and then to make clear that any further act by which that initial performance or exhibition is transmitted or reproduced constitutes an additional performance or exhibition. For example, a singer would be performing when he sings a song; a broadcasting network would be performing when it transmits his performance, whether it is live or on records; a local broadcaster would be performing when he transmits the network broadcast; a community antenna service would be performing when it retransmits the broadcast to subscribers over wires; and any person would be performing a work whenever he plays a phonorecord of it or reproduces a performance of it on his radio. or television set. The definition of "publicly" in subsection (b) would, in general, exempt private performances and exhibitions from the copyright owner's control, and the limitations in the remaining sections of the chapter, especially section 109, would further narrow the scope of his rights.

Under clause (1) of section 106 (b), to "perform" a work means "to recite, render, play, dance, or act it." This includes, for example, the reading aloud of a literary work, the singing or playing of music, the dancing of a choreographic work, and the acting out of a dramatic work or pantomime. A work may be performed "either directly or by means of any device or process," and these devices or processes would encompass sound or visual reproduction equipment of all kinds, amplifying systems, radio and television transmitting and receiving apparatus, electronic retrieval devices, and a host of other techniques, undoubtedly including some not invented yet. In the case of a motion picture, performance would mean "to show its images or to make the sounds accompanying it audible." It would be clear under this language that the purely aural performance of a motion picture sound track would constitute a performance of the motion picture; but, if the sounds on the soundtrack are reproduced on an authorized phonorecord, performance of the phonorecord would not be a performance of the motion picture.

In general the concept of "performance" must be distinguished sharply from the reproduction of copies on the one hand and the exhibition of copies on the other. It has been suggested that some of the internal operations of a computer, such as the scanning of a work to determine whether it contains material the user is seeking, is closely analogous to a "performance." We cannot agree, and for this reason we deleted from the definition of "perform" the ambiguous term "represent" which appeared in the 1964 bill. A computer may well "perform" a work by running off a motion picture or playing a sound recording as part of its output, but its internal operations do not appear to us to fall within this concept.

Section 106 (b) (2) defines "exhibit" as meaning "to show a copy of [the work], either directly or by means of motion picture films, slides,

television images, or any other device or process." Since the definition of "copy" in section 101 includes the material object in which the work was first fixed, this right of exhibition applies to an original work of art as well as to any reproductions of it. It would also apply to individual frames or stills from a motion picture since individually they represent "pictorial" or "graphic" works; however, as mentioned earlier, the showing of the frames of the motion picture in sequence would constitute a "performance" of the motion picture and not an "exhibition." Under this definition it would be an "exhibition" to show a copy of a work directly, to project an image of it on a screen by means of any device, including opaque, overhead, and motion picture projectors, or to transmit an image of the copy by any electronic or other means.

Since introduction of the 1965 bill a problem has been raised in connection with this definition which deserves further consideration. It arises from the well-established use of the word "exhibit" in the motion picture industry to refer to the performance of a motion picture. As used in the bill the word "exhibit" is intended to refer to the display of a copy of the copyrighted work or of an image of a copy of it, but not including the performance of a motion picture. We agree that using this term in a sense contrary to its usage in the film industry is likely to result in confusion and misunderstandings, especially in connection with the limitations and exemptions provided in sections 108 and 109. For this reason we agree that "display" might be a better operative word than "exhibit" in section 106(a)(5) and elsewhere in the bill.

The definition of "publicly" in connection with the rights "to perform" and "to exhibit" was a particularly difficult nut to crack. The 1961 Report agreed generally with the view that performances in "semi-public" places such as clubs, lodges, factories, summer camps, and schools should be regarded as "public," and noted its disagreement with the decision in Metro-Goldwyn-Mayer Distributing Corp. v. Wyatt, 21 C.O. Bull. 203 (D. Md. 1932) which suggested otherwise. It despaired, however, of being able to draft a definition that would draw a satisfactory line between public and private performances. We were encouraged to attempt a statutory definition by a number of persuasive arguments that the question is too important to leave open, and that the decision in the Wyatt case should be expressly overturned by defining “publicly" to include performances in “semipublic" places. The result of these arguments appears in clause (3) of section 106(b):

To perform or exhibit a work "publicly" means:

(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 family and social acquaintances is gathered;

(B) to transmit or otherwise communicate a performance or exhibition of the work to the public by means of any device or process. 47-330-65

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Under the first part of clause (A) a performance or exhibition would be "public" if the place where it occurred is "open to the public," regardless of the number of persons present at the particular time. The second part of the clause is based on provisions found in several foreign copyright laws, which define "public" in terms of assemblages of a substantial number of persons other than those constituting a family or social circle. As it appeared in the 1964 bill the phrase read: "*** any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; ***." It was pointed out, however, that at least technically this language would not include the social acquaintances of a single individual, and the words "a" and "its" were dropped in an effort to meet this point. This change has in turn been criticized as broadening the concept too much, and the definition could probably stand some further revision to make clear that it would include performances and exhibitions before a substantial gathering in clubs and lodges as well as in camps, schools, and factories.

Clause (B) of section 106(b) (3) is intended to make clear that, in addition to performances and exhibitions occurring in a public place as defined in clause (A), it is also a public performance or exhibition “to transmit or otherwise communicate a performance or exhibition of the work to the public by means of any device or process." Section 101 provides:

"To 'transmit' a performance or exhibition is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent."

Clause (B) and the definition of "transmit" replace language in earlier drafts employing phrases such as "broadcast," "retransmitted," "over wires or otherwise," "rebroadcasting," "diffusing," and "rediffusing." Not only was the use of many different terms confusing, but the meanings ascribed to them did not always correspond with their usage in the communications industry in this country. In particular, we were urged not to use the word "broadcast" in a sense different from its meaning in the Federal Communications Act.

We have therefore adopted the phrase "transmit or otherwise communicate *** to the public" to cover every method by which the images or sounds comprising a performance or exhibition can be picked up and conveyed to the public. This concept would include, among other things: direct amplification (as over a loud speaker system); transmission over wires or other connections; wireless transmission by the originating transmitter and by any other transmitter who picks up his signals and passes them on; and further transmission, over wires, of a wireless transmission. Likewise, although probably also covered under clause (A), it would include performances in public

places resulting from the playing of records on jukeboxes and other sound reproducing equipment and from the reception of wired or wireless transmissions.

In effect, the definition is intended to cover every transmission, retransmission, or other communication of a performance which reaches "the public." The 1964 bill contained language exempting transmissions by someone acting "as a common carrier," the thought being that a corporation merely leasing wires or equipment for the intermediate transmission of signals to other transmitters, rather than to the public, should not be subjected to liability to the copyright owner. It was pointed out that the concept of "common carrier" might be extended unjustifiably to some commercial transmitters to the public, and we have therefore dropped this exception as ill-advised. We are convinced that purely intermediate transmissions should be exempt, but that an express exemption is not necessary to exclude them.

As already noted, section 109 provides a number of limitations on the rights of copyright owners, including exemptions for certain types of broadcasts and transmissions. Involved in these exemptions are some extremely controversial issues, especially those involving educational broadcasting and community antenna systems. These and related questions will be discussed in Part E of this chapter.

C. FAIR USE

Although it is not mentioned in the present statute, the doctrine of fair use, as it has been developed in a long line of court decisions, is probably the most significant and widely applicable of the limitations on the copyright owner's exclusive rights. The 1961 Report described the general scope of the doctrine and gave a number of examples of cases where the concept would be relevant. It was acknowledged, however, that fair use "eludes precise definition" and that, because of the number and variety of situations in which fair use could be involved, "it would be difficult to prescribe precise rules suitable for all occasions."

The Report concluded that "the doctrine of fair use is such an important limitation on the rights of copyright owners, and occasions to apply that doctrine arise so frequently, that we believe the statute should mention it and indicate its general scope." As a special aspect of fair use the Report also discussed the problem of photocopying by libraries for research purposes, and recommended that the statute include provisions permitting a library to supply single photocopies under specified conditions and within certain limits.

These recommendations were carried over into the preliminary draft of 1963. Section 6, dealing with the general concept of fair use, provided:

All of the exclusive rights specified in section 5 shall be limited by the privilege of making fair use of a copyrighted work. In determining whether, under the circumstances in any particular case, the use of a copyrighted work constitutes a fair use rather than an infringement of copyright, the following factors, among others, shall be considered: (a) the purpose and character of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, and (d) the effect of the use upon the potential value of the copyrighted work.

Section 7 was a rather elaborate provision which, in general, would have permitted libraries to supply a single photocopy of one article (or other contribution or excerpt) from a copyrighted work, or a single photocopy of an entire work if it were out of print.

The language of section 6 met with a certain amount of favor, but section 7 was strenuously opposed on all sides. Author and publisher groups attacked section 7 as opening the door to wholesale and unrestrained copying by libraries which, as reproduction equipment improves, could supplant the copies offered for sale by publishers and undercut the author's main source of remuneration. Library groups were equally vehement in opposition to the proposals, which they argued would curtail established services and prevent the free utilization of new devices in the interests of research and scholarship.

In a way the comments on section 7 of the preliminary draft represented an interesting case study. Opposition to the provision was. equally strong on both sides but for exactly opposite reasons, with one side arguing that the provision would permit things that are illegal now and the other side maintaining that it would prevent things that are legal now. Both agreed on one thing: that the section should be dropped entirely. We also became convinced that the provision would be a mistake in any event. At the present time the practices, techniques, and devices for reproducing visual images and sound and for “storing" and "retrieving" information are in such a stage of rapid evolution that any specific statutory provision would be likely to prove inadequate, if not unfair or dangerous, in the not too distant future. As important as it is, library copying is only one aspect of the much larger problem of changing technology, and we feel the statute should deal with it in terms of broad fundamental concepts that can be adapted to future developments.

The decision to drop any provision on photocopying tended to increase the importance attached to including a general section on fair use in the statute. Thus, in the 1964 bill, further language was added