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COPYRIGHT AWARENESS QUESTIONNAIRE
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Mr. KASTENMEIER. Now for a slightly different perspective, I think, we would like to call on Professor Peter Jaszi.

STATEMENT OF PETER JASZI, PROFESSOR OF LAW, WASHING

TON COLLEGE OF LAW, THE AMERICAN UNIVERSITY, ON BEHALF OF THE EDUCATORS' AD HOC COMMITTEE ON COPY. RIGHT LAW, ACCOMPANIED BY ALFRED SUMBERG, ASSOCIATE SECRETARY, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS

Mr. Jaszi. Thank you, Mr. Chairman, members of the subcommittee.

As you mentioned, I am accompanied today by Alfred Sumberg of the American Association of University Professors, and together we're here on behalf of the Educators' Ad Hoc Committee on Copyright Law. August Steinhilber, the chairman of our coalition, regrets that he couldn't appear before the committee today.

The Educators' Ad Hoc Committee represents nonprofit organizations which, in turn, represent virtually every school, college and library, public or religiously affiliated, from kindergarten through graduate level, in the United States. One of the main concerns of the committee has been the preservation of the limited right of educators and scholars to use copyrighted material that they need for their teaching and research.

The members of the ad hoc committee are in no sense hostile to the interests of small copyright proprietors. Indeed, many of our constituent organizations and their members own valuable copyrights and are concerned about protecting them against infringement. At the same time, we believe that the law of copyright exists to maintain a delicate balance between the interests of copyright owners on the one hand and the legitimate interests of members of the public who use copyrighted materials on the other hand.

Present section 505 of the Copyright Act is designed to maintain that balance by conferring on U.S. district judges the discretion to grant awards of attorneys' fees to prevailing parties, where appropriate, and the discretion to withhold such an award where, for example, a defendant has advanced a novel and significant defense in good faith, even though he or she may not ultimately have prevailed. We believe that, on the whole, the courts have exercised this discretion wisely and we believe to deprive them of it, as H.R. 671 proposes to do, would upset the balance of the heart of copyright.

Obviously, we are concerned that H.R. 671 makes no provision for relief from mandatory attorneys' fees in cases of wholly unintentional, inadvertent innocent infringement. But our concerns go further. Imagine, for example, the case of a university professor whose biography of an important literary figure is about to be published. Assume that in preparing the book the professor has paraphrased passages from sensitive diaries which the subject of the biography previously has deposited in a public archive. Assume further that the individual who is the author of the diaries and the subject of the biography sues the professor for copyright infringement, and that the professor believes that she was entitled to para

Now, as you know, the contours of the doctrine of fair use, especially in this context, are, to say the least, highly uncertain. Under the proposed legislation, this scholar would be discouraged from defending her right to use materials which she believes, in good faith, and perhaps correctly, she is entitled to use.

Note in particular that this not so hypothetical case doesn't fall under the language of H.R. 671, proposing exemptions for reproductions of copyrighted works created on or behalf of nonprofit educational institutions, because the use in question isn't the making of a reproduction within the meaning of section 106. It is the unauthorized creation of a derivative work.

One of our concerns with H.R. 671 is that it may encourage copyright proprietors to initiate litigation in cases like the one I just described, which could better be dealt with through other mechanisms for dispute resolution. Those cases may involve educational uses beyond the exemptions contained in 671, including, incidentally, uses undertaken by students—which are not within the coverage of 671—or uses by freelance scholars, journalists and others outside the educational community.

But we have another concern as well, that when such litigation is initiated, the effect of H.R. 671 would be to chill the assertion and litigation in perfect good faith of significant defenses to copyright infringement liability, and to coerce settlements in which defendants will be forced to forgo their proposed and perhaps lawful uses.

We want to note that, in practice, the present law relating to the award of attorneys' fees already tends to favor plaintiffs. Few, if any, courts require that the losing party be shown to have acted wilfully or in bad faith as a precondition to the award of attorneys' fees in favor of a successful plaintiff, while a number of courts demand such a showing before they will award fees to a prevailing defendant.

We are concerned, moreover, that the limitation of H.R. 671 to small businesses and individual plaintiffs provides no real safeguard. In practice, many, many plaintiffs, including a large number of economically powerful entities, would qualify for automatic awards of attorneys' fees under the terms of the bill.

Finally, we are not convinced that the reference in section 505 to "reasonable" awards of attorneys' fees, which is preserved in H.R. 671, provides any meaningful protection to a defendant in the position I sketched earlier. The case law under section 505 identifies a number of technical factors as bearing on "reasonableness"—the time and labor expended by the lawyer for the prevailing party, customary fees, the amount at stake in the case and the result, as well as the lawyer's reputation and experience. The case law would not appear to permit a district judge to take into account the merits of an unsuccessful defendant's argument, or the fact that that argument was advanced in good faith, in determining what qualifies as a "reasonable" award to a prevailing plaintiff.

In sum, H.R. 671 does little to restore the balance of interests in copyright law which it would upset. We think it represents an excessive response to a very real problem, excessive especially in the absence of any showing that plaintiffs have, in fact, been denied attorneys' fees in cases where such fees would have been warranted.

Thank you.

Mr. KASTENMEIER. Thank you very much, Professor Jaszi. [The prepared statement of Mr. Jaszi follows:)

STATEMENT ON BEHALF OF THE
EDUCATORS' AD HOC COMMITTEE ON COPYRIGHT LAW

BEFORE THE

HOUSE JUDICIARY SUBCOMMITTEE ON
COURTS, INTELLECTUAL PROPERTY AND THE ADMINISTRATION OF JUSTICE

ON
THE U.S. CONSTITUTION, SOVEREIGN IMMUNITY AND COPYRIGHT

H.R. 671
A BILL RELATING TO REMEDIES IN COPYRIGHT INFRINGEMENT ACTIONS

Thank you, Mr. Chaiman. I am Peter Jaszi, testifying on behalf of the Educators' Ad Hoc Committee on copyright law. 1 also am a professor of Law at the Washington College of Law of the American University, here in Washington, D.C. With me today is Alfred Sumberg from the American Association of University Professors. Mr. August Steinhilber, chairman of our coalition sends his regrets, unfortunately he was unable to appear before this subcommittee today. The Committee consists of nonprofit organizations representing virtually every school, college and library, public and religious affiliated, and from kindergarten through graduate education, throughout the country. We represent teachers, professors, librarians and school boards. One of the principal concerns of the Educators' Ad Hoc Committee has been the preservation of the limited right of educators and scholars to use material that they need for their teaching and research.

We do not support H.R. 671 both for broad philosophical reasons as well as and practical reasons. At the outset it should be noted that the proposed legislation is intended to add protection to certain copyright owners and may have the effect of diminishing the privilege of educators and scholars to use copyrighted materials in their teaching and research.

Our overall philosophical concern that we, in education, have expressed both to Congress and to state legislatures is that the United States has become too litigious in nature. Any legislation that encourages litigation should be met with concern by all and supported only if absolutely necesssary. H.R. 671 will encourage litigation. Litigation produces no wealth, no products and does not increase our nation's G.N.P. - it merely transfers wealth from one to another. We, in the United States, need to return a reward system based primarily on the production of goods and services.

resources are limited by taxpayers and others with ability or willingness to support education. Over the years the explosion in litigation has had a direct impact on education.

The cost of liability insurance has increased to the point that in many school districts it exceeds the cost of the book budget

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School districts are dropping activities courses and
programs such as field trips, use of volunteers, jungle
gyms, the pole vault, diving, science labs, vocational
education involving the use of industrial equipment
etc. In the field of copyright, we are seeing more and
more educators simply ceasing to use many copyrighted
materials, even for legitimate reasons, out of the fear
of liability for copyright infringement.

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We believe that one effect of this proposed legislation would be to encourage the filing of yet more unnecessary litigation against educators and educational institutions, in connection with disputes which might better be resolved through other means. In general, American law reserves awards of attorneys' fees for categories of situations in which the intervention of "private Attorneys General" is essential to further important goals of public policy, such as the vindication of civil rights. Of course, there is a public interest in seeing that the legitimate claims of copyright owners are vindicated. However, the Copyright Act already provides for the award of attorneys' fees to "prevailing" parties -- plaintiffs and defendants alike a discretionary basis, and we do not believe that it has been demonstrated that the present state of the law provides plaintiffs with too few incentives to resort to litigation (when necessary) to gain relief.

Significantly, in many of the areas of law in which attorneys' fees are provided for under statute, there is no significant public interest which countervails that represented by the private plaintiff in civil litigation. There is, for example, no public interest in encouraging any level of discrimination based on race, gender, or ethnic origin. of course, the law of copyright is another matter. In copyright, there is another, countervailing interest in seeing that members of the public be allowed to make the freest possible use of works of creativity which is legally allowable. The Congress must legislate cautiously in this field, so as not to disturb the historical balance between interests in the field of copyright. The proposed bill, which would provide for mandatory awards of attorneys' fees to successful plaintiffs only would tip the balance unjustifiably.

In stating our philosophical grounds of objection, I want to emphasize that while we are opposed to measures which encourage unnecessary litigation, we also object to measures which would

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