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solved except by obtaining a judicial determination with consequent expense and loss of good will. The report of the House Judiciary Committee shows that the decision not to use an affirmative definition was deliberately made, and it might perhaps be repetitious to urge the amendment of paragraph 107 in this fashion. Consideration of the problems faced by producers of educational programs and materials in the legislative history of the Copyright Act, with comment on the obvious inequities, would go far toward obviating or minimizing the problems foreseen in the "fair use" provision.
Unless a determination is made as to what constitutes "fair use." it will force producers of educational programs and materials to seek redress in the already heavily burdened courts if they are to survive. Such action would unquestionably force all but the largest corporations out of business, leaving educators at the mercy of a select few remaining producers. This is something which we are sure none of us would wish to see occur as it would stifle the freedom and creativity which has made the educational system of the United States of America as successful as it is.
It is your view that the section dealing with fair use is too loose and that there should be an affirmative definition of fair use?
Mrs. BARNETTE. Yes, sir.
Mrs. BARNETTE. Not exactly. It would seem there should be a definite limitation on the number of copies which could be made and which would be based on the purpose for which they were made and by the number of schools in the district involved. The reason why I first became disturbed over this and asked to see the bill and the fair use section of the report was because I had heard an educator discuss the revision of the copyright bill. It was his statement, if I remember correctly, that school systems would be free to make as many copies of a phonograph record as they pleased. It so happens that over the past 2 years, we have been working with educators who have developed and are ready to put into record form an auditory discrimination training program for use in the teaching of beginning reading. If a large school district could buy one copy of this, make a master tape recording, and then as many duplicate tapes as they wished, the program could not be sold for the price at which it could if the educators were free to duplicate it.
Senator BURDICK. Of course, that is one definition. Others might get a different definition from the four criteria.
Mrs. BARNETTE. Well, I do not know. I am not an attorney. We have gone to our copyright attorneys who suggested that we should state the case that there should be a limit. I do happen to know of a school district, a large one, which is doing this with phonograph recordings. When material such as this auditory discrimination program is developed and researched, it could not be made available to schools at reasonable prices if they are free to make as many copies as they wish and use them in all of the individual schools of a district. Our material is strictly for classroom use in program or lesson form. It should not circulate widely as many individual records might. For example, our classroom reading programs for the primary grades would be used by a teacher over a 12-week period in her classroom.
They are not like many individual filmstrips which are circulated throughout an entire school district.
Senator BURDICK. Would you or your attorney submit some language that you think might be desirable from your point of view?
Mrs. BARNETTE. I would be happy to ask him to do that.
Senator McCLELLAN. This question has given me some concern, I am trying to find some answer to it. Here is a product. A school district purchases one film or one record for educational purposes. It is not purchased by an individual but by a school district, an educational institution. Once it purchases that film or record, then it becomes its property.
Mrs. BARNETTE. Right.
Senator McCLELLAN. As long as it does not make copies and sell to the students and to parents and to patrons of the school, but simply for use in that school, is it equitable -I am only asking a questionis it equitable, is it right, and should we require it to pay additional royalties for each copy that it makes to give to the children of that school for use in educating?
Virs. BARNETTE. Sir, many of our school districts are very large and contain from 100 to 500 or more elementary schools. When a record is one of a program of instruction (which might be compared to one chapter of a book), and a school district is free to make as many tape duplicates of a record as they wish, it would certainly be impossible for an independent producer to sell that program of material at any profit at all at a reasonable price.
Senator McCLELLAN. I realize that. I can appreciate the equities on that side of the issue, too. I am trying to find a way to legislate that will protect and provide for some incentives to the creator of the material and the producer, and also the purchaser and user of them. If as an institution, the institution purchases the product, then can we say to it, you cannot make copies of it for your own purpose without paying an additional royalty? Can we do that under the law? I am trying to ask.
Mrs. BARNETTE. I would say that if you cannot, I am afraid there is going to be a great deal of valuable educational material lost.
Senator McCLELLAN. They are not commercializing it, remember, now, they are not reselling it. They are making no profit. They have bought them for their own use.
Mrs. BARNETTE. Yes, but if they buy one single copy for 100 schools and they should have one copy in each of their schools
Senator McCLELLAN. I realize the problem. That is what is giving me concern. Now, can we say, to a school district, using your illustration, you buy this film or this record, but you cannot make copies of it and disseminate or give them to the children and use them for their use in connection with the educational program that it provides. Maybe we can do it and say you can make no more copies for your own use.
Of course, I know we can prohibit them from profiteering on it or selling it. They would have to pay a royalty then. That can be prohibited.
Mrs. BARNETTE. This is perhaps deviating, but perhaps I will get my point across a little better if I do so. It would certainly seem that
educators might, for instance, be able to take something, such as news events or a poem, out of a current issue of a newspaper or magazine, and duplicate it in some form to make it easier for a class to analyze and study. In fact, this might encourage more sales of the periodical or of the poet's work. Our concern is for material which has been carefully researched and worked with before it actually goes to the school market. Because of the research, the educators can take this material which has been developed and tested and put it to immediate use with assurance that it should be useful curriculum material. The particular program which I am speaking about will have seven records, and will be used in beginning reading classes primarily. Duplicating this in a school district which contains 100 elementary schools would make it impossible for business to support such development.
Senator McCLELLAN. I realize, too, the danger of the other course. If you cannot prevent them from copying it and making use of it, they only have to buy one; then the profit to the producer, the creator, would be so minimal that there would be no incentive left. In other words, the source would dry up.
Mrs. BARNETTE. That is correct. That is our feeling.
Senator McCLELLAN. I realize both sides of it. I am trying to find what is the answer in the middle.
Mrs. BARNETTE. I am afraid I cannot give you the answer, Senator. I am not an attorney and I do not know how to write laws. Í am only bringing what I see and what we see, what our copyright attorneys see as a problem. In other words, small concerns such as ours, and there are very few small ones left, I might add, because they are rapidly being purchased by the big companies who are anxious to get into the educational field since they now think it is the land of milk and honey.
Senator McCLELLAN. I am sure the members of this committee and the Congress will be trying to seek an answer that will live and let live, so to speak, and that will do equity under all circumstances to both interests. That is what we try to do.
Personally, right at the moment, I do not think I have the wisdom to do it. I need a lot of counsel from some source.
Mrs. BARNETTE. If you do not, I certainly do not, sir.
Senator Fong. Mrs. Barnette, I can see that you are in a very unique and specific business.
Mrs. BARNETTE. Yes, it is a very narrow business.
Senator Fong. Yes, I can see you are a little different from the poet who writes a poem and they take his poem and pass it around the schoolroom. That would be all right. He is not hurt too much. But in your type of work, once they do that, you are out of business.
Mrs. BARNETTE. That is correct.
Senator Fong. Now, to get a better appreciation of your problem, maybe you can tell us, what do you do? What is this type of business that you are in? Do you make films, do you make phonograph records, do you prepare charts where a person presses a button and says, where is America, and the answer is wrong and he thinks that he is right when he is wrong. Tell us so we can have an appreciation of the unique position you are in.
Mrs. BARNETTE. I would be happy to. In fact, I would be happy to leave you the philosophy of what we have at the present time.
Hopefully, we are going to do some things in some of the fields you ask about. We have some ideas.
Senator Fong. I am afraid that if we do not understand what you do, we would not be able to really help you.
Mrs. BARNETTE. At the present time, most of our programs are in the field of reading and are at different levels of reading instruction and difficulty. For instance, what we call our reading kit I, if used at the grade level for basic instruction, would be used in the primary grades for about 10 or 15 minutes a day over a 12-week period. The program contains 48 filmstrips. These same materials can be used for remedial reading at upper grade levels and are also used in teaching adult illiterates to read. There are four basic steps in our reading program.
The materials are generally presented tachistoscopically, which means by quick exposure, the first step is seeing skills. These lessons teach the student to pay attention, to see accurately, to concentrate and help build his self-confidence. What is shown on the screen is there only momentarily, and the student is asked to reproduce it.
The second step is vocabulary. We have a great deal of material in the field of vocabulary-from the very beginning reading words, those words most commonly used in reading and writing English, to very difficult vocabulary improvement programs.
The third step is reading in units of thought—sometimes called phrased reading-to help the student stop reading word by word. With this training, he is helped to learn to see, and read in, units of thought.
Our last step is in developing comprehension and retention. These are phrased sentences, which form paragraphs on which the student must respond to questions which are asked. This particular program is rather tightly structured. Our only purpose in reading programs is "to prepare the student for effective reading.” It is a supplementary program. It is not a basal reading program. We expect to always be in the field of supplementary and enrichment materials. This is what we want to do. We believe the other has been well done by many others, and we do not wish to enter into that.
Senator Fong. This could be duplicated very easily, is that right?
Mrs. BARNETTE. Yes, any filmstrip can be copied, If the program is presented out of sequence, or if only two or three filmstrips are used out of each step, the results which the program is designed to bring about will not be achieved. In our early experiences, we had some schools do this. That is why we sell only complete programs or replacement fimstrips.
Senator Fong. If there are 50 schools, you think there should be 50 films sold?
Mrs. BARNETTE. Not necessarily that. For instance, there are cases where one teacher would use it for a 12-week period, and then circulate it to another teacher in the same or a different school. This is not the situation which concerns us. However, if educators are free to make as many copies of one set of programs—whether they are filmstrips, recordings, or other mediums—without considering not only the efforts of the educators-authors to whom we pay a royalty, but our company expense and the research expense which has gone into a program during the testing period, there can be no profit left for us as a small company.
Senator Fong. Thank you.
Mrs. BARNETTE. If you would like to, I would be happy to leave you a copy of our folder.
Senator Fong. Yes, I would like to take a look at that.
(By order of the chairman the amplification of presentation of Mrs. Gladys J. Barnette follows:) AMPLIFICATION OF PRESENTATION OF Mrs. GLADYS J. BARNETTE, EXECUTIVE
AND FIRST VICE PRESIDENT OF LEARNING THROUGH SEEING, INC., SUNLAND, CALIF.
Because the training of teachers, whether those already in service or those preparing to enter the field of education, has been of concern and interest to Learning Through Seeing, Inc., it has been a part of our policy to cooperate as fully as possible with those institutions which are interested in presenting our programs for analysis, research, study, or actual use in clinical situations. As a result, we have made a large number of outright gifts and long term loans of our programs to colleges and universities concerned with teacher training.
Since many educators in colleges and universities do not need and cannot make full use of complete programs, LTS now has in work special teacher orientation and training filmstrips and motion pictures. These will be made available on some special basis to teacher training institutions. It is planned that something similar will be done with the auditory materials which are now in the final stages of production,
Learning Through Seeing, Inc., recognizes the many problems faced by educators who are training teachers. LTS orientation and teacher training programs will be one way of overcoming such problems. It is also our wish to continue to make available programs for research structured and controlled in such a manner that it is indeed true research and not just experimentation.
One of the most satsifying rewards of our endeavors has been the increasing use of LTS programs. In fact, it is our preference to have a school district first try out our programs in actual classroom conditions. When the results are observed, those programs which most suit the particular needs of the situation should then be obtained. This has been most gratifying to us-not from the standpoint of business growth alone, but also because of our knowledge that schools have been successful with LTS programs in achieving one of our goals, “... to prepare the student for effective reading
When I testified before your Subcommittee with regard to the "fair use" provision of the pending copyright bill, S. 597, both Senator Burdick and Senator McClellan indicated that you would appreciate suggestions as to terminology that would appropriately forestall the adverse situations that we foresee in the educational market. We have discussed this matter at length and have two alter, native suggestions to make.
We have largely confined our thinking, 'comments and suggestions to the educational market, with which we are most familiar. Our second proposal, however, appears applicable to other fields in which "fair use" questions also arise, such as news reporting, parody, satire and research.
Attached as an addendum to this amplification of presentation is a discussion of the actual and potential situations under which materials are copied for educational use and the factors which appear to bear upon establishment of an equitable policy.
Consistent with suggestions made on behalf of the educational community, is the feeling that there should be some delineation of acceptable and proscribed uses of copyrighted works for educational purposes. Upon reviewing the niany present and potential situations in which it is convenient or attractive for educators to employ copyrighted works without the permission of the copyright owner, as set out in the addendum, certain key factors in these situations have been identified. These important factors seem to coexist in the great majority of legitimate classroom uses of copyrighted works. Other classroom situations would be governed by the four criteria in the present bill, which criteria would not be changed. With an appropriate exception as to the use of materials specifically intended for the educational market, the following terminology is suggested for insertion after the first sentence of paragraph 107 of S. 597: