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 specifically 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.

STATEMENT OF ERIC H. SMITH FOR THE PUBLIC BROADCASTING SERVICE

Mr. Chairman and Members of the Subcommittee, my name is Eric H. Smith. I am the Associate General Counsel of the Public Broadcasting Service. PBS is pleased to present its views on H.R. 2223 as this bill would affect public television in this country.

PBS appears today to strongly support two proposed changes in H.R. 2223. The first would add a new section providing a compulsory license for public broadcasting. The second would amend section 112(b) to remove the copying and year limitations affecting instruction by means of television.

PUBLIC BROADCASTING SERVICE

PBS is a non-profit membership corporation established in the spring of 1970 by the public television stations of the United States. It represents and is governed by 149 independent public television licensees who operate over 250 television stations throughout the country, including Guam, American Samoa, Puerto Rico and the Virgin Islands. On behalf of the stations, PBS distributes programming over interconnection facilities provided by AT&T, assists the stations in the acquisition of programs and in the development of financial support, provides to them a national program service, and represents their interests on national matters. PBS is governed by a Board, consisting entirely of the members of Boards of our member public television stations. These laymen work closely with a Board of station managers of these public television stations. The Boards of Governors and Managers of PBS are comprised of distinguished men and women elected by the stations themselves (lists of current Board members are attached).

COMPULSORY LICENSE

The public broadcasting compulsory license is now under consideration by the Senate Judiciary Committee as an amendment to the Senate Copyright Revision Bill passed last summer. A copy of the Senate amendment as introduced by Senator Mathias is attached to this statement.

The compulsory license we are urging is simply and explicitly designed to establish in the new copyright law a workable method of determining and paying fair compensation, without prohibitive delays and with reasonable administration, to the extent that satisfactory arrangements cannot otherwise be negotiated between the various copyright agencies and public broadcasting organizations. It is in no way an attempt to take unfair advantage of the authors or publishers of the copyrighted works included in public television and radio programs.

DESCRIPTION OF THE AMENDMENTS

Basically, what the proposed new public broadcasting section provides is similar to the compulsory licenses already included in H.R. 2223 for cable television systems (section 111), record manufacturers (section 115) and juke-box operators (section 116), and another compulsory license has also been proposed by the record companies and performer organizations for commercial broadcasting. It calls for the annual deposit of royalty payments by public broadcasting organizations with the Copyright Office, to be distributed by the Register of Copyrights as agreed between the copyright owners affected-or in the absence of their agreement, as determined by the new Copyright Royalty Tribunal to be established.

This public broadcasting compulsory license differs from the other compulsory licenses in the Copyright Revision Bill in three principal respects:

First, it applies only to non-dramatic works-such as books and periodicals. music and records, paintings and photographs. It does not apply to dramatic works such as plays or operas, nor to motion pictures or other audio-visual works such as film strips or television programs, whether pure entertainment or informational in nature;

Second, it calls for initial royalty rate determination by the Copyright Royalty Tribunal-which, in the case of the other compulsory licenses, is responsible only for requested review of original statutory schedules. This, it is submitted. will permit full and detailed consideration of exactly what type and amount of royalty fees are appropriate for the various kinds of copyrighted works and public broadcasting exposure;

Third, it specifically encourages substitution of mutually acceptable arrangements between copyright owners and public broadcasting for Tribunal determi

nations. These private agreements may be effectively reached before or after Tribunal proceedings, on an individual or collective basis, and subject to such periodic revision as may be warranted.

I should also like to add a few words of anticipatory disclaimer in view of earlier comments in the Senate Committee proceedings. There is absolutely no disposition on public broadcasting's part to include unpublished works or dramatizations of non-dramatic works in this compulsory license. Hence, there is no possibility of serious interference with potential movie sales of popular novels or of pre-publication exposure of new music or private papers. Moreover, it is not intended that the Copyright Royalty Tribunal would be called upon to adjudicate public television or radio clearances item-by-item, work-by-work, program-by-program, station-by-station. Rather, it is to be assumed that blanket licenses and standard practices will soon be evolved under the direct guidance of the Copyright Royalty Tribunal when necessary.

NEED FOR A COMPULSORY LICENSE

The urgent need for copyright clearance assistance in public broadcasting is due to several inherent characteristics not encountered in commercial television, relating to (i) special nature of programming; (ii) repeated use of programs; (iii) varied type of producing organizations; and (iv) limited extent of financial

resources.

Special Programming Nature. Public broadcasting programs are essentially informational or cultural in content. Not being situation comedies, quiz shows, sports programs or similar commercial fare, public television programs are much more oriented to bringing to the viewing audience the best of existing creative efforts as well as newly developed material. If the object of public broadcasting is to bring excellence to the American public, it cannot be questioned that the inclusion of great literature, music and art should be encouraged rather than restricted.

The often-quoted E. B. White comment, which originated in the Carnegie Commission Report of 1967, reflects this concern for what public television programming should seek to attain :

"Non-commercial television should address itself to the ideal of excellence, not the idea of acceptability . . . Television should be the visual counterpart of the literary essay, should arouse our dreams, satisfy our hunger for beauty, take us on journeys, enable us to participate in events, present great drama and music, explore the sea and the sky and the woods and the hills. . . ."

And the latest comparison of the national programming supplied by PBS as contrasted with the three commercial networks is also revealing in this regard:

In short, the very character of public television programming is such as to necessarily include copyrighted works to an unprecedented extent. For example. PBS estimates that about 12,000 separate musical selections were performed and recorded last year in nationally distributed programs. While the majority were contained in children's educational series, such as Sesame Street, The Electric Company, Mr. Rogers' Neighborhood, and Villa Alegre, there were also adult-oriented programs such as Evening At Symphony from Boston, SOUL, a Black music performance series, and In Performance At Wolf Trap. Without relief from standard clearance practices the magnitude of the clearance burden would be staggering for national programming alone-which, as indicated above, is but a small fraction of overall public broadcasting production.

Finally, it should be emphasized that many public broadcasting programs have little flexibility in avoiding non-clearable copyrighted works. A music, literature or art series without contemporary composers, authors or painters would be unthinkable. Similarly, a public television producer has very little selection option in broadcasting community concert performances, poetry readings or art exhibi