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It is our feeling that the proposed bill (H.R. 4347) is weighted far too heavily on the side of the producer and far too lightly on the side of the user-consumer. We have, therefore, attempted in this testimony to give visibility to the needs of the teacher and learner who are the principal users of copyrighted materials.

The National Education Association applauds this Congress for its great concern for education in the historic legislation which has been enacted to date. It is our sincere hope that the Congress will continue its concern for education as it enacts significant new copyright legislation. We ask that you give us a new law we can grow with one that fosters and encourages promising approaches to teaching; one which is responsive to the emerging frontiers of the information revolution and the new educational technology; one which is flexible, not rigid; and one which will help us meet the challenges of a new day in education.

Mr. KASTENMEIER. Thank you, Dr. Edinger.

I take it you would prefer not to have the revision in its present form. You would prefer that we not enact it, if the choice were between enacting it or not enacting it?

Dr. EDINGER. As it relates to the matters which the ad hoc committee has called to your attention, we would say we would prefer their recommendations be incorporated into the law.

I have not read the entire law, but as it relates to the ad hoc committee's recommendations, we would prefer seeing those recommendations incorporated insofar as it is possible to write them into law in the proposed revision, yes.

Mr. KASTENMEIER. You have observed here a revolution in teaching and in the power tools of teaching in recent years. Do you think such a law ought to anticipate the tools of the future in teaching technology?

Dr. EDINGER. It seems to me, Mr. Chairman, as I have looked at the recommendations of the ad hoc committee, that there is nothing in these recommendations which would restrict us to move into the future no matter what would come, because it would appear to me if there is a flexibility written into the law, so that we may use for educational purposes materials and information as we need them, that this will grow with us, with the technology, no matter what it may be. Mr. KASTENMEIER. Counsel ?

Mr. FUCHS. It seems to me there is complete unanimity that the teachers must have immediate access to these materials.

I keep asking whether there is some objection, some philosophical or principle objection against paying for them.

Supposing they could be made available promptly?

Dr. EDINGER. I think your supposition that they could be made available promptly if they are paid for is really a very hopeful supposition in the first place.

It could be, perhaps it might be, but it has been my observation that when you have to clear things, you know, and pay royalties, and all this kind of thing, it takes a little time, and I have done some of this in my lifetime as a teacher, so I speak from experience.

My second observation would be that I don't believe teachers are objecting to paying for certain materials. I do not get this idea. For

example, we pay for our textbooks, we pay for all of the supplementary materials we use

Mr. FUCHS. I was not thinking of the teachers paying for the materials. I was thinking of the educational plant.

Dr. EDINGER. When I say "teachers," I am thinking of the broad school program. The school systems pay for the materials that we use, so I think that what we are saying is that there should be some sort of an educational exemption when we are using materials to educate children, and this is what, after all, we are about, this is our sole purpose of being, to see to it that we educate young people to the best extent possible.

I do believe, if we make it too difficult, and if we make it too cumbersome to use materials, that rather than use them, or rather than risk a chance of being sued for illegal action, teachers may restrain themselves from these areas, and I do believe this would harm the educational program of the country today.

Mr. FUCHS. I think all authors say that they agree that education must be heavily subsidized by our Nation, but they don't understand why they, as they see it, should be doing the subsidizing.

They see no objection to taxation for school purposes, or exemption of schools from taxes, but they don't like to have you exempted from recognition of what they conceive to be their property rights.

It seems that you agree with Dr. Wigren, that you also have an objection on principle to the payment of these uses. In other words, you don't think copyright protection ought to be extended to these uses. Dr. EDINGER. For limited copying and excerpts in classrooms, yes, you read me correctly.

Mr. KASTEN MEIER. Mr. St. Onge?

Mr. ST. ONGE. Doctor, referring to your statement, you said:

We must be able to do all of these things, and we want a new law that we can grow with.

I think those apply pretty generally to the same situation. I don't intend to hold you to any specific language-we will hold Mr. Rosenfield to that--but I want to pursue Mr. Fuchs' line of questioning.

I thought your answer differed a little from Dr. Wigren's in that basically-this is a difficult thing to do-but let's try to assume for just a moment that there is no administrative roadblock."

You don't have to keep any records on what you are going to use. You don't have to fill out any forms. You don't have to write any letters to get permission.

I want to go back to this philosophical concept of payment to the author for the use of his material, just as you pay the author for the use of his textbook of the material.

Is there basic philosophical objection to that, even on a reduced scale, because it is for educational purposes?

Dr. EDINGER. It is simply difficult for me to answer. I assume you are not referring to something like my taking a play and putting it on, but you are referring to my taking an excerpt of a poem or something. I would say it would become unduly burdensome for a teacher to pay a royalty on an excerpt, so perhaps philosophically I would be opposed to what you are now posing to me.

Does that answer your question?

I think really I am in line with Mr. Rosenfield's explanation of this, actually.

Mr. ST. ONGE. Let me pursue it one more step. In the field of musical recordings, ASCAP and BMI, for instance, cannot keep tabs on what records each radio station plays, so they have developed a system which they call scientific sampling, and this apparently has stood the test of review by court-appointed trustees and even by the courts, so that they don't know actually what records are played, but only samples are taken. Suppose that it would be possible in your school system, for instance, for, say, an independent agency to come in and make a survey, to set up the necessary scientific sampling. Say that in each school a certain number of newspaper clippings were used, a certain number of poems were used, without bothering the teachers, and the entire school system, without asking that the teachers keep records.

Dr. EDINGER. I would say you would considerably hamper the use of the materials. You would not serve the author or producer in any way at all.

In my observation, the use we have made over the years of the materials in the classroom have really created markets for many of these people.

To answer your question directly, I think such a system as this would be limiting to a teacher's creativity, and I think you would find that good teaching practices would shrivel up under a system such as this.

Mr. ST. ONGE. I am sure that nothing that this committee and the Congress does is going to restrict or shrink the good teaching practices that are now developing so rapidly, but I am really concerned by the new methods that are not even on the market today that have been developed storage and retrieval is one term we have heard bandied about since these hearings started-I would certainly not want to see anything happen in the supposed interest of good teaching practices today which would hamper the present copyright law, which dates back to 1909.

If we wait as long for the next revision, we will have to be very careful as to how we write this one.

That is all, Mr. Chairman.

Mr. KASTENMEIER. Before we get to Mr. Tenzer, we must vote on the floor, and we must get there promptly, so we will have to recess. May I suggest to the members it is now 3:10. We will reconvene at about 3:35.

The subcommittee stands in recess until 3:35.

(Brief recess.)

Mr. KASTENMEIER. The subcommittee will come to order.

When we recessed for the vote, we were hearing from Dr. Edinger, and our colleague, Congressman Tenzer, was in the process of asking questions.

Mr. TENZER. I want to compliment Dr. Edinger on her testimony today, and I was referring particularly to page 5, talking about today's teacher. It made me feel like I wanted to go back to school. outlining the large and extensive techniques for education today.

I recall my first 2 years of schooling. I went to a school which was all located in one room, with eight grades in one room, and each grade having one row.

I can appreciate some of the problems, and I can assure you that every member of the subcommittee, and, if I can speak for them, the entire membership of the Judiciary Committee, would be in favor of the teacher's problems, but we do not want to "limit a teacher's creativity," as you suggested in your statement, any more than we want to limit the creativity of the authors and composers. Both make a very significant contribution to our American way of life.

In line with the questions that were asked, if there were a system devised, for example, where all of the textbook manufacturers in one or two or three of their various associations could devise a single method, without requiring application or request for copying privileges under which, let us say, a school or a school board could subscribe and pay a single fee, based upon the number of students attending the schools of that school district, which would simplify the procedure, would you have any objection to a charge for such copying privileges?

Dr. EDINGER. I would say, Mr. Tenzer, that our feeling is that for a copy or limited copying, as the ad hoc committee has pointed out, we feel this ought to be an exemption.

If we pay royalty, and we have no objection to that-in other words, if we put on a play at the school and charge for it, we have paid royalty.

If we would copy an entire book, as we have pointed out, we would certainly expect to pay.

But I think if there are excerpts, or for copies as we have defined it, limited copies, I think that what we are saying here is that fair use would dictate-we would hope it would dictate an educational exemption.

Mr. TENZER. Do you have the feeling, perhaps, that a definition of "fair use" included in the bill might limit the right of teachers, rather than giving the courts the present privilege which they have of interpreting the doctrine of fair use and establishing a doctrine?

Dr. EDINGER. Not having a legal background, I would really hesitate to answer that. I would say it would certainly depend upon the way it is written.

I am sure there are certain ways in which it could be written that it would limit it. There are probably ways of writing it so it would not limit it. It would be merely a matter of writing it. I would not want it to limit the use.

Mr. TENZER. I think Mr. Rosenfield's statement and Dr. Wigren's statements, which also include your organization, would perhaps cover your views on the way the legislation should be written.

Dr. EDINGER. Yes, sir. The National Educational Association has endorsed the position of the ad hoc committee.

Mr. TENZER. Thank you.

Mr. KASTENMEIER. Mr. Poff?

Mr. POFF. No questions.

Mr. KASTEN MEIER. Mr. Hutchinson?

Mr. HUTCHINSON. No questions.
Mr. KASTENMEIER. Mr. Cors?

Mr. CORS. No questions.

Mr. KASTEN MEIER, Mr. Fuchs?

Mr. Fucнs. You do feel the authors' contributions to these uses should be uncompensated?

Dr. EDINGER. I have made some limitations on that. I believe I have said that we ought to have the exemption for limited copies, but if we are going to use it, and if we are going to charge for it, we are certainly willing to compensate, and we have been doing this.

Mr. KASTEN MEIER. Thank you very much, Dr. Edinger, for your contribution.

Next we are very delighted to have Sister Mary Immaculate representing the National Catholic Theatre Conference, as its executive secretary-treasurer, to testify.

Welcome to the committee.

STATEMENT OF SISTER MARY IMMACULATE, NATIONAL CATHOLIC THEATRE CONFERENCE

Sister MARY IMMACULATE. Mr. Chairman, I am Sister Mary Immaculate of the Sisters of St. Joseph of Wheeling, W. Va., currently serving as executive secretary-treasurer of National Catholic Theatre Conference, headquarters of which are in Washington, D.C. It is as a representative of this organization that I have served on the ad hoc committee now testifying on H.R. 4347.

The first-named organization of which it is my privilege to be a member conducts elementary and secondary schools in the diocese of Wheeling, W. Va., which includes one school in Bristol, Va. During a period of some 30 years I taught in many of those schools, attempting to disseminate as much of beauty, truth, and goodness as possible with our limited economic resources. Holding degrees in English and drama, and certificates in music and romance languages, I have a background of teaching experience which acquaints me with teaching needs and the practices of satisfying them.

For the last 5 years I have served in my present capacity servicing more than a thousand groups throughout the country, groups which, in turn, are made up of thousands of members. National Catholic Theatre Conference is a nonprofit organization composed of parish, educational, and community theaters for the development of common action and the promotion of mutual service. Although the word "Catholic" in our title is, of necessity, capitalized, yet we are not limited to that connotation since our members include persons and groups of other creeds and races.

I am particularly well acquainted with the needs of the students of all the fine arts subjects, and with the limitations of the educational media designed to serve those needs. When I learned of the proposed revision of the copyright law and realized that it not only was not alleviating a distressing situation, but was even aggravating it, I felt impelled to express my thinking on the subject.

National Catholic Theatre Conference presses no points peculiar to itself; it supports the minimal position taken by the ad hoc committee, but would go further than asking for one copy to be made, and for a limited time.

We would ask that in the new section 111 the wording be changed to read "class-sized quantity" rather than "no more than one copy." The conference adds its voice to those who find a need for a definition of "fair use" mentioned in section 107, line 8, page 7, of H.R. 4347, and to those who ask to duplicate copies in a reasonable way.

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