that any activity, such as unauthorized off-the-air taping, which interferes with this legitimate business operation is a clear violation of the law.

Moreover, it is our understanding of the law that the concept of "fair use" does not condone acts by users which would injure or restrict a proper business activity of the copyright proprietor.

Nevertheless, I do not want to state our position without indicating our sensitivity to the interests of educators in reasonable and economically feasible access to our broadcasts,

I have some suggestions which, because of time restrictions, I will only briefly outline at this time:

One: School systems should work through statewide or regional consortia to obtain video cassette copies of network broadcasts which these central agencies either have been authorized to make, or which they have acquired from a legitimate licensing authority. The networks and their distributors should encourage these arrangements which can very substantially reduce the cost of obtaining network programs. Some of this is happening now.

I know many of you are active in this area, and I commend you for your activities in this respect. It will provide inexpensive programing to educators if we give it a chance to work.

Two: The broadcast networks should continue to work closely with the major educational organizations such as AECT and others, so that there is proper dissemination of information on how to lawfully obtain copies of network programs.

Three: Educators should be aware of various policies at CBS and other networks which permit, under license, off-air taping of daily hard news broadcasts. There are very nominal license fees involved to obtain access to this very valuable news material.

I urge educators to exercise their imagination on the many ways this current news material can be utilized effectively in the classroom. I administer a program, this program. And if any of you are interested in finding the results of our licensing activities, you can see me at the break.

These above-mentioned positive approaches should be the focus of your desire to obtain access to network programing, especially during the next 5 years. They will yield many more results and involve far fewer disputes than arise from an attitude which constantly dwells on "how much can we get away with under the fair use doctrine?"

At some point in the future, when the video player population in schools comes close to the 16-millimeter projector population, we should come together and reassess the question of using broadcasting as a delivery system for educational materials.

At that point, there may be some economic feasibility for an off-theair licensing policy for many more of our broadcasts.

Then, again, the advent of the video disk may provide new, inexpensive ways of obtaining video instructional materials. Until then, I urge that we all act responsibily-respecting each other's rights and needs and looking for ways of providing machinery for taking advantage of the new video technology.

Ι

Let us not now rush to judgment.

Thank you.

[Applause.]

[Prepared statement of Joseph P. Bellon follows:]

STATEMENT OF JOSEPH P. BELLON, VICE PRESIDENT, RESOURCES DEVELOPMENT AND PRODUCTION, CBS NEWS, AT OFF-THE-AIR RECORDING CONFERENCE

For nearly 20 years, CBS has been making many of its public affairs broadcasts available to various educational film and tape distributors, who, in turn, rent or sell them to school systems and libraries for nonbroadcast exhibition. Many of our public affairs broadcasts not licensed to distributors are available directly from CBS.

In some cases we have withheld our broadcasts from distribution to schools and libraries because of legal or contractual prohibitions. Also, with respect to entertainment programs, in practically all cases, CBS obtains only broadcasting rights, and therefore CBS cannot make these programs available for non-broadcast use. The process of clearing rights for non-broadcast use and licensing these broadcasts to distributors is administered by a department in CBS whose activities are akin to the subsidiary rights or licensing departments at publishing companies or motion picture corporations. We regard this as a proper and beneficial business activity.

Likewise, those educational distributors who acquire our broadcasts are also engaged in a worthwhile business enterprise.

That's why since 1957, this CBS licensing department has released more than 600 broadcasts to distributors for non-theatrical exhibition, including such series as the Twentieth Century, CBS Reports, of Black America, segments of 60 Minutes, plus many other outstanding CBS News documentaries.

I know that some of you are quite familiar with this licensing function at CBS and at the other networks. But we receive plenty of mail and telephone inquiries from educators, especially those who have recently discovered the new video technology, that suggest complete unawareness of this business activity. I believe that this lack of knowledge is at the root of many of the problems we are having with unauthorized off-the-air taping and with some proposals of educators who want special concessions in the copyright law.

Now having said that, let me now try to dispel some other misconceptions that we encounter in our discussions with educators on the subject of off-air recording. First, many persons, unfamiliar with television production and the profession of broadcast journalism, do not comprehend television news and public affairs programs as "copyrighted works", like books, which are indeed protected under the U.S. Copyright Law. I know that those of you who are aware of how these programs are produced would agree that the skill and creativity involved in the production of these broadcasts equals or exceeds that of authors of books and other printed matters.

Another misconception is that because television broadcasts are transmitted over the "public air waves" they thereby lose some copyright protection and thus may be freely used by those who record these broadcasts off the air. Some how, similar arguments are not made with respect to text books or other educational materials that schools purchase and are delivered to schools over "public" highways or by means of the U.S. Postal Services.

Let me summarize the position of CBS. We believe that our broadcasts are indeed creative works protected by copyright. These broadcasts are, have been, and will continue to be licensed for non-broadcast use in schools, and other institutions and eventually for in-home use.

We believe that this is a proper business activity similar to the sale of books and the licensing of pictures to schools and that any activity, such as unauthorized off-the-air taping, which interferes with this legitimate business operation is a clear violation of the law.

Moreover, it is our understanding of the law that the concept of "fair use" does not condone acts by users which would injure or restrict a proper business activity of the copyright proprietor.

Nevertheless, I do not want to state our position without indicating our sensitivity to the interests of educators in reasonable and economically feasible access to our broadcasts. I have some suggestions which, because of time restrictions, I will only briefly outline at this time:

1. School systems should work through state-wide or regional consortia to obtain video cassette copies of network broadcasts which these central agencies either have been authorized to make, or which they have acquired from a legitimate licensing authority. The networks and their distributors should encourage these arrangements which can very substantially reduce the cost of obtaining network programs. Some of this is happening now.

46-894-79

2. The broadcast networks should continue to work closely with the major educational organizations such as AECT and others, so that there is proper dissemination of information on how to lawfully obtain copies of network programs.

3. Educators should be aware of various policies at CBS and other networks which permit, under license, off-air taping of daily hard news broadcasts. There are very nominal license fees involved to obtain access to this vary valuable news material. I urge educators to exercise their imagination on the many ways this current news material can be utilized effectively in the classroom.

These above mentioned positive approaches should be the focus of your desire to obtain access to network programming, especially during the next five years. They will yield many more results and involve far fewer disputes than arise from an attitude which constantly dwells on "how much can we get away with under the fair use doctrine"?

At some point in the future, when the video player population in schools comes close to the 16mm projector population, we should come together and reassess the question of using broadcasting as a delivery system for educational materials. At that point, there may be some economic feasibility for an off-the-air licensing policy for many more of our broadcasts.

Then again, the advent of the video disk may provide new, inexpensive, ways of obtaining video instructional materials. Until then, I urge that we all act responsibly-respecting each others rights and needs and looking for ways of providing machinery for taking advantage of the new video technology. Let us not now rush to judgment.

Thank you.

Mr. LEHMAN. Thank you, Mr. Bellon.

Our last network speaker will be Bob Hynes from NBC. And Bob, unlike the other speakers, is the Washington representative of NBC and handles the governmental affairs matters, rather than working in the licensing departments.

TESTIMONY OF ROBERT HYNES, NATIONAL BROADCASTING CO.

Mr. HYNES. Thank you, Bruce.

I now realize the depth of NBC's problems. It is bad enough when you are No. 3 in the ratings, but it is a heck of a note to realize that what we consider a temporary phenomenon turns out to be No. 3 in the subcommittee.

On behalf of the National Broadcasting Co., I would like to take this opportunity to thank Chairman Kastenmeier, Congressman Railsback, and every member of the subcommittee and the Copyright Office for arranging this conference and to give us the opportunity to share with you NBC's experience in making our programs available to educational institutions.

First, let me explain a few things about NBC's programing. I think they have been touched on, but let me make it clear that we produce as a company the network news programs, documentaries, and public affairs programs. And we own the copyrights to it.

Almost all of the popular entertainment programing that is carried by the network is supplied to us by independent program producers. Our customary arrangement with these owners merely grants NBC exclusive rights to broadcast programs in the United States for one or two showings.

Sports programs carried by the network are furnished to us under similar limited broadcast licenses by the various sports leagues and by individual sports programers.

As a result of these arrangements, rights to entertainment and sports programs can only be obtained from these owners in packages. NBC cannot enter into arrangements to license the use of these programs without getting the prior consent of the rights holders.

I mention this because although these programs always carry the names of the packager and the owner, many educators seem to be unaware of this fact-the fact that we do not have the right to license their use.

We believe this because we receive two or three requests each week from educators relating to non-NBC produced and owned programs. We do make every effort to see to it that educators are put in touch with someone who can act upon their request.

As I said, NBC owns the copyright and the news documentary and public affairs programing, which we produce.

We at NBC want this material to be available to educators.

And further, we believe that our current policies do make it available today.

Let me take a few minutes to explain two major vehicles we have for the distribution of our copyrighted material.

First, NBC itself grants off-the-air taping licenses for the following NBC news programs: "NBC Nightly News," "Meet the Press, "NBC News Election Coverage," and NBC's coverage of Presidential press conferences.

This educational licensing programing was initiated by NBC's information and archives department in February of 1976 in response to numerous inquiries from schools, school districts, and libraries, for permission to take NBC programs off the air.

This policy permits educators to tape and retain for 1 year NBC news programs in consideration of a payment of a very modest license fee designed to cover only our administrative costs.

We have been somewhat disappointed in the response we have received to this program. The demand for these programs by educational institutions has been so small that in the 3 years this program has been in operation, we have averaged only nine licenses.

It is an interesting concept.

NBC documentaries are also available to educational institutions. Now, I might add here, parenthetically, unlike ABC and CBS, we do not handle the licensing directly. In 1974, NBC entered into an arrangement with Films, Inc., giving them the exclusive educational distribution rights to NBC documentaries.

At that time, NBC turned over our existing inventory of approximately 350 titles which were previously available for licensing to educational institutions directly through NBC's educational enterprises division.

Since then, Films, Inc. has acquired for educational distribution approximately 10 hours of NBC documentaries each year.

The remaining available material was not acquired because either it could not be cleared for distribution, it duplicated material which Films, Inc. already had, or it was not appropriate for educational use. So all of the NBC documentaries of interest to educational institutions which could be made available were and are being made available through Films, Inc.

As a result of these two programs I have outlined, the NBC licensing program and the Films, Inc. arrangement, the bulk of NBC-owned programing is currently available.

In addition, our own news archives division can and does from time to time make shorter pieces such as a segment from the nightly news or a piece of stock footage available to educational institutions when they request.

We at NBC are currently attempting to clear programs in advance of air date for off-air taping. We recently announced a project of which we are quite proud, relating to our widely acclaimed program on children's marijuana use, "Reading, Writing, and Reefer." This program attracted widespread interest when it was first shown last December, and many schools requested cassettes from us.

We are planning to rebroadcast this program as an NBC special treat on the afternoon of April 17. Through an arrangement with Films, Inc., we have offered educational institutions the opportunity free of charge to tape this program off the air.

Promotional material has been sent out to the schools through the educational magazines. The schools will simply need to complete a short, simple form and mail it to Films, Inc.

No other requirements, no charge.

We are interested in seeing how many schools will respond. We may learn something interesting from this experimental concept that we have embarked upon.

This project required not only the cooperation of Films, Inc., but also required NBC to clear the program.

This raises one of the several problems I would like to mention today which we face at NBC when making programs available.

First, clearances. In order to clear a program, we must fulfill our obligations to writers, actors, and others who helped to create the program. We have obligations under AFTRA agreements, the Writers Guild agreements, and other union agreements which must be considered.

In addition, often, our contract with a producer or other talent used in a program may entitle them to additional remuneration if the program is, in fact, licensed.

Finally, we must independently clear rights to graphic works or to music which included in the program.

The cost in meeting these obligations often is not small. And I should add that the costs are not just in dollars, but in personnel and time.

In addition to these obligations to unions and talents, we have another problem which must be faced in making a decision to make a program available.

From time to time, though I hope not too often, our programs are subject to litigation or to FCC investigation.

We must always be certain that a program which, for example, contains allegedly defamatory material or is a subject of a fairness complaint, is not made available.

We cannot risk the allegations of a supposedly damaged party of a willful additional defamatory act or contempt for the FCC which might result if we were to allow one of these programs to be reshown after we had received notice of a problem.

Often, we don't get a complaint immediately after the program is shown. This is one of the reasons why we make our programs available through the licensing arrangements I have already outlined. We must have a mechanism for retaining a sufficient amount of control over our program so as to make it possible for us to stop the distribution of a program when it has become the subject of a lawsuit, regulatory activities, or some other legal problems.