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 out 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.

Senator BURDICK. Thank you.

(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

teacher-producer, and to the director. This freedom permits us to produce programs that has maximum impact on the learning process of our students. Therefore, Congress should provide a definition of "fair use" both in the act and in this Committee's report that will serve to delineate as clearly as possible what constitutes "fair use."

Section 110 (2) purports to aid ETV stations by permitting the use of nondramatic literary or musical work, or display of a work provided, among other limitations, the instructional programs are broadcast no further than 100 miles. The State of Virginia plans in the future to have a statewide network for the simultaneuos broadcasting of instructional programs. This restriction should be eliminated.

Section 112(b) limits the number of recordings that can be made and imposes a one year restriction on the length of time a program may be retained. Unless multiple copies of programs can be made, the right of exchange becomes meaningless. The curricula of most school systems are concurrent. Even by air express, transportation of videotapes between stations take 2 to 4 days. Therefore, if WHRO-TV were to telecast, a lesson, say today, then exchange the program with another station, the lesson could not possibly be telecast on the second station before the students in its coverage area should have finished studying the materials in the telecast. Only when an additional copy of the lesson can be supplied to the station for play on the date that its local school systems are teaching the lesson's content is exchange feasible.

A restriction of one 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 work load 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 two-fold. 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, $24,668 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 #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% of the visual elements used in this program would have been eliminated since 62% cannot even be identified as to source, and the remaining identifiable 18% 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 problem 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 have been saved. 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% 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 classroom situation, why not for the instructional television teacher?

We at WHRO-TV have analyzed programs, and our picture library both in terms of our present operations and the possible mode of operation in the event that coyprighted law were to be adopted in its present version. The necessary changes in the area of producing programs for instructional television teaching would be disastrous for WHRO-TV, and I am certain for all ETV stations. Our budget is about average for all ETV stations, about $300,000 per year. There are many stations that operate on considerably less. None can stand increased administrative costs. To add copyright clearance requirements to our present costs will increase our current budget by at least 10% per year, and all for the purpose of telling the teacher-producer that material cannot be used, or in rare cases to pay nominal fees to copyright owners, if we can find them. To my way of thinking, it makes little sense to increase our budget by more than $30,000 per year to hire a lawyer, and related office personnel to reduce the effectiveness of our programs. 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 copyrighted material in instructional programming.

STATEMENT OF JERROLD SANDLER, EXECUTIVE DIRECTOR, NATIONAL EDUCATIONAL RADIO, NATIONAL ASSOCIATION OF EDUCATIONAL BROADCASTERS

Mr. SANDLER. Mr. Chairman, like my colleagues before me, I will briefly summarize my prepared statement which you already have for the record.

I am Jerrold Sandler, executive director of National Educational Radio, a division of the National Association of Educational Broadcasters. NER represents educational institutions and organizations which own and operate some 150 noncommercial educational radio stations throughout the country. Of this total, approximately 80 percent are licensed to colleges and universities, and about 20 percent to public school systems. As a service to our member institutions, NER operates a tape distribution service which makes available an average of 5 to 10 hours of educational programs per week for use on their

stations.

Stated quite simply in terms of S. 597, educational radio has the same needs and problems as ETV, only more so.

Because of our deep concern, National Educational Radio recently conducted a comprehensive survey of educational radio programing in the United States.

Our purposes were threefold: First to discover precisely what kind of programing in what proportion is being broadcast by the Nation's educational radio stations.

Second, to determine the effect on the programing of the broadcasting provisions of the proposed bill; and, third, to shed some light. if possible, on what the needs of the educational radio stations are in terms of copyright legislation.

A questionnaire designed to accomplish these purposes was mailed to the 150 member institutions affiliated with NER. A sample copy has been submitted for the record as appendix A to my prepared statement. The results of that survey are as follows, quite briefly: 95 stations replied from 31 States and the District of Columbia, and their replies confirm our concern deeply.