supports it and seeks to draw it more fully into the service of the Nation. I should like to make it clear in this discussion that in no sense is ETV, that is, open circuit, asking for a "free ride." If one were to consider television as a form of publication, it would be more closely related to university presses than to commercial publishing-it pays fees but the fees are in keeping with its nonprofit character and its educational objectives. My organization, National Educational Television, the effective network for nonschool ETV, systematically pays fees for materials and talent used in its programs. It has negotiated contracts with all applicable performing unions and it regularly pays literary and music rights fees to copyright holders. But NET still has problems of clearance of obtaining timely consents and at reasonable fees for copyrighted materials. Thus our appearance here today is to draw attention to this need and to seek your assistance in devising ways to meet it. Specifically, and in behalf of overall ETV programing, three principal proposals are being made bearing on the copyright law revision. I strongly endorse them. First is a clarification of "fair use" to include educational television irrespective of numbers of TV recordings, frequency of broadcast or geographical distribution, so long as only limited excerpts are used in a valid program context. The copyrighted excerpt is not the body of the program; it is employed to illustrate or illuminate the central theme-an illumination possible only through the processes of a creative mind. The second is a compulsory licensing provision covering nondramatic literary, musical, and pictorial material (but not dramatic plays, motion pictures, or television programs) under which all such material would be available for use either at license fees mutually negotiated between owner and user or, in the event of disagreement, by a judicial tribunal. Third, is the classroom exemption which already is adopted as a recognized principle in the current copyright revision bill. As to "fair use," all that we are asking is that ETV be given equivalent privileges with classroom teachers and educational publications. As to "compulsory license," we are asking for the principle of availability at a reasonable fee and providing for quick access. As to classroom exemption, we are only asking for a limited use of educational materials for teaching purposes-surely not an unreasonable asking of copyright owners. Finally, let me emphasize that ETV, just as education in all its forms, and much more than in the case of commercial television, has great need for copyrighted material. If ETV is to fulfill its function, if it is adequately to play a major role in meeting the educational needs of the Nation, it must have access to all basic sources of information and creative work, and it must be free to comment, analyze, and criticize. This access, plus the right to record such comment for repeated uses locally, regionally, and nationally, is the burden of our plea. We do not think that our position is extreme. We have tried to act responsibly in dealing with this complicated problem. We want to be fair to creative people and to their publishers, and at the same time fair to the American people, millions of whom can be reached with educational materials only through the broadcast media. We are committed to working with the Congress in developing a fair and workable copyright law, and we stand ready to meet with the register and with all parties of interest to this end. Senator BURDICK. I am sorry, that is the vote on the Consular Treaty. We will have hearings on this matter again about April 12, and those on the panel today that didn't get an opportunity to be heard will be scheduled again. The meeting will be adjourned until tomorrow. (Whereupon, at 2:55 p.m., the subcommittee adjourned until Friday, March 17, 1967.) (The material submitted by Mr. Aleinikoff above referred to follows:) PROPOSED NEW SECTION ON EDUCATIONAL BROADCASTING (To be substituted for Sections 110(2) and 112(b) Sec. Limitations on Exclusive Rights: Educational Transmissions (a) Certain Educational Transmissions Exempted An educational transmission embodying the performance or display of a nondramatic 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 audiovisual 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 Sections 502, 503, and 506, and the remedies included in Sections 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 transmissions" shall mean public broadcasts over non-commercial educational television and radio stations operated by non-profit educa tional 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. EDUCATIONAL TELEVISION BROADCASTING TECHNIQUES COMMENT ON SECTIONS 110 (2) AND 112 (B) Recent surveys by educational organizations have confirmed that the early pattern of local "live" broadcasting by individual ETV stations is being almost completely replaced by interconnected and recorded broadcasting techniques. Advanced electronic technology has already made program recording and playback simple and inexpensive for the smallest ETV station; wired and wireless ETV interconnections, while still in a comparatively early stage, are rapidly spreading throughout the United States. Interconnection.-The establishment of a new national ETV Network has been recommended by President Johnson on the strong urging of influential citizen groups such as the Carnegie Commission on Educational Television and the Ford Foundation. Whether by telephone wires or microwave relays now available, or through a new Western Hemisphere communications satellite, a nationwide ETV network operating on a full-time daily basis is undoubtedly not far off. Important political events in Washington have already been carried concurrently across the country through experimental ETV hook-ups; a more continuous weekly national ETV network service is expected to be firmly established by the fall of 1967. State-wide ETV networks have for some time blanketed a few states; more are being established each year. It has been predicted that a majority will have educational networks within five years. The most recent-in New York-has indicated its intention to follow earlier patterns of carrying not only children's but also adult-oriented programs to its linked ETV stations. A wider regional network providing both in-school and public programming has already been in active operation for several years in the northeastern region of the United States. Similarly, airplane school broadcasts in the Midwest cover several states not only through the air but also over ground relay stations. It can be expected that most ETV stations will ultimately be linked up with not just one but several of these networks. The advantages are almost selfevident on the national and regional sides, important on-the-spot current events broadcasts become possible; through state and local networks, improved programs become available from multiple sources; in general, greater distribution economy and operational flexibility may be achieved. In all probability, the isolated ETV station will soon become as much a rarity as non-network commercial stations in limited-station areas. Recording. The vast preponderance of ETV broadcasting today is by means of recordings-either on videotape or motion picture film. Again, the reasons for pre-recording are not difficult to understand-for videotape programs: production efficiency, technical quality control and scheduling convenience are but a few of the advantages; for film programs: location film photography can be combined with film-lab editing techniques. In all cases, programs may be more soundly constructed, production delays avoided and content errors minimized. Re-use of recordings is probably of even greater importance in the ETV picture. It permits not only the standard daily and weekly repeat broadcasts prevalent in ETV schedules, but also utilization of the best programs and series as long as their subject matter continues to be important and their content valid. Moreover, through recording exchange of one kind or another, educational organizations can pool financial and personnel resources, multiplying the all-tooscarce ETV dollar in effect and increasing the availability of the best professional and nonprofessional talent for all. As a result, ETV recordings are viewed not merely as a potential convenience but as an absolute necessity in ETV programming. In short, for copyright purposes, it is both impractical and unreasonable to attempt to separate television transmission from the underlying interconnection and recording techniques implicit in ETV broadcasting. Artificial geographical limits and rigid recording restrictions must inevitably result in actual nullification of any copyright exemption theoretically made available for the ETV transmissions themselves. That is not to say, however, that ETV interconnection and recording activities should always be permitted complete freedom under the copyright law. It only means that where ETV transmission is exempt from copyright restriction, that exemption should include any interconnection and recording operation used for the transmission. Where, on the other hand, explict copyright permission is required for ETV transmission, it would also be necessary for accompanying interconnection and recording privileges. But where copyright payment is made for ETV transmission, it is incumbent upon the copyright owner or clearance agency to concurrently make ancillary interconnection and recording rights available without additional restrictive or expensive clearance procedures. "FAIR USE" IN EDUCATIONAL BROADCASTS COMMENT ON SECTION 107 In commenting on the "fair use" privilege enunciated in Section 107, special considerations relating to educational broadcasters have been cited at page 65 in the Report of the House Committee on the Judiciary. Some of these factors-i.e. payment to participants, size and nature of audience, extent of recording re-usewould from the very nature of public broadcasting seem to contradict the application of the "fair use" doctrine entirely. However, Section 107 does not itself distinguish between educational broadcasting and other educational activities, and expressly refers to the possibility of reproduction by "copies or phonorecords". It is our view that "fair use" can and does under certain circumstances apply to local, regional or nation-wide broadcasting of educational programs. Assuming that a copyrighted excerpt is desirable for the programmatic subject-matter, that it does serve a valid critical, analytical or exemplification purpose, that it is properly circumscribed as to length and timing, and that it is appropriately presented in context, its use would seem clearly to be "fair" irrespective of how widespread or how often the program is ultimately broadcast. For example, the playing of short musical excerpts in a music appreciation program, the reading of book passages in a literal lecture, the use of a photograph as an example of a professional cameraman's work, the inclusion of brief scenes from published plays in a drama study, should all be considered within the traditional scope of the "fair use" exemption when applied to educational broadcast as well as the more traditional educational methods. Many other examples can be cited of permissible educational broadcasting uses under the four-fold criteria enunciated in Section 107 itself for all media—namely, the nature of the copyrighted work, the purpose and character of use, the amount and substantiality of the portion used, and its effect upon the economic value of the copyrighted work-to all of which the extent of the educational program's broadcast and its cost of production may well be completely irrelevant. Television and radio are intrinsically deeply professional and widely pervasive education instruments. Special "fair use" limitations which deny either of these characterstics cannot be permitted to override the usefulness of the doctrine in the public interest for educational broadcast as well as for the classroom. EDUCATIONAL TELEVISION COPYRIGHT SURVEY BY NATIONAL EDUCATIONAL TELE- I. DESCIPTION OF SURVEY The Educational Television Copyright Survey was jointly undertaken by National Educational Television and the National Center for School and College Television during the months of December 1966 and January 1967. Its primary purpose was to determine to what extent and in what manner published materials 79-397-67-pt. 1-15 subject to copyright protection are actually being used on educational television programs in the United States. Various legislative proposals about educational television have been made in the course of the copyright revision proceedings over the past decade. While most educational broadcasters and copyright organizations have had broad conceptions of the use of copyrightable material over ETV stations, there has been a noticeable lack of specific information. The N.E.T.-N.C.S.C.T. Copyright Survey was therefore planned as a potential source of factual data upon which to premise appropriate consideration of educational television in the course of copyright revision. Due to time, personnel and financial limitations, the survey has been limited to some thirteen educational television stations in the northeastern region of the United States (listed in Chart No. 1). In an effort to ensure sampling validity, the thirteen stations surveyed were selected with an eye toward representing all segmens of the ETV spectrum comprising public school, university and community-oriented stations, and ranging from those which produce much local programming to those which rely principally on programs acquired from national, regional and other sources. The field survey was made by three members of the N.E.T. legal staff (two lawyers and one music specialist). Two successive days of broadcasting were viewed continuously from beginning to end at each of the thirteen stations; also present throughout was a station representative familiar with program data not readily apparent from viewing alone. A separate fact sheet was made out seriatim for each program as broadcast, indicating (i) all relevant program information, such as production source, method of broadcast, previous use, repeat schedule, probable future use etc., and (ii) a detailed breakdown of all musical, literary, pictorial and other material of possible copyright protection included in the program. No attempt was made by the screeners to determine whether noted material was in the public domain or its use privileged under "fair use." Moreover, each use seen or heard was logged without regard to repetition within the same or on other programs. Nor was any inquiry made into the specific sources of listed material, except where readily evident from context or content. For non-local programs, such information is clearly unavailable at the station; nor are station personnel generally sufficiently informed of these details long after production of local programs. In short, all copyrightable material was logged by type and frequency on an all-inclusive mathematical basis. Upon completion of each station screening, one of the two days surveyed was selected as the more typical, and the broadcast information for that day collated with special regard to three separate program categories: (i) in-school instructional, (ii) non-classroom studies, and (iii) adult informational and cultural (a description of these three general categories appears in Chart No. 2). The individual station material was then collected, analized and summarized for all thirteen stations. A series of charts was assembled reflecting the generalized data, which was then discussed in detail with representatives of the thirteen stations at a special conference on January 23, 1967. Following that meeting, the charts were further amplified and re-checked, and put into final form for the survey report. The survey staff is fully convinced of the accuracy of the data reported in the charts. There may, of course, be questions of judgment, rather than calculation such as in classifying programs into various categories, in future re-nse projection, and in past-use estimations. In the staff's view, however, all statistics are if anything conservatively adduced so that the basic trends shown and conclusions drawn can be taken as authentic for the stations surveyed, both individually and as a group. It should also be noted that on all charts, each broadcast has been counted the same irrespective of actual length, on the theory that program length averages out over the stations' entire schedule. While this may tend to overemphasize in-school over home broadcasts because of the characteristic shorter length of the former, it should not have any appreciable effect within the confines of this copyright survey. II. SUMMARY OF FINDINGS ETV broadcasts and programs General description of broadcasts.-Approximately 50% of ETV broadcasts are directly related to formal instructional activities conducted by public schools, |