I would like to focus this morning primarily on the interests of local television stations. Representatives of the three major commercial television networks are also here today, and confining my remarks to the interests of local television stations will serve to prevent needless repetition this morning.

To date, I think very little attention has been paid to local stations when the problem of off-air recording has been discussed. This oversight, while benign and to a degree understandable, should not continue.

Local broadcast stations, like any other copyright proprietors, maintain a vital and constantly growing interest in protecting their works from unauthorized duplication and reuse.

Furthermore, local stations themselves are users of program product produced by others. If the value of that product is diluted by unauthorized use by others, then the station as well as the producer will suffer.

On the other hand, local broadcasters take justifiable pride in their locally produced programing, broadcast of which often contributes substantially to their community's knowledge and understanding of local happenings and concerns.

Recognizing the continuing value of their programing to promotion of community awareness and involvement, local broadcasters have little desire to withhold their programing from those who wish to record and replay it for purposes beneficial to community interestsincluding, of course, the education of the community's young.

In fact, some stations gladly furnish tapes, monitors, and station personnel to community groups seeking a replay of a local program of particular interest.

I would also point out that NAB was among the parties which were instrumental in securing a change in proposed Copyright Office regulations to permit stations and networks to authorize or license off-air recording of their programing for educational use without complying with burdensome deposit and registration requirements.

Our concern was that licensing or authorizations might be considered publication of these works, thus necessitating deposit and registration. Faced with these requirements, many stations might well have denied permission to educators who wished to record and replay their programs. Fortunately, the Copyright Office considered our concerns valid and exempted such programs from the mandatory deposit requirements.

Thus, it is our hope that broadcast programs can be made available educational uses to the greatest extent possible, but only in a manner which preserves the right of broadcasters as both owners and users of copyrighted works.

I would like to elaborate on that.

I mentioned earlier that the lack of attention to local broadcasters' concerns was understandable. Ineed, local broadcasters are the producers of only a limited portion of the programing on their stations. Most programing viewed on television stations is either furnished by a national network or purchased from a syndicator of programing produced by others.

Furthermore, interest in utilizing broadcast programing for educational purposes has centered on network and syndicated programing. So why are local broadcasters' concerns suddenly worthy of more prominence?

First of all, we anticipate increasing interest in use of local broadcast programing for educational purposes. This is particularly true with respect to the increasing amount of local children's programing produced and broadcast by individual stations.

Additionally, the continuing improvement of broadcast coverage of local news and public affairs resulting from widespread utilization of electronic news gathering, ENG, and the entry of many stations into investigative reporting will make locally produced programing an increasingly valuable resource for the educator as well as the public. Furthermore, the ongoing proliferation of video-cassette recorders, VCR's, will increase the capacity of educators to tape broadcast programs and lead to demands for taping of a wider variety of pro

grams.

Thus, future off-air recording probably will not be as confined to national network distributed programing as it is today.

Also, increasing public awareness and use of VCR's will enhance its acceptability and effectiveness as a teaching tool, particularly as more teachers and educators learn to integrate video technology into their classroom teaching.

I point out here that NAB has been active recently in encouraging use of video in the classroom. And for years, the Television Information Office has published what is known as "The Teachers' Guide to Television."

So we do foresee increasing interest in educational taping of local programing resulting from the greater educational value of that programing, the expanded capacity of educational institutions to record and utilize broadcast programs, and the enhanced acceptance of "television in the classroom" by educators and the public alike. The second reason local broadcasters are concerned about off-air taping of television programing is their need to retain control of the uses of their works. This need arises from a variety of considerations, many of which network representatives will describe in some detail. So I am only going to allude to them rather briefly and observe that they are generally equally valid concerns with respect to local programs.

Local stations must retain their right to prevent unauthorized uses of their programs to protect themselves from legal liability. Examples of cases where continuing unauthorized exposure of a local station program might increase their liability include programs containing defamatory statements, invasions of privacy, and ironically enough, copyright infringements.

Stations also must be able to protect against misuses of their programing. An example of possible misuse would include editing to distort the content or meaning of a program, thereby placing the station, its personnel, or program participants in a false light.

We are not suggesting that the educational community makes a habit of snipping, clipping, and reassembling television programing for less than laudable purposes. We simply wish to point out that once a station cannot determine who may make additional uses of its program product, its ability to protect itself and others from such misuse is lost.

Local stations also must concern themselves with the rights of their employees and other parties connected with their programing. Writers, producers, directors, designers, and on-air personnel are

vitally concerned with maintaining the integrity of their work in the public eye. I suspect you will hear more about that this afternoon. Stations which cannot control additional uses of their programs cannot give any assurance to their programing personnel that instances of damaging misuse, much less legal liability, would not occur.

Finally-and this I would like to describe in some detail-extensive unauthorized off-air taping destroys a market for the station copyright

owner.

Candidly, the market to which I refer barely exists at the present time. We do not now see broadcast stations engaged in extensive licensing of their works for educational purposes. What we envision, however, is a competitive milieu in which broadcast stations will find it not only desirable but necessary to develop and exploit other markets.

The entire telecommunications industry is entering a new era of competition. Broadcasters who have competed vigorously with each other increasingly will find themselves competing with other media for audience.

Cable television is growing steadily and providing a plethora of competitive program services. Satellites, subscription television, the multipoint distribution service, translators, low power television stations, optical communications, videocassettes, videodiscs, and technologies we may not even know about today, all portend more competition for broadcasters.

This will leave broadcasters with a smaller slice of the audience pie and reduce the revenue potential for sale of advertising time. Obviously, it will create a tremendous incentive to find other pies for their sustenance.

One such "pie" or market is the market for videocassette and videodisc copies of broadcast programs. We think it far from inconceivable that local broadcast stations may be offering tape or disc copies of their programing for sale in the not-too-distant future.

Local news, public affairs, and children's programs are expensive to produce. To continue to improve such programing or even to maintain the current level of quality, broadcasters facing a declining ad revenue potential must be able to develop other means of support. Sale or lease of recordings of these programs is one such source of additional revenue.

If our crystal ball is correct, educators will constitute a significant portion of the market for these program copies.

We are concerned that unauthorized off-air taping of local programs in the near term will destroy that market before it has a chance to develop. Yet, this market may become critical to the continued creative efforts of local broadcasters in providing vital news, public affairs, and children's programing. A copyright law such as ours, premised on the promotion of creative efforts, hardly can countenance dilution or destruction of that market.

I also have mentioned that we are concerned as users of copyrighted material. To the extent that programing furnished by networks or purchased by syndicators is exposed in a market prior to local broadcast, its value to the local station diminishes.

Simply put, the more potential viewers who have seen a program before it is broadcast, the less audience potential the show will have when it is broadcast by the local stations.

Ultimately, of course, stations may insist on lower prices-or higher network compensation-for the rights to broadcast these programs; and the producer, syndicator, or network bears the loss.

If the producer has made a conscious decision to authorize and gain recompense for prebroadcast uses, then perhaps the station could attempt to protect itself by seeking exclusivity against such uses or purchasing a different program.

On the other hand, if the station and producer are helpless to prevent pre-broadcast exposure, then one must absorb the resultant loss. In either case, again the function of the copyright law to promote creative efforts is undermined.

Lastly, I must admit that authorizing or licensing of educational uses of even local broadcast programing may not occur overnight.

While we detect no overwhelming or widespread desire in the industry to withhold product, stations will face hurdles which may prevent supply from responding immediately to demand.

Stations often include copyrighted works in their programs-music, scripts, graphics, et cetera. The copyright owners of these works may or may not be willing to permit stations to authorize off-air taping by educators.

Similarly, existing union agreements and talent contracts may not contemplate such additional licensing. We are hopeful that adjustments can be made, but they will take time.

Again, I would like to thank you for the opportunity to speak today, and also for the opportunity to listen to the remainder of the day.

The road ahead, as we said, is not a particularly easy one, but NAB does remain willing and able to participate as it considers necessary or desirable in the hope of resolving some of what clearly is a critical issue to all of us.

Thank you. [Applause.]

Mr. LEHMAN. Now, we will proceed to a series of very short presentations from the commercial networks.

Mr. Popham's presentation primarily dealth with, as you heard, problems of local stations. And we will start with, I guess, the network highest in the ratings today, which is appropriate, ABC. Donna Sessa, director of ABC media concepts, will speak for that network.

[Prepared statement of James J. Popham follows:]

STATEMENT OF JAMES J. POPHAM, ASSISTANT GENERAL COUNSEL, NATIONAL ASSOCIATION OF BROADCASTERS

Mr. Chairman, my name is James Popham. I am Assistant General Counsel for the National Association of Broadcasters. NAB, as you know, is the major trade association of the broadcast industry. Presently, NAB's membership includes 569 of the Nation's broadcast television stations and all nationwide commercial television broadcast networks. We thank you for the opportunity to present our views today.

NAB has joined in previous attempts to resolve the many questions arising from off-air recording of broadcast programing within the legal framework erected by the Copyright Revision Act of 1976. I don't think I have to tell you these efforts have been unsuccessful, and I would be less than candid if I indicated that we continue to confront anything less than a highly controversial matter and a rather formidable task in attempting to resolve it.

Nonetheless, we appreciate the invitation to join in today's discussions and hope that they will engender mutual understanding and respect for one another's needs and interests. So let me emphasize that we come here today not only to speak, but also to listen.

My remarks today will focus primarily on the interests of local television stations. Representatives of the three major commercial television networks also

are here today, and, confining my remarks to the interests of local television stations will serve to prevent needless repetition this morning.

To date, I think, very little attention has been paid to local stations when the problem of off-air recording has been discussed. This oversight, while benign and, to a degree, understandable, should not continue.

Local broadcast stations, like any other copyright proprietors, maintțin a vital and constantly growing interest in protecting their works from unauthorized duplication and reuse.

Furthermore, local stations themselves are users of program product produced by others. If the value of that product is diluted by unauthorized use by others, then the station as well as the producer will suffer.

On the other hand, local broadcasters take justifiable pride in their locally produced programing, broadcast of which often contributes substantially to their community's knowledge and understanding of local happenings and concerns. Recognizing the continuing value of their programing to promotion of community awareness and involvement, local broadcasters have little desire to withhold their programing from those who wish to record and replay it for purposes beneficial to community interests (including, of course, the education of the community's young).

In fact, some stations gladly furnish tapes, monitors and station personnel to community groups seeking a replay of a local program of particular interest. In securing a change in proposed copyright office regulations to permit stations and networks to authorize or license off-air recording of their programing for educational use without complying with burdensome deposit and registration requirements. Our concern was that such licensing or authorizations might be considered publication of these works, thus necessitating deposit and registration,

Faced with these requirements, many stations might well have denied permission to educators who wished to record and replay their programs. Fortunately, the Copyright Office considered our concerns valid and exempted such programs from the mandatory deposit requirements.

Thus, it is our hope that broadcast programs can be made available for educational uses to the greatest extent possible, but only in a manner which preserves the right of broadcasters as both owners and users of copyrighted works. I would like to elaborate on that.

I mentioned earlier that the lack of attention to local broadcasters concerns was understandable. Indeed, local broadcasters are the producers of only a limited portion of the programing broadcast on their stations. Most programing viewed on television stations is either furnished by a national network or purchased from a syndicator of programing produced by others.

Furthermore, interest in utilizing broadcast programing for educational purposes has centered on network and syndicated programing. So why are local broadcasters' concerns suddenly worthy of more prominence?

First of all, we anticipate increasing interest in use of local broadcast programing for educational purposes. This is particularly true with respect to the increasing amount of local childrens' programing produced and broadcast by individual stations.

Additionally, the continuing improvement of broadcast coverage of local news and public affairs resulting from widespread utilization of electronic news gathering (ENG) and the entry of many stations into investigative reporting will make locally produced programing an increasingly valuable resource for the educator as well as the public.

Furthermore, the on-going proliferation of videocassette recorders (VCCR's) will increase the capacity of ecucators to tape broadcast programs and lead to demands for taping of a wider variety of programs. Thus, future off-air recording probably will not be as confined to national network distributed programing as it is today.

Also, increasing public awareness and use of VCR's will enhance its acceptability and effectiveness as a teaching tool, particularly, as more teachers and educators learn to integrate video technology into their classroom teaching.

So we do foresee increasing interest in educational taping of local programing resulting from the greater educational value of that programing, the expanded capacity of educational institutions to record and utilize broadcast programs, and the enhanced acceptance of "television in the classroom" by educators and the public alike.

The second reason local broadcasters are concerned about off-air taping of television programing is their need to retain control of the uses of their works. This need arises from a variety of considerations, many of which network representatives will describe in some detail.