was merely technical and the damage, minimal. The broadcasters argued further that "important considerations of public policy" dictated unrestricted continuation of one of radio's greatest contributions to civilization *** the instantaneous communication of public events to the public throughout the world.134 The representative of the motion picture producers characterized this provision as a very salutary contribution. It was suggested on behalf of the producers that the exemption should not be limited to the depiction of current events, but should extend to all subject matter where the infringement was "incidental and not reasonably avoidable." This extension was deemed necessary by reason of the filming of pictures out of doors and possible inclusion of a work of art in the scene. 135 The debates on this controversial provision became more extended in the course of the Shotwell meetings. E. SHOTWELL (THOMAS) BILL, 1940 The Shotwell Committee considered the wide range of problems broadly associated with the question of fair use. These problems occupied a good deal of the time of the Committee. They ranged from the special problems of the scholar to appropriate limitations on performing rights. In addition to the provisions which ultimately appeared in the Thomas bill to be noted below, three proposals in the preliminary "Ware draft"136 version of the bill deserve mention. This draft contained a provision 137 which, like subsection 26 (6) of the Dallinger bill, was patterned after article 9(2) of the Berne Convention; it granted a qualified right of reproduction in the press with respect to articles of public interest. This provision was short lived as was subsection 18(c) which permitted the nonprofit exhibition of certain motion picture films. Of longer endurance was a provision protecting "fair dealing" for "the purpose of private study, research, review or newspaper summary." 138 138 In the course of the discussions on this section, the radio broadcasters sought to delete the word "private" on the ground that "study and research as well as criticism and review are intended for the public and not merely for private edification." It was accordingly urged that "the research should not be limited to private research either as to sponsorship or its dissemination." 139 The entire section was deleted after the Joint Committee on Materials for Research, apparently considering the position of the scholar more favorable under the case law, convinced all other interested groups except the book publishers that the attempt to codify the doctrine of fair use had been unsuccessful.140 134 Id. at 478. 125 Id. at 1020. 138 Ware Preliminary Draft dated April 7-12, 1939, 2 Shotwell Papers 226 (1939). The memoranda, minutes and proposals as collected and paginated in the U.S. Copyright Office are referred to herein as "Shotwell Papers". 1 Id. at 24, 2 Shotwell Papers 248 (1939). 13 Id. at 26, 2 Shot well Papers 250 (1939). 130 Memorandum, June 22, 1939, p. 12, 3 Shotwell Papers 289 (1939). 140 Memorandum, October 16, 1939, p. 9, 4 Shotwell Papers, 11 (1939-1941). The committee reported, "The attempt in Subdivision (f) to codify the doctrine of fair use was not successful and should be abandoned." Section 12 of the bill as actually introduced by Senator Thomas 141 took several different approaches to the question of fair use and covered a number of controversial situations. The provisions of subsections (f), (g), and (h) gave permission for translation incident to private study and research as well as for reproduction of single copies by libraries of unpublished or unavailable works needed for study or research. These subsections were drafted by a subcommittee on scholarship 142 and embodied to some extent the proposals of the Joint Committee on Materials for Research.143 The Joint Committee had emphasized the needs of the scholar at the outset of the proceedings.14 The general attitude of the Joint Committee is to be contrasted with that of the book publishers who charged that "professors and teachers are the chief pirates of literary matter." 145 Moreover, the authors had emphasized the question of limiting the scope of the protected class of "scholars," as well as the permissible number of copies; they also stressed the plight of authors whose writings were primarily intended for libraries and scholars.146 And Dr. Shotwell acknowledged the possibility of overprotecting the scholar by noting that "the scholar is, in his use of*** reproductive processes, taking the position of a quasi-publisher." 147 Subsection (h), which permitted libraries to make single copies of works unavailable to scholars and researchers, was highly controversial. ASCAP compared it with compulsory licenses for recorded music and questioned its constitutionality.148 The Authors League urged greater restrictions to preclude libraries from engaging in the publishing business "under the guise of scholarship." 149 The motion picture industry feared that the basic concept of this provision might spread to the field of motion pictures.150 On the other hand, the Joint Committee apparently felt that the provision did not go far enough since it did not cover privately printed copyrighted books. 151 should be noted that subsection (h) provided for the creation of a trust fund in the U.S. Treasury consisting of payments made by libraries for the reproduction of books which were out of print and unavailable. It The incidental infringement provisions consisted of an extension of the Duffy bill approach. Immunity was granted by subsection (b) to infringement in the course of simultaneous news reporting from the location in question; as in the Duffy bill, the excused infringement had to be "not reasonably avoidable." In addition, the view of the motion picture industry representative at the Duffy hearings 152 was apparently adopted in subsection (d) which permitted the inclusion of "a work of art visible from a public place" in a photograph, motion picture, or television broadcast. 141 S. 3043, 76th Cong., 3d Sess. (1940). 142 Ware Preliminary Draft, Note, p. 27, 2 Shotwell Papers 251 (1939). 143 Minutes of Meeting of Committee for the Study of Copyright (hereinafter, "Minutes") March 2, 1939, .12, 2 Shotwell Papers 65 (1939). Memorandum, July 15, 1938, 1 Shotwell Papers 18-20 (1938-1939). Id. at 39, 1 Shotwell Papers 166 (1938-1939). " Id. at 37, 1 Shotwell Papers 164 (1938-1939). Minutes, Nov. 21, 1938, pp. 16, 17, 1 Shotwell Papers 269-70 (1938-1939). Id. at 15, 1 Shotwell Papers 268 (1938-1939). See also Comparison of the Drafted Proposals of the lous Interested Groups prepared by Edward Sargoy, dated Nov. 16, 1938, at 17, 18, 1 Shotwell Papers 241 (1938-1939). Minutes, Mar. 2, 1939, p. 14, 2 Shotwell Papers 67 (1939). Id. at 13, 2 Shotwell Papers 66 (1939). See note 135, supra. Subsection (b) was the subject of considerable discussion, analysis, and controversy. ASCAP originally sought to limit application of the proposal to "events of a patriotic or political nature." 153 Concern was expressed over the use of the clause under consideration "for the purpose of infringing copyrighted works under the guise of depicting public events." 154 At a later stage, however, the Society took the position that the entire subsection should be eliminated because there was no reason why broadcasters and motion picture producers should be permitted to profit from the use of the property of copyright owners unless the consent of such owners is secured in advance. 155 ASCAP was prepared to "have the courts pass upon the question as to whether the use is a fair one." 156 On the other hand, the broadcasters and motion picture producers were proponents of the measure, insisting that they were confronted with the insuperable problem of "clearing" the use of the copyrighted music which might be played at a football game or a parade. 157 In commenting on the final draft of the bill, the framers explained that the immunity was to be limited to cases in which "permission of the copyright owner could not have been obtained in advance with the use of reasonable diligence." 158 And the broadcasters agreed to limit the exemption to cases in which the broadcasters received "no direct compensation." 159 The special immunity granted in subsection (d) with respect to works of art, though supported by music publishers and libraries,160 was sharply criticized by the songwriters as destroying copyright on works of art, since any public exhibition of a work of art would immediately remove copyright protection by permitting photographs to be taken and distributed.161 The motion picture industry was willing to qualify the immunity with the requirement that the use be "not for profit." 162 The book publishers also were of the opinion that the provision was too loosely drawn.163 Subsection (c), like subsection (d), was designed to "safeguard the taking of pictures of works of art and architecture when visible from a public place."164 Subsection (c) permitted all representations of an architectural work as long as they "are not in the nature of architectural models, designs, or plans." The copyright owner was in any event precluded from enjoining the completion or use of an ininfringing building. Subsection (a) complemented the limitation of musical performing rights to public performance for profit, found in section 1(e) of the Thomas bill. The remedies of the act were withheld in the case of a performance by a "bona fide charitable, religious, or educational 15 Minutes, June 13, 1939, p. 17,[3 Shotwell Papers 153 (1939). 154 [hid. 157 Id. at 5-7, 3 Shotwell Papers 141-143 (1939). 158 Notes and comments on the Draft of December, 1939, p. 11, 4 Shotwell Papers 240 (1939–1941). 159 Outline of changes in the Copyright Law Proposed by Broadcasters and Prepared for the Committee on the Study of Copyright, November 1, 1939, 1 Shotwell Papers 1236-123f (1938-1939). 168 Collected Comments Upon Sections of Copyright Bill Still on the Agenda, November 10, 1939, p. 6b, 4 Shotwell Papers 99 (1939-1941). 181 Memorandum, June, 1939, p. 5, 3 Shotwell Papers 265 (1939). 142 See note 160, supra. 163 Ibid. 184 Notes and Comments on the Draft of December, 1939, p. 12, 4 Shotwell Papers 241 (1939-1941). organization." Two provisos were attached. The entire net proceeds had to be devoted exclusively to charitable, religious, or educational purposes and no part of the proceeds could inure to the private benefit of a promoter. The second proviso was criticized as undermining the entire effect of the immunity;165 the book publishers, however, insisted on its inclusion.166 It might seem that this immunity is narrower than the general concept of a performance "not for profit." On the other hand, the proposal might conceivably excuse certain radio broadcasts which the courts had held were "for profit." In any event, the broadcasters strongly favored this provision, while the authors opposed it. The Shotwell provisions concerning fair use were elaborate and varied. They may perhaps be grouped under four general headings. (1) The needs of scholarship were recognized in subsections (f), (g), and (h). (2) For somewhat different reasons, broadcasters and televisors were permitted by section (e) to record their programs for private file and reference purposes. (3) Certain incidental infringements were excused by subsections (b) and (d). (4) The rights of the owners of copyrights in musical compositions and architectural works were specifically limited by subsections (a) and (c) so as to sanction certain uses of such works. IV. LAWS OF FOREIGN COUNTRIES 167 Most of the nations having copyright laws have enacted specific provisions concerning fair use. Many of these provisions are extensive and intricate. They often make specific mention of the different classes of copyrighted material open to use. The conditions and qualifications relating to fair use are often specified in some detail. Brief examination will be made of such limiting factors as the purpose or type of the use, the length of quotations and the requirement of acknowledgement, with attention being given to variations among different classes of work. Following this, a more detailed examination of the United Kingdom Act of 1956 will be made in order to afford an integrated picture of a single statute containing relatively extensive fair use provisions. Finally, pertinent provisions of international conventions will be noted. A. PURPOSE OR TYPE OF USE The most characteristic fair use provision sanctions limited use of copyrighted material for educational, scientific, or similar purposes including criticism and discussion. The privilege of using extracts for the purposes of criticism and review is frequently permitted by express provision. Representative provisions are found in the statutes of Brazil (art. 666(V)); Denmark (§ 13); France (art. 41); India (§ 52); Italy (art. 70); Lebanon (art. 149); Netherlands (art. 16); Rumania (art. 14); the United Kingdom (§ 6); and other British Commonwealth nations.168 165 Memorandum, October 16, 1939, p. 9, 4 Shotwell Papers 22 (1939-1941). 166 See note 160, supra, at 6, 4 Shotwell Papers 97 (1939-1941). 167 The statutes of foreign countries are translated in COPYRIGHT LAWS AND TREATIES OF THE WORLD (1956) which collection, including its 1957 supplement, is the basis for the discussion of all the foreign laws except the recent statutes of France (Law No. 57-298), India (Law No. 14 of 1957) and the United Kingdom (3 & 4 ELIZ. 2, C. 74). 168 E.g., Canada §17. The particular purposes or types of work entitled to the privilege are not uniform. Article 41 of the French law of 1957 contains fairly broad specifications; permitted are: Analyses and brief quotations justified by the critical, polemical, pedagogical, scientific, or informational character of the work in which they are incorporated. Even broader is the provision of the Portuguese law which includes publications for "religious or recreational" purposes as well as the more usual "teaching, scientific, literary, artistic" purposes.169 The desig nation of "literary" purpose, repeated in various other statutes,170 might seem sufficiently broad; the addition of "recreational" renders it difficult to imagine a purpose not covered. Additional uses and purposes specified in statutes embellish the general theme. For example, the Chinese law includes "reference purposes," 171 while the law of Japan permits quotations "to provide for the aims of a book of ethics." 172 The law of Argentina permits the publication of a photographic portrait for "cultural purposes" generally as well as in connection with events of public interest.173 And compilations and anthologies are frequently granted certain immunities.174 The charitable purpose or nonprofit character of a use are sometimes considered significant, but usually in connection with the privilege of performing a work publicly. Thus, the law of Denmark permits the performance of a musical composition not only in connection with teaching but during "popular meetings and *** festivals" where there is no admission fee or element of private gain. Public performance is also permitted: when the proceeds are devoted exclusively to charity or to other purposes of public benefit, provided the performers do not receive any payment.175 9 176 Private or personal use is sanctioned explicitly by more than 20 countries. Many statutes use the terms "private use" or "personal use. Others take a more indirect or limited approach. Thus the law of Brazil permits "the hand making of a copy of any work, provided that such copy is not intended for sale." in These provisions presumably sanction reproduction of the entire work. 177 B. THE AMOUNT OF MATERIAL A number of statutes prescribe, to various degrees of specificity, the amount of material which may be used freely by persons other than the copyright owner. Such a restriction is ordinarily imposed in conjunction with other limitations. This is not universally true, howUnder the German law, for example, "single passages or minor portions" of a published literary work may be used in any "independent literary work." 178 ever. 180 Art. 19. 17 E.g., Panamanian law. Article 1924 of the Administrative Code specifies "a definite literary purpose." The law of Chile permits reproduction of recitations and short extracts in "scientific, literary or critical works at public lectures or in educational texts." (Art. 11) [Emphasis added.] But such use must be "solely for the purpose of explaining the text of the work." in Art. 24(1). 173 Art. 30(3). 173 Art. 31. 174 E.g., Guatemala, Art. 17. 123 §14(h). 178 E.g., France (Art. 41, 2); Sweden (§ 10, subdivision 1); Austria (§ 42(1)); Turkey, Art. 38. 177 Art. 666 (VI). 178 § 19, 1. 56581-60 |