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modern learning aids out of fear that a publisher may claim that he is being deprived of income.

If education's need to perform the music can be spelled out as specifically as it is in section 109, and gain the support of the publishers, then it would seem reasonable that some sort of educational exemption can be included that will permit teachers to do their jobs without feeling guilty or without depriving authors and composers. The ad hoc committee is the only group that has attempted to do this, and the MENC is therefore supporting the position of that loose confederation of educational organizations.

Mr. KASTENMEIER. Thank you, Mr. Gary and Mr. Fitzgerald, for your statements on behalf of the Music Educators Conference. We are pleased to have you here today.

Mr. GARY. I hope I made it clear that the philosophical argument that has come up already seems to have been answered by the fact that the bill takes the position that there is an educational exemption for performance. This is in the philosophical area.

If you are going to be consistent philosophically, then it seems to me there are some other areas that are just as much defensible in terms of education, and the philosophical argument has already been

answered.

I don't think we can continue discussing that. We need to work out something that will enable us to move toward the solution of some of the teachers' specific problems in some of the other areas.

Mr. KASTENMEIER. Our next and last witness for today will be Dr. Robert Gerletti, representing the Department of Audiovisual Instruction of the NEA.

Dr. Gerletti, are you responsible for the devices in the rear of this room?

Dr. GERLETTI. Yes, sir.

Mr. KASTENMEIER. During your presentation, will you be using these devices to demonstrate something?

Dr. GERLETTI. Yes, for five illustrations which will take just a limited amount of time.

STATEMENT OF ROBERT C. GERLETTI, DEPARTMENT OF

AUDIOVISUAL INSTRUCTION, NEA

(Dr. Gerletti's prepared statement follows:)

A REPORT RELATIVE TO THE PROPOSED COPYRIGHT LAW PREPARED BY THE DEPARTMENT OF AUDIOVISUAL INSTRUCTION OF THE NATIONAL EDUCATION ASSOCIATION Mr. Chairman and members of the House Judiciary Committee, the Department of Audiovisual Instruction deems it both a privilege and a pleasure to have a representative testify before your committee.

My name is Robert C. Gerletti, director, Division of Audiovisual Education, Office of the Los Angeles County Superintendent of Schools. I am appearing here today on behalf of the Department of Audiovisual Instruction of the National Education Association. The Department of Audiovisual Instruction is a member of the ad hoc committee on copyright law revision. The testimony which follows is presented because of the special interest of the Department of Audiovisual Instruction in the copyright legislation.

The Department of Audiovisual Instruction was founded in 1923 when two established, national organizations combined to become a department of the National Education Association. Like other departments of the NEA, we have our own constitution, our own governing bodies, elected officers, committees.

conventions, and publications. Our 6,000 members are the audiovisual directors in the schools and colleges of America. They also include audiovisual instruction specialists in religious education, the Armed Forces, business and industry. To a considerable degree our organization is a federation of educational media specialists including educators who are particularly concerned with such things as instructional motion pictures, educational television, language laboratories, programed instruction, recordings (disc and tape-audio and video), as well as computer assisted instruction and a growing amount of technology that is being applied to the teaching-learning process in America today.

The Department of Audiovisual Instruction recognizes the need for a new copyright law or revised proposed law, and the development of a reasonable copyright law which is fair and just to all concerned. The Department of Audiovisual Instruction also recognizes that there are two sets of rights apparently present-the rights of the owners of copyrights and the rights of the children which our society has undertaken to educate. It is to the balancing

of these two sets of rights that these remarks are directed.

Children should have access to a variety of materials in a variety of subject matter fields. With the current expansion of knowledge it is not possible for a student to rely on a single text in any field.

Critical thinking depends upon access to materials having a range of opinion and theory. Students develop evaluative and innovative thinking amidst variation and controversy.

Children and youth (learners at all ages) must be able to use current, up-todate materials. These are often most readily found in magazines, journals and the like. The immediacy of illustrative material is essential and good examples in teaching are extremely valuable.

For instance, here are the possible teacher uses in instruction of a map of Africa, dated January 31, 1965, taken from the cover of the San Francisco Chronicle section entitled This World, in several forms and with several media :

1. One copy-original-clipped and posted on a bulletin board display. 2. Original projected in an opaque projector for a class to see and discuss.

3. Instant copy of original made by teacher on transparency film for projection in class for current events discussion.

4. Map picture adapted by making some changes:

(a) Eliminate areas of Europe.

(0) Reletter word Africa.

(c) Add color to give emphasis to one part.

5. Slide made of the entire page or slide made of just the map itself. 6. Copies made on instant fluid duplicator master for run of 30 copies so each student in a class could work with a copy in a current history class.

7. Copy made on an offset plate to provide 100 copies for students to use in three high school classes in world affairs.

8. Original displayed in a school television studio for pickup by camera for transmission on closed-circuit to one or to several simultaneous classes during a current events lesson.

9. Original picked up by TV camera in studio presentation and stored on video tape for delayed broadcast of a current events lesson on closed circuit to one or several classes in a school or school system.

10. Original picked up on TV camera for current events and news telecast to schools via a noncommercial educational telecast (one local educational station).

11. Original picked up by TV cameras in course of a televised lesson and recorded on video tape for release on one or more educational stations or on closed circuit; all charges for programs are at cost and without profit to anyone.

Each child has his own individual pattern for growing and developing in a particular social environment. Children attending school in the metropolitan areas come from many backgrounds and have different patterns of mobility and stability in family life. They respond as unique individuals, to all aspects of life, in school as well as out.

Helping the child to be a participant in the world as well as in the community and the Nation is one that mid-century circumstances have brought to the fore. Transportation tightens the globe down to the length of time that

it takes a jet to go over the pole or a message to come from Moscow. Mass communication has made it possible for the child to see how it is in Hong Kong and Capetown and Rio de Janeiro before he comes to school. This illustrates the importance of using television, radio, and films in the classrooms.

If a child is to become a citizen whose knowledge and concerns are broad enough to include his community, his State, the Nation, and the world, he needs an understanding of the drives that bring people into conflict and into harmony, the ability to make effective decisions-which also involves the capacity to separate fact from opinion, to recognize propaganda, to think critically and independently. He needs to grow in discussion skills, in the techniques of arriving at consensus, in being part of an active majority and of a constructive minority. He needs to have a sense of identification with world and national concerns that begins early and remains lifelong. He needs a spirit of commitment based on personal values and personal action.

From this brief discussion of the teaching and learning process it is apparent that:

1. Learning varies greatly from individual to individual, as do interests and needs.

2. Teaching is a very complex process, therefore.

3. Teachers must have reasonable access to the available tools; that is, the equipment and materials currently on the market, available from any reliable source.

4. As technology advances, the use of equipment and materials is affected, and necessary adjustments must be made by all concerned. For example, the advent of television and computers is affecting the procedures of teachers and boards of education. New ways of doing necessary work are being studied.

5. Blanket restrictions on making multiple copies of learning materials would be damaging to learning without bringing corresponding advantages to producers of materials.

In order to accomplish the teaching tasks, teachers are currently using many kinds of copyrighted materials. Examples of these uses are listed below and are divided into two categories. The first category lists good teaching practices which should be supported by a reasonable copyright law. The second category lists examples which neither the DAVI nor the ad hoc committee would support as fair or reasonable as exemptions from use without clearance or royalty payments.

I. Uses of copyrighted material by teachers which are or should be supported as proper uses of materials under the law.

A. Use of printed material:

1. Making one copy of an illustration for a classroom display from a book of which there is only one copy available.

2. Making copies of maps and charts in social science texts for class use. 3. Making photocopies of poems for choral speaking.

4. Making copies of charts from periodicals to use at board of education meetings.

5. Making large-scale pictures from a text for bulletin board display.
6. Making copies of mathematical charts for class analysis.

7. Duplicating excerpts from periodicals by subjects; photographing and framing for storage and for use in the library by pupils doing reference work.

8. Photographing on microfilm copies of excerpts and charts from periodicals and texts.

9. Making copies of pages from books and enlarging them for sightsaving classes.

10. Making blown-up copies of charts from the pupils' text for classroom science.

11. Making prints by using transparent contact for use on the overhead projector in art classes.

12. Making transparencies of poems for class analysis and evaluation. 13. Making class copies of an excerpt from a library reference for immediate use because it is timely.

14. Making copies of words from songs to use in teaching foreign languages.

15. Duplicating melodic lines to make arrangements for vocal groups. 16. Making copies of an article from the Encyclopedia of Educational Research to send to teachers on a curriculum committee.

17. Making copies of a short contemporary poem for an examination to test pupils' interpretation.

18. Making a transparency of a very recent chart or graph from any newspaper to illustrate a mathematical relationship or concept.

19. Making copies of a map from an old text, no longer in use but still under copyright, for a lesson in modern history.

20. Making copies of phrases from fine examples of literary prose. 21. Making a copy of a trumpet part in a piece of music that a student forgot on the night of a performance.

B. Use of recorded material:

1. Making tapes of musical themes for listening activities.

2. Making a recording off the air of a television or radio program to bring key U.S. and world figures into the classroom.

3. Making use of short excerpts of films or recordings, not to exceed 3 minutes in length, for the production of television programs for use in class

rooms.

4. Making copies of a recording for use in language labs in a school.

II. Uses of copyrighted material by teachers which DAVI and the ad hoc committee would not support as fair or reasonable under the law.

A. Use of printed material:

1. Making copies for an entire class of an exercise from a workbook or text.

2. Making copies of tests in a teacher's manual supplied by publishers free of cost to accompany the tests pupils use.

3. Making additional copies of answer sheets and/or tests after the original sets have been used.

4. Making copies of reading, arithmetic, science, and language workbooks.

5. Making copies of pages from workbooks.

6. Making a single copy of an entire book.

B. Use of recorded materials:

1. Making duplicate copies of commercial tapes to send to a number of school districts.

2. Making a commercial recording of a school concert and offering it for sale.

3. Making tape copies of a record so that new copies or additional copies would not have to be purchased.

4. Making copies of complete films for distribution via broadcast television. 5. Making copies of television programs containing copyrighted material and distributing across the United States when permission was given only for local use.

The examples given are illustrative of what is thought to be proper educational use and what is infringement. If school districts are obliged to go through long hours of work and expense to secure clearances, the chances are that teachers will not use many materials which are copyrighted. Unless some equitable bases for use are found, the use of copyrighted works in classrooms could diminish considerably.

In conclusion, the Department of Audiovisual Instruction of the NEA would like to recommend that:

1. Since education is fundamental to the preservation of our way of life as evidenced by the significant stands taken by the President and Members of Congress, all facets of this law be examined carefully. A copyright bill may be passed which falls short of the expectations of our Government.

2. Since our society has asked that education be given from early ages on through retirement, the restrictions on the use of copyrighted material be as

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few as possible. If the financial burden is too great, the needed quality education will be impaired.

3. The revision of the copyright law take into consideration, insofar as possible, changes in technology for the teacher as well as for the publisher and author.

4. Legislation be enacted which is not contradictory, which can be enforced, which is relatively easy to interpret and which is not so strict that teachers will violate it because they cannot follow it and teach.

5. Section 107, page 7, be amended as follows:

"Notwithstanding the provisions of section 106, the fair use of a copyrighted work to the extent reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright. Noncommercial educational use by a nonprofit educational institution or organization shall be presumed to be such 'fair use' unless specifically rebutted."

6. The time before copyrighted material becomes in the public domain be limited to 28 years plus 48 years at most.

7. A new section 111 be added, as follows:

"Notwithstanding the provisions of section 106, it is not an infringement of copyright for anyone lawfully entitled under section 109 to perform, exhibit, or to transmit a performance or exhibition of, a copyrighted work (save those originally consumable upon use, such as workbook exercises, problems, or answer sheets for standardized tests) —

"(a) To make no more than one copy or phonorecord of the work in the course of such use, provided that no copy or phonorecord may be made of dramatic works (including any accompanying music), pantomimes and choreographic works, and motion pictures or filmstrips unless the performers and the audience are limited to students, faculty, or staff, and "(b) To make a reasonable number of copies or phonorecords of excerpts or quotations from the work, provided that such excerpts or quotations are not substantial in length in proportion to their source,

solely for purposes of such person's or organization's own teaching, lawful performances, exhibitions and transmissions, for course work study in connection therewith, for research or for archival purposes, provided that no such copyrighted material is sold or leased for profit and that no direct or indirect private gain is involved."

8. The period during which an "ephemeral recording" is permitted for closed circuit and broadcast transmission be extended from 6 months (in the present bill, sec. 110) to 3 years. This would permit educational institutions to record copyrighted materials for instructional purposes for delayed transmission and later reuse. Such a right would permit video tapes and kinescopes of copyrighted material to be made for later educational use.

9. Any attempts to provide for a complete waiver of fines on infringers be supported. Such a provision would give the court the authority to limit damages to actual loss to the copyright proprietor where it can be shown that the teacher or educational institution was unaware that it was violating a copyright.

10. Section 109 (4) be broadened to include educational television of a nonclassroom oriented character.

"(4) performance or transmission of a non‹ramatic literary or musical work, without any prior * *

Dr. GERLETTI. Mr. Chairman and members of the House Judiciary Committee, the department of audiovisual instruction deems it both a privilege and a pleasure to have a representative testify before your committee.

My name is Robert C. Gerletti, director, Division of Audiovisual Education, Office of the Los Angeles County superintendent of schools. I am appearing here today on behalf of the Department of Audiovisual Instruction of the National Education Association.

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