Following this I will ask Mr. Rosenfield, one of our counsel, to give the legal recommendations of our committee. Then I would like to make a concluding statement if I might.

Mr. KASTEN MEIER. Without objection your statement will be received for the record.

PREPARED STATEMENT BY HAROLD E. WIGREN FOR AD HOC COMMITTEE (OF EDUCATIONAL INSTITUTIONS AND ORGANIZATIONS) ON COPYRIGHT LAW REVISION Mr. Chairman and members of the subcommittee, I am Harold E. Wigren, chairman of the Ad Hoc Committee (of Educational Institutions and Organizations) on Copyright Law Revision. I have served as a teacher and librarian in the Houston public schools; mathematics instructor in the U.S. Air Force; training aids officer for the San Antonio Aviation Cadet Center; director of audiovisual education for the Houston (Tex.) Independent School District for 14 years, during 3 of which I served also as supervisor of school libraries and 11 of which I served also as director of educational television and radio. For the past 4 years I have been serving as the educational television consultant for the National Education Association and as the associate director of the NEA's Division of Audiovisual Instructional Service.

Today I appear before you in my capacity as the elected chairman of the Ad Hoc Committee on Copyright Law Revision to present the committee's views on H.R. 4347.

The ad hoc committee has 34 constituent members, all of whom have highly respected leadership roles in the total field of education. It is not often that educational groups appear with such a united front before committees of the Congress. It is not often that all of these groups with such diverse interests sit on the same side of the table in presenting education's needs and concerns on a piece of legislation of this importance to the teachers and the schoolchildren of this Nation. This is one of the most amazing examples of the ecumenical spirit in all educational history. The members of the ad hoc committee are as follows:

1. American Association of Colleges of Teacher Education.

2. American Association of Junior Colleges.

3. American Association of School Administrators.

4. American Association of Teachers of Chinese Language & Culture.

5. American Association of Teachers of French.

6. American Association of Teachers of Spanish & Portuguese.

7. American Association of University Women.

8. American Council on Education.

9. American Educational Theatre Association, Inc.

10. Association for Childhood Education International.

11. Association for Higher Education.

12. College English Association.

13. Council of Chief State School Officers.

14. Department of Audiovisual Instruction, NEA.

15. Department of Classroom Teachers, NEA.

16. Department of Foreign Languages, NEA.

17. Department of Rural Education, NEA.

18. International Reading Association.

19. Midwest Program on Airborne Television Instruction, Inc.

20. Modern Language Association.

21. Music Educators National Conference.

22. National Art Education Association.

23. National Association of Educational Broadcasters.

24. National Catholic Educational Association.

25. National Catholic Theatre Conference.

26. National Catholic Welfare Conference.

27. National Commission on Professional Rights & Responsibilities, NEA. 28. National Council for the Social Studies.

29. National Council of Teachers of English.

30. National Education Association of the United States. 31. National Educational Television & Affiliated Stations. 32. National School Boards Association.

33. New Jersey Art Education Association.

34. Speech Association of America.

The ad hoc committee has authorized me to state that the position we present to you today on this legislation represents a consensus of the membership arrived at after 2 years of exploration and study by the committee members of the 1909 law, of the draft which followed the Register's 1961 report, of the bill presented in the last session of the Congress, and of the bill now before your committee (H.R. 4347). The ad hoc committee was formed in July 1963 at an exploratory conference called by the National Education Association to review education's stake in the various proposals which were under consideration. The committee has met monthly (and often semimonthly) during the last 2 years in studying the legislation; it has held meetings with trade and textbook publishers' groups, authors' groups, and with music publishers; it has had several conferences with the Register of Copyrights. After each of these meetings the ad hoc committee has constantly reassessed its position and has even made certain modifications which it felt would be beneficial to all concerned. To be sure, there have been disagreements within the ad hoc committee but these have been not because our position is too broad and sweeping but rather because it is not broad enough for some of the members or because it does not emphasize certain points which some of the members feel need further emphasis. The position we are advancing today is a basic minimum position on which a consensus was reached. Several of the members wanted to go beyond this and will so indicate in their individual testimony later before this committee. Therefore, we testify today not for the individual members of the ad hoc committee but for its consensus.

Ad hoc committee's recommendations

What is it the ad hoc committee is asking?

At the conclusion of my testimony, Mr. Harry Rosenfield, a member of the legal subcommittee of the ad hoc committee, will present to you the specific recommendations and proposals which our ad hoc committee is making. In capsule form, let me state the basic position of the ad hoc committee and then the rationale for our position.

The ad hoc committee's position might be summarized as follows:

1. We feel a new copyright law is needed to replace the outmoded one which has been in the statutes since 1909.

2. We feel that the proposed new copyright bill is in several important ways less advantageous to education than the present 1909 law. Amendments to H.R. 4347 are therefore needed before education can support the bill.

3. We commend the Register of Copyrights for proposing in H.R. 4347 that fair use be made statutory in section 107. We feel, however, that statutory fair use is not enough for education to do its job. Fair use is not a sufficient guideline to the classroom teacher to know when copyrighted materials may or may not be used. Under the present law we have fair use judicially interpreted plus the "for profit" limitation. Under H.R. 4347 we have statutory fair use merely mentioned and no "for profit" limitation. Substituted for the "for profit" limitation is a most inadequate and limited section 109 which gives categorical exemptions rather than a uniform general one. We feel, too, that the statutory fair use section 107 is narrowly written and needs to include the words "teaching, scholarship, research" as they appeared in the Register's July 20, 1964, draft. 4. The single most important objection which the ad hoc committee has to H.R. 4347 is the fact that no mention is made of statutory limited copying privileges so urgently needed by teachers in the course of their day-to-day teaching. This omission will seriously handicap boys and girls in classrooms throughout the Nation and deprive them of the best teaching practices available. I shall deal with this later in my subsequent remarks.

5. We commend the Register for including in section 109 (2) of H.R. 4347 the concept that educational television should be treated as a normal part of education. We regret, however, that the new bill limits the exemption on the uses of copyrighted materials in educational television to instructional telecasts beamed primarily for reception in the classrooms or similar places normally devoted to instruction. We deplore the emphasis on the "place" of reception because this ignores the great potentiality of instructional television in reaching

adults and children in their homes with programs for the illiterate adult, for the culturally disadvantaged, for those in need of job retraining, and for preschool children. This would defeat one of the purposes of the Economic Opportunity Act and the Elementary and Secondary Education Act of 1965.

6. We commend the Register on including the concept of ephemeral copying in section 110 of the proposed bill. This is sorely needed and long overdue in American copyright law. This would allow educational television stations to make a prerecording of a live broadcast for playback later. We regret, however, that the 6 months' time limit was imposed on the ephemeral copy provision because this renders the ephemeral copying privilege practically useless for educational television. In order to make the production of telecourses economically feasible, it is imperative that the telecourses be allowed to be replayed for a time sufficient to amortize the investment made by the school district or educational television station in the telecourse. The ad hoc committee is, therefore, proposing a new section 111 on "Educational Copies and Recordings" which will, among other things, compensate partially for this omission.

7. Most of the members of the ad hoc committee have misgivings about the change in duration to life plus 50 years. We much prefer the present arrangement of 28 plus 28 or 28 plus 48 years; this renewal arrangement enables teachers to use at the end of 28 years the great majority of copyrighted materials that are never renewed.

8. We commend the Register for reducing the amount of the statutory minimum damages from $250 to $100 for innocent infringers, but we submit that the burden of proof should be on the owner and not the user and if the infringement is an innocent one, the judge should be given the prerogative of waiving the statutory damages entirely for innocent educational infringers.

Rationale for the ad hoc committee's position

Why these recommendations?

The primary concern of the ad hoc committee is the effect which the proposed copyright law will have on teaching and learning practices in the Nation's public and private schools and in the Nation's colleges and universities. Education needs a copyright law which will enable teachers and professors, as well as students, to have maximum reasonable access to a wide variety of resources for teaching and learning. These resources include books, periodicals, newspapers, instructional motion pictures and filmstrips, overhead transparencies, tape recordings, programed instruction, teaching machines, language laboratories, educational radio and television, to mention only some of them. The committee feels that every effort should be made to continue the free flow of ideas, mate rials, and information inherent in a free society in a manner which will not be financially damaging to producers and publishers. The ad hoc committee, which represents the nonprofit, noncommercial needs of American public and private education, feels that this can be best accomplished by an automatic, but limited, educational exemption written into the law allowing restricted copying privileges without the requirement of clearances or the payment of royalties, so that teachers will know what it is they may or may not do under the law. In this way, ethical teachers will be enabled to continue excellent teaching practices without the constant fear that what they are doing might be in violation of the law. For the 56 years during which the "for profit" provision has been in our copyright law, the publishing industry has prospered-ample proof that our proposal is consistent with the incentives basic to a free competitive enterprise. Teaching practices in the uses of copyrighted materials

In a recent survey made by the ad hoc committee of teaching practices in the use of copyrighted materials in the classrooms of several large metropolitan communities, innumerable exemplary teaching practices were identified which should be encouraged by supervisors yet which would be considered by most publishers and authors as being in violation of the proposed copyright law and which would be potential infringements. Typical of these practices are the following:

1. A social studies teacher makes copies of maps and charts from newspapers for class use.

2. A social studies teacher makes a recording of the audio portion of a special TV documentary on Africa in its entirety for playing to his class.

1 Public Law 88-452 (Economic Opportunity Act).

2 Public Law 89-10 (Elementary and Secondary Education Act of 1965).

3. An elementary school teacher makes photocopies of poems for choral speaking.

4. An English teacher makes transparencies of poems for class analysis and evaluation.

5. A physical education teacher dittoes a digest of rules from official rule books.

6. A foreign language teacher makes copies of words from songs to use in class singing.

7. A teacher makes class copies of an excerpt from a library reference book and uses it immediately; he does not have time to write for permission.

8. A third grade geography teacher produces tapes of material from a book pupils could not read but which they could understand if someone read to them. 9. A foreign language teacher records the sound track of a TV program or radio program for class listening for comprehension.

10. Tape recordings are made of a high school orchestra for self-evaluation purposes.

11. As part of a dittoed examination, a teacher includes a short contemporary poem for pupils' interpretation.

12. A dramatics teacher puts on a copyrighted one-act play with only members of the class as audience; later uses it for a PTA meeting.

13. A classroom teacher of the mentally retarded supplied the following example: "I have been working for 10 years with classes of mentally retarded children and since there is a dearth of material sppecifically for that area, I have combed sources available and have culled from them those items which could be used by children with limited ability. I have never been able to use published materials in their entirety, but have adapted and duplicated the sections I could use. If this were prohibited by law, my resource materials would be seriously limited."

14. To illustrate the changes in the cost of living, a teacher prepares a transparency of a chart clipped from the morning newspaper.

15. A teacher duplicates several additional short poems by a poet represented only superficially in the classroom anthology.

Most, if not all, of these practices would be considered creative teaching practices, but there is considerable disagreement among copyright authorities as to whether or not these would be considered fair use practices. In other words, there seems to be a high correlation between creative teaching practice and potential infringement of the law. If the bill now being considered by the committee is passed in its present form, many teachers will refrain from practices that constitute superior teaching rather than take the chance of incurring a violation. With burgeoning enrollments and mounting problems, even if funds are available for this purpose teachers do not have time to run down clearances on materials which they need in their day-to-day teaching; nor do they have the secretarial help to do this for them. What will happen, therefore, is not that teachers will buy additional copies, but rather that they in all likelihood will not use the materials at all, thus defeating the very objectives of quality teaching and learning in our classrooms which the new education bill recently passed by this Congress sought to encourage. Why should teachers be required to go to such lengths in order to use materials which this Congress expects them to use as part of their teaching responsibilities?

In House Report No. 143 on the Elementary and Secondary Education Act of 1965, the following statement appears in the first paragraph on page 6:

"The committee received a wealth of evidence and testimony from educational specialists as to new techniques of instruction and educational innovations which were being developed as a result of research and experimentation in education. Many new devices employing audiovisual material, electronic equipment, use of educational television, and other similar equipment are being employed, some only in demonstration projects, and offer promise of increasing the educational opportunity of elementary and secondary students. Hopefully their use will broaden as a result of this legislation. To the maximum extent possible, this legislation gives encouragement to local school districts to employ imaginative thinking and new approaches to meet the educational needs of poor children." The Congress will undoubtedly want to keep in mind the many significant changes that are taking place in the content and methods of teaching in today's

schools and the corresponding number of changes which will likely occur in the schools in the next 20 to 30 years. There has been in the last decade a breakthrough in learning theory, and our schools have experienced a technological revolution similar to that experienced earlier by medicine, agriculture, and industry. New techniques, equipment, and materials are now available which will enable teachers and learners to have access to many more sources of information than have been known previously.

To achieve quality teaching and learning, many books and technological resources, including educational broadcasting, must be immediately available for the "teachable moment" when the learner is motivated to learn and has a need to know. Many resources are required to meet the differentiated needs of individual learners, gifted as well as retarded, mass as well as individualized. Education needs, therefore, a limited educational exemption which will enable teachers to use materials immediately with children in the search for knowledge and the fulfillment of inquiry.

Teachers repeatedly point out that their most serious copyright problems arise when they attempt to use contemporaneous materials in the course of their teaching. Their major difficulty is not with textbooks-for every student usually has one of these-but rather with obtaining the materials in newspapers, magazines, etc., which bring the textbook material up to date. A letter received in my office recently from a supervisor of social studies in a California school described the problem clearly:

"The specific problem I see coming with the increasing use of such copy machines as the Thermofax with its capability of producing a spirit master, and thus multiple copies, is whether or not this new technology may be freely used. For example, articles in news magazines may be timely and worth copying in relation to modern problems. My letter to Newsweek, inquiring as to whether such use would be offensive, brought a generous reply that there was no problem. 'Reproduce copies for classroom use but do indicate the source and date.' However, other magazines either asked that letters requesting permission be sent first or that no reproduction be attempted. The trouble here is that neither teachers nor principals are apt to remember the distinctions among magazines. They won't feel free to reproduce something if any possibility of a lawsuit is involved. Also I do believe that to require teachers to write letters for permission would discourage the rather fragile impulse to use a timely article."

This supervisor ends his letter with the following sentence:

"It would be reassuring to the ethical teacher to know that the fine teaching practice of bringing current commentary to bear on a social studies problem is itself within the law."

This letter reveals the difficulties teachers experience in not knowing when and under what conditions a transparency of a chart from a newspaper or a reproduction of a map in a magazine might be used in the classroom. Practices and policies of newspapers and publishing firms differ widely for different types of materials. The same confusion pointed out in the case of periodicals exists even to a greater extent in the case of newspapers where one paper is copyrighted and another is not, where one part (the Sunday magazine section) of one paper is copyrighted and the rest of the paper is not. How do teachers know this? The newspaper has now become a valuable teaching tool. The same thing holds true of radio and television programs which teachers need to record at home and bring to class the next day to discuss with pupils. This is good teaching practice but it may not qualify as good copyright practice. Hence, an automatic limited educational exemption is needed to clarify the situation. The ad hoc committee is proposing such a provision in its amendments which Mr. Rosenfield will present shortly to you.

In conclusion

In the revision of the copyright law, two parallel sets of rights and interests are involved: those of the author-producer and those of the consumer. Both must be considered and dealt with fairly. As the Register of Copyrights has himself pointed out in his report of July 1961: