Some of the critics of the Ad Hoc Committee of Educational Organizations have remarked that it is very unlikely that copyright owners would ever bring suit against teachers who make use of their materials. Even if this is true, it is hardly likely that an ethical and conscientious teacher would want to be in the position of deliberately breaking the law, whether any punishment is likely to come to him or not.

Some other critics of the ad hoc committee's position have claimed that the teachers who now duplicate copyrighted materials and use them in other ways in the classroom are breaking the present law. I think this is rather beside the point in the present discussion, because we are concerned now with a bill which, if it becomes law, will affect us for many years to come. However, as far as the average teacher is concerned, instead of saying whether present practices in the classroom violate the law or not, it is more to the point to say that a state of confusion exists.

In a letter to the Register of Copyrights, Mrs. Nettie Shaw, president of the Texas Classroom Teachers Association, said:

Our association recognizes that the revision of the copyright law is needed because the present law is outmoded. We urge, however, that in the revision of the law that public interest be given primacy and that a reasonable law be enacted which teachers and administrators may use without constant resort to lawyers and lawsuits.

Let me make it clear that classroom teachers do not want to make wholesale copies of things like workbooks and standardized tests. These are easily available and are meant to be consumed by use. Copying them for classroom distribution could only be an evasion of the payment due the authors and publishers. The need, rather, is for reasonable use of copyrighted materials to make available to pupils knowledge they would not otherwise have access to.

The creative artist must be supported and encouraged. Part of the support and encouragement comes from the payment he receives for his work. But we must also recognize that an education that relies only upon the textbooks and films and other instructional materials which it buys for the classroom, and upon material in the public domain under the terms of the proposed bill, will provide a fairly skimpy outlook upon the world of today.

In ordinary teaching practice, teachers must be able to get teaching materials quickly and easily, and of course at little or no cost, if they are to make use of them. Classroom teachers must make use of the mood of the moment. They must capitalize upon some suddenly discovered motivation on the part of their pupils. Teachers simply cannot make detailed lesson plans months in advance, and we cannot afford to buy a book for every pupil if only a line or paragraph seems to be extremely useful for a one-time use.

Good teaching requires teachers to be adaptable. They know that they must seize upon any motivation that will bring their pupils to grips with the subject they are trying to put across. Good teachers will use every device that comes to hand to achieve learning on the part of their pupils.

A new copyright law which drops the "for profit" clause, and leaves the difficult to interpret "fair use" concept as the only hope, will stifle

initiative and originality in teaching, and it could do irreparable harm to education in this country.

On the other hand, a new copyright law which embodies the principles set forth in the ad hoc committee's statement can remove much of the confusion that exists today, do much to encourage teachers in their efforts to bring to their pupils a broad scope of learning and an appreciation of the creative artist, and teach pupils to discriminate between the mediocre and the excellent in thought and in art.

On behalf of the 860,000 members of the Department of Classroom Teachers and the children they teach, I ask that this committee accept the recommendation of the Ad Hoc Committee of Educational Institutions and Organization on Copyright Law Revision.

Mr. KASTENMEIER. Thank you, Mr. Stiles.

I think I would take exception to one of your remarks, or conclusions. On page 5, you state, and I quote:

Some other critics of the ad hoc committee's position have claimed that the teachers who now duplicate copyrighted materials and use them in other ways in the classroom are breaking the present law.

I think it is rather beside the point. I think if teachers are breaking the present law, then, as you state before, we are concerned whether we want to in any sense repeat writing a law under which, to quote you again:

an ethical and conscientious teacher would ** *be in the position of deliberately breaking the law **

I think this is a problem for us, and I think if the law is being broken, we have a responsibility to repair the law so as not to leave masses of teachers breaking the law in unpunished fashion, and that is in fact what we are doing.

Mr. STILES. You are quite right, Mr. Chairman. I think the main point I wanted to make here was that this confusion does exist, so that the teachers I know and talk to simply do not know whether they are breaking the law. It depends on which person they are talking to when they discuss it.

Mr. KASTENMEIER. Counsel?

Mr. FUCHS. Mr. Stiles, at page 6 of your statement, in the second complete paragraph, you say:

A new copyright law which drops the "for profit" clause and leaves the difficult to interpret "fair use" concept as the only hope will stifle initiative and originality in teaching, and it could do irreparable harm to education in this country.

What do you mean by the words "the only hope," in that context?

Mr. STILES. Until now, Mr. Fuchs, the teacher has felt that with this double-barreled approach, of which we have spoken so often today, that he was protected in doing the things that most teachers are doing in the classroom today.

If the "for profit" clause is left out, if the "fair use" concept is not spelled out at least to a certain extent, at least more clearly than it is now, teachers are simply going to be afraid to make copies of any materials.

Mr. FUCHS. Are you familiar with section 109 of the bill, which reads:

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or exhibition of a work by instructors or pupils in the course of face-to-face teaching activities in a classroom or similar place normally devoted to instruction;

That would offer some hope of escaping infringement.

Then there are also other permissive subdivisions of section 109. I just could not understand the use of the expression "fair use is the only hope."

Mr. STILES. As I understand it now, Mr. Fuchs, the proposed bill, as presented, would prevent the teacher from making copies of things to present to his classroom.

Mr. FUCHS. That is the present law.

Mr. STILES. There seems to be some disagreement about this. This is why the confusion exists today.

Mr. FUCHS. I don't think there is very much disagreement.

Mr. STILES. I can cite the same school district which was cited earlier today, in which the school board became concerned about this question. I don't know the reason why they brought it up, but they did. They asked their attorneys to look into the matter, and the attorneys told the school board that because of the doubt that existed in this area, that the teachers should be advised not to copy any materials at all.

Mr. Fuchs. In other words, copying is prohibited by the present law?

Mr. STILES. This is the interpretation of some people.

Mr. Fuchs. It is also prohibited by the proposed law.

Mr. STILES. This again is my interpretation.

Mr. FUCHS. So they are the same in that respect?

Mr. STILES. Unless the fair use concept which is written into this proposed bill is intended to cover the copying of materials for use in the classroom.

Mr. KASTEN MEIER. Mr. St. Onge?

Mr. ST. ONGE. No questions.

Mr. KASTENMEIER. Mr. Edwards?
Mr. EDWARDS. No questions.

Mr. KASTENMEIER. Mr. Tenzer?

Mr. TENZER. No questions.

Mr. KASTEN MEIER. Mr. Poff?

Mr. POFF. No questions.

Mr. KASTEN METER. Mr. Cors?

Mr. CORS. No questions.

Mr. KASTEN MEIER. Mr. Hutchinson?

Mr. HUTCHINSON. No questions.

Mr. KASTEN MEIER. Thank you very much.

Our next witness is Mr. Charles L. Gary, associate executive secretary of the Music Educators National Conference; accompanied by Bernard Fitzgerald, director, Contemporary Music Project for Creativity in Music Education.

STATEMENT OF CHARLES L. GARY, ASSOCIATE EXECUTIVE SECRETARY, MUSIC EDUCATORS NATIONAL CONFERENCE; ACCOMPANIED BY BERNARD FITZGERALD, DIRECTOR, CONTEMPORARY MUSIC PROJECT FOR CREATIVITY IN MUSIC EDUCATION

Mr. GARY. I am Charles L. Gary, associate executive secretary of the Music Educators National Conference, the professional organization of music teachers in American schools and colleges. Included in our membership are many composers and authors as well as users of music, books, and other forms of copyrighted material.

The stated purpose of this organization is the "advancement of music education." The conference represents a group of people devoting their lives to the building of American culture and the fact that American music education is the object of study all over the world is evidence of the success and the sincerity of these efforts.

Obviously, then, the Music Educators National Conference would never be willing to see a copyright law written that would deprive creative persons, including its own members, of the incentive to produce new music, books, poetry, plays, and works of art.

Yet it cannot wholeheartedly support a new law on copyright that provides no clarification of what a teacher may do legitimately with the devices of reproduction now at his disposal.

The Music Educators National Conference has a long record of cooperation with the music publishing industry which demonstrates that the organization is anxious to make its members aware of what they can and cannot do with copyrighted material.

The pages of its official magazine, the "Music Educators Journal," and of the magazines of our affiliated State organizations, have been open to discussion of copyright matters by publishers as well as teachers.

Through one of the MENC associated organizations, forms were developed to smooth the operation of securing permissions to make arrangements of copyrighted music.

Once a new law is adopted, the conference will again perform this educative function for its members, and for the music industry. While the revision of the law is being discussed, the MENC can do nothing else but speak out for provisions that will enable the teacher to do the best job possible.

The need for a new copyright law seems obvious. But, from a teacher's point of view, to write a new law that does not recognize that education has changed as much as any other part of our society in the years since 1909 is not an adequate revision.

This is not to imply that there are not many sections of II.R. 4347 that we find commendable. Music educators are much concerned with the performance of copyrighted music by school groups. Recognizing the misinterpretation that can be placed on the not-for-profit limitation in the 1909 law, we are satisfied that, with respect to performance, section 109 of the proposed legislation avoids this language without providing obstacles for the music educator.

What, then, would the MENC see changed in H.R. 4347? Specifically, we would desire recognition that there are educational uses

other than performance, and that these uses are necessary for good teaching, and do not deprive copyright owners of their just recompense. For example, a member writes

according to some publishers, a band director can't even simplify a third clarinet part to make it playable without getting written permission.

Another member wrote:

In teaching a general music class I copy (for each member of the class) various excerpts of copyrighted works so that the whole class may be able to see thematic materials while they are listening to the work. I have copied a single page of a score to show relationships of theme and instrumentation.

This creative teacher believes that he has the right to do this under the present law, and would be denied it under the revision. He goes on to say he couldn't buy the complete scores for the 400 students he has in the seventh and eighth grades.

I'm sure the publishers would say he was guilty of infringement, and yet it is silly to think that if he is denied permission to make such use, sales will increase. The contrary is much more probably true.

Or to quote a "Music Copyright Law Guide," copyrighted by the Music Publishers' Protective Association and the Music Publishers Association and reprinted in the May 1965 issue of the Music Director, a publication of our Florida State unit:

You cannot * * * without specific permission: [Record] the work by any method or means or for any use or purpose *** whether on records, film, or tape.

I am not sure whether such an interpretation of the law could be made to stand up against a school orchestra director who makes a tape recording of his rehearsal to provide a learning experience, but music educators are being told that they cannot use this valuable tool, and, to the extent that they abide by this interpretation, our young people are being given second-best educational experiences.

I would like to quote a few paragraphs from an article by Stuart J. Ling, professor at Wooster College, in Ohio.

We music teachers do not like to be thought of as thieves. However, most of us have violated the copyright laws at some time or other, in some way or other, and with what some think, pretty good reason. An intelligent person does not break the law without some strong feeling that there is something wrong either with the law or its interpretation.

Publishers need music teachers, just as music educators need the material which the music industry supplies. It is no more sensible for publishers to hamstring the teachers in any way than it would be wise for a teacher to attempt to compose all the music he needed for his daily teaching schedule.

Stop threatening us. Most of us are relatively nice people who get along on a small salary, go to church, pay our taxes, and even remember the date of our wedding anniversary. Please remember that if it were not for our help, you might have to teach in order to make a living (Stuart J. Ling, "A Brotherhood of Thieves," Music Educators Journal, June-July 1959, pp. 42-43).

I would like to document a point that Mr. Ling makes about the market which schools provide for copyrighted music. Throughout these hearings the impression has been left that education did not want to pay for music. This is not the case.

The schools of the all-American city of Alexandria, Va., spent $3,288.10 for the purchase of music, not including textbooks, this school year.