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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.
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.
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
he must use and whether or not it must be cleared and paid for. The process is not difficult to describe. The lesson producer must, at the time of production, choose among the following options, none desirable:
1. Use copyrighted works freely, without permissions or payments, but know that legitimate and necessary uses of the program must be curtailed, that classroom teachers or other stations cannot make more than the thirty copies. If a thirty-first copy is needed at some time after production is completed, clearance of every work in the program must be undertaken. This could be, in some cases, years after production is completed. Clearance at that time is a virtual impossibility. If permission is not given, that additional copy may not be made resulting in normal and customary usage being effectively curtailed; or
2. The educator-producer uses no copyrighted works in order to ensure the effective distribution and use of the program. This will inevitably damage substantially the content and effectiveness of the program; or
3. To ensure that use of the program for its intended purpose is ensured, the educator-producer will attempt to obtain clearance for all copyrighted works during production. This will involve substantial administrative burden and costs, which, if the producer's judgment is incorrect as to the extent of use, will be a waste of effort and scarce funds. If permission is not obtained for a key work, the project may become impossible to produce as conceived.
To justify the expenditure of funds necessary to produce high quality instructional material, local station producers will be inevitably forced to choose the second or third option. The effect of the limitation is, therefore, simply to void the exemption or reduce the value of the program. PBS does not believe that this is intended by the Revision Bill and is not wise public policy.
Moreover, to police such a copy limitation is also virtually impossible unless distribution is centrally administered. Many programs are now distributed by multiple sources under non-exclusive licenses. A producer cannot assure against infringement-should the exemption be taken advantage of-unless distribution and use is effectively controlled by a single entity. This will work to change current distribution patterns whereby there are multiple distributors and individual taping facilities throughout school systems. Unless clearances are undertaken during the production process, distribution patterns will be forced to change. This is not desirable and will be one additional factor making any exemption unusable.
Seven-Year Limitation. Section 112(b) also limits the exempt use of any instructional program using copyrighted materials to seven years. Any analysis of instructional program use patterns requires the conclusion that such limitation is completely arbitrary. Many programs remain educationally valid and are used beyond seven years. While the proposed Revision Bill will not prevent use beyond seven years, use without individual clearance of and payment for copyrighted material, will be an infringement. The same options faced by the educator-producer with regard to the thirty copy limitation are faced with regard to the term of use. The producer must judge the potential useful life of the program before it is produced. If it is underestimated and clearances are not obtained, the program becomes unusable at the seven year point-clearance at this time being virtually impossible. A producer wishing to protect normal distribution and program life will then opt for clearance-thereby voiding the exemption.
PBS sees no virtue in placing a year of use restriction on the exemption.
APPARENT PURPOSE OF LIMITATION
In including a copy and year limitation in section 112(b) and in not accepting the House version as passed in 1967, the Senate apparently believed that certain uses of copyrighted material in instructional programming should not be exempt. The copy limitation must have been included so as to require clearance for programs which have wide distribution and large audiences. The Senate must have believed, however, that narrower distribution before smaller audiences should be exempt. Section 112(b) however, does not accomplish this purpose even assuming it is valid public policy. We have shown that virtually all instruc tional programs are available on tape and the thirty copy limit could be exceeded within a local school district. If, however, instructional programs are distributed by means of network interconnection-regionally or nationally-the limit, if we correctly read the current section 112(b), may never be exceeded. The number of copies has little or nothing to do necessarily with the extent of distribution. Any year limitation is even less justifiable if limitation on audience reach is
the justification. To take advantage of the exemption, the instructional broadcasting community will be tempted to change radically modes of distribution to ensure that no more than thirty copies are made. This will lead to centralization of distribution, and if burdensome clearances are required, will lead to centralization of production. This is antithetical to long-accepted principles of localism in education.
PBS believes that in balancing the public policy interest of providing protection to copyright holders, and in furthering the goals of education, a full exemp tion should be included in the bill. Since instructional programs are not, and will never be, a substitute for the face-to-face classroom teaching process, the sale of text material in the schools-for which authors are compensated--will in no way be hindered. Instructional programs cannot be, and are not intended to be, a substitute for the reading and studying process. Instructional program use is always accompanied by study guide material, including bibliographies, so that the student-stimulated and directed by the program-can pursue the subject matter covered in depth. The ephemeral nature of television simply does not permit the indepth treatment central to disciplined education; but it can provide stimulation to the student, direction and a well-organized curriculum.
In summary, the section 110 (1) exemption for use of copyrighted material in the context of face-to-face teaching should apply in the same manner to teaching through electronic means. Since an individual teacher may take advantage of the 110(1) exemption, so should the teacher appearing on an instructional television program, even though recordings are made to make the lesson available in more than one classroom.
PBS believes that the compulsory license for public broadcasting and an amendment to section 112(b) removing copy and year limitation merit inclusion in the Copyright Revision Bill. We appreciate the opportunity to appear before the Subcommittee to urge that this be accomplished.
BOARD OF GOVERNORS, PUBLIC BROADCASTING SERVICE
M. M. Anderson (1976), Retired executive vice president, Alcoa Corporation, Pittsburgh, Pennsylvania, representing WQED, Pittsburgh.
Edmund F. Ball (1977), Chairman, Ball Corporation, Muncie, Indiana, repre
senting WIPB, Muncie.
Kendrick F. Bellows, Jr. (1977), Executive Vice President, Connecticut Bank & Trust Co., Hartford, Connecticut, representing Connecticut Public Television Network.
Mrs. Allan E. Charles (1977), Vice President, Board of Trustees, Stanford University, representing KQED, San Francisco, California.
Mrs. Edward N. Cole (1975), Teacher, businesswoman, civic leader, representing WTVS, Detroit, Michigan.
Dr. William C. Friday (1976), President, University of North Carolina, Chapel
Alfred C. Galloway (1975). President, Community Federal Savings & Loan Asso-
C. Bart Hawley (1975), Central Region Manager, Borden Chemical Division, Cincinnati, Ohio, representing WCET, Cincinnati.
Dr. Philip Heckman (1976), President, Doane College, Crete, Nebraska, repre senting Nebraska Educational Television Commission.
Ethan A. Hitchcock (1975), Webster, Sheffield, Fleischmann, Hitchcock & Brook
field, New York, New York, representing WNET, New York.
Richard E. Hodges, Jr. (1976), Liller, Neal, Battle & Lindsey, Inc., Atlanta, Georgia, representing WETV, Atlanta.
John Lowell (1977), Welch & Forbes, Boston, Massachusetts, representing WGBH, Boston.
Dr. Donald R. McNeil (1977), Director, Post-Secondary Education Commission, Sacramento, California, representing KVIE, Sacramento.
Newton N. Minow (1976), Sidley & Austin, Chicago, Illinois, representing WTTW,
William B. Quarton (1976), Retired executive vice president, American Broadcasting Stations, Inc., Cedar Rapids, Iowa, representing Iowa Educational Broadcasting Network.
Ralph B. Rogers (1975), Chairman, Texas Industries, Inc., Dallas, Texas, representing KERA, Dallas.
Mrs. Bert E. Roper (1975), Teacher, businesswoman, civic leader, representing WMFE, Orlando, Florida.
Leonard H. Rosenberg (1977), Chairman, Chesapeake Life Insurance Company, Baltimore, Maryland, representing Maryland Center for Public Broadcasting.
Dr. John W. Ryan (1975), President, Indiana University, Bloomington, Indiana, representing WTIU, Bloomington.
Dr. John W. Schwada (1976), President, Arizona State University, Tempe, Arizona, representing KAET, Tempe.
Mrs. Stephen Stranahan (1975), Art historian, public relations, civic leader, representing WGTE, Toledo, Ohio.
Irby Turner, Jr. (1977), City Attorney, Belzoni, Mississippi, representing Mis
sissippi Authority for Educational Television.
Robert G. Waldo (1977), Vice President for University Relations, University
of Washington, Seattle, Washington, representing KCTS, Seattle. Don E. Weber (1976), Independent oil and real estate operator, Corpus Christi,
Texas, representing KEDT, Corpus Christi.
Term expiration dates shown in parentheses beside the name.
BOARD OF MANAGERS, PUBLIC BROADCASTING SERVICE
Dr. George E. Bair (1975), Director of Educational Television, University of
North Carolina Television Network, Chapel Hill, North Carolina. Frank R. Barreca (1976), Director Radio-TV Film Bureau & General Manager,
KUAT, University of Arizona, Tucson, Arizona.
Ronald C. Bornstein (1976), Director & General Manager, WHA, Regents of
the University of Wisconsin System, Madison, Wisconsin.
Martin P. Busch (1975), Executive Director, KUSD-TV/South Dakota ETV
Board, University of South Dakota, Vermillion, South Dakota. Henry J. Cauthen (1977), President & General Manager, South Carolina Educa
tional Television Commission, Columbia, South Carolina.
J. Michael Collins (1977), President, WNED, Western New York Educational Television Assn., Inc., Buffalo, New York.
Miss Betty Cope (1976), President & General Manager, WVIZ, Educational Tele
vision Assn. of Metropolitan Cleveland, Cleveland, Ohio.
Miss Dona Lee Davenport (1975), General Manager, WTVI, Charlotte-Mecklen
burg Board of Education, Charlotte, North Carolina.
Robert H. Ellis (1975), General Manager, KAET, Arizona Board of Regents, Arizona State University, Tempe, Arizona.
Dennis L. Falk (1977), General Manager, KFME, North Central Educational Television, Inc., Fargo, North Dakota.
Donley F. Feddersen (1976), General Manager, WTIU, Trustees of Indiana University, Bloomington, Indiana.
Dr. Lawrence T. Frymire (1975), Executive Director, New Jersey Public Broad
casting Authority, Trenton, New Jersey.
William S. Hart (1977), President, WYES, Greater New Orleans Educational Television Foundation, New Orleans, Louisiana.
David O. Ives (1976), President, WGBH Educational Foundation, Boston,
Lloyd Kaiser (1976), President, WQED, Metropolitan Pittsburgh Public Broadcasting, Inc., Pittsburgh, Pennsylvania.
Dr. James L. Loper (1977), President & General Manager, KCET, Community
Television of Southern California, Los Angeles, California.
William J. McCarter (1975), Executive Vice President & General Manager,
WTTW, Chicago ETV Association, Inc., Chicago, Illinois.
Dr. Richard J. Meyer (1977), General Manager, KCTS, University of Wash
ington, Seattle, Washington.
Arthur A. Paul (1977), Executive Vice President & General Manager, KVIE,
vision, Inc., Jacksonville, Florida.
Dr. Otto F. Schlaak (1976), Manager, WMVS, Milwaukee Area District Board of
Vocational, Technical and Adult Education, Milwaukee, Wisconsin. Robert L. Shepherd (1975), Executive Vice President & General Manager, WDCN,
Metropolitan Board of Education, Nashville, Tennessee.
Sheldon P. Siegel (1976), Executive Vice President & General Manager, WLVT,
Lehigh Valley Educational Television Corporation, Bethlehem, Pennsylvania.