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tional conference of representatives of major educational organizations to discuss both the present copyright law and the proposals which were being made for revision of the law; to canvass education's needs in a new copyright law; and to determine what steps, if any, the profession should take to deal with the situation. As a result of this conference, the widely-representative Ad Hoc Committee on Copyright Law Revision was formed, and the NEA has been a member of this committee since its formation. (I should point out here that the Ad Hoc Committee is not an NEA committee but rather a committee of 35 educational organizations of which the NEA is one member.)
At its annual meeting in New York City on July 2, 1965, the NEA Representative Assembly reafirmed its previous stand on copyright law revision by adopting unanimously the following resolution :
“Maximum access to teaching materials is of vital concern to every teacher. The National Education Association recognizes that the present copyright law provides for two parallel sets of rights, the rights of those who create such materials to profit from their efforts through copyright, and the rights of education to use certain copyrighted materials in teaching. A revision of the existing law is now being considered. The National Education Association insists that the public interest requires that the copyright law provide special recognition for education which guarantees a legal right for teachers and educational institutions to make use of copyrighted materials, including a limited right to copy and record such materials for nonprofit educational purposes, as proposed by the Ad Hoc Committee (of educational institutions) on Copyright Law Revision."
The NEA feels that the Ad Hoc Committee's proposals are essential; and it strongly urges that the Congress not diminish its own great achievements in educational legislation by enacting a copyright bill which in its present form is not in harmony with the best interests of education and which would, in fact, inhibit the uses of materials which the Elementary and Secondary Education Act of 1965 provides. Today's teacher
The teacher in today's schools is different in many ways from the teacher in the schools which you and I attended. Earlier teachers tended to use the same textbook for each pupil; today's teacher uses many resources in his teaching. He has a variety of texts and supplementary materials, including trade and reference books, newspapers and magazines, educational motion pictures, film strips, overhead transparency projectors, opaque projectors, language laboratories, audio tape recorders, record players, slides, educational radio and television, teaching machines and programmed learning materials; and he uses these in orchestration to do specific jobs. The teacher selects resources to fit particular student needs so that certain tools are used with some students and other tools with other students.
Education is no longer the very simple process Mark Hopkins talked about, but an increasingly complex and intricate one. Even before Sputnik, burgeoning enrollments and an explosion in the content areas made it imperative that the teacher enlist the power tools of educational technology to help him do his job. Never has there been so much to teach to so many in so short a time. Never has there been such an urgent need for more effective quality instruction. Time is at a premium; ideas must be communicated with dispatch.
The teacher in today's schools must provide materials for large groups, for seminars and small groups, and for individualized learning. He needs to make transparency copies of examples and illustrations for many students to see at one time. Efficiency demands this. These illustrative materials are not available for use in projectors unless the teacher reproduces or transfers them to this form. In some cases the transparencies are discarded after use; in other instances they are kept for future classes. If the teacher is not allowed to do this, either he will have to pass the chart around the class or not use it at all.
Several teachers who are considered by supervisors as outstanding teachers have identified for us some of their practices in the use of copyrighted materials. Let me share some of these with you: 1. One English teacher writes :
“I have copied excerpts or paragraphs from novels and literature books for my entire class for the purpose of showing good examples for writings in the 'structured writing program.'"
2. Another English teacher writes:
"I dittoed some of T. S. Eliot's poems on a one-per-pupil basis for analysis in English class." 3. Another English teacher writes that she uses a piece of poetry as a model for writing in her classroom :
"If a student has his own copy to mark, I feel he learns much more than from merely reading a poem." 4. A foreign language teacher writes :
"I tape portions of foreign language broadcasts on the radio for playing to my classes." 5. A history teacher writes :
"In preparing tests in American history, I dittoed maps and made enough for the class." 6. A social studies teacher says:
"With the use of the opaque projector, I traced a map from a social studies textbook on a wall for use as a backdrop for an auditorium program.” 7. A current events teacher says:
"I made a transparency of a chart from a textbook showing population growth." 8. An economics teacher writes:
"To study the stock market, I used graphs and charts from the New York Times." 9. A history teacher says:
“To tie current events to history, I use transparencies of newspaper articles." 10. A foreign language teacher writes:
"I taped a portion of a modern French poem and asked students to repeat this and then tape it so they could themselves see the improvement of their accent." 11. A social studies teacher writes:
"I prepared a ditto master of a chart from a United Nations pamphlet." 12. A guidance counselor writes:
"I prepared a ditto master of a college application to show students how to fill it out."
B. Another guidance counselor says:
"I copied an article on study habits for distribution to 150 students." 14. A shop teacher writes :
"I have made illustrations from mechanical drawing books for use on an overhead projector to clarify certain points.” 15. A science teacher writes:
"I ditto charts and tables such as electro-magnetic spectrum, tables of valences and other values, gestation periods, etc.—the sort of things found
in handbooks of chemistry and physics or in college textbooks.” 16. A science teacher writes:
"Charts for distribution of the stars in the heavens were taken from a text and reproduced by overhead projector.” 17. Another science teacher writes :
"I made a tape recording of an historic event in science from a telecast." We will not argue about whether teachers have a right under law to do these things. The question is not what is or is not in the present law. The questions are instead: What are the present practices in good teaching? Does either the present law or the proposed bill fit the needs of teachers? What should teachers be doing with copyrighted materials for and with boys and girls to facilitate learning? Once we have decided what practices expedite and increase learning, then let's write a law to make these creative practices possible. Otherwise, teachers cannot teach as well as they know how! Now that the law is at long last being revised, we urge that it be written to fit the practice rather than cut good teaching practices back to conform to the law. The law should support good practice rather than restrict it.
If limited copying privileges are permitted under the proposed bill either in "fair use" or in some other place, then we ask that this be expressly written into the statutes so that teachers won't be doing things which they feel are unethical or in violation as they attempt conscientiously to do their job. Let's get rid of "under the table" uses and bring things out in the open. If teachers are writing you letters, it is not because they misunderstand the law but because they are concerned lest what they consider to be good practices will become illegal practices.
The NEA concurs with other members of the Ad Hoc Committee in asking that the Congress give specal recognition to education's use of materials in any revision of the copyright law. In asking special recognition for education, however, the teaching profession accepts the responsibility to develop within the profession a code of fair practices which will serve as a guide to teachers in their day-to-day classroom use of materials. Most violations occur through ignorance rather than intent, and in order to avoid abuses of a statute which provides fair use and specific limited copying rights, we pledge to the Congress that once a just and reasonable laro has been enacted, we will put forth every effort to inform the members of the teaching profession of their responsibilities concerning compliance with the law. This code of fair practices would not be a substitute for an adequate law but would instead be a supplement to such a law. NEA's position on a statutory licensing system
As a member of the Ad Hoc Committee, the NEA has participated in several conferences with publishers' and authors' groups. At each of these conferences the suggestion has been made by both the publishers and the authors that a statutory licensing system, or clearing house would reconcile the differences between the producers and the consumers of materials. During one of the hearings held by Subcommittee #3 of the House Judiciary Committee, the copyright counsel for the American Textbook Publishers Institute proposed a blanket licensing system for copyrighted materials which, it was said, “would satisfy this year's needs as well as the future needs of educators and researchers for unimpeded access to copyright material.”
ATPI proposed to set up a clearing house for the reference and instructional materials published by its member firms. In so doing, they further stated :
“We recognize that the needs of teachers extend to many other kinds of copyrighted materials. We believe that the example of a clearing house cosponsored by ATPI and professional groups would mobilize other proprietary interests to similar action."
I should like to state for the record that the NEA has philosophical objections to any statutory licensing system, or clearing house, proposal. Our objections are these :
1. There has long been a recognition in the copyright act of a vital distinction between commercial and non-commercial uses of copyrighted materials. We believe that this distinction, at least for education, should be continued in the new copyright law. Further, we believe that, as a matter of public policy, education should be authorized to use and to make limited copies of copyrighted materials without clearances or royalties.
2. On the basis of the clearing house proposals we have heard thus far, a statutory licensing system would require continuous monitoring of classrooms to know the extent and nature of the use being made of materials in order to determine the fees to be charged to the schools and the distribution of the income among producers of the materials used. It is quite obvious that classroom monitoring of teacher uses of materials could lead to an unhealthy policing of materials usage in the schools with accompanying pressure by publishing groups on teachers to use their materials in order that they might obtain a larger portion of the income received by any clearing house.
3. The problems of imposing a rigid system of clearances on top of an informal and "fair use" arrangement would, we believe, unduly restrict practices that would be considered legitimate under the "fair use" section of the law.
4. The problems of administering a clearing house system would be many, and it is likely that the overhead cost required to administer such a clearing house would far exceed the revenues received therefrom. Educators might in all seriousness ask several other pertinent questions: Would the clearing house cover all types of materials usage-textbooks, trade books, newspapers, maga. zines, educational films, maps, charts, flat pictures, recordings, transparencies, musical selections, etc? Or would several different clearing house systems need to be developed for different types of materials—one for newspapers, one for magazines, one for educational films, one for educational television clearances, one for music? If a multiplicity of such clearing houses were to be initiated, then would it not be necessary to institute a clearing house for clearing houses?
The situation becomes enormously complex and intricate, and rather than make arrangements with several clearing houses the teacher would instead forego using materials at all and avoid being involved in this network of red tape. Therefore, the clearing house would have an effect opposite to that desired by the publishers and would inhibit rather than facilitate access to materials. There is some reason to believe also that several clearing houses within the publishing industry itself would be needed. In discussions our Association has had with the publishers at various meetings, we learned that not all materials of a given publishing house would be released to the clearing house. How would the teacher know which materials were a part of the clearing house arrangement and which were not?
The National Education Association applauds the Congress for its great concern for education in the historic legislation which has been enacted to date. It is our sincere hope that the Congress will continue its concern for education as it enacts significant new copyright legislation. We ask that the Congress enact a new law we can grow with—one that fosters and encourages promising approaches to teaching; one that is responsive to the emerging frontiers of the information revolution and the new educational technology; one that is flexible, not rigid ; and one that will help us meet the challenges of a clearly emerging new day in education.
STATEMENT OF FRED S. SIEBERT, DEAN, COLLEGE OF COMMUNICATION ARTS, MICHI
GAN STATE UNIVERSITY, EAST LANSING, MICH., REPRESENTING THE AMERICAN COUNCIL ON EDUCATION
Mr. Chairman and members of the Subcommittee, I am Fred S. Siebert, professor and dean of the College of Communication Arts at Michigan State University, East Lansing, Michigan, and have been serving as copyright consultant to the American Council on Education on whose behalf I appear before you. The membership of the American Council on Education consists of 1,113 colleges and universities and 230 organizations in the field of higher education.
You and the other members of the Subcommittee are already familiar with the history and rationale of copyright legislation and with the extended efforts of the Copyright Office to produce a bill (S. 1006) which would be acceptable to a wide variety of conflicting interests.
Education, and in particular higher education, has a deep and vital interest in copyright legislation. It is both a producer and a consumer of copyrighted materials. It is therefore interested in the utmost protection for the creators and proprietors of educational materials so as to stimulate the continued flow of such materials, and at the same time it is concerned that the educational process, including both teaching and various kinds of scholarly and scientific research, be able to utilize copyrighted materials with a minimum of time, effort, and expense. The widespread use of current materials for teaching and research purposes and the ease of duplication through inexpensive and instantaneous duplication processes have raised problems for both the proprietors and the consumers of copyrighted materials.
The history of copyright legislation will show that beginning with the first copyright statute enacted by the British Parliament in 1710 each successive act both in England and in America has enlarged the rights of the copyright proprietor. This present bill is no exception. Not only have the rights of proprietors of the traditional categories such as books, music, etc. been enlarged but new catgories have been added such as phonorecords, pantomimes and choreographic works. Two additional candidates for copyright protection have not been included in S. 1006—performers' rights and rights in the products of digital computers-probably with good reason.
Our civilization in the past has been based on what can be called the free flow of information. Fortunately information cannot be copyrighted so that no one individual or organization can have a monopoly of a piece of it. Sometimes it is difficult to distinguish between information and its format as, for example, with a map.
On the other hand it is just and proper that the creator or innovator be able to receive some form of monetary return for his intellectual products. The problem is to strike a proper balance between the producer and the consumer of intellectual works.
The American Council on Education is not opposed to the principle of royalty payments to copyright proprietors. Education probably contributes more royalties to copyright proprietors of literary works than any other identifiable group. However, the Council believes that certain limited uses of copyrighted materials in teaching and research are proper without the inconvenience of clearance for these limited uses.
Unfortunately, in its present form, S. 1006 has expanded the rights of the copyright proprietor beyond his rights in the present copyright law so as to limit educational uses. In other words, the existing law is, in a number of aspects, more favorable to education than the proposed law.
Let me be specific.
(1) The proposed extension of the term of protection results in a narrowing of the public domain and consequently the area from which education can utilize materials. Parenthetically, the first copyright act in 1710 (a slow moving period) limited protection to 14 years. The present bill extends this term (in a fast moving period) to life plus 50 years.
(2) The present bill eliminates the not-for-profit exemption for performances. This has particular significance for educational radio and television.
(3) The present bill expands the protected categories to include phonorecords or recordings thereby eliminating this category from general use.
(4) Pantomimes and choreographic works, under the bill, are no longer in the public domain.
I wish to point out that the American Council on Education is not opposed to these changes in the copyright law; in fact, it is in favor of them. I mention them only to show that education could be losing more than it is gaining under the proposed law.
The American Council on Education recommends that the interests of teaching and research should be protected by the following changes in S. 1006 :
(1) A clarification of the statement on "fair use," section 107.
(2) Some provision which would permit a limited amount of photo-copying for instructional and research purposes.
(3) An expanded right of transmission by educational radio and television of programs which are a part of systematic instruction, including the right to make recordings of such programs.
(4) The elimination or reduction of the minimum statutory damages for innocent infringers.
Let me expand briefly on each of these recommendations.
(1) The doctrine of "fair use."-Section 107 as presently drafted neither adds to nor subtracts from the rights of education. It merely states that the judicial doctrine exists. The American Council on Education would prefer a more definite delineation of this concept, albeit in general terms. Suggested wording is appended to these remarks (App. A). The Council hopes that, in that portion of its report dealing with section 107, the Subcommittee will refer to the factors governing fair use which were mentioned by the Register of Copyrights in his 1964 version of this bill (S. 3008, 88th Congress, section 6).
(2) Photocopying.–Although some might prefer to sweep this controversy under the rug, teachers and research workers need a more definite statement than "fair use" to guide them in this area. Book publishers have suggested the creation of some type of clearing house for educational uses, but no specific and workable plan has come to my attention.
The problem separates itself in two parts: (a) copying of excerpts, and (b) copying of whole works for educational purposes. Publishers and authors are justifiably afraid of any blanket permission for photocopying, but the need for language permitting a limited amount of copying is nevertheless present. Suggested language for a new section 111 is given in Appendix B. Again, the Council is not advocating indiscriminate use of photocopying, and the Subcommittee's report and other legislative history should make it clear that copies of excerpts and single copies of whole works are not to be used to supplant instructional materials regularly available on the market.
(3) Transmission and recording of educational radio and television programs (both closed circuit and broadcast).-Section 109 of S. 1006_provides for a limited use of copyrighted material in this type of education. It limits the use to programs (a) directed primarily to classrooms and (b) which are a part of systematic instruction.
The Council recommends that the present wording of section 109 be expanded (See Appendix C) to exempt also programs of systematic instruction where they are beamed to other audiences than those in a formal classroom. This would permit program's which are prepared for shut-ins, for adult home listening, and for other purposes that are purely educational. The Council makes no request for a similar exemption for purely cultural programs transmitted by educational radio or television.
In addition it is recommended through addition of a new section 111 (see Appendix B) that provision be made for the recording of the above type of pro