We also must be assured that some real control is exercised over the use of our programing.

This raises the third problem that we face. We must maintain the integrity of our programing. Many of our documentaries, for example, contain controversial issues. We have to be sure that NBC does not inadvertently, through subsequent editing of the programs, distort this meaning and defeat their objectivity or by the contest in which the programs are used, become associated with special interest groups on one side or another of these controversial issues.

This is another reason why we make our programs available through the orderly arrangements I have outlined.

In closing, I would like to say that we at NBC want our programs to be available to educational institutions who want to use them. We believe that is now the case under the systems I have already outlined. I have tried also to describe for you some of the problems we face in making the programs available. We are more than happy to explore these questions with you.

And again, I would like to thank the subcommittee, Copyright Office, for making it possible for us to be here today with you. Mr. LEHMAN. Thank you. [Applause.]

Next, we are going to move on to the presentations by public broadcasting. But I would like to say that to the extent that we move through those before the scheduled 1:15, I think we will proceed right on into the beginning of the educational presentations so that we can have our lunch at 1:15.

So people who are going to be making those early educational presentations might want to keep that in mind if there is time before lunch.

So first, I will call on Eric Smith who is counsel of the Public Broadcasting Service, to give the point of view of that organization. And then we will have individual presentations following that.

TESTIMONY OF ERIC H. SMITH, PUBLIC BROADCASTING SERVICE

Mr. SMITH. PBS is a private, nonprofit company, governed by 156 public television licensees operating 291 transmitting stations throughout the United States and its territories.

PBS does not produce programs, but functions on behalf of its members to distribute programs of high quality and national significance to all those stations for use at their option.

PBS also represents the concerns and interests of those stations at the national level.

We appreciate the opportunity to appear here today on the critical issue of the use of off-air recorded television programs for educational purposes.

Public television grew from educational roots. Beginning in 1952, local educational television stations were created to serve primarily the instructional and educational needs of each local community. While the scope of the services performed by public television has expanded over the last 25 years to serve also the broad cultural and informational needs of our society, virtually all public television stations continue to provide district services to the educational community.

Indeed, over half of all the local stations are licensed to, and governed by, educational institutions-colleges and universities, State boards of education, and local school boards.

Instructional programs designed in cooperation with local and regional educational agencies represent almost 30 percent of the total broadcast hours of all stations combined.

Eight out of 10 stations provide school services, and 9 out of 10 offer postsecondary services, including courses for college credit, professional and inservice training, and formal adult education.

All of these stations produce and/or broadcast programs which have substantial educational content; there are programs of historical significance "The Adams Chronicles," "The Age of Uncertainty," "The Ascent of Man," and programs on literature "The American Short Story," "Anyone for Tennyson," "The Scarlet Letter."

Public television produces and broadcasts the finest in performance and drama programs, useful to the student of music, theatre, and dance, and public affairs programs useful to the student of political science and current events.

A great many of the programs on public television, and television generally, are being used by educators to instruct their students. Public television's mandate to serve both the formal and informal educational needs of the American public has been confirmed year after year by Congress and by the State and local governments which provide a major portion of the system's financial support. The system has continued to encourage the greater use of the television medium in educational contexts, and its use is growing.

In a recent study by the Corporation for Public Broadcasting, in conjunction with the National Center for Education Statistics of the use of television in elementary and secondary schools during 1976–77, it was estimated that of the 2,275,000 teachers teaching some 46 million students within the ambit of the study, 950,000 used television.

It was found that of the 20 million students who used television at all, 15 million of them received a regular portion of their instruction by television during that year.

It appears that these startling numbers will grow further.

This same study further provided some insight into the use of television programs in schools through off-air recording. Of the 90,000 school buildings encompassed within the study, 63,500 had television programing available through all sources including off-air recording. Of these, an estimated 25,000 buildings contain at least one videotape recorder; and in 80 percent of these buildings, off-the-air taping was done.

This would represent over 500,000 teachers, teaching almost 11 million students with television programs taped off the air.

There is no doubt that the technology of off-air recording-in simplest terms, recording broadcast programs for later use in the classroom-is an efficient mechanism for delivery of programs to the educational user and, as such, may be of avantage to both the producer of materials as well as the user.

Since the public television system functions as a program producer, and thus, as copyright owner of valuable materials, and also identifies with the needs and interests of the educational user, the role that public television will play in the complex process of balancing the needs of creator and user is clearly unique.

Institutionally, the system is both creator and user. We believe this dual role defines our perspective on this problem-the kind of balanced perspective which will be necessary in resolving the off-air recording issue.

We believe we have already made some significant advances within the public television community. In 1975, in recognition of the needs of education, PBS and its audiovisual arm, the Public Television Library, joined with the principal noncommercial distributors, the Agency for Instructional Television and the Great Plains National Instructional Television Library, in adopting a policy authorizing schools to record most of their programs off the air for use within a 7-day period.

We established, through the Public Television Library, a clearinghouse for information on licensing material beyond this period, and for many programs PTL licenses those rights.

While virtually all programs produced within public television are available for 7-day off-air use, programs acquired from independent sources were often not available because of the unwillingness of those sources to grant us this authorization right.

It should be noted that we were specifically authorizing such off-air use for most of our programs even though the "fair use" doctrine might already be applicable.

In the context of section 118 of the new law, this 7-day principle was enacted to enable us to authorize off-air use with respect to nondramatic music and visual arts material included in our programs.

The growth in the use of videotape recording technology, combined perhaps with the development of satellite distribution-already in place in public television and in prospect in commercial television as well-offers unique opportunities for services to be provided to education.

Rapid technological growth, much of which public television has been directly involved in-captioning for the hearing impaired and multichannel television sound, for example-presage major changes in the flow of information in our society.

The ability to adapt this technology to the needs of education, both formal and informal, has generated and will continue to generate new demands on our information systems, including our copyright system. The question, therefore, of access by education to the use of television programs should not be regarded as simply a narrow copyright question.

Because the issues are broader than copyright itself, we would urge that some of the rigidities that have developed in the copyright system be given a fresh look to see if the old doctrines cannot be adapted to take care of new problems.

The area of off-air recording requires just such a fresh approach— particularly to the question of "fair use."

By way of disclaimer, I must add that the public television system has not adopted a definitive position on the precise application of "fair use" in this area. The PBS Board will, however, specifically address this question in the near future.

However, we can suggest a broad conceptual framework from our unique vantage point which may assist in resolving this important question. We would identify the following as key concepts:

As a starting point, the fair use doctrine does, and should, apply to the educational use of television programs through off-air recording.

This committee, the subcommittee, has said as much, and it is in the legislative history.

Second, the fair use standard should be simple, easy to understand, and easy to administer by teachers and school administrators.

We would suggest that the sheer ease of off-air taping, and the great difficulties of enforcement against those who without a license go beyond whatever is the fair use limit, argue strongly for the simplest possible definition so that teachers will know exactly where they stand and so that there be no doubt in anyone's mind what would constitute an infringement.

Most of the less egregious cases of school misuse of off-air taping are justifiable in part because of the complexities of the fair use doctrine.

In this regard, it is important that some of the concepts normally associated with fair use, such as spontaneity, the question of whether the doctrine can apply to a whole work, et cetera, should not becloud the issue.

Fair use began as, and should continue to be, an equitable doctrine, adaptable, like our Constitution, to new times and new circumstances.

Third, and for these reasons, we think that the fair use standard should be denominated as a simple period of time for use of a program recorded off the air. Upon expiration of that period, there should be no doubt that a license is required and that failure to obtain one is a clear infringement.

Fourth, the period of time must be long enough to test the program or series with students, and long enough that a license can practically be obtained within that time. It should be long enough to permit use of timely materials where their timely nature would not permit obtaining a license in any event. But the period should be short enough so as not to hinder the ability of the producer to license the materials to schools for a fee.

In this regard, it must be recognized that the only return on their investment that many producers can hope to achieve is from school licensing.

Clearly, the fixing of such a period will be a difficult task and will require compromise by both proprietors and educators. The proprietors will have to sacrifice the ability to sell some licenses; but, in return, they should obtain a readily enforceable standard and the cooperation of the educational community in a policing effort.

For their part, educators will not be able to use many programs as they would desire without obtaining a license but will know finally what is and is not permitted.

We are hopeful that the ad hoc committee can fashion such a compromise.

Fifth, whatever fair use standard is created, in the final analysis, it will not resolve the problem of effective use of television programs in schools. While fair use must be an important element of an excess system, it is still only an element. The ad hoc committee must give equal attention to the feasibility of improved licensing mechanisms. It is apparent that in an educational context, effective use means one or two semesters, and this inevitably presumes that extensive licensing must be undertaken. But by looking at this overall question as one of fair use plus access through licensing, the germ of a compromise may begin to emerge.

As long as teacher access is cumbersome, time-consuming, and expensive due, in part, to the low volume of licensing-use beyond the fair use period without licensing will be encouraged.

But if a more efficient method were created, then the incentive to infringe would be reduced.

Moreover, it is quite likely that a balanced fair use plus access system will increase the volume of licensing to the proprietor's benefit. The programing is readily available without delay, and license fees can decrease since tape transfer, delivery, and distribution costs need no longer be borne by the proprietor.

The Airlie Conference generated some creative suggestions in this area, and it was apparent that better licensing mechanisms alone would benefit both proprietors and educators. PBS will participate actively in working to create improvements in this area.

We believe that these basic concepts can form the basis of a resolution of this difficult question. In the end, tough compromises will have to be made by proprietors and users. But, once made, we believe both sides will stand to gain. Most important, the public will gain.

It is just such a complex process of balancing the needs of creators and users which is the ultimate objective of a sound copyright system. Thank you very much. [Applause.]

[The prepared statement of Mr. Smith follows:]

STATEMENT OF ERIC H. SMITH, Deputy General Counsel, Public BROADCASTING SERVICE

Mr. Chairman and members of the committee, I am Eric Smith, deputy general counsel of the Public Broadcasting Service. PBS is a private nonprofit corporation governed by the 156 public television licensees operating 281 transmitting stations throughout the United States and its territories. PBS does not produce programs but functions, on behalf of its members, to distribute programs of high quality and national significance to all public television stations for use at their option. PBS also represents the concerns and interests of its stations at the national level.

We appreciate the opportunity to appear before the committee on the critical issue of the use of off-air recorded television programs for educational purposes. Public television grew from educational roots. Beginning in 1952, local educational television stations were created to serve primarily the instructional and educational needs of each local community. While the scope of the services performed by public television has expanded over the last 25 years to serve also the broad cultural and informational needs of our society, virtually all public television stations continue to provide distinct services to the educational community. Indeed, over half of all the local stations are licensed to, and governed by, educational institutions-colleges and universities, state boards of education and local school boards. Instructional programs designed in cooperation with local and regional educational agencies represent almost 30 percent of the total broadcast hours of all stations combined. Eight out of ten stations provide in-school services and nine out of ten offer post-secondary services including courses for college credit, professional inservice training, and informal adult education. All of these stations produce and/or broadcast programs which have substantial educational content; there are programs of historical significance the Adams Chronicles, the Age of Uncertainty, the Ascent of Man-and programs on literature-the American Short Story, Anyone for Tennyson, the Scarlet Letter.

Public television produces and broadcasts the finest in performance and drama programs, useful to the student of music, theater, and dance, and public affairs programs useful to the student of political science and current events. A great many of the programs on public television, and television generally, are being used by educators to instruct their students.

Public television's mandate to serve both the formal and informal educational needs of the American public has been confirmed year after year by Congress and by the state and local governments which provide a major portion of the system's financial support. The system has continued to encourage the greater use of the television medium in educational contexts, and its use is growing.