In terms of instructional radio programing, the effect of sections 110 and 112, the restrictions in those sections-tabulated in appendix D to my statement-indicate the following: 26 percent of the instructional programs failed to meet the exemption because of the geographical limits, section 110(2) (b); 21 percent failed because of the classroom limit, 110(2) (c); 82 percent failed because of the number of copies. and the limit of years, 112(b).

The cumulative effect of the total of 10,444 instructional programs; only 36 programs were exempt, or 1 percent.

We, therefore, urge the Senate to adopt similar amendments to those adopted by the House yesterday, to remove such crippling limitations regardless of any instructional exemption.

We should point out that only 20 percent of the total programing on educational radio in this country is systematic instructional programing. The other 80 percent is in nonsystematic instructional and educational, adult programing.

Educational radio is not asking for a free ride in terms of copyright, but it takes a twofold approach: First, the owner's responsibility to allow use for educational radio purposes; second, we feel we have the responsibility to pay reasonable fees to authors and composers.

Regardless of the provision of any instructional exemption, it is quite apparent to us that educational radio will need a quick and effective method of access to copyrighted materials if the initiative, which is essential to creativity in education, is not to be smothered. I respectfully refer the committee-and the copyright owners' groups who think they are about to reap a bonanza from educational broadcastersto two recent studies which cast light on the probable economic result of this bill in its present form. The first is a report on the economic impact of the proposed law which was commissioned by our sister Educational Television Stations Division; the second is the report on a major study of educational radio in the United States entitled "The Hidden Medium." Copies of that report have been sent to every Member of the Senate. The data on station budgets and staffing in those studies confirms what we have suspected; that in the absence of a meaningful exemption, the only course which will be realistically open to us will be to cut back sharply on the use of all copyrighted materials in our programs.

Nonuse, of course, means nonpayment. It also means that published authors and composers will have no place on educational radio, which is bad for education, and bad for authors. It means that only the national network centers, with their greater ability to afford clearance staffs, would be able to produce top-quality educational and instructional programing: a result which would run completely counter to the thrust of the public television bill which is at this very moment being discussed elsewhere in this building. It means that the local stations would not be able to continue their efforts to seek out and encourage new authors and composers. And it means that we will be forced to curtail our efforts to develop our audiences' taste for the creative arts by exposure, example, and explanation, which are after all, the essence of education.

In the last analysis, the best long-range guarantee of a reasonable livelihood for authors and composers must be the existence of an audience which appreciates their works. Some of our member stations have

been doing their best for close to 50 years to nurture and enlarge that audience, and they want desperately to continue that effort. But the freedom to try would be drastically curtailed if, despite our limited resources, we were subjected in full measure to the archaic administrative system which characterizes copyright today, and which survives in this bill.

The producers of educational radio programs know too well the frustration and despair that is often the result when they seek permission to use copyrighted materials, even under the present law with its general exemption for nonprofit performances. The "bundle of rights" which theoretically resides in a single owner is as often as not fragmented among many owners, so that the potential user must engage in extensive and time-consuming research simply to identify the individual owners of the work in question, before he is even able to begin his negotiations with them. The net result is-and our experience confirms this that the cost of obtaining permission is almost always greater, and often many times greater, than the amount of the royalty which eventually goes to the author.

The stations responding to our survey broadcast an average of 115 individual programs during the survey week, and they originated the majority of that programing themselves. It becomes apparent that, since virtually none of those programs are exempt under this bill, they would have a clearance task of gigantic proportions on their hands. It is also apparent from the two economic surveys I mentioned earlier that the typical educational radio operation is simply incapable of shouldering this burden. A third of these stations have budgets of less than $10,000 a year; more than half have budgets under $25,000. For the typical station, the addition of a three-man staff to handle clearances would require a doubling of the budget-and there would be more full-time employees working on clearances than on program produc

tion

We urge the amendment of S. 597 to incorporate the educational broadcasting provision which has been endorsed by the Ad Hoc Committee on Copyright Law Revision. We sincerely believe that language is best calculated to accommodate the private and public interests involved, by restoring reality to the instructional exemption, by remov ing much of the burden of the clearance system, and by promoting the use of copyrighted materials with payment of reasonable fees. Thank you, Mr. Chairman.

(The prepared statement of Mr. Sandler follows:)

STATEMENT OF JERROLD SANDLER ON BEHALF OF
NATIONAL EDUCATIONAL RADIO

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

As one who has been directly involved in educational broadcasting for more than 20 years, I can assure you that the concern of my colleagues who operate educational radio stations about the legislation now before you is both sincere and urgent.

Because of this concern, National Educational Radio recently conducted a comprehensive survey of educational radio programming in the United States. Our

purposes were threefold: first, to discover precisely what kind of programming, in what proportions, is being broadcast by the nation's educational stations; second, to determine the effect on that programming of the broadcasting provisions of the proposed bill (S. 597); 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 this statement. Every responding station listed all of the programs it broadcast during the week of February 19-25, 1967. Every program was coded to fit into one of twelve program type categories; and the respondents indicated for each program the source, its length, whether it was live or recorded, the number of years that recorded programs had been repeated by the station, and the likelihood that they would repeat it again in future years. Additional information was supplied pertaining to the station's coverage area, its program exchange arrangements, and its budget. Supplemental information was gathered from networks and program services, and from individual station respondents when necessary. The questionnaire was designed, and the results were tabulated, by Michael E. Hobbs, who is staff attorney for WGBH-TV-FM in Boston.

Questionnaires were returned by 73 school, college and private non-commercial educational radio stations in 26 states and the District of Columbia, in proportions closely approximating the number of stations in those categories in the country at large. (See Appendix B attached.)

The results of the survey indicate to us that, in terms of what is actually being done by America's public school and university radio stations, the effects of this proposed legislation are much more serious even than we had expected. Virtually none of the educational stations' programimng is spared from the strictures of costly and time-consuming copyright clearance procedures, even in those areas for which the proposed bill ostensibly provides protection. If S. 597 were passed in its present form, it would force a major reduction in the use of all copyright materials by educational radio producers-to the detriment of the millions of students who benefit from our programming and likewise to the detriment of the contemporary creative artists who would in many cases be denied the only substantial audience for their work. In short, this legislation would work a major hardship on an important segment of our society without any corresponding gain for any other group.

Consider the kinds of programming that are broadcast by educational radio stations. For purposes of illustration we have used the definitions employed by the Federal Communications Commission in its license renewal applications for educational stations. The programs in each category broadcast by responding stations during the survey week are tabulated in Appendix C to this statement. 22% of the programs tabulated in our survey were instructional: that is, direct, systematic training of the type which is ordinarily included in the curricula of the nation's public elementary schools. (Indeed, most of the programs in this category were broadcast by stations licensed to public schools.) 47% were “generally education"—either for adult education or for education of children before or after school hours. This is the kind of "liberal arts education of the air" which today constitutes one of the great extension services of the nation's colleges and universities, in the tradition of the land grant colleges. This is the service which makes the educational resources of our institutions of higher learning available to everyone in the community, regardless of his physical, economic, social or cultural disabilities, or his geographical separation from the college campus. In large areas of the country, particularly those far removed from the major urban areas, it is often the only realistic opportunity many people have to participate in the challenge, the excitement, and the enlightenment of the university-it is their only contact with authors and artists, with different cultures, with distant people and places.

The remaining 31% we have called "entertainment" programming, and for purposes of discussion we have included in this category all dramatic performances and readings, and all music programming, although much of it should probably be included in the "instructional" and "educational" categories.

To begin with, it is clear that none of this general educational programming is exempt, because it does not constitute "systematic instruction" as contemplated by Section 110(2) (A). We believe that creative artists contribute to the educational process, just as the radio producers do, and have a right to be reasonably 79-397-67-pt. 3-24

compensated for their contribution. But we understand the purpose of this Section, namely that "instructional" programs are to be exempted, lest the delays and disappointments inherent in the copyright clearance system destroy the availability of copyrighted works to radio teachers, then in fact, this legislation does no such thing.

The broad approach of the Bill, as we understand it, is to exempt systematic instructional programs from copyright (in Section 110(2)), with certain quali fications. But these "qualifications" have the practical effect of destroying the exemption completely.

The tabulation submitted as Appendix D demonstrates what happens to educa · tional radio programming when it runs the gauntlet of this legislation.

Section 110 (2) (B), for example, provides that the exemption does not apply if the station's tranmissions extend more than 100 miles beyond the source. Twenty stations, or about 30% of our sample, would be denied the exemption for their instructional programs because of this provision. Of these, seven stations are high-powered stations with single-station coverage areas greater than 100 miles in radius. Another thirteen would be denied the exemption because of their regular participation in interconnection arrangements with other transmitters, by off-the-air pickup and relay, microwave or land-line links. Of the systematic instructional programs which Section 110 was designed to cover. 29% would be denied because of this provision. The stations hardest hit are those in the more sparcely populated states and in the midwest and far west, where network operations or high-power stations are necessary to put an acceptable signal into all of the states' classrooms.

Section 110(2) (C) provides that even systematic instruction must be transImitted into classrooms to be exempt, or must be beamed to people who are prevented from coming to classrooms by physical handicaps or disabilities. This eliminates or at least casts in grave doubt-the programs in agriculture, in home economics, and in home music instruction, the post-graduate professional training, and the evening college credit courses, which are a major part of our constituency's instructional service. 20% of the instructional programs in our survey sample are denied the "instructional" exemption by this provision.

By far the most serious flow to radio, however, is the failure of the instructional exemption to extend to the recording, as well as to the performance, of copyrighted works in instructional programs. Because of this gap, the educational broadcaster has only the "ephemeral" recording privilege of Section 112(b) to rely on-and that is woefully inadequate to our needs.

Section 112 allows one copy of an exempt instructional program to be made and used for purposes of exchange with other stations; it provides that the copy must be destroyed after a year. For the typical classroom program, here is as much as 18 to 24 months lead time between program conception and its incorporation into curriculum planning-so we are defeated before we begin. The economics of radio production, and the scarcity of teachers, is such that when an instructional radio program is produced it must-or should-be widely available for classroom use as long as it retains its educational validity. Among the instructional programs broadcast during our survey week, many-particularly in foreign language instruction-had been in use for as long as twelve years. At the same time, many of these programs were distributed in multiple copies to other radio stations throughout a state, or over even wider areas. Sections 110 and 112 read together would close both routes to us: of the instructional programs in our survey, 85% would be denied the instructional exemption on this account. At the present time, the Wisconsin State Radio Network accomplishes the effective distribution of its instructional programs by means of electronically interconnecting eleven cooperative stations within the state in order to reach virtually all the students of Wisconsin. This arrangement would no longer be economically feasible under the proposed Section 110(2) (b). Similarly, the University of Michigan reaches some 80,000 elementary school children throughout the state twice each week with a Systematic Course of Study in the basic elements of music education. This is made possible by the distribution and subsequent rebroadcast of tapes to more than 25 local stations throughout the state. This opportunity would no longer be realistically available to us be cause of the fragmentation of performing and recording rights in the proposed Sections 110 and 112.

The affiliates of the NER tape network depend on that service for a combined total of more than 35,000 hours of instructional and educational programming in a given year, from a diversity of sources throughout the country and around the world. Indeed, our recent recearch findings indicates that the typical edi

cational radio station in the United States receives and uses more NER tape programs than from all other sources-domestic and foreign-combined. This service could be hopelessly shackled by the restrictions in the proposed legislation on the number of copies of instructional programs which could be made, and on the length of time over which those copies would be retained for use.

When we add together the instructional programs which fall prey to each of these seemingly innocuous but actually quite lethal "qualifications"—we come up with a grant total of equal to 134% of the instructional programs broadcast. We have here a problem of "overkill," because so many of the instructional programs are denied exemption on more than one score. Indeed, our survey indicates that virtually the only "instructional" programs that would be exempt are programs such as school news, opening exercises, messages from the superintendent and the like, which are broadcast live by a single station for its own school use. In fact, one or more of the restrictive provisions of Section 110 could be eliminated and there would still be virtually no exempt instructional programming on educational radio stations.

Regardless of the provisions of any instructional exemption, it is quite apparent to us that educational radio will need a quick and effective method of access to copyrighted materials if the initiative which is essential to education is not to be smothered by an archaic administrative system.

The producers of educational radio programs know too well the frustration and despair that is often the result when they seek permission to use copyrighted materials, even under the present law with its general exemption for non-profit performances. The "bundle of rights" which theoretically resides in a single owner is as often as not fragmented among many owners, so that the potential user must engage in extensive and time-consuming research simply to identify the individual owners of the work in question, before he is even able to begin his negotiations with them. And even before the user begins to conduct this research, he must have the benefit of professional counsel as to whether the proposed use is a "fair use" which he is entitled to undertake without payment of royalties, or whether it is a use for which a clearance is required.

The experience of educational broadcasters under the present law has been that the cost of administering the copyright clearance system is often many times greater than the ultimate cost of the rights involved. Educational broadcasting agencies which engage in extensive non-exempt programming under the present law have learned that the production of only a few hours of such programming each week requires a full time professional clearance staff of several persons. The stations responding to our survey broadcast an average of 115 individual programs during the survey week, and they originated the majority of that programming themselves. It becomes apparent that, since virtually none of those programs are exempt under this bill, the local educational stations would have a copyright clearance task of gigantic proportions on their hands. It is also apparent to those of us who are familiar with the size of the typical educational radio operation that they are simply incapable of shouldering this burden. Almost a third of these stations have budgets of less than $10,000 a year; half have budgets under $20,000. For the typical station, the addition of a three-man staff to handle clearances would require a doubling of the budget-and there would be more full-time employees working on clearances than on program production! The question quite simply is not whether educational radio should pay or not pay under the proposed law; the question is whether or not educational radio will realistically be able to use copyrighted materials.

Educational radio is not asking for a free ride. We are asking for the opportunity to serve the creative artist by providing him an audience, and by paying him reasonable fees for the benefit of his creativity. We are asking for the opportunity to serve the public by incorporating copyrighted materials in our programs to best advantage. We are asking for a copyright system which enables us to dedicate our scarce human resources to programming, rather than to the administration of an elaborate clearance process which benefits neither owner

nor user.

The dream of educational radio broadcasters is to contribute in a meaningful way to equality of educational opportunity for all Americans. We respectfully submit that if the copyright revision enacted by Congress smothers that dream, it will ill-serve what we understand to be the constitutional purpose for copyright-the promotion of the "progress of the useful arts."

We urge the amendment of S. 597 to incorporate the language for an educational broadcasting provision which has been endorsed by the Ad Hoc Committee (of Educational Organizations) on Copyright Law Revision, for we sincerely believe that language will serve the leg interests of all concerned.