when, with other copyright areas in mind, it was easiest to make these provisions applicable to "any copyrighted work."

Mr. Schimel has already spoken about one of these new proposals, the unwarranted exemption granted transmitters of performances of our motion pictures, or of "live" dramatizations to which we have exclusive motion picture rights, to make without our license an ephemeral recording under section 110 of H.R. 4347. I suspect that the original sponsors of this exemption were essentially aiming at taping phonorecords and renditions or recitations of nondramatic or nondramatized literary works. However, the language of H.R. 4347 ultimately went far beyond.

Accordingly, I would like to take up with you the following new exemptions:

1. The unwarranted exemption under section 109(1) of H.R. 4347, of performances of "any copyrighted work" in face-to-face teaching activities when last summer's bill expressly limited such exemption only to nondramatic literary and musical works, and pictorial, graphic, and sculptural works (index, item E of III).

2. The unwarranted further exemption sought by certain educational interests, in their proposed new section 111, which is not yet in H.R. 4347, to dupe or video tape our motion pictures when shown in schools under the exemption of section 109(1) of H.R. 4347 (index, item H, 3 of III).

3. An unwarranted exemption of "importation" of copies of "any copyrighted work" for a library collection, from liability for an infringing importation, if imported without authorization of the American copyright owner (index, item U of III).

This might have no serious impact on most other types of copyrighted works, but works which are never sold but only leased or loaned, such as motion pictures, orchestral scores of symphonies, operas, oratorios, sculptures, engravings, may, while remaining in the library collection, nevertheless be loaned throughout the country.

4. This relates to disposal of required deposited articles, such as our motion picture prints, by the Library of Congress, by exchange or transfer to other libraries, or any other disposition without our consent (index, item V of III).

The copyright owner of a paperback or hard-cover novel, a phonograph record, a picture post card, popular song sheet, or like work, of which thousands, or millions of copies may have been sold, perhaps would not be very disturbed-but we think of it in terms of a print of "Ben Hur," or "Ten Commandments," or "West Side Story," and feel that it should be done only with our consent; also, that a copy of a deposited unpublished work should be preserved in the Library of Congress or Copyright Office throughout its copyright life, perhaps in miniaturized form, to protect users from false claims.

1. The unwarranted exemption of motion picture performances from liability for face-to-face teaching (sec. 109(1)).

When the first bill drafted by the Copyright Office (H.R. 11947, 88th Cong.), was introduced last July, we carefully examined the provisions of its section 8 creating exemptions from exclusive rights. Section 8 was the equivalent of what is now section 109 in H.R. 4347.

Section 8 of the bill introduced last year simply stated in its opening clause that the exemptions of certain performances and exhibitions

therein provided, one of which was face-to-face teaching in school, applied only to performances of nondramatic literary and musical works, and the exhibition of pictorial, graphic, or sculptural works. It then proceeded to list four classes of exemptions similar to those now contained in subdivisions (1), (2), (3), and (4) of section 109 of H.R. 4347. Furthermore, there was no provision in last year's bill exempting ephemeral recordings by transmitters of performances, such as now appears in section 110 of H.R. 4347, and was discussed by Mr. Schimel.

Since the exemptions in section 8 of last year's bill did not affect our motion pictures in any way, we had no special comments to make in our position paper we submitted on the bill to the Register. It was with the greatest shock and surprise to find, upon reading section 109(1) of H.R. 4347, that performances in the course of so-called face-to-face teaching activities, of any copyrighted work, were exempted. This would include our motion pictures.

Why are we so disturbed by these proposals? Let us take up this matter of so-called face-to-face teaching. For many years, performances of our motion pictures have regularly been licensed by our 16millimeter distributing agencies to educational institutions. One of our member companies tells me that its national 16-millimeter nontheatrical distributor has served its theatrical motion pictures over the years to over 1,500 colleges and universities, over 50,000 high schools, and over 120,000 elementary schools.

Theatrical pictures of other of our member companies serve similar markets. Our pictures offer entertainment, it is true; but many do have cultural and educational values. There are many schools in the country with projection apparatus that have shown "David Copperfield," "Hamlet," "Tale of Two Cities." "Ivanhoe," "Tom Sawyer," "Pride and Prejudice," "Dr. Jekyll and Mr. Hyde," "Treasure Island," "Madam Curie," "Cyrano De Bergerac," at the instigation of English teachers. These were by no means box office flops in the theaters of our country, and innumerable like pictures are available to schools.

There is also a very substantial industry which prepares and distributes copyrighted documentary and teaching films for classroom and school teaching, certain of whose distributors are also licensed by us to serve theatrical motion pictures to schools. Representatives of National Audio Visual Association will be appearing before you, and their problems are in many respects quite identical.

(a) The arguments supporting this exemption are invalid. We say that the arguments supporting this exemption, in the case of using our motion picture films for so-called face-to-face teaching, are invalid.

(1) In the 1965 supplementary report, the Register attempts to support this exemption. He says that it is only for face-to-face teaching activities. This is a pretty elastic term. Many colleges and universities give so-called courses in history, development, or appreciation of motion pictures, including extension courses for nonmatriculated members of the public who may form a class of several hundred people. The teacher or lecturer, face-to-face with several hundred people in his class, may give a little introductory talk or comment. There may be some discussion. The lights are turned down and for the next 11/2 to 2 hours, one of our major theatrical screen productions may be hown.

"Live" stage plays need to be cast, rehearsed, costumed, set, directed and acted, for amateur performances in schools, and the performances are usually "amateur." If the play itself is good, it might actually encourage the audience to see a truly professional road or stock company do it, or even the original cast on Broadway.

On the other hand, a motion picture performance is always identical in quality. It is projected from a print, whether in 35-millimeter width, 16-millimeter width, or 70-millimeter width, struck from the only negative available, in which millions of dollars may have been invested. Whether seen in Radio City Music Hall, the local theater, or a local school or college, the performance is always identical although the comfort of the seating accommodations may differ. Those who see the performance are lost customers, as far as paying an admission price to any theater to see it again.

I am now talking of an unauthorized performance in an educational institution, by means of a print obtained either from a bootlegger possessing a library of our lost or stolen films, or illegally duped films, or by being bicycled by some licensee who rented it for another place and purpose, before he returned it to our distributing

agency.

(2) The Register in his 1965 supplementary report says that since the performance must be the instructors or pupils themselves, to be exempt, this would rule out from the exemption any performance by actors, singers, or musicians brought in to the school to perform the play for classroom purposes. But if the same play, before the same class, is performed by a motion picture, the Register says the teacher is the performer in showing it to his class; the performance would be exempt.

In other words, it would be infringing, and not exempt, if Rex Harrison and Julie Andrews, or other actors not as well known perhaps, but the best talent in the local PTA, were to perform "My Fair Lady" in person for a class on speech improvement. However, if the same play were to be performed in the same classroom, for the same purpose, by Rex Harrison, Audrey Hepburn, and other outside actors, singers and musicians, by projecting the Warner Bros. motion picture "My Fair Lady," in which so many millions were invested, it would be exempt from licensing, under section 109(1), assuming the teacher could lay his hands on a print. The distinction seems to be that it is the teacher, or his monitor, who knows how to thread a projection machine with film, and turn a switch, who is the performer and not necessarily Rex Harrison and Audrey Hepburn.

(b) What we fear from the exemption: Unavailability of remedies. What we especially fear by this exemption is the creation of a market for the thousands of our copyrighted films which have fallen into the hands of bootleg distributors, or will be supplied by "bicycling" the print from another location to which it was licensed for a showing, or by dishonest personnel who will sneak prints out of our exchanges overnight, or which is an illegally duped print.

We are not out to sue teachers or schools. Unauthorized performances in schools served by bootleggers have been a problem under present law, where there is no exemption. Yet in the 35 years I have nationally represented virtually every major distributing company in this type of matter, I recall no school or teacher ever being sued by any of our member companies.

Let us suppose that one of these bootleg films is sold to a school or school system which proceeds to use it for so-called face-to-face teaching activities. Such is exempt under section 109 (1). Mere purchase or possession of the copyrighted film is not an infringement. We might have a possible replevin action, under State law, to recover possession of our property-but then only if the copyright owner could prove that the particular copyrighted projection print was on physical film material belonging to the copyright owner which had never been sold, but which had been lost or stolen.

On the other hand, if the particular print is a duped print, that is, an illegally duplicated one made on film or video tape material belonging to the infringing maker, not even the State law remedy of replevin would lie, since the physical material does not belong to the copyright owner. No seizure, impounding and destruction of infringing copies or devices would be available under the civil remedies of the copyright statute. These remedies are only incident to an appropriate copyright infringement action; and no infringement action will be cognizable under the exemption given by section 109(1).

It may be said that we would continue to control the use of our films in schools by the contract under which we would loan the necessary print. This may be so, but as we have indicated, there is a much broader stake involved in that prints can be obtained from illicit sources. But, at least, as under present law, we can inform the schools that they may be violating the copyright law. The schools invariably refrain from further dealings with illicit suppliers, and ordinarily give us full cooperation in tracing the sources.

The exemption in section 109 (1) will not make our theatrical films necessarily free to schools or teachers for classroom or other use. They will still have to come to our authorized 16-millimeter agencies (or to our own branches if they use 35-millimeter equipment) to rent or borrow the necessary print, as they have been doing for so many years. What the exemption will do is make free from license by us, and noninfringing, the use of illegal and bootleg sources of supply of our own film properties.

(c) Contributions of our Teaching Film Custodians, Inc. Please understand that we are not opposed to advancing educational interests. We are as ardently for the advancement of educational interests, particularly through the motion picture, as any other members of the U.S. public, and this is not a Johnny-come-lately position since the sputnik was orbited. For very many years, our producers and distributors have been making films or portions of their films available for teaching purposes. In fact, gratis in many situations, in addition to normal renting.

The Educational Services Department of our Motion Picture Association was merged in 1958 with Teaching Film Custodians, Inc., which we supported for many years prior thereto. Teaching Films Custodians, Inc. is a social service project in the educational field. It is an independent organization incorporated in 1938 in New York as a nonprofit educational agency. Our producers make available to it, without any charge, various of our short subjects, newsreels with foreign voice, and excerpts from our theatrical film product, so that Teaching Film Custodians may be in a position to serve schools and colleges. This organization provides limited grants of funds to State and National teaching purpose groups, for study, research and consultant

services in the application of motion pictures in prescribed courses of study, teaching processes, and in portraying the national culture. It makes available sets of still photographs from theatrical motion pictures to illustrate significant details in the study of history, literature, drama, and motion picture appreciation. It makes available certain motion pictures for teaching methods, experiments, and participates in many other educational activities. But we have reserved the right at all times to control the licensing and use of these films for performing purposes under their copyrights.

The exemption appears to us utterly unwarranted, and to serve no useful purpose whatever. It is granted in an area as to which we have heard of no genuine complaint, to disturb a licensing arrangement under copyright which has existed since motion picture projectors were installed in schools.

We are inclined to suspect that the motive for the exemption proposal was basically to permit teachers and pupils in the classroom to act out plays or parts of plays, or literary works, which were being studied. In effectuating this purpose by utilizing the blanket "any copyrighted work" instead of the previous "nondramatic literary or musical work," our motion pictures were sucked into the basket. We think that an exemption for pupils and teacher acting out a play in classroom for study purposes is a far cry from one for bringing in major theatrical motion pictures available from bootleg sources.

Now the educational interests are not satisfied with the exemptions of section 109, and have gone one step further. They want not only the right freely to perform any copyrighted work in so-called face-toface teaching, but for any teacher or school to make a recording or copy of the performance which can be kept perpetually. This is our next point.

2. The unwarranted proposal by educational interests in their proposed new section 111, to dupe or video tape our motion pictures when shown in schools under the exemption of section 109(1) of H.R. 4347. Certain educational interests who appeared before you on June 2 to 5 were unhappy with section 110 granting exemptions for ephemeral recordings by transmitters, that is, broadcasters, of performances. It did not go far enough, they said. Six months was too short a period to use the recordings; at least 5 years, if not longer, was necessary. Furthermore, it should be applied to uses in schools which were not necessarily broadcast or transmitted to remoter points of reception. So they came up with a proposed new section 111,1 which they request your committee to add to H.R. 4347.

1 New sec. 111, as proposed by the Ad Hoc Committee (of Educational Institutions and Organizations):

"Sec. 111. Limitations on exclusive rights: 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 filmstrips unless the performers and the audience are limited to students, faculty, or staff; and (b) to make a reasonable number of copies of phonorecords of excerpts or quotations from the work, provided that such 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 for archival purposes, provided that no such copyrighted material is sold or leased for profit and that no direct or indirect private gain is involved."