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dormitories or at home. Education is rapidly moving in the direction of providing many alternatives and options to learning wherein school is becoming a concept rather than a place.
(B) The bill also fails to clarify the meaning of fair use as applied to the uses of instructional materials by teachers and students. The recent Supreme Court decision in the Williams & Wilkins case validates our position that fair use is unreliable at best and is, in the words of the Court of Claims, an amorphous doctrine. The bill leaves it in that status. If eight Justices of the Supreme Court are unable to reach agreement on whether a given use of a work is a fair use, how can one expect a nonjurist to know? The language and rationale are just as applicable against teachers and schools as against libraries.
The NEA does not condone "under the table” uses. It simply wants teachers to have reasonable certainty that a given use of copyrighted work is permissible so that they will not be afraid to use a wide variety of materials and resources in the classroom.
The bill further fails to recognize custom and practice in education as a proper basis for fair use, as was decided in the Williams & Wilkins case. For many years, teachers have been accustomed to certain classroom uses of materials being unchallenged or unquestioned. For example: A class is having difficulty understanding symbolism in literature, and the class text does not go far enough in its explanation. The teacher therefore makes multiple copies of a short poem or a short essay—from another book—that would help the class understand the concept.
Allow me to give some personal examples:
Teachers in my department make synchronized tape presentations for classroom use. The basis of those slide tape presentations are, by and large, their own materials: Pictures taken on their own trips. However, some specific items may not be available to the teacher, because you need special permission to get access to the area, or perhaps the pictures taken by the teacher did not turn out quite as well as could be desired. In such an instance, the teacher may prefer to take a picture from the available magazine, make a slide of it, incorporate it right into the slide tapę program.
Another example, dealing with foreign exchange values, dealing with the currency of a given country: On the day that that topic may come up, the teacher would perhaps make copies, 30 copies, of the foreign exchange rates of the previous day in order to help the children make the decision on what the daily rate concerning the story at hand, or topic at hand, would be for, say, marks, shillings, or Swiss francs.
Teachers, consequently, have assumed that such uses were legitimate. We argue that custom can become law when it is not questioned. This is particularly true in cases where the law is ambiguous, as in the case of the fair use doctrine, where long-established and noncontested custom and practice has in fact established a meaning for the statutes.
In this regard, the NEA is also concerned that the bill still places the burden of proof on the classroom teacher to prove that he or she has not infringed copyright. The NEA believes strongly that this burden of proof should be shifted to the alleger of the infringement, who has all the data involved in all the criteria for fair use which are specified in section 107.
(C) This legislation further reduces accessibility now permitted through the nonrenewal of copyrights after 28 years. It does this by eliminating the renewal requirement and by providing for duration of life plus 50 years. This is a curtailment of education's present rights of access because it unduly extends copyright monopoly from 28 years plus a 28-year renewal period to approximately 75 years. Copyright Office records show that approximately 85 percent of copyrighted works have not been renewed after the initial 28-year period, but have passed instead into the public domain. The unwarranted extension of copyright in H.R. 2223 would protect the author's or creator's heirs more than it would the author or creator himself or herself. We ask, therefore, why the principle of free access to information so essential to a free society should be sacrificed, especially when the author or creator himself or herself has not seen fit to renew the copyright. Many teachers who are also authors tell us that they are as muchmore-interested in seeing their works used and their ideas disseminated as they are in receiving remuneration each time their works are used. The profit motive is not the only motive that prompts an author or other creator to produce. There is also the satisfaction that comes from getting one's ideas into the open for discussion and debate, with the hope of finally seeing them adopted and thereby creating a better life for others who follow.
In summary, the NEA will not be able to support a bill unless it (1) retains and clarifies an overall not-for-profit concept for educational, scholarly, and research uses and copying, whether couched as a limited educational exemption or in some other suitable comprehensive form; (2) clarifies the meaning of fair use as applied to teachers and learners; and (3) shifts the burden of proof from the teacher to the alleger of the infringement.
NEA therefore urges the adoption of language by this committee that encompasses the above-stated concepts and makes copyright reform meaningful for the teachers, scholars, researchers, authors, and publishers who create, transmit, and perpetuate our heritage for future generations.
Mr. Chairman, I would like to submit for the record the ad hoc committee's proposal on the exemption.
Mr. KASTENMEIER. Without objection, that proposal will be received and be made part of the record.
[The material referred to follows:] Ad Hoc COMMITTEE'S PROPOSAL FOR LIMITED EDUCATIONAL EXEMPTION; LIMITA
TIONS ON EXCLUSIVE RIGHTS: REPRODUCTION FOR TEACHING, SCHOLARSHIP AND RESEARCH
Notwithstanding other provisions of this Act, nonprofit use of a portion of a copyrighted work for noncommercial teaching, scholarship and research is not an infringement of copyright.
For purposes of this section :
(1) "Use” shall mean reproduction, copying and recording; storage and retrieval by automatic systems capable of storing, processing, retrieving, or transferring information or in conjunction with any similar device, machine or process ;
(2) “Portion” shall mean brief excerpts (which are not substantial in length in proportion to their source) from copyrighted works, except that it shall also include (a) the whole of short literary, pictorial and graphic works; (b) entire works reproduced for storage in automatic systems capable of storing, processing, retrieving, or transferring information or in conjunction with any similar device, machinē or process, provided that
(i) A method of recording retrieval of the stored information is established at the time of reproduction for storage, and
(ii) The rules otherwise applicable under law to copyrighted works shall apply to informtion retrieved from such systems;
(c) Recording and retransmission of broadcasts within five school days after the recorded broadcast; provided that such recording is immediately destroyed after such 5-day period and that such retransmission is limited to immediate viewing in schools and colleges.
Provided that "portion" shall not include works which are
(a) Originally consumable upon use, such as workbook exercises, problems, or standardized tests and the answer sheets for such tests;
(b) Used for the purpose of compilation within the provisions of Section 103(a).
Mr. STEINBACH. I would next like to introduce Dr. Howard B. Hitchens, executive director, Association for Educational Communications and Technology.
[The prepared statement of Howard B. Hitchens follows:] STATEMENT OF HOWARD B. HITCHENS, EXECUTIVE DIRECTOR, ASSOCIATION FOR
EDUCATIONAL COMMUNICATIONS & TECHNOLOGY The Association for Educational Communications and Technology represents eight thousand educators whose professional commitment is directed at finding technological solutions for the wide range of educational problems. It is important to note here that we regard technology as far more than a collection of educational machines and materials. Technology represents a systematic approach to practical problems that emphasize the application of relevant research. Professionals in my field occupy any number of roles—whether it's directing media programs; developing specific instructional materials for classroom or individual use; assisting teachers or others in selecting materials to meet a specific educational objective; evaluating materials; identifying long-range educational objectives and developing long-range plans to meet these objectives. Our members with this wide variety of jobs are employed in schools and colleges; in the Armed Forces and industry, and in museums, libraries and hospitals throughout the country.
Because they are so involved in the use of technology and modern communications, AECT members have run head-on into the 1909 copyright law which provides few answers for them in how they can use copyrighted materials. And the problem becomes more difficult as media professionals find themselves placed increasingly in the role of “copyright expert” for their institution. Because media professionals play such a vital role in education planning and materials selection, school administrators are turning to them to answer the complex copyright questions that arise daily in modern educational settings.
SO AECT, as an association, is vitally concerned with the future of the bill you are considering today. We have spent much time and energy trying to determine the needs of education in relation to a new copyright law, but have come to realize that we cannot look at the needs of education in isolation. Since we are dependent to a great extent on the output of producers of education materials, we must take their needs into consideration.
There is little doubt that the success of each group-educators and producers-depends upon the support of the other. If the educators do not utilize instructional materials, the producers surely cannot remain in business. The teacher, media professional, and the librarian create markets for an author's work and give them visibility. Likewise, in this day of individualized instruction, the open classroom, ungraded schools, and student self-evaluation, the successful educator-teacher, librarian, curriculum developer-wants to utilize a wide range of learning resources. Certainly, when producers and users can act in concert, the student reaps the benefits.
In considering the needs of both sides educators and producers AECT has adopted a position relative to copyright that we feel serves both groups. AECT endorses with one exception the fair use provisions outlined in Section 107 and the accompanying legislative history. The full text of our position paper follows. Particular attention should be paid to the third and fourth paragraphs, which deal with the issue of "fair use."
[H.R. 2223] COPYRIGHT LAW REVISION: A POSITION PAPER BY THE ASSOCIATION FOR
EDUCATIONAL COMMUNICATIONS AND TECHNOLOGY The members of the Association for Educational Communications and Technology (AECT) believe that technology is an integral part of the teachinglearning process and helps to maximize the outcomes of interaction between teacher and pupil.
Regulations governing United States Copyright were originally developed to promote the public welfare and encourage authorship by giving authors certain controls over their work. It follows that revisions in Title 17 of the United States Code (Copyrights) should maintain the balance between providing for the compensation of authors and insuring that information remains available to the public. Some of the revisions proposed in S. 22 and H.R. 2223 lose sight of this balance between user and producer.
AECT endorses the criteria to be used in the determination of "fair use" as contained in Section 107 of the proposed bill : Section 107. Limitations on exclusive rights : Fair use
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords, or by any other means specified by (Section 106), for purposes such as criticism, comment, news reporting, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is fair use the factors to be considered shall include:
(1) The purpose and character of the use;
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) The effect of the use upon the potential market for or value of the copyrighted work. However, we propose that the concept of "fair use" should apply equally to the classroom teacher and media professional—including specialists in audiovisual and library resources. Media personnel are becoming increasingly important members of educational planning teams and must have the assurance that they may assist classroom teachers in the selection of daily instructional materials as well as with long range curriculum development. Classroom teachers do not always operate "individually and at (their) own volition.” The fact that the media professional makes use of advance planning and has knowledge aforethought of the materials he prepares for the teacher should not invalidate the application of the "fair use" principle.
Concerning the use of copyrighted works in conjunction with television, AECT proposes that "fair use," as it has been outlined above, should apply to educational/instructional broadcast or closed-circuit transmission in a non-profit educational institution, but not to commercial broadcasting.
Once the doctrine of "fair use" has been established in the revised law, negotiations should be conducted between the proprietor and user prior to any use of copyrighted materials that goes beyond that doctrine. We believe that the enactment of the "fair use" concept into law prior to negotiations will guard against the erosion of the concept. Generally, a reasonable fee should be paid for uses that go beyond "fair use," but such fee arrangement should not delay or impede the use of the materials. Producers are urged to give free access (no-cost contracts) whenever possible.
We agree with the Ad Hoc Committee of Educational Organizations and Institutions on Copyright Law Revision that duration of copyright should provide for an initial period of twenty-eight years, followed by a renewal period of forty-eight years, whereas the proposed bill sets duration at the "life of the author plus fifty years." It seems reasonable that provisions should be made to permit those materials which the copyright holder has no interest in protecting after the initial period to pass into the public domain.
Regarding the input of copyrighted materials into computers or other storage devices by non-profit educational institutions, we agree with the Ad Hoc Committee that the bill should clearly state that until the proposed National Commission on New Technological Uses of Copyrighted Works has completed its study, such input should not be considered infringement. The proposed bill states only that “... (Section 117) does not afford to the owner of copyright in a work any greater or lesser rights with respect to the use of the work in conjunction with automatic systems..."
A new copyright law that both users and producers can view as equitable depends upon the mutual understanding of each other's needs and the ability to effectively work out the differences. We will participate in the continuing dialogue with the Educational Media Producers Council and similar interest groups to establish mutually acceptable guidelines regarding the boundaries of "fair use." and reasonable fees to be paid for uses beyond "fair use." This dialogue will be especially important in the area of storage, retrieval, and/or transmission of materials during the time period prior to the issuance of the report of the National Commission on New Technological Uses of Copyrighted Works.
We feel that the above modifications of S. 22 and H.R. 2223 are needed to insure that the revised law assists rather than hinders teachers and media specialists in their work.
Our major concern with fair use is that in studying the legislative history of the doctrine, fair use does not seem to apply equally to media professionals as to teachers. The previous House and Senate reports identify "spontaneity" of the use as an important determinant as to whether a use is fair or not. Fair use is extended to a classroom teacher who “acting individually and at his own volition makes one or more copies for temporary use by himself or his pupils in the classroom.” However, classroom teachers do not always act individually or at their own volition. They are frequently assisted by media professionals with the selection of daily instructional materials as well as long range curriculum development. The fact that a media professional is frequently not classified as a “classroom teacher" and is sometimes even classified as "administration" should not prevent him from continuing his role in the instructional process. We are not suggesting that any rights beyond "fair use" be extended to media professionals, only that they be allowed as much freedom as other education professionals. We are currently working with others interested in this problem and will present alternative language to this subcommittee in the near future.
Even though we support the enactment of Section 107 with suggested changes, we realize that it will not solve the daily dilemmas faced by media professionals, teachers, and librarians. AUDIOVISUAL INSTRUCTION, a magazine published by my association, features a monthly column entitled "Copyright Today" that demonstrates the confusion over the bounds of fair use. The column (several reprints are attached) features copyright questions posed by readers with answers suggested by copyright experts, usually including at least one educator and one producer. As you can see from the examples, there are frequently as many answers to a given question as there are copyright experts.
Take the following question from the November 1974 issue of Audiovisual Instruction:
Question. Two teachers in this district are preparing audio tutorial packages for the fifth grade botany unit. They found five pictures they need in a color film owned by the district. They want to make slide copies of the five frames. Two copies of each slide is required. Would this be a violation of the copyright law?
There are two opinions as to the legality of this action provided in the article one by an educator, the other by a representative of the producers. The educator felt the situation cited may be beyond fair use because more than one copy would be made and the copying would be done by someone (the media professional) other than a classroom teacher. The producers' representative states that the situation would fall within "fair use."
As I said we realize the enactment of Section 107 will not solve our problems. Even with the guidelines provided in that Section it is still difficult to determine what is fair use and what is not. And if an educator is not able to determine if the proposed use is fair and feels that permission to copy should be obtained in order to remain safely within the bounds of the law, how does he or she get permission from a publisher or producer to use the material ?
Requesting permission to use copyrighted materials is currently a long and frequently tedious process for educators. An attached article entitled "Copyright As It Affects Instructional Development” (Audiovisual Instruction. December 1974) demonstrates the problems of contacting numerous producers with no predetermined procedures. Perhaps this problem could be solved by establishment of a clearinghouse either governmental or privately operated. Certainly this would make it easier for an educator if he or she has to contact only one source for permission rather than trying to deal with