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we, of course, have no complaint about either of these possibilities, neither appears to us to be a valid reason for discontinuance of the present ETV exemption.

As to the popular impact of educational television in the future, we see little or no chance of ETV viewers becoming really a mass audience in the usual sense. Educational television by its very nature is aimed at appealing to specialized audiences deeply interested in particular subject matter, which of necessity means minority programing. Whether an ETV program is a foreign language series, a history lecture, a cooking lesson or a music appreciation program-or indeed is concerned with international questions, national affairs or local events—it can never be considered mass entertainment.

Admittedly, we do look forward to continued growth of our audience, as the American public realizes more and more that educational television often is as interesting as commercial television is entertaining. Nor do we deny that to some extent we tend to measure our progress by the size of our audience; the larger the number of people engaged in the educational process through educational television, the more successful we feel. But isn't this viewpoint-the maximum educational exposure for the greatest number of people—the basic premise behind all of the Federal educational legislation currently being enacted under President Johnson's leadership? And if an exemption is justified for a few viewers, does it become unfair as soon as we are successful in developing educational television into a more important force in society? In short, it seems to us to be rather a fallacy to gear the extent of the ETV copyright exemption in any way to the size of the ETV audience.

To turn to the second point, we simply do not see how educational television can be pictured as a new gold field for authors and composers to prospect for untold riches. It may be the legitimate offspring of both education and—but in budgeting terms the former rather than the latter is certainly dominant. The average educational television station operates on an annual budget of under $400,000; the largest percentage of stations have annual budgets of less than $200,000. ETV stations have no source of income other than the tax dollar, charitable contributions, and to a lesser extent, payment for community services. The majority of stations are operated by schools and universities; the others are either licensed to State education agencies or to community educational organizations. None have extensive financial resources; all make much use of faculty, student, volunteer, and other free services.

Educational television has often been warned not to expect subsidies from creative artists and writers. We would equally hope that the creative elements of our society would not look for subsidies from educational television.

We see rather a great need on both sides for sympathetic cooperation and friendly collaboration between the creator and the communicator if their mutual interest in encouraging the arts and sciences for the benefit of all is to be served. And we do want to point out that educational television exposure of authors and their work is generally quite advantageous in creating the reputation and audience so necessary for artistic recognition and appreciation.

This does not mean that we contend, as some have claimed, that neither authors nor their publishers should ever be entitled to receive direct compensation for their creative efforts in educational television. Neither do we have any hesitation in recognizing that educational television broadcasts of certain kinds of copyrighted works can possibly adversely affect their commercial return. For these reasons, we have not asked the right to perform dramas free of charge over educational television; we have not asked for an exemption to broadcast music when performed by professional paid musicians; we have not asked to be allowed to copy motion pictures or film strips; nor have we requested blanket permission to make unlimited recordings of our own educational programs for indiscriminate use.

In supporting the ad hoc committee's proposed amendments, we are asking for the following limited privileges :

1. Specific inclusion of ETV as a "fair use" under section 107.

The Copyright Office originally proposed the addition of language referring to educational uses in section 107, but that has been deleted in the current bill. Our concern derives from expressed doubts by some copyright experts that inclusion of even short excerpts of copyrighted works on educational programs may not come within the "fair use” doctrine if the programs are broadcast, copied, or distributed on too wide a scale.

It seems to us essential that there be no question about the full applicability of the "fair use" doctrine to educational broadcasting. An educational series on any subject simply must have access to illustrations from all important works in the field if it is to be professionally acceptable. A survey of American music without a sample of George Gershwin, a lecture on American literature without a quotation from Ernest Hemingway, a discussion of the American theater without an excerpt from O'Neill is unthinkable—but might not be possible except for the "fair use" doctrine.

Senator BURDICK. I am very sorry but there has to be an interruption again for a vote in the Senate. I hope to be back by not later than 3 or perhaps 3:15.

(Short recess.)
Senator BURDICK. Mr. Aleinikoff, you may proceed.

Mr. ALEINIKOFF. I think I was at the point where I was detailing the three kinds of amendments which we would like to see in this bill before it is enacted. The first one was the specific inclusion of educational television as a fair use. The second one is deletion of the ETV exclusion from the nonprofit exemption under section 109 (4). Section 109(4) now specifically excludes educational television from the exemption generally applicable to nonprofit performances. We ask only that educational television stations be accorded the same status as all other noncommercial organizations—that is, with an exemption for nonpaid, nonprofit, nondramatic performances.

This would, among other things, permit serious music to be played by college orchestras, by amateur glee clubs or similar amateur groups. It would not, however, permit performances by professional musicians unless their services were contributed gratis. Consequently, there can he little fear that such an exemption would permit free broadcasts over ETV stations which are normally paid for on commercial stations,

courses.

and in no event would a dramatic work or dramatization of a nondramatic work be authorized without additional license.

3. Permission to record ETV programs under the ad hoc committee's proposed section 111 for wider use than under section 110. Section 110 permits so-called ephemeral recordings to be used for only 6 months after original broadcast. Such a restricted recording privilege, while perhaps acceptable to commercial broadcasters, simply will not suffice for educational television.

Since educational television funds are so scarce, the best possibility of sufficient financing for all but the most minimal production lies in the ability to rebroadcast programs and thus amortize costs over several years. Indeed, it would seem to us to be the height of folly to require a school that has with much effort and expense developed a good classroom telecourse to destroy it and reproduce the same television lessons over and over each academic year. This we feel can be cured only by the addition of a recording privilege along the lines proposed by the ad hoc committee in its recommended new section 111.

More than that, while not within the ad hoc committee's proposals, we would point out that even greater benefit can accrue from making it possible for recorded ETV programs to be exchanged between schools and colleges so that unnecessary duplication of teacher time and production expense can be avoided and as many educational institutions as possible can take advantage of the best teachers and

And we would ask the committee's permission to have appropriate ETV exchange agencies elaborate further on this point hefore these hearings end.

May I repeat, we are not, as some would seem to interpret, asking for blanket exemption from all royalty payments. We are asking only for the limited exemptions I have outlined above, and we are happy to see that among others the staff of the Rockefeller Brothers Fund, to whose report on the creative arts some allusion has been made in the past and probably will be in these hearings, has indicated recently that the report should in no way be viewed as inconsistent with our position here.

The prime educational television interest lies in availability-availability of content for programing and of programing for viewers, and availability without inhibitive clearance procedures or prohibitive royalty payments. And this availability, in our opinion, can be assured only through the continuation of an ETV exemption at least as broad as in the past.

In the music business, for example, performing rights necessary for television broadcast are licensed through three competing organizations; synchronization rights necessary for television recordings are ordinarily licensed through completely different agencies. Dramatic rights are usually but not always licensed by the publishers themselves, as are the orchestral parts necessary for a musical performance. Under S. 1006 as it stands, therefore, three or four different licenses would probably have to be negotiated to use a portion of a Menotti or Copland opera in an educational lecture on contemporary American music. Imagine, if you will, the plight of the individual ETV producer with a very low budget, in a small college station in the Midwest, attempting to clear the rights necessary for this single program element.

Or take the case of an ETV literature series. The book publishing industry has no standardized clearance system, but each publisher handles all clearance requests differently and according to its own lights. To use a portion of a copyrighted literary work would require a copyright search in Washington, D.C., to determine its status, and then long-distance negotiations with the New York publisher (who in turn might well have to consult with the author elsewhere in this country or abroad). The delay encountered in this process, even if by telephone rather than mail, is endless; the expense, even if no royalty is charged, is considerable; the time required on the part of production personnel, even if no outside attorney is required, is enormous. Worse, the chance of success in a sufficient number of cases to insure valid content for the program is not great-publishers are notoriously reluctant to consider television uses (even on ETV) where minimal or no royalties (as in ETV) can be charged.

As a philosophical matter, the educational television case is even stronger. The copyright law is premised upon public interest as well as private gain. Educational television enjoys many extraordinary Federal, State and local privileges—such as tax exemptions, Government grants, public facilities—simply because it is operated primarily for the general welfare on a completely nonprofit and noncommercial basis. No private gain can accrue from ETV stations; no advertising may be included in ETV broadcasts; no ETV broadcast time can be sold to commercial companies. As a result, it is is not surprising that the two Federal agencies closest to educational television, the Federal Communications Commission and the Office of Education, have officially indicated wholehearted opposition to discontinuance of the ETV copyright exemption. We welcome their support, and are confident that their official positions will be made known to you at an early date.

May we also express our thanks for permitting us to appear before this subcommittee so early in its hearings. We respectfully request, however, that we and other educational television organizations and agencies be given a further opportunity to amplify these rather cursory remarks, and to supply the subcommitee with a great deal more detailed information about educational television and its concerns in copyright revision.

(Subsequently, the following material was received and by order of the chairman, printed at this place in the record.)

EXHIBIT A

The Joint NET-ETS Music and Copyright Committee is currently made up of the following membership:

David M. Davis, Assistant General Manager for Television Station WGBHTV, Boston.

Miss Rhea Sikes, Director of School Services, Station WQED, Pittsburgh,

John Young, Director of Television, University of North Carolina, Chapel Hill.

William J. Lamb, Vice-President, Station WNDT, New York City.

Curtis W. Davis, Director of Cultural Programming, National Educational Television.

Eugene N. Aleinikoff, General Counsel, National Educational Television. The Committee has been appointed jointly by N.E.T., the national ETV network, and by E.T.S., the ETV station division of the National Association of Educational Broadcasters, to advise and represent the ETV stations affiliated with N.E.T. and/or members of E.T.S. on music and other copyright matters—including these copyright revision proceedings.

EXHIBIT B

EDUCATIONAL TELEVISION STATIONS AND STATE OR REGIONAL GROUPS

(NOTE.-All stations listed below are currently on the air, unless otherwise noted. Asterisk (*) denotes commissions or advisory groups concerned with state-wide educational television.)

Alabama: WCIQ, WBIQ, WDIQ, WAIQ, WEIQ, 2151 Highland Avenue, Birmingham, Alabama, Raymond D. Hurlbert, General Manager.

Arizona :

KAET, Arizona State University, Temple, Arizona ; Robert H. Ellis, Director of Broadcasting.

KUAT, Herring Hall, University of Arizona, Tucson, Arizona; Dr. Ben C. Markland, Manager & Program Director.

Arkansas: *Arkansas ETV Commission, 1515 W. 7th Street, Room 614, Little Rock, Arkansas: Lee Reaves (Expects to have first station on air by Sept. 1965).

California :

*The Governor's Advisory Committee on Educational Television, Department of Finance, The Capitol Building, Sacramento, California; Dr. Lawrence T. Frymire.

San Joaquin Valley Community ETV Association, 5132 North Palm, Fresno, California ; Rod Gibson, Exec. Dir. (Anticipated air date: late 1965, or early 1966).

KCET, 1313 North Vine Street, Hollywood, California ; James Robertson, Vice President & Manager.

KIXE, Northern California ETV Assn., Redding, California ; Martin Jacobson, Director of Development.

KVIE, Sacramento, California ; John C. Crabbe, General Manager.

KVCR, 701 S. Mt. Vernon Avenue, San Bernardino, California; Robert F. Fuzy, Manager.

San Diego State College, San Diego, California; Frank W. Norwood, (Anticipated air date : late 1965 or early 1966).

KQED, 525 Fourth Street, San Francisco, California, James Day, General Manager.

KTEH, County of Santa Clara, 70 W. Hedding Street, San Jose, California; Warren L. Wade, Station Manager.

KCSM-TV, College of San Mateo, 1700 Hillsdale Boulevard, San Mateo, California ; Dr. Jacob H. Wiens, Director.

Santa Barbara ETV Assn., 831 State Street, Santa Barbara, California; John Sink (Anticipated air date: 1966).

Colorado :

University of Colorado, Boulder, Colorado; Richard H. Bell, Director, RadioTV (Anticipated air date: 1966).

KRMA-TV, 1250 Welton Street, Denver, Colorado; Russell L. Casement, Executive Director.

Southern Colorado State College, Pueblo, Colorado; Gerald F. Caduff, Acting Director, ETV (Anticipated air date: late 1965).

Connecticut: WEDH, Connecticut ETV Corp., c/o Trinity College, Hartford, Connecticut; Ben A. T. Hudelson, General Manager.

District of Columbia : WETA-TV, 1225—19th Street, Washington, D. C.; William J. McCarter, General Manager.

Florida :

*Educational TV Comm., 303 Dodd Hall, Florida State Univ., Tallahassee, Florida ; William Galbreath.

Florida Atlantic University, Boca Raton, Florida ; Dr. Kenneth Rast, Williams, President, (anticipated air date: Sept., 1965).

WUFT, University of Florida, 234 Stadium, Gainesvile, Florida ; Dr. Kenneth A. Christensen, Director of Television.

WJCT, 2037 Main Street, Jacksonville, Florida; Fred Rebman, General Manager.

WTHS-TV, WSEC-TV, 1410 N.S. 2nd Avenue, Miami, Florida ; George Dooley, General Manager.

WMFE-TV, Mid-Florida Educational TV, Box 271, Orlando, Florida; A. F. Edmunds, Director of ETV.

WFSU-TV, 202 Dodd Hall, Florida State University, Tallahassee, Florida; Edward L. Herp, Director of Broadcasting.

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