that feel a legitimate stake in the law. If we do not raise the other issues here, it is to highlight the three issues that we have discussed and about which we remain deeply concerned. But let none of this discussion blur for a moment our commendation of those who have worked so hard and so long to bring into being a law which will serve equitably the several groups it affects so directly. Senator MCCLELLAN. Do you have any questions, Senator Burdick? Senator BURDICK. In other words, the product of the House is satisfactory, but the report is not? Mr. MAXWELL. I am sorry, I did not hear your questions, sir. Senator BURDICK. The product turned out by the House Committee is satisfactory? Mr. MAXWELL. It is with the report that we are primarily concerned. Senator BURDICK. The report is not part of the legislation, but part of the record Mr. MAXWELL. Our concern is with the report. Senator BURDICK. Parts of it. Dr. WIGREN. Our next speaker is Dr. Charles Gary, on behalf of the music educators national conference. Mr. GARY. I have a statement that I would like to read, with one addition I will make to it. I am Charles L. Gary, associate executive secretary of the music educators national conference, the largest professional organization of music teachers in American schools and colleges. Many of our members are composers and authors as well as users of copyrighted material in many forms. The conference is anxious to see passed a new copyright law that will continue to provide incentive for creative individuals but will at the same time permit the teacher of music to make his maximum contribution to the development of American culture by allowing him to teach his art with all the imagination and technical assistance at his disposal. I want to make it clear that the music educators national conference supports the position of the ad hoc committee, as do two other music. organizations which have participated in ad hoc deliberations and for whom I have the privilege of speaking-they are the Music Teachers National Association, representing mainly private studio teachers, and the National Association of Schools of Music. We are, like the other members of the ad hoc committee, pleased with the recognition of certain educational practices as "fair use" but we are deeply worried lest the hands of future teachers be tied by the restrictions represented by 110(2) (D). Let me conjecture in the area of music education. One of the big problems we face is the lack of enough adequately trained teachers of music for elementary schools. The curriculum for training an elementary teacher is so filled with all the subjects she must be prepared to teach that only those with previous musical education are able to teach music well when they leave college. There are not nearly enough specialists to do the job and no prospects that there will be for years. To this bleak picture, which handicaps the efforts of every music educator in the country, comes the suggestion that the elementary classroom of the future may contain equipment that will make it possible for each individual child to acquire musical skills and knowl edges. Let me make it clear that the "art" of music will never be imparted by machines but only by a musical teacher, but I am told that the possibility does exist for many fundamentals to be imparted through the new technology. What the exact nature of assistance may be or its relationship to copyrighted materials I cannot say, but I am loath to see a law written today that may tie our hands in the future. When I testified in 1965 before the subcommittee of the House Judiciary Committee concerning the original version of H.R. 4347, I pointed out that it had seemed possible to find language for what was then section 109 that did not interfere with the school's need to perform copyrighted music as part of its education function. I asked why it would not also be feasible to find comparable wording for section 107 that would grant a clear exemption for certain educational uses of copyrighted materials. I now find mystelf in the position of being satisfied with section 107 in the amended version and deeply concerned over some additions that have been made to what is now section 110. The attempt of section 110 (4) (B) to free the copyright holder from being forced to contribute to a charity he did not wish to support is understandable but the possible consequences of this additional language are most perturbing to us. When one thinks of all the school performances across this country for which admission is chargedthe proceeds going to the school, and generally to its musical program'one wonders how copyright holders could know of the imminent performance of their work. Is notification of intent to perform implied? Should this be the case, music educators would be much happier with the "not-for-profit" provision under which school performances operate today, for all the careful language of 110 (3) and (4) up to exceptions i, ii, and iii would be for naught. Let me say the ad hoc committee was never consulted about these points-i, ii, and iii. We first learned about them when the revsion of H.R. 4347 was printed. It was not part of the discussion we had at the summit meetings and elsewhere with the members of the House committee or with the members of the Register's staff. The request for the addition of language to require notice of intent, which I understand was presented to this body yesterday by the publishers, would set up a situation that would be exceedingly difficult to enforce and one that would involve a change in principle as far as schools are concerned. What is involved is more than appears in the language of the bill, and this proposed addition to it would create an onerous situation to which music educators would be strongly opposed. I think I can say that music educators would probably be enough opposed to it that they would want to defeat the whole bill, if they had that much power. More is involved, I think, than appears in this language. I see this move as merely plowing the ground for a licensing system. To relieve the schools of the burden which such a provision would create, licensing agencies would approach the schools and offer to free schools of this bother by selling the schools an annual license. This would mean at least three such licenses at present-ASCAP, BMI, and SESAC. Further, it would open up practices that might then be extended to other materials used by the schools. This is the item of chief concern to me, because of the fact that music educators feel that their whole program depends so strongly on performance and on public performance as a culmination of their activities in the classroom. One other portion of section 110, as interpreted in the report, is of concern to music educators. This section reads: "Performances by actors, singers, or instrumentalists brought in from outside the school to put on a program" are ruled out of the exemption whereas "guest lecturers" are not. More and more music educators are using persons from the community to enrich their teaching, and they are being encouraged to do so. I quote from a recent book published by our organization, the MENC. "Bringing musicians into the school is important. Professional and accomplished amateur musicians may be used for demonstration purposes. Some may play for assembly; others demonstrate correct vocal production for the school chorus. They may conduct sectional rehearsals of the band or orchestra. Chamber music groups may give counsel on the techniques of small ensemble playing." Do such persons have to be employed by the school board to be "instructors" engaged in "face-to-face teaching activities of a nonprofit educational institution"? Is there any reason to discriminate with respect to a musician or an actor who give their services to the school while a "lecturer" (who is paid) is free to use copyrighted material? Though we believe that the drafters of Senate 597 have attempted to give education some of its present needs, we also feel that the organizations represented by the ad hoc committee have made many concessions in such matters as duration and broadcasting, and we ask that any future revisions in the bill be made with the concerns of America's teachers in mind. Senator MCCLELLAN. I had to leave the room a moment. What are you referring to in your closing paragraph? Mr. GARY. There is a section in the report referring to 110, which I do not have before me at the moment. It specifies that musicians and actors may not use copyrighted materials in the classroom, whereas a lecturer could be construed as a member of the teaching team. I think this is an unnecessary discrimination against one type of Senator MCCLELLAN. In other words, a lecturer may be paid and he can use it? Mr. GARY. He can use copyrighted materials without getting permission, whereas a singer coming in could not. Senator MCCLELLAN. Whether they are paid or not? Mr. GARY. This is the way I interpret it. Senator MCCLELLAN. Well, all right, you can explain it. I will not take further time. I just do not understand it. Mr. GARY. There is a section which discriminates against music people who are not actually employed by the school but are brought in, say, from the community. If I want to go in and demonstrate in my boy's school, because I am not a part of the teaching team and I am not employed by Fairfax County. I am not allowed to use copyrighted materials without clearing in advance. My neighbor might want to go in and give a lecture, and he would be allowed to do that without clearing copyrighted materials. Senator MCCLELLAN. We will look into that. Any questions? (No response.) Dr. WIGREN. Our next witness for the morning is Mr. Harmon Burns, Jr., counsel of the National Catholic Educational Association, and Father Friedman is with him. Mr. BURNS. I am Harmon Burns, Jr., counsel of the National Catholic Educational Association in Washington. I am accompanied by Father Clarence W. Friedman, associate secretary of the association. We consider it a high honor to be invited to testify before this distinguished subcommittee on the use of copyrighted materials in the Catholic schools of our country. In appearing before you, I may say that the National Catholic Educational Association has been a participating member in the Ad Hoc Committee of Educational Institutions and Organizations On Copyright Law Revision. We are in accord with its conclusions and commend the recommendations submitted to you by the chairman of the committee. Speaking to the matter concerning which I have been asked to appear, may I say in brief that the problems, practices, and procedures followed in our schools in this regard are precisely those experienced in the public schools and other schools throughout the country. You have heard earlier in interesting and informed detail what these problems are. It would be inappropriate, therefore, for me to impose on the subcommittee by reiterating them in depth. As a practical matter, our teachers, as with teachers in the public schools, make use of many types of material in the ordinary teaching techniques. We find it extremely helpful and beneficial to make hectographs, transparencies, and other such teaching aids out of materials taken from journals, pamphlets, and sometimes from research texts. This material is used solely for the purpose of improving instruction and without intention of infringing the rights of the authors. It is assumed authors would favor educational use of their materials since those of most publications of a research nature expect their ideas to be investigated and expanded in instruction. It has become very common in the teaching process in our schools, both elementary and secondary, to make use of available material susceptible to treatment through the audio- and visual-type machine technique. This brings classroom teaching more up to date and, in addition, helps the teacher to be original and creative. It is not unusual for teachers to take an excerpt from some published material, hectograph, or mimeograph sufficient copies for use in a classroom, and then have student discussion and criticism of the material as an aspect of developing student participation and understanding. In such instances there is no intention of abrogating the rights of the publisher. I might add that automation is being developed more rapidly each day, and individual teachers are making greater use of isolated material in their teaching procedures. This can be done only through a culling process with resultant selection of data one feels helpful to the student and most relevant to the subject being taught. Much of this material is available to the teacher only in current printed media and necessarily must be duplicated for meaningful use. In conclusion, educators insist that a teacher, to be vibrant, alive, creative, and, in turn, successful, must have fair freedom to make use of educational material at hand so that our Nation's children may have constantly available to them the best educational materials, techniques, and opportunities. Undue limitation of this hampers the attainment of that high goal of educational excellence which the Congress and the country so ardently desire. Dr. WIGREN. I wonder if Father Friedman might like to add to that. Father FRIEDMAN. The only thing I would add to what Mr. Burns has said is to emphasize the fact that our problems are the same. We have the same hesitations, the same concerns that have been expressed by other members of this committee, and I would not like to take the time of the committee to go into detail. Senator MCCLELLAN. Thank you very much. Dr. WIGREN. Mr. Chairman, if it is possible, would you mind if we have our attorney, Mr. Rosenfield, make a concluding statement for this panel this morning? Senator MCCLELLAN. I would be very glad to have him. We have moved along very expeditiously this morning, in spite of my interruptions. Dr. WIGREN. We thank you for that. Mr. ROSENFIELD. We appreciate the opportunity to answer questions. We do not regard them as interruptions, but as aids to us in expressing our view. Perhaps, it would be helpful to the committee if I were to list seriatim what our major points of interest are, both this morning and this afternoon, so they would be within an overall picture. We see a need for change in the present law and/or report in eight different areas. First, the question of fair use. You, Mr. Chairman, and Senator Burdick have frequently asked the question, Are we satisfied with section 107 in haec verba ? The answer is "Yes." We have accepted that fair-use provision, and we mean to live by it. But what we are saying, Mr. Chairman, and Senator Burdick, is that the language of the report does not carry out the agreements we reached. This is true in two respects: One, in respect of the report's description of the fourth criterion; and, secondly, in respect of its exclusion of educational broadcasting as the report in the House has indicated on page 65. We believe this discriminatory lessening of the effect of fair use on educational broadcasting is unwarranted and this will be described in considerable extent this afternoon. Senator MCCLELLAN. Let me ask you, have you submitted language for our report that you would recommend in lieu of what is contained in the House report? Mr. ROSENFIELD. We have not done so, Mr. Chairman, because it would be supererogation on our part, but if this is an invitation, we would be delighted to. |