the U.S., one for Canada, one for the Australia network, one for the Philippine network, and one for other areas of the world. The stations return the tape copy of the program as soon as it has been released, and it is then erased and reused to provide other programs. One master copy is retained for a period of time for protection against libel, and in some instances for historical purposes. All other copies are erased and the tapes reused. It seems to us that whether we use taped copies, acetate recordings, or dirct line, this is simply a vehicle to provide the program to the stations.

In recent years, one of the music licensing companies has maintained that we should pay them a mechanical license fee for the tape reproductions we make of each program. The stations which release our program pay performance fees to the music licensing companies, which of course is included in the commercial rate charged us for time on the station. For us to pay the mechanical license fee would mean double payment for each song used. The music licensing company, namely Sesac, has insisted on this, not only for our program but a number of other religious programs as well. In some instances it is known that they have used the programs of religious organizations to force radio stations into a blanket licensing agreement whereby they must pay Sesac for their entire repertory, including jazz, rock and roll, hillbilly, and others, even though they are only using the religious part. We feel this organization is very mercenary and unreasonable in their dealings regardless of what it might do to religious organizations such as ours which are dependent solely on contributions.

I think provision should be made in the bill for the general revision of the copyright law granting exemption to religious, non-profit corporations in the payment of mechanical license fees where the mechanical reproduction is used to provide the program to the radio stations.

We feel that religious, non-profit organizations should be exempted from payment of mechanical licensing fees for the following reasons:

1. They are providing a vital and important service to a large segment of our society as a public service, and the payment of such fees would be an added financial burden which is questionable they could carry.

2. Where the tape or disc is used as a vehicle to provide a program to the station for performance whereby performance fees are paid by the station, it is not morally right that a duplicate fee should be paid for the same musical number.

Thank you for any consideration you can give this matter in our behalf. Sincerely yours,

M. A. JONES, Associate Director and Business Manager.

U.S. SENATE,

Washington, D.C., May 22, 1962.

Hon. JAMES O. EASTLAND,

Chairman, Senate Judiciary Committee,
Washington, D.C.

DEAR JIM: Enclosed is a letter which I have received from George Hatch, Chairman of the Federation of Rocky Mountain States. Attached to his letter is a Resolution which was adopted by the Board of Directors of the Federation at a meeting on April 20, 1967 which expresses opposition to certain sections of S. 597 as it would apply to educational television.

It would be appreciated if you would have the attached Resolution inserted at an appropriate place in the transcript of the hearings relating to S. 597. With kindest personal regards. Sincerely,

WALLACE F. BENNETT.

FEDERATION OF ROCKY MOUNTAIN STATES, INC.,

Hon. WALLACE F. BENNETT,

April 27, 1967.

U.S. Senator, New Senate Office Building, Washington, D.C.
DEAR SENATOR BENNETT: The Board of Directors of the Federation of Rocky
Mountain States met in Cheyenne on the 20th of April, 1967 and during the

source of the discussions, considered and unanimously passed resolutions affecting educational television.

The Board instructed me to forward copies of these resolutions to you for such action as you see fit.

I will be happy to answer any questions you might have about these resolutions as well Dr. Wayne Bundy, Director of Educational Television, University of New Mexico, Albuquerque, New Mexico, who is the chairman of our Educational Television Committee.

Thank you very much for your interest in the Federation.

Very best regards,

Enclosures.

GEORGE C. HATCH, Chairman.

A RESOLUTION BY THE BOARD OF DIRECTORS OF THE FEDERATION OF ROCKY MOUNTAIN STATE, INC. MEETING Pursuant to CALL AND NOTICE AT CHEYENNE, WYO., APRIL 20, 1967

Whereas S. 597 in its proposed form will drastically alter conditions of use of copyrighted materials by educational television stations in local production for instructional purposes, and

Whereas, Section 110 (2) and 112(b) provide three particular restrictive provisions: (1) the 100 mile limitation, (2) the 1 year limitation on usable life of recorded instructional programs, and (3) the limitation to one copy of such materials for broadcast and exchange purposes, and

Whereas, the 10 educational television stations in our 7-state region will be critically limited both in present operations and/or in planned expansion and development of instructional television services in that:

(1) High elevation transmitter sites consistently provide broadcast service exceeding 100 mile coverage;

(2) the routine use characteristic of our region-of translators, community cable installations, and other devices extends service to isolated school and remote areas far outside the proposed limit;

(3) planned statewide and regional development of television as an instructional medium must depend upon both intra- and inter-state interconnection if such service is to be economically practicable in our sparsely populated region; (4) authorized retention of recorded program materials for a 5-year period is essential to make recording for retention economically justifiable; and

(5) multiple copies of recorded materials are utterly essential to serve effectively the multiple broadcast and closed-circuit operations in our region, and Whereas, to limit the use of television for instructional purposes in terms of miles, months or copies will in our considered judgment critically inhibit the regional cooperative development we believe essential for the general welfare of the States of Arizona, Colorado, Idaho, Montana, New Mexico, Utah and Wyoming;

Now, therefore, The Board of Directors of the Federation of Rocky Mountain States, herein assembled in official meeting, does hereby respectfully recommend and request careful consideration of, support for, and adoption of the proposed new section on Educational Broadcasting to be substituted for Sections 110 (2) and 112 (b).

A RESOLUTION BY THE BOARD OF DIRECTORS OF THE FEDERATION OF ROCKY MOUNTAIN, INC. MEETING PURSUANT TO CALL AND NOTICE AT CHEYENNE, WYO., APRIL 20. 1967

Whereas, the Carnegie Commission on Educational Television has completed its deliberations and reported its findings and recommendations in January, 1967 "Public Television: A Program for Action", Bantam Books, Inc., and Whereas, there has been introduced in the Senate of the United States a bill (S. 1160) and the House of Representatives of the United States a bill (H.R 6736), the "Public Television Act of 1967", providing for the establishment of the "Corporation for Public Television", and

Whereas, the Federation of Rocky Mountain States has designated an Educational Television Committee to explore and plan regional instructional television development to serve primary and secondary education, as well as institutions of higher learning, and to explore and plan development of regional “public

television" in the broader sense to serve the general public of our several states, and

Whereas, the Educational Television Committee has carefully considered the findings and recommendations of the Carnegie Commission and the provisions of the "Public Television Act of 1967” and has reported its conclusions;

Now, therefore, be it resolved that the Board of Directors of the Federation of Rocky Mountain States, herein assembled in official meeting, does hereby wholeheartedly commend the work of the Carnegie Commission on Educational Television and endorse its report in principle, and

Be it further resolved that the Board of Directors, herein assembled, does hereby endorse, as essential to effective development of "Public television" in the Rocky Mountain region, the provisions of the "Public Television Act of 1967" and does hereby respectfully recommend and request careful consideration of, support for, and adoption of S. 1160 and H.R. 6736.

SELLERS, CONNER & CUNEO,
ATTORNEYS AND COUNSELORS,
Washington, D.C.

Re S. 597.

SUBCOMMITTEE ON PATENTS, TRADEMARKS AND COPYRIGHTS,
SENATE COMMITTEE ON THE JUDICIARY, THE CAPITOL,
Washington, D.C.

(Attention Thomas Brennan, Esq., Chief Counsel).

DEAR SIRS: As you know, the Book Manufacturers' Institute testified at some length on Section 601, the so-called Manufacturing Clause, of the subject bill. At the time that this testimony was presented, the Institute necessarily was preoccupied with the broad policy aspects of the legislation and, therefore, regrettably was unable to give adequate attention to what emerges as a very serious technical problem with the language of subsection (a) of Section 601. The BMI is quite concerned over the language in subsection (a) describing the works to which the Manufacturing Clause applies, namely, works "consisting preponderantly of nondramatic literary material," and more especially over the applicability of the term "preponderantly" to literary works containing large amounts of pictorial matter.

The language in question was designed by the drafters of the legislation to distinguish preponderantly nondramatic literary works in English from other kinds of works, such as dramatic, musical, foreign language, pictorial and graphic works, which are not intended to be covered by the Manufacturing Clause. "Literary works" are defined in the bill as works expressed in words, numbers or other verbal or numerical symbols, common examples being books, periodicals, pamphlets, catalogues and directories.

Literary works, of course, may include pictorial, graphic, or other non-literary material. The term "pictorial, graphic and sculptural works" is defined in the bill so as to include not only works of art in the traditional sense but works of graphic art and illustrations, art reproductions, prints and drawings, photographs and reproductions, maps, charts, globes and other cartographic works, and similar works used in advertising and commerce and other works of applied art. If a work includes a substantial amount of such pictorial or graphic material, Section 601 of the bill requires a determination as to whether the work consists preponderantly of literary material or of pictorial material.

Most of such works as art books, books of photographs, atlases, etc., although usually containing some literary material, obviously are preponderantly pictorial and graphic, and hence exempt from the requirements of Section 601. It is equally obvious that other works consisting almost entirely of literary material are subject to Section 601's requirements.

However, there is a broad spectrum of works with respect to which, without clarification in the Committee's report, it will be difficult to determine whether individual examples consist preponderantly of literary, or of pictorial, matter. Obvious examples are news magazines containing many pictures, and childrens' story books or school books having high picture content. Such works comprise a very large and important segment of book and periodical manufacturing which should not be left to depend entirely upon administrative and judicial interpretation on a case by case basis. Without some clarification of the Congressional

intent, the phrase, "consisting preponderantly of nondramatic literary material," as applied to such works, is susceptible of various interpretations by Courts and Customs Officials and will very likely produce conflicting results. There is nothing in the House Committee Report or hearing record to clarify this matter. Accordingly, it is important that the Senate Committee's Report do so.

The term "preponderance" means having greater or superior weight, a superiority in influence or importance. To reduce it to a purely volume test would produce anomalous results. For example, a children's story book may be published in two editions, both with the same text and illustration, but one with the pictures blown-up in size and the text small, while the other is in large type with smaller pictures. Under a purely volume test, one edition would be likely to be found preponderantly literary, and subject to Section 601's requirements, while the other would not. Thus would be produced the absurd, and unfortunate, result that the author's copyright would be protected if he had the one edition printed abroad but not if the other were printed abroad. We do not believe that such a result is intended by Congress.

The more correct interpretation, we submit, requires weighing the relative importance of the literary and pictorial material. Where the literary material is essential to convey the information or ideas, and the non-literary material is principally illustrative of, or ancillary to, the text, then the work should be judged to consist preponderantly of literary material, even though the pictorial matter may physically occupy more space in the work than the literary material if measured by volume alone. Conversely, in the case of art books and the like. where the text is principally explanatory of, or ancillary to, the pictorial or graphic content, the work plainly does not consist preponderantly of literary material.

Statutory copyright arises out of the constitutional purpose to promote the progress of science and the useful arts by protecting the forms in which authors communicate information and ideas. The determination of whether a work consists preponderantly of literary material or of other material should be based on the means by which it conveys information or ideas.

Accordingly, it is respectfully submitted that the Committee's Report should contain an explanation of the manner in which the term "preponderantly" is to be applied to work containing both literary and pictorial matter. Such explanation should state that a work consisting of both literary and pictorial material should be judged to consist preponderantly of literary material where that material is essential to convey the information or ideas and the non-literary material is merely illustrative of, or ancillary to, the text notwithstanding that the ancillary pictorial matter may even occupy more physical space in the work than the literary material. Conversely, where the literary material in a work is essentially subservient to the non-literary matter, as in the case of captions, headings, or brief descriptions of pictures, maps, graphs, charts or the like, the work should be considered not to consist preponderantly of literary material.

It is our understanding that if a work is found to consist preponderantly of nondramatic literary material that is in the English language, then the work is subject to the requirements of Section 601, except that the pictorial material. as well as any music, dramatic material, or literary material in a language or languages other than English that it may contain, are not required to be manufactured in the United States.

Chairman, Subcommittee on Patents, Trademarks, and Copyrights,
Senate Judiciary Committee, Senate Office Building,
Washington, D.C.

DEAR SENATOR MCCLELLAN: As an attorney and interested member of the public. I have read House Report No. 2237 on Copyright Law Revision in connection with H.R. 4347, which is currently the subject of hearings before your Subcommittee. My reading of that report compels me to offer an amendment to Section 107 which concerns the "fair use" doctrine. As presently phrased, that section of the bill provides as follows:

"Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies of phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include

"(1) the purpose and character of the use;

"(2) the nature of the copyrighted work;

"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work."

The history of the "fair use" doctrine, and both the history and constitutional authority for copyright legislation, show that the purpose of that doctrine, and of copyright, basically is to preserve the author's opportunity to obtain pecuniary benefit and value from his work.

Section 107 presently lists four standards which the House Report states are essentially the criteria by which the courts have applied the "fair use" doctrine. It seems strange to me, however, that Section 107 mentions as the last such standard what is, in fact, the basis of "fair use": "the effect of the use upon the potential market for or value of the copyrighted work". The House Report recognizes this as "often the most important criteria of fair use"; I would go further and say it is its very purpose and extent and should be treated as such. Section 107 lists the four standards without evident design that they be considered toward any unifying purpose. They exist as each an independent test which the courts will scrutinize and prospective fair users will ponder in an effort to detect some common thread of purpose, which can be the only actually useful guide. Unless the purpose of "fair use" is clearly stated, Congressional intent, evident from the House Report, that the standards be jointly considered cannot in practice be complied with. Without a statement of purpose, the standards will be a kind of "troika" leaping off in all directions unless some sturdy judicial charioteer brings order out of chaos and picks one of the standards, obviously the fourth, as representing the purpose toward which the others must subtend. Your Committee now has the opportunity to avoid this uncertainty and inevitability of judicial legislation by making clear what it considers to be the unfying purpose of "fair use".

The amendment I propose toward this end would recognize that "the effect of the use upon the potential market for or value of the copyrighted work" is the purpose of "fair use" and would thus give tangible direction to the remaining listed criteria which would then be clearly understood tools for the courts and the public to apply in particular situations. The amendment I propose is as follows:

"Notwithstanding the provisions of section 106, the fair use of a copyrighted work not affecting its potential market or value is not an infringement of copyright. Such fair use shall include reproduction in copies of phonorecords or by any other means specified by section 106, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. In determining whether the use made of the work in any particular case affects its potential market or value, the factors to be considered shall include

"(1) the purpose and character of the use:

"(2) the nature of the copyrighted work; and

"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole."

I urge the Committee to give serious consideration to this amendment and. I herewith enclose sufficient copies of this letter so that each member of the Committee and the Committee counsel may study it individually. This amendment neither adds to nor subtracts from the language already in Section 107, but is merely a rearrangement of that section intended to increase its utility in practical operation compatible with the House Report and consistent with the intention of the drafters of the bill.

Respectfully submitted,

JAMES F. BROMLEY.