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Mr. KASTENMEIER. The proponent of that particular proposal has not yet come forward so far as this committee is concerned. We were not aware of it.

Dr. GOSNELL. We wish to be on record however, sir.

Mr. KASTEN MEIER. Thank you, Mr. Gosnell. Mr. St. Onge?

Mr. ST. ONGE. Yes, Mr. Chairman. Very briefly, on page 3 of your statement in the first full paragraph you state that

numerous studies have been made to show that such copying does not diminish the sale of books and magazines.

Could you offhand cite some of these studies to us?

Dr. GOSNELL. The management firm of Fry Associates made an elaborate study of that some time ago. I do not have the exact bibliographical citation but I will be glad to supply it to you. Mr. ST. ONGE. I shall be happy to have you supply it. (Subsequently the following citations were received:)

Fry (George) & Associates, Inc.: Survey of copyrighted material reproduction practices in scientific and technical fields (National Science Foundation, 1963).

Summarized by Koepke, John C.: Implications of the copyright law on the dissemination of scientific and technical information (Special Libraries, vol. 54, pp. 553-556, November 1963).

See also Clark, Robert F.: Impact of photocopying on scholarly publishing (Ph. D. thesis, Rutgers University, 1963. 88 pp. Available at University Microfilms, Ann Arbor, Mich. Summarized in Library Journal, vol. 88, pp. 26252629, July 1963).

Mr. ST. ONGE. In the next paragraph you say:

In these days of mass production no isolated one-at-a-time copying system can ever compete in cost or in quality with original central publications.

In view of the present-day technological developments in copying would your position or the position of your committee change if it became as cheap to make copies as the original central publication you referred to?

Dr. GOSNELL. I would have to refer to the committee for consideration of that. We just see this as something that never can happen. This is an age of mass production. The reason for this mass production is that it is so much cheaper that way. There is no process on the horizon that shows any likelihood of being as cheap to do them one at a time as in multiple copies. Now the closest to that comes a process known as "Copyflo," which was developed by the Xerox people and is used principally by University Microfilms for reproducing books on demand that may be out of print, where the publisher assigns the right and a copy of the book to this organization.

What happens there is that again a negative has to be made and the big cost is in making the negative from which then copies can be made. There is just no way of making a single copy without going through a lot more process than making extra copies once you have the central publication process established.

Mr. ST. ONGE. It would be your view that my hypothetical in the foreseeable future is impossible.

Dr. GOSNELL. Yes. Let me cite another example. The prices of books are going up rapidly nowadays, but there was a time not so long ago you could get a 500-page book for $5; with discounts and that sort of thing it might have been $4 to a university library and

that includes the profit and everything, the composition that went into it, setting up the printing press and all that.

The cheapest process that we can make available to students today is 10 cents a page.

Mr. ST. ONGE. I think that answers my question.
Mr. KASTEN MEIER. Are there further questions?

I thank the witness again for his appearance today.
(Subsequently Mr. Gosnell submitted the following:)

Mr. HERBERT FUCHS,

AMERICAN LIBRARY ASSOCIATION,
COMMITTEE ON COPYRIGHT ISSUES,
Chicago, Ill., September 14, 1965.

Committee on the Judiciary, Subcommittee No. 3,
House of Representatives, Washington, D.C.

DEAR MR. FUCHS: In view of recent testimony on the matter of duration of copyright, I wish to add the following comment to my testimony:

The argument that the duration of copyright should be extended greatly because of a great increase in life expectancy is not a sound one. Those who have advanced it have apparently confused infant mortality with the life expectancy of persons at the age of successful authorship. At the time the present statute was passed (1909) life expectancy for a man aged 30 years was about 35 years. That is, he would live to age 65, while the copyright on anything he published at that age or later would endure (if renewed) 21 years after he reached ege 65. This life expectancy has now increased from 35 years to 41 years. This would still leave such copyright in effect for 15 years beyond expected mortality at 71 years.

In either case the duration for a work published at age 30 would be to age 86, well beyond life expectancy.

The proposed change to life plus 50 years would add some 35 years to copyright duration in face of an increase in life expectancy of only 6 years.

I have already submitted a statement on the other difficulties this change would cause.

Sincerely yours,

CHARLES F. GOSNELL, Chairman.

Mr. KASTENMEIER. The last witness today if he is present in the room is Mr. Frank C. Campbell, chairman of the Committee on Copyright Revision of the Music Library Association, Inc. Is Mr. Campbell present?

Apparently Mr. Campbell is not present but the record may remain open to receive his statement when it is forthcoming.

That then concludes the hearing for today. Tomorrow the committee wishes to announce we will hear from the educational broadcasters and numerous associations in connection with educational broadcasting.

Accordingly the committee stands adjourned until 10 o'clock tomorrow morning.

(Whereupon, at 12:15 p.m., the subcommittee adjourned, to reconvene at 10 a.m., Friday, June 4, 1965.)

COPYRIGHT LAW REVISION

FRIDAY, JUNE 4, 1965

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE No. 3,
COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met at 10 a.m., pursuant to recess, room 2226, Rayburn Building, Hon. Robert W. Kastenmeier, presiding.

Present: Representatives Kastenmeier, St. Onge, Edwards, Tenzer, and Poff.

Also present: Herbert Fuchs, counsel, and Allan Cors, associate counsel.

Mr. KASTEN MEIER. The committee will please come to order. This morning we will resume our hearings on copyright revision. Today we will hear from witnesses representing educational broadcasting. In this connection the Chair wishes to point out that the committee is in receipt of an agency report, the comments of the Federal Communications Commission, regarding the proposed legislation. I do hope that all members of the committee and all the persons interested in this question, particularly as it pertains to educational broadcasting, will be made aware of the Commission's comments.

It may be possible later to have a representative of the Commission here to testify in person-I hope so. The Chair will only observe that the Commission's comments have grave reservations about the proposed legislation insofar as educational broadcasting is concerned. Without objection, therefore, at this point the agency report will be received and made a part of the record.

(The document referred to follows:)

COMMENTS OF THE FEDERAL COMMUNICATIONS COMMISSION ON H.R. 4347, A BILL FOR THE GENERAL REVISION OF THE COPYRIGHT LAW, TITLE 17, U.S. CODE, AND FOR OTHER PURPOSES

The Commission appreciates the opportunity to submit comments on these important proposals. While we are not directly concerned with the copyright laws, their operation may have a significant impact on our statutory duties. Congress has given the Commission the duty, under section 303(g) of the Communications Act of 1934, as amended (47 U.S.C. 303 (g)), to "encourage the larger and more effective use of radio in the public interest." In implementing this duty, particularly with respect to broadcasting, we have always sought to foster the widest possible availability of program material for dissemination to the public. However, we also recognize the important public interest in protecting the rights of authors, artists, and composers in the works which they produce. Accordingly, it is the Commission's view that the copyright law should strike a fair balance between the rights of authors, artists, and composers to have appropriate control over the public dissemination of their works and the interest of the public in their widest dissemination.

473

52-380-66-pt. 1——31

We have reviewed the proposed legislation, and the following comments are intended to indicate the areas of concern to the Commission and to point out certain matters which we believe merit consideration.

NONCOMMERCIAL EDUCATIONAL RADIO AND TELEVISION

The primary concern to the Commission is the effect which this legislation may have on noncommercial educational television and radio broadcasting. We believe it essential that the copyright laws give due recognition to educational broadcasting as a significant and integral part of our educational resources, and that no undue burdens-particularly of a financial nature-be imposed which would inhibit realizing the full potential of this important medium. In order to understand fully the Commission's concern in this regard, we believe it would be helpful to set forth certain background information concerning educational broadcasting.

Both the Congress and the Commission have long recognized the importance and value of educational broadcasting. Not only is educational broadcasting an invaluable tool for in-school instruction, but it also has great potential for bringing educational programing, both of an informal and formal nature, directly into millions of homes for the benefit of the entire population. Moreover, it is nonprofit and noncommercial1 in its operation. As a result, noncommercial educational broadcasting is dependent upon subscription donations, foundations, and public funds for its operation. We firmly believe that educational broadcasting should be considered an integral part of the modern educational system— in its broadest sense-and fundamentally different and distinct from our commercial broadcasting system.

The role of eduactional broadcasting and the deep-rooted concern of the Congress and the Commission for its future can perhaps best be illustrated in the case of noncommercial educational television. In 1952, when the Commission issued its basic Sixth Report and Order on Television Allocations, it reserved 242 television channel assignments (both UHF and VHF) for exclusive noncommercial educational use. This action was based on the fundamental premise that noncommercial educational television was of such importance that the public interest dictated that sufficient channels be made available to establish a nationwide educational television system. It was necessary to "reserve" these channels because of the tremendous and immediate demand for them by commercial broadcasters, and the fact that educational broadcasters might not be in a position, either financially or administratively, to make immediate use of them.

Under the Commission's rules, nonprofit educational organizations are licensed to operate noncommercial educational television broadcast stations "upon a showing that the proposed stations will be used primarily to serve the educational needs of the community: for the advancement of educational programs; and to furnish a nonprofit and noncommercial television broadcast service."* Eligible licensees are limited to public and private educational organizations, local governments without public educational bodies such as a board of education, and, in some cases, a joint authority, representing local public, private, and other organizations interested in educational television.

1 While commercial broadcast stations carry educational programing and some stations licensed to educational institutions operate on a commercial basis, our comments are limited to those stations which are exclusively noncommercial educational operations.

2 Today, a total of some 358 TV channel assignments (both UHF and VHF) have been reserved by the Commission for noncommercial educational use (see table of television channel assignments, 47 CFR 73.606). Moreover, the Commission has outstanding a Further Notice of Proposed Rule Making (Docket No. 14229, FCC 63-975, Oct. 28, 1963: 28 F.R. 11738, Nov. 2. 1963), proposing that a total of about 703 television channel assignments be reserved for educational use. The Commission is also considering a study submitted by the National Association of Educational Broadcasters (NAEB) in this rulemaking proceeding on "The Needs of Education for Television Channel Allocations." which concludes that a total of 1.197 educational TV assignments will be required over the next decade. In addition, the Commission currently has pending before it over 32 individual petitions requesting the reservation of some 120 television channel assignments for noncommercial educational use. There are now 103 noncommercial educational television stations in operation. In the FM radio broadcast service. 20 out of the 100 FM frequencies have been reserved by the Commission for noncommercial educational use, and currently there are 259 noncommercial educational FM stations on the air. We expect many more such stations to develop on the reserved FM frequencies.

3 Sec. 73.621 of the Commission's Rules and Regulations (47 CFR 73.621).

C

Approximately one-third of the Commission's duly licensed ETV stations are operated by local groups formed to advance education, another third by local district or State school systems, and the remaining third by universities and colleges.

The Commission has taken a number of additional steps to foster educational television broadcasting stemming from a recognition of its importance and its unique problems-financial and otherwise. For example, ETV stations have been permitted to start operation with nominal technical facilities and limited hours of operation; no limitations are placed on the number of ETV stations that may be licensed to a single educational organization (thus permitting State bodies to institute statewide educational broadcasting); and noncommercial educational broadcast stations are exempt from the payment of fees for filing applications.

Congress has also taken extraordinary measures to foster educational television broadcasting. Public Law 87-477, the Educational Television Facilities Act of 1962, especially recognized the financial needs of educational television broadcast stations by authorizing $32 million in matching Federal grants over a 5-year period for the construction of noncommercial educational television broadcasting facilities. Significantly, Congress made clear that the funds were not intended solely to further in-school instruction, but rather to provide "educational television broadcasting facilities which will serve the greatest number of persons and serve them in as many areas as possible, and which are adaptable to the broadest educational uses." Further, the House committee report on this legislation stated:

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"The purpose of this legislation is to speed up the process of getting additional educational television stations on the air so that the American people-children, as well as adults-in schools, colleges, and universities as well as in their homes-may have the benefits of this new and important educational medium." " [Emphasis supplied.]

In 1962 Congress also passed Public Law 87-529, the all-channel television receiver bill, which authorized the Commission to require that all television receivers shipped in interstate commerce be capable of receiving all channels (both VHF and UHF) allocated for television broadcasting. The legislative history emphasizes that a prime motivation for enactment of this bill was to foster fuller utilization of UHF television broadcast channels for noncommercial educational use (since more than two-thirds of the channels reserved by the Commission for such use are in the UHF frequency band.)"

In sum, the consistent policy of the Federal Government has been to recognize the marked and basic distinctions between noncommercial educational and commercial broadcasting and to accord the former special treatment and substantial direct assistance. We consider continuation of this policy to be fully justified and, indeed, to be essential if the public is to realize the benefits of educational broadcasting's potential both for in-school instruction and as a general educational medium. Thus, we are concerned lest the copyright law fail to recognize adequately the role of noncommercial educational broadcasting and impose burdens on it-in the form of copyright fees and administrative and legal complications—which might seriously impair its operation. This is of particular concern because of the great variety of educational programing, the fact that much of such programing is locally originated, and the fact that a high proportion of educational programs deal with or present material which is likely to be subject to copyright. Thus, the problems of copyright infringement, clearance, and royalty payments would confront the educational broadcaster with regard to much of his program schedule. Such problems may well result in educational broadcasters having to avoid use of much copyrighted material essential for effective fulfillment of their mission, and may even raise some question concerning the viability of educational broadcast stations with limited

• Sec. 392 (c)(3) of the Communications Act of 1934, as amended (47 USC 392(e) (3)). 5 H. Rept. 999, 87th Cong., 1st sess., p. 10.

H. Rept. 1559, 87th Cong., 2d sess., pp. 2-4; S. Rept. 1526, 87th Cong., 2d sess., pp. 2–3. 7 State and local governments are, of course, directly involved in educational broadcasting on a wide scale, not only providing significant financial support, but also as the licensees (either directly or through their authorized instrumentalitles) of educational broadcast stations.

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