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commercial educational operation. The local public radio stations are small in size for the most part. The average annual budget for a public radio station is $132,000.

A budget of such modest dimension has to be used to pay its staff, which averages eight full time employees and to operate the station 16 hours a day, 7 days a week, 52 weeks per year. Approximately 70 percent of the local station's broadcast day is locally produced.

Local public radio stations have two special problems: service to the print-handicapped and service of a unique nature to other listeners. We would like to address these problems briefly.

Print-handicapped:

First we are seeking special consideration for any service designed to serve the print-handicapped, such as the blind or those too infirm to read.

Public radio stations that have the capability to purchase receivers in large quantities and place them in the homes of families with a print-handicapped listener. The station then recruits volunteer readers who read topical and current newspapers, books, magazines and other literary material. As many as 250-400 books per year are read this way by the largest existing service, in the State of Minnesota.

Language has been worked out in the Senate resolving a significant part of the print-handicapped problem-it is now section 110 (8) of S. 22.

Total exemption for local public radio performances:

Second, the Mathias amendment does not take into full account the disadvantage at which serious music listeners find themselves. Serious music on commercial radio is rapidly disappearing as more and more stations turn to popular music formats to insure financial survival.

If payment is required for local public radio performance of copyrighted music and literary works, programing in the arts on local public radio stations would be of such limited scope as to be virtually valueless. Broadcast of a vast body of existing works would be eliminated.

Conclusion:

Local public radio stations 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 public radio 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.

But despite our unique problems, we support your favorable consideration of the Mathias amendment. We sincerely hope the subcommittee will explore our problems in detail in the fall.

Mr. KASTENMEIER. Thank you, Mr. Giorda. Mr. Cohen?

Mr. ALEINIKOFF. Before Mr. Cohen speaks, may I briefly outline the problem on the instructional television side, because it is a little bit complicated in the bill as it stands.

Section 110(2) provides an exemption for:

Performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if :

(A) The performance or display is a regular part of the systematic instructional activities of a governmental body or a non-profit educational institution; and (B) The performance or display is directly related and of material assistance to the teaching content of the transmission; and

or

(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 nondramatic 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 Section 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 30 and in period of use to 7 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 sections 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 1960's. 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 limitations were 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.

What we are talking about is the restrictions on the recording language at this time and Mr. Cohen will take up what that looks like. in the national and state picture and Mr. Binns from the state and local point of view.

Mr. DRINAN. One question, who is opposed to this?

Mr. KASTENMEIER, Let the Chair answer that question. There are witnesses opposed to these various amendments and we will hear from them later, and they are the Association of American Publishers, the Authors' League of America, the American Society of Composers, Authors and Publishers (ASCAP), and Broadcast Music, Inc. They will appear following the witnesses now at the table.

We will now hear from Mr. Cohen.

Mr. COHEN. I wanted to make a few comments. We are not the evening part of public television, we are the daytime part, the part that very few people see except in classrooms. A quarter to a third of all children in school in the United States receive television broadcasts on the average of once a week.

In its early days it was nothing more than a convenient way of extending the impact of specialist teachers. In the areas of art and science and music and physical education many classroom teachers felt they were not fully competent to instruct in all these areas, so they welcomed a teacher who would come around once or twice a week.

That visiting teacher could not make it all the time. As a consequence, when television came along, this was a wonderful way in which a specialist teacher could make these visits electronically.

The difficulty was that if that teacher visiting electronically could only do it on live broadcasts, prior to video taping, then that teacher had to present each lesson two or three times a week and never could get sick or anything like that if there was to be instruction to all the classrooms.

When recording came along, you could select the best presentation of a specialist art teacher and retain their teaching because there wasn't a lot of difference between what the teacher would do one year and the next year.

In this way recording accumulated on the shelves of local stations and the schools would use them year after year. That was inherent in the use of school television.

A second thing I think that is worth pointing out is that television did not know any boundaries. It does not respect the local school district. It will hop over. A number of school districts are simultaneously able to receive a television signal.

As a consequence, in order to make best use of television, all of the schools that were served by broadcast stations would band together and form associations. This was inherent in the way television worked. It was also inherent in the cost of television. If you had to provide a weekly broadcast in a given area, it was going to cost more than a single school district could really afford.

As a consequence, the local districts early on began to pool their dollars. This was also true in diocesan education when several dioceses using television in the New York Metropolitan area came together and cooperated.

Gradually cooperation grew as costs grew. It was no longer possible for local agencies to pay for all program development. What was being used in southern California was just as applicable in northern California. Our agency came out of this movement, this urgency to distribute and economize.

We pooled funds from State agencies. We have had 45 different States that have joined cooperatively in major national projects. After doing all this, which is to say we have tried to combine resources or, to put it another way, we have had to make do with what we have, we make as many copies as is needed to serve the using school districts.

These copies are growing in numbers. I have documented in the report that I gave to you that one series in fifth grade health has already had 53 copies duplicated. As I understand the provision in 112(b) this would exceed the proposed statutory limit of 30 copies.

We made 53 copies because we had 30 or 35 agencies that had cooperated and had come to us and said if you will take our money together with the other people's money we will get something we will all be proud of. We had to deliver copies to the participating agencies. They in turn made additional copies because that is inherent in the responsibility that the State education agency has to the local education agencies.

State education agencies are a pipeline through which better materials can be distributed to the local agency. In Florida, 28 additional copies were made. In New York State 50, in Pennsylvania 8, 139 copies are documentable right now in this one series in 5th grade health.

The reason is that more and more teachers want to have television materials available as close to their control as possible so they can deliver that program when the children need it.

For these reasons it seems to us that the limitation on numbers is not really realistic, nor is the limitation on years realistic. Mr. KASTEN MEIER. Thank you.

Mr. Binns?

Mr. BINNS. The philosophy of the program within Florida is simply that radio and television is a way of solving the logistical problems in the dissemination of instructional materials. In brief, it consists of this:

1. Acquiring materials, including the rights for reproduction, to meet statewide needs as recommended by local educators.

We deal with statewide needs only.

2. Distributing these materials by copying onto tape owned by local school systems, the product then becoming their property.

The motive behind this is to make sure that the control of the use of these is as close to the local teacher as possible. I will illustrate that in a moment.

3. Acquiring materials by lease arrangements and loaning these to local school systems on a prearranged schedule.

This program began 8 years ago by serving 9 educational television. stations and now serves these stations plus 49 of the 67 school systems (including ITFS systems) in the State on a regular basis (all school systems are served on an occasional basis).

In addition, 25 of the 28 community colleges and eight of the nine universities utilize materials from our library. Of the school systems in the State, 73 percent use these television materials on their own internal distribution systems, and 13 percent use broadcast signals in addition.

It is purely a factor of channel capacity.

The significance of these figures to the purpose of this committee is the fact that individual sets of materials used by individual stations, individual school systems and in many instances individual schools, is the dominant pattern of use.

I cite some examples in the statement submitted to you. In all but one of these, these are parts of national series which of course have had similar treatment in other States.

The use of instructional material in Florida shows a rapid increase and in fact has doubled in the past year. The increase is in the area of multiple copies being used in a wide variety of distribution systems that permit scheduling and control of the material ultimately by the individual teacher.

Materials acquired by the Department are selected upon the following criteria:

1. Statewide survey of needs.

2. Specifications provided by statewide committees.

3. Validation criteria-pretesting of materials with students. 4. Reproduction rights for distribution.

All possible sources are explored for materials to meet these criteria. Whenever possible, we acquire materials produced for national distribution since they are usually far less expensive than materials produced within the State. There are many instances, however, when such materials do not meet requirements.

For example: Our specification for materials for instruction in metric measurement included a limit of five lessons, validation, and reproduction rights among other instructional objectives.

After a thorough search of available materials we found that materials which included the required objectives exceeded the five lesson limit and that no materials were validated. As a result, we are presently producing our own materials at a greater initial cost.

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