That concludes my comments on the proposed bill. However, if I may, I should like to comment on several recommendations which some of the previous witnesses have made to your subcommittee.

1. I understand it has been recommended that you grant an exemption to provide for the transmission of excerpts from educational films, and from other types of works, without special license or fee.

We oppose this as an unwarranted invasion of the copyright owner's rights.

Educational TV stations pay for the equipment they use, and for the electric current they consume, and we know of no good reason why they should be entitled to the free use of copyrighted materials, either in excerpted or full-length form, without the approval of the copyright owner.

Some of your earlier witnesses have attempted to persuade the committee that education cannot afford to pay for materials to be shown on educational TV. I am unable to understand this, for two

reasons.

First, many of our educational TV stations are operated by public agencies-school boards, universities, and the like. These agencies draw their funds from the public treasury, and in some 28 years in the educational field, I have generally found that these public agencies, such as school boards and boards of trustees, can afford the things they really want to do.

Through the wisdom of the Congress, you have passed law H.R. 8910, which provides $3.4 billion for programs to improve elementary and secondary education; $1.2 billion of that money would be eligible to be spent for programs which include the purchase of materials.

I submit that this is the way for the Congress to subsidize education, and to help education to purchase materials, rather than to take it out of the commercial hides of the producers of educational materials.

And, thirdly, if educational television is, as many of its proponents claim, a more efficient and less costly method of distributing audiovisual images to schoolchildren, then any savings resulting from such added efficiency certainly should go in part to pay for the costs of the materials to be transmitted.

If, via television, a film is to be shown to 15,000 schoolchildren in a single day, I can see no justifiable reason why the school system could not "afford" to pay a substantial price for the right to televise that film.

2. We strenuously oppose the proposed new section 111 of the bill, as submitted by the ad hoc committee on copyright law revision, spokesmen for which were Dr. Harold E. Wigren and Mr. Harry Rosenfield, as being an unfair and unwarranted dilution of the rights of the copyright owner.

Clause (b) of the proposed section would make it possible for a teacher, school system, or institution to make copies of an excerpt from a copyrighted work, such as a motion picture film, and to use such copies for many functions, including teaching.

Under this proposal, a school system could duplicate an excerpt from an educational film, make as many copies as it might find "reasonable," and distribute those to teachers throughout the school system, without any remuneration whatsoever to the copyright owner.

This proposal is so unfair that I feel it scarcely deserves comment. I do think you should know, though, that one of the outstanding new ideas in the audiovisual educational field within the past several years has been the development of "single concept films," which very frequently are short excerpts from longer films, used to teach one specific item only. These films are used in simple cartridgeloading 8 millimeter projectors and they are extremely effective.

I have one of the projectors in the back of the room. At the end of the hearing, if some of you would like to see this equipment I will be glad to show it to you.

Here is a good example of a derivative work. These 8-millimeter single concept films are derivative works from longer films which are produced for regular classroom use.

We can see no reason why these derivative works should be exempt from normal copying requirements when the basic material certainly cannot be copied at will.

We believe very strongly that the copyright owner, the audiovisual materials producer, should have the sole right to prepare and release edited or excerpted versions of his materials, for such "single concept" use.

We believe it would be entirely unfair for a school system to be permitted to make its own copies of excerpts, which it certainly could do if your subcommittee should adopt the proposed new section 111. I most sincerely urge that you reject the proposed new section. 3. The ad hoc committee also recommended considerable additional wording under section 107, which provides for "fair use.”

I have already commented that I believe the wording of section 107, as proposed in H.R. 4347, is entirely adequate. The common law on "fair use" provides all necessary protection for teachers, in my opinion, to make it possible for them to use copyrighted materials in the classroom.

I have studied the various mailings and statements of the ad hoc committee relating to "fair use," and I can see no potential danger to the teacher if the wording on "fair use" is confined to that which is in H.R. 4347.

And I would like to point out that if the expanded wording, as proposed by the ad hoc committee, were accepted by your subcommittee, a great many problems would be created. Although the wording sounds relatively innocuous, it would have the effect of opening up all types of copyrighted materials for educational broadcasting, and for other uses, without remuneration to the copyright

owners.

4. In the course of the previous testimony before your subcommittee, there has been a recurring implication that teachers throughout the country are demanding more help in the form of educational television. While not in any way impugning the effectiveness of educational television, I would like to submit some figures on teachers' preferences in the matter of teaching tools.

Just a few weeks ago, a national survey was conducted, in an entirely unbiased manner, by the Trendex opinion research firm, under the sponsorship of Grade Teacher magazine. Following established sampling techniques, the Trendex organization asked 528 teachers: "If you had a million dollars to spend for your school system, what would you spend it for?"

The teachers could mention anything they desired, and their responses were recorded by the Trendex interviewers.

Audiovisuals were the most wanted item of all; 155 teachers, or 29.4 percent, mentioned audiovisuals as the things they wanted. After this, in descending order of preference, came buildings (expand, build, repair, rebuild), 27.3 percent; textbooks, 23.1 percent; more equipment, general, 20.6 percent; and increase staff, 10.4 percent. But out of the entire 528 teachers, only 4 mentioned educational television in any way.

The detailed interview reports, from which these figures were taken, are available for independent examination and audit.

Mr. Chairman and members of the subcommittee, I think those figures-4 teachers out of 528-tell their own story about whether or not teachers are demanding more educational television.

Certainly, interests within education are demanding more television, but I submit that the record of the Grade Teacher survey shows that the teachers are not.

I think the members of the subcommittee are aware of a campaign on this copyright problem which has been conducted by a number of interested educational groups over the past several months. It is important for the subcommittee to understand fully that there has been no comparable activity on behalf of the producers of educational materials.

Too, there are indications that the position taken by these groups is not supported by everyone in education, in spite of the campaign which has been waged toward that end.

As one example of this I submit for your record the attached article, appendix B, by Dr. Ray Wyman, "Don't Kill the Goose that Lays the Golden," which appeared in Educational Screen and Audiovisual Guide magazine for June 1964.

Dr. Wyman, the author of this article, is professor of education and head of the audiovisual center at the University of Massachusetts. He is a highly respected audiovisual educator and a former member of the executive committee of the department of audiovisual instruction of the National Education Association.

I will not attempt to repeat what he said, but the main point may be summarized in these few words:

"Valuable new materials will be produced only as it becomes rewarding to have them produced."

Incidentally, in the course of our talks with the Copyright Office last year, we were told that some of the educational groups had taken the position that under the present law they have the right to televise educational films and filmstrips without a special license from the copyright owner.

In order to find out the facts on this, we engaged a well-known. attorney who specializes in copyright matters, Mr. Alexander Lindey, of 285 Madison Avenue, New York City.

I would like to submit for the committee's record a copy of Mr. Lindey's opinion on these matters. It is attached to my prepared statement as appendix A.

Mr. KASTEN MEIER. Without objection, that letter will be received and made part of the record. Do you have other material that you want included?

52-380-66-pt. 2-28

Mr. WHITE. Just my complete written statement and appendix B, which is the magazine article, if that is agreeable to you.

Mr. KASTENMEIER. They will be received, without objection, and made part of the record.

(Statement with appendix A and B follows:)

PREPARED STATEMENT BY DON WHITE, EXECUTIVE VICE PRESIDENT, NATIONAL AUDIO-VISUAL ASSOCIATION, INC., FAIRfax, Va.

The National Audio-Visual Association, Inc., a Virginia nonprofit corporation, is the national trade organization of the audiovisual industry. Membership in the association includes 46 producers of audiovisual materials, 143 manufacturers of audiovisual equipment, and 437 specialized audiovisual dealers throughout the country who distribute these products.

Included among the materials producers who are members of our association are 42 producers of audiovisual materials for use in education, such as sound and silent motion pictures, filmstrips, slides, transparencies, and tape and disk recordings. 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 16-millimeter sound projectors; 11 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. In my opinion, they have performed a real public service in their handling of this very 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 disk 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 I have underlined 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.

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.

There is, for example, a fairly 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 the clause. This creates a serious problem for the producers of these materials.

Let me explain that the standard method of distributing all of 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.

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