COPYRIGHT INFRINGEMENTS (Audio and Video Recorders) WEDNESDAY, APRIL 21, 1982 U.S. SENATE, COMMITTEE ON THE JUDICIARY, The committee convened, pursuant to notice, at 9:29 a.m., in room 2228, Dirksen Senate Office Building, Hon. Charles McC. Mathias, Jr. (acting chairman of the committee) presiding. Also present: Senators DeConcini, Dole, Specter, Denton, Baucus, Metzenbaum, and Leahy. Staff present: Eric Hultman, general counsel. Subcommittee on Criminal Law staff present: Ralph Oman, staff director; Linda Colancecco, Charles Borden, and Peggy Williams, professional staff members; Grace Rienhoff, chief clerk; and Hamilton Peterson, staff assistant. OPENING STATEMENT OF SENATOR MATHIAS Senator MATHIAS. The committee will come to order. We are meeting today to consider the home taping copyright issue. What the committee wants to do is to strike a fair balance between the creative artists who make movies, television programs, and records; the home viewers and listeners who record these copyrighted works; and the manufacturers and retailers of newly developed taping equipment. The committee held a hearing last year on the bill that was introduced by Senator DeConcini to exempt home video taping from copyright liability. I think there is a general agreement about that. I think we ought to move as quickly as possible to make it clear that the Government does not intend to hinder anybody's ability to tape, at home or elsewhere, for private and personal use. We have all seen those cartoons that have appeared in the newspaper with sinister figures looking in at the windows, waiting to break in at the very first indication that somebody has activated a recording device. But, while protecting the public, I have a very strong sense that we also need to protect the rights of the creative artists-the writers, musicians, and film-makers, those who, after all, create the desire, who make it desirable, to do this home recording. So, preserving the copyright system's incentives to these artists to continue to produce artistic works of the very highest quality is clearly in (333) the interest of the public. We might, I suppose, call them the taping public. I recall that it was Dr. Samuel Johnson who observed two centuries ago that, "No man but a blockhead ever wrote except for money." My amendment to S. 1758 would protect all sides by exempting home taping for private purposes from copyright infringement while creating a compulsory license for copyrighted audio and video works, with the manufacturers paying a small royalty payment. The amount of the royalty would be set by the Copyright Royalty Tribunal. I believe this amendment is true to the Constitution, which provides, in article I, section 8, that: Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. We are fortunate to have with us today a long list of eminent witnesses. I have asked them to limit their remarks here to 5 minutes to save some time for discussion. Written statements will be included in full in the hearing record, which will be kept open for 3 weeks for submissions by interested parties who were not able to be scheduled this morning. Our second witness today is Miss Beverly Sills, the general manager of the New York City Opera. I know that Miss Sills could tell us that Puccini's heroine, Tosca, could live for art, but I think she would also agree that the modern artist needs something more to make ends meet. And I think we all know, as has been said, that, "A kiss may be grand, but it won't pay the rental on your humble flat, or help you at the automat." So we are here today to see if we can figure out a way to give our creative people more than just a grateful kiss as a response for their contributions to our society. Before we begin with the first witness I wish to place a copy of my amendment No. 1333. [Amendment to S. 1758 follows:] AMENDMENT NO. 1333 Purpose:......... III IN THE SENATE OF THE UNITED STATES-97th Cong., 2d Sess. S. 1758 To amend title 17 of the United States Code to exempt the private noncommercial recording of copyrighted works on video recorders from copyright infringement. March 4 (legislative day, February 22), 1982 Referred to the Committee on the Judiciary and ordered to be printed AMENDMENTS intended to be proposed by Mr. MATHIAS (for himself, Mr. BAKER, Mr. ROBERT C. BYRD, Mr. CRANSTON, Mr. STEVENS, Mr. BAUCUS, and Mr. HART) Viz: Strike all after the enacting clause and insert in lieu thereof: 1 That Congress hereby finds and declares that 2 3 4 5 6 7 8 (a) "to promote the Progress of Science and useful Arts," the Constitution of the United States empowers the Congress to give authors and inventors for a limited time "the exclusive Right to their respective Writings and Discoveries"; (b) the copyright system has helped make the United States a dynamic force in art and culture; 2 (c) this system benefits both the creators of intellectual property and the consuming public—the creators by providing fair compensation and thereby the incentive to create new works, and the consumer by assuring a rich and ever-increasing variety of works from which to choose; (d) copyright owners should receive fair compensation for their creative endeavors and the use of their property; (e) home recording devices and media are designed, used and promoted to the public for the purpose of reproducing copyrighted material; (f) the reproduction of copyrighted musical works, sound recordings and motion pictures and other audiovisual works by means of home recording devices and media infringes on the exclusive rights granted to copyright owners under section 106(1) of title 17, United States Code; (g) nonetheless, individuals who make audio and video recordings in the home for private use should be relieved of any and all liability for such infringement; (h) to ensure that the public continues to enjoy uninterrupted access to this copyrighted material, a compulsory license will be established for importers AMDT 1333 3 1 2 3 4 5 6 7 8 and manufacturers of recording devices and media who commercially benefit from such infringement; and (i) the Copyright Royalty Tribunal shall determine fair compensation to the copyright owners: Provided, however, That no system of compensation will impose a direct liability on the individual who uses recording devices and media in the home for private purposes. SEC. 1. Chapter 1 of title 17 of the United States Code 9 is amended by inserting at the end thereof the following new 10 section: 11 "§119. Limitation on liability: Video recording 12 “(a) HOME VIDEO RECORDING.-Notwithstanding the 13 provisions of section 106(1), an individual who makes a single 14 video recording of a motion picture or other audiovisual work 15 in his or her private home is exempt from any liability for 16 infringement of copyright if the video recording is for the 17 private use of that individual or members of his or her imme18 diate household. 19 "(b) COMPULSORY LICENSE FOR VIDEO RECORDING 20 DEVICES AND MEDIA. 21 22 23 24 25 "(1) Notwithstanding the provisions of section 106(1), the importation into and distribution in the United States, and the manufacture and distribution in the United States, of any video recording device or video recording medium shall be subject of compulsory AMDT 1333 |