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APPENDIXES

APPENDIX I

1. List of hearing and conference invitees. 2. List of negotiating committee members.

Legal materials:

APPENDIX II

1. Enclopedia Britannica Educational Corporation v. US Crooks, 447
F. Supp. 243 (W.D.N.Y. 1978)

2. Northern Kentucky Law Review, Roger D. Billings Jr. "Off-the-
Air Video Recording, Face-to-Face Teaching, and the 1976
Copyright Act__.

Additional statements:

APPENDIX III

1. Charles W. Adams, supervisor, Media Services Phoenix Union
High School District, Phoenix, Arizonia, "Off-Air Taping and
Public Education Position Paper".

2. Association of American Publishers, Inc. "Preliminary Comments
on Off-Air Videotaping".

3. James Bouras, Motion Picture Association_-_

Page

108

113

113

121

149

156

156

158

5. David J. Carnaham, associate dean of library services, the Ever-
gree State College Olympia, Wash...

158

4. Martin Burke, associate professor of speech communication and
theatre, Prince George's Community College..

6. Consortium of University Film Centers Executive Office, Charles
Hunger, president; Ruth Raines, executive director; Robert
L. Allen, board of directors..

159

7. Jack L. Copeland, president, Training Media, Distributors As-
sociation, Los Angeles, Calif

160

8. Majorie Doering, Garth Spees, James Zitzelsberger, media special-
ists, Oshkosh West High School, Oshkosh Wis..

161

9. Jerome S. Donen, chairman, Media Service Program Officers,
Eastern Washington University, Cherrey, Wash..

162

10. Robert I. Freedman, New York, N. Y.......

162

11. Robert C. Gerletti, director, division of education media, Office of the Los Angeles County Superintendent of Schools, Downey, Calif

164 167

12. Robert N. Gold, WNET/Thirteen, New York, N. Y...
13. Erlings Jorsensen, Ph.D. associate director, Academic Services,
professor of education and telecommunications, Michigan
State University, East Lansing, Mich...

14. Irwin Karp, The Authors League of America, Inc., N. Y., N.Y__
15. Phillip N. Lauglin, dean of instructional and student services,
San Joaquin Delta College, Stockton, Calif___

169 170

171

16. Gerald R. Magelssen, media specialist, Shoreline Community College, Seattle, Wash...

171

17. Edward L. McClarty, dean Modesto Junior College, Modesto, Calif

171

18. Jerome K. Miller, assistant professor, University of Illinois at Urbana-Champaign, Ill..

172

19. James G. Mitchell, dean of administrative services, Butte College Oroville, Calif_

173

20. Nelson Price, Media Action Research Center Inc., N. Y., N.Y... 21. James W. Sanner, specialist, instructional technology, Department of Education, State of Oregon, Salem, Oreg-

174

174

22. Arnold Sparr, New York State Educational Communication Association, Levittown, N. Y..

175

23. Ray L. Stansbury, coordinator district media services, Grossmont Union High School District, La Mesa, Calif_

176

24. Bill Troost, Ph.D. college media consultant, Los Angeles Trade Technician College.

182

25. Dr. Charles Vlcek, director, Instructional Media Center, Central Washington University, Ellensburg, Wash...

188

OFF-AIR TAPING FOR EDUCATIONAL USES

FRIDAY, MARCH 2, 1979

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,

AND THE ADMINISTRATION OF JUSTICE,

OF THE COMMITTEE ON THE Judiciary,

Washington, D.C.

The subcommittee met at 9:35 a.m. in room 2141 of the Rayburn House Office Building, Hon. Robert Kastenmeier (chairman of the subcommittee) presiding.

Present: Representatives Kastenmeier and Moorhead.

Staff present: Bruce A. Lehman, counsel; Audrey Marcus, secretary; Robert Kurz, research associate; and Thomas E. Mooney, associate counsel.

Mr. LEHMAN. Could people take their seats, please, so we can get underway?

My name is Bruce Lehman, and I am the counsel for the Subcommittee on Courts, Civil Liberties, and the Administration of Justice. And I would like to take this opportunity to welcome all of you who came from so long a distance this morning to participate in this hearing on the copyright problems associated with off-air videotaping of copyrighting works for educational purposes.

It is only fitting that the person who will open the program this morning and welcome you, setting the tone for it, is the chairman of the Subcommittee on Courts, Civil Liberties and the Administration of Justice, Hon. Bob Kastenmeier from Wisconsin.

And I am sure most of you are very familiar with Mr. Kastenmeier's work in the past, since his name appears on almost every legislative report during the history of the development of the Copyright Act of 1976, and probably more than any other legislator over the years has worked on copyright law. He can be said to be the father of that

act.

One unresolved issue, of course, that has given us continuing problems is the off-air educational taping question, so it is only appropriate that we hear from Chairman Kastenmeier with a few remarks on that subject.

Mr. KASTENMEIER. Thank you, Mr. Lehman. I, too, would like to extend a welcome to you.

During the course of my career in Congress I guess few issues have consumed more of my personal attention over an extended period of time than copyright law.

(1)

This association with copyright issues goes back at least to 1962, when the subcommittee which I now chair took the first step-suspension of the expiration of subsisting terms-in what became a 15-year effort to revise the law. Of course, efforts to do so predate that period as well.

One of the most rewarding features of those 15 years was the cooperative nature of the revision effort. Of course, there were fierce struggles over particular issues. However, in the last analysis almost every affected group desired that the revision effort succeed, and contributed to that success, by modifying and compromising their initial positions.

This spirit of cooperation was expressed most visibly in efforts on the part of proprietors and users in working out a series of guidelines defining fair use in certain situations. Three sets of guidelines were ultimately agreed upon and were published as part of the official legislative history of the act.

These guidelines covered classroom copying of books and periodicals in nonprofit educational institutions, educational uses of music, and photocopying by libraries.

One area in which parties had been negotiating, but in which guidelines were not forthcoming, was off-the-air taping of copyrighted broadcast programs.

At the time we wrote the House Judiciary Committee report explaining our work, we simply expressed the belief that the fair-use doctrine had some application to off-air taping, took note of the unfinished state of the negotiations among the parties, and encouraged them to continue to attempt to resolve their differences under the leadership of the Register of Copyrights.

The Register has attempted to carry out that mandate. Her efforts were reflected in a conference held from July 19 through 22, 1977, at Airlie House in Virginia, in which a wide range of interested parties were brought together for a discussion of the issue. Over 12 years have now passed since the Airlie House meeting, however, and no agreement has been reached.

In fact, it is my understanding that negotiations have broken down completely. Meanwhile, producers have begun to institute lawsuits against educators and in some cases have attempted to withhold product from the broadcast market. These developments are not consistent with congressional intent to write a law which will assure widespread dissemination of intellectual creations while assuring a fair reward for the authors of those creations.

Therefore, my colleague Congressman Tom Railsback and I, with the assistance of the Copyright Office, have convened this oversight hearing in an attempt to encourage affected parties to work out an agreement which will not require a full-scale reexamination of the issue by the Congress.

The program this morning and afternoon will be highly structured in an attempt to use our time as efficiently as possible. We will hear from representatives of 26 different groups, divided equally among proprietor and user interests. By the end of the day, I believe that we will have a complete picture of all aspects of educational off-the-air taping from a variety of perspectives.

We do not intend to solve the problem in this meeting alone. Rather, we intend to make a record in the presence of representatives of all affected parties which will serve as the basis for finding a nonlegislative solution as to what constitutes fair use for broadcast audiovisual works. In advance of this meeting, we have consulted with various national organizations representing affected parties and contacted 15 individuals drawn from among educators, copyright owner interests, public broadcasting and artists' guilds, who have agreed to constitute a committee to develop guidelines on educational fair use of broadcast audiovisual works. These names will be announced later. [See appendix for membership.]

It is my hope that within a few months this ad hoc committee will be able to report back to my subcommittee with a set of guidelines which we will publish to supplement the existing fair use of guidelines contained in the 1976 legislative reports.

Therefore, on behalf of Chairman Peter Rodino and the entire committee, I would like to extend a warm welcome to you to these historic Judiciary Committee chambers.

There may be others among my subcommittee who will during the course of the day be joining us.

The other members of the subcommittee are well aware of this undertaking today and informed of it and join with me in extending to you good luck. Thank you.

Mr. LEHMAN. Thank you, Chairman Kastenmeier.

The other member of the House of Representatives who is equally associated with the copyright revision effort is the Honorable Tom Railsback, from Illinois, who is the ranking Republican member of the subcommittee, and since today is not a business day in the House of Representatives, Mr. Railsback had other commitments in Illinois and he is not here this morning.

But in many ways we have something almost as good, and that is Tom Mooney, who is the minority counsel of the subcommittee, who has been around longer than, I think, Congressman Railsback on the issue of copyright. So maybe he is even a better person to welcome you on behalf of Congressman Railsback and the minority members of the subcommittee.

Mr. MOONEY. Thank you, Bruce. Chairman Kastenmeier and distinguished guests, you will be pleased to know that I do not have any prepared remarks for this morning. When we learned yesterday that Congressman Railsback would be unable to attend, Bruce called me over to his office and said that he thought that I might be able to make a contribution.

And he suggested possibly three areas. Not knowing how a meeting of this type may develop or turn out, Bruce suggested that I might want to be an official referee of sorts, and he then suggested that maybe I might be a sergeant-at-arms to retrieve people who may storm out or whatnot. But his third suggestion is what I like the most.

He suggested that maybe I should be the man in charge of the gong, and if things got a little out of hand, I would leap from the dias and head back to the back and grab the gong and hit something that would make some noise.

In any case, this conference may be called Airlie House I, Revisited. This is an area which I am afraid we are going to have to revisit

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