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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 withcut 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) À 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.
The fundamental educational issue posed in copyright law revision is whether teachers shall have the right to make copies of copyrighted material for classroom use. Under present law, there is controversy whether, and to what extent, copies and recordings of copyrighted materials, in whole or in part, may be made by teachers.
Nevertheless, over the years since the copyright law was passed in 1909, a general and largely unchallenged practice has grown up for teachers to make copies and recordings of such works for classroom use, educational television, and related teaching purposes. At present, this practice has been defended as authorized under two aspects of the copyright law:
(1) The not-for-profit provision; and
If the proposed S. 1006 is enacted in its present form, it would seriously curtail present teaching practices. In his testimony before the Congress on May 26, 1965, the Deputy Register of Copyrights said that H.R. 4347 (S. 1006) would not grant teachers “the right to make multiple copies of substantial excerpts and quotations and a full and complete copy of any copyrighted work.”
He also said that "the right to make multiple copies of excerpted quotations of unspecified length *** goes beyond fair use and is not sanctioned by the bill.” Therefore, S. 1006 would forbid a teacher, for example, from making a copy of a small copyrighted poem for classrooom purposes. It would throw into doubt the teacher's legal right to make tapes for his foreign language class when excerpts are selected from the copyrighted textbook owned by each member of the class. In other words, the bill would challenge and jeopardize the present practice of teachers in limited copying and recording for pureİy nonprofit teaching purposes.
In order to protect the teaching process and enable teachers to teach
or a magazine;
an article from a magazine.
Multiple copies of excerpts or quotations from copyrighted works such as excerpts from contemporary writings in a duplicated examination, the reproduction of a map or a chart from a newspaper or from a text for classroom use, the making of a diagram from a maga zine for overhead projection, or the recording of a school orchestra for the purpose of self-evaluation.
(The committee is not asking for the right to make copies of materials originally consumable upon use, such as workbook exercises, problems, answer sheets for standardized tests.)
Mr. WIGREN. As we see the situation, uses of copyrighted materials by teachers fall into three categories: the white areas, the black areas, and the gray areas.
The white areas are those which both the law and good teaching practice would condone. These are minimal uses, ranging from a "single reproduction of a small work to illustrate a lesson” to reading something aloud in class or projecting a motion picture, et cetera.
The black areas are the forbidden uses which the law, either present or proposed, would not permit and which teachers are not asking for, because good teaching does not require such uses. These would be unethical because they would damage the author or publisher. These black areas include making a copy of an entire work such as a textbook, a novel, an encyclopedia or reference work, a motion picture or filmstrip, or an entire copy or multiple copies of excerpts from workbooks or answer sheets to standardized tests. No teacher wants such privileges as these. We are not asking for these.
Let me say that if we do need to do any of these things at any time, we would certainly expect to pay for them. We do not expect that "black area uses” should be given to us as an exemption, free of charge. We fully expect to pay for such uses, if we have to do these things in the course of teaching.
The gray areas are those of greatest contention and where the differences between us arise. Good teaching practice and modern in. structional technology mandate certain uses of copyrighted materials in the course of teaching, but it is doubtful that present or proposed law supports such uses.
These uses include such things as making: a transparency copy of a map, chart, graph from a book for showing to the class; a reproduction of a map in multiple copies for students' classroom use; work copies of tape recordings for language laboratory use from a master copy purchased from a publisher; multiple copies of entire short poems or essays for pupil study and interpretation; a recording of a school orchestra for self-evaluation purposes prior to a concert; dittoed excerpts from a work for critical interpretation on an examination; a tape of a radio program at home or at school to play to a class which meets at a later period in the day.
The ad hoc committee submits that these are important uses of materials in teaching and learning, and such uses should be legitimatized because they form the bulk of good examples which a teacher uses in teaching. The committee would like to see these uses made clearly legal. We have prepared a new section 111 to do this, but have no pride of authorship in the wording thereof, and if you feel that our new section 111 does not say what we said, then we suggest that the wording be changed to encompass what we said. We do not want to stay with our wording in section 111 forever. What we really believe and wanted to say we stated previously, and we think we have drafted words that would
your estimation we did not say that, then the wording should be changed to apply to what we have said.