The records may not be given away, loaned, sold, etc.

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, etc.;

School rerecording is authorized for a seven-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, anti-trust laws or the Federal Communications Act.

Mr. BENDER. It is 10 after, and we do have a few more minutes, but rather than launch into the second presentation, we have all been sitting a long time. We may take a few moments for people to get downstairs to the cafeteria.

In any event, we will break now and reconvene at 2:15.

[Whereupon, at 1:10, the hearing was recessed to reconvene at 2:15 this same day.]

AFTERNOON SESSION

Mr. BENDER. If everybody will please take their seats, we would like to begin the rest of the program.

To resume where we left off, the next presenter for the educational community is Dr. Howard Hitchens who is executive director of the Association for Educational Communications and Technology, AECT, whose annual meeting, incidentally, comes right on the heels of this session.

The individual membership of AECT comprises some 9,000 individuals who are primarily media specialists and educational professionals with responsibility for the use of communications and technology in schools, both elementary, secondary, and postsecondary.

TESTIMONY OF HOWARD HITCHENS, EXECUTIVE DIRECTOR, ASSOCIATION FOR EDUCATIONAL COMMUNICATIONS AND TECHNOLOGY

Mr. HITCHENS. Thank you very much.

I want to thank the chairman, Chairman Kastenmeier, the ranking minority member, Mr. Railsback, for the opportunity to participate. And I would like at the outset to indicate general endorsement of what was said before lunch by the chairman of ad hoc committee of educational organizations.

As Gus Steinhilber indicated, we are not always unanimous in everything we do, but we do have a general consensus. The membership of the association I represent is approximately evenly divided between people who work in higher education and those working in the elementary and secondary schools.

Incidentally, we have about another 20 percent of our constiuency who work in various education and training sessions.

The unanswered questions concerning the application of fair use criteria in the new copyright law to audiovisual materials of all kinds, and in particular the copying of audiovisual information off the air waves, are usually most important to our constituency. Our people are the ones who are asked daily to make copies and are expected to provide guidance to classroom teachers and faculty members in educational institutions of all kinds across the country. Therefore, the need for guidelines for off-air copying is felt very strongly by my constituency, perhaps more strongly than any other small constituency in education.

We do endorse the notion, as has been said by the committee, there is some limited application of fair use to have air copying.

Therefore, my remarks are aimed at depicting as well as possible the state of existing practice in the schools and colleges across the country in this area. I will touch briefly upon arguments for applying fair use principles to off-air copying; I'll relate some current information to demonstrate the state of existing practice, and finally, I'll provide some suggestions for formulas that might be used in arriving at guidelines for the application of fair use doctrine to off-air copying of audio visual information.

Television is the most pervasive communication medium in the history of the United States. Today I'll go quickly-there are approximately 720 commerical television stations and 269 public broadcast stations. Television signals are received in more than 73 million homes and 98 percent of our homes have at least one television set; nearly half the homes have two sets. More than three fourths of the homes are able to receive color television. There are between 700 and 1,000 closed-circuit educational television systems operating in institutions across this country besides.

They range in size from a simple camera, recorder, and monitor in a single school room to a county wide system such as we have in, for example, Broward County, Fla., or Washington County, Md. Currently there are 500 channels of instructional television fixed service in operation by 99 licensees. Most of these are serving education well.

One major finding in that survey described by Eric Smith earlier was that broadcast schedules are a major hinderance to teacher's use of television. This undoubtedly has led to the development of such alternative ways of providing TV programs as off-the-air recording for more convenient use or timely use, and providing the program in videotape format at the outset.

A recent study in West Virginia of instructional television use in elementary schools in that State further reinforces the difficulty with broadcast schedules and scheduling the activities of learners during the school day. Overall, the most frequent and dominant reason expressed in that survey as to why instructional television was not used in the school was that the broadcast times were inconvenient.

Incidentally, the language I use has not been reviewed by legal counsel. I am just a plain guy with no legal training.

The pervasive reason of this medium and the ready availability both of the hardware and software capability to record programs off-air and the tendency to do so in order to provide the necessary learning experiences for students are for the necessity to develop some workable, reasonable guidelines for the application of the fair-use principle to educational uses of off-air recorded materials.

There has been much talk of a survey to be conducted over a period of time to determine the state of practice with regard to off-air recording. At the present time there is considerable information available. I would like to review some random sampling for the benefit of this conference.

For example, I got on the phone a week ago and talked to Dr. Marvin Davis of the Hartland Educational Agency in Iowa. He had just done a telephone survey of the nine schools in his district. These were five high schools, two junior high schools, and two elementary schools. Of the nine, six record materials and erase them after 1 week, using them for direct application to the curriculum that they teach. Three of the schools keep the programs longer, as long as they feel they are curriculum related. On the average, the nine schools record off-air 3 to 5 hours per week.

Another example, the district coordinator of library services in Clintonville, Wis., in a letter states the following problems which need to be resolved. She wrote me this letter unsolicited when she heard this meeting was going to be held.

One: Students cannot view it at home in the evening because other family members either want another program or do not want to watch an educational program.

Two: Many students are regularly employed and not at home when program is aired.

Three: With the increased number of sports offered to girls, many of these are evening games-this one I like-the teacher cannot ask a team member to skip the game and stay home to watch a TV program. The student would be dropped from the team.

Four: Many of the homes in our district are not equipped to receive educational TV. I would estimate that 80 percent are not. You will have to interpret that; I can't.

Five: Good instruction calls for teacher previewing the program, introducing it to the class, viewing and discussing it. This is not possible at present. When I have written far in advance for permission to tape, I received no reply.

Six: At times excellent programs are aired perhaps during the first semester and the subject is taught the second semester. Today that exposure is lost.

Seven: Her seventh complaint: The purchase price of prepared video tapes makes them prohibitive to the average school. It is simple to cite the problems, but not necessarily the solutions. Humbly I suggest consideration of limited taping rights 1 week to 6 months. Further consideration might be given to a blanket fee, although I would think the sponsors would welcome the increased audience exposure to the students.

And that's the end of the comments that this lady had.

Turning to another example, a survey conducted by Ralph Whiting, the supervisor of instructional media and technology in the Bureau of Instructional Media Programs, Department of Public Instruction, Madison, Wis., discloses the following:

(a) Ninety-seven percent of the schools in Wisconsin have television receivers available.

(b) Ninety-six percent have a videotape recorder available either constantly or most times. Programs taped off air were done in the following percentages: 71 percent by media specialists or aides, 22

percent personnel at the district level, and 14 percent classroom teachers.

(c) Eighty-six percent of the respondents indicated that the recording was done by a VTR that was available for use with a monitor in the classroom.

(d) The kinds of programs that were recorded were the following: (1) 27 percent news; (2) 72 percent specials; (3) 3 percent sports programs; and (4) 24 percent were other which included movies, documentaries, et cetera.

(e) Eighty-nine percent of the respondents expect to acquire additional video tape recorders within the next 2 to 3 years. The amount of off air video taping in the next several years is expected to increase by 66 percent, and to at least remain the same by the rest of the respondents.

(f) When asked what is the shortest length of time that you could keep the tapes and still meet your educational needs: Replies were 2 weeks to 1 year. Incidentally, 47 percent of the respondents indicated that 1 year was the shortest length of time that would meet their educational needs.

(g) Eighty percent of the respondents were willing to pay a reasonable user fee.

(h) Another interesting finding was that in response to the question, "If programs aired on the networks were available soon after airing for rent or sale at a reasonable cost, would you still tape them?"; 66.6 percent said "yes."

Another short example, Mary Ellen Jones of Springfield, Ohio, conducted a survey of small liberal arts colleges throughout the country. Based on replies from 38 colleges in 22 States she reports that 21 percent of the colleges had the ability to circulate video tapes 5 years ago; 43 percent have that capability today; and 53 percent expect to have that capability 5 years from now. Closed-circuit television distribution has grown significantly in those small liberal arts colleges.

The national office of our association has been contacted repeatedly over the months since the new copyright law took effect on January 1, 1978. The usual complaint is that the media director in an institution, high school district, or college, is being asked for advice concerning a policy on off-air copying.

The usual experience has been that if the legal counsel of the institution has been asked for an opinion, he has often responded often with a very strict interpretation of the law to the effect that no off-air copying is permissible. This denies the classroom teachers the faculty. the opportunity to use programs in those institutional contests where this definition has been provided by legal counsel.

Often these legal counsel are not specialists in copyright law.

But the existing practice and the force of the growing availability of the products of American communications technology generally work against a strict interpretation of the law as it presently is written. There is a need for some agreement between the proprietors and the consumers or users of information concerning the application of the fair use principles written into the 1978 law to leave in particularly audiovisual information that is broadcast through the air waves. We need to define limited use.

I propose that the guidelines for the application of the fair use concept in the copyright law concentrate on the question: How long can a

recorded off-air program be retained for instructional use by a nonprofit educational institution? There are several alternatives that have been proposed. This is really the most important message I have for you, and it is very short.

A. In the position adopted by the board of directors of my own association last April-I'm sure most of you are familiar with it-the following description, "That the videotape and all duplicate copies be erased or otherwise destroyed within 1 calendar year of the original recording date."

That entire position paper I have attached to this statement so it can be entered into this record.

B. In a newly developed position paper from a group of instructional media directors in the Washington/Oregon area of the northwest United States, the duration of use is described as follows: "Fair use for recording off-the-air programs extends 30 days from the time a program is broadcast and further extends until the program is available for purpose, lease, rental, or licensing." That position, by the way, I must thank Charles Vlcek for. And that position paper in its entirety is also appended to my statement.

I would like to give you one other proposition. And this is from the National Association of State Educational Media Professionals. It is a group which is comprised of the media coordinators in the State education bureaus of the 50 States, the duration of retention issue described by them in a resolution they adopted in December of last year.

"Copyright releases that will give schools permission to record and use them throughout the school year in which they are broadcast."

To conclude, off-air copying, using the hardware technology available to us in education, is a reality which must be respected by the copyright proprietor community as well as the educational community. It is the position of AECT that some accommodation should be reached whereby a reasonable set of guidelines for the copying, retention, and use of broadcasting audiovisual information so it can be more available for the instructional programs of our educational institutions.

This recommendation is made with the full knowledge there is an inherent danger to the continued health of the community of small commercial firms who produce educational materials which are broadcast over the commercial or public broadcasting stations.

It is our position that the needs of education, and the instructional programs at all levels of education and training override the proprietary interests of the broadcasting entities.

Thank you very much. [Applause.]

[The prepared statement of Mr. Hitchens follows:]

STATEMENT BY HOWARD HITCHENS, EXECUTIVE DIRECTOR, AECT

The organization which I represent, the Association for Educational Communications and Technology, is comprised of approximately 9,000 individual professional media people throughout education and training in the United States. Our membership is approximately evenly divided between those working in higher education and those working in the elementary and secondary schools. The unanswered questions concerning the application of the fair use criteria in the new copyright law to audiovisual materials of all kinds—and in particular the copying of audiovisual information off the air waves-are usually most im portant to our constituency. Our people are the ones who are asked daily to make