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 programming available through all sources including by off-air recording. Of these, an estimated 25,000 buildings contain at least one videotape recorder and in 80 percent of these buildings, off-theair 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 advantage 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 audio-visual arm, the Public Television Library, joined with the principal non-commercial 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 seven-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 seven 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 seven-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 doctine 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 legisltive 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 gregious 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, etc., 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 imple 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 access 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 wil increase the volume of licensing to the proprietor's benefit. The programming 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.

Mr. LEHMAN. Thank you, Eric.

Now we will hear from a representative of the three television stations within the public broadcasting system which are responsible for most of the actual production of programing. And they have selected Robert Gold, who is with WNET, New York, to present their case.

TESTIMONY OF ROBERT GOLD, WNET-TV, NEW YORK

Mr. GOLD. I am sure the educators in the audience would like to get a shot or two in before lunch. So I will go right to my prepared remarks.

I am general counsel at WNET.

I am also speaking today on behalf of Boston's WGBH; and KCET, which is located in Los Angeles. Both of these prominent public television stations have endorsed our remarks.

WNET is a noncommercial, community-owned public television station licensed to Newark, N.J., and serving its 300,000 contributing members and millions of other viewers in the tristate New York City

area.

We appreciate the recognition by this committee and the Copyright Office that stations like WNET, WGBH, and KCET, which produce and supply programs broadcast by the more than 270 PBS stations, might provide a special perspective to these proceedings.

The public broadcasting system's strength is in part derived from the diversity of its programing sources and the autonomy of local station managements. Although no one station can adequately represent the interests of all PBS members, we do hope that our brief remarks will reflect the positions of many of the other major producing stations who could not be in attendance.

We do not, however, speak solely from the vantage point of a producer of nationally distributed programs, although we are a principal provider of prime-time PBS programs, such as the widely acclaimed "Great Performances" series, "The Adams Chronicles," "Bill Moyer's Journal," and the heralded in-depth news program, "The MacNeil/ Lehrer Report," which is coproduced with WETA and originates nightly from studios in both New York and Washington.

We also speak today as a community-based educational station with over 17 years of experience in providing instructional programs to local schools through our School Television Service. This past year close to 40 percent of WNET's total broadcast week was devoted to children's programing, including 35 hours each week of in-school classroom courses which reached approximately 650,000 students in 1,700 schools.

Our school service broadcast programs produced or distributed by many organizations represented at this meeting. WNET's staff conducted numerous seminars and workshops, attended by some of the 9,000 teachers who participate in this service; and we also published manuls to assist teachers in course selection and scheduling.

In addition, WNET's Office of Higher and Continuing Education is producing and broadcasting courses for college credit by adult nontraditional students who share their learning experiences in regular sessions held at local centers staffed by college instructors.

WNET, therefore, has a dual mandate: To produce innovative and stimulating cultural, public affairs, and entertainment programs for its general audience; and to maintain and expand its direct classroom service to our viewers and colleagues in the educational community. In striving to fulfill this dual mandate, we have examined the thorny issues which are involved in the school off-air taping controversy and have wrestled with the following basic policy question: As a national producer, with program funding always in short supply and production expenses ever rising, should we seek to maximize our ancillary income by withholding off-air taping rights, or do we have a superior obligation to enable students to view our programs for a limited time in classroom settings withour financial benefit to us and even at the risk of reducing our eventual income?

WNET has determined that despite the financial consequences, we should permit the school community to enjoy certain rights in our programs. As the recent Carnegie Commission stated: "We believe it is time to launch new efforts to tap the power of broadcasting-for learning. The issue is not whether public broadcasting has a responsibility in education, but how best to carry out that responsibility." WNET looks to the establishment of fair industrywide school offair taping guidelines as a small first step in meeting this responsibility. Accordingly, we have concluded that these issues can most effectively be resolved through the proposed ad hoc committee which is to be convened subsequent to this meeting.

Our initial suggestion to this committee would be to expand the traditional definition of fair use and to use a fresh approach in seeking a consensus. The doctrine of fair use has been called both obscure and the most troublesome in the whole law of copyright; and no court, to our knowledge, has previously ruled that reproduction of an entire audiovisual work-even by a school-should be condoned.

Section 107 of the new Copyright Act merely codified the previous leading judicial decisions. Therefore, since the new committee will be establishing guidelines which may authorize limited copying of entire works by schools without permission of the copyright owner, we believe that a limited departure from the conventional fair use concept is essential.

Secondly, we would embrace the right of teachers at nonprofit educational institutions to spontaneously tape entire programs off air for classroom use during a 7-day period without a fee and without the copyright owner's permission, We recognize, as did those who participated in the 1977 Airlie Conference, that the 7-day period neither completely satisfies the schools-who claim they need more time to fit currently broadcast programs into future curriculum schedules-nor satisfies the producers and distributors who argue that their income is thereby reduced.

We would respond by simply reminding the interested parties that some dissatisfaction is often the byproduct of negotiation and compromise.

As a footnote, we would ask the committee to consider whether occasional programs should be exempt from these school replay rights whenever production financing cannot be completed without agreement by the producer to withhold these rights from the schools.

Thirdly, we would endorse the formation of a clearinghouse where schools could receive the names and phone numbers of copyright

owners or distributors and, whenever the copyright owner or distributor so elected, also be provided with the terms and conditions of a licensing agreement which would become effective on the eighth day after broadcast.

We would look to the educators on this new committee to devise reasonable policies for insuring that tapes would either be erased after the seventh day or be retained by the schools under a license agreement. Finally, we oppose the adoption of any compulsory license arrangements for two basic reasons.

First, WNET has enjoyed an exemplary working relationship with over a dozen creative and technical unions and guilds. Some of these guilds in fact have already expressly permitted 7-day school replays of programs created by their members, without requiring additional payments. We have applauded this collaborative effort.

However, guild members, as well as owners and creators of underlying literary and artistic properties, justly are required to be paid additional compensation once programs leave the school 7-day replay sphere and enter the conventional audiovisual market.

The cumulative additional payments for a major production are substantial and far exceed the producer's licensing fees received, for example, if only one school happened to exercise its compulsory license. Therefore, the copyright owner must be in the position to decide whether it is economically feasible to distribute a program to audiovisual consumers on the eighth day after broadcast.

In addition, the existence of a compulsory license might ultimatelyand even inadvertently-result in a loss of valuable programing for our general viewers. We foresee this inevitably occurring since certain performers, producers, and distributors, who are currently involved in public television, happen to derive their primary revenues from the educational community.

It is likely that these individuals and organizations would find a compulsory license to be a serious economic threat and would elect not to appear on television in order to preserve the bulk of their incomes. We therefore believe other licensing alternatives should be explored to avoid jeopardizing these established programing sources.

In closing, we would suggest that the new committee immediately begin working toward the adoption of industrywide guidelines, bearing in mind the following statement from the Carnegie Commission report: The potential of television and radio for learning is only beginning to be explored. Technology is advancing so rapidly that it is difficult to predict in what ways it will shape these media. Even now, however, it is clear that with careful planning, skillful execution and thorough evaluation, telecommunications will play an increasingly fundamental role in the learning process of Americans of all ages and backgrounds.

Thank you. [Applause.]

[The prepared statement of Mr. Gold follows:]

STATEMENT BY ROBERT GOLD, WNET-TV, NEW YORK

Mr. Chairman, and members of he Committee, I am Robert Gold, General Counsel of WNET. I am also speaking today on behalf of Boston's WGBH and KCET which is located in Los Angeles. Both of these prominent public television stations have endorsed our remarks.

WNET is a noncommercial, community owned public television station licensed to Newark, New Jersey and serving its 300,000 contributing members and millions of other viewers in the tri-state New York City area. We appreciate the recognition