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this cost for ETV stations were they to take increasing advantage of the recently established ETS Service of the NAEB (see footnote, Table 1).
Thus, were an ETV station to record all of its programs for distribution, it would incur a total fee for recording rights of non-dramatic music of $30,000, the amount reported by NET for the year 1965. (See Table 4 for average fee schedule.) TABLE 4.--National educational television average fee range for synchronization
rights for nondramatic music, 1966
An addition to total expenditures for recording rights to non-dramatic music of about one-third of this sum, or $10,000, seems to be a reasonable estimate of the future cost resulting from the growth of ETV program exchanges and the absence of a copyright exemption. This is in addition to the $2,000 fee estimated for performance rights incurred as a result of the loss of that exemption. Thus, copyright fees for performance and recording rights of non-dramatic music would, under the proposed law, add about $12,000 to a station's operat. ing costs.
The impact of the fees just for music is substantial since it is equal to an increase of 12% of a station's programming expenditures. The proposed copsright law thus may not benefit copyright owners by making broadcasters liable for recording rights since much of these works would simply not be recorded and fees would therefore not be earned. Consequently, a major source of low cost educational programming-ETV exchanges, would be lost to ETV. The public would lose by the elimination of much of the program diversity now available to ETV and the copyright owners would lose the effect of ETV in the development of the market for their music.
Another component to be considered in analyzing copyright fees is non-musical items; literature, plays, poetry, films, photographs and maps. Here there is no centralized source with whom to negotiate. It is a chaotic market. Even the staff of the commercial television network that cooperated in this study was unable to properly identify its operating costs or the fees paid in this area.
Table 5 lists examples of the fees paid by NET for different non-musical items. A special survey undertaken by NET reported that the average ETV station uses 60 photographs per day. At an average price of $5, the potential fees total $300 a day. Since the average ETV broadcaster produces about one-third of his own programming, it may be estimated that he incurs a potential fee payment of about $100 a day or $36,500 a year for photographs alone, as compared to the average station's total program expenditures of $100,000.
TABLE 5.—National educational television payment for non-music rights, 1966 Dramatic works:
Average range Full length play
$1,000 to $2,500. 1 act play--
500 to 1,000. Ballet
500 to 750. Literature: Poem
Free $50. Book excerpt---
Free $25. Photos and films : Photographs and slides_
Free $25 a piece. Stock film footage-
$2 to $7 per 16 mm. foot. Film segment--
$40 to $60 per minute. Source: NET.
Faced with this magnitude of increased cost, the ETV station will probably restrict its usage severely. This cost will consequently never really be incurred, ETV programs will suffer a quality deterioration, and the copyright owner will be no better off than now.
A conservative estimate of non-music cost based on discussions with people in the industry would be a budgeting for fees of about $150 a week for non-music items. This would total $7,800 a year which is an increase in the average program budget of 7.8% a year.
SUMMARY OF COSTS Table 6, summarizes the cost impact of the proposed copyright law upon the average ETV station. It appears from conservative estimates, that the loss of existing exemptions would increase the cost of ETV station operations by about 21% and the cost of ETV programming by about 53%.
An important factor to be noted in Table 6, is that the cost to the station of administering the clearance of the copyright ($33,000) exceeds the estimated total payments of copyright fees ($19,800) by 40%.
TABLE 6.-Estimated additional cost of copyright clearance
As percent of average station's:
+21 Program expenses. 1 See table 2. ? Assuming 2 percent of program budget for BMI and ASCAP combined.
2 Based on NÊT experience. Assumes an additional la of station's program production will be recorded for purposes of exchange with other ETV stations.
• Assumes $150 a week for plays, literature, films, and photos. This is a gross underestimate.
5 Average ETV station's operating expenditures is $256,000. Carnegie Commission Report, p. 211.
• Average ETV station's program expenditures is $100,000. Ibid., p. 244.
STRUCTURAL IMPACT OF PROPOSED LAW
In view of the financial limitations under which ETV broadcasters now operate the more likely reaction to the economic burden of the proposed copyright law will be retrenchment. The stations will withdraw from local program production and educational television programming will gravitate toward a centralized source similar to commercial television. Only in this manner can the high cost of copyright clearance be spread over a large number of stations and multiple showings. The proposed law will, in effect, set in motion economic forces of a centralizing nature.
Lack of program diversity today is a serious problem in commercial broadcasting, how much more significant would be its existence where education is involved. TABLE 7.—Local program production by type of ETV station, 1966
Clearly, the implications of the proposed copyright law are considerably more complex than simply the imposition of increased operating expenses on ETV stations. The value of local programming (Table 7) and even of live programming (Table 8), which, in 1966, accounted for 27% and 11% of ETV broadcasting, respectively, can be gauged by the experience of the FCC. The Commission is now striving to rectify earlier policy decisions that seemed innocuous enough at their adoption, only to find that these earlier decisions had deprived live and local television programming, and even a fourth network, of their economic basis. Thus, as compared to the 27 percent of programming that is produced locally by all ETV stations, only 13 network affiliated commercial television stations (out of 454 studied) produced more than 20% of their own programming. ETV is today where commercial television stood in 1948. It is imperative that public policies that will effect the economic underpinnings of ETV such as the proposed copyright law, be carefully considered in that light. To do otherwise would be to squander an irreplaceable national resource.
Senator BURDICK. Mr. Brent.
STATEMENT OF RANDOLPH BRENT, GENERAL MANAGER,
WHRO-TV, NORFOLK, VA.
Mr. BRENT. Mr. Chairman, since my testimony is a matter of record, I, too, would like to skim and point ont certain cogent facts.
As the general manager of a typical ETV station, I am faced with certain realities that S. 597 would impose upon us, and I will read from the second paragraph on page 2.
WHRO-TV produces approximately 1,165 instructional programs a year. All of our time, effort, money, and struggle for excellence is directed toward improving all aspects of instructional programs for the children of our Virginia school systems. The use of copyrighted
material is vital to the quality and excellence we constantly strive for to give to our consumer, our pupils.
I would like to point out on page 3 that the State of Virginia does plan to have its statewide network, both instructional, as well as public affairs programs.
I read again from the bottom of page 3. A restriction of 1 year as to the length of time a program may be saved would cripple our effort to provide the best service attainable to our receiving students. Our instructional programs and program series are saved year after year for two basic reasons. The first is to retain programs of excellence produced with extremely well qualified teachers who would not be continually available through the years. The second, and more important reason, is that by saving some programs normally produced each year, the workload of the television teacher is reduced, the studio production schedule is lessened, thus more time can be spent on achieving higher quality productions. In addition, a time limitation would, of necessity, virtually destroy our videotape library of approximately 700 saved instructional programs. The effect would be twofold. First, 200 lessons would have to be erased. Secondly, approximately 400 would have to be done over immediately and once a year thereafter. The effect of this limitation would result in increased costs for additional personnel and a two shift studio operation by 1970. Our budget would be increased by $23,958 during 1967-68, $24,688 during 1968-69, $26,218 during 1969–70, and $128,292 during 1970–71 and yearly thereafter. These figures assume a constant production load and an effective date for a new copyright law of January 1, 1969.
Should we wish to eliminate this intolerable financial burden of $128,292 yearly by clearing the copyrighted material (consisting of models, photographs, drawings, displays, charts, maps, and pictures from books, magazines, and other periodicals) we are confronted with an impossible situation. We cannot clear the one vital segment of our lessons-book and magazine pictures. For example, a survey was made of the visual material used in 20 instructional programs selected at random. The visual material used consisted of 39 charts, 236 pictures from magazines and books, and 12 maps. An analysis of one of these programs, “World Cultures” No. 8, reveals the following facts: 125 visual elements were used, 26 items were original art work, 99 items were pictures cut out of books and magazines. If copyright clearance were mandatory, 80 percent of the visual elements used in this program would have been eliminated since 62 percent cannot even be identified as to source, and the remaining identifiable 18 percent provided no information as to publisher, publication year, the date and page number which would be needed for clearance approval. Without the material used, the program would have been reduced to nothing more than turning the camera on an ordinary classroom situation, and the effectiveness of the ETV medium is destroyed.
The program described in this one program situation is minute when you relate it to our entire visual library. Under the present law, book and magazine pictures used in 10 years of instructional program production have been saved.
I would like to digress at this point and show you a picture of the visual library that I am referring to, all of these book pictures are mounted on cardboard. This is a photograph of just one drawer and
how we set up the system. In here are all of the pictures set up with cardboard separations.
We have accumulated approximately 15,000 pictures mounted on cardboard and another 12,640 photographed and made into slides. As in the case of the single program I mentioned, approximately 75 percent of these 27,640 pictures of the entire library cannot be identified as to source and the remainder contain no information to assist in clearance. Thus, our library is literally destroyed. This material can be used in the face-to-face class room situation, why not for the instructional television teacher?
The board of trustees of the Hampton Roads Educational Television Association is deeply concerned about the enactment of legislation that would ultimately downgrade the quality of our instructional programs and increase significantly the yearly operational budget. In our view, the most significant service a new copyright act could render to us would be a clearer definition of the concept of "fair use" and total exemption from any restrictions on the use of copyrighted material in instructional programing.
Thank you, sir.
(The prepared statement of Mr. Brent follows:) STATEMENT BY RANDOLPH BRENT, GENERAL MANAGER WHRO-TV, NORFOLK, VA.
Mr. Chairman and members of the subcommittee, I am Randolph Brent, General Manager of WHRO-TV, Norfolk, Virginia, an educational television station owned and operated by the Hampton Roads Educational Television Association.
The Association membership includes the city public school systems of Norfolk, Hampton, Virginia Beach, Newport News, Portsmouth, Chesapeake, Suffolk and the county public school systems of York, Isle of Wight and Nansemond. We also serve private and parochial schools. Our broadcast service extends to over a quarter of a million students.
WHRO-TV, like the remaining ETV stations in the United States, is deeply concerned about the damaging effect of the legislation now before this Committee on the quality of our instructional telecasts. The Educational Television Stations Division of the National Association of Educational Broadcasters has exposed the detrimental features of S. 597 and has offered substitutive phraseology for Sections 110 (2) and 112(b) which would permit ETV stations to continue their efforts to provide quality instructional television lessons to millions of students. We endorse the Division's position wholeheartedly.
Should, however, s. 597 not be revised to alleviate the onerous restrictions on educational broadcasting activity that it presently imposes, its effect on our operation and others would be deleterious, indeed, catastrophic.
WHRO-TV produces approximately 1,165 instructional programs a year. All of our time, effort, money, and struggle for excellence is directed toward improveing all aspects of instructional programs for the children of our Viriginia school systems. The use of copyrighted material is vital to the quality and excellence we constantly strive for to give to our consumer, our pupils.
I would like to discuss briefly some sections of S. 597 and their effect on our operation.
Section 107 in its present form is too vague and unclear in language to permit our staff to produce instructional programs without fear of violating the "fair use" concept. Unless this section is revised to give a better definition of "fair use" in simpler terms we have no alternative but to add to our administrative staff and employ an attorney versed in copyright matters. This additional expense we can ill afford.
As a non-profit educational television station, in addition to the non-profit exemption of the present law, we have utilized the doctrine of "fair use" in the use of copyrighted material integrated within our instructional programs. This available principle of law has contributed significantly to the educational process in Tidewater, Virginia by enriching the instructional programs with the widest range of visual material being available without restriction to the television