resources. We believe such results would be patently contrary to the public interest and established Government policy.

Turning to the specific provisions in the proposed legislation, we are concerned first with what appears to be a radical departure from existing lawinsofar as important aspects of educational broadcasting are concerned.

Under the provisions of section 1(c) and (e) of the present copyright law (17 U.S.C. 1(c) and (e)), the copyright owner's exclusive rights-in case of nondramatic literary and musical works-extends only to their public performance for profit. Today, anyone, including the educational broadcaster, may present copyrighted literary, poetical, historical, or musical materials without payment of royalties and without the copyright owner's consent so long as such performances are not "for profit" and are not dramatized. Under the proposed legislation there would still be a limited "for profit" exemption, but it would not apply to educational broadcasting.

Section 106 (a) (4) and (5) of the bill would grant to the copyright owner exclusive rights to all public performances or exhibitions of his works. Section 109 of the bill sets forth certain limitations on those exclusive rights, including a limited exemption for certain nonprofit performances, including educational, which meet the criteria set forth therein (sec. 109 (4)). However, the latter exemption specifically does not apply to a “transmission to the public.” While not included in the "for profit" exemption, one aspect of educational broadcasting would be exempt under another provision of the proposed legislation. Section 109 (2) would exempt "performance of a nondramatic literary or musical work, or exhibition of a work, by or in the course of a transmission, if the transmission is made primarily for reception in classrooms or similar places normally devoted to instruction and is a regular part of the systematic instructional activities of a nonprofit educational institution." This provision would exempt programs broadcast primarily for "in-school" instruction, even though the programs could also be received on home receivers. In this respect, the bill marks a significant improvement over the bills introduced in the 88th Congress, which would have subjected all educational broadcasting, including programs intended primarily for in-school instruction, to copyright coverage.' Despite the exemption for in-school programing, the failure to include broadcasting in the "for profit" exemption would leave noncommercial educational broadcasting intended primarily for home audiences fully subject to the copyright laws. As indicated, both Congress and the Commission have consistently regarded educational broadcasting to home audiences (including programs for children, adult education, and general cultural purposes) to be of equal, if not greater importance, as in-school instruction." Failure to exempt programing for home audiences would, we believe, unfairly discriminate against this valuable facet of noncommercial educational broadcasting, and would be contrary to the public interest.

As mentioned, our chief concern is exemption of noncommercial educational broadcasting operations from the very substantial direct and indirect burdens involved in obtaining copyright clearance, both with respect to "in-school" and more general educational and cultural material. We would like to point out that in one respect the bill goes further, in that it would appear to exempt transmissions "primarily for reception in classrooms," etc., even where-as is sometimes the case-such material is presented by commercial stations. In our view, the exemption is warranted in this situation also.

In sum, therefore, we favor the present language of section 109(2), with the addition of appropriate language exempting all transmissions (other than of dramatic works) by noncommercial educational broadcast stations.

s The present bill, as well as those introduced in the 88th Congress, would also exempt programs transmitted to schools by means other than broadcasting. i.e., by wire or radio transmissions not intended to be received by the general public. This exemption would include the transmission of instructional programs by stations in the instructional tele vision service solely to selected receiving locations in various schools (secs. 74.901-984 of the Commission's rules and regulations, 47 CFR 74.901-984). This nonbroadcast service, which operates on nonbroadcast frequencies and which cannot be received on ordinary television receivers. was instituted pursuant to the Commission's Report and Order in Docket No. 14744, adopted July 25, 1963, FCC 63-722: 28 F.R. 8103 and 9258, Aug. S and 22. 1963. The Commission strongly supports the exemption which sec. 109(2) would provide for material used in this service.

One of the Commission's obiectives in setting up the instructional television service in the 2500-megacycle-per-second band was to provide frequencies for ETV facilities which propose only transmissions for "in-school" use, thus freeing the educational television broadcast channels for use by facilities aimed at providing a more general educational and cultural service.

The Commission notes that the proposed bill incorporates in section 107 the judicially developed doctrine of "fair use." 10 In our opinion, this statutory recognition of the doctrine could be helpful to educational broadcasters, particularly since the latter make extensive use of excerpts in their programing. However, we are also mindful that "fair use" is both a limited and an indefinite doctrine. Thus, it seems clear that it applies only to the use of brief portions or excerpts of copyrighted works. Further, there is no precise way of knowing how much of a copyrighted work can be used in a given situation under the doctrine of fair use. The prospective user would apparently need expert advice to judge each case individually under the provision set forth in section 107, and, even so, there would be the risk of having to defend an infringement suit. These factors could present considerable problems for the noncommercial educational broadcasters, and we are therefore of the opinion that the doctrine of "fair use" would not, in and of itself, be an adequate answer for educational broadcasting purposes.

Copies. Unlike the present copyright law, the proposed bills under section 110 would give an organization lawfully entitled to transmit a copyrighted work the right to make one copy thereof, solely for its lawful transmissions and archival purposes, with the copy to be destroyed after 6 months or else retained only for archival purposes. (H.R. 4347 et al., sec. 110.) In general, the Commission supports this proposal, as an appropriate balancing of the interests involved. However, we believe that with respect to noncommercial educational broadcast material-where no profit element is involved—it is unduly restrictive with respect to the period during which further use is permitted. Many educational programs, particularly those designed for formal instruction, are reused over a considerable period of time. We believe such reuse, if limited to noncommercial educational purposes, should be permitted without royalty payments for as long as the programs have educational value. Accordingly, we urge that with respect to copies or recordings of those transmissions of an educational nature covered by section 109(2), the right of further use should last indefinitely. Duration. The present initial term of copyright (17 U.S.C. 24) is 28 years from first publication or registration, renewable by certain persons for a second period of 28 years, for a maximum total of 56 years. Section 302 of the proposed bills provides for a term of the author's life plus 50 years. For anonymous works and works made for hire, the term would be 75 years from publication, with a maximum limit of 100 years from creation of the work. The life-plus-50 or the 100-year term would apply to unpublished works which are now protected under the common law without time limit. Section 304 further provides that a first term copyright subsisting on January 1, 1967, may be renewed for an additional 47 years after expiration of the first term, and that any copyright, the renewal term of which is subsisting on December 31, 1965, or which is renewed between December 31, 1965, and December 31, 1966, inclusive, shall be extended to endure for a term of 75 years from the date copyright was originally secured. Under the present law, the renewal copyright after the first term of 28 years reverts in certain situations to the author or other specified beneficiaries. Section 304 (c) of the revised bill drops this renewal device, but permits the author or his widow and children to terminate a grant of his rights after 35 years (or up to 40 years in certain situations) by serving written notice on the grantee.

Not only would the duration of copyrights be substantially longer under these proposals, but it would apparently be considerably more difficult and complicated than at present to determine whether the copyright on a particular work had expired. This would likely impose additional burdens on all users of copyrighted works in terms of funds and the need for expert assistance. We would be concerned with the effect of such burdens on the limited resources of noncommercial educational broadcasters, if they were not granted a general exemption under the law.

TELEVISION TRANSLATOR STATIONS

The Commission supports the principle embodied in section 109(5) of the proposed bills, which appears designed to grant a fairly wide exemption to television translator stations. The latter constitute an important element in the Commission's scheme for providing television broadcast service to the public,

10 Proposed sec. 107 simply refers to "fair use"; in this respect it differs from sec. 6 of the 88th Congress bills, which enumerated in some detail the criteria for determining what is "fair use."

particularly in those areas not served by regular television broadcast stations. They are low power facilities (up to 100 watts) which merely rebroadcast the signal of a regular TV station without change except as to frequency." They are relatively inexpensive to construct, operate generally automatically and unattended at minimal cost. and are designed to "provide a means whereby the signals of television broadcast stations may be retransmitted to areas in which direct reception of such television broadcast stations is unsatisfactory due to distance or intervening terrain barriers." 12 Thus, they are in fact merely a mechanical link to bringing adequate TV service to areas which often might not otherwise have such service. The main station whose signals they rebroadcast must give prior consent for such use, under section 325(a) of the Communications Act, and of course the main station must for its own broadcast obtain copyright clearance and pay such royalties as the copyright law requires." The great majority of translators are licensed either to local public bodies or community groups in the communities served, or to regular TV station licensees seeking to improve their coverage.' Many are nonprofit operations supported by tax funds or general subscriptions.

13

18

While we favor the principle embodied in subsection 109 (5) we believe there are problems with two of the concepts contained in the latter portion of the proposed provision. Proposed subsection 109 (5) would exempt:

"(5) the further transmitting to the public of a transmission embodying a performance or exhibition of a work, if the further transmission is made without altering or adding to the content of the original transmission, without any pur pose of direct or indirect commercial advantage, and without charge to the recipients of the further transmission ;".

We are concerned with the phrases "without any purpose of direct or indirect commercial advantage" and "without charge to the recipients of the further transmission." 10

We believe that the phrase "without any purpose of direct or indirect commercial advantage" may prove to be troublesome. Where the translator is owned by or licensed to the commercial television station whose programs the translator is retransmitting, the purpose would clearly appear to include commercial advantage. However, where the translator licensee is an individual or organization in the community served by the translator, there would appear to be countless fact situations which could raise difficult questions as to whether the purpose of establishing a particular translator was direct or indirect commercial advan tage." Inquiry would have to be made into the purpose or intent which led to the construction and operation of a particular translator. In our view, the matter could better be handled by excluding from the exemption two particular classes of translators: those which are operated for profit, and those which are under common ownership with regular commercial TV stations (which have built them in hopes of improving their coverage). We would, therefore, favor eliminating the language "without purpose of direct or indirect commercial advantage" and substituting language along the following lines: "where the further transmission

11 A television broadcast translator station is defined in sec. 74.701(a) of the Commission's rules (47 CFR 74.701 (a)) as "a station in the broadcasting service operated for the purpose of retransmitting the signals of a television broadcast station or another television broadcast translator station, by means of direct frequency conversion and amplification of the incoming signals without significantly altering any characteristic of the incoming signals other than its frequency and amplitude, for the purpose of providing television reception to the general public." Approximately 1,696 television broadcast translator stations have been licensed by the Commission and some 308 construction permits are outstanding.

12 Sec. 74.731(a) (47 CFR 74.731(a)).

13 47 U.S.C. 325(a).

14 In the cases where the translator is rebroadcasting an educational station we believe the principles set forth above, concerning educational broadcasting generally, should apply. 15 Under sec. 74.732 (a) of our rules (47 CFR 74.732 (a)) translators may be licensed to "any qualified individual, organized group of individuals, broadcast station licensee, e local civil governmental body" meeting the other requirements of our rules.

16 Conceivably there could also be a question about the meaning of the phrase "witheat altering * the content of the original transmission." However, we assume that deletion of a particular program or programs from a translator's rebroadcast servicesometimes required by Commission policy where a regular TV station in the area is present ing the same program—would not be construed as "altering the content." If this is not the case, we believe the language should be clarified so that such deletion would n affect the exemption.

17 For example, a translator might be established by a local television receiver dealer whose purpose includes stimulating the sale of receivers.

is by a facility neither operated for profit nor under common ownership (wholly or partly) with the commercial broadcast station whose signal it is rebroadcasting."

As to the second phrase, “without charge to the recipients of the further transmission," the scope of this is obvious in some respects. However, we would like to point out that, read literally, it might affect numerous translators which are supported by general community subscription charges or by tax funds. This we believe to be an undesirable, and probably unintended, result. In our view this aspect of the matter can be covered, insofar as it is appropriate, by the "not for profit" limitation mentioned above. Accordingly we would favor elimination of the language mentioned concerning charges.

We wish to reemphasize the importance which the Commission attaches to the development and operation of translator stations. Where these are nonprofit and not owned by regular commercial TV stations, we are concerned lest their continued operation be jeopardized by the imposition of the possible costs and substantial administrative burdens involved in the copyright clearance process, which, by and large, the community and publicly licensed translators are not set up to handle.

Adopted: April 21, 1965. Commissioner Lee absent; Commissioner Cox abstained from voting.

Mr. KASTENMEIER, The first witness we have this morning is Mr. William G. Harley, president of the National Association of Educational Broadcasters. Is Mr. Harley present?

Mr. HARLEY. Mr. Chairman, may I ask permission for two of my colleagues to join me?

Mr. KASTEN MEIER. Please do.

Mr. HARLEY. Mr. Burrows and Mr. Aleinikoff.

Mr. KASTENMEIER. May the Chair state that Mr. Harley, for many, many years, was associated with the University of Wisconsin, with WHA, the oldest station in the Nation, certainly in terms of educational broadcasting and certainly in terms of the identification of its single ownership.

I was a student announcer at the time when the witness this morning was the assistant director of the station. As I recall, at any rate, he had a prominent position in the station.

Mr. POFF. Your old boss.

Mr. KASTEN MEIER. My old boss. Welcome to the committee.

Mr. HARLEY. That was at a time when the quality of the station was immeasurably raised by the quality of the announcing staff.

STATEMENT OF WILLIAM G. HARLEY, PRESIDENT, NATIONAL ASSOCIATION OF EDUCATIONAL BROADCASTERS

Mr. Chairman, I am William G. Harley, president of the National Association of Educational Broadcasters, known as the NAEB. I propose to make a general statement in behalf of educational broadcasting. My colleagues will address themselves to details in the field, and they will be followed by station managers who will have statements as well.

The NAEB is the organized voice of the noncommercial, educational broadcasters in the United States. Its membership consists of universities, colleges, public and private schools, and nonprofit community corporations which operate some 129 noncommercial educational radio stations, 126 television stations, and more than 100 closed-circuit television systems and program production centers. Its membership also includes some 1,800 individuals who are classroom teachers and studio

teachers, program producers, directors, technicians, and researchers involved in utilizing and adapting the electronic tools to the educational process. The art of educational broadcasting is itself taught at many of these member institutions-a day-by-day, continuing search for the most effective use of radio and television in the field of education.

These member stations and facilities are operated in the direct service of education, as their primary function. That is why the NAEB has associated itself with such institutions as the American Council on Education, the National Catholic Educational Association, the National Education Association, and some 30 other national educational organizations in the Ad Hoc Committee on Copyright Law Revision. Our interests are parallel; we in American education believe it to be in the highest interest of our Nation to have a free and unfettered flow of information from teacher to student. The NAEB has participated fully in the ad hoc committee work; it supports without reservation the suggested revisions the ad hoc committee has presented to this committee. I speak on behalf of educational broadcasting, and there are some special aspects of educational radio and educational television that I would like to particularize for the committee today.

The bill before the committee, H.R. 4347, must, I believe, be considered in the context of national policy. The Congressional Record memorializes each day the remarks of the Members of the Congress emphasizing the importance of education and educational broadcasting. Specifically, the Congress has dealt with such measures as the recent overall Elementary and Secondary Education Act (H.R. 2362), the National Defense Education Act, the Educational Television Facilities Act, that provides Federal funds for educational television station construction, and the all-channel television receiver legislation which requires all receivers moving in interstate commerce to have UHF reception capability, a congressional measure favorable to education because two-thirds of education's stations will eventually operate in this portion of the radio spectrum.

Thus the Congress has given much thought to education and has helped to provide it with the highways and transportation units for moving its products to its consumers. We are not concerned here with Federal funds for brick and mortar or electronic gear-what is important is that the proposed copyright law has a direct effect on the product educational stations have an obligation to bring to the American public. What benefit is there in beautiful highways and elaborate transportation units, if we must run them empty or, at the most, not filled to capacity?

It bears repeating that radio and television broadcasting are unparalleled as distribution instruments. They bring opportunities to thousands of students who are widely separated geographically, socially, economically. They can teach people wherever they may be at home, in school, in hospitals and factories. These people will fall into many categories-preschool children, children in elementary and secondary levels, those who are ill or handicapped. They will live in tenements or tenant farmer shacks, villages or large cities-no matter what the environmental condition may be, radio and television