National Association of Educational Broadcasters Convention; National Association of Educational Broadcasters Convention - 3rd Gen. Session Main Auditorium

It's nuts if I may. And if you will pass the word along to your cohorts who are late sleepers. I would appreciate it. Let me remind you first of the fact that. Reception and ban could take it's for tonight should be purchased before noon at the registration area in the front of this building. If someone suddenly comes up at the last minute and has to have a ticket we'll arrange to sell them at the door but we can't do this for many because otherwise we don't have the food. So your banquet and reception tickets where the savings should be purchased at the registration desk in the front of this building. Secondly the exhibits will be torn down starting at 1 o'clock. Now following this session we have set aside quite a bit of time for you to get a last minute chance to go through the exhibits which we urge you to do. But when you come to the meetings this afternoon you will find that that wall across there is solid.

And are to cut out the noise of them tearing down the exhibits and you will have to come in by the entrance over here which is in the front hall out there. When you come into the front door you turn to your right because all of that area will be blocked off solid to permit them to tear down the exhibits without too much distraction. So this afternoon session come in the side doors please. The auditorium has lost a microphone. If any of you happen to know where somebody accidentally thinking it was University of Texas equipment or something of that nature who were in Room 14 yesterday afternoon for a small session and anyone knows of anyone who picked up a microphone would you please turn to the end of the building because they are short that microphone and we would hate to have to pay for it. One of the most important.

Areas of concern facing the educational broadcaster today is the matter of copyright. And we have today we think an outstanding program to give you some up to date information about copyright chairing this session. It is Fred asked Siebert dean of the College of Communications arts of Michigan State University Fred. Thank you ladies and gentlemen. As Harold has pointed out one of the most complex and important problems. Facing American education in general. And broadcast education in particular is the proposed copyright revision. And those of you.

Who have read the memorandum sent out by the NE be office aware of some of the developments which has taken place during the past year. Today we have a panel of five individuals representing to some extent differing points of view. On the proposed revision. I don't intend this chairman to go into these problems because I assume they will be adequately presented by the speakers. The first person I wish to present is the man who has been intimately involved in this problem for some time. He is an attorney and his attorney for the National Education Association. Copyright revision. I have participated in a number of meetings with this man. I have

come to respect his legal ability and to enjoy him very much as a person. I would like to present harry Rosenfield of Washington. Thank you Dean Siebert ladies and gentleman. I'm delighted to be able to participate in this program. On this very important subject. Judicial decisions ladies and gentlemen are customarily published with what is called Head notes or a sort of summary of the decisions. The idea strikes me as a good one for this purpose and with your permission I should like to stop my remarks this morning with a sort of headnotes summary as follows. One. Current official proposals to amend the copyright law. Will seriously hamper education by

repealing a longstanding statutory exemption for education. Summary to a new copyright law should provide special recognition to education and enabling nonprofit noncommercial educational institutions and organizations to make limited use and copy and copies of copyrighted material three educational broadcasting is an end it will part of the educational process. And should not be discriminated against in the copyright law. And for Congress should enact the proposals of the AHA Committee on copyright law revision which will preserve and perfect the longstanding educational exemption of the present copyright law. I suppose having made my summary I'd be wise to sit down. But

forgive me if I don't. Under the present copyright law which dates back to nineteen hundred nine there are two legal bases for education's use of copyrighted materials. The first is the so-called for profit provision wherein Congress has long stated a basic public policy. That education in common with other nonprofit uses shall have an absolute and automatic exemption from the copyright law. To make certain uses of specified types of copyrighted materials. That's for example the nation's schools both public and private may perform in classrooms through educational broadcasting in auditoria on field trips and otherwise copyrighted historical poetical and musical material. So long as such

material is not dramatized and such a performance is not for profit. The second legal basis for education's use of copyrighted materials is the doctrine of fair use which I shall have more to say a little bit later this July. A bill was introduced into the Congress as a proposed revision of the copyright law. And I should like to discuss with you what this bill does. To the two above noted legal bases in the present law. For education's use of copyrighted materials first. It would repeal the present automatic educational exemption provided by the for profit clause and would substitute in its stead a totally new and untested provision which would exempt first only face to face teaching activities and

to exempt from the copyright law and Frenchmen only closed circuit broadcast of the proposed face to face provision. What impoverished the educational system of America by depriving teaches of the present law's exemption for education thereby for all practical purposes barring many tried and effective classroom teaching techniques and media. And curtailing education's opportunity to use modern technological developments. In 1961 the register of copyrights recommended that Congress retain the president for profit provision as striking and I quote a sound balance between the interests of the copyright owners and those of the pub. However the proposed bill. Of Rights changes and

destroys this sound balance in a way that could be disastrous to education. The bill threatens the whole range of tested and widely used educational practices and patterns based on various audio and visual developments as well as on other modern technological advances. Secondly. Instead of the present laws educational exemption which covers all educational broadcasting the new bill would be limited only to call second up from the uncertainties of fair use. To which I shall address myself shortly. Under the proposed bill neither non campus educational radio nor open circuit educational television could legally use even Or are no less recording any copyrighted material without first

obtaining copyright clearance and paying royalties. This is a revolutionary reversal from the present copyright law. Which treats educational broadcasting as education. But this the new bill would rather give it to the ash heap of history. But this is not all. Under the present law Wow there is unresolved uncertainty whether educational broadcasters may legally pre record for later use. Such pre-recording is a common and increasingly indispensable practice. And has not been successfully challenged in the court. The bill on the other hand clearly and incontrovertibly but such pre recording for delayed broadcast even by close circuit broadcasters. Therefore if a school with close circuit

wishes to give the same television lessons throughout the week. To all scheduled classes and a high registration cause it would be required by the proposed bill to repeat the program live each time. This doesn't make sense. It is not in the public interest to legislate education back into the eighteenth century such modern educational techniques as the overhead projector in the language tape educational broadcasting and other similar modern educational developments of a technological caliber character. Are simply other forms of audio and visual education and should not be legislated by Congress into second class status. Education is education and it does not change

merely because it goes on camera on tape on a wire or on film any more than I want to go is on the printed page. These including educational broadcasting are integral and inseparable parts of the educational process. They are the House Committee on copyright law revision is composed ladies and gentlemen in the main of non educational broadcasters. The committee has rejected any attempt to separate educational broadcasting from education because it believes to do so would hamper and seriously cripple education. I have said several times that I was going to discuss the second present leg on which the law permits education is used to arrest the so called fair use doctrine which is not in the statute but which the courts have read into the law as a defense in a suit for and Frenchwomen

the proposed bill would cut a 5 fair use by putting it into the statute without purporting to change its substance. Therefore fair use in the bill gives education nothing that it doesn't now have in judicial failures. Statutory Faye use gives absolutely no certainty to a teacher but only a possible and uncertain defense in a lawsuit against them. It gives no assurance when copyrighted matter may be used nor how much may safely be availed of. The register of copyrights as officially advised inquirers. As far as and I quote The safest course to follow in using copyrighted material is to get permission first. When it is impractical to obtain permission use of

copyrighted material should be avoided. Unless it seems clear that the doctrine of fair use. What applied to the situation. If there is any doubt or question it is advisable to consult an attorney. Thus officially advises the register of copyright. But the register of copyrights in the same document says that the line between fair use and infringement is unclear and not easily defined. Pray then how can a teacher be expected to know when and I quote. It seems clear that the doctrine of fair use should apply to the situation. Despite all of this however there are those who advise education to give up. It's pretty automatic educational exemption under the law and the alleged ground that there is no need for more. Since after all experience shows

there haven't been many lawsuits anyway. However they don't tell you when they say this that perhaps the major reason that they have been so few lawsuits is that the present law gives educators to stand on the automatic educational exemption of the for profit provision and fair use. And by urging the repeal of the automatic educational exemption the bill completely undercuts education's fundamental protection under present law against damage suits. Education's principal protection and when I say education I mean the teacher and the program director. Their principal protection have been and should continue to be an automatic educational exemption. Why can't present laws provision fair use is no substitute for such provision either under the present law or under the proposed law.

What education needs is a clear cut automatic right to use material. Instead. The new bill is a law. It is paradise by inducement to lawsuits. Fred you think I'm going to get in trouble with the Bar Association. I repeat. I really believe that this new bill is a lie. Dies by its inducement to lawsuits reliance on fair use would require teachers to have a hotline to their lawyers. If a court or a jury find that what a teacher did fail to meet a highly technical test for fair use under the proposed bill. The teacher is guilty of copyright infringement and subject to personal liability for at least mandatory minimum damages of two hundred fifty dollars for each infringement. In my

humble judgment. Without an automatic educational exemption reliance on fair use may be a snare and a delusion to teachers in order to defend education and teachers against all this they are whole committee was created in 1963 widely represented representative it is comprised of this nation's leading educational organizations including your own. It held almost numberless conferences and consulted many laws including your own very excellent counsel Jim Gammon. Gene Allana Kufuor on this panel. The committee gave detailed study to the provisions of the present law and proposed revisions as well as to existing desirable and necessary practices and procedures in education and legitimate and necessary requirements of education in the future.

This in tense and continuing study has led the ad hoc committee to the conclusion that the vital interests of American school children and youth require preservation and perfection not destruction. I've the concept of an automatic educational exemption which Congress has long since written into the present law. The committee therefore propose. That the Congress include in a revised copyright law. A limited and reasonable statutory educational exemption which will do four things. One it will continue the existing laws policy of a limited and restricted educational exemption for nonprofit noncommercial education too. It will include in that exemption educational broadcasting both open and closed circuit. 3 it

will restrict nonprofit noncommercial education to making only one copy a recording. Of a whole or complete non-dramatic copyrighted work with similar and more restrictive limitations on dramatic works. And for our. It will put a nonprofit noncommercial educational organization in institutions to make a reasonable number of copies or recordings of limited excerpts or quotations but only for illustrative critical or ancillary educational purposes. That's the committee's proposal is within the spirit and pattern of the present law's exemption for education. Ladies and gentlemen one last observation lest you be misled into believing that copyright is a fixed property right. The Supreme Court has ruled many times. That the scope of

copyright protection is wholly and completely a matter of congressional discretion to grant or withhold. The House of Representatives committee reporting on the present law said and I quote. Congress has the power to annex to copyrights such conditions as it deems wise and expedient. The Supreme Court has ruled the copyright law makes a reward to the owner of secondary consideration. The register of copyrights has said and I quote within limits the authors interests coincide with those of the public. Where they conflict. The public interest must prevail. The needs of all groups continues the register of copyright. The needs of all groups must be taken into account. But these needs must also be weighed in the light of the Paramount

public interest. I submit ladies and gentlemen that education is the most universal expression of public interest in the United States. President Kennedy said in his education message to the Congress from every point of view. Education is of paramount concern to the national interest as well as to each individual. In conclusion therefore ladies and gentleman. I believe that the Congress faithfully protected the Paramount public interest of this nation. When are established in the present copyright law an automatic educational exemption for noncommercial educational use of copyrighted materials. And I respectfully suggest that it and continue will it will continue to be in the Paramount public interest for the Congress to enact in any revised

copyright law. The proposals of the art HELP Committee which would preserve and perfect an educational exemption so as to enable teachers to make reasonable noncommercial use of copyrighted materials for the supreme leave vital task of educating the schoolchildren and youth of our nation. Thank you very much. Thank you Harry. I'll be for you. Our two representatives including Harry of the interests which educational broadcasting has in this copyright revision also on this panel are. Two representatives of the copyright proprietors interests. The other man.

Finds himself in the crossfire of these two interests and this man is a representative of the Copyright Office of the Library of Congress. Mr. Carey is the deputy register of copyrights. He's an attorney has been involved in the polls to revise the Copyright Act. And probably is more thoroughly familiar with both the present Act and the proposals than any other individual I'm happy to present Mr. Kerry. Thank you Dean savory as the dean has told you. We have different viewpoints reflected up here today and I do hope though that we won't find ourselves in the position of these two

boyhood chums who grew up and went their separate ways after having a childhood disagreement. But it seems that it carried over in their their lives they really had not much use for each other. And one day. One of them who grew up to be an admiral in the Navy was standing in a Pennsylvania Station in New York City and the other one happened to come into the stadium and to the station and he had turned out to be a bishop and he had his clerical robes on and he walked over to the admiral and said conductor can you tell me where I can catch the next train for Washington. And the admiral resplendent in all his gold braid and medals drawing himself up to his full height and said. Madam in your condition I don't think you can

make it. The Dean is also told to that. In my position we kind of find ourselves in between a crossfire. Well this is true. I left all of my Purple Heart medals at home. But over about three years now we have been meeting with. The two groups if I may refer to them in that way. The creators on the one hand and the users on the other. And it seems is all in all of these cases and we have been in the middle where like a ham in the sandwich. So we're used to getting it from both sides. But I think with a little. Understanding of what the problem is all about. You may like to consider another aspect of this problem that you may not have had chance to reflect upon

a number of years ago a great judge described copyright. As the metaphysics of the law. And that is a very apt description. We're dealing in copyrights with an intangible you can't see it you can't touch it you can't feel it. It is an intangible right. In short it may be said to be nothing more than the right of a creator of a work to prevent someone from using his brainchild without his permission. When you buy a book at a store you may think that this book is yours and you may do just with it as you please. But under the legal concept of copyright This is not quite true. You have a legal right to do

with that book whatever you please as far as the physical attributes of the book is concerned. You may throw it in the furnace you may tear the place is up you may doodle on the paper and you may give it to a friend. But once you begin to use the intangible product of the book. Namely the concept of the author which is contained in the printed pages you are using the author's brainchild. Now whether you use it properly or improperly depends upon the manner of use. I merely mention this to illustrate that things are not necessarily as easy as they might seem to be so there must be some resolution of this problem of the Right that is in the create are and the right fit is in the user. Arnold Toynbee the great historian classified the great forces of history as those of yin

and yang. Well we might have might be said to have somewhat the same position here as I say the forces of the Creator Ares and the forces of the users. So much for philosophy. I might briefly mention to you a little background concerning the copyright revision bill that Mr. Rosen if you refer to was introduced last July. Some nine years ago the Congress gave the copyright office a modest appropriation. To begin some studies. Looking toward the writing of a new copyright law. Some thirty four studies were produced under this they were printed by the judiciary committees of the Congress and disseminated in one thousand sixty one the Register wrote to Congress a report some hundred fifty pounds in length. Describing the

his recommendations for a new copyright law. I don't propose to discuss those this morning. I'm going to touch upon only the recommendations that concern your particular interest namely those that Mr. Rosenstiel has already mentioned. But I I mention this by way of background so indicate to you that what is in that bill is not something that has been cooked up overnight. And it is not really a radical departure in one sense from the existing law. This is really an attempt to resolve these two forces that I mentioned the yin and the yang so that in the final analysis the public interest can best be served. Now I admit that people will have difficulty in defining the public interest. I admit that they will probably have difficulty in defining

education. So semantics is a large part of this and it is not easily easily resolve some of the difficulties. But permit me briefly to give you some idea of the reasoning that we put in the bill as it came out in the Congress. Mr Rosenfield correctly mentioned to you that the existing law and I might point out to you this existing law was enacted in 1909 and courses over half century old. Did not contain in it did contain and excuse me and exemption for performances. Or. Public performances for profit. Well this itself was a radical thing at the time it was proposed and introduced into law in 1999. Because

for tonight you know and I know incidentally we've had copyright laws ever since 1790. Prior to 1990 the copyright law had given as early as 1856 a right without any for profit restriction to dramatic works. And that has to remain in the law ever since. In 1897 for the first time a public performance rights was granted for musical compositions. This was without the for profit limitations in one thousand and I know how ever the for profit limitation was put in with respect to music and the law also contains this for profit limitation with respect to non dramatic literary works. Well how does that affect educational broadcasting.

In sum I think it is as if today anyone who uses the brainchild of another which is copyrighted. In a public performance for profit whatever that may mean is required to compensate the author for that use. Now it is also true as Mr. Oldfield indicated to you that this for profit limitation would be removed in the bill that is now in the Congress so that educational broadcasters with the two exceptions that he referred to would be required to compensate the author creator for their use. Well let's look at those exceptions as Mr. Rosen field correctly told you.

If what is involved is a face to face teaching activity in a classroom. They would be exempt. And also if the same type of activity took place through the medium of closed circuit television I would be exempt. So all the problem. In this aspect comes to open circuit television. Now why we didn't why didn't we exclude education use rights when it comes to the use of open circuit television. Well one of the things as it seems it's rather difficult to determine what is education on an open circuit television station. This is a rather difficult thing education can mean many things to many people. On the

extreme end I suppose you may say that anything in life is educational. We learn by doing we learn by making mistakes. But for the interest of instructing the use and even the adults why do you stop. This is a difficult problem and is not easy a resolution. We have been asked to reconsider this exclusion as it were open circuit television. We are giving it consideration. I don't know just what we will stand in the final analysis but let me indicate to you some of the problems that do exist here in my own city of Washington. We have an educational television station there. During the day time. It transmits on a psych it was can be received by any body. This is a UHF frequency broadcasting station. And from 9:00 in the morning to roughly three to

3:30 nap and it transmits exclusively from AMS which are intended to be received in the classrooms of the nearby schools. The usual type of instructional material. Frankly I have no difficulty with that myself. Even though this is open circuit. I think a good case can be made for the exclusion of that type of broadcasting. The difficulty however comes with what happens in the afternoon and evening hours on this station. Very interesting programs appear on this station. You have great concerts you have lectures you have informational discussions you have dramatic works and I may say a great many of the things that appear in a station in the evening hours can also be seen to a very limited extent on the commercial broadcasting

stations. One example that comes to mind is a very famous series of Shakespeare plays you. You may be familiar with age of kings. This first ran on commercial television. It is now enjoying a successful rerun in the educational television field. Well. Is it fair to say that the commercial broadcasters must pay a royalty when this is used on commercial television. But the minute it is on an educational station that is free of Reilly's. I mean is it fair to the creator of this. The person who actually produced this is it fair to him. I think you ought to think about that. But anyway this is the area in the are open circuit television where the difficulties do arise. Now one brief word on the Fair Use problem. Mr. Rosen feel has indicated to you the legal problems that are involved

and he is quite right. There is a great deal of difficulty in trying to understand what is fair use. As he also indicated to you this is not something that is in the law today and never has been. It is a judicial concept that the courts have created to exclude from this right that the creators have been given certain uses what's in the public interest should be permitted free. I wish I could agree with Mr. Owens and feel that it is as clear the law as as it's as he states it to be in the sense that. Educators today have a more or less free right to use material under the Fair Use Doctrine. I don't quite think this is accurate. I think the courts have been confused I think the courts in many instances would say that a lot of what goes on right now today under the guise of

education of fair use is not fair use. But be that as it may it is not clear. So after long consideration we suggested in the bill that all that the bill contained on the fair use would be a statement that fair use. Was permitted. We didn't quite go so far as to stop right there. There were many people I say may say who thought that you should obey all the specific uses which constitute fair use. Well this sounds easy but it really isn't when you get down to it because where do you stop. You might have a long list of 50 statements that might be considered fair use and then the next day somebody is going to find that there are 20 more that should have been put in there and where you get yourself into a bind by trying to list all of the exemptions. So what we finally came up with was to put there a few standards by which the courts could determine whether anything was

fair use or not and the standards by the way might be said to be merely the distillation of hundreds of court decisions in their varying degrees. This is not an easy problem I admit but this has existed and it exists in all areas not only in the educational field. No. I think in conclusion I might say this but the bill that was introduced last July was introduced not with any hope that there would be any hearings on it but merely as a guide to people to see what the general trend of thinking was today. Give them a chance to discuss it. Give them a chance to make their recommendations far against any particular provision in it

so that hopefully next session of Congress. All of these can be reconsidered and a new bill will be reintroduced. As you may be aware the bill died as far as action is concerned with the demise of the recent Congress so that they will have to be a new bill reintroduced at the next session in order to have any action taken. And it is contemplated that perhaps late in the next year hearings will be held on the reintroduced bill. And you of course can help us. You can help everyone by making your views known. And I'm sure they will be and we will be glad to receive them at any time and any way you will get your chance in the hearings whenever the bill comes up next year. Thank you very kindly. Thank you very much Mr. Kerry. The

next speaker on the panel has a unique distinction. He is not a lawyer. He is the president of the melon Company of New York and is the chairman of the joint copyright Committee of the book publishing industry which has been quite active during the past two or three years in considering revisions of the Copyright Act. I am happy to present Mr. Lee Dighton. Thank you Dean. You can imagine my amazement and heart and I discovered early this morning that I was in fact the only non liar in this group and I promise you I'm going to do everything I can to stay out of the meat chopper. I'm not going to get involved in a legal colloquy with my colleagues up here this morning.

And I'm limiting my remarks this morning to the concerns of publishers with educational television under the proposed Copyright Act. Now I. Do not have a legal background as I said and it's been said before but my practical knowledge tells me that exemptions of education of educators from copyright restriction under the present law is limited to the field of educational television. It does not it does not apply. As Mr. Rosenfield would have you believe I think any and all use of copyrighted material as for example in photocopy. If I'm wrong I'm going to be correct. Call call your publishing company which John the vice president is a dues paying member of the NSA and that Millen company of which I am president has a

very special feeling for Educational Television. For example we have a kind of partnership with Channel 13 w o n d t in New York under which we publish coarse materials for them. The promotions department at the Macmillan company of which I am president has standing instructions to answer educational television promotion and inquiries by return mail and the telegram has received a telegram has returned now we don't always get it done but believe me we try. And as a member of the NRA I read all the critiques that appear on the journals and I must say to you that this is the most hair shirt organization I've ever belonged to. I don't believe you are that bad. Surely there must be some TV programs well-conceived well executed and well received. And I humbly suggest it is just time to stop giving yourselves a bad press or you'll persuade everybody that the gossip is right and Educational Television has not

lived up to its promise. I'm reminded of a remark attributed to James Thurber when someone asked him how's your wife he said compared to what. Early last summer before the register of copyrights it introduced his printed bill in Congress that joint copyright committee the API the textbook Institute and the book publishers Council prepared a position paper on the plenary draft of this proposed bill. I want to read you a partner passage concerning nonprofit. Public performances. This statement observed that most of these nonprofit public performances of literary works probably consist of the reading of poems stories or children's books aloud in schools Sunday school churches or libraries and generally speaking copyright owners wish neither forbid such she was not to be burdened with the many thousands of requests to make such uses. The rapid growth of

educational television however has introduced a wholly new problem. Educational broadcasts may reach very large audiences of hundreds of thousands or conceivably of millions of people on the basis of a program so broadcast. Maybe the reading of a poet's works or of a short story or the installments of a novel. It may well consist of the presentation of long extracts from a textbook and they employ copyrighted maps charts and other visual aids. This is obviously an altogether different use from the nonprofit performances above referred to and it seems intolerable that a copyright owner should have no right to claim compensation for this vastly expanded use of his work by radio and television. Continuing this quote the council and the institute believe that educational broadcasting of high quality should be nurtured. But that copyright owners should be fairly compensated for educational uses of their work as well as for other

uses. Whether that educational use be by me made by the application of ink to paper or by the dissemination of electromagnetic waves. Now since that statement was written as you have heard this morning the present bill has been introduced in Congress as I understand it as a non-legal as a layman with that kind of background this bill places no copyright was corrections upon closed circuit television. Now I'm not quite clear about this NIE. I'd be happy to be informed. I would like to make my own personal observation.