Off-air Taping for Educational Use

salaries are lagging behind other professions. It is time that society realizes that the education of the youth of this nation is not just the responsibility of the educational community. Education of the youth is the responsibility of the total society. Business and industries are beginning to accept this responsibility and are providing internships and work experiences in cooperation with schools for students. It is time the broadcast and producing industries accept their responsibility.

PROPOSED DEFINITION OF FAIR USE

I propose the following definition of "fair use" be used for off the air recording of television programming for non profit educational purposes:

"Fair Use" for recording off the air programs extends thirty days from the time a program is broadcast and further extends until the program is available for purchase, lease, rental, or licensing".

Acceptance of such a definition by the producing industry would provide an outstanding source of programs for education-both commercial and public television programs. In exchange the educational community should be willing to provide market analysis data for producers. The producing industries could provide a simple form which would be required to be completed and returned to the producer or network each time a television program is recorded and/or used in a classroom for non profit educational purposes. This procedure would allow teachers to use programs during the day in classrooms and provide time to implement programs into their curriculum generally at the most appropriate time. If the market analysis indicates a program is marketable then the producers could make it available for purchase, lease, rental, or licensing. Licensing would be attractive because schools could retain the programs that they have copied at their expense and hopefully for a small licensing fee. The income generated by a low licensing fee may surpass the income generated through sales and without printing, inventory, advertising and mailing costs to the producer.

This policy will facilitate bringing outstanding and valuable instructional materials to the children of this nation at all grade levels and should provide an additional lucrative financial return to the networks, producers, and actors involved. Both the educational community and the film and television industries would be the gainers, but the real benefactors will be the children.

Therefore be it resolved that the following be considered as fair use guidelines: 1. "Fair Use" for recording off the air programs extends thirty days from the time a program is broadcast and further extends until the program is available to the educational community for purchase, rental, lease, or licensing.

2. Non profit educational users will provide market analysis data to the producing industry by completing a simple form provided by the producing industry each time a television program is used in the classroom.

3. Programs recorded will be limited to non profit instructional purposes. 4. Such programs may be distributed to classrooms via closed circuit television within an educational institution so long as it is for instructional purposes.

5. After thirty days from broadcast educational institutions agree to erase these programs after they become available for purchase, lease, rental or licensing. 6. The fees generated by this policy be distributed equitably within the producing industry.

Mr. BENDER. Thank you, Hitch. I think the meeting is getting very interesting. I would like to make one observation. This is not a good time to be in the 11th day of a personal no-smoking campaign.

Our next presenter-I promise you, Barbara, though, I am not going to give up-is representing the interests of higher education. Ken Warren is in Madison, Wis., and since January of last he has been coordinator for a television production in media activities at the University of Wisconsin system.

year

I think Ken has excellent credentials to present the interests of higher education.

TESTIMONY OF KENNETH WARREN, UNIVERSITY OF WISCONSIN

Mr. WARREN. Thank you, Ivan.

On behalf of those I represent, let me begin by expressing appreciation for this opportunity to provide information and viewpoints concerning the issue before us.

All units of the University of Wisconsin system are represented in an educational media council, by media services directors from each university institution. As liaison with that group, our remarks reflect council consensus on application of fair use principles to off-air recording of broadcast audiovisual works.

It has also been suggested, as I have indicated, that I convey representative concerns of higher education users in general. In preparing these comments, I found no disparity of views between the University of Wisconsin system and others with whom I was able to consult.

We are deeply concerned over the absence of detailed guidelines for fair classroom use of broadcast audiovisual works. This concern has two aspects: one, we want to obey the law, even though we're not always certain what it means; and two, we sincerely believe in our obligation as educators to provide learners with access to materials which can make study efforts more effective.

Restrictions on use of existing or emerging technology providing off-air recording and reuse capability present extremely difficult and frustrating situations. We can legitimately imagine instructors who wish to incorporate into their teaching plans programs from series such as Nova or Shakespeare, or from commercial networks and these at "the teachable moment" or even within a decent interval of time. We can also identify instructors and students being denied the opportunity of using these or other materials because of adamant and absolute refusal to consider application of fair use principles to off-air taping and limited nonprofit classroom use.

While anxious to see establishment of fair use guidelines that would provide reasonable access to and use of these materials, we also recognize the need to preserve creative and financial incentive for producers.

In other words, we are not suggesting a totally free ride for educational use. University of Wisconsin system users, for example, would be agreeable to an arrangement whereby fair use provisions would permit off-air recording and limited use until a program or series became available through commercial distribution channels. As we have heard, that can be a time span which could be up to a year or longer in some cases.

In our view it seems unreasonable for a producer to say in effect, "Buy it or forget it." We think it's unreasonable, and we also think it's shortsighted in terms of long range sales potential for a given work or product.

It works this way: An instructor learns of an existing work that is to be broadcast and thinks it may have value and relevance. The instructor can't watch or hear the broadcast, so inquires about having it recorded for later review and evaluation, but is told such practice is forbidden, probably even illegal.

The program is not otherwise available. Some of those enrolled in the instructor's class might be able to see or hear the broadcast, but that has limited value if all can't and especially if the instructor can't. Results: Another potentially useful learning experience is lost; a producer has alienated a potential purchaser; and the broadcast has not been totally effective. For want of a nail

I know of no valid information establishing direct correlation between allowing limited nonprofit classroom use and automatic loss of sale. I do know of several instances where enlightened self-interest on the part of a producer has resulted in eventual purchase with satisfactory experience for all concerned.

The kind of limited use-previewing it has been called-proposed by educators is, assuming quality of product, more likely to result in purchase than present situations severely restricting such use.

I said earlier, educators aren't asking for a totally free ride. We would be willing to negotiate a licensing system under which producers would be paid a reasonable royalty, and educators would have access to and use of materials considered capable of making instruction more efficient and effective. Models that come to mind in that category are ASCAP and BMI which license users of music for broadcast and live performance; and the Copyright Clearance Center which handles user requests for print materials.

It will continue and probably increase. One solution might be for my hypothetical instructor referred to earlier to invest in a Betamax and happily record anything, anytime, until Disney and Sony settle their differences.

I don't propose that. For one thing, I don't think we want to wait that long. For another, I am confident that user and producer groups, acting with enlightened and intelligent good faith, can reach a mutually beneficial, if not totally satisfactory, resolution to the issue we address today.

I would be pleased to respond to questions.

Thank you.

[Applause.]

[The prepared statement of Mr. Warren follows:]

STATEMENT OF KEN WARREN

For the record, my name is Ken Warren. I am the coordinator for television production and media activities for the University of Wisconsin System.

On behalf of those I represent, let me begin by expressing appreciation for this opportunity to provide information and viewpoints concerning the issue before us. All units of the University of Wisconsin System are represented in an Educational Media Council, by media services directors from each University institution. As liaison with that group, my remarks reflect Council consensus on application of fair use principles to off-air recording of broadcast audiovisual works. It has also been suggested as I have indicated that I convey representative concerns of higher education users in general. In preparing these comments, I found no disparity of views between the University of Wisconsin System and others with whom I was able to consult.

We are deeply concerned over the absence of detailed guidelines for fair classroom use of broadcast audiovisual works. This concern has two aspects: One, we want to obey the law, even though we're not always certain what it means; and Two, we sincerely believe in our obligation as educators to provide learners with access to materials which can make study efforts more effective.

Educators consider broadcast audiovisual material as an effective and essential teaching medium. There is substantial interest in using instructional, documentary, and general educational radio and television programs for nonprofit, classroom use. Restrictions on use of existing or emerging technology providing off-air recording and re-use capability present extremely difficult and frustrating situations. We can legitimately imagine instructors who wish to incorporate into their teaching plans programs from series such as Nova or Shakespeare, or from commercial

networks, and use these at "the teachable moment" or even within a decent interval of time. We can also identify instructors, and students, being denied the opportunity of using these or other materials because of adamant and absolute refusal to consider application of fair use principles to off-air taping and limited nonprofit classroom use.

While anxious to see establishment of fair use guidelines that would provice reasonable access to and use of these materials, we also recognize the need to preserve creative and financial incentive for producers.

In other words, we are not suggesting a totally free ride for educational use. University of Wisconsin System users, for example, would be agreeable to an arrangement whereby fair use provisions would permit off-air recording and limited use, until a program or series became available through commercial distribution channels as we have heard that can be a time span which could be up to a year or longer in some cases.

In our view, it seems unreasonable for a producer to say, in effect, "Buy it or forget it." We think its unreasonable, and we also think it's short-sighted in terms of long-range sales potential for a given work or product.

It works this way: An instructor learns of an existing work that is to be broadcast, and thinks it may have value and relevance. The instructor can't watch or hear the broadcast, so inquires about having it recorded for later review and evaluation, but is told such practice is forbidden, probably even illegal. The program is not otherwise available. Some of those enrolled in the instructor's class might be able to see or hear the broadcast, but that has limited value if all can't, and especially if the instructor can't.

Results: Another potentially useful learning experience is lost; a producer has alienated a potential purchaser; and the broadcast has not been totally effective. For want of a nail

I know of no valid information establishing direct correlation between allowing limited nonprofit classroom use, and automatic loss of sale. I do know of several instances where enlightened self-interest on the part of a producer has resulted in eventual purchase, with satisfactory experience for all concerned. The kind of limited use previewing, it has been called proposed by educators is, assuming quality of product, more likely to result in purchase than present situations severely restricting such use.

Whatever the mechanism, whatever the statutory clarifications of fair use for off-air recording, it is readily apparent that the issue is critical. Off-air taping has been and is being done. It will continue and probably increase. One solution might be for my hypothetical instructor referred to earlier, to invest in a Betamax and happily record anything, anytime, until Disney and Sony settle their differences. I don't propose that. For one thing, I don't think we want to wait that long. For another, I am confident that user and producer groups, acting with enlightened and intelligent good faith, can reach a mutually beneficial-if not totally satisfactory-resolution to the issue we address today.

I would be pleased to respond to questions.

Thank you.

Mr. BENDER. Thank you, Ken.

The next three presentations divide the library community into logical segments.

When we were constructing the program, we spoke with Eileen Cook, and she felt that these three areas, although certainly overlapping in terms of interest, needed separate emphasis.

It pleases me, therefore, to introduce our first librarian, Mr. Philip Baker, who is coordinator of media programs at the Stamford public schools in Stamford, Conn.

TESTIMONY OF PHILIP BAKER, COORDINATOR OF MEDIA PROGRAMS, STAMFORD PUBLIC SCHOOLS, STAMFORD, CONN.

Mr. BAKER. Thank you.

As several have said today, I too am appreciative of the opportunity to appear before this group, what is obviously a renewed effort to bring the voice of reason and commonsense and goodwill to bear on a problem which is often emotional, sometimes contentious and troubling to each of us.

I am reminded of the story of a Kentucky judge who told someone to go ahead and talk. He said, "It is easy for me to listen to you because my mind has been made up."

I have not sensed that kind of a priority decision in this room today, and that I am certain is progress.

While I speak today as a representative of the American Library Association, I carry with me as well a happy burden of being a professional educator actively involved on a day-to-day basis with my work.

My responsibilities as coordinator of library media programs takes me on a regular basis into the 23 schools serving the 17,000 students who comprise the Stamford public schools in Stamford, Conn.

My primary concern and first priority of our school library media program is to support the school's instructional program. To do this we use a wide array of the media ranging from books to reality and the equipment used with them to make them useful.

One important instructional medium is television, but it is by no means our most important or used medium of instruction. We have available in 12 of our schools video-cassettee recording devices.

This underscores by the way the fact that our severely restricted equipment budget prevents us from too intensive involvement in an extensive off-air videotaping program.

I doubt, for instance, that any of you in this room have recently tried to schedule fifth, sixth grade classes at any one time to use one videocassette on the program cover to cover.

I suggest that that is where the reality of off-air taping often comes to the fore. This is how school buildings do run themselves.

That, though, is not the issue, for our need to establish our right to access to even one appropriate instructional television program must be established if we are to exercise that right when appropriate.

The only use we make of off-air videotaping is upon specific teacher request. And this must relate to a specific instructional unit.

Our subscription to channel 13, a marvelous bargain for us, we believe, allows us to off-air tape some shows for use during the duration of the school year. But many others may be used for 7 days only, and so may not be taped at all.

Of course in the present limbo of copyright fair use, access to videotaping of programs from NBC, ABC, CBS, are not available at all.

I believe that for most schools, a prompt definition of fair use is the most important matter to be settled. In the world of print fair use is well defined by the new copyright law, and despite some problems and interpretations-and I assure you, some real confrontations in the Xerox machines in some of the school library media centers-we are learning to live within the constraints imposed by the law.

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Off-air Taping for Educational Use: Hearings Before the Subcommittee on ...