging and resentful way.

Certainly, educators accept the premise of the copyright law that artists and composers should be paid for the use of their work. The new copyright law, in that it seeks to provide remuneration for composers, arrangers and other creative individuals for their works, is proper in this general intent. The problem lies in that it allows performing rights agencies to demand license agreements which have a deleterious effect on those eleemosynary and public organizations which provide significant and, indeed, culturally vital public service.

The licenses are grossly wrong and unfair in several ways. For example, they place the burden of payment for music use on schools. Granted, it may be hard for the performing rights agencies to collect from intenerant musicians and the American Federation of Musicians does not want its member musicians to pay. But that is not to say it is fair or reasonable to force the schools to be the ones to pay.

In effect, ASCAP treats colleges and universities exactly like taverns, night. clubs, and honky-tonks. As in the past, nightclub owners have to pay the fees, as opposed to the musicians who, although selecting the work and making it an integral part of their making a living, do not. The judicial reasoning is that the nightclub owners were the ultimate beneficiaries" deriving the profit from the music's use. Now, educational institutions are legally the same as nightclubs, taverns, and honky-tonks, even though it is the musician and one's agent who make the profit, and it is the community which is the ultimate beneficiary.

In addition to the burden of payment and the forced payment for music not used, the fees are grossly unfair. Schools with 500 or fewer students, representing about 25 percent of the higher education institutions in the country, pay the minimum charge to BMI, ASCAP, and SESAC, that is, $160 or 32 cents per student for "music use." A university of 5,000 students pays 16 cents per student or a total of only $800. GARY ENGLISH,

Executive Director, National Entertainment & Campus
Activities Association.

NEW YORK, N.Y., February 9, 1979.

DEAR ADMINISTRATOR: The present Federal copyright law has now been in effect for more than a year. Under this law-and except for a few specified exemptions-your institution may not publicly perform a copyrighted work without consent. Performance without such consent may be considered an infringement and your institution may be subject to considerable financial damages under

the law.

Broadcast Music, Inc. (BMI) represents more than 55,000 writers and publishers of music whose combined repetoire exceeds one million titles. Under the circumstances, if any music is publicly performed within your jurisdiction, a significant percentage is almost certainly licensed by BMI.

Since last March, BMI has made a number of attempts to conclude a license agreement with your institution. For whatever reason, we have, thus far, been unsuccessful. In order to protect the rights entrusted to us by our more than 55,000 affiliates, we feel that we no longer have any choice but to insist that you cease and desist from any further use of our music without our permission. Continued use after this notice may be considered as a willful infringement and we will be compelled to take whatever legal steps may be necessary to protect our rights.

We have, for your convenience, once again enclosed copies of the applicable College/University license form. If you have any questions regarding this agreement or this letter-please feel free to contact me.

Very truly yours,

Enclosures.

ALAN H. SMITH,
Vice President, Licensing.

OFF-AIR TAPING: A TEACHER'S VIEW OF OBSERVATIONS AND IDEAS FOR SOLUTION

OF THE PROBLEM

As an educator, how do you feel about making video tapes of commercial TV shows for use in your classroom? We are entering an exciting stage in regard to the new Copyright Law and the problem of off-air taping by the schools. On March 2, 1979 a meeting to discuss this issue was called by the House Committee on the Judiciary in Washington, D.C. Out of that meeting there seemed to emerge a new spirit of cooperation between users of copyrighted materials and copyright proprietors that may indicate resolution of the issue within a reasonable period of time. Will the voice of those who deal on a daily basis with our citizens of the future be fully heard? This question can only be answered by each individual who cares to respond.

Some observations in regard to off-air taping by educational institutions follow. Observation 1: Off-air taping by schools is a significant reality-that is why studies have shown that 95 percent of educational institutions having television equipment make off-air tapes. Another study showed 500,000 teachers and 11 million students involved in learning from off-air tapes. This is not a new phenomenon, it has been going on for more than 15 years. The earliest target market for Sony TV equipment (long before Betamax) that would record off-air was the schools. A major argument by attorneys for Sony in the Betamax trial was that there has been a highly substantial and unexplained delay in the taking of appro

priate legal action by copyright proprietors. This has occurred while schools and others spent billions of dollars on equipment and tapes. At the same time, the networks themselves run ads for the Betamax.

Observation 2: A particularly distrubing thing as it relates to the off-air taping issue is the following list of some of the most frequently heard words and phrases. It goes something like this: networks, producers, film distributors, teachers, nonprofit institutions, education. The most important word is almost always left off the list. The word is students: the basic human ingredient. There is an overriding and tremendous social need for our future citizens to be equipped with the best and fullest information society can provide. They will need it. Television programming has the potential to extend the classroom experience to an extraordinary degree. Instructors need the information available on TV to enhance the learning process-students must be sensitized to the information in advance, and both elements must be coordinated and presented at the correct instructional moment for a specific educational achievement to occur in the optimum way. As a teacher first and foremost, it is for many, very difficult to deny valuable educational experiences to students.

Observation 3: Involves another question, is off-air taping by individual teachers for face to face instruction legal or illegal? The primary reason for the present legislative activities in Washington and the court trials around the country is because this specific question cannot be answered and the parties to the debate cannot agree. Perhaps a combination of the decisions will provide us with a future course that is more definite.

Observation 4: What exactly constitutes Fair Use? This is the most frequently asked question and it is the hardest to answer. The new law spells out 4 criteria.1 A specific problem that has troubled those having to deal with copyright application is: Must I adhere to all 4 criteria? or to half of the criteria? or to what? Attorneys, media people, teachers, and even judges disagree as to how the criteria should be applied to daily problems. Information from the Meeropol vs. Nizer Case can be of some help.

In that case, infringement was defined as:

those works which interfere unduly with the monopoly of the copyright holder without bringing a commensurate benefit to the public.'

A fair use was defined as:

those works which interfere but slightly with the copyright monopoly while offering much to society."

A California copyright specialist, Arthur Stanley Katz has provided some other helpful advice: remember first and foremost, will your actions significantly reduce the profits of the copyright proprietor. To be responsible we must pay serious attention to this factor. We might however note that the monopoly of the copyright holder is not absolute when there is a legitimate fair use school application. The second half of this work deals with solutions. Creative searching for responsible and appropriate solutions are the hope for the future.

For the last 22 years the author has worked to the limit of his energy on the concept of allowing the creators of TV programs, a tax credit in return for the privilege of using shows to best educate our future citizens. The idea has been discussed with attorneys, judges, an ex-CBS executive, and a recognized tax law specialist. All have felt the idea has merit and have aided in refining the concept. The tax credit idea has been labeled the Public Service Concept. The public service concept would provide a more simple, workable solution to the off-air problem wherein each party (user sand producers) could benefit. Arrangement would be made at the time a network contracts with a producer concerning a program to be aired on a future date. Attorneys would 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 screen writer, the musicians, actors, etc.).

The tax law expert has indicated that the allowable write off to networks might be based on a figure such as 1-2 percent of the original cost of the program to the station, a percentage of the gross profits realized or on the actual cost of production involved with airing the particular show. 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

1 The Four Criteria are as follows:

1. The purpose and character of the use.

2. The nature of the work.

3. The amount and substantiality of the portion used.
4. The effect of the copying on the potential market.

a film for TV during the first year of usage. Programming such as game shows and soap operas might not be granted eligibility for the credit. Such a solution would be an improvement over the present situation, wherein many schools copy without authorization and networks/producers lose sales. A blanket amount to cover all instances and uses of television materials in schools would be granted within the 2-percent deduction or whatever amount was agreed upon. Programming would be allowed to circulate until its social value was negligible. Students in the Republic of Germany benefit to a great extent from an arrangement such as the public service concept. In the German system, a special tax is levied against video equipment when it is sold and then is applied to remuneration of copyright proprietors when programs are used as a public service. There are many who feel that our students should have equal benefits and access to the best educational experiences that we can offer. Access to educational information should be available regardless of the financial status enjoyed by the school a student attends. With tightening economic realities, there are many schools without budgets for even rental of educational films; others are very well off. Thus, the public service concept might create great advances in the equality of educational opportunity. It is realized that the public service concept might create the need for additional legislation but it seems it would provide greater uniform fairness, broader and easier access to materials, while at the same time giving larger and more dependable income to producers and copyright owners. Once enacted there would be no expense to government for enforcement.

Enactment of the public service concept or some measure that would give all students in the United States, access to our best experiences would represent a tremendous contribution by the legislature to our citizens of tomorrow. Lastly, the public service idea would promote (perhaps more than any other solution) the use of TV at its best for application to learning in our schools and would coincide with already stated educational goals of governmental organizations such as Corporation for Public Broadcasting and Public Broadcasting Service.

A second solution idea: The off-air taping issue might be answered through Declaratory Relief Actions. This is a legal idea 2 and involves an entirely different viewpoint. The idea is that any school institution could bring what is known as a Declaratory Relief Action against a TV network. The purpose of a Declaratory Relief action is to clarify the legality of an act before it is done. The action would be filed prior to the airing of a particular show of great social value on a network system. In effect, the school institution would be asking the court to decide the legality of making an off-air tape before the program was shown. It is understood that such an action would be filed in a federal level court, and further, that such actions take high priority. The action would provide a specific legal precedent, and it would be promptly acted upon. It is recommended that if such an action were taken, it should be done by a small school district. That the act be requested by a single teacher for direct use in only his class. That no multiple copies be made, and that the program not be available for purchase. The result would be interesting!

The third thought: The education establishment should actively recruit support of its natural and politically potent ally: the equipment manufacturers. A noticeable and important occurence has been that the large companies such as Sony, RCA, Panasonic, etc. are almost never represented at meetings or in the literature in regard to off-air taping by schools. If schools are not allowed to make tapes or it becomes economically unfeasible to do so, then surely equipment manufacturers will lose sales/income. There might be a parallel decline in the market for blank and pre-recorded tapes. There is concern about loss of profits by copyright proprietors there should be equal concern over those whose equipment makes off-air taping by schools possible.

The fourth thought regarding solution: That state, local, and professional organizations might develop policies, positions, and alternative solutions to the problem of off-air taping. Our state organization in California has developed and accepted such a statement responding to the needs expressed in our region. We feel that the policy represents a pioneering effort and it will bring public pressure from a slightly different angle and approach than has occurred elsewhere. In conclusion it is felt that the legislative branch along with the copyright office of our government has had the greatest contact with the history and problems surrounding the entire off-air issue. What may be required is a series of amendments to the 1976 Law. Court cases are often too narrow in scope to deal with the gamut of problems being faced by all those having to deal on a daily

Credit for the idea in regard to Declaratory Relief: Hon F. W. Troost, Judge of the Municipal Court, Culver City, CA.

basis with the new copyright law within schools as without. Focusing briefly on daily functioning the following steps are recommended:

1. Avoid obvious violations.

2. Know the Law to the best of your ability.

3. Warn those you work with that there are things you cannot do (before they ask for a job to be done).

4. To be 100 percent safe, gain permission to copy by letter (keep an accurate file of the letters).

5. Very importantly, communicate your specific discontent/problems to: the House Judiciary Committee, % Representative Kastenmeier, The U.S. Copyright Office, or write your own statement for publication.

6. Pray that you don't get sued.

Finally, remember that our society is made up of individuals who have been. educated in our schools and colleges. Many of us have reached our present professional growth through the vehicle of the schools. It is in the interest of students for whom your involvement is so vitally important.

Hon. ROBERT KASTENMEIER,

25

CENTRAL WASHINGTON UNIVERSITY,
Ellensburg, Wash., March 22, 1979.

House of Representatives, Chairman, Subcommittee on Courts, Civil Liberties and the
Administration of Justice, Rayburn Building, Washington, D.C.

DEAR SIR: I wish to thank you for inviting me to participate in the March 2, 1979 Copyright Conference sponsored by the Subcommittee on Courts, Civil Liberties and the Administration of Justice and the Copyright Office. I sensed a softening of positions from the Airlie House conference. However, I am still concerned and a solution to this problem must be found. Educators do not wish to "break" the law and most take the position that they are not because "fair use" allows some use but "how much" is not defined.

After being a presenter at many copyright conferences in the Pacific Northwest, Washington, D.C., Airlie House, and Minot, North Dakota, I have gained much insight into the problem and the rationale for the position of educators. An educator without official ties in any professional association (other than membership) should be on the to be appointed Ad Hoc Committee. I would very much desire to be appointed to that committee and feel I could make a contribution. Eyclosed is a copy of the proposal which I was prepared to present at the March 2nd conference and which was consequently presented as a part of Dr. Howard Hitchens presentation.

Thank you.

Sincerely yours.

Dr. CHARLES VLCEK, Director Instructional Media Center.

Enclosure.

PROPOSED DEFINITION OF "FAIR USE" FOR RECORDING COMMERCIAL

TELEVISION PROGRAMS

(By Dr. Charles Vlcek, Director, and Professor of Instructional Media, Instructional Media Center)

BACKGROUND

The new Copyright Law implemented January 1, 1978 and corresponding legislative reports do not define the scope of "fair use" for taping off the air programs for non profit educational uses. However, the report of the House Judiciary Committee states:

"The committee believes that the fair use doctrine has some limited application in this area but it appears that the development of detailed guidelines will require a more thorough explanation than has so far been possible of the needs and problems of a number of different interests affected, and of the legal problems presented. . . . If it would be helpful to a solution the Committee is receptive to undertaking further consideration of the problem in a future Congress.'

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