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 MCCLELLAN. 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

adults and children in their homes with programs for the illiterate adult, for the culturally disadvantaged, for those in need of job retraining, and for preschool children. This would defeat one of the purposes of Public Law 88-452 (the Economic Opportunity Act) and Public Law 89-10 (the Elementary and Secondary Education Act of 1965) enacted by this Congress.

4. The ad hoc committee commends the Register on including the concept of ephemeral copying in section 110 of the proposed bill. This is sorely needed and long overdue in American copyright law. This would allow educational television stations to make a prerecording of a live broadcast for playback later. We regret, however, that the 6-month time limit was imposed on the ephemeral copy provision, because this renders the ephemeral copying privilege practically useless for educational television. In order to make the production of telecourses economically feasible, it is imperative that the telecourses be allowed to be replayed for a time sufficient to amortize the investment made by the school district or educational television station in the telecourse. The ad hoc committee is, therefore, proposing a new section 111 on educational copies and recordings which will, among other things, compensate partially for this omission.

5. Most of the members of the ad hoc committee have misgivings about the change in duration to life plus 50 years. We much prefer the present arrangement of 28 plus 28 or 28 plus 48 years. This renewal arrangement enables teachers to use at the end of 28 years the great majority of copyrighted works that are never renewed. 6. The ad hoc commitee commends the Register for reducing the amount of the statutory minimum damages from $250 to $100 for innocent infringement, but submits that the burden of proof should be on the owner instead of the user, and that the judge should be given the prerogative of waiving the statutory damages entirely for innocent educational infringers.

The rationale for the ad hoc committee's position

Why these recommendations?

The primary concern of the ad hoc committee is the effect which the proposed copyright law will have on the future use of instructional materials and technologies in the Nation's public and private schools and in the Nation's colleges and universities. Education needs a copyright law which will enable teachers and professors, as well as students, to have maximum reasonable access to a wide variety of resources for teaching and learning, and which will include authority for limited copying. These resources include a wide range of materials, such as books, periodicals, newspapers, instructional motion pictures and filmstrips, overhead transparencies, tape recordings, programed instruction, teaching machines, language laboratories, educational radio and television, to mention only some of them. The committee feels that every effort should be made to continue the free flow of ideas, materials, and information inherent in a free society in a manner which will not be financially damaging to producers and publishers.

The ad hoc committee, which represents the nonprofit, noncommercial needs of American public and private education, feels that this can be best accomplished by an automatic but limited educational exemption written into the law, allowing restricted copying privileges with

cut the requirement of clearances or the payment of royalties, so that teachers will know what it is they may or may not do under the law. In this way, ethical teachers will be enabled to continue excellent teaching practices without the constant fear that what they are doing might be in violation of the law. For the 56 years during which the "for profit" provision has been in our copyright law, the publishing industry has prospered-ample proof that our proposal is consistent with the incentives basic to a free competitive enterprise.

Teaching practices in the uses of copyrighted materials

In a recent survey made by the ad hoc committee of teaching practices in the use of copyrighted materials in the classrooms of several large metropolitan communities, innumerable exemplary teaching practices were identified which should be encouraged by supervisors yet which would be considered by most publishers and authors as being in violation of the proposed copyright law and which would be potential infringements. Typical of these practices are the following:

(1) A social studies teacher makes copies of maps and charts from newspapers for class use.

(2) A social studies teacher makes a recording of the audio portion of a special TV documentary on Africa in its entirety for playing to his class.

(3) An elementary school teacher makes photocopies of poems for choral speaking.

(4) An English teacher makes transparencies of poems for class analysis and evaluation.

(5) A physical education teacher dittoes a digest of rules from official rulebooks.

(6) A foreign language teacher makes copies of words from songs to use in class singing.

(7) A teacher makes class copies of an excerpt from a library reference book and uses it immediately; he does not have time to write for permission.

(8) A third-grade geography teacher produces tapes of material from a book which pupils could not read but which they could understand if someone read to them.

(9) A foreign language teacher records the sound track of a TV program or radio program for class listening for comprehension.

(10) Tape recordings are made of a high school orchestra for selfevaluation purposes.

(11) As part of a dittoed examination, a teacher includes a short contemporary poem for pupils' interpretation.

(12) A dramatics teacher puts on a copyrighted one-act play with only members of the class as audience; later uses it for a PTA meeting. (13) A classroom teacher of the mentally retarded supplied the following example:

I have been working for ten years with classes of mentally retarded children and since there is a dearth of material specifically for that area, I have combed sources available and have culled from them those items which could be used by children with limited ability. I have never been able to use published materials in their entirety, but have adapted and duplicated the sections I could use. If this were prohibited by law, my resource materials would be seriously limited.

(14) To illustrate the changes in the cost of living, a teacher prepares a transparency of a chart clipped from the morning newspaper.

(15) A teacher duplicates several additional short poems by a poet represented only superficially in the classroom anthology.

Most, if not all, of these practices would be considered creative teaching practices, but there is considerable disagreement among copyright authorities as to whether or not these would be considered "fair use" practices. In other words, there seems to be a high correlation between creative teaching practice and potential infringement of the law. If the bill now being considered by the committee is passed in its present form, many teachers will refrain from practices that constitute superior teaching rather than take the chance of incurring a violation. We would like to get rid of the under-the-table uses and put things out in the open ethically.

Teachers repeatedly point out that their most serious copyright problems arise when they attempt to use contemporaneous materials in the course of their teaching. Their major difficulty is not with textbooks for every student usually has one of these but rather with obtaining the materials in newspapers, magazines, et cetera, which bring the textbook material up to date. A letter received in my office recently from a supervisor of social studies in a California school described the problem clearly. He said:

The specific problem I see coming with the increasing use of such copy machines as the Thermofax with its capability of producing a spirit master, and thus multiple copies, is whether or not this new technology may be freely used. For example, articles in news magazines may be timely and worth copying in relation to modern problems. My letter to Newsweek, inquiring as to whether such use would be offensive, brought a generous reply that there was no problem. "Reproduce copies for classroom use but do indicate the source and date." However, the other magazines either asked that letters requesting permission be sent first or that no reproduction be attempted. The trouble here is that neither teachers nor principals are apt to remember the distinctions among magazines. They won't feel free to reproduce something if any possibility of a lawsuit is involved. Also, I do believe that to require teachers to write letters for permission would discourage the rather fragile impulse to use a timely article. This supervisor ends his letter with the following sentence:

It would be reassuring to the ethical teacher to know that the fine teaching practice of bringing current commentary to bear on a social studies problem is itself within the law.

This letter reveals the difficulties teachers experience in not knowing when and under what conditions a transparency of a chart from a newspaper or a reproduction of a map in a magazine might be used in the classroom. Practices and policies of newspapers and publishing firms differ widely for different types of materials.

The same confusion pointed out in the case of periodicals exists even to a greater extent in the case of newspapers, where one paper is copyrighted and another is not, where one part-the Sunday magazine section of one paper is copyrighted and the rest of the paper is not. How do teachers know this?

The newspaper has now become a valuable teaching tool. The same thing holds true of radio and television programs which teachers need to record at home and bring to class the next day to discuss with pupils. This is good teaching practice but it may not qualify as good copyright practice legitimately available under "fair use."

Hence, an automatic limited educational exemption is needed to clarify the situation. The ad hoc committee is proposing such a provision in its amendments which Mr. Rosenfield will present shortly to you.