to condone under-the-table uses. While the new Section 107 and the House Report are helpful in making determinations as to what might be used and what should not be allowed, there is nevertheless widespread disagreement still between publishers and educators, despite several summit conferences to resolve our differences, as to what constitutes "fair use" of a work. Teachers still will have no positive assurance that a given use of a work is a fair or permissible use. It is argued in some quarters that it is impossible to guarantee such certainty. Yet, if the experts cannot agree as to what constitutes "the fair use" of a work, how can a teacher in Pocatello, Idaho, know the answer?

Section 107 sets forth four criteria by which teachers may judge whether a given use of a work is a fair use. The Ad Hoc Committee is greatly concerned about Criterion No. 4 in this section which is "the effect of the use on the potential market for or value of the work." The House Committee Report goes on to explain this criterion by stating "where the unauthorized copying displaces what realistically might have been a sale, no matter how minor the amount of money involved, the interests of the copyright owner need protection." There are already those who argue that any given use of a copyrighted work would in effect be ruled out by this last criterion, particularly when followed by the clause "no matter how minor the amount of money involved." We implore the Senate, at the very least, to strike this explanation from the Report. It will cause apprehension and concern on the part of teachers nationwide.

4. The need for protection in the event teachers and librarians innocently infringe the law

The Ad Hoc Committee commends the Congress for making provisions for the waiver of statutory damages for innocent classroom teacher infringers but urges that the Senate give the same remission of damages for certain infringements for librarians and teachers on television and radio whose work is also a vital and essential part of education. Authors are protected under the bill; teachers who teach on educational television and librarians whose business it is to make the rich depositories of information available to students and teachers are not proctected.

5. The need to meet future instructional requirements by utilizing the new educational technology now being made available to schools

The Ad Hoc Committee, while applauding the action of Congress to update teaching from 1909 to 1960 in the new bill, feels that the most serious handicap education faces in the new bill is that teaching has been frozen at the 1960 level. Teaching as it will become in the 1970s and 1980s has been ignored. The bill makes no provision for the new technology in teaching and learning; in fact, under the present paragraph D of Section 110, entitled "Time and content," the uses of copyrighted materials-without clearance or payment of royalties-on dial access retrieval systems or in computer assisted instruction, closed-circuit television, 2500 megahertz, or on most audiovisual devices designed for individualized and independent learning, are virtually eliminated.

American education is moving more and more toward individualized learning and independent study activities. The focus is increasingly on learning and less and less on teaching. The concept of teaching as a "stuffing" operation is gradually being dropped in favor of more dynamic inductive approaches to learning, including the examination of raw data material from which the student can make his own generalizations without mediation by the teacher at every step of the educative process. Paragraph D of Section 110 flies in the face of the future and relegates education to a horse and buggy period rather than to the jet age. It is difficult for us to understand why using machine aids to facilitate human use of copyrighted materials is considered an infringement, whereas similar but unaided use would not be an infringement. In our judgment, if copying with a pen or pencil is legitimate, then copying, reading, or analyzing with the aid of a machine should be considered legal. During the extensive debate on the copyright revision bill, much has been said about the need to protect publishers in the new technologies, but the teachers of America look to Congress to protect them when they use these new technologies for nonprofit purposes.

Unquestionably, the bill poses serious problems for educational computer users of copyrighted materials. The bill makes no mention of computers, nor does it provide language applicable to computers and computer uses; yet computers are one of the fastest growing technological advances in American education. Some

of my colleagues will speak in detail with regard to this matter during the afternoon session today. The section of the Report commenting on this paragraph is equally damaging to education and makes the statutory provisions air-tight, to the detriment of education. The Ad Hoc Committee has three recommendations to make in this regard. Our committee has ready specific language for Section 110, covering these recommendations. I have included this language in the supplement to this testimony. (See Appendix.)

Surveys have shown that the alleged instructional television exemption in Section 110(2) in practice would mean an exemption for less than 1 percent of all instructional television programs due to the added restrictions in the statute on broadcast interconnections and recordings. As the result, the educational broadcasters have a new legislative proposal to present to you. It has been endorsed by the Ad Hoc Committee and is attached to my testimony. It appears to us to offer a reasonable compromise between the proprietary and educational broadcasting interests, and a workable means of insuring reasonable clearances for use of published materials on educational radio and television. (See Appendix.)

6. The need to have ready access to materials

Education needs a copyright law which will enable teachers and professors, as well as scholars and students, to have maximum reasonable access to a wide variety of resources for teaching and learning. The Ad Hoc Committee feels that S. 597 would seriously handicap education's uses of copyrighted materials because it substitutes for the present duration period of 28 years plus 28 years a new copyright period measured by the life of the author plus 50 years. The Ad Hoc Committee urges now, as it did in its previous testimony, the retention of the present renewal provision of the law: a 28-year initial term of copyright plus a 28-year renewal period or even a 48-year renewal period. The present renewal provision enables teacher and students to use the non-renewed 85 percent of all registered copyrights from the 29th year because the owners in such cases have allowed the work to go into the public domain. Under the new bill it could be one hundred years or more before this very same kind of material goes into the public domain and becomes useable by education. This is neither necessary nor advisable for all works. The present renewal provision in the law is simple and readily enables teachers to know when a copyrighted work is in the public domain. We urge its retention.

IN SUMMARY

Areas Which Represent Improvements for Education

1. The statutory "fair use" provision of the proposed bill and the House report as they apply to classroom teaching.

2. The waiver of statutory damages for classroom teachers who innocently infringe.

Areas Which Are Uncertain

Whether in-school telecasts on closed circuit and 2500-megahertz (megacycle) installations are limited by the same restrictions as instructional broadcasts on educational television and radio stations. (Our committee strongly feels that closed circuit and 2500-megahertz operations are simply extensions of the classroom and that teachers on these facilities should have the same statutory treatment as classroom teachers.)

Areas Which Are Definitely Damaging to Education

1. The severe limitations put on the use of the newer educational technology in the classroom, especially for individualized uses and for independent learning activities.

2. Severe limitations on the use of materials on instructional broadcasting. especially in the prescribing of the one-year limitation, the two copies, and the 100-mile radius.

3. Undue restrictions on fair use of materials for instructional radio and television broadcasts.

4. Lack of any mention whatsoever in the bill as to instructional uses of computers.

5. Duration of copyright for a period of life plus 50 years.

IN CONCLUSION

The Ad Hoc committee, in presenting its case to your committee today, asks the Congress to enact a law which will support rather than undermine or vitiate good teaching and learning practices. The Ad Hoc committee wants a reasonable and just law which is fair to both authors and users one that can be enforced by the profession itself. It desires a new law that will provide adequately for the present and for the future both in the classroom and on educational broadcasting, that will enhance rather than inhibit the uses of materials, that recognizes the primacy of the public interest, and that enables teachers to do the job for which our nation employs them.

In conclusion, the Ad Hoc committee would like to commend both the House and the Senate committees, and the Register of Copyrights and his staff, for their diligent work and competent scholarship in spearheading this revision program. We are mindful and appreciative of their recognition and consideration of education's needs in the revision of the law. Thank you.

APPENDIX

Section 110. Limitations on exclusive rights: Exemption of certain performances and displays

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

"(1)

"(1A) performance or display of a work by instructors or pupils by or in the course of a closed transmission by a governmental body or other nonprofit organization if such performance or display is in the course of the teaching (or research?) activities of a nonprofit educational institution.

"(2) **

(NOTE.-Italic matter is new.)

(It was the intent of the Ad Hoc committee on Copyright Law Revision that 110(1A) refer to controlled or closed transmissions and that 110(2) refer to uncontrolled or open transmissions.)

PROPOSED NEW SECTION ON EDUCATIONAL BROADCASTING TO BE SUBSTITUTED FOR SECTIONS 110(2) AND 112(B)

Section -. Limitations on Exclusive Rights: Educational Transmissions

(a) CERTAIN EDUCATIONAL TRANSMISSIONS EXEMPTED.-An educational transmission embodying the performance or display of a non-dramatic musical, literary, pictorial, graphic or sculptured work is not an infringement of copyright if

(1) the content of the transmission is a regular part of the systematic instructional activities of a governmental body or non-profit educational institution;

(2) the performance or display of the copyrighted work is directly related to the teaching content of the transmission and is of material assistance to the instruction encompassed thereby; and

(3) the transmission is primarily for—

(A) reception in classrooms or similar places normally devoted to instruction, or

(B) reception by students regularly enrolled in non-profit educational institutions, or

(C) reception by persons other than regularly enrolled students to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places similarly devoted to instruction, or

(D) reception by governmental officials or employees in connection with their official duties or employment.

(b) CERTAIN EDUCATIONAL TRANSMISSIONS FULLY ACTIONABLE.-An educational transmission embodying the performance or display of a dramatic or choreographic work, pantomine, motion picture or continuous audio-visual work is actionable as an act of infringement under Section 501 and is fully subject to the remedies provided by Sections 502 through 506.

(c) LIMITATION OF LIABILITY FOR CERTAIN EDUCATIONAL TRANSMISSIONS.With respect to an educational transmission embodying the performance or display of a copyrighted work outside the scope of subsection (a) or (b), liability for infringement under Section 501 does not include the remedies provided in Section 502, 503, and 506, and the remedies included in Section 504 and 505 are limited to recovery of a reasonable license fee as found by the court under the circumstances of the case, except as follows:

(1) Where the court finds that the infringer either has failed to make a timely request for a license or has not accepted a timely offer of a license for a reasonable fee, it shall award as statutory damages under Section 504 (c) the sum of not less than $100 nor more than three times the amount of a reasonable license fee as the court considers just, to which may be added a discretionary award of costs and attorneys' fees under Section 505;

(2) Where the court finds that the copyright owner either has failed to make a timely reply to a request for a license or has not made a timely offer of a license for a reasonable fee, it may reduce or withhold any award of damages under Section 504 and may, in its discretion, award to the infringer costs and attorneys' fees under Section 505.

(d) DEFINITIONS.-As used in this section:

(1) "Educational tranmissions" shall mean public broadcasts over noncommercial educational television and radio stations operated by non-profit educational organizations under license by the Federal Communications Commission or other appropriate agency;'

(2) "Educational transmissions" shall not be precluded from the provisions of this Section - by virtue of being:

(A) relayed from, forwarded to, converted into or otherwise interconnected with other educational transmissions or re-transmissions by wire, radio or other communication device; or

(B) fixed on film, tape, disc and/or other copying devices for transmission or re-transmission purposes; and said interconnection and fixation processes shall be deemed integral parts of the educational transmissions subject to subsections (a), (b), and (c) respectively.

AD HOC COMMITTEE ON COPYRIGHT LAW REVISION (EDUCATIONAL ORGANIZATIONS AND INSTITUTIONS)

1. American Association of Colleges for Teacher Education.

2. American Association of Junior Colleges.

3. American Association of School Administrators.

4. American Association of Teachers of Chinese Language and Culture.

5. American Association of Teachers of French.

6. American Association of Teachers of Spanish and Portuguese.

7. American Association of University Women.

8. American Council on Education.

9. American Educational Theatre Association, Inc.

10. Association for Childhood Education International.

11. Association for Higher Education.

12. College English Association.

13. Council of Chief State School Officers.

14. Department of Audiovisual Instruction, NEA.

15. Department of Classroom Teachers, NEA.

16. Department of Foreign Languages, NEA.

17. Department of Rural Education, NEA.

18. International Reading Association.

19. Midwest Program on Airborne Television Instruction, Inc.

20. Modern Language Association.

21. Music Educators National Conference.

22. National Art Education Association.

23. National Association of Educational Broadcasters.

24. National Catholic Educational Association.

25. National Catholic Theatre Conference.

26. National Catholic Welfare Conference.

27. National Commission on Professional Rights and Responsibilities, NEA. 28. National Council for the Social Studies.

29. National Council of Teachers of English.

30. National Education Association of the United States.

31. National Educational Television and Affiliated Stations. 32. National School Boards Association.

33. New Jersey Art Education Association.

34. Speech Association of America.

Senator MCCLELLAN. If you will call on your associates.

Dr. WIGREN. The first two individuals represent the classroom teacher uses of copyrighted materials.

Dr. Lois Edinger.

Dr. EDINGER. Mr. Chairman, members of the subcommittee, if I might have permission as Dr. Wigren did to have my comments entered into the record, I can also sort of summarize them.

Senator MCCLELLAN. Your statement will be printed in the record in full. Any part of it that you do not quote will be inserted in the proper place in the record.

Dr. EDINGER. I think I can, therefore, omit my past history. I am Lois Edinger and I have served as a classroom teacher in North Carolina and as a studio teacher in our North Carolina in-school television project. I am now an associate professor at the University of North Carolina at Greensboro, where I now work with the professional program for teachers.

I am appearing today in my capacity as a member of the Board of Trustees of the NEA, whose membership includes every facet of American education. Its membership ranges from kindergarten teachers to college professors. Ninety percent of its members are classroom teachers.

NEA has two primary interests: the improvement of instruction in the Nation's schools and the protection of the rights of teachers and their welfare. Both of these interests are affected by any revision of the copyright law.

IMPROVEMENT OF INSTRUCTION

I need not tell the members of this committee education is in the midst of a revolution-both in the content areas and in methodology. There are new curriculum developments in the major disciplines which are based on widespread change in curriculum materials. With the curriculum explosion facing us in every area and at every level in public education, close examination of all types and kinds of materials is a necessity if change is to occur at the practical level of classroom application. At best this is a difficult and complex problem. There is little to be gained in working out new curriculum developments, if in the end teachers, who would otherwise strengthen and improve their teaching through uses of new materials, are only to be frustrated because of artificial and inflexible restrictions which in the long run will not really protect the rights of originators or producers, but will be a severe detriment to improving instruction. NEA has a deep interest in the widespread use of many materials of instruction to strengthen and enrich the efforts of classroom teachers in all subject areas. We believe the teacher must be free to teach and must have access to materials to this job.

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