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 programming 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 postions 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 indepth news program, The MacNeil/Lehrer Report, which is co-produced 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% of WNET's total broadcast week was devoted to children's programming, including 35 hours each week of in-school classroom courses which reached approximately 650,000 students in 1,700 schools.

Our school service braodcast 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 manuals 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 non-traditional 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 without 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 industry-wide school off-air 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 troblesome 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 non-profit educational institutions to spontaneously tape entire programs off air for classroom use during a seven-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 seven-day period neither completely satisfies the schools-who claim they need more time to fit currently broadcast programs into future curriculum schedulesnor satisfies the producers and distributors who argue that their income is thereby reduced.

We would respond by simply reminding the interested parties that some dissatification is often the by-product 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 ensuring 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 seven-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 seven-day replay sphere and enter the conventional audiovisual market.

The commulative 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 ultimately and even inadvertently-result in a loss of valuable programming 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 programming sources.

In closing, we would suggest that the new committee immediately begin working towards the adoption of industry-wide 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 processes of Americans of all ages and backgrounds."

Thank you.

Mr. LEHMAN. In keeping with the spirit of cooperation that our subcommittee has had over all the years since, as Congressman Kastenmeier mentioned, 1962, the Copyright Office, which, unlike most substantive agencies of Government, is actually in the legislative branch; therefore, perhaps more available to us and, more appropriately, available to us than some of the executive branch agencies.

I would like to let Ivan Bender from the Copyright Office, who has done a lot of work on this program, share some of the burden of introducing the speakers.

So now that we are ready to move on to the educational representatives for about the next half hour, I will let Ivan introduce them.

We will go on and see how far we can get until 1:15, when the cafeteria downstairs is open. Then, we will break for lunch and come back and finish up for the rest of the afternoon.

Ivan, if you want to continue.

Mr. BENDER. Thank you, Bruce.

We are going to switch slightly the order of the educational presentations in order to convenience some of the presenters. So this switch is being done at their request. Therefore, the first presenter, and one whom I would like to introduce at this point, is August Steinhilber, who is associate executive director and legal counsel of the National School Boards Association, NSBA.

NSBA represents some 16,000 school districts and has a variety of members which make up its organization in terms, not only in the fact that some are elected and some others are of independent origin, but also that the typical school board member is, for the most part, a noneducator and is made up, in many instances, of attorneys and other professional types.

Gus is also at the present time chairman of the Ad Hoc Committee on Copyright Law, which ia a coalition of nonprofit organizations representing elementary and secondary education, as well as higher education, public and school libraries, and other scholars.

That's a whale of a job, Gus. And I know that you are up to it, and you will keep us from thinking about our hunger pangs.

TESTIMONY OF AUGUST W. (GUS) STEINHILBER, AD HOC COMMITTEE ON COPYRIGHT LAW, ACCOMPANIED BY CHARLES ADAMS AND ERLING JORGENSEN

Mr. STEINHILBER. Thank you very much.

With me this morning-no; it is no longer morning we brought with us some individuals who are very important, especially when it gets to the question-and-answer period: Charles Adams, supervisor of media services of Phoenix Union High School in Phoenix. We brought Mr. Adams with us because he was one of the individuals who we found had a very interesting experience. And that is the Federal Bureau of Investigation decided that the media services for the Phoenix school district were subject to perhaps criminal prosecution. And before the case was dropped, he went through quite a bit of living hell, as the saying goes.

We also brought Bernard Freytag, who is with the National Education Association, a classroom teacher in Bucks County, Pa., and Erling Jorgensen, who is with Michigan State University.

I wish to thank all of you, especially the chairman and the distinguished ranking minority member of the subcommittee, for allowing us to present this statement.

As I said, the testimony which is about to be given, is on behalf of the Ad Hoc Committee on Copyright Law. This is a coalition of school, college, and literary groups that is very unique. It includes labor and management, elementary and secondary education, higher education, public education, private education, classroom teachers, media specialists, college professors, et cetera.

Indeed, if we were discussing collective bargaining, which we did literally down the hall in 2175 before the House Committee on Educa

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tion and Labor, or if we were on another floor of this building discussing tuition tax credits before the Ways and Means Committee, or before the Labor-HEW Appropriations Committee, also down the hall, you would not at all in any way see any degree of common agreement on what the testimony would be.

It is, indeed, a very unusual and unique organization to have groups of this varied methods in philosophy to present a unified statement. But I would say as varied as we are, the statement may reflect the views of all, but perhaps maybe not reflect the views of any.

This is somewhat of a consensus between what I call the hawks and the doves, the hardliners and the negotiators.

But I would also add that the ad hoc committee in not coming before this group with a posture which seeks under the banner of fair use to tape everything off the air, use it without limitations, and retain the same indefinitely into the future.

Our not-for-profit status does not give us carte blanche authority to use any broadcast in any way that we personally deem necessary. Before we go into the question of what we would like, what our needs are, I think you ought to be aware of the legal philosophy that we proceed to this group with. And it may agree or disagree with your personal philosophy, and it may or may not disagree with that of the committee.

But nevertheless, it is important for you to understand from whence

we come.

First of all, I am not going to quote the Constitution back. That was already done very ably this morning. But I would say with that Constitution and with that authorization, the Congress did enact the the Copyright Act of 1976. But what is important to remember in our position is that the principal purpose of the Constitution is to encourage the dissemination and use of writings and discoveries. If the law were so interpreted as to present dissemination, the very constitutionality of that interpretation would become suspect. It is equally important to note that the U.S. Constitution does not develop copyrights as a proprietary right and property right in the traditional sense of property rights.

The Constitution looks not only just to the benefit of authors, but to the benefit of the publisher-ergo, the threshold question must always be asked on interpretations of the copyright, "Does the system best serve the needs of the public?"

Our constitutional philosphy and the constitutional requirements on copyright are buttressed by other philosophical points in American jurisprudence.

First, I know you will not like it, but I will still say it again, as I said at Airlie House. Copyrights are akin to monopolies, and all monopolies are viewed with a degree of distrust.

When a discussion centers upon the television industry, the question of monopoly is even greater because we are now discussing the combination of copyright with an industry obtaining licenses for the exclusive use of the airways, albeit by certain stations.

Finally, copyright restrictions are similar, for those of you legal scholars, to servitudes on property going back to, I guess, the statute of qua emtorius and a few other things, but remember servitudes were always frowned upon in our jurisprudence.

Now, let's go from that to education:

Television is the most important influential teacher in our schools that is going to be joined. There is an endless opportunity. Television can do what no classroom teacher can do.

Interesting quote.

The reason it is an interesting quote was because it was given by the U.S. Commissioner of Education Ernest Boyer, speaking February 28, this week, at the banquet of the Institute of International Education here in Washington, D.C.

The off-the-air recording provisions of the copyright law should enable teachers to make reasonable use of television and radio programs in their day-to-day teaching with a minimum of delays and without additional payments. We would term this fair use. What are good teaching practices in the use of television and radio programs which should be considered reasonable uses of the medium?

The good teacher follows certain practices in the use of television and radio programs which are considered to be both reasonable and fair, as well as creative.

I would like to outline those processes.

One: The good teacher takes advantage of television and radio productions that have instructional value in his/her classroom. Typical of such programs are the BBC Shakespeare series, the Adams Chronicles, Nova, Sixty Minutes, Edward VII, the Advocates, symphony orchestras, ballets, operas, Sunday afternoon musicales at the White House, television specials such as the visit of the Vice Premier of the Peoples' Republic of China, as well as many news broadcasts.

There are times when the entire program would need to be shown to the class. There are other times, such as an opera, when only an excerpt is needed. Programs of this nature appear on both commercial and noncommercial broadcasting.

Two: The good teacher previews a given television and radio program at home at the time it is aired due to other professional and personal commitments. In such cases, the teacher needs to have the program taped off the air so it can be screened in advance of classroom

use.

No successful classroom teacher would think of using any instructional material or media, be it a television or radio program, a film, or filmstrip or recording, without first seeing it and judging its appropriateness for the learning objective desired. The preview enables the teacher to determine whether to use the entire program, an excerpt from it, and if so, what part, or not to use the program at all.

Three: The good teacher prepares himself/herself and prepares the class in advance for the program. This requires the program to be taped so the teacher can replay it to make lesson plans, develop a strategy for its use in the classroom and construct evaluation procedures to determine whether students have learned from the experience.

The teacher has the responsibility to show the class how the television relates to what they are studying.

Four: The good teacher presents the program under the best psychological and environmental circumstances possible. Among other things, this means that the teacher must use the program at the time it is most needed and not at the time scheduled by the television station. It also means that the teacher will need to use the program for each of his/her classes in the same subject, usually on the same day. Most educational systems using television for instructional purposes must rely on the recording of the programs broadcast from a central location, with replay at times that match individual school bell schedules.