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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.

I endorse the statement from the report of the House Judiciary Committee: "The committee believes that the fair use doctrine has some limited application in this area ***. 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 audiovisual information.

Television is the most pervasive communication medium in the history of the United States. Today there are approximately 720 commercial 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 setnearly 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. They range in size from a simple camera, recorder and monitor in a single school room to a countywide system such as we have for example in Broward County, Florida, or Washington County, Maryland. Currently there are 500 channels of instructional television fixed service in operation by 99 licensees. Most of these are serving education well.

A recent major study of the use of instructional television in elementary and secondary schools in the United States disclosed that television programming is available to more than one and one-half million of the estimated three million elementary and secondary school teachers in the United States. Approximately thirty percent (726,000) of these teachers use instructional television programs regularly. Approximately thirty-five percent of the students in the elementary and secondary schools view ITV regularly. Approximately thirty percent of all educators, administrators as well as teachers, have had training in the use of instructional television.

The survey further disclosed that more than fifty percent of all the educators in the United States have positive attitudes toward instructional television.

One major finding in that survey described by Eric Smith earlier, was that broadcast schedules are a major hindrance 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 video tape 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.

Television for instruction is an extremely well established communication medium in American education.

There are approximately one million video cassette record and play back units available throughout this country currently. Although most of those have been sold for consumer use in the privacy of their homes, a significant number-unfortunately I have been unable to pin that number down-are available in the schools and colleges. 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 argue 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.

Dr. Marvin Davis of the Hartland Educational Agency in Iowa, did 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 one 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 three to five hours per week.

Another educator, the district coordinator of Library Media Services in Clintonville, Wisconsin in a letter, states the following problems which need to be resolved: 1. 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. 2. Many students are regularly employed and not at home when program is aired.

3. With the increased number of sports offered to girls, many of these are evening games. 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. 4. Many of the homes in our district are not equipped to receive educational TV-I would estimate that 80 percent are not.

5. 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.

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

7. 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 one week to six 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.

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, Wisconsin, discloses the following:

A. Ninety-seven percent of the schools in Wisconsin have television receivers available.

B. Ninety-six percent have a video tape recorder available either constantly or most times. Programs taped off air were done in the following percentages: Seventy-one percent by media specialists or aides, twenty-two percent personnel at the district level, and fourteen 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. Twenty-seven percent news,

2. Seventy-three percent specials,

3. Three percent sports programs, and

4. Twenty-four percent were other which included movies, documentaries, etc. E. Eighty-nine percent of the respondents expect to acquire additional video tape recorders within the next two to three years. The amount of off air video taping in the next several years is expected to increase by sixty-six 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 two weeks to one year. Incedentally, forty-seven percent of the respondents indicated that one 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 of the respondents said yes. Another short example, Maryellen Jones of Springfield, Ohio, conducted a survey of small liberal arts colleges throughout the country. Based on replies from thirty eight colleges in twenty-two States, she reports, that twenty-one percent of the colleges had the ability to circulate videotapes five years ago; forty-three percent have that capability today; and fifty-three precent expect to have that capability five 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 and faculty the opportunity to use programs in those institutional context where this definition has been provided by legal counsel. Incidentally, most legal counsels with whom I have come in contact have not read the committee report and the legislative history of the law-they

merely read the law and try to make an interpretation based on the language contained in it.

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 is presently 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 audiovidual information that is broadcast through the air waves.

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 non-profit educational institution. There are several alternatives that have been proposed.

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 is the description, "that the videotape and all duplicate copies be erased or otherwise destroyed within one calendar year of the original recording date."

B. In a newly developed position paper from a group of instructional media directors in the Washington/Oregon area of 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." The position proposed by Charles Vlcek for that group in the Northwest is attached as annex 3. C. Another proposal by the national association of State educational media professionals, a group which is comprised of the media coordinators in the State education bureaus of the fifty States, the duration of retention issue as described copyright releases that will give schools permission to record and use them throughout the school year in which they are broadcast."

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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.

BIBLIOGRAPHY

Jones, Maryellen, "Media Survey," Unpublished Manuscript, Springfield, Ohio, January 1979.

Minutes of National Association of State Educational Media Professionals Meeting, December 7, 1978, Scottsdale, Ariz.

Video Play Report, Volume 8, No. 11, May 29, 1978.

Willis, John A., "The Use of Instructional Television in West Virginia Elementary Schools, 1977-78;" West Virginia Department of Education, October 1978. CLINTONVILLE PUBLIC SCHOOLS, Clintonville, Wis., February 5, 1979.

Dr. HOWARD HITCHENS,
AECT, 1126 16th Street NW.,
Washington, D.C.

DEAR DR. HITCHENS: I understand that you will be attending a March 3 meeting in Washington relative to establishing off-air taping guidelines.

As district coordinator of a school system interested in the educational use and value of instructional television, but one which is trying to live within copyright law, I would encourage your group to evolve guidelines for fair use within which we could live and the producers be satisfied.

These are some of the problems we face when a teacher notes a program pertinent to his classroom use:

1. Students can not view it at home in the evening because other family members either want another program or do not want to watch an educational program. 2. Many students are regularly employed and not at home when program is aired.

3. With the increased number of sports offered to girls, many of these are evening games. 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.

4. Many of the homes in our district are not equipped to receive educational TV-I would estimate that 80 percent are not.

5. 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.

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

7. 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 to 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.

If nothing can be accomplished at your conference, we will continue to conform to the present structure. However, with the home taping units being widely advertised, I feel reasonable people should be able to agree upon some fair use guidelines.

Yours truly,

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AECT ADOPTS WORKING PAPER ON OFF-THE-AIR VIDEOTAPING OF

TELEVISION PROGRAMMING

The Association for Educational Communications and Technology (AECT) has adopted a working paper on videotaping of television programming which supports off-the-air copying of both commercial and non-commercial television by educators.

Copyright Law Resolution: Videotaping Television Programming (A Working Paper) was adopted by the AECT Board of Directors on April 21, 1978, at its meeting in Kansas City, Missouri. The paper includes recommendations to be used in implementing off-the-air videotaping of television programming.

"The proposed licensing procedures for duplicating television programming would impede fair use rights granted to educators," says Howard Hitchens, AECT Executive Director. "Our position on off-the-air videotaping reflects the educator's concern for providing students timely access to our best creative talents."

As stated in the position paper, the courts have historically promoted the fair use of materials by educators. The paper also points out that limited fair use of television programming is supported in the legislative history that accompanies the new Copyright Law.

AECT is the professional association of educators and others concerned with the improvement of instruction through the effective use of media and technology at all levels of education and training.

COPYRIGHT LAW RESOLUTION: VIDEOTAPING TELEVISION PROGRAMING

(A WORKING PAPER)

[Adopted by the Association for Educational Communications and Technology Board of Directors, Apr. 21, 1978.]

Most educators recognize the problems associated with the licensing of off-theair videotaping faced by commercial television networks. These networks often do not own the rights to the programs they broadcast and, in those cases where they do own the rights, complicated arrangements must be made with various performance and craft guilds to release the programing. It is understandable that the networks are reluctant to pursue these agreements which would permit limited off-the-air videotaping of network programing.

While educators can sympathize with these and other difficulties, we also recognize that this reluctance on the part of commercial networks in many cases undermines the intent of the Copyright Act of 1976 in matters of fair use of television programing. Clearly, the legislature felt that limited fair use was applicable in this regard and they so stated in the legislative history that accompanies the new law.

In a broader sense, the Constitution of the United States indicates that copyright should promote science and useful arts by securing for limited times to authors

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and inventors the exclusive rights to their writings and discoveries. The courts have historically promoted the fair use of materials by educators. Yet, by failing to recognize fair use in off-the-air videotaping, television networks are depriving students and teachers fair access to a great deal of outstanding material.

Finally, any policy on off-the-air videotaping must reflect the realities of the technological advancements in the field of video duplication. The present ease with which off-the-air taping can occur and the anticipated advances in this field make it increasingly difficult to withhold this privilege from the consumer in general and the educator in particular.

With this in mind, the Association for Educational Communications and Technology supports off-the-air copying of both commercial and non-commercial television by educators.

1. The following recommendations shall exist as guidelines in the search for an equitable solution to the problem of implementing off-the-air videotaping: (a) That off-the-air taping be initiated by the teacher 1;

(b) That sufficient duplicate videotapes may be made to serve the needs of the school, school district, college or university campus, or other recognized school unit;

(c) That the videotape and all duplicate copies be erased or otherwise destroyed within one calendar year of the original recording date;

(d) That the video tape and/or duplicate copies be used an unlimited number of times in the course of systematic instruction via face-to-face teaching or closed circuit television;

(e) That videotapes may not be lent, sold, rented or otherwise distributed beyond the confines of an individual school, school district, college and university campus or other recognized school unit;

(f) That a record be made of all programs recorded off-the-air by each particular school unit;

(g) If the educational institution determines the program has continuing educational value one year from the date of recording, it may complete a simple licensing agreement and pay a reasonable fee for each year the program is kept; (h) That a fair and equitable license fee structure be established for the retention of copies beyond the one year of fair use;

(i) That programs produced with public funds and/or tax exempt donations remain in the public domain.

2. That an access mechanism be created to insure fast and simple licensing of programs kept beyond the initial privilege.

PROPOSED DEFINITION OF "FAIR USE" FOR RECORDING COMMERCIAL
TELEVISION PROGRAMS

[By Dr. Charles Vlcek, director, and professor of instructional media, Instructional Media Center, Central Washington University, Ellensburg, Wash.]

BACKGROUND

The new Copyright Law implemented January 1, 1978 and corresponding legislative reports do not define the scope of "fair use" for taping off the air programs for non profit educational uses. However, the report of the House Judiciary Committee states:

"The committee believes that the fair use doctrine has some limited application in this area but it appears that the development of detailed guidelines will require a more thorough explanation than has so far been possible of the needs and problems of a number of different interests affected, and of the legal problems presented. . . . If it would be helpful to a solution the Committee is receptive to undertaking further consideration of the problem in a future Congress."

The committee left the development of criteria to measure "fair use" to the Copyright Office in cooperation with the producing and educational user groups. During the past two years the user and producer groups have met and worked on this issue but unsuccessfully.

RATIONALE

The funding level for education at all levels in the United States is presently critical. State funding and local tax levies have not been able to keep up with the increasing costs of education. Therefore, fewer materials are purchased instructional equipment is becoming obsolete, faculties are reduced, and faculty

1 Concept of teacher... Broad enough to include instruction specialists working in consultation with actual instructors. Congressional Record, House of Representatives, September 22, 1976, page H10875.

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