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ment by teachers and (2) that copyright duration should remain at the present term of 28 years plus 28 renewal or 28 years plus 48 years renewal as originally proposed by the Register himself.
This latter recommendation is in opposition to those provisions of the bill which the Register testified yesterday as being one of the foundation stones of the entire structure and content of the bill as it now stands." However, I shall not discuss these matters orally, but leave them to my written statement, unless of course the committee wishes otherwise.
As I have indicated, for this committee's convenience I appended to my statement, in an appendix, all of our recommendations as set forth in haec verbi, in the hope that they may be helpful, as well as persuasive, to the committee.
In concluding, Mr. Chairman, I wish publicly to express the ad hoc committee's respect and admiration for the work of the Copyright Office, Mr. Kaminstein, Mr. Cary, Mr. Goldman, and Miss Ringer. They have been unfailingly kind even where they would not accept our recommendations. And I want also to express before this committee our appreciation to your staff and Mr. Brennan for their unfailing helpfulness and cooperation.
The last witness, Mr. Chairman, of the group that was to appear under the umbrella of the ad hoc committee is Mr. Eugene Aleinikoff, a distinguished attorney and member of the ad hoc committee, who will discuss the subjecť from the point of view of educational television.
Senator BURDICK. Mr. Aleinikoff.
STATEMENT OF EUGENE N. ALEINIKOFF, ON BEHALF OF THE JOINT
NATIONAL EDUCATIONAL TELEVISION-EDUCATIONAL TELEVISION STATIONS MUSIC AND COPYRIGHT COMMITTEE
Mr. ALEINIKOFF. Mr. Chairman, my name is Eugene N. Aleinikoff, and I am appearing today on behalf of the Joint National Educational Television-Educational Television Stations Music and Copyright Committee. Our committee represents virtually all of the educational television stations broadcasting in this country, as well as the two national organizations—NET and ETS—with which they are most closely affiliated.
We are very happy to endorse the proposals made before this subcommittee yesterday and this afternoon by the ad hoc committee on copyright law revision. We have been working in this educational group over the past 2 years toward developing copyright revision recommendations which would serve the best interests of all education, including educational television.
Ever since the earliest indication that the "nonprofit” exemption so long established in the copyright law would be under considerable attack, we in educational television have been particularly alarmed. It is absolutely clear to us that if this exemption were henceforth to be denied, educational television would have serious if not insurmountable difficulties in playing the role it can in meeting the everexpanding educational needs of the American people. For educational television's basic advantage derives principally from its ability to make available for teaching purposes otherwise unavailable resources and materials. Undue copyright restrictions can have no result other than to limit seriously the educational utility of television instruction.
Unfortunately, it seems to be educational television alone that the authors and publishers, and their allied commercial interests, are adamantly seeking to deny the nonprofit exemption existing under the present copyright law. The Copyright Office itself has vacillated widely in its recommendations in the beginning, urging continuance of the nonprofit exemption for educational television as well as other educational uses; later, questioning whether educational broadcasting should not be excluded from any educational exemption; in last year's proposed bill, specifically barring all educational television broadcasting uses; and finally in this year's bill, back to recommending an ETV exemption but only for classroom broadcasts during school hours.
We do not want to seem unappreciative of the Copyright Office's ultimate recognition of the necessity and validity of a classroom television exemption. We are, however, seriously concerned about those types of educational broadcasts which the Copyright Office has so arbitrarily distinguished from daytime inschool instruction.
As Vice President Humphrey noted at the recent White House Conference on Education, educational television is probably one of the most effective tools for furthering popular education today, and one of its chief advantages lies in the very fact that it is not restricted to formal institutional use. For not only can educational television open wide the classroom window on the outside world; perhaps even more important, it can bring information and instruction to those not attending schools and colleges either because of their own personal problems or difficulties created by our society. For example, many of the Federal poverty program plans for assisting the economically disadvantaged, for reaching the physically disabled, for upgrading skills, for retraining workers—in short, for making sure that all Americans have the knowledge and qualifications to occupy a fruitful place in our society--can best be undertaken on an informal rather than formal basis. Literacy courses for the illiterate, and lipreading courses for the deaf; English courses for Spanish-speaking citizens in the North, and Spanish courses for English-speaking residents in the Southwest; high school courses for dropouts, and post graduate lectures for professionals—all these are standard ETV programing. But more than that, if as is hoped the intellectual and cultural horizons of the American people are continually to expand, we submit that there is no better instrument to assist in this process than educational television.
In spite of this almost limitless potential for the public good, the commercial copyright interests—including both the literary publishers and the music licensing agencies—have centered on elimination of the educational television exemption as one of their more important objectives in the current copyright revision proceedings. There seem to be two prime motivating factors for this: first, the expectation that educational television is destined to become an important competitive communicaions channel with vast audiences across the Nation; second, the hope that educational television will afford a new and major source of financial support for serious authors and composers. While we, of course, have no complaint about either of these possibilities, neither appears to us to be a valid reason for discontinuance of the present ETV exemption.
As to the popular impact of educational television in the future, we see little or no chance of ETV viewers becoming really a mass audience in the usual sense. Educational television by its very nature is aimed at appealing to specialized audiences deeply interested in particular subject matter, which of necessity means minority programing. Whether an ETV program is a foreign language series, a history lecture, a cooking lesson or a music appreciation program-or indeed is concerned with international questions, national affairs or local events—it can never be considered mass entertainment.
Admittedly, we do look forward to continued growth of our audience, as the American public realizes more and more that educational television often is as interesting as commercial television is entertaining. Nor do we deny that to some extent we tend to measure our progress by the size of our audience; the larger the number of people engaged in the educational process through educational television, the more successful we feel. But isn't this viewpoint-the maximum educational exposure for the greatest number of people—the basic premise behind all of the Federal educational legislation currently being enacted under President Johnson's leadership? And if an exemption is justified for a few viewers, does it become unfair as soon as we are successful in developing educational television into a more important force in society? In short, it seems to us to be rather a fallacy to gear the extent of the ETV copyright exemption in any way to the size of the ETV audience.
To turn to the second point, we simply do not see how educational television can be pictured as a new gold field for authors and composers to prospect for untold riches. It may be the legitimate offspring of both education and—but in budgeting terms the former rather than the latter is certainly dominant. The average educational television station operates on an annual budget of under $400,000; the largest percentage of stations have annual budgets of less than $200,000. ETV stations have no source of income other than the tax dollar, chari. table contributions, and to a lesser extent, payment for community services. The majority of stations are operated by schools and universities; the others are either licensed to State education agencies or to community educational organizations. None have extensive financial resources; all make much use of faculty, student, volunteer, and other free services.
Educational television has often been warned not to expect subsidies from creative artists and writers. We would equally hope that the creative elements of our society would not look for subsidies from educational television.
We see rather a great need on both sides for sympathetic cooperation and friendly collaboration between the creator and the communicator if their mutual interest in encouraging the arts and sciences for the benefit of all is to be served. And we do want to point out that educational television exposure of authors and their work is generally quite advantageous in creating the reputation and audience so necessary for artistic recognition and appreciation.
This does not mean that we contend, as some have claimed, that neither authors nor their publishers should ever be entitled to receive direct compensation for their creative efforts in educational television. Neither do we have any hesitation in recognizing that educational television broadcasts of certain kinds of copyrighted works can possibly adversely affect their commercial return. For these reasons, we have not asked the right to perform dramas free of charge over educational television; we have not asked for an exemption to broadcast music when performed by professional paid musicians; we have not asked to be allowed to copy motion pictures or film strips; nor have we requested blanket permission to make unlimited recordings of our own educational programs for indiscriminate use.
In supporting the ad hoc committee's proposed amendments, we are asking for the following limited privileges :
1. Specific inclusion of ETV as a "fair use" under section 107.
The Copyright Office originally proposed the addition of language referring to educational uses in section 107, but that has been deleted in the current bill. Our concern derives from expressed doubts by some copyright experts that inclusion of even short excerpts of copyrighted works on educational programs may not come within the "fair use” doctrine if the programs are broadcast, copied, or distributed on too wide a scale.
It seems to us essential that there be no question about the full applicability of the "fair use" doctrine to educational broadcasting. An educational series on any subject simply must have access to illustrations from all important works in the field if it is to be professionally acceptable. A survey of American music without a sample of George Gershwin, a lecture on American literature without a quotation from Ernest Hemingway, a discussion of the American theater without an excerpt from O'Neill is unthinkable—but might not be possible except for the "fair use" doctrine.
Senator BURDICK. I am very sorry but there has to be an interruption again for a vote in the Senate. I hope to be back by not later than 3 or perhaps 3:15.
Mr. ALEINIKOFF. I think I was at the point where I was detailing the three kinds of amendments which we would like to see in this bill before it is enacted. The first one was the specific inclusion of educational television as a fair use. The second one is deletion of the ETV exclusion from the nonprofit exemption under section 109 (4). Section 109(4) now specifically excludes educational television from the exemption generally applicable to nonprofit performances. We ask only that educational television stations be accorded the same status as all other noncommercial organizations—that is, with an exemption for nonpaid, nonprofit, nondramatic performances.
This would, among other things, permit serious music to be played by college orchestras, by amateur glee clubs or similar amateur groups. It would not, however, permit performances by professional musicians unless their services were contributed gratis. Consequently, there can he little fear that such an exemption would permit free broadcasts over ETV stations which are normally paid for on commercial stations,
and in no event would a dramatic work or dramatization of a nondramatic work be authorized without additional license.
3. Permission to record ETV programs under the ad hoc committee's proposed section 111 for wider use than under section 110. Section 110 permits so-called ephemeral recordings to be used for only 6 months after original broadcast. Such a restricted recording privilege, while perhaps acceptable to commercial broadcasters, simply will not suffice for educational television.
Since educational television funds are so scarce, the best possibility of sufficient financing for all but the most minimal production lies in the ability to rebroadcast programs and thus amortize costs over several years. Indeed, it would seem to us to be the height of folly to require a school that has with much effort and expense developed a good classroom telecourse to destroy it and reproduce the same television lessons over and over each academic year. This we feel can be cured only by the addition of a recording privilege along the lines proposed by the ad hoc committee in its recommended new section 111.
More than that, while not within the ad hoc committee's proposals, we would point out that even greater benefit can accrue from making it possible for recorded ETV programs to be exchanged between schools and colleges so that unnecessary duplication of teacher time and production expense can be avoided and as many educational institutions as possible can take advantage of the best teachers and
And we would ask the committee's permission to have appropriate ETV exchange agencies elaborate further on this point hefore these hearings end.
May I repeat, we are not, as some would seem to interpret, asking for blanket exemption from all royalty payments. We are asking only for the limited exemptions I have outlined above, and we are happy to see that among others the staff of the Rockefeller Brothers Fund, to whose report on the creative arts some allusion has been made in the past and probably will be in these hearings, has indicated recently that the report should in no way be viewed as inconsistent with our position here.
The prime educational television interest lies in availability-availability of content for programing and of programing for viewers, and availability without inhibitive clearance procedures or prohibitive royalty payments. And this availability, in our opinion, can be assured only through the continuation of an ETV exemption at least as broad as in the past.
In the music business, for example, performing rights necessary for television broadcast are licensed through three competing organizations; synchronization rights necessary for television recordings are ordinarily licensed through completely different agencies. Dramatic rights are usually but not always licensed by the publishers themselves, as are the orchestral parts necessary for a musical performance. Under S. 1006 as it stands, therefore, three or four different licenses would probably have to be negotiated to use a portion of a Menotti or Copland opera in an educational lecture on contemporary American music. Imagine, if you will, the plight of the individual ETV producer with a very low budget, in a small college station in the Midwest, attempting to clear the rights necessary for this single program element.