tions. Yet one non-clearance can invalidate an entire program unless an incomplete version is finally edited for what must be an inferior broadcast.

Repeated Program Use. Public broadcasting programs can be important to the American public only if they are widely available for viewing. As a consequence, public television patterns-especially for regionally and nationally distributed programs have consistently called for repeated broadcast during the same week and repeat releases after the initial showing. This is not merely a matter of economics but also of philosophy. Public cultural and informational resources should continue to be usable so long as useful, and if valuable, should not be discarded after the evanescent impact of a single broadcast. Moreover, repeated program exposure is designed to provide the general audience with alternative viewing times, so that a missed program can still be seen.

Again, the national children's programs afford a revealing illustration. Almost all of the national children's programs are repeated daily; many are also shown again over the weekend. Each new annual Sesame Street and The Electric Company series regularly makes use of previous years' segments and is itself completely re-run twice every year. Mr. Rogers' Neighborhood now consists of a two-to-three year library, which can be expected to be rotated by local ETV stations over the next six years; Zoom is similarly available for rebroadcasting at will. Perhaps most indicative is Villa Alegre and the other minority educational series funded by the U.S. Office of Education, which, by the Emergency School Assistance Act mandate, must remain available for at least six years and hopefully, for even longer in order to justify federal financing.

It has been estimated that the average public television station repeats about one-half of its programs during the same week. All but a very few PBS national programs continue to be available for station re-release over at least a threeyear period, on the conviction that anything less than this extent of availability would be a considerable disservice to the American public.

Moreover, since almost all national public television programs are pre-recorded for production, re-recorded for distribution by PBS, and again re-recorded by local stations for delayed and repeat broadcast, extended reproduction and duplication rights as well as performance and display rights are essential. Again, unless public broadcasting is relieved from standard clearance practices, clearance will never be easy or swift (if indeed possible at all) so long as necessary on a program-by-program, piece-by-piece, publisher-by-publisher, author-by-author basis-whether books, music, records or photographs are involved.

Varied Producing Organizations. There are currently over 250 public television stations licensed to 153 educational and public institutions, of which 52 are institutions of higher education, 18 are public school systems, 27 are state and municipal authorities, and 56 are community organizations. All together, it has been estimated by the Corporation for Public Broadcasting that some 36,000 hours of local programming are produced annually-of which about 29,000 hours are for general viewing rather than for in-school use.

In 1974, PBS distributed nationally 45 to 50 programs each week by coast-tocoast interconnection, or more than 3000 hours per year. Approximately 57 different public television stations and agencies throughout the country contributed as producers. This is in marked contrast to commercial broadcasting where production is highly centralized in Hollywood and New York. This diversity of production sources is central to the philosophy of public broadcasting as it was originally conceived by the Carnegie Commission and embodied by Congress in the Public Broadcasting Act of 1967. It was Congress' intention that programs produced for broadcast within the public broadcasting system should reflect the regional and local diversity characteristic of this nation. Through such diversity, the American people would be able to experience differing cultural and political viewpoints representative of all facets of the nation. As public broadcasting has grown and matured, this diversity has increased. PBS has distributed programs produced in virtually every state in the country. Many of these stations operate on very low budgets but have nevertheless been able to garner the creative and technical resources in their areas and bring quality programs to the American people.

To be required to establish separate clearance staffs at every station for local and national production purposes would constitute indefensible administrative duplication, even if at all feasible within limited personnel budgets. Nor would a centralized clearance office answer the problem, for unless standard practices and blanket payments can be established, long-distance communication 57-786-76-pt. 2—13

and coordination costs would be equally expensive, just as time-consuming and similarly frustrating. Moreover, such rights centralization would be inconsistent with the public broadcasting philosophy of independently controlled production. Limited Financial Resources. Unlike commercial broadcasting, public broadcasting relies chiefly on funds derived from federal, state and local tax dollars for support, supplemented by contributions from the public, foundation grants, and corporate gifts. No paid advertising is permitted; no commercial exploitation allowed. Production and broadcasting budgets are minimal, and administrative resources extremely limited. The average public broadcasting licensee has an average operating budget of approximately $600,000 (1974 data).

It is easy to see how the added payment of copyright royalties will of itself be a real burden to most public television licensees. But more importantly, without clearance relief, the administrative costs of securing permissions will be overwhelming, which may force local stations to choose between using copyrighted works without clearance or avoid use of copyrighted materials altogether. It is not unrealistic to assume an annual cost of from $25,000 to $50,000 for a clearance office for the smallest station in the system-with substantially larger amounts for larger stations-if copyright licenses are required for local as well as national production and broadcast. We can conservatively estimate that, for example, an average of ten pieces of copyrighted material would be used in each hour of local programming in the system. With 29,000 hours of local programs, this would result in 290,000 separate clearances with copy right proprietors unless workable clearance mechanisms are established. This would require additional staff, telephone calls, letters, extended negotiations, and recordkeeping at a high cost to the system. We do not believe that it is appropriate to squander public broadcasting's scarce resources in administrative overhead with no benefit to the public or the copyright holder. Indeed, the result can only be less programming of lower quality and less use of copyright material to the benefit of no one.

It is the intention of Congress that public broadcasting bring to the American public the most artistic and thoughtful programming that can be derived from all creative and intellectual sources. In short, the object of public broadcasting is not private gain but public service-and this is vastly different from the primarily commercial interests generally active in entertainment and mass com. munications in the United States.

By its very nature, therefore, public broadcasting needs access to much copyrighted material for its content, requires both economy and expedition in copyright clearance, and must seek extensive exposure for its programs. Unfortunately, there is serious doubt whether these goals can be reached without a statutory compulsory license, especially if the "not-for-profit" exemption in the present law is eliminated.

COPYRIGHT INDUSTRY-PUBLIC BROADCASTING DISCUSSIONS

Since the introduction of the public broadcasting compulsory license amendment in the Senate, the principal public broadcasting organizations have, at the request of the Chairman of the Senate Subcommittee, engaged in separate meetings with music and literary representatives in an attempt to reach copyright arrangements that could conceivably satisfy essential public television and radio program needs within available personnel and financial resources. In both instances, these discussions have so far not borne fruit.

Our discussions with representatives of authors and publishers of literary material have been particularly disappointing from the standpoint of public broadcasting. From early in the discussions, publisher representatives steadfastly maintained that they could not legally discuss possible clearance fees with public broadcasting, and more, could not participate in any negotiations where royalty fees might be mentioned in their presence or absence. The author representative indicated further that all literary permission conditions must be left to the authors' discretion-i.e., how large a fee to charge, what program inclusion to permit, what program distribution to authorize, and ultimately, whether to grant permission at all. In essence, the author and publisher representatives have voiced their definite unwillingness to go beyond the possible development of a recommended permission form (which in fact need not be observed by any author or publisher)-and the establishment of a clearance assistance office (which could be discontinued at any time). These proposals might partially and temporarily help in reducing some of the endless delays and obstructions that are now encountered in literary clearances. But they come nowhere close to

meeting actual content, budgetary and production necessities for public television and radio programs.

As of last week, it was clear that the three music performing rights societies, ASCAP, BMI and SESAC, and the leading music recording rights licensing organization, The Harry Fox Agency, were not unanimous in their beginning annual demands-royalties which public broadcasting would be willing to pay despite the current "not-for-profit" exemption. Equally important as of that time, none of the major music agencies had been willing to make any commitment to continued group negotiations or to consider how unavoidable disagreements might be resolved in the future on any basis other than past commercial broadcasting practice. These commercial patterns are, of course, exactly what public broadcasting cannot afford-since they provide neither the comprehensive music rights nor the manageable royalty rates that can be arrived at only in joint negotiatons.

Just last Tuesday, however, another meeting was held. The music agencies: there suggested the possibility of a license arrangement consisting of an initial payment to be made by public broadcasting for music use for a two year period: followed by negotiations, and arbitration if needed, of royalties thereafter. This suggested arrangement was expressly to be in substitution of the compulsory license for music. While this proposal must be further analyzed by PBS, we believe that, if it comes through as generally offered, and, if we can reach agreement on the appropriate fee to be voluntarily paid in the interim, we may indeed find that those arrangements provide the satisfactory long term solution that public television has been seeking legislatively. In that event, appropriate modification to the compulsory license could be made. We believe strongly, however, that the compulsory license must be included in the bill at this time, and indeed, the very fact of its favorable consideration by this Committee would go far toward advancing these negotiations. Though we hope continued negotiation will be fruitful in this regard, we must continue to urge that legislative protection be provided until such time as a mutually agreeable long term solution has been guaranteed.

No similar meetings have been held on photograph and pictorial clearances simply because neither we nor the Senate Subcommittee nor anyone else has yet found any agency or individual able to discuss meaningfully these issues with us. Photographs and pictures are of prime importance in public television production, local perhaps even more than national, and under H.R. 2223 may well become virtually impossible to clear because of the tremendous difficul ties in ascertaining, reaching and obtaining permission from the television rights holders in all but a few exceptional cases.

To sum up, there are currently specific "not-for-profit" exemptions in the Copyright Law for the broadcast of non-dramatic literature (section 1(c)) and non-dramatic music (section 1(e)), and no statutory prohibition at all on the telecast of pictorial works. We believe that a compulsory license similar to those already accorded to various commercial interests, to be a fair and workable compromise between a continuation of the present exemption in the current law and a complete nonexemption now contained in H.R. 2223.

We in public broadcasting firmly believe that we cannot accept the kind of short term, fractionalized and disparate clearance procedures offered in substitution in the past. Our only hope is that fair payment under practical arrangements can be better arrived at as an outcome of these Congressional proceedings-whether through formal proceedings conducted by the Copyright Royalty Tribunal or through long term agreements between the parties serving the same purpose. Otherwise, we foresee but two alternative results, both of which are to us unacceptable: (i) deletion of all copyrighted content from public broadcasting programs, contrary to public broadcasting's overriding interest, or (ii) endless and expensive clearance procedures and practices, which public broadcasting simply cannot afford.

Moreover, we believe that public broadcasting is no less deserving of legislative relief in the form of compulsory licensing than are cable television systems and juke-box operators. Our inability to do without copyrighted material is equally as great, and we are no more able to reach mutually satisfactory royalty arrangements with copyright owners.

As the Supreme Court stated just last week in the case of Twentieth Century Music v. Aiken:

"The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of

competing claims upon the public interest. Creative work is to be encouraged and rewarded but private motivation must ultimately serve the cause of promoting broad public availability of literature, music and the arts."

We respectfully submit that the requested public broadcasting compulsory license exactly and evenhandedly ensures this public interest balance described by the Supreme Court as so essential to the American copyright law.

Instructional broadcasting

PBS also supports and urges this Subcommittee to support an amendment to section 112(b) of H.R. 2223, so as to remove the copy and year limitations applicable to the production and distribution of classroom instructional programming. A copy of the proposed amendment, as introduced in the Senate by Senator Birch Bayh, is attached.

Section 110 (2) provides an exemption for the broadcast performance of nondramatic literary and musical works or display of a work in a television program designed primarily for classroom use. This provision-designed to further a national goal of public education-equates instruction by television with face-to-face teaching in the classroom, for which an exemption is provided in section 110(1). We believe that such exemptions are proper and are sound public policy. While section 110(2) provides an exemption for the broadcast performance of copyrighted works in an instructional context, section 112 (b) effectively curtails this exemption-limiting it, in effect, to those very few programs broadcast live. This section places absolute limits on the recording of instructional broadcasts by restricting the number of records that can be made to thirty and the maximum duration of program use to seven years. The texts of section 110 and section 112 are attached.

Virtually all instructional courses developed by non-commercial educational broadcast stations are produced on videotape recordings. Therefore, the performance exemption in section 110 (2) is absolutely limited by virtue of the thirty copy/seven year restriction in section 112(b), and in a majority of cases would effectively void such exemption altogether. PBS supports removal of such arbitrary limitations as an inappropriate barrier to education's use of broadcast technology.

BACKGROUND

When the Copyright Revision Bill was last considered by the Congress in 1967, the House, after extensive hearings, passed a bill which provided a complete exemption for the inclusion of non-dramatic copyrighted materials in programs intended for broadcast in connection with classroom instruction in the schools. The effect of such exemption was to equate instruction through broadcast technology with face-to-face teaching. PBS, on behalf of its member stations who produce the majority of such instructional programming, urges this subcommittee and the House to reinstate such a complete exemption and to reject the limitations introduced by the Senate and presently contained in the Senate bill and H.R. 2223.

Educational television and radio have come a long way since the first educational radio station began 50 years ago. There are now hundreds of educational television and radio stations performing vital services on behalf of public education in the United States. Most of these stations are adjuncts to, and licensed by the FCC to, public educational institutions. All are non-profit public agencies. All public television stations are mandated by Congress and licensed by the FCC to provide, on a non-sponsored, non-commercial basis, educational and cultural services to the communities they serve. In addition to a wide diversity of evening programming for general and special audiences, all stations provide, in close liaison with local public educational institutions, programming designed for classroom instructional use. With the costs of formal classroom instruction escalating annually, educational institutions have increasingly turned to the medium of television to provide the highest quality instruction material-as an adjunct to face-to-face teaching-at the lowest possible cost.

Television and radio lessons for use in the classroom now cover almost every subject taught in the schools. Through the medium of television, for example, students gain access to the best teachers and a sophisticated curriculum. The public television producer works closely with the educator to determine what the students need. The producer then seeks the best resources available to make an effective instructional presentation. This requires resort, as it would for the classroom teacher, to copyrighted works. Perhaps a song will bring out an im

portant point in a history lesson as well as a music lesson; a graph taken from a magazine or newspaper may be helpful to a science or mathematics class; a lesson in English literature must, of course, resort to the works in this field. Examples of such instructional programs currently being used in the schools are attached. Many of these works are copyrighted, many are used in a manner not subject to "fair use." Without resort to copyrighted works, instruction, whether by use of television or not, is simply not possible.

THE ROLE OF NON-COMMERCIAL EDUCATIONAL (PUBLIC) TELEVISION STATIONS IN INSTRUCTIONAL BROADCASTING

The vast majority of instructional television programs-designed for and used in the context of classroom instruction-are produced by local public television stations and entities. In 1974, approximately 75% of the hours of instructional programs used in classrooms was produced within the public television system or by non-profit educational entities. In 1974, the average public broadcaster aired over 1900 instructional programs amounting to just under 30% of all programs broadcast within the system. In fiscal year 1973, approximately 140 licensees produced over 6500 instructional television hours or over 45 hours of production per licensee. In short, the great majority of instructional television programs are produced by PBS member stations for use in connection with formal classroom instruction.

The means by which such programming is made available to the schools is quite complex, but less than 1% of such programming is produced and broadcast live. We estimate that much of even this 1% live programming is then recorded on tape for reuse later at the convenience of a school system. The principal means of distribution for instructional programming continues to be by use of the mail; that is, a program is produced and recorded on tape and is broadcast locally and "bicycled" to other stations. Because the production cost of television programming is relatively high, it must be shared among local stations and their associated school systems. Ordinarily, this is done by mail exchange, requiring the creation and use of program recordings.

THE EFFECT OF THE SECTION 112 (b) RECORDING LIMITATIONS

Section 110(2) properly and necessarily narrowly limits the exemption to programs produced for classroom instructional purposes. The exemption recognized the importance of, and the unique and pressing need for, high quality instruction. This 110 (2) performance exemption, though appropriate in itself, cannot be understood, however, without considering the limitations on the exemption contained in section 112(b). This section curtails the effect of the exemption by limiting it to programs for which no more than thirty copies are made and where use is no longer than seven years.

Thirty Copy Limit. Local station producers of instructional television programming for school use are, under this limitation, not permitted to make or authorize more than thirty copies of the program without seeking permission to use the individual copyrighted work within the program and paying for its use beyond this limitation. This restriction will, in practical effect, void the exemption in the bill and require either clearance and payment for all copyrighted material included in instructional programs or the resort to works not under copyright. The reason why this will occur is rooted in the nature of instructional television distribution.

By general practice, a local station produces a program and embodies it on at least two videotape copies. To be an effective educational assist, the program will be copied for playback on videocassette machines at a time when the relevant class meets. Though many students will watch the program when it is broadcast, the scarcity of broadcast time during the day inevitably requires that additional copies be made for use in classes not scheduled at the time of broadcast. It is likely, therefore, that more than thirty copies will be needed just to provide reasonable access to the program for a single school district. Moreover, if the program is well-produced and effectively meets educational needs, other television stations and school districts will want to use it. This requires that additional copies be made and exchanged. If the limitations in section 112(b) are not removed, the producer-educator will be forced, by the nature of the production and distribution process currently existing in instructional broadcasting, to decide during the production of the program, what the use is likely to be-in other words, before the production is completed, the producer must assess what material