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accidental and not intentional. We therefore strongly urge your consideration of the specific amendments to Section 110 which the Ad Hoc Committee of Educational Institutions on Copyright Law Revision has presented in the appendix of its testimony. We feel that these changes would go a long way in correcting the limitations now placed upon the use of copyrighted materials for the present and emerging patterns of teaching.
Thank you, Mr. Chairman, for this opportunity to appear before your Committee.
Mr. W'IGREX. The third part of our testimony will be presented by the group representing the uses of materials in educational broadcasting. I will ask them to come to the testimony table here. There are several of them and I will move over to the side.
Senator BURDICK. I would like to advise the witnesses first of all, I will accept all their statements without objection as part of the record. We have a very important vote coming up on the Senate floor, and I think that we will not be able to continue after 3 o'clock. I think we will have to conclude the hearings for the day, so I would like to have you guide yourselves accordingly for the remaining time that you have.
STATEMENT OF EUGENE N. ALEINIKOFF, GENERAL COUNSEL, AND
ROBERT B. HUDSON, SENIOR VICE PRESIDENT, OF NATIONAL EDUCATIONAL TELEVISION; EDWIN COHEN, EXECUTIVE DIRECTOR, NATIONAL CENTER FOR SCHOOL & COLLEGE TELEVISION; AND DONALD QUAYLE, APPEARING FOR DONALD TAVERNER, CHAIRMAN OF THE BOARD, EASTERN EDUCATIONAL TELEVISION NETWORK
Mr. ALEINIKOFF. I would like to begin and see how far we get, and come back at another time.
I am Eugene N. Aleinikoff, general counsel for National Educational Television. While we cannot put on the same kind of show that Dr. Hyer has we don't have our equipment with us—but we will try to make it as interesting as we can for you about educational television, as well as audiovisual. Perhaps when we come back, we might be able to show you a couple of our programs.
With me here today
Senator BURDICK. You have very good programs in North Dakota. I know something about the content.
Mr. ALEINIKOFF. I am very glad that you have. We have a station I believe in Vermillion, if you are talking about that one.
Senator BURDICK. Fargo.
Mr. ALEINIKOFF. I think maybe we had better come back another time. We have with us today Mr. Robert Hudson, who is senior vice president of National Education Television; Mr. Edwin Cohen, who is executive director of the National Center for School & College Television; and Mr. Donald Quayle, who is substituting for Mr. Donald Taverner, the chairman of the board of the Eastern Educational Television Network.
I would like if I may, sir, to read the first few pages and that is about all, and then immediately shift to Mr. Hudson and Mr. Cohen and Mr. Quayle, who come from farther distances than I do.
Senator BURDICK. Proceed.
Mr. ALEINIKOFF. Mr. Chairman, I appeared for the first time before this subcommittee in August 1965, as an early pleader of the interests of educational television in copyright revision. May I express our appreciation for this additional opportunity to express our deep concern about the future of educational broadcasting under the proposed new copyright legislation.
For we are deeply concerned. The copyright bill reported out of the House committee and introduced in the Senate as S. 597, on which these hearings are being held, seems to us essentially discriminatory against educational broadcasting-probably more so than all of the prior revision attempts over the past 5 years. All of us appearing today are extremely apprehensive that if the copyright law is enacted as presently written, extremely serious consequences must result for every facet of educational broadcasting.
Recently, at President Johnson's urging, S. 1160 was introduced by Senator Magnuson for the support of what has come to be called public television. In that bill is included a congressional declaration of policy which, among others, affirms that "expansion and development of noncommercial educational television and radio broadcasting and of diversity in its programing depend on freedom, imagination, and initiative on both the local and national levels," and underscores the importance of Federal action to promote and assist noncommercial broadcasting responsive to local and national interests. Protracted hearings on the whole future of American educational television and radio will probably begin before the Senate Commerce Committee next month.
To us, the copyright revision proposal before this subcommittee as S. 597 is simply not consistent with the lofty aims expressed in S. 1160. For not only has the "for profit" exemption, under which educational broadcasting has operated since its inception, been summarily deleted; whatever partial relief has been substituted is so restricted by accompanying conditions, either in the bill itself or in the House report, as to be virtually nullified.
To provide a sharper focus on this, a detailed copyright survey has been jointly conducted by two national ETV organizations—the National Educational Television & Radio Center and the National Center for School & College Television. Copies of this survey have already been made available to the subcommittee and its staff; it provides, we believe, an accurate picture of the current use of copyrighted materials on educational television. Among other things, it proves beyond question what had previously been more or less suspected—that the alleged educational broadcasting exemptions contained in sections 11072) and 112(b) of the proposed bill are a snare and delusion, and, as a practical matter, provide almost no comfort at all for educational television or radio.
After much deliberation, therefore, we have prepared a proposed new statutory provision in replacement for both sections 110(2) and 112(b), which has already been submitted to the subcommittee staff. We would hope to have a chance to explain it in detail to the subcommittee in writing before these hearings end. I would say, at this point, however, that it has been endorsed by virtually all segments of the educational broadcasting community and of the Educational Ad Hoc Committee on Copyright represented by Dr. Wigren this morning: It represents, in our opinion, a fair and practical way of accommodating the interests of the copyright owner and the educational broadcaster to the mutual benefit of both, rather than the one-sided provisions of S. 597.
May I take just a moment to describe the tenor of our proposal. What we are proposing is that the present sections 110(2) and 112(b) be entirely eliminated, and a new section added relating specifically to educational transmissions. This new section would establish three separate categories of educational transmissions: Those completely exempt under the copyright law; those governed by full copyright protection; and those subject to prescribed licensing procedures, as follows:
Full statutory exemption would be severely restricted in that: (1) it would apply only to school broadcasts into classrooms or under equivalent conditions, and (2) it would apply only to direct teaching materials of a very limited nature.
No exemption would be afforded plays, motion pictures, ballets, or similar dramatic works. In each case, the author or producer would be free to establish his own fees or to withhold permission altogether for school or home broadcasts.
Most copyrighted works would be subject to required licensing for educational broadcast at reasonable fees. Penalties would be imposed both ways: on the broadcaster if he does not seek a license or accept one at a reasonable fee; on the copyright owner if he does not reply to a request for a license or offer one at a reasonable fee. What is a "reasonable fee” would either be established between the parties themselves or left to the courts or another impartial tribunal selected by the parties.
Two further points should be made: First, this new statutory proposal is not intended in any way to impinge upon fair use but rather to supplement the application of that doctrine to educational broadcasting. Second, the prime emphasis of our proposal is on the educational transmission itself, rather than the electronic interconnection or recording techniques employed in broadcast or rebroadcast. Both of these considerations have been amplified in comments submitted to the subcommitteo staff along with copies of our legislative draft.
May I now introduce the educational broadcasting representative who will speak in its behalf today.
If I may now, sir, I would like to suspend because it gets a little bit more detailed in nature, and ask Mr. Hudson to pick up from here on in.
Mr. HUDSON. Thank you, Mr. Chairman.
My name is Robert B. Hudson. I am senior vice president of National Educational Television with headquarters offices at 10 Columbus Circle, in New York City.
I will speak here briefly, giving some general background on educational television. Thus far today there has been very little discussion of open-circuit broadcasting, and its uniqueness in serving the educational, informational, and cultural needs of Americans, of young people as well as adults.
Noncommercial educational television stations have been operating in the United States for 14 years; 131 now operate in 40 States, plus Puerto Rico and American Samoa, and their signals can be heard by 135 million people. In five other States applications are pending for ETV construction permits. In all instances they are locally or State controlled. Some are licensed to local boards of education, some to universities, and in 18 States the department of education or an ETV authority, established by legislative act, operate stations. In most metropolitan areas, corporations not for profit or foundations have been set up as the licensees of one or two educational stations and they operate them in the interest of the respective areas. Metropolitan centers like New York, Philadelphia, Pittsburgh, Washington, Boston, Chicago, Dallas, St. Louis, San Francisco, Los Angeles, and others fall into this category.
ETV stations, almost without exception, devote their air time during school hours to the broadcasting of programs directly into the classroom. Programs at other hours are addressed to children and adults at home.
In all broadcasting, the end product is the program or, put another way, the impact on the viewer, it is at this point—the program--that access to educational materials must be kept open for educational television.
I need not stress here the premium that Americans put on education, not only as the birthright of children and youth, but as a continuing process throughout life. Furthermore, the increasing demands of our industrialized society are such that education and training and retraining can scarcely keep pace.
Access to educational materials in ETV is critical, but equally critical is the opportunity for repeated and multiple uses of them after they have been processed, or "produced” for television.
The production process is unique to television and to motion picture making. It is considerably more complicated than publishing in the print medium. It requires a variety of skills in a dozen to a score of professional people and their efforts must be jointly planned and coordinated to make optimum use of the visual and audio elements in the program. Educational materials given this treatment tend to "come alive" for students and adult viewers. History and social problems take on the qualities of reality; art is more than a page in a book; even mathematics takes on a new relevance. What television does for literature and plays is most striking. All of us now through television can experience Shakespeare and Shaw, Melville and Carl Sandburg in our schools and in our homes.
Since the television production process is so involved and so costly. it is hardly to be expected that each ETV station will produce all of
the programs it broadcasts. As a matter of fact, it does produce, on the average, one-third of its schedule, as compared with about 10 percent for most local commercial television stations. Furthermore, the ETV station produces these programs with limited staff and limited funds—the median for all ETV stations for programs-people and materials—is $100,000 annually. Frequently programs are prepared and presented by teachers and the problems and logistics of clearing each copyrighted reference are as great here as in the conventional classroom.
As these figures indicate, television stations, commercial and noncommercial alike, depend heavily on nonlocal sources of programs. But for the educational station it is a cardinal principle that educational materials bear repetition. Programs supplied to ÊTV stations by the national educational television network-NET—are, as a matter of policy, a broadcast two or three times within a single week-often within a single day-and many of them are requested months later for further exposure. Programs of substance like, for example, "The Red Myth," a program series on communism produced by NET in cooperation with the Hoover Library at Stanford University, and “Focus on Behavior," produced by NET under a grant from the National Science Foundation, or NET programs on Saul Bellow and Robinson Jeffers, have enjoyed repeated uses on ETV and in addition have been shown on film in thousands of American classrooms.
In short, ETV produces and broadcasts the kind of programs that use copyrighted materials-not the entertainment oriented stuff of commercial television. It brings writers, poets, essayists, artists, musicians, choreographers, and their works to television; to larger audiences than they normally reach. There is substantial evidence that ETV creates a market for the output of creative people.
It should be noted here that the whole thrust of the recent proposals put forward by the Ford Foundation and the Carnegie Commission on Educational Television was aimed at strengthening the local station and increasing the quality and quantity of educational, informational, and cultural programs available to it.
Furthermore, in his message to the Congress on February 28, the President of the United States requested the establishment of a corporation for public television to do precisely that. The President is enunciating a national policy that places noncommercial television fully and adequately in the service of education and of the American people.
Now it so happens that educational television stations are not interconnected on a regular basis but most certainly they soon will be. NET has interconnected many of the ETV stations for several demonstrations this year, but for the moment and until the proposed corporation for public television establishes landline interconnection or until a communications satellite is available, ETV stations continue to receive nonlocal programs in the form of recordings on videotape or film. But even when they are interconnected the principle of recording and repeating educational programs will be standard practice.
It is for this reason that severe restrictions on the number of recordings, the number of uses and the geographical territory covered, as proposed in the copyright law revision, can blunt the thrust of educational television just at the time when national policy in other respects