thread also touches the questions of "technical assistance" and "jointly financed cooperative arrangements" (page 3, lines 6-8) of Section 4 and the construction of the words "surveys" and "demonstrations" (lines 14-15) of the same Section. As I've noted in Run, Computer, Run "when a President and Congress set great store in education as a weapon of social reform, agencies like the U.S. Office of Education or the National Science Foundation are put under great pressure to produce immediate results. But when a program must be successful by definition, the need for a good show often overwhelms scientific objectivity; after the curtain falls, little remains either of practical value or of added insight . . . Ideas that are promising as objects of research and honest experiment tend to give birth, through artificial dissemination, to broods of depressing fads."

5

In the past, the dissemination of findings of educational research all too often has meant the hiring of glib PR men (called dissemination officers), flooding the world with glossy publications, and prematurely capulating locally successful experiments into a wider context where they almost invariably fail. Detailed examples of this sort of thing have been given in Run, Computer, Run.

The Preliminary Plan recognizes this problem and, indeed, correctly identifies one of its important roots in the statement on page 3, that "techniques for bringing that harvest to the user, the teacher, are still primitive; the complex network of activities needed to link new knowledge with practice is, in education, only partially formed." On page 38, the Preliminary Plan adds that "effective R&D systems, such as those that serve industry, health, and agriculture, have developed complex networks of activities linking research with practice and have staffed them with specialists such as design, production, and sales engineers, agricultural extension agents, and medical detail men. The education R&D network by contrast, is incomplete and imbalanced."

It goes on, on page 39, to note the virtual absence of "research-based problemsolving activity in the operating agency", a statement whose cogency I especially savor, having just spent two years overcoming many prejudices and difficulties in establishing a small research program intimately linked with my own operational teaching responsibilities within my own university. Further on, on page 41, the Preliminary Plan recognizes that "the private profit and not-for-profit institutional setting could be strengthened by increasing its size and scope of activity. . . . These institutions provide the major setting in which large-scale, long-term developmental and experimental efforts can be conducted."

Unfortunately, in my opinion, there is no evidence in the remainder of the Preliminary Plan of a follow-through commensurate with the recognized importance of the problem. In this respect, the Preliminary Plan remains true to a tradition noted in the following words by Robert W. Locke:

"It may be worth noting that the effectiveness of research and development work done by the education industry in the Unted States is limited by the reluc tance of public officials to place R&D contracts with profit-making organizations. As a result, the allocation by business of its R&D resources is made according to the goals of the individual firm, and these may or may not at a given moment be consistent with the goals of education."8

Stimulating and guiding participation by private enterprise in the educational process is a need which I think has been slighted in the Preliminary Plan in favor of a much more traditional partnership between the federal government and the existing state, local, and private education establishment. It is precisely on the matter of developing "the complex network of activities needed to link new knowledge with practice" that private enterprise could be at its strongest and where existing educational institutions have been at their weakest.

After noting, on page 37, that "when the critical mass for larger tasks cannot be achieved, individual researchers tend to pursue small tasks on their own" and that "these small tasks rarely cumulate to achieve major effects," the Preliminary Plan fails to relate this observation to precisely the same phenomenon on the other side of the fence, so far as that "complex network of activities... needed to link new knowledge with practice" is concerned. It seems unlikely to me that the profession of education as we now know it can, without the closest cooperation with private enterprise, "take the lead in designing systems that will satisfy the developing requirement for education that continues throughout life, that breaks some of the barriers between school and society, and that deploys technology creatively to broaden access to excellent education," as the Preliminary Plan states it should on page 31.

5 Oettinger, pages 40-41.

Locke, R. W., "Has the Education Industry Lost Its Nerve?", Saturday Review, Jan. 16, 1971, p. 44.

I therefore see a need for the Bill, the Preliminary Plan and the legislative history to reflect greater concern for developing, in the national interest, a broader partnership among government at all levels, existing educational institutions and private enterprise.

May I, Mr. Chairman, call to your attention omissions and commissions in the Bill and in the Preliminary Plan which, in my opinion, tend to limit stimulation of private enterprise and may I also suggest how the door might be left open in this direction. Before concluding my testimony, I should like to also add some thoughts about the need for guidance in this participation.

In speaking of "technical assistance to, or jointly financed cooperative arrangements with, public or private organizations, institutions, agencies, or individuals”, Section 4 of the Bill is silent on the question of whether these prvate organizations may be profit or non-profit entities. In Section 7, there is an explicit restriction to non-profit entities but, as a layman in matters of law, the scope of this restriction is not clear to me. Page 7 of the Preliminary Plan cites the President's Message on Educational Reform to the effect that "the National Institute of Education would conduct a major portion of its research by contract with universities, nonprofit institutions, and other organizations". Here again, it is not clear whether the language leaves the door open or if it intends a total prohibition.

I suggest, Mr. Chairman, that the language of Section 7 and of Section 4 of the Bill be clarified so as not to preclude judicious experimentation by the NIE with the stimulation of participation by private enterprise, both profit and non-profit, in educational research and, more important perhaps, in developing the means for the effective application of the fruits of the research to learning in a manner consistent with the national interest.

In this respect, I would further recommend searching for language that will define "disseminate", "surveys", and "demonstrations" in Section 4 or amplify these listed functions in a manner that will encourage: 1) the development of means for effective application of research results and effective action, 2) surveys that might encompass intelligent market surveys relating needs to demand and leading to the development of "the complex network of activities needed to link now knowledge with practice", 3) drawing on broader experience than that available within formal educational institutions for the translation of demonstrations from one or a few carefully nurtured instances to a broad self-supporting market. In the same vein, the Preliminary Plan, in discussing "Relations with the Education System" beginning on page 125, is relatively silent on general private enterprise, although it lists "private and non-formal education organizations" on that page and cites "Educational institutions outside the conventional, formal structure" as "increasingly important parts of the educational system" on page 131. As indicated on page 143 of the Preliminary Plan, questions on this subject were asked during the planning study, but I could associate only 7 of 134 of the people listed on pages 144-149 with this increasingly important part of the educational system and beyond.

Perhaps the issue hinges, as hinted on page 127 of the Preliminary Plan, on the matter of "OF implementation of the results of NIE programs" and on the saggestion--described as controversial on page 128-for "the provision in each OE bureau of a small mission-oriented research, development, planning and evaluation staff." In my opinion, however, development of the means for application and action is a proper one for the NIE. This problem is of such importance, it has suffered from such neglect and it is so common to every education mission that its fragmented consideration is not likely to be helpful at least until enough knowledge and practical experience have accumulated so that mission-oriented staff may derive guidance and support from it.

I therefore applaud the recommendation, made on page 131, that representatives of private and non-formal organizations participate on "appropriate NIE councils, groups, and boards" and that at the very least, there be "study by the NIE of these agencies, their needs, and their prospects.”

In the same spirit. I support the recommendations, made on pages 102-103 of the Preliminary Plan, to the effect that the National Advisory Council “make recommendations to the President with respect to appointment of the Director of the NIE", that "members of the Council should be chosen on the basis of achievement and service" and that "they should be so selected as to provide wide representation of the views of educators, the R&D community, and the public.” I am not sure, however, that restricting candidates to "the fields of R&D, education, or public affairs" enables wide enough access to private enterprise.

On pages 128 and 129, the Preliminary Flan recognizes the wide concern among federal agencies for education and education R&D. It states that "the NIE

must establish linkages with these Federal agencies also." Based on the need for guiding the participation of private enterprise in the educational process, to which I shall come in a moment, I shall suggest that the list of agencies given on page 128 might well be enlarged. Otherwise, I agree with the recommendation, made on page 103, that "some of the Council members might be senior officials of other Federal agencies concerned with education." However, as I'll make explicit in concluding, I interpret "concerned with education" more broadly than may be intended in the Plan and I draw your attention to this fact.

As an obvious corollary to the foregoing observations, I recommend emphasizing the third program element in Program Area IV, as tabulated on page 47 of the Preliminary Plan. Moreover, I would argue for some increase in the resources devoted to Program Area IV even at the expense of the first two areas. Recognizing the urgency of the first two areas, the first especially, I nonetheless believe that addressing priority concerns without a strengthened linkage between R&D and practice will continue to be more ineffective than all of us wish, and wasteful and inefficient as well.

I turn now to the question of guiding the participation of private enterprise in the educational process. Here I address myself especially to questions of educational technology. As I suggested in Run, Computer. Run, the successful use of educational technology requires a complex amalgam of people, processes and devices. Among devices, old fashioned ones-like books-are as important as the newer and more glamorous media like computers and television.

My concern in this respect is that the needs of education have, in my opinion, had little or no influence on patterns of development. The perception of their own needs by educators has tended to be unsophisticated and unknowledgeable, their translation of needs into demand, weak and ineffectual. Because of this, as much perhaps as for the reason given by Locke in the quotation I cited earlier, "the allocation by business of its R&D resources is made according to the goals of the individual firm, and these may or may not at a given moment be consistent with the goals of education", even assuming as is not always the casethat these have been cogently expressed.

I shall discuss one particular need, for personal command over the processes and devices of education, in relation to two critical issues, compatibility and property rights. Both the need and the issues are already quite evident with books, where the issues raised are complex enough. With respect to the newer media, the complexity of the issues is increased still further by the difficulty of seeing clearly future patterns of development. Indeed, these patterns depend on how we perceive them.

By personal command of media, I mean the ability of individuals or groups to create, choose and use materials in these media in a manner responsive to personal, group or local needs. Pencil, ball point pen, and paper, together with a variety of simple and cheap reproduction techniques, nowadays make it easy and cheap for individuals and very small groups to use writing as a medium of selfexpression or communication. Conversely, modern presses and the development of elaborate private enterprise networks for creating, printing, marketing and distributing printed matter, have made the economies of large-scale mass production available to individuals through a wide choice of books and serial publications, from many compatible sources all protected by Constitutional guarantees of freedom of the press. More recently, advances in dry copying techniques have also significantly increased the scope for selection, adaptation, and recombination at the consuming end.

Except for very technical points, of concern primarily to booksellers or even more to librarians, questions of compatibility scarcely arise with book technology, inasmuch as both human readers and dry copying machines have no difficulty in coping with widely varied type fonts, although dry copiers do have some difficulties with unusual size or binding in publications.

The status of property rights, on the other hand, is one of chaos and turmoil. You are all aware, I am sure, of the tortuous history of the Copyright Revision Bill before the Congress. The inability of the various contending parties to come to terms on issues related to dry copying is surpassed only by the utter confusion surrounding the impact of the newer technologies, like computers and various advances in visual media, most notably television in its newer manifestations through CATV and cassettes.

Rather than taking your time to go into detail on some of the intricacies of these issues, I should like, Mr. Chairman, your permission to enter into the record

7 Ibid, page 44.

8

a recent copy of the Newsletter of the Association of Research Libraries, describing the status of the case of William and Wilkins vs. the United States of America as of October 12, 1970 and, by reference only, a statement of mine before the Senate Subcommittee on Patents, Trademarks, and Copyrights in 1967. Although not entirely up to date in a fast moving area, both documents will, I think, convey the flavor of the issue.

The main point I wish to make is that in the fundamental area of printed material, as well as in the newer technologies, questions of property rights and of compatibility have created a state of confusion and restraint that can only be inimical to the objectives of the present Bill. The issues at stake are vital to every facet of education.

Although less evident with book technology, compatibility problems are a major plague with the newer technology. Incompatibility among computers is notorious. The example of numerous mutually incompatible audiotape, film and videotape systems is long before us. Anyone who follows the pages of Variety can readily see evidence of a frantic scrambling for rights to the reservoir of existing pictorial materials and future productions in a manner consistent, at best, with "the goals of the individual firm" as described by Locke. For local consumption of these materials, we will be offered such systems as the CBS-EVR, which seems incompatible with anything else in principle, and several varieties of video cassettes which could be compatible but aren't.

In the pursuit of their goals, individual firms seem to have been heedless of the cost to education of a situation where materials from different sources can be used only through the intermediary of reproduction devices specialized to these materials and where local creation or adaptation is difficult to impossible. In reporting that "negotiations may be nearing conclusion among other Japanese electronics firms on the cassette videotape standard already reached by Sony, Matsushita and Victor of Japan", a recent article in Electronic News' comments that "agreement among the Japanese could become a potent marketing tool in the United States, benefiting all theoretically by reducing cassette costs and removing some confusion from the minds of potential customers. . . . Industry observers said the compatibility picture was far from settled, however, since the European contingent-led by Philips-has settled on a different cassette size and American developers are moving in several different directions."

So far as I am aware these and related developments in all areas of emerging educational technology, while of utmost importance to the future of education, have received no attention by those government agencies one would expect to be most concerned with them from the viewpoint of education, namely the Department of Health, Education and Welfare and the National Science Foundation. Indeed, I see no evidence of concern for these issues, either in the proposed Bill or the Preliminary Plan.

The scientific and technological basis of some of the problems I have attempted to illustrate might well fall under the charter of the NIE as described so far. However, policies that could vitally affect the impact of these problems on education are made, if at all, in various other federal agencies and, conversely, findings of the National Institute of Education should be brought to bear on policies made in these other agencies. Otherwise, lacking coherent policy guidance, industry will continue to allocate resources according to the goals of individual firms whether or not these are consistent with the goals of education or indeed with the national interest.

I would therefore recommend that careful consideration be given in program elements III-3 and III-4, on pages 78 and 79 of the Preliminary Plan, to the study of the scientific and technological basis and of the legal and policy externalities affecting personal command, compatibility and property rights. It seems fatuous to me to propose studies of the potential of new technologies for education when the pattern of development of these technologies may in the future be determined if not now already set by uncoordinated forces heedless of the needs of education. The analysis of legal and regulatory processes as they affect the future of education strikes me as an important potential responsibility for the NIE. I therefore also think of agencies dealing with various aspects of policy affecting educational technology as "concerned with education".

In keeping with this view, I should like to emphasize the statement of objectives and of means described on pages 128 and 129 of the Preliminary Plan

8 Oettinger. A. G.. Statement in Hearings before the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary of the United States Senate, 90th Congress, 1st Session, Part 2. March 20, 21 and April 4, 1967. pages 581-589. Electronic News, "Japan Tape Standard Near?", February 8, 1971, page 46.

with respect to relationships with other federal agencies. The list of agencies should also be expanded to include, for example, The National Bureau of Standards, the Office of Telecommunications Policy, the Office of Science and Technology, the Federal Communications Commission, the Register of Copyrights, and the Patent Office.

I would recommend, in addition, that the coordination function envisaged in Section 4 of the Bill be complemented explicitly by a function to advise other agencies of the Federal Government with respect to matters under their respective jurisdictions which, as a consequence of the work of the NIE, are found to have or be likely to have a significant impact on education and the national interest. I thank you for your attention.

[Newsletter, Oct. 12, 1970]

WILLIAMS & WILKINS VS. THE UNITED STATES OF AMERICA: THE ROLE OF THE ASSOCIATION OF RESEARCH LIBRARIES

[Because the Williams & Wilkins case has been of great interest to the members of the Association of Research Libraries and because the decision in this case, when handed down, may have far-reaching consequences for research libraries and their patrons, it is desirable at this time to recount the activities of the ARL with respect to this case, from its inception through the trial before Commissioner James F. Davis of the U.S. Court of Claims, September 9-17, 1970.]

Dr. Martin M. Cummings, director of the National Library of Medicine, brought a report to the 70th meeting of the Association of Research Libraries (San Francisco, June 24, 1967) on the challenge to fair use recently presented to the NLM. (The report had been previously distributed to the ARL membership under date of June 6, 1967.) Dr. Cummings summarized the history of the Library's photocopying practices which began in 1934.

In 1956, the NLM pioneered in substituting photocopies of articles for the interlibrary loan of journal volumes. This practice was properly circumscribed to make it consistent with the doctrine of fair use, and until April 28, 1967, it had never been challenged.

On that date, however, the Williams & Wilkins Company, of Baltimore, Maryland, publishers of medical and scientific books and periodicals, informed the NLM that it would permit photocopying of its journal articles only upon payment of a royalty of 2¢ per page. The Library suspended copying articles in Williams & Wilkins' journals while it studied the question. After receiving an opinion which supported its photocopying practices from the General Counsel of the Department of Health, Education and Welfare, as well as evidence of support from that part of the library community most likely to be affected by a court decision in this matter, the NLM informed Williams & Wilkins that it intended to make photocopies in accordance with the fair use provision of the Gentlemen's Agreement of 1935.

After hearing Dr. Cummings' report, the ARL voted to support the position of the National Library of Medicine (Minutes of the 70th ARL meeting, June 24, 1967, 8, 33-4).

On June 29, 1967, Mr. Verner W. Clapp, chairman of the Copyright Committee of the ARL met with the executive board of the American Library Association. in the absence of the chairman of the Committee on Copyright Issues of the ALA, Dr. Charles F. Gosnell. Subsequently, the executive board of the ALA acted to support the National Library of Medicine in its practice of making photocopies for scholarly purposes. This action was reported to the ALA Council by Miss Mary Gaver, president of the Association, on June 30, 1967 (Proceedings of the ALA. 138, 1967; Library Journal, 92, August 1967, 2722).

On February 27, 1968, Williams & Wilkins entered suit against and claimed damages from the United States Government in the U.S. Court of Claims. The suit alleged that the library of the National Institutes of Health and the National Library of Medicine had infringed its copyright by photocopying articles in journals to which the firm claimed copyright. One of the officers of Williams & Wilkins stated (in the firm's house organ, "Kalends," May-June, 1969) that the firm did not wish to interfere with the photocopying of articles in its periodicals, but that it merely wished to be paid a royalty on each copy made to offset loss of sales.