We estimate that the members of our association account for better than 90 percent of the annual production of these principal types of audiovisual materials for sale to, and use in, American education.

Also included in our membership are nine companies who manufacture copying equipment for the production of transparencies for overhead projection, or who manufacture materials used in making such copies. One of the more important developments in the audiovisual field within the last 5 years has been the greatly increased use of copying devices to prepare transparencies at the local level, for projection in the classroom.

Another specialized group among our members is the distributors of entertainment films-features and short subjects-for use on 16millimeter sound projectors. Eleven members of our association engage in this business.

Our membership also includes six manufacturers of television equipment of various kinds, including transmission equipment, closed-circuit chains, monitors, and receivers.

This diversity of our membership requires our organization to approach the problem of copyright revision with a minimum of bias and prejudice.

For example, our member manufacturers of copying equipment certainly would not condone our taking a position on "fair use" which did not give classroom teachers a reasonable right to copy materials needed in the course of their daily, face-to-face teaching activities.

Likewise, our TV manufacturer members would not want us to take a position on the matter of educational broadcasting of copyrighted materials which unduly favored the materials producers.

You can appreciate that it has been no easy task for us to arrive at a general position for our association on the matter of copyright revision. I believe, though, that the position I am going to present to you today is all the more valid as a consequence of our consideration of these various interests. I honestly believe that our position is in line with the best interests of American education.

To begin with, let me say that we are generally in favor of a revision of the copyright law, and we expect to do our best to support the revision which your subcommittee will propose. We have every confidence that it will be fair and just, and that it will adequately protect not only those who spend time, money, and creative talent in producing copyrighted materials, but also those who purchase and use such materials.

I would like to record my sincere appreciation for the manner in which the Register of Copyrights, his General Counsel, and their very capable staffs have tried to find the true national interest and to avoid being misled by the welter of claims, counterclaims, and varied interests which are involved here.

When you compare the preliminary draft, issued in September of 1964, against the 1965 revision bill, I think it is obvious that there has been much improvement, and that the improvement was the result of a very great deal of hard and intelligent work on the part of the Register and his staff.

When you realize all the complex interests involved, I think it is obvious that they have performed a real public service in their handling of this very difficult and complex matter.

The audiovisual materials produced by our members fall into three general categories:

1. Motion pictures, either sound or silent.

2. Still pictures, such as filmstrips, slides, and transparencies, which for copyright purposes are classed as pictorial works.

3. Sound recordings, including tape and disc recordings. Section 106 (a) (4) of H.R. 4347 provides a public performance right for motion pictures, and section 106 (a) (5) provides a public exhibition right for pictorial, graphic, or sculptural works. Performance or exhibition rights are not provided for sound recordings.

There are several provisions of H.R. 4347 which particularly concern us. I would like to comment on them, in order.

SECTION 106 (b) (3) (A)—PUBLIC PERFORMANCE

The 1964 version of the proposed bill contained a definition of "public performance" which we feel is preferable to this section of H.R. 4347. This defined public performance as follows, the italics being

ours:

(A) to perform or exhibit it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered;

In H.R. 4347, the words italicized are omitted. This has the effect of broadening the definition, which we believe should be such as to make any performance public except one which is only for a single family and its social acquaintances. We would like to urge that the wording of this provision be changed to that of the 1964 bill.

SECTION 107-FAIR USE

We specifically endorse the wording of this section. We see no valid need for any further statutory delineation of fair use, particularly as it applies to education.

In passing, here, I would like to mention that we did a little checking, and, so far as we can find, there has never been a lawsuit against a teacher who made use of copyrighted material in the normal course of teaching activities.

There have been some lawsuits which involved special cases, but there has never been a lawsuit, having to do with just ordinary teaching activities, in which any teacher, so far as we can find, has ever been charged with violation of the copyright law.

This seems to me to indicate that there is no very serious need for a change in the present "fair use" provision now on section 109(1), "Face-to-face teaching activities."

I want to associate our organization with the remarks just made by Mr. Sargoy, and to say specifically that the amendment as mentioned by Mr. Poff would take care of the problem that we have here.

SECTION 109(1)—FACE-TO-FACE TEACHING ACTIVITIES

When this exemption appeared in the prior legislation, it was expressly limited to performances of nondramatic literary or musical works, or exhibitions of pictorial, graphic, or sculptural works. Performances of motion pictures were not exempted. We do not believe that they should be.

Since all copyrighted motion pictures which are distributed to schools are sold, rented, or leased with an express or implied license covering optical projection in teaching activities, we can see no advantage to be gained by the inclusion of motion pictures in this exemption. And it brings with it some definite disadvantages.

We do not see that there is any real need for this exemption, so far as classroom teachers are concerned. Motion pictures are sold, rented, or leased to the schools now with an express or implied license covering optical projection in teaching activities.

There has never been any problem on this point, so far as we know. We can see no reason why the copyright law should exempt that particular kind of activity.

The problem that the provision would create, if carried as it is now proposed in your bill, is that, as Mr. Sargoy told you, there is a substantial traffic in "bootleg" or unauthorized prints of feature motion picture films.

Under this exemption, such a "bootleg" print could be shown to hundreds of students in a motion picture appreciation course, without any copyright violation being involved.

In order to prevent this type of unauthorized use, we recommend that clause (1) of section 109 be amended as follows, the amended wording being italicized:

(1) performance of a nondramatic literary or musical work, or exhibition of a work, by instructors or pupils * *

SECTION 109(2)—EXHIBITION OF PICTORIAL WORKS ON EDUCATIONAL

TELEVISION

As we interpret section 109(2), it would make possible the transmission of an educational filmstrip, slide, or transparency over open- or closed-circuit educational television without a special license or permit from the copyright owner, providing the transmission met the conditions set forth in this clause. This creates a serious problem for the producers of these materials.

I am not sure you have seen a filmstrip lately. I want to hand you one that you can pass down the committee, here, and see what we are talking about when we say "filmstrip."

It is a series of pictures printed on a strip of 35-millimeter film. They are shown, not as motion pictures, but as still pictures, in the classroom. This is a very simple type of teaching aid which is very widely used in schools.

Let me explain that the standard method of distributing all these types of copyrighted visual materials is by selling individual copies to schools, school systems, or institutions of higher education.

Normally, the materials are sold with express or implied licenses permitting their optical projection, or direct uses, by teachers and students. But generally they are sold with a prohibition against use on television.

Within recent years, more and more school systems have begun to follow the policy of establishing libraries of filmstrips and overhead transparencies in each school building, making these materials immediately available to teachers. This means that some of our large school systems now buy more than 100 copies of an educational filmstrip when it is first released.

If the proposed exemption should become a part of the final law, this would mean that the school system could buy one copy of the filmstrip and show it in many locations simultaneously by means of television.

To provide that such a school system, which shows a filmstrip via television to hundreds or thousands of schoolchildren simultaneously, should pay the same for its copy of the filmstrip as another system might pay for a single copy to be used for optical projection only, would be to create economic chaos in the audiovisual materials industry.

Obviously, since producers would sell a smaller number of prints, their prices would have to be increased. The longrun effect would be that the small and poor school systems, which could not afford expensive TV installations, would pay more for their copies in order to help the large and rich school systems show theirs over television. The only solution we can see to this problem is to vest in the producer, as he now has, the right to license or control such electronic distribution of his copyrighted work.

Accordingly, we recommend that the words "or exhibition of a work" be deleted from clause (2) of section 109.

I was discussing this problem the other day with a nationally respected audiovisual educator who has taken the position that audiovisual materials should be made available for broadcast use without the necessity of special licenses.

His answer was, "Well, the producers will just have to create two prices, one for TV and one for optical use."

What he did not understand, until I explained it, is that such a dualprice system cannot be created by any producer if the copyright law does not give him the right to treat TV showings separately. This is one of the main things we need.

It might be noted here that on page 30 of "Copyright Law Revision, Part 6," the Register points out that section 108 (b) was included in the 1965 bill in response to the arguments of originators and producers of pictorial and graphic materials against extending the free display of works to television broadcasting.

What we are asking here is that a similar requirement be applied, as regards educational materials, to educational broadcasts. We believe the request is all the more reasonable because most of the educational producers have only one market-education-for their materials.

There is no doubt that it is technically feasible, right now, to put a so-called "Edstar" satellite into synchronous orbit so that it would hover above some central point in the United States, and broadcast educational television programs to all schools in the country.

I think the chances are good that such a satellite will be put into service within the next 5 years or so. Under the technical wording of clause (2) of section 109, if the satellite were lofted by a nonprofit educational institution, and if the broadcasts were a regular part of this institution's systematic instructional activities, a filmstrip on eighth grade American history could, for example, be shown to most of the eighth grade history students in the country in 1 day.

Thus, the producer's market for that filmstrip could be virtually destroyed, but under clause (2), he would have no way to prevent

such a nationwide showing. And remember that such an Edstar satellite is entirely feasible, right now, from a technical standpoint.

Let me add in passing that we most sincerely appreciate the fact that educational motion pictures have not been included in the exemptions granted under clause (2) of section 109. We believe that the decision to omit motion pictures from this exemption was entirely sound.

We would like to point out, though, that educational filmstrips and transparencies are used in ways which are substantially identical to the ways in which educational films are used, and for similar purposes, and since motion pictures are not included in the exemptions, we feel very strongly that filmstrips, transparencies, and slides also should not be included.

SECTION 110-EPHEMERAL RECORDINGS

We oppose the inclusion of this section in the bill.

Essentially, this provision represents an attempt to provide a benefit to a special interest group-the radio and TV broadcasters. It does this by proposing to make a statutory limitation on exclusive rights and thereby taking the matter out of the area of normal contractual licensing under the copyright, which is where it should be handled.

We share Mr. Sargoy's concern about the proliferation of copies which would be created by this provision.

In connection with the proposed ephemeral recording right, it is important to remember that clause (2) of section 109 would permit an educational broadcaster to exhibit a filmstrip, slide, or transparency in the course of a broadcast, without license or permission from the copyright owner, providing that the transmission was made primarily for reception in classrooms or similar places normally devoted to instruction.

If such a transmission were held to be a transmission to the public, and from the Register's remarks on page 46 of "Copyright Law Revision, Part 6," we must assume that it would be, this would mean that an educational broadcaster could broadcast a filmstrip, transparency, or other visual under section 109 (2), and then, in addition, could make an ephemeral copy of that transmission, and then could proceed to retransmit that copy as many times as the broadcaster might desire, over a period of 6 months, such subsequent transmissions being entirely lawful under section 109 (2). And all this could be done without any permit or license from the copyright owner.

I might add that on the last day of the 6-month period during which the broadcaster was entitled lawfully to transmit the work, he could undoubtedly make a new ephemeral recording of that transmission, and so be entitled to use the work for another 6 months, just before the end of which time he could make another recording, and so on.

All this, it seems to us, is a grossly unfair invasion of the rights of the educational materials producer. We believe the law should not grant an ephemeral recording right. If such recordings are necessary, they should be arranged by contractual means.

We therefore recommend that section 110 be stricken from H.R. 4347.