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EXHIBIT E

PRINCIPAL ETV PROPOSALS ON 1965 COPYRIGHT BILL

1. Definition of "fair use" to specifically permit educational uses including ETV.

Revise Section 107 as follows:

RECOMMENDATION

"Notwithstanding the provisions of Section 106, the fair use of copyrighted work to the extent reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright. Non-commercial educational use by a non-profit educational institution or organization shall be presumed to be such 'fair use' unless specifically rebuted."

COMMENT

The first sentence is exactly the same as that proposed by Copyright Office last year but dropped this year for unexplained reasons. The second sentence establishes a presumption in favor of educational uses which can be disproven if unfair.

2. Endosement of proposed exemption for formal school ETV programming.

RECOMMENDATION

Enact Section 109 (2) in its present form as follows:

"Notwithstanding the provisions of Section 106, the following are not infringements of copyright:

"(2) performance of a non-dramatic literary or musical work, or exhibition of a work, by or in the course of a transmission, if the transmission is made primarily for reception in classrooms or similar places normally devoted to instruction and is a regular part of the systematic instructional activities of a non-profit educational institution."

COMMENT

While this exemption covers almost all in-school instructional television needs, it does not apply to: (i) dramatic works, such novels, plays, musical shows or ballets; nor to (ii) any commercial school, such as a barber college, secretarial school or similar private trade school; nor to (iii) instructional programs intended primarily for home reception, even though prepared and sponsored by a credit-granting public or private educational institution.

3. Inclusion of ETV in exemption for non-profit performances by non-paid performers:

RECOMMENDATION

Revise Section 109 (4) as follows:

"Notwithstanding the provisions of Section 106, the following are not infringe ments of copyright:

"(4) performance or transmission of a non-dramatic literary or musical work without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters or organizers if—

"(A) there is no direct or indirect admission charge, or

"(B) the proceeds, after deducting the reasonable cost of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for any financial gain."

COMMENT

This revision would apply to ETV broadcasts the same "non-profit" exemption by the Copyright Office for all other performances. By itself, this would permit only "live" broadcasts of non-dramatic musical and literary works-and then only where: (i) neither the performers or organizers are specially paid for the

program, and (ii) no direct or indirect commercial interest is involved in the program. While full performances of complete works are permitted, dramatic works (such as plays, ballets, etc.), pictorial materials (such as photographs, maps, etc.) and motion pictures (including television programs and film strips) are excluded. This therefore is a limited exemption applicable to general audience viewing—including adult credit courses.

4. Specification of local ETV recording and re-use privileges.

RECOMMENDATION

Add a new Section 111 as follows:

"Section 111. Limitations on exclusive Educational copies and recordings. "Notwithstanding the provisions of Section 106, it is not an infringement of copyright for anyone lawfully entitled under Section 109 to perform, exhibit, or to transmit a performance or exhibition of, a copyrighted work (save those originally consumable upon use, such as workbook exercises, problems, or answer sheets for standardized tests).

"(A) to make no more than one copy or phonorecord of the work in the course of such use, provided that no copy or phonorecord may be made of dramatic works (including any accompanying music), pantomimes and choreographic works, and motion pictures or film strips unless the performers and the audience are limited to students, faculty or staff, and

"(B) to make a reasonable number of copies or phonorecords of excerpts or quotations are not substantial in length in proportion to their source, solely for purposes of such person's or organization's own teaching, lawful performances, exhibitions and transmissions, for course work study in connection therewith, for research or archival purposes, provided that no such copyrighted material is sold or leased for profit, and that no direct or indirect private gain is involved."

COMMENT

While the Copyright Office has already proposed a so-called "ephemeral recording" provision for commercial and ETV stations alike in Section 110, this only permits local pre-recordings which must be destroyed within six months. Accordingly, a special ETV provision is necessary to permit longer local re-use of any program including copyrighted material which would be exempt under the previous principles if broadcast "live." This also would be a restricted privilege, permitting (i) only a single recording where any full work is involved, (ii) multiple recordings only where short excerpts or quotations are used, and (iii) only local use and re-use.

RECOMMENDATION BY THE EASTERN EDUCATIONAL NETWORK ON COPYRIGHT

REVISION

It is urged that the following sentence be added at the end of the new Section 111 proposed by the Ad Hoc Educational Committee on Copyright Revision:

"Nor is it an infringement of copyright for a copy or phonorecord lawfully made pursuant to this Section to be given, loaned, exchanged or otherwise made available for use by another person or organization similar to the original maker (either directly or through a non-profit association, group, institution or other agency established for such purpose) if: (i) the making of such copy or phonorecord by the user itself would not have constituted an infringement of copyright under this Section; and (ii) the gift, loan, exchange or other availability of such copy or phonorecord is without any purpose of direct or indirect commercial advantage and without any charge other than the actual cost incurred therein."

Mr. EUGENE N. ALEINIKOFF,

General Counsel, National Education Television,
New York, N.Y.

ROCKEFELLER BROS. FUND.,
New York, N. Y., June 2, 1965.

DEAR MR. ALEINIKOFF: We very much appreciate your thoughtful letter of May fifth presenting the educational television view on copyright revision.

In The Performing Arts: Problems and Prospects the panel's exploration of the subject of copyright revision was brief as the subject lay somewhat outside the

main focus of the report, which as you know is primarily concerned with the organizations involved in presenting live professional performances of theatre, dance, and music.

The points you have raised should be explored, but at the moment, with our panel disbanded, we cannot make an extended study. We would like to suggest, however, that in The Performing Arts: Problems and Prospects, the panel's view on copyright revision is not so one-sided as the interpretation that has been made. The panel states, page 141, that it is opposed to a blanket exemption from payment of fees for the use of copyrighted material by educational television. This does not mean that the panel would be opposed to any exemption whatsoever.

It is our understanding that the proposals which are being put forth by National Educational Television in the current hearing on copyright revision are for a partial rather than complete exemption. We also understand that there are practical problems of availability of material as well as payment of royalties involved. All of these very complicated technical problems must be resolved with the general public interest in mind.

Finally I would like to call your attention to the following statement on page 199 of the report: "The panel believes educational television has a great opportunity to make a significant contribution to the arts. The panel urges the community to provide the support necessary to exploit this opportunity vigorously.” Sincerely,

ALAN CAMPBELL.

Senator BURDICK. There is another vote on the Senate floor. Mr. ALEINIKOFF. Senator, would you like to hear us when you come back?

Senator BURDICK. You have completed your statement. We are grateful to you.

Mr. ALEINIKOFF. Thank you, sir.

(Whereupon, at 3:45 p.m., the subcommittee adjourned to reconvene Friday, August 20, 1965, at 10:30 a.m.)

COPYRIGHT LAW REVISION

FRIDAY, AUGUST 20, 1965

U.S. SENATE,

SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND

COPYRIGHTS OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to recess, at 10:35 a.m., in room 3302, New Senate Office Building, Senator John L. McClellan presiding.

Present: Senator McClellan.

Also present: Thomas C. Brennan, chief counsel; Edd N. Williams, Jr., assistant counsel; Stephen C. Haaser, chief clerk, Subcommittee on Patents, Trademarks, and Copyrights; Horace A. Flurry, representing Senator Hart; and Clyde DuPont, representing Senator Fong. Senator MCCLELLAN. The committee will come to order.

Mr. Rosenfield, I understand that you had concluded your testimony, but a member of the subcommittee desired to have some questions submitted to you for your answers. I shall direct counsel to read the questions to you and you make your answers for the record.

STATEMENT OF HARRY N. ROSENFIELD-Resumed

Mr. ROSENFIELD. I shall be delighted to respond.

Mr. BRENNAN. The first question, sir: Do you believe that educational use of copyright materials should be free or should this use be paid for?

Mr. ROSENFIELD. Mr. Brennan, we believe that some use should be free and some use should be paid for. Under the present law, since 1909, there have been a large number of uses that have been free under the "for profit" provision. We believe that that is the correct point of view, that Congress adequately and properly expressed the public interest when it said that "nonprofit" uses of certain kinds should be free under the law. We do not believe that all uses should be free and are opposed to that.

Mr. BRENNAN. Thank you, sir.

The second question: If some arrangement could be made for securing copyright permission rapidly, such as through a clearing house, would you favor it?

Mr. ROSENFIELD. No.

Mr. BRENNAN. The third question: You seek permission to make a reasonable number of copies of excerpts. What is a reasonable number? How long is an excerpt?

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