monly used and we have been active in copyright revision proceedings over the past 10 years or more.

We are here as we indicated on two major issues, the first being a compulsory license for public broadcasting. By the term "public broadcasting" we mean public broadcasting to external, general audiences such as appears during the late afternoon and night time on most educational and public stations, both radio and television across the country.

We are also here to ask that the original provisions on multiple recordings for instructional television be put back into the bill in the same way the revision bill was enacted in 1967 by the House of Representatives. Since that time, in the course of the Senate proceedings there have been restrictions placed on those recording rights for school broadcasting, differing from time to time, and the present draft of H.R. 2223 retains some of those restrictions.

I would like to emphasize the difference between the two amendments in terms of what kind of noncommercial broadcasting they relate to. In the case of general audience public broadcasting we are asking for the consideration of a compulsory license. For instructional broadcasting where there already exists an exemption, we are requesting recording rights to go along with that exemption.

I think that the best way to proceed is for Mr. Quayle, Senior Vice President of CPB, to give us an overall picture of public broadcasting. Mr. KASTENMEIER. Let me interrupt to say that without objection, the statements as submitted to the committee will be received and printed in the record in full at this point.

[The documents referred to and certain related submissions follow:]

STATEMENT BY EUGENE N. ALEINIKOFF, Esq. As COUNSEL TO THE AGENCY FOR INSTRUCTIONAL TELEVISION AND OTHER EDUCATIONAL TELEVISION AGENCIES As counsel to the Agency for Instructional Television and other educational television agencies, I should like to take this opportunity to comment on the proposed provisions relating to instructional television in H.R. 2223.

"Instructional television" is the term commonly applied to television programing specifically designed for classroom use as part of the formal educational process. These are the school programs regularly broadcast over most educational television stations during the school hours from 9 a.m. to 3 p.m. Instructional television schedules are almost always developed by the local public educational authority in conjunction with the ITV specialist at the local ETV station, and form an integral part of the teaching curriculum of the local school system.

From its earliest drafts, the Copyright Revision Bill in both the House and Senate has fully recognized the parallel needs of electronic and classroom teachers, and so included an instructional television exemption in Section 110(2) akin to the "face-to-face" teaching exemption in Section 110 (1). Unfortunately, the recording restrictions currently imposed on instructional television in Section 112(b) of H.R. 2223 cannot help but substantially frustrate the practical application of the Section 110 (2) exemption to American education.

Relevant Provisions of H.R. 2223. The instructional television exemption provided in Section 110 (2) is as follows:

"S 110. Limitations on exclusive rights: Exemption of certain performances and displays.

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

(2) performance of a nondramatic literary or musical work or display of a work, by or in the course of transmission, if:

(A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and

(B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and

(C) the transmission is made primarily for

(i) reception in classrooms or similar places normally devoted to instruction;

(ii) reception by persons to whom the transmission is directed because of their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction; or

(iii) reception by officers or employees of governmental bodies as part of their official duties or employment."

It should be emphasized that the Section 110 (2) exemption does not apply to dramatic works such as plays or operas, since limited to non-dramatic literary and musical works. Nor does the ITV exemption apply to motion pictures and other audio-visual works, since limited to "display" which is defined in Sec. 101 as "in the case of a motion picture or other audio-visual work, to show individual images nonsequentially". What the ITV exemption does cover, therefore, is literature and poetry, biography and news, music and records, pictures and photographs, illustrations and charts-all materials that would commonly be available in classrooms under standard educational practice.

The Section 110(2) exemption is limited, however, to "performance" and "display". Recording permission for ITV transmission purposes must be found in Section 112 (b), which reads in H.R. 2223 as follows:

"(b) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization entitled to transmit a performance or display of a work, under section 110 (2) or under the limitations on exclusive rights in sound recordings specified by section 114(a), to make no more than thirty copies of a particular transmission program embodying the performance or display, if—

(1) no further copies or phonorecords are reproduced from the copies or phonorecords made under this clause; and

(2) except for one copy or phonorecord that may be preserved exclusively for archival purposes, the copies or phonorecords are destroyed within seven years from the date the transmission program was first transmitted to the public."

Thus the present Section 112 (b) limits ITV recordings both in number of copies to thirty and in period of use to seven years insofar as the Section 110 (2) exemption is concerned.

In order to eliminate these prohibitory restrictions under Section 112 (b), the following substitute paragraph has been proposed by amendment offered by Senator Bayh in the current Senate Judiciary Committee proceedings on S. 22:

"(b) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization entitled to transmit a performance or display of a work under section 110(2) or 114(a) to make copies of a particular transmission program embodying the performance and display, and to distribute such copies for transmission by or through other governmental bodies or nonprofit organizations."

The Senate Judiciary Committee has not yet acted on the proposed Section 112 (b) amendment, but is scheduled to do so before reporting out the Senate 1975 Revision Bill.

Legislative History. Attempts at restricting the scope of the Section 110(2) ITV exemption are not new and have been made in one way or another since its original proposal in the 1960s. Indeed, the present House Revision bill went so far as to include a geographical broadcast limitation of 100 miles without interconnection, and an ephemeral recording restriction of no more than two copies, to be used for no longer than one year. The undisguised intent of the tight restriction was to confine the ITV exemption to unimportant and inconsequential local "live" school programming-an increasing rarity in instructional television where the prime emphasis is and must be on increased quality, long-term usefulness, wide availability and maximum effect from the tax-dollar. Consequently, when enacted by the House in 1967, the 100-mile broadcast limitation was early abandoned and the recording restrictions completely deleted on the House floor.

But the copyright interests have never given up on their earnest efforts to nullify the ITV exemption during the Senate deliberations since 1967. At their demand, the earlier two-copies-in-one-year limitation removed by the House was re-inserted in the Senate bill. Over their continuous objections, this 112(b) restriction has been successively expanded through efforts of Senate Judiciary Committee members to twelve copies usable within five years, and then

to the present thirty copies to be destroyed after seven years. While at first glance these latest numbers may seem far more ample than before, they unfortunately still are sufficiently restrictive to prevent practical application of the ITV exemption to the rapidly changing electronic world of American education. Educational Advances. By reason of the explosive communications developments in recent years, school systems across the country have ever-increasing recording and transmission capabilities. Instructional television programs have long been re-recorded separately for multistation use. More and more demands are being made for multiple school recordings for institutional and classroom closed-circuit transmission when and as needed, rather than on fixed external schedules.

With the development of economical and efficient videotape and cassette recording devices, very few ITV programs are produced or broadcast "live." Most local ITV programs are designed for re-use in succeeding school years unless exceptionally timely in content. High-quality multi-state telecourses are spe cifically intended to be re-duplicated in quantity for maximum usefulness in several states over a number of school years.

The result is that numerical or time restrictions on ITV recordings, unless so broad as to be meaningless, are unnecessarily confining and inevitably inhibiting. Any ITV program worth its salt is sure to be re-duplicated, whether for local, state or national use, in many formats and for many purposes, all valid and desirable. To establish an arbitrary number of copies and an artificial destruction date not only serves no useful purpose, but runs contrary to the moving forces in American education today.

It is not without reason that the Congressional act specifically providing funds for special minority group education-the Emergency School Aid Actrequires that funded ITV programs be made available in as many forms and for as wide use as possible. To enact a new copyright law that is slanted in the direction of restricted instructional exposure is squarely inconsistent with these important efforts at upgrading local education through nation-wide television materials.

Analysis of Section 112(b). The manner in which Sec. 112(b) is now drafted in itself creates serious problems for instructional television agencies. Beyond the fact that the title of the section-"Ephemeral Recordings"-is somewhat misleading for standard ITV recordings, the present subsection language gives rise to serious questions as to meaning and effect.

In the first place, it is not clear whether the numbers and year limitations apply separately to each transmitting organization or collectively to the first transmitting organization alone. If the former, the number of permissible copies throughout the United States would be astronomical and in actuality, limitless. If the latter, what if an ITV series is produced and distributed by an established non-profit organization which is either not an ETV station itself (such as the Agency for Instructional Television, the Great Plains Library and the Public Television Library-which are the main ITV and ETV distribution agencies today) or acting as the coordination on a single project for educational systems and ETV stations in several states (as in the case of the AIT consortia series).

Secondly, what does the term "transmit" mean in Section 112(b)? Does it include any communication of an ITV program "by any device or process” as indicated in the Section 101 definitions or is it limited to ETV station broadcasting as might be presumed from its past legislative history? If the former, the 30-copy limitation is obviously entirely unrealistic for national use; if the latter, the many students in areas served by educational limited-frequency and closed-circuit systems supplementing standard ETV stations would be unreasonably barred from ITV program advantages.

Third, does Section 112(b) apply to unauthorized as well as authorized recordings? If it does, how can the thirty-copy or 7-year limits possibly be policed by any agency? If it doesn't, what possible purpose can be served by applying the limitations only to those educational agencies in direct contact with the producing or distribution organization?

Finally, what are the legal consequences of exceeding the copy and duration restrictions under Section 112(b)? Would a prohibited 31st copy invalidate the statutory authorization for the first 30 copies, and hence all become retroactive copyright infringements? In this respect, it should be noted the item (2) stricture against "further copies" makes no distinction between copies reproduced by the original transmitting organization and those made by any other institution or individual with or without permission. Similarly, would failure by any agency

to destroy every copy at the end of seven years again operate to reclassify all authorized copies as copyright infringements, including those dutifully destroyed during the 7-year period? Again, no allowance is made for inadvertent omissions nor is any provision made for third-party contractual violations, as in the case of copyright notice deficiencies for the benefit of copyright proprietors.

It is not difficult to anticipate the inevitable result of all these legal uncertainties-sufficient fear of infringement consequences by ETV stations and ITV distribution agencies to forgo not only Section 112(b) recording privileges but the Section 110 (2) exemption altogether. It is submitted that only by amending Section 112(b) to provide far greater and much more certain recording flexibility can the ITV exemption have much practical educational effect in the years to

come.

STATEMENT OF DONALD R. QUAYLE, SENIOR VICE PRESIDENT FOR BROADCASTING, CORPORATION FOR PUBLIC BROADCASTING

Mr. Chairman and members of the Subcommittee, I am Donald R. Quayle, Senior Vice President for Broadcasting for the Corporation for Public Broadcasting. I am pleased to have this opportunity to present the views of the Corporation on HR 2223, a bill that provides for the general revision of the current copyright laws.

Since 1967, when representatives of noncommercial broadcasting last appeared before this subcommittee to testify on proposed copyright revision legislation, pervasive legal, organizational and structural changes have taken place in noncommercial broadcasting. The purpose of this statement is to summarize these changes for the subcommittee and to point out the effects that they have had, in particular on the relationship between noncommercial broadcasting and the United States Congress.

When last before this subcommittee, representatives of noncommercial broadcasting spoke of the decentralized, locally autonomous nature of noncommercial broadcasting, which made it drastically different from its commercial counterparts. Today, decentralization and local autonomy still remain the touchstones of noncommercial broadcasting and are essential to its vitality and mission. However, a very important element exists today that was absent when we last appeared before you. It is a commitment by the Congress, embodied in law and amplified in proposed legislation now pending before this Congress, to complement and assist noncommercial broadcasting in a manner consistent with its locally autonomous nature and in cognizance of first amendment considerations. Congress has committed itself to see noncommercial broadcasting live and grow, so that programs that constitute an expression of diversity and excellence will be available to all citizens of the United States.

In particular, enactment of the Public Broadcasting Act on November 7, 1967, set out the framework for Congress' commitment to noncommercial broadcasting. In that Act, Congress declared that encouragement and support of noncommercial broadcasting is in the public interest, and that while these are matters of importance for private and local development, this support and encouragement is also an appropriate and important concern to the Federal government.

Congress also found that ". . . it furthers the general welfare to encourage noncommercial educational radio and television . . .", and “. . . that it is necessary and appropriate for the Federal government to complement, assist, and support a national policy that will most effectively make noncommercial educational radio and television service available to all citizens of the United States." Congress also envisioned in the Public Broadcasting Act, the existence of a private, nongovernmental corporation which would receive appropriated funds from Congress to carry out the goals and purposes of the Public Broadcasting Act of 1967. This resulted in the Corporation for Public Broadcasting, a private corporation organized under the District of Columbia Non Profit Corporation. Since 1969, when the Corporation became operational, Congress has appropriated a total of $222.5 million to the Corporation to be used to foster the full development of noncommercial broadcasting.

In this session, Congress is in the process of underscoring and amplifying this commitment through its consideration of unique legislation which will authorize and appropriate funds for five years on a matching basis, to be used by the Corporation for Public Broadcasting for its operational use and support of noncommercial broadcasting. This measure has cleared the full Commerce Committees of the House and Senate. We are hopeful of imminent approval by the respective Committees on Appropriations. This legislation not only represents a con

tinued commitment by Congress, but reflects a continued recognition by the Congress of the unique and special position and nature of noncommercial broadcasting.

In 1967, this subcommittee eliminated the limited exemption from licensing and royalties that noncommercial broadcasters enjoyed as nonprofit users of certain copyrighted works. Your report stated that the reasons for this action were that the subcommittee ". . . found persuasive the arguments that the line between commercial and 'nonprofit' organizations is increasingly difficult to draw, that many 'nonprofit' organizations are highly subsidized and capable of paying royalties, and that the widespread public exploitation of copyrighted works by educational broadcasters and other noncommercial organizations is likely to grow. In addition to these trends, it is worth noting that performances and displays are continuing to supplant markets for printed copies and that in the future a broad 'not for profit' exemption could not only hurt authors but could dry up their incentive to write."

The Senate Committee on the Judiciary, in reporting out copyright revision legislation in the last Congress, also eliminated this special treatment for noncommercial broadcasters for identical reasons, and almost in identical words. That is, the Senate committee apparently deferred to the reasoning of the House Judiciary Committee on this issue.

We submit that the Congressional commitment to noncommercial broadcasting made subsequent to the time that the House Judiciary Committee wrote the above quoted words in March of 1967, and Congress' continuing recognition of the unique value of noncommercial broadcasting to the citizens of the United States, warrant reconsideration of those actions and words.

We believe that this commitment to, and recognition of, the special nature and public benefits of noncommercial broadcasting by the Congress might well support some form of special consideration for noncommercial broadcasting in the copyright area. This does not necessarily mean that noncommercial broadcasters would not be willing to make some form of payments to copyrightholders in recognition of valuable contributions that their works make in the production of programs of high quality and excellence. However, under H.R. 2223, as currently drafted, noncommercial broadcasters would be faced with a multitude of administratively cumbersome and very costly rights "clearance" problems that cannot help but impair the vitality of their enterprise. All noncommercial educational television and radio stations are locally owned and operated, some by colleges and universities, others by state or municipal authorities, still others by private, public service organizations. They are located in almost every state and in hundreds of large and small communities. Each is independent of the kind of centralized administration that would facilitate rights clearances.

Moreover, when it is realized that approximately 60% of the dollars supporting public broadcasting activities are state or federal tax revenues, that the urgent need for expanded and improved public broadcasting services far outstrips the dollars available to pay for them, and that each dollar spent in the administrative process of clearing rights will benefit neither the citizens for whose benefit public and private support of noncommercial broadcasting has been contributed nor even the copyright holder-the case for some form of special consideration becomes even more compelling.

Congress has not been unsympathetic to the financial burdens of public broadcasting in the past. When the costs of essential interconnection services threatened to impair the effectiveness of vital public broadcasting services to the people, the Public Broadcasting Act was written to permit relief in the form of free or reduced rates for interconnection.

The establishment of rates for interconnection services and the establishment of royalties for copyright use are at least analogous, and we would hope that the Committee would give full attention to an equally appropriate form of relief for public broadcasting in the copyright area. Certainly, the Public Broadcasting Act as a whole demonstrates overriding concern for the financial and administrative burdens of noncommercial broadcasting.

On behalf of the Board and management of the Corporation for Public Broadcasting. I extend our appreciation for this opportunity to address the subcommittee on the pending copyright revision legislation and thank the subcommittee for the interest and concern it has shown for noncommercial broadcasting.