right authorities as to whether or not these would also be considered "fair use" practices.

Now the next sentence I want to underline, almost double underline it. It is this: there seems to us to be a high correlation between creative teaching practices and potential infringement of the law. If the bill now being considered by this committee is passed in its present form we feel that 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 objective of quality teaching and learning in our classrooms which the new educational 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. I quote only part of it. I will quote the second sentence particularly:

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.

Now the next sentence:

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.

Certainly we applaud this.

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 also 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 most motivated to learn and has a need to know. Many resources are required to meet differentiated needs of individual learners.

Teachers repeatedly point out that their most serious copyright problems arise when they attempt to use contemporaneous material

in the course of their teaching. It is the contemporaneous nature of the material that is so valuable to the teacher in the classroom.

Their major difficulty is not with textbooks, for every student usually has one of these, but it is rather with obtaining materials from newspapers, magazines, 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 district described the problem clearly. He says:

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 the teachers are experiencing 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 a 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 for the radio and television programs which the 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.

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. We recognize these. Both must be considered and dealt with fairly because teachers are both authors as well as consumers. As the Register of Copyrights has himself pointed out in his report of July 1961:

Within limits the author's interests coincide with those of the public. Where they conflict, the public interest must prevail. The ultimate task of the copyright law is to strike a fair balance between the author's right to control the dissemination of his works and the public interest in fostering their widest dissemination.

Teachers are both authors and users of materials; they create and they use in the course of their teaching the works of others. Please bear in mind that when we recommend that the educator may make restricted copies of copyrighted materials we are also saying that we are willing to authorize limited copying of our own copyrighted materials by others.

As an example of this I have here a resolution passed by the Department of Audiovisual Instruction of the NEA which I will be glad for you to have for the record.

It says

nonprofit organizations may quote from or reproduce the material herein copyrighted by the Department of Audiovisual Instruction for noncommercial purposes provided credit acknowledgment is given.

Now we are not so asking, then, for a privilege that we ourselves would not want, in turn, to give to other nonprofit educational users. As teachers we create markets for the works of authors and publishers because ours is the responsibility to motivate students to want to read and to acquire books and other copyrighted works of their own. Ours is the responsibility to create an appetite for learning which is lifelong. We do not use copyrighted materials for our own gain but rather for the benefit of students for whom we are responsible.

There are those who say that our position would stiffe the author's creativity. We feel, in fact, the contrary is true. Education's position would give the author a new kind of visibility which he would otherwise not have. On the other side of the picture, too, more needs to be written about the teacher's creativity as well as the author's creativity. The creative teacher is one who is resourceful. He uses many materials and resources in his teaching in an imaginative way and, therefore, communicates more effectively with the children. To restrict the flow of information by imposing undue hardships in obtaining clearances and payment of royalties would interfere with and would thwart creative teaching and learning in the classroom.

In presenting its case to you, the ad hoc committee pleads for the same special recognition for education in this law as has been granted in other laws enacted by the Congress, such as: educational television, reduced mail rates, nonprofit status, tax exemption for contributions, distribution of surplus supplies.

The ad hoc committee wants a reasonable and just law which is fair to both authors and to users-one that can be enforced by the profession itself.

It desires a new law that will provide adequately for the present and future use of copyrighted materials in the classroom and on educational broadcasting. It desires a law that will enhance rather than inhibit the use of materials. It desires a law that recognizes the primacy of the public interest and that enables teachers to do the job for which the cities, counties, and States of this Nation employ them.

Thank you, Mr. Chairman. I would like to call on Mr. Rosenfield now to give the legal interpretations of our recommendations and then I have a concluding short statement to make, please, sir.

Mr. KASTENMEIER. May we proceed with a few questions, Dr. Wigren, first so that we do not forget the context in which you have made your statement?

Dr. WIGREN. That is all right.

Mr. KASTENMEIER. May I also ask at this point, can those in the rear hear the testimony? May I urge the witnesses to speak up so that all may hear because there are many colleagues back there, I am sure, who will want to hear you what you have to say.

How do you answer the basic proposition that an author would submit, stating that really what you are dealing with is his property? That is, if you are willing to buy pencils and buy books in the classroom, why is it you are unwilling to pay for the use of his property no matter if it is more convenient to use it without paying for or not?

Dr. WIGREN. This is a good question. There are those who would say that copyright is not a property right. I think there is much in the law and much in the legal interpretation of the law to support this. I feel, also, that the very statement I read to you a minute ago answers this to the effect that usually the author's interests coincide with those of the public and where they conflict the public interest must prevail.

Also, I would like to say that it is true we buy seats for children to sit in and we pay for these, but we don't charge them every time they sit in one of them.

If we buy a textbook we feel we should have the right within reasonable limits to copy a certain section of it for our own use. The book belongs then to us. It is our property then. This is my answer to that.

Mr. KASTENMEIER. I will ask Mr. Rosenfield to particularize an answer to this question later, but I would also be curious about the degree of certainty you think we ought to have in the language. I gather you prefer that we define fair use explicitly in statutory language?

Dr. WIGREN. At the present time there is a great deal of confusion about what is and what is not possible. We are trying to be fair about this. We have tried to state it in our recommendations as best we could. We feel that not everything should be permitted. Certainly we do not want wholesale copying. This would not be ethical. It is not even good teaching practice.

We have had consistently fine dealings, I think, with the publishers groups and authors groups and have attempted to revise our statement after conferences with them. Typical of this is the statement we added in parenthesis in our recommendations. It says:

save those originally consumable upon use, such as workbook exercises, problems, or answer sheets for standardized tests.

After considerable discussion with the publishers we felt such uses might be unfair and take away from the author's right to make sales because these are sold on a monthly per-pupil basis. Hence, we revised our draft accordingly so that we would not ask that. But we have commended the Register for making "fair use" statutory,

Again we don't really feel "fair use" is enough. I think the main problem is that the fair use section at present permits "the reproduction of a small part of a work to illustrate a lesson."

There is nothing there about multiple copies. We need multiple copies for students in the classrooms. Certainly there is also nothing in "fair use" that allows us to have a single copy of an entire work.

52-380-66-pt. 1——22

On that one, may I just say that our draft may be poorly stated at this point, and you, gentlemen, would be in a much better position than we to state it. But I again want to make it very clear at the outset this morning that we are reasonable people and that we would like for the record to show that a single copy of an entire book or work is not intended by us. Maybe the way it is worded it seems this way, but we don't intend it to mean this.

We don't mean a single copy of a dictionary or reference book or an encyclopedia. Neither do we mean to make a whole copy of a magazine or newspaper or pamphlet or monograph or motion picture film or filmstrip.

What we do mean, what we do intend, is for the classroom teacher merely to be able to duplicate multiple copies of a poem to supplement a classroom anthology. We don't think that a poem is an excerpt. We think many poems are separately copyrighted.

We want teachers to be able to make transparencies of charts or diagrams from a book, newspaper, or magazine which they have purchased.

We think we should have the right to have short stories duplicated or an essay or a map and certainly a television or radio program or an article from a magazine. We do not mean several articles from a work. A teacher wrote us the other day and said, "Would you endorse my duplicating five articles from the National Geographic?" We said, "Absolutely not. We would never go along with this."

Our ad hoc committee does not go along with wholesale mass copying. But we do favor-and we have stressed-limited copying privileges, and I will go into that further in my concluding statement. Mr. KASTEN MEIER. Counsel, do you have any questions?

Mr. FUCHS. Dr. Wigren, on page 5 of your statement, point 4 reads: 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.

Then you go on to say that:

This omission will seriously handicap boys and girls in classrooms deprive them of the best teaching practices available.

and

Now I would like to ask this question: Does this omission exist not only in H.R. 4347 but also in existing law?

Dr. WIGREN. Yes.

Mr. Fuchs. How long has it existed?

Dr. WIGREN. I am glad you asked this, because I think the question is not whether this exists in the present law or whether it exists even in the proposed law. The question we raise is that as long as the law is being revised and rewritten we would like to have a law that would support good teaching practices, practices that have been defined by many individuals in the educational field, certainly supervisors of schools in many organizations, as being creative practices.

There is much talk today in education about creativity in teaching. Much of this enters the copyright situation. We are not here to argue the legality of a practice-whether we do or don't have it. You know better on this score than we whether we do or don't. Our problem is that we want you, the Judiciary Committee, to know what teaching is