Grants to be awarded in Fiscal 1976 to a community joint licensee in Hershey, Pennsylvania: WITF-TV-$175,000/WITF-FM-$18,700.) To date, these 175 stations are able to serve only 62 percent of the population. Yet, by mandate of the 1967 Public Broadcasting Act, this must be expanded so that the nation's local public radio stations may serve "all the people." A profile of the average local public radio station reveals this kind of evidence. It is small in size for the most part; and, by commercial broadcast standards, or even by non-commercial television standards, at the local level it lives in abject penury with but few exceptions. The average annual budget for such a station is $132,000. Given a budget of such modest dimension, the local public radio station faces an immense task in the effort to discharge its obligation to provide effective public service. The station must pay its staff which averages 8 full-time employees, who must then operate the station 16 hours per day, seven days per week, 52 weeks per year. Approximately 70 percent of the local broadcast day is locally produced for service to specialized local audiencesaudiences that, by and large, are interested in the fine arts, such as classical music, which accounts for almost 40 percent of the local station's average broadcast day. These audiences are interested as well in coverage of governmental activities at all levels, in radio reading for the print-handicapped, and in other similar kinds of special program services. Print-handicapped exemption (a) FACTUAL BACKGROUND The primary use of literary works by local public radio stations is in reading services to the blind or those who are otherwise physically handicapped so that they cannot read. Because of the unique nature of the FM broadcast signal, most stations can provide up to three broadcast services. In addition to the main channel-the service heard at home-FM stations have what are called subcarrier bands. These subcarrier bands can be used for broadcasts to specially tuned receivers. Public radio stations that have the capability purchase the special receivers in large quantities and place them in the homes of print-handicapped listeners. Volunteer readers are recruited to read topical and current newspapers, books, magazines and other literary material for broadcast over the subcarrier channel. As many as 250-400 books per year are read this way by the largest existing service, in the State of Minnesota. Those stations that lack subcarrier capability use their main channel for the reading of literary material for this purpose. Because of the limited time for broadcast they of course read very few books. In addition, even those stations that can purchase some of the special receivers cannot afford to buy enough to meet the demand and have to turn to their main channel for some service. Denying the blind access to printed material would be a most unfortunate form of discrimination. Access to topical information while it is still topical and current literary material while it is still current is a basic and fundamental right of all Americans. This right should not be denied to the print-handicapped when the technology to assure the right is available. Talking books and magazines available on recordings are not the answer because they do not reach their audience while the material is still topical and current. Public radio stations receive no payment from print-handicapped individuals. Congress would impose a crippling burden on most of these services if it were to require copyright payment. (b) LEGAL BACKGROUND Local public radio seeks a total exemption from the provisions of Sections 110 and 112 for any service designed to serve the print-handicapped. This issue arose during the Mathias Amendment negotiations which were convened by the Senate Copyright Subcommittee staff this spring. On May 28, 1975, in a meeting between representatives of public broadcasting, the copyright holders, and the Subcommittee staff, language was worked out resolving a significant part of the print-handicapped problem. The Senate Subcommittee approved it as Section 110(8) of S. 22, stating that the following would not be an infringement of copyright: (8) performance of a literary work in the course of a broadcast service specifically designed for broadcast on noncommercial educational radio and television stations to a print or aural handicapped audience. This resolved any question of performance for the print-handicapped violating the copyright. It did not, however, resolve the Section 112 question of a program recording as a copyright violation. In other words, if a literary work were performed on the Washington Ear service for the print-handicapped, Section 110 (8) would exempt that performance; likewise the same literary work performed over another service to the print-handicapped would be exempt. However, if a recording of the first performance was made to facilitate the second performance, that recording would violate Section 112. The Association of Public Radio Stations submits that perfecting language may be adopted easily. Total performance exemption (a) MUSIC BACKGROUND The Mathias Amendment does not take into full account the disadvantage at which classical music listeners find themselves. Classical music on commercial radio is rapidly disappearing as more and more stations turn to popular music formats to insure financial survival. While the availability of classical music on the air is of marginal interest to some, it is of prime interest to a significant minority that deserves consideration and service; for, as the great GermanAmerican conductor Bruno Walter wrote in his autobiography: . . . the works of the creative spirit last, they are essentially imperishable, while the world-stirring historical activities of even the most eminent men are circumscribed by time. Napoleon is dead-but Beethoven lives. (Theme and Variations.) And philosopher-musician David Mannes wrote: "Above all-at least to me-music is the perfect universal language. This is a platitude only because it happens like other platitudes to be based on incontrovertible truth. The only times when I have witnessed a state approaching the brotherhood of man have been moments of music, when hundreds of hearts beat to the same rhythm and lifted to the same phrase and when all hate, all envy, all greed were washed away by the nobility of sound. Words are so often the agents of destruction; music-good music-can only build. And to learn the language of music or at least respond to it-one needs only an ear and a heart. It is only the deaf or the spiritually atrophied who do not somehow feel themselves exalted and purified in the presence of great music." (Quoted in In Praise of Music, Richard Lewis, editor.) If payment is required for local public radio performance of copyrighted music, music programming on local radio would be of such limited scope as to be virtually valueless. Broadcast of a vast body of existing music would be eliminated, and one of the few outlets for the work of young contemporary composers would be closed. This is hardly a desirable result for composers, local public radio and, most importantly, the public. Here, for example, is what Aaron Copland, the dean of American composers, has to say about the plight of contemporary composers: "The art of music during the present century has undergone a violent upheaval. Audiences everywhere have shown signs of bewilderment at the variety of styles and tendencies that all pass muster under the name of modern music. Being unaware of the separate steps that brought about these innovations, they are naturally at a loss to understand the end result. Speaking generally, the lay listener has remained antagonistic, confused, or merely apathetic to the major creations of the newer composers." (The New Music 1900–1960.) Given these conditions and the expense of rehearsing new works for performance, it is no wonder that local performing organizations give little of their time to 20th century music, denying its exposure to listeners. Public radio stations broadcasting classical music are one of the few avenues of wide audience exposure for contemporary composers and their works. Copyright holders constantly conjure up the image of the struggling young composer on the brink of starvation being exploited by the use of works for which no compensation is paid. Such an image of exploitation by local public radio is not realistic. Most listeners would be happy if they never heard 99% of the music composed since World War II, and stations can attract more listener support with Mozart and Beethoven than with Cage and Berio. But public radio feels that it has an obligation to the composers of our time to give their works as broad an exposure as possible to as wide an audience as they can attract. Similarly, the leading symphony orchestras of the country may feel it their duty to expose audiences to contemporary composers' works, but the hundreds of community and metropolitan orchestras will not risk ruin at the box office by scheduling such works unless their subscribers are ready for them-and the subscribers will not be ready unless they are exposed to contemporary music. The only hope for such exposure in most of the country is a local public radio station. This educative exposure can lead to performances by local orchestras, which produce income for copyright holders. Public radio broadcasts can generate income for composers in another way. Record companies make their classical releases available to radio stations free or at cost. Broadcasts of the records make potential record buyers aware of them--and copyright holders receive money from records sold. (B) LITERARY BACKGROUND While music is the major component of local public radio's broadcast day, the stations are also the source of other kinds of the most creative and innovative programming in broadcasting. For instance, a station might produce an anthology of works by a number of different poets. Or the works of the poets laureate of a particular state might be featured. In such productions, the problems that stations face with literary works are the same as for music-so the solutions must be the same. (C) FINANCIAL BACKGROUND Should copyright payments be required from local public radio stations, most of them will have to take on additional overhead in the form of personnel to handle copyright clearances. Unlike the situation in popular music, where the record companies provide stations with all of the copyright information needed for clearances, copyright information is not routinely provided in the field of classical music. Vast quantities of valuable and scarce staff time at local public stations would be taken up with tracing works. The commercial networks have large staffs that do nothing but this kind of work; the local public radio station simply cannot afford it. Moreover, many public radio stations keep no written record of what music they air. An obligation to keep such records will mean adding staff members to their overhead. A further expense will result from whatever reporting requirements the copyright holders impose upon local public radio stations. Finally, there are the payments themselves. Copyright holders contend that public broadcasting is receiving great sums of federal, foundation and corporate money and, therefore, the copyright holders should now be paid for the use of the works they control. While this contention may have some limited merit at the national level of public broadcasting. it has no merit at all at the local public radio station level. Very few of the dollars in those "great sums" ever reach the local public radio station. For instance, WITF-FM in Hershey, Pennsylvania, will receive a total of $18,700 in federal money in Fiscal 1976; in Fiscal 1975 it received a total of $2,760 from corporations and foundations, and it has been promised $500 from these sources in Fiscal 1976. The copyright holders point out that small commercial radio stations pay copyright fees and contend that small local public radio stations can, too. This argument refuses to see that small, so-called "Mom and Pop" commercial stations build their advertising rates to cover their copyright payments. Public radio stations have no advertising or other rates to adjust to cover these or any other costs. The majority are principally supported by tax revenues and additional funds can be obtained only from state, county and municipal treasuries that are already overburdened. If the station is community licensed it cannot even ask a local government unit to increase its budget support. It can go only to its listeners. If asked to supply the funds to pay an additional $15,000 to $20,000 per year for broadcasts of music by contemporary composers, those in the community best able to afford increased contributions would likely be unsympathetic because, as indicated before, most listeners are indifferent to contemporary music-or even actively antagonistic toward it. (D) LEGAL BACKGROUND Public radio seeks only a Section 110 amendment for its performances (compared to Section 110 and 112 amendments for service to the print-handicapped). Language could be easily adopted exempting performances of non-dramatic literary or musical works in the course of a broadcast by a non-commercial educational radio station. Conclusion Local public radio simply cannot afford the cost either of the administrative burden or of making the payments for the local broadcast performance of literary and musical works. To be forced to do so would render this infant system helpless and ineffective-a circumstance that is neither in the public interest, nor apparently one that is consonant with the intent of the Congress when it fostered the creation of public radio by passage of the 1967 Public Broadcasting Act. Indeed, through that legislation, this nation's infant public radio system is in effect a child of the Congress itself. But even as the Chairman of the House's Communications Subcommittee has observed, local public radio has become the stepchild of public broadcasting. And public radio's submission is that without the modification in the Mathias Amendment requested here, H.R. 2223 would make local public radio a permanently retarded stepchild. STATEMENT OF EDWIN G. COHEN, EXECUTIVE DIRECTOR OF THE AGENCY FOR INSTRUCTIONAL TELEVISION I am Edwin G. Cohen, Executive Director of the Agency for Instructional Television (AIT), and I appreciate the opportunity to appear before this Subcommittee in connection with H.R. 2223, the House Bill for the General Revision of the Copyright Law. The Agency for Instructional Television is a national non-profit organization seeking to strengthen education through television. Its predecessor organization, National Instructional Television, was founded in 1962 as a United States Office of Education demonstration project. AIT is headquartered in Bloomington, Indiana, and is governed by a Board of Directors appointed by the U.S. Council of Chief State School Officers with the Council of Ministers of Education in Canada. The majority of the Board are chief school officers from various states and provinces; the remainder of its directors are school and television administrators. AIT's principal activity is the provision of recorded television programs for transmission to schools throughout the United States as well as in Canada. These ITV programs are transmitted mainly by public television stations. To a lesser extent they are transmitted by limited electronic systems such as ITFS (instructional television fixed service) installations and institutional closed-circuit television facilities. Nearly all public television stations transmit from four to five hours of instructional programming daily to the schools. ITV programs are used at least once a week during the entire school year by an estimated 25-30% of all public elementary and secondary students. While this information is important to an understanding of school television, the real significance of television in the schools is to be found in the nature and quality of ITV programs. By and large, school television materials strengthen teaching in subject-areas where teachers, especially in elementary grades where classroom specialists are the exception, are not as effective as they would like to be. Thus there is great use of television instruction in science, art and music. In addition, television can speed the adoption of newer educational approaches, such as the introduction of the so-called "new math." Television is also used extensively to add resources normally unavailable in the classroom, such as visits to foreign countries and interviews with famous people. Overall, the impact of television is to help improve instruction and equalize the educational opportunities available to all students. In spite of its educational value, the development and distribution of school television programs is seldom commercially attractive. This is the case because the cost of creating acceptable programs is very high, the number of transmitting stations is relatively low, and there is not much money available in school budgets for television learning materials. Consequently, most school television programs are obtained in recorded form from non-profit distribution agencies such as AIT. The Agency for Instructional Television currently makes available ITV series acquired in three ways: First it contracts for national distribution rights to ITV programs already produced by local and state educational agencies. Second, AIT makes financial contributions to the local cost of revising ITV series in return for national distribution rights for other school systems. Increasingly, moreover, AIT itself has caused high-quality telecourses to be created for national use by identifying common and widespread educational needs where television may be helpful, and then forming consortia of multi-state agencies to support development and production of the necessary ITV programming. Once ITV series have become nationally available in these ways, AIT so informs school television services across the country, provides preview and evaluation opportunities, and arranges for distribution and use. To minimize cost, AIT makes several duplicate recordings for distribution to station users, who, in turn, usually forward them to subsequent users during the school year. After each year's circulation, recordings are returned to AIT for inspection and re-use in subsequent years. In some instances, the distribution arrangement is for AIT to make recordings on the videotapes of users, who, in turn, retain the recordings for repeated broadcast on a year-by-year renewal basis. In providing recorded school television programs, it has been AIT's experience that the life of a school television series depends upon its educational validity and its technical adequacy. In its first thirteen years of existence as an agency, AIT has continued to distribute two series for ten consecutive years, two other series for nine years and one for eight years. All of these series were produced originally by local and state agencies, and later made available for AIT national distribution. In the area of new consortium production, AIT's first series is already in its fifth year of use, and because of its design and technical excellence, can be expected to have a useful life of two or three times as long. In addition to this information on the life of telecourses, AIT has accumulated additional experience respecting numbers of recordings. To provide users with maximum copies, we have so far made the following number of recordings of each program of the following series: All About You (2nd grade health)-57. *Inside Out (5th grade health)—53. *Bread and Butterflies (5th grade career development)-50. *Self Inc. (junior high health)--43. Ripples (1st grade social studies)-40. Why (junior, senior high contemporary affairs)-33. It should be emphasized that the numbers of copies listed above are those made only by AIT. In consortium series (marked with an asterisk), cooperating state agencies frequently need additional copies to adequately serve schools within their state. Accordingly, a major feature of consortium series is that cooperating agencies are entitled to reproduce copies as needed. A recent example of this additional reproduction is the "Inside Out" series. The N.Y. State Department of Education estimates duplication of approximately 1500 individual lesson copies throughout the state and in Pennsylvania, including over 250 individual copies made during the 1973-74 school year alone. All of these series are clearly covered by the Section 110 (2) ITV exemption. But none of the indicated uses would be feasible under the present Section 112 (b) recording restrictions-so that the Section 110(2) exemption could not be exercised for any program in the series. To AIT, however, the danger in the current version of Section 112(b) is not due solely to those copying and time limitations. Our real objection is to the required application of inappropriate standards to what should be local determinations based solely upon instructional utility. ITV series are produced with public funds, out of state and local educational budgets. It is obviously wasteful to require valuable ITV materials to be discarded while still in demand. Nor does it seem sensible to preclude the widest possible use because of an automatic copying cutoff. From AIT's own point of view, the net effect of the current Section 112(b) recording prohibitions can only be to bar the Section 110 (2) ITV exemption exactly where and when most essential in nationally significant ITV telecourses. For AIT can never determine in advance the exact number of years of life or the exact number of copies desired for distribution. Nor, in these days of advanced recording techniques and equipment, can AIT police copying or duration prohibitions without serious risk of violation, so on both counts AIT may find itself in extensive copyright infringement at a time long past original planning and production. Further, the AIT infringement may date back to the beginning of distribution-even if the impermissible copying actually is unknown or unauthorized by AIT. Thus, the Section 112(b) instructional television recording provisions, as currently phrased, are in reality prohibitory rather than permissive. In effect, the Section 110(2) instructional television exemption is negated for AIT national telecourses. Program recording and performance rights must be viewed as equally important for ITV production, and must be co-extensive to have practical utility |