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ers' needs. But doing this, they are now finding more teachers want more films available, no matter what form they come to them in.

I would agree with you, yes, we are concerned that we not drive any publishers out of business, because we would be damaging our own interests at that point.

Senator BURDICK. I am not talking about driving publishers out alone. I am talking about drying up ingenuity.

Mr. TAYLOR. Yes, this problem of creativity.

Senator BURDICK. Senator Fong?

Senator FONG. Yes, Mr. Chairman.

Where would you draw the line on closed-circuit transmission? Dr. HYER. I do not know. It seems to me that I would like to put this question, really, back to your committee. I think you are finally the ones who are going to have to decide it. We would like it as broad as possible, without drying up the sources of our supply of instructional materials.

We definitely, let us say, are against the copying of such things as films and filmstrips, and encyclopedias, and things of this sort. We have no intention and have never asked for this sort of thing. We have asked for excerpts of those. The ability to display in new ways things which we have bought to display, that is what we are trying to point

out.

I suppose I would look at the answer to your question quite differently, then, perhaps, Mr. Deighton, who is probably still in the back of the room, would look at it. I think I would have to just say that when we both present our cases, you members of the committee will have to judge.

Senator FONG. Following the same line, how much of a book do you think you could take out and not hurt the author? I can see where you would take out one picture and show it, or one graph and show it. I can see that would be of no harm. If you take 50 graphs from the same book and 50 pictures from the same book, then there would be some detriment there. Where would you draw the line, again?

Mr. TAYLOR. Do you mean in using such a thing as a transparency instead of the book?

Senator FONG. Yes.

Mr. TAYLOR. I might cite this: I have found, again using somebody like Captain Kangaroo's program. He reads a book on television and displays this over television, and our local libraries are deluged with requests for this same book.

There, too, if one of these is made for classroom presentation by a teacher instead of the old-fashioned method of holding it up here [indicating] and you do not know what is on here, those same students may go to the library and ask for more copies of one book.

So in one way, it can increase demand for that material.

Senator FONG. But you have not answer my question. My question is, how many graphs can you take from a book and still not say you have purloined the property from the copyright owner?

Mr. TAYLOR. I do not think there is a way of saying how much of it you could do this way.

Senator FONG. Is this your statement to us, then?

Dr. HYER. I think there is a difference of whether you are displaying it or copying it. If you are copying it, you should not be using a sub

stantial portion that can replace the total work. I think this is spelled out fairly well. But if you are displaying it, you expect to display the whole thing. If you purchase a book for use, you expect to have the whole book. If you are copying a map out of the New York Times, I expect to copy the whole map.

Senator FONG. Suppose a person is in your position, where you are not the classroom teacher, but you see something that is good in a book, and you see 10 graphs in that book that are very good. So you copy it, and then you audiovisualize it to the whole school. Now, how many of those graphs will they permit you to copy?

Mr. ROSENFIELD. May I make an observation, Senator, so that we are not attempting to miss your question?

So far as display is concerned, as Dr. Hyer indicated, we are not copying, we are showing the original. We believe we ought to have the same right as if we were in the library, looking at the whole book.

We are not making any copies. We bought the material to show and we are showing it. That is the concept of display.

When it comes to copying, we are limited by 107 with the four criteria, and there the limitation is exactly the same as it is for books. We cannot copy the whole book, we cannot copy that much of it which would be destructive, substantially destructive of the market.

Therefore if we break those two things, just as Dr. Hyer has done in her statement, we get a different answer, depending upon which part you are dealing with.

Senator FONG. Yes; but the House answered your question, and you said that the House has been too limiting.

Mr. ROSENFIELD. Exactly.

Senator FONG. Now, if we want to broaden what the House has done, how far should we go? You say we should go all the way?

Mr. ROSENFIELD. No, sir.

Senator FONG. As long as you do not copy it, as long as you present the original, you say we should go all the way. Is that not correct? Mr. ROSENFIELD. Not quite, sir. The objection we are making to the House report on this score is as to the language relative to the fourth criterion in "fair use," which deals with copying. And there we are saying we are not going the whole way, we do not want the right to copy all of the encyclopedia or all of the entire map.

On that, so far as copying is concerned, all we are suggesting is that the language, "no matter how minor," be eliminated. This does not mean that we are saying, "no matter how major." We are not going the whole way completely the other way.

Senator FONG. There is a distinction between copying and showing the original?

Mr. ROSENFIELD. That is precisely right.

Senator FONG. In the showing of the original, you are willing to go all the way; you want to go all the way?

Mr. ROSENFIELD. That is what we bought it for.

Senator FONG. That is precisely the fact.

Senator BURDICK. But you talk about educational broadcasting in your statement. Does that mean closed circuit any distance?

Mr. ROSENFIELD. Just as Dr. Hyer said, we believe that your proposal-not proposal, your query for at least the school-is a long way

forward. We believe, Senator, that certainly within the school system itself, in fact, we will not hurt anybody in any substantive way.

Senator BURDICK. I have not made any proposals; I am just asking questions.

Mr. ROSENFIELD. That is why I switched to questions.

Senator BURDICK. Thank you very much. That is very interesting testimony.

(The complete prepared statement of Anna L. Hyer and Robert Taylor, above referred to, follows:)

STATEMENT OF ANNA L. HYER AND ROBERT TAYLOR, DEPARTMENT OF AUDIOVISUAL INSTRUCTION NATIONAL EDUCATION ASSOCIATION

Mr. Chairman and members of the subcommittee, I am Anna L. Hyer, Executive Secretary of the Department of Audiovisual Instruction of the National Education Association. With me is Robert Taylor, a member of the Department of Audiovisual Instruction, who is Director of Educational Communications in the Bedford Public Schools of Bedford, New York.

The Department of Audiovisual Instruction is one of several autonomous professional organizations related to the NEA. Established in 1923, our Department is made up of approximately 7,000 educators who are particularly concerned with the improvement of education through the more effective application of instructional media to the teaching-learning process. Media includes such items as pictures, slides, motion pictures, filmstrips, radio and television programs, recordings, and programed instruction. The members of DAVI are chiefly supervisors in schools and school systems or directors of audiovisual services in colleges and universities. The audiovisual services they provide include: helping teachers and students to select and use new media, producing instructional materials for teacher use when commercially prepared materials are not available, designing efficient and effective learning environments, and selecting and purchasing audiovisual materials and equipment.

The Association we represent has been a member of the Ad Hoc Committee (of Educational Institutions and Organizations) on Copyright Law Revision since it was organized three years ago. We are in agreement with the testimony presented in behalf of the Ad Hoc Committee by Harold E. Wigren. In brief, we feel that, with some greater degree of certainty written into the Committee Report and the legislative history, the "fair use" provision of The Bill is reasonably adequate as it applies to classroom teaching as it is usually conceived, but that The Bill places severe limitations on the emerging uses of the newer educational technology.

To understand how the proposed Copyright Law would adversely affect the work of the audiovisual supervisors, and in the long run the children, we propose to do two things. First, we will show through pictures some of the newer ways media are being used in teaching situations and how these methods differ from those formerly used. Secondly, we will state what aspect of the proposed legislation (including the provisions of the House Committee Report on H.R. 4347) will adversely affect the type of learning situations we have portrayed.

Performance and Display Not Involving Copying

Until quite recently almost all uses of motion pictures, filmstrips, and the like in education took place in a classroom where the material, the projection equip ment, the teacher, and the students were all present in a "face-to-face" teaching situation. This requires the moving into the classroom of the materials, the projection equipment, the projection screen, the darkening of the classroom for adequate reception, and the presence of a projectionist (sometimes the teacher). Sometimes projected materials were used with regular-sized classes and sometimes in large-group teaching.

Gradually a change has taken place in the use of projected materials. As a substitution for moving the materials, equipment, room darkening facilities, screen, and the like into the classroom, it is frequently more convenient and equally satisfactory to bring the projected materials to the classrooms situation electronically, such as over a closed-circuit transmission system. The proposed Copyright Bill would make such transmissions of motion pictures and other audiovisual works illegal since face-to-face teaching activities have been inter

preted in the House Report on the idental Bill as intending "to exclude broadcasting or other transmissions into a classroom whether radio or television and whether open or closed circuit." The requirement seems to be that the transmission not go beyond the place where the material being projected is located. The Department of Audiovisual Instruction feels that a distinction should be made between open and closed-circuit transmissions since the latter is being directed to a controlled and limited audience.

Closed-circuit television is often used for purposes of enlarging pictures, models, and the like which, if displayed in the classroom, could be seen by only a very small number of students at one time. Our organization feels that no limitations should be placed upon the teacher that prefers to display the copyrighted picture, model, or the like to the class via closed-circuit television so that it can be seen adequately by all students simultaneously within a tightly controlled environment limited solely to the students themselves. We are not talking here of making copies, but only of performing or displaying the very items which the school bought and paid for. The question, then, is: How can we show what we bought to be shown? Closed-circuit television, we feel, should be accorded equal status with face-to-face teaching because that is what it is in modern technology.

In recent years increased emphasis has been given to the importance of individualizing instruction in order to improve the quality of learning. As a result, projected materials are being used more and more on an individual or smallgroup basis rather than with the entire class. Sometimes this use is in the classroom, sometimes in a learning resources center, or the student may even sign out the tabletop projector and take it and the slides and filmstrips or other materials home with him as home assignment work just as he would borrow a book from the school library. In other words it is increasingly the student, not the teacher, who uses the material and the equipment.

Methods of using audio recorded materials are also changing. These, too, were formerly presented to the class as a whole via record players or tape recorders. Most schools in the United States have public address systems, and many of these have the facility of directing, from one central location in the school, recorded material to any one classroom or group of classrooms. The proposed Copyright Law, however, would seem to make it illegal to use a copyrighted recording over the public address system directed to a particular classroom although the same recording could be played in that classroom if equipment were transported to the classroom.

Individualized instruction is also making use of recorded materials. Record players and tape recorders with sets of earphones are becoming common in elementary, secondary, and college and university settings. The language laboratory, which teaches students to speak a foreign language by presenting taperecorded speech patterns for them to imitate, is enjoying widespread use. Increasingly, however, students are not being moved to where the materials and equipment are, but rather the recorded messages are being moved to where the learners are. To this end, a very rapidly growing development is the audioremote-access systems sometimes known as dial-access. A few video-remoteaccess systems have also appeared. The proposed Copyright Law makes use of such modern information delivery systems illegal because the transmission is controlled by students rather than by the teacher on the basis that use by individual students substitutes for purchase of copies. It is our contention that since no copying is done, such uses as we have cited do not result in reduced sales, but do result in improved teaching and learning. The provisions of S. 597 will require us to use horse-and-buggy methods of performance and display with new technological developments.

You will note that we have not been talking about copying but merely the manner in which copyrighted material, which has been purchased for the very purpose of being performed or displayed, can be performed or displayed in the process of teaching. Three quotations from the House Report which accompanied H.R. 4347 will illustrate the source of our problems:

"Use of the phrase 'in the course of face-to-face teaching activities' is intended to exclude broadcasting or other transmissions into a classroom whether radio or television and whether open or closed circuit."

"As long as there is no transmission beyond the place where the copy is located, both Section 109B and Section 110 would permit the classroom display of a work by means of any sort of projection device or process."

"Clause 2 of Section 110. . . was not intended to exempt the transmission of visual images to individual students at their control, thereby substituting for copies."

Reproductions by Teachers for Classroom Purposes

A major duty of audiovisual supervisors in schools and colleges is to encourage the increased and improved use of new media in teaching. One way to do this is to hold formal classes for teachers, but this, it has been found, is not as satisfactory as more indirect teaching methods. Let's assume that an audiovisual supervisor has been trying to encourage a teacher to use transparencies in his history class. (Transparencies are large slides on transparent acetate for use on an overhead projector.) The audiovisual supervisor sees a good picture in a magazine which is copyrighted, and he wishes to make a transparency of this picture, present it to the teacher, and encourage him to use the material for the improvement of his instruction. This type of activity is prohibited by the proposed Copyright Law, because according to the House Report on Section 107, the fair use doctrine, in the case of classroom copying, is limited to "a teacher who, acting individually and on his own volition, makes one or more copies for temporary use by himself or the pupils in his classroom.”

Further, we feel that it is an unnecessary hardship on a creative teacher, who makes a copy of a copyrighted work for use in his teaching, to be required to dispose of it at the end of the teaching period. Let us say that the teacher prepares a transparency of a section of a poem or a slide of a chart from a copyrighted book. Does the doctrine of spontaneity as basic to permissible copying mean that the teacher would only be able to use these materials temporarily because, according to the House Report, the use "could turn into an infringement if the copies were accumulated over a period of time. . . . or were collected with other material from various works so as to constitute an anthology."

Copying of the type described is frequently required in good teaching, because the material is not available in the media format that is needed. For example, most of the charts and pictures in books are not available as slides or transparencies. Disc recordings may not be available in tape form and so forth. It seems unduly restrictive to require teachers to destroy such teaching materials which are not available commercially. Must the spontaneously-copied items be destroyed and not available for use by the same teacher again, or for that matter by that teacher's next-door colleague? We respectfully suggest that such a requirement is not reasonable.

Members of the Department of Audiovisual Instruction are also concerned about the limitations placed on educational broadcasting and on the educational uses of the computer in the proposed Bill. Because of our limited time, however, we are not including detailed testimony on these items. We are, however, strongly endorsing testimony related to these topics as presented by Dr. Wigren for the Ad Hoc Committee on Copyright Law Revision, by representatives of the National Association of Educational Broadcasters in behalf of educational broadcasting, and the testimony of Dr. Fred Siebert and Dr. Arthur Miller concerning educational uses of the computer.

In conclusion

From our testimony it is evident that teaching has been changing in character and in the way in which it utilizes the materials of instruction. There is decreasing emphasis on the teaching of "a class" and more on the teaching of the “individual child." Much of the school work is on an individualized basis and teachers want materials available for individual children whether presented by the teachers themselves or in a tutorial situation over a listening center or over a video-retrieval system.

The areas that we feel are damaging to education could be summarized as follows:

1) The severe limitations put on the use of the newer educational technology by individuals and for independent study when such teaching activities are a part of the regular school program.

2) The limitations placed on the use of copyrighted audiovisual materials on closed-circuit television which is solely within the school environment.

3) The undue restrictions placed on instructional broadcasting.

4) The limitations placed on fair use of copyrighted materials for educational purposes from a computer.

The Department of Audiovisual Instruction feels sure that many of the hardships that the Bill as proposed would create for teaching and learning were

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