step progress. This consideration is often linked to the constitutional support for fair use as an indispensable tool in the promotion of "science." Practical necessity and constitutional desirability are strongest in the area of scholarly works. Similarly, in reviews of a work, a certain amount of reconstruction is often necessary; and in burlesque, the user must be permitted to accomplish the "recalling or conjuring up of the original." Of more questionable necessity is the use of an earlier work in the preparation of a compilation. However, extensive use of earlier works as guides and checks appears to be common in this type of work which, although perhaps not achieving the intellectual aims inherent in the constitutional objective of copyright, does produce useful publications. (3) The rights of the copyright owner may often be limited because of a public policy quite apart from any questions of copyright. Thus, the limitations on performing rights in favor of charitable, educational, or religious organizations seem to reflect a policy of indirect Government support for such organizations. In this sense, they are perhaps more akin to tax exemptions than to problems peculiarly related to copyright. Moreover, the right of the Government to use copyright material springs from the unrelated doctrine of sovereign immunity. An independent public policy would also seem to dictate free use of copyrighted material for the purposes of judicial proceedings or reports of judicial proceedings as insured by the new British statute. (4) It may well be that the theory of implied consent, frequently is fictitious; it thus fails as an overall basis of fair use. But this theory does have vitality in certain areas. There are situations in which authors generally (not necessarily the plaintiff) permit a particular use. Such can be said for reviews and criticism.213 Perhaps implied consent can be extended to any use which enhances, rather than impairs, the value of the copyrighted work, but such a rule might require fine-line drawing and difficulties of proof. The creation of a "utilitarian" work such as a form book clearly implies consent to put the work to its intended use. More equivocal is the "dedication" of a musical composition to a professional football team, held in Karll v. Curtis Publishing Co., 214 to imply consent to any reasonable use associated with the team. There are two general approaches to the implementation of the various policy considerations discussed above. One approach is the development of broad ground rules for the determination of fair use. These might include general statements of the permissible purposes for which copyrighted material may be used, conditioned with respect to the amount of such material and the effect of the use on the original work. The other approach is to seek to solve specific problems by specific answers. By and large, statutory provisions, particularly proposals for legislative revision in the United States, have attempted only the latter course. Thus, the Shotwell bill sought to cover such things as recordings by broadcasters for private file use, and incidental infringement in the course of the depiction of current events. It is true that those provisions of foreign laws which specify maximum amounts of material that may be reproduced cover the area of fair use more generally. * See Cane, "Why Ask for Permission?", Saturday Review of Literature, July 1, 1950, p. 20. #439 F. Supp. 836 (E.D. Wis. 1941). But even the foreign laws are often limited to particular situations or classes of works. American case law, on the other hand, rarely involves some of the special situations covered by past legislative proposals. Thus, we find no reported cases directly involving literary criticism or review, use of material for the purposes of litigation, personal or private use, or copying by libraries for scholarly use.215 Rather, the cases have dealt primarily with fringe uses by competitors, particularly in the compilation and lawbook fields, and more recently with parody and burlesque. Accordingly, they reflect, albeit case by case, and attempt to draw more general guidelines. The fact that cases and statutes frequently deal with different situations can be quite significant. It may indicate that the statutes attempt in some respects to codify established practices which are so well accepted that they do not produce litigation. Perhaps some of the provisions seek to clarify situations involving technical infringements which are ignored by copyright owners. The statute may attempt either to anticipate problems or to effect workable compromises prior to the development of a practical problem into the litigation stage. In view of the foregoing, the possibilities for treatment of the problem of fair use in a new statute include the following: (1) Follow the approach of the Senate committee in 1907 and maintain the present statutory silence on the question.-This approach would be based on the premise that the 1909 decision has proved neither illadvised nor out of date. Arguably, the question of fair use, as merely one dimension of the problem of infringement, is as peculiarly susceptible to case-by-case solution as infringement itself. It could be urged that no statute can effectively cover questions of quantity, shadings of purposes and competitive effect and the like. To select narrow areas for solution might be inequitable unless there are special problems of practical significance to be resolved. This line of argument was suggested by the approach of ASCAP with respect to the incidental infringement provision of the Shotwell bill. As already noted, ASCAP was quite prepared to leave the question to the courts. The society also argued that "there is no exemption under existing law, and no hardship has resulted."216 (2) Recognize the doctrine and grant it statutory status in broad terms, without clarifying the meaning accorded fair use by the courts.—This approach was followed in the Sirovich bills of 1932 which did not define or elaborate upon the expression "the fair use of copyrighted matter." The bills did, however, require acknowledgement, a condition which could be attached or ignored in a new proposal.217 This proposal for statutory recognition in general terms may be subject to criticism on the ground that it is superfluous or may, no matter how well drafted, be read as an inadvertent modification of the case law.218 (3) Specify general criteria.-This would represent the boldest attempt to treat the problem. It could take the shape of codifying the common law, by merely specifying relevant factors such as the quan 215 See Smith, op. cit., note 67, supra, 46 Law Lib. J. at 205. 216 Memorandum, June 20, 1939, p. 3, 3 Shotwell Papers 227. 217 A required acknowledgement does vitiate some of the harmful effects of unauthorized appropriation; it could serve as a safety valve against certain piracies which presently would rely on the fair use doctrine if called to account. 218 See discussion of the effect of the patent law codification in 1952 in Note, 66 HARV. L. REV, 99 (1953). tity of the material used, the purposes of the use, the noncompetitive and incidental character of the use, etc. Or it could provide for controlling effect for certain factors, for example, by making acknowledgement a condition precedent, or by specifying the permissible amounts of material that may be reproduced. A somewhat greater degree of predictability would be the objective of such an approach. This approach is beset by the practical obstacles facing any attempt to codify common law or to legislate in an area of subtle factual interaction. It might be that the established judicial doctrines would survive to fill the gaps which might be left by the new statute. Of course it is possible to specify general criteria in such a way as to curtail as well as enlarge or recognize the judicial doctrines of fair use. This was done in the Dill bill which permitted no quotation if permission was expressly denied. (4) Cover specific situations.-Recognizing the difficulties of formulating general effective rules in this area, Congress might follow the general approach of past revision proposals and attempt to cover certain specific situations calling for clarification. (a) There are certain situations which are presently effective and would require mere recognition by the statute. These stem either from general acceptance as to what the law is, without any reported cases on the subject, or technical violations of copyright which, for practical and other reasons, are never pressed. These would include the use for the purposes of criticism or review or litigation. (b) Other situations have not been completely resolved in actual practice. One of the more notorious of these presently is burlesque or parody. Legislative solution of this question might take many forms; in the last analysis it would be directed at the question whether or not the burlesque form of entertainment requires special concessions because of the policy considerations discussed above. The considerations most directly involved appear to be (i) the practical necessity of extensive use of the work being burlesqued in order to create the burlesque, and (ii) the benefit, rather than harm, conferred upon the original work. Judge Carter in the Sid Caesar case appeared to have been impressed by the argument of practical necessity. But this argument presupposes the desirability of supporting burlesques. One writer has suggested that increased protection of copyright owners at the expense of burlesquers is perhaps "to be welcomed as a spur to more original and ingenious entertainment." 219 The defendants in the Loew's case, on the other hand, warned that the death knell to the art of burlesque, predictable from an adverse decision, "would be a frontal attack on freedom in our democracy." Judge Carter also emphasized in Loew's the importance of the commercial nature of the defendant's work, thereby distinguishing burlesque from a more scholarly endeavor. But it has been noted that: The trouble with this commercial-noncommercial distinction is that both commercial and artistic elements are involved in almost every work.220 Another area which has become disturbed by recent developments is the field of personal use. Photoduplication devices may make authors' and publishers' groups apprehensive. The Copyright Charter recently approved by C.I.S.A.C. emphasizes the concern of Note, 31 NOTRE DAME LAW. 46, 54 (1955). Note, 56 COLUM. L. REV. 589, 594 (1956). authors over "private" uses which, because of technological developments, are said to be competing seriously with the author's economic interests. On the other hand, it has been argued that, at least with respect to books, "none of the photographic processes can compete with the book in print either in price per page or convenience of use."'221 Perhaps another area for special treatment is that of incidental use in motion pictures and broadcasts of public spectacles, dealt with in the Shotwell bill. Whether this is presently an area of controversy is not known. In covering specific situations, Congress might choose to affirm or reverse the judicial disposition of a particular issue. An indirect example of the latter approach is found in the reaction to the famous British Colonel Bogey case 222 wherein a brief excerpt from plaintiff's musical composition was included in a newsreel and deemed an infringement. This gave rise to the provisions in the Duffy and Shotwell bills excusing such incidental infringements. VI. SUMMATION OF THE ISSUES 1. Should a statutory provision concerning fair use be introduced into the U.S. law? 2. If so: (a) Should the statute merely recognize the doctrine in general terms and leave its definition to the courts? (b) Should the statute specify the general criteria of fair use? If so, what should be the basic criteria? 3. Should specific situations be covered? If so, what specific situations? 221 Shaw, op. cit., note 66, supra, at 302. 222 Hawkes & Son, Ltd. v. Paramount Film Services, Ltd. [1934] 1 Ch. 593; 50 T.L.R. 363. |