COMMENTS AND VIEWS SUBMITTED TO THE COPYRIGHT OFFICE ON FAIR USE OF COPYRIGHTED WORKS

By Harry G. Henn

APRIL 7, 1958.

* I am submitting my comments and views on the study on Fair Use prepared by Alan Latman.

*** [Professor Henn here made several valuable suggestions regarding certain details of the study.]

With respect to the summation of the issues (study, p. 34), I do not favor introducing into the U.S. law a statutory provision concerning fair use. Sincerely yours,

By Walter J. Derenberg

HARRY G. HENN.

APRIL 8, 1958.

I have now had an opportunity to read and consider the excellent study on Fair Use prepared by Mr. Latman. With regard to the issues on which our comments have been invited, page 34 of the Latman study, it would be my view that no general definition of "fair use" should be included in the statute and that the general applicability of the doctrine and its scope should be left to the courts.

I believe and the Latman study seems to bear this out-that the term "fair use" defies definition and that in the long run more would be accomplished if our courts would be entrusted with setting the outer limits for the doctrine as they have been under the Act of 1909. We have always been faced with the same problem when we are considering a definition of "unfair competition" and here, too, experience would seem to have demonstrated that the most progressive and advanced unfair competition law may be found in those countries whose statutes contain a general prohibition against all forms of unfair business conduct without attempting to enumerate each individual proscribed practice. Similar general provisions against unfair practices without any attempt to define the terms "fair" and "unfair" appear, as you know, in several international conventions and in section 5 of the Federal Trade Commission Act. Even the new Trademark Act of 1946, in section 33(b) (4) refers to a "defense of fair use" of a descriptive term or a person's own name without attempting to provide any additional statutory guidance to the courts in determining the scope of this defense. It would seem to me to be impossible to draft a general definition of "fair use" which would embody even all the tests and standards so ably set forth in the old leading case of Folsom v. March (Latman study, footnote 6) in 1841. I doubt whether any effort to define "fair use" by statute would make the task of our judiciary any easier even though Judge Augustus Hand, in Dellar v. Samuel Goldwyn, Inc., 104 F. 2d 661, 662 (2d Cir. 1939), referred to the "fair use" problem as "the most troublesome in the whole law of copyright."

Nor am I confident that if we had a general definition of "fair use," the decision in the recent parody case-Benny and Columbia Broadcasting Co. v. Loew's Inc., 116 USPQ 479 (1958)—would have been different and might not have resulted in a four to four split in the U.S. Supreme Court.

It would be my preference, therefore, to make no mention of the fair use defense in the proposed new statute, particularly if the latter should eliminate the distinction between common law and statutory copyright-as I hope it will so that no question may arise as to whether the fair use doctrine would be available only under the statute and not at common law.

On the other hand, after considering the new British Act and the recent report on copyright to the Royal Commission in Canada, I would like-in answer to question 3 of the Latman study-to see the proposed statute make provision with

regard to certain specific troublesome situations, without, however, going into as much detail as the new British Act and particularly without having a set of separate provisions for literary works on the one hand and works of art and designs on the other. I would favor the inclusion of some provision dealing with the library problem covered in section 7, subsections 1 and 2, of the new British Act; I see no reason why a similar set of rules should not be incorporated in our proposed law but would also agree with the Canadian report that subsection 2(d) should be modified and 2(e) eliminated. There is also much useful specific language in the remaining part of section 7 of the British Act.

I would also be in favor of a specific provision authorizing broadcasters to make so-called "ephemeral" recordings.

In order to protect the motion picture industry against certain "strike" suits, it might be feasible to adopt a provision similar to section 6, subsection 9(5) of the British Act to the effect that the copyright in an artistic work is not infringed by inclusion in a motion picture or television broadcast if it is used only incidentally and as background material. Some other specific problems might well be regulated, such as the problem of reconstruction of architectural works (sec. 6, subsec. 9(10) of the British Act), or some of the other exceptions enumerated in section 6. But let me reinterate that my basic approach would be to leave the fair use problem as flexible as possible and not to formulate a general definition which, as past experience has shown here and in other countries, could never satisfactorily serve as a uniform standard for the infinite variety of problems which center around the concept of fair use under copyright.

Sincerely yours,

WALTER J. Derenberg.

By John Schulman

APRIL 8, 1958.

I have read with great interest Mr. Latman's discussion of the subject of Fair Use.

My reaction to this phase of copyright law revision is very much the same as that which I have expressed concerning performing rights. The study discloses that the doctrine of fair use, although not defined in any single, precise sentence or paragraph, is well developed in our jurisprudence. It would be much better, in my opinion, to continue to rely upon these rules which have made a workable adjustment between the interests of the public and those of the copyright owners, than to upset that balance by a new statutory definition.

To most of us who are familiar with this branch of the law, the doctrine of fair use is reasonably definite. It is equally as definite as many legal criteria which we employ to advise clients from day to day. There is no mathematical formula, for example, by which to determine what constitutes negligence, or by which to determine what a reasonably prudent man would do in a given circumstance, but courts and lawyers apply the principle of these legal doctrines all the time. In exceptional situations the line of demarcation may be so hazy that the difference of opinion is extremely wide but for the most part there is little practical difficulty in applying the rules of law. Fair use depends upon so many factual circumstances that no adequate statutory language could be more definite and precise than the tests used by the courts, and no statute can cover every conceivable situation.

I think that our difficulties in this area do not stem from the absence of a statutory rule, but from ignorance of the jurisprudence. A greater knowledge about the doctrine of fair use and its application would allay many misconceptions and make a change of law unnecessary.

It is my view that no definition of fair use be attempted. Any report on the revised statute should state that the doctrine of fair use as developed in the courts of the United States is approved.

Sincerely,

The dominant impression that emerges from Mr. Latman's helpful study is that a statutory definition of fair use is inordinately difficult. Since I, for one, regard a liberal concept of fair use as essential to our American concept of copyright, it seems in one sense an abdication of responsibility to ignore the subject in the