Five: The good teacher reshows the program in whole or in part when necessary to recheck on areas of disagreement or to clarify issues which were not clear to the students in their initial viewing. Reshowing the program is also needed for students who were absent when the program was first shown. There are also many times when the entire class does not need to see the program, but when a small group in the class does need to see it. The topic of the program is relevant to a project being undertaken by the small group, but not necessarily relevant to the entire class.

In colleges and universities, faculty members are involved about equally in research and teaching. For classroom purposes, they frequently have to supplement textbooks, collections of materials, and library reserve shelves with excerpts from newspapers, journals, and books.

I would like to go into printed material for just a moment before making the transition.

The need for the excerpts to be used in classrooms often arises under circumstances that preclude the seeking or obtaining advance consent from the copyright owner.

Similarly, they need to take copies of works or parts of works to their offices for use in their course preparation, research, and publications. As the volume of works and materials that forms the basis of scholarly research, publication, and teaching has proliferated, the need to have copies readily available at work desks and in classrooms has commensurately increased.

This kind of copying is as fair to the copyright proprietors as it is essential to the users. There is no profit motive or commercial advantage. The kind of copying that is fair use does not result in incorporation in compilations of teaching materials or publications to be distributed and sold in the future.

Consequently, the kind of copying defended here does not diminsh sales or potential profit of the publishers and authors; there is no significant likelihood that the scholar or teacher would purchase the material or require a classroom of students to do so.

Indeed, when one looks at printed materials, there is reason to believe that the distribution to students of copies of excerpts from copyrighted works, and quotation and citation of them in scholarly publications, has a promotional effect that leads to later purchases of the entire work of subscriptions to periodicals that would not otherwise occur. It is more than fair to the copyright owner, as it enhances the economic value of the work.

Now, off-the-air recording these arguments are even more cogent than for printed material. Usually it will be impossible for a teacher to obtain a copy of a television broadcast from a producer for showing to students within a day or so of the airing, although that may be the only way to take advantage of the impact of the program.

Also, letting the program be shown in a classroom within the next couple of days, rather than forcing students to view it during evening or nighttime hours, does not reduce the profitability to the producer. The urgent needs of research and classroom use do not involve rebroadcasting programs. Nor do they involve the planning and building of a long-term collection of records; the fairness of that kind of copying is a separate question from the fairness of relatively spontaneous copying.

I would like to move now to what I call some of the frustrations of those of us who represent education.

The rhetoric which surrounds the discussion of fair use and off-theair taping tends to anger many ad hoc members. We hear commentsabout piracy, that we are stealing someone's property, et cetera. The education community, when it uses the term fair use and off-the-air taping, is not engaged in profit making endeavors nor is it going to use the materials in question before an audience of the general public. It should be borne in mind that the industry also actively solicits education's endorsements of its products.

On the one hand, we hear complaints that the industry has exclusive rights to the program "Roots," and on the other hand we see each and every evening a note appear on the television screen that the program was "Recommended by the National Education Association."

It did not come by per chance, by pure guess or accident.

The education community finds itself in another dilemma on the issue before this committee. If we wish to use a work in its entirety, the industry says that the sheer amount used precludes the doctrine of fair use from applying. If, on the other hand, the program is excerpted-if that is even possible-then industry complains that the journalistic product is injured and perhaps its reputation.

Thus we must be prohibited from excerpting. In reality, off-the-air taping is not a new issue nor is it a completely different one from printed copying, nor is it different from anything else which has happened with respect to the audio programs.

Tape recording of audio programs has been with us for some time and excerpts from books are considered to be scholarly research.

The last one which I have added literally in the back of the roomI call this one treaties. And we are so naive. We really don't understand contracts. And we have no belief in what collective bargaining is about.

Collective bargaining is a way of life with us. Indeed, many State laws on collective bargaining are far more expensive than bargaining that you do under the National Labor Relations Act.

If you had to bargain on management prerogatives, if you had to bargain on such things as who your superviser is going to be, I would think you would not believe we are so naive. We are making our agreements with the NEA and the AFT in coming before you.

Sometimes we think perhaps you should be making your agreements with your guilds before coming before us.

Agreements relating to off-the-air taping do exist in the field of public broadcasting. For example:

Public Broadcasting Service-I will name a few of the items: Students, teachers, staff of nonprofit, accredited institutions within the coverage area may make copies.

School rerecording is authorized for 7 days.

Users may record and reuse materials for balance of school year. The records may not be given away, loaned, sold, et cetera. Agency for Instructional Television:

Students, teachers, staff may make copies.

Rerecording is authorized in classroom auditoriums or for laboratory use.

The copy may not be given away, loaned, sold, et cetera.

School rerecording is authorized for a 7-day period.

Agencies authorized to use the AIT series may permit their school systems to retain rerecordings for entire school year, September through June.

I have copies of these agreements which can be supplied for the record, if necessary.

In conclusion, we stand ready, willing, and able to cooperate in working out an agreement as to how much off-the-air taping qualifies for fair use as we did in developing the questions in the case of printed materials. Indeed, I wish to go on record as a member of that negotiating team in saying that we worked with honorable professionals when we negotiated with the American Association of Publishers and the Authors League in that endeavor.

Being ready, willing, and able to sit down and discuss the limits of off-the-air taping and fair use does not mean we are willing to abandon our resolve to protect the availability of copyrighted materials. The state of the law is complex and we have our options, whether it be through Congress or the courts, or whether it be through the copyright law, antitrust laws or the Federal Communications Act.

We are willing to enter into good faith negotiations, which in the tradition means meeting at reasonable times and reasonable places within an effort to reach an agreement.

I would also point out one last comment. Under no State law or Federal-National Labor Relations Act is it an unfair labor practice when the negotiations come to an impasse.

Thank you.

[Applause.]

[The prepared statement of Mr. Steinhilber follows:]

STATEMENT OF AUGUST W. STEINHILBER

INTRODUCTION

Mr. Chairman, I wish to thank you and the distinguished Ranking Minority Member of this sub-committee for allowing us to present our testimony before your sub-committee.

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

Indeed, if we were discussing collective bargaining or tuition tax credits or the Labor/HEW appropriations, you would not see the degree of agreement which this statement represents.

It must be pointed out, however, that the make-up of the Ad Hoc Committee is such that no statement can be said to reflect all of the views of all the members. This is a consensus between the hawks and doves-the hard liners and the negotiators.

The Ad Hoc Committee is not coming before this Committee with a posture which seeks under the banner of "fiair use" to tape everything off the air, use it without limitations, and retain same indefinitely. Our not-for-profit status does not give us carte blanche authority to use any broadcast in any way which we deem proper.

CONSTITUTIONAL CONCERNS

Before looking directly at the issue of off-the-air taping, video cassettes and the like, it behooves us to again look at the constitutional basis of the copyright law. Article I Section 8-the Congress shall have the Power *** To promote the Progress and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

With this constitutional authorization, the Congress did enact the Copyright Act of 1976. It is important to remember 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 prevent 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 property right in the traditional sense of that term. The Constitution looks not for the benefit of individual authors but to the benefit of the public, ergo, the threshold question must be asked whenever copyright interpretations are developed "Does the system best serve the needs of the public?"

LEGAL PHILOSOPHY

The constitutional limits on copyright are buttressed by other philosophical points of view in American Jurisprudence. First, 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. We are now discussing combining copyright with the industry obtaining licenses for the exclusive use of the airways. Finally, copyright restrictions are similar to servitudes on property which historically were frowned upon.

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. 1. 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 in an opera, when only an excerpt is needed. Programs of this nature appear on both commercial and non-commercial broadcasting.

2. The good teacher previews a given television and radio program before using it with his/her class. Sometimes a teacher is unable to view the 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 recordingwithout 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! 3. 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.

4. 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.

5. The good teacher re-shows the program in whole or in part when neccesary to re-check on areas of disagreement or to clarify issues which were not clear to the students in their initial viewing. Re-showing the program is also needed for students who were absent when the program was first shown. There are also many times when the entire class does not need to see the program but when a small group in the class does need to see it. The topic of the program is relevant to a project

being undertaken by the small group but not necessarily relevant to the entire class.

In colleges and universities, faculty members are involved about equally in research and teaching. For classroom purposes, they frequently have to supplement textbooks, collections of materials and library reserve shelves with excerpts from newspapers, journals and books. The need for the excerpts to be used in classrooms often arises under circumstances that preclude the seeking or obtaining advance consent from the copyright owner.

Similarly, they need to take copies of works or parts of works to their offices for use in their course preparation, research and publications. As the volume of works and material that forms the basis of scholarly research, publication and teaching has proliferated, the need to have copies readily available at work desks and in classrooms has commensurately increased.

This kind of copying is as fair to the copyright proprietors as it is essential to the users. There is no profit motive or commercial advantage. The kind of copying that is fair use does not result in incorporation in compilations of teaching materials or publications to be distributed and sold in the future.

Consequently, the kind of copying defended here does not diminish sales or potential profit of the publishers and authors; there is no significant likelihood that a scholar or teacher would purchase the material or require a classroom of students to do so.

Indeed, when one looks at printed materials, there is reason to believe that the distribution to students of copies of excerpts from copyrighted works, and quotation and citation of them in scholarly publications, has a promotional effect that leads to later purchases of the entire work or subscriptions to periodicals that would not otherwise occur. It is more than fair to the copyright owner, as it enhances the economic value of the work.

Now for off-the-air recording these arguments are even more cogent than for printed material. Usually it will be impossible for a teacher to obtain a copy of a television broadcast from a producer for showing to students within a day or so of the airing, although that may be the only way to take advantage of the impact of the program.

Also, letting the program be shown in a classroom within the next couple of days, rather than forcing students to view it during evening or night-time hours, does not reduce the profitability to the producer. The urgent needs of research and classroom use do not involve rebroadcasting programs. Nor do they involve the planning and building of a long-term collection of records; the fairness of that kind of copying is a separate question from the fairness of relatively spontaneous copying.

The rhetoric which surrounds the discussion of fair use and off-the-air taping tends to anger many Ad Hoc members. We hear comments about piracy, that we are depriving people of a living, that we are stealing someone's property, etc. The Education community, when it uses the term fair use and off-the-air taping, is not engaged in profit making endeavors nor is it going to use the materials in question before an audience of the general public. It should be borne in mind that the industry also actively solicits education's endorsements of its products.

On one hand, we hear complaints that the industry has exclusive rights to the program "Roots" and on the other hand we see each and every evening a note appear on the television screen that the program was "Recommended by the National Education Association".

The education community finds itself in another dilemma on the issue before this Committee. If we wish to use a work in its entirety, the industry says that the sheer amount used precludes the doctrine of fair use from applying. If, on the other hand, the program is excerpted (if that is even possible), then the industry complains that the journalistic product is injured and perhaps its reputation.

Thus we must be prohibited from excerpting. In reality, off-the-air taping is not a new issue nor is it completely different. Tape recording of audio programs has been with us for some time and excerpts from books are considered to be scholarly research.

Agreements relating to off-the-air taping do exist in the field of public broadcasting. For example:

Public Broadcasting Service-I will name a few of the items:

Students, teachers, staff of non-profit, accredited educational institutions within the coverage area may make copies;

School rerecording is authorized for seven days.

Great Plains National:

Users may record and reuse materials for balance of school year;