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I would like to present, at this panel table, Mr. Harry Rosenfield to my left. Mr. Rosenfield is one of the attorneys for the ad hoc committee and chairman of the attorneys' group.

On my right is Dr. Charles Gosnell, who is the librarian of the New York University Library and chairman of the American Library As. sociation Copyright Committee, a distinguished librarian of America.

Then, there is Mr. Eugene N. Aleinikoff, who is attorney for the Joint National Educational Television-Educational Television Stations Music & Copyright Committee, the chairman of the joint committee between the two groups. Mr. Aleinikoff is a prominent lawyer in the field of educational television.

We have two other witnesses on this panel who are not here at this time. One is Dr. Fred Siebert, dean of the College of Communications Arts, Michigan State University, and representing the American Council on Education. Dr. Siebert has not yet arrived, but I imagine he will be here for the afternoon session. Also, there is Dr. T. M. Stinnett, the assistant executive secretary for professional development and welfare of the National Education Association. He will be representing the NEA before this committee, and will be appearing this afternoon.

Mr. Chairman, perhaps I should say a word here about the ad hoc committee. It has 35 constituent members, all of whom have highly respected leadership roles in the total field of education. It is not often that educational groups appear with such a united front before committees of the Congress. It is not often that all of these groups with such diverse interests sit on the same side of the table in presenting education's needs and concerns on a piece of legislation of this importance to the teachers and the schoolchildren of this Nation. This is one of the most amazing examples of the ecumenical spirit in all educational history. The members of the ad hoc committee are as follows:

1. American Association of Colleges of Teacher Education.
2. American Association of Junior Colleges.
3. American Association of School Administrators.

4. American Association of Teachers of Chinese Language and Culture.

5. American Association of Teachers of French. 6. American Association of Teachers of Spanish and Portuguese. 7. American Association of University Women. 8. American Council on Education. 9. American Educational Theatre Association, Inc. 10. Association for Childhood Education International. 11. Association for Higher Education. 12. College English Association. 13. Council of Chief State School Officers. 14. Department of Audiovisual Instruction, NEA. 15. Department of Classroom Teachers, NEA. 16. Department of Foreign Languages, NEA. 17. Department of Rural Education, NEA. 18. International Reading Association. 19. Midwest Program on Airborne Television Instruction, Inc. 20. Modern Language Association. 21. Music Educators National Conference.

22. Music Teachers National Association.
23. National Art Education Association.
24. National Association of Educational Broadcasters.
25. National Catholic Educational Association.
26. National Catholic Theater Conference.
27. National Catholic Welfare Conference.

28. National Commission on Professional Rights and Responsibilities, NEA.

29. National Council for the Social Studies.
30. National Council of Teachers of English.
31. National Education Association of the United States.
32. National Educational Television & Affiliated Stations.
33. National School Boards Association.
34. New Jersey Art Education Association.
35. Speech Association of America.

The ad hoc committee has authorized me to state that the position we present to you today on this legislation represents a consensus of the membership and we would underline this

arrived at after 2 years of exploration and study by the committee members of the 1909 law, of the draft which followed the Register's 1961 report, of the bill presented in the last session of the Congress, and of the bill now before your committee, S. 1006. The ad hoc committee was formed in July 1963 at an exploratory conference called by the National Education Association to review education's stake in the various proposals which were under consideration. The committee has met monthly—and often semimonthly-during the last 2 years in studying the legislation; it has held meetings with trade and textbooks publishers' groups, with authors' groups, and with music publishers, and it has had several conferences with the Register of Copyrights and his staff.

After each of these meetings the ad hoc committee has constantly reassessed its position and has even made certain modifications which it felt would be beneficial to all concerned. To be sure, there have been disagreements within the ad hoc committee, but these have been not because our position is too broad and sweeping but rather because it is not broad enough for some of the members, or because it does not emphasize certain points which some of the members feel need further emphasis.

The position we are advancing today is a basic minimum position on which a consensus was reached. Several of the members wanted to go beyond this and will so indicate in their individual testimony later before this committee. Therefore, we testify today not for the individual members of the ad hoc committee but rather for its consensus.

Following my testimony, other members of this group will be identifying themselves and will also be expressing their opinions in behalf of their own group, as a member of the committee or otherwise.

We have listed on page 4 of my statement education's concerns in copyright law revision. Our position might be summarized in this

manner:

1. A new copyright law is needed to replace the outmoded one which has been on the statutes since 1909. We strongly feel this way.

2. The new law should be written in such a way as to support creative teaching practices rather than inhibit them. This really is the crux of the matter. The new law should enable teachers to teach as well as they know how to teach. It should further the national objectives, as expressed by both the President and the Congress, in maximizing the use of teaching and learning resources of all types in the education of all of our citizens, particularly those who are disadvantaged.

3. The new law should enable teachers to use the new educational technology, including educational television and radio, in their day-today teaching, with a minimum of delays and without additional payments for reasonable and limited use.

4. The new law should provide the same special recognition for education as has been granted in other laws enacted by the Congress. Teachers serve the public in a nonprofit enterprise. They use materials for the benefit of students and not for their own commercial gain.

5. The new law should continue to differentiate between commercial uses of copyrighted materials and nonprofit, noncommercial educational uses of such materials. We feel the proposed bill makes no such distinction. It equates commercial and noncommercial uses of copyrighted materials.

6. The new law should strike a sound balance between the rights of authors-publishers and the rights of consumers-users of materials. We are not asking for a user's bill. We feel, however, that the proposed law is weighted heavily on the side of the author-producer and has extended his rights immeasurably while further restricting the rights of the consumer-user. We are interested in obtaining a fair balance between the two.

7. The crucial point at stake here is the right to make limited-underline "limited”--copies or recordings of copyrighted works for nonprofit educational use by pupils and teachers without the need to obtain clearance and/or pay royalties. This would not include the copying of material from workbooks or answer sheets to standardized tests, which would be both a poor teaching practice and an infringement of copyright, in our estimation.

Let me say that we made this exception after a meeting with several of the publishers' groups. We felt this is where our position might hurt them the most, so we finally agreed that we would not ask for this, and we think this is perfectly fair.

When teachers expose learners to a wide range of materials, both in the classroom and on educational broadcasting, they create--in effectmarkets for the works of authors. The affluent state of the publishing industry today can be attributed in no small measure to the appetite for good reading which teachers have developed in students through the years. Ad hoc committee's recommendations

Now, what is the ad hoc committee asking specifically?

At the conclusion of my testimony, Mr. Harry Rosenfield, a member of the legal subcommittee of the ad hoc committee, will present to you the specific recommendations and proposals which our ad hoc committee is making. The basic position of the ad hoc committee is that amendments to S. 1006 are needed before education can support the bill.

In capsule form, the ad hoc committee's position might be sunmarized as follows:

1. The single most important objection which the ad hoc committee has to S. 1006 is the fact that no mention is made of statutory limited copying privileges so urgently needed by teachers in the course of their day-to-day teaching. This omission will seriously handicap boys and girls in classrooms throughout the Nation and deprive them of the best teaching practices available. Education needs an automatic exemption to permit limited copying and reproduction of materials for purposes of teaching, study and/or research where no direct or indirect commercial advantage or other private gain is involved, and without reference to any clearinghouse or licensing system. I shall deal with this later in my subsequent remarks.

I would say, though, that we have suggested a new section 111 to incorporate our first proposal here.

Senator McCLELLAN. You will have a suggested amendment?

Mr. WIGREN. Yes, we have one, sir. It is attached to Mr. Rosenfield's statement, and it is listed as section 111, a new section 111, which we would like to suggest to the committee.

Senator MoCLELLAN. Very well. I would like to make this observation. When you come here and oppose a bill or a provision in a bill, or when a provision in a bill is omitted, extended, or modified, it is helpful to the committee if you draft the proposed amendment or modification or substitution, whatever it is, so that by exmaining that, we know exactly what you mean and what you are seeking to do.

Mr. WIGREN. We have attempted to do this in our new section 111.

Mr. ROSENFIELD. Mr. Chairman, at the end of my statement there is an appendix which gives in haec verbi the language which we propose.

Senator McCLELLAN. Very well. I appreciate that specific expression of the amendment, and it will be helpful. Of course, we may not agree with you, but we get your point, we know what you mean. If we interpret your language properly, we know what you have in mind, what you are really seeking to do. Maybe you are right.

All right.

Mr. WIGREN. Our second recommendation: The ad hoc committee commends the Register of Copyrights for proposing in S. 1006 that "fair use" be made statutory in section 107.

I personally was very much heartened this morning at the statement Mr. Kaminstein made. I think it shows he is sensitive to the needs of education and has a growing feeling that this is not an irreconcilable situation, and that we will arrive at a situation which does strike a fair balance between both consumer and author, the creator of the materials.

By so doing, the law will make clear to all teachers that "fair use" of materials is no infringement of copyright and that it is not necessary to ask publishers or copyright holders for permission to make "fair use" of materials.

For years, certain publishers have tried to confuse the issue on this point, we feel, by printing on the verso of title pages the statement, “no part of this work may be reproduced in any form without permission from the publisher," or words to that effect. We think this is flagrantly untrue since the courts have long held that "fair use" can be made without permission. It implies that “fair use" does not cover making a copy of even an excerpt. And if I heard Mr. Kaminstein correctly this morning, he indicated that limited copying would be permitted under "fair use." By printing the above statement on the verso of the title page, this seems to be an endeavor in some cases to intimidate the reader or to play upon his ignorance of copyright law. It indicates the wish of those publishers who employ it to limit "fair use" to the uses they will permit and to make themselves, instead of the courts, the regulators of "fair use."

We trust that with the enactment of section 107, the publishers will be enjoined from printing such statements unless of course they are preceded by the words, "except as provided in section 107 and” hopefully our "section 111 of the Copyright Act.”

The question here is whether or not the fair use of a copyrighted work gives the teacher the right to reproduce any portion of it-even an excerpt-for classroom and student use. We contend that it does.

The real difficulty for the teacher, of course, comes in attempting to decide whether a given use of a work is a "fair use." It is said that commonsense, common honesty, and common courtesy will decide this for most teachers or scholars; but what assurance does the teacher or scholar have that the publisher, author, or the court will agree that this is a “commonsense” use? There have been a great number of decisions on "fair use" as it involved controversies between commercial interests but extremely few cases involving teachers; therefore, we really have no judicial guides under "fair use" to fall back on. We simply do not know how the courts will apply "fair use" to noncommercial educational uses. This will vary from court to court.

The ad hoc committee feels, therefore, that while statutory "fair use" is desirable, by itself it is not enough for education to do its job.

Under the present law, education has a double-barreled protection. It has nonstatutory "fair use," and it also has the "for profit" limitation. In the proposed law, the “for profit” limitation has been eliminated, while "fair use" has been made statutory. Substituted for the “for profit" limitation is a most inadequate and limited section 109, which gives categorical exemptions rather than a uniform general one. The committee feels that although statutory "fair use" is more to be desired than judicially interpreted “fair use,” statutory "fair use" by itself does not give as much protection to teachers as the doublebarreled protection the teacher now has. Under S. 1006, "fair use" is merely mentioned without being defined, and the bare statement in section 107 will not be as useful to scholars and teachers as the words “teaching, scholarship, research” which appeared in the Register's July 20, 1964, draft of the bill S. 3008. We felt this was a great improvement over the present 107.

Therefore, education needs a clarification and delineation of the "fair use" doctrine.

3. The ad hoc committee commends the Register for including in section 109 (2) of S. 1006 the concept that educational television should be treated as a normal part of education. We regret, however, that the new bill limits the exemption on the uses of copyrighted materials in educational television to instructional telecasts beamed “primarily for reception in classrooms or similar places normally devoted to instruction."

We deplore the emphasis on the place of reception, because this ignores the great potentiality of instructional television in reaching

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