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These local programs are a very important resource in local archives and library collections and something that the members of our section repeatedly point to as a major problem in getting access to these programs.
For example, we appreciate guidance on our rights to the access of the recent broadcast of the inauguration of the District of Columbia's new mayor, Marion Barry. We were told we were the only customer for that program.
Because of the time, I will not go into detail of all of our problems. But I will say that in considering future guidelines, these variables might be considered to help design limited fair use or to develop a formula for limited fair use.
The length of time the program is to be held. I think that our users understand that the 7-day limit is not flexible to respond to their needs. The number of persons in the audience and the number of times a program is shown.
These are just a few suggestions and preliminary recommendations which we will be glad to expand more in future negotiations.
I thank you and look forward to our continuing discussions and exchange of information.
Mr. BENDER. Thank you.
When I said a few moments ago our last librarian was now going to make a presentation, I think I should have thought ahead to the next presentation, which will be on behalf of the interests of archivists, who perhaps occupy in some respects quasi-librarian riles.
We are fortunate to have with us today Mr. Robert Rosen, who has come here to join us from UCLA and tell us about the operation that that institution has in the area of television archives and other interests of archivists, in general.
TESTIMONY OF ROBERT ROSEN, DIRECTOR, TELEVISION ARCHIVES, UNIVERSITY OF CALIFORNIA
Mr. ROSEN. I am director of ATAS, UCLA television archives. The Academy of Television Arts and Sciences-that is ATAS-and UCLA for 12 years have worked in a cooperative effort, real cooperation in this instance, real representation of an industry and university, in the collection of television materials so that now over the course of that time we have accumulated holdings of approximately 13,000 television shows, dating from the 1940's to the present, making it probably the largest independent, nonprofit archival collection of that sort, not directly affiliated with the Federal Government.
I would like to stress each of those words-nonprofit, educational, archives-a very specific function.
An archive is in many ways different than some of the other institutions that have been talked about today. But I should also like to stress that we are not unique in being in that position. UCLA has been involved in this for 13 years, but so, too, has the University of Wisconsin that has important television holdings, an important television archive. The University of Georgia holds the Peabody Collection. There are other more specialized types of archival activities taking place in the country dealing with television as well.
You are, of course, fully aware of the Vanderbilt news collection. And then, there is the specialized public access facilities that the Museum of Broadcasting operates in New York.
Although in the very broad sense the archives share many of the educational goals that have been articulated today, there are a number of specifics, I think, that have to be articulated that should be taken into account when guidelines are drawn up. And some of these specific requirements should be underlined.
The archive is in a peculiar position, and it is a unique position. In some ways, it is a mediator. We would not have 13,000 shows it if wasn't for the cooperation of the copyright owners and if it wasn't for the cooperation of the networks and it if wasn't for the cooperation of the people in the industry.
On the one hand, we look toward the industry and in many ways serve certain of their functions, but at the same time a fundamental commitment as a repository for the culture as to the public, as to the people. So, the function of an archive is an intermediary on the one hand, serving a broad-based population, serving the interests of a culture, and of a Nation, and at the same time doing so in a way that does not directly threaten but in fact may even be supportive of many of the interests of the copyright holders.
In order to specify more concretely the way that the archive functions and its particular needs, I would like to break down the archives committees into three domains: the areas of acquisition, preservation, and then controlled access. All three are essential.
First, the area of acquisition. An archive such as the one we have at UCLA is not concerned with acquiring a very small and limited number of shows for immediate use at a specific time, but rather it is attempting to accumulate a broad-based, widely disparate range of materials that are indicative of the quality of the culture, and can be passed on to future generations.
It plays a historical role on the assumption that learning from the past is an activity in the present that sets an agenda for the future. It has a long-term function.
Over the course of the years, we have acquired these materials from many sources. We have rushed in as local television stations were about to dispose of hundreds of television shows in the trash because of the need for some extra space in the back room.
We have gotten them from television personalities who look, I think, understandably for a certain place in history. We have gotten them from the production companies themselves, a whole wide range of
But no, not every one of these sources has been the copyright owner. Nonetheless, the principal way an archive functions is: Having acquired that material, it is dealt with with full respect for the copyright owners.
That is to say, there is no circulation of the material outside of the archive. The multiple copies are not made. The material never leaves the archive premises without the special permission, written permission, of the copyright owners.
More than that, in many instances this has been of advantage to the copyright owners. When NBC, for example, and ABC were putting on the historical retrospectives, many of the materials no longer
existed in their vaults and, indeed, no longer existed anywhere else in the world except at UCLA.
The archives plays a function in relationship to the society and a function in relationship to the industry.
Now, in our view, within an archive, off-the-air taping should be viewed as an extension of that acquisition activity. The off-air taping is not for multiple copies. It is not for circulation. But it is part of that effort to acquire and make in a very controlled way the fruits of our culture accessible to people and to pass them on to the future.
So some special recognition, it would seem, in the formation of law has got to be made for the archives in the area of off-air taping.
A second function of an archive is maintenance and preservation. Preservation to an archivist means something slightly different than it does, I think, to the lay person. It is not simply storing the materials away. Preservation means you are trying to get the very best copy and hold onto it for the longest possible period of time on the medium that is the most stable.
Now, in the workings of an archive, in-house copying is an absolute necessity. When you get materials on unstable 2-inch tape, for example, that is oxidizing, it is a requisite if you are going to pass it on, you transfer it, at the very least, as a holding action to a threequarter cassette, ideally to a more stable form.
When you have a one-of-a-kind kinescope that is a last existing copy anywhere in the world, it is requisite that in order to access that material, see what you have, that a single copy be made. We are talking here about a master preservation copy, and we are talking about a reference copy.
This kind of in-house copying is part of what is involved in preservation. It is not just putting it back in the closet.
And once again, some recognition of this particular archival function has got to be made in any guidelines. This, of course, would apply as well to materials taped off the air.
It would be, one, at the same time a master preservation copy that is not used, and a single reference copy.
Again, I point to the fact that we are talking only about those two copies, not multiple copying, not wide distribution.
OK. The third area of an archivist has to do with controlled access. And I put stress upon both words, the access and the control.
Let me restate the mediating role of an archives between the producers on the one hand and the public on the other. And each has a legitimate claim. The archive is in a position to speak to both.
On the public side, it seems that there is a claim not merely based diffusively on education, but even, it would seem to me, based on a requisite for democracy.
Television, it is perfectly clear, is not a passive instrument within American society. It is an omnipresent force that enters our lives in many ways.
If in a democracy discussion takes place that leads to reasoned collective activity, information and knowledge is requisite. So, the public, it would seem, would have reason to go to some sources in order to look at the record.
Public acts, for example, we can go to the public record to examine. What goes out over the public airwaves, for example, it is very difficult for people to examine.
Thus, our role is not simply education in a narrow sense of higher education or secondary school education, but, broadly speaking, public education.
It is a place, for example, for a city councilor in Los Angeles to be able to come and look at the way that, for example, minorities have been depicted over time in the media. It is a place, for example, for a veterans organization to come and see depiction of patriotism, or PTA to examine violence, or consumer advocates to look at commercials. It is a requisite part of a functioning democracy to have access to this kind of material.
Now, again, the access is delimited and controlled. We are not talking of multiple copies. We are not talking about distribution. It would seem to me that if there is a cost to the copyright owner of providing access in a limited number of archives across the country to these materials, I don't see it.
If there is a cost, it is an infinitesimally small one, and when balanced against the vast public use in being able to examine and look at a force within our society up close and when weighed against other possible more capricious systems of distribution, I think it is one that is well worth it and should be specifically recognized and noted within any guidelines that are established.
Mr. BENDER. Thank you, Bob.
Before I forget, just one item. I would like to ask Phil Baker and Bob Rosen and Charles Adams-is he still here? I guess he is gonePhil and Bob to see me right after we adjourn.
The next two presentations will be provided by two of the performing guilds, Screen Actors Guild and the American Federation of Television and Radio Artists.
I might add that both the Directors Guild of America and the Writers Guild of America were invited to participate, but due to unavoidable conflicts of scheduling and other reasons, neither of those organizations could be represented here today in person, although I do think that perhaps either John McGuire or Mr. Wolff will be, in essence, representing the interest of those two guilds, as well.
I would first like to present to you John McGuire. John, I believe, is executive director, he is probably an officer, of Screen Actors Guild. I am sorry, John, I don't have your title, but you enlighten us.
TESTIMONY OF JOHN MCGUIRE, EXECUTIVE SECRETARY, SCREEN ACTORS GUILD
Mr. MCGUIRE. I am the executive secretary of the Screen Actors Guild in New York. I am also speaking on behalf of the Writers Guild East and the Directors Guild East today.
The Screen Actors Guild is a nationwide union. It represents actors who work in the areas of television commercials, feature motion pictures, television programs, and industrial educational films.
The Guild, on behalf of those members, negotiates collectivebargaining agreements with a series of employer groups and, in negotiating those agreements, establishes what are the minimum working conditions, the minimum pay scales for the basic work and the mini
mum pay standards when that work is replayed or when it is released into what we call supplemental markets.
It is those payment scales for replay and supplemental markets which generates our interest in the topic of off-air recording.
Now, on the subject of off-air taping on television for educational purposes, we are immediately confronted with a problem in semantics. I am referring to the concept of "fair use." The very existence of the term implies that there is such a thing.
Now, I don't intend to suggest that there isn't, but speaking on behalf of the Screen Actors Guild, the Directors Guild, and the Writers Guild-those people who are largely responsible for the creative concept and development of such programs-I must ask: "Fair to whom?"
Much of the discussion on this subject centers around the end result of this concept-the use of such off-air tapings in classrooms for educational purposes. It is of course, easy to cite many arguments in support of such use, and I wish to make it clear at the beginning that the actors, writers, and directors do not oppose the use of their creative output in this manner.
In fact, they realize that the use of television and audio/visual material in general for educational purposes-helping to mold the character of future generations for the better-may well represent the finest possible use of the products we help to create.
So, we are not opposed to off-air tapings for educational purposes. And we are not opposed to fair use.
What we are saying is that the word "fair" needs to be defined and that some mechanism for "use" needs to be worked out in accordance with that definition.
Let me take just a few moments of your time to discuss a little of what has taken place before the material in question has been aired in the first place, before it has become available for off-air taping.
The Screen Actors Guild-as the duly constituted union for the performers has negotiated a collective-bargaining agreement with the producers of such shows. If the program is to be aired on television, the agreement covers the proper reimbursement of the performers for that use.
If the program is to be subsequently used for other purposes-including educational use-our agreement would call for additional compensation, no matter how minor, to the performer. This is an agreement that we have entered into in good faith with the company that has produced the program, with the knowledge that the company has protected the program under the copyright laws and that we can depend upon the company to honor the agreement.
Suddenly, however, that program is taped directly off the air and it is being used for educational purposes around the Nation. The producer, having received no money for such use, informs us that he is unable to honor his agreement with the performer, and it is at this point that we must ask, "Is that what fair use is all about?"
It is not that we are objecting to educational use as such. What we are asking is whether a doctrine which can be used to circumvent the protection of a copyright and negate a good-faith agreement can really be described as "fair."
I must point out at this time that the use of taped materials off-air is not of inconsiderable economic importance to the performer, in