third, since the problem of accommodating the interests of science with those of the publishers (and authors) calls fundamentally for legislative solution or guidance, which has not yet been given, we should not, during the period before congressional action is forthcoming, place such a risk of harm upon science and medicine."

Id. at 1354.8

The analysis used by the Court of Claims in Williams & Wilkins is instructive in comparing the two cases and in deciding the issues presented here. The purpose and character of the use, which is the first factor considered by the courts in determining whether a given use is fair, is similar in both cases. Both sets of defendants have been providing services on a strictly noncommercial basis to a limited class of requesters for the purpose of promoting two traditionally favored areas of endeavor: science and education. Although the plaintiffs argue that a distinction should be drawn between the two uses because scientific research is more creative than education, there is no support for this distinction in the case law. As to the first factor, the parallels between the two cases are strong.

But as to the factors of the substantiality of the copying and the effect of the copying on the copyright owner's market, the two cases are distinguishable. In Williams & Williams, the requests normally were limited to single articles of fifty pages or less. In this case, the entire copyrighted film is being reproduced. Although the medical library did copy entire articles, each of which could be considered a discreet whole, there is nevertheless a significant difference between carrying an article out of a medical journal and reproducing an entire copyrighted work. In the latter case, the potential impact on the coypright owner's market is much greater because the reproduction is interchangeable with the original. The substantiality and extent of BOCES' copying clearly exceeds that of the medical libraries.

As to the impact on the copyright owner's market, the court must assume for purposes of this motion that BOCES' practices have had or will have a substantial effect on the plaintiffs. In William & Wilkins, in contrast, the court found the effect on the market to be minimal. Id. at 1357-59. This difference is economic impact between the two cases arises out of their different procedural postures. The Williams & Wilkins decision followed a full trial on the merits. After the plaintiff had an opportunity to demonstrate the effect of the photocopying on the market for medical journals, the court concluded that it had failed to show that it would be substantially harmed by the defendants' practices. Here, in contrast, the case arises on the plaintiff's motion for preliminary relief. The question of the effect of BOCES' videotaping on the plaintiffs' market for educational films has not yet been tried. Although BOCES has made a noteworthy attempt to show through premilinary discovery that the plaintiffs have not suffered any economic loss or impairment of their market, the plaintiffs' affidavits contain allegations to the contrary.10 These allegations raise substantial questions of fact, which can be decided only after a full trial record has been developed. Since the burden of establishing fair use is on the defendant and since the plaintiff in a copyright case is presumed to suffer irreparable injury, the court must assume for purposes of this motion that the plaintiffs are capable of proving their allegations."

9

A final distinguishing factor between this case and Williams & Wilkins is BOCES' ability to avoid disruption of classroom services by entering into licensing agreements with the plaintiffs pending resolution of this case. One of the three considerations cited as controlling by the court in Williams & Wilkins was the injury to medical research that would result if the court found copyright infringement. Id. at 1360. Here, any injury can be avoided pending a final decision, and the plaintiffs' bond provides a ready source of recovery should BOCES ultimately prevail.

8 Congress responded to the court's call for a legislative solution in § 108 of the Copyright Revision Act, which authorizes the type of photocopying engaged in by the defendants. In enacting 108, Congress stated that it did not intend to "take away any rights existing under the fair use doctrine." H.R. Rept. No. 94-1476, supra n.2, at 74. The court's analysis in Williams & Wilkins therefore remains valid today as to questions left open by the new Act.

See Supplemental Memorandum in Opposition to Plaintiffs' Request for a Preliminary Injunction at 2, and affidavits of Carl B. Kustell dated December 16, 1977 and December 23, 1977.

10 Affidavits of Ivan R. Bender, dated September 28, 1977; David M. Davidsen, dated September 1, 1977; Richard W. Schilling, dated October 5, 1977; John J. Urtis, dated September 30, 1977.

This is not to say that BOCES, like the defendants in Williams & Wilkins, will not be able to prove the absence of economic harm at trial, which would require a reassessment of the fair use defense. For purposes of determining whether the plaintiffs have demonstrated probable success on the merits, however, the issue of economic loss must be found in favor of the plaintiffs.

The scope of BOCES' activities is difficult to reconcile with its claim of fair use. This case does not involve an isolated instance of a teacher copying copyrighted material for classroom use but concerns a highly organized and systematic program for reproducing videotapes on a massive scale. BOCES had acquired videotape equipment worth one-half million dollars, uses five to eight full-time personnel to carry out its program, and makes as many as ten thousand tapes per year. For the last twelve years, these tapes have been distributed throughout Erie County to over one hundred separate schools.

Considering all of these factors, I find that the plaintiffs have established a prima facie case entitling them to preliminary relief. As BOCES points out, the applicability of the defense of fair use raises numerous questions of fact which cannot be resolved without a full trial on the merits. At this stage in the proceedings, I find that the substantiality of the copying and the possible impact on the market for education films tip the balance in favor of the plaintiffs, outweighing BOCES' noncommercial, educational purpose in copying the films.

In its post-argument papers, BOCÊS raises the additional claim that most of the television programs which it videotaped were purchased by WNED-TV with state funds, and that these appropriations were made to WNEĎ for the purpose of providing instructional broadcasts for the public schools at no cost to the schools. BOCES argues that the plaintiffs are seeking to force the state to pay twice for the use of their films and that the appropriations would not have been made if the instructional programs could not be utilized by the schools through videotaping. At this time, the record does not contain sufficient information pertaining to this claim to defeat the plaintiffs' application for preliminary relief. This possible defense should be developed at trial.

III. The final point to be addressed is BOCES' contention that the plaintiffs' laches in bringing this motion bars their claim for preliminary relief.

Although the plaintiffs may have been aware for some time of the practice of some educational institutions of videotaping their copyrighted films, on the present record it appears that the plaintiffs had no knowledge of BOCES' practices until December of 1976 and therefore could not have sued BOCES until that time. Their delay in raising the infringement question in the courts, caused at least in part by their attempts to reach an out-of-court compromise solution to a difficult and complex problem, should be commended rather than condemned.

As to the ten-month delay between the time that the plaintiffs received BOCES' catalogs and the time that they filed a complaint against BOCES, I recognize that the organization and planning of a lawsuit involving multiple plaintiffs and substantial legal claims require time. On the present record, I am not willing to find that the ten-month delay was so excessive as to preclude preliminary relief.

The cases cited by the defendant are readily distinguishable from this case because they involved substantial questions of fact as to whether the defendant had in fact copied the plaintiff's copyrighted material. Slifka v. Citation Fabrics Corp., 329 F. Supp. 1392 (S.D.N. Y. 1971); Gianni Cereda Fabrics, Inc. v. Bazaar Fabrics, Inc., 335 F. Supp. 278 (S.D.N. Y. 1971), Klauber Brothers Inc. v. Lady Marlene Brassiere Corp., 285 F. Supp. 806 (S.D.N. Y. 1968). These disputes decreased the likelihood that the plaintiffs would succeed on the merits, rendering. preliminary relief less appropriate than in cases such as this where the copying is admitted.

IV. The plaintiffs have established their entitlement to preliminary relief. Accordingly, I direct that BOCES be enjoined from videotaping the plaintiffs' educational films or programs off the public airwaves. If this order unduly disrupts educational plans, BOČES can obtain licenses from the plaintiffs for use of the films. As to films which have already been videotaped and are incorporated into the curricula of the BOCES' school districts, however, I find that the public interest would be served if BOCES is allowed to continue distributing such tapes to the schools. The interests of the plaintiffs will be adequately protected if BOCES, in cooperation with the school districts, implements a plan to monitor the use of the tapes in the schools and to require their return and erasure within a specified time period.

The parties are directed to meet with the court on March 3, 1978 at 9:00 a.m. to frame an order complying with this decision.

So ordered.

Dated: February 27,

1978.

JOHN T. CURTIN,
U.S. District Judge.

OFF-THE-AIR VIDEORECORDING, FACE-TO-FACE
TEACHING, AND THE 1976 COPYRIGHT ACT

Roger D. Billings, Jr.*

I. INTRODUCTION

With the advent of new technology, copyright owners have been worried that schools and universities have gained access to audiovisual materials without payment or clearance. A recent incident justifies their concern. The Salt Lake City District School taped ten Walt Disney motion pictures off-the-air without payment or clearance. They kept the tapes in their library and allowed them to be aired publicly over their school television system. After Walt Disney Productions put them on formal notice, the school district agreed to stop any activities which would infringe Disney copyrights. They agreed to erase any tapes containing the copyrighted works and not to tape Disney's copyrighted motion pictures in the future.'

The problem of marketing audiovisual materials to non-profit educational institutions will be discussed in this article. The problem is acute because the Copyright Act of 1976 deals only incompletely with it while the legislative history discusses it at length.2 This article will examine the deficiencies of the new Act and suggest interpretations of it. Instructors acquired both performance rights and copying rights under the Act. Both rights are circumscribed; the performance right rather carefully, the copying right rather confusedly. The two rights will be discussed separately and the owners' licensing of these rights will be analyzed. A discussion of legislative history is needed to an unwarranted degree to flesh out the brief statutory treatment of audiovisual materials in education; however, there is cause to recommend disregarding the history in some cases.

* A.B., Wabash College; J.D., University of Akron, Associate Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University.

1. Letter from Peter F. Nolan, Office of Counsel, Walt Disney Productions, to author (Mar. 23, 1977).

2. Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified at 17 U.S.C.A. § 101 (1977)). This law was signed by the President on October 19, 1976, and generally became effective on January 1, 1978. Its legislative history is as follows: HOUSE CONFERENCE COMM., 94TH CONG., 2D SESS., REPORt on Copyright Law REVISION, H.R. REP. No. 94-1733 (1976); HOUSE COMM. ON THE JUDICIARY, 94th Cong., 2D SESS., REPORT on Copyright LAW REVISION, H.R. REP. No. 94-1476 (1976) [hereinafter cited as HOUSE REPORT]; 122 CONG. REC. 10872 (1976); SENATE COMM. ON THE JUDICIARY, 94TH CONG., 2D SESS., REPORT ON COPYRIGHT LAW REVISION, SEN. REP. No. 94-473 (1975) (hereinafter cited as SENATE Report].

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II. THE FIRST RULE: ALMOST ANYTHING GOES IN FACE-TO-FACE
TEACHING

The 1976 Act has made the classroom an almost inviolable sanctuary for using copyrighted materials. Section 110(1) allows performance or display of any copyrighted work,3 elaborating on Sections 1(c) and 1(e) of the 1909 Act. These sections gave exemptions from infringement liability to persons who performed nondramatic literary works or musical compositions in public and not for profit.'

Under the 1909 Act, it was generally assumed educators qualified for the "not for profit" exemption. The exemption appeared to allow them to perform, by reading aloud, books, periodicals, scripts prepared for oral delivery and, some believed, choreography and documentary motion pictures. In addition, they could perform music in class either live or as recorded." Finally, included in this laundry list of works available to educators under the 1909 Act were items traditionally displayed in classrooms without question such as maps, works of art, and technical drawings."

Even if educators paid any attention to the "for profit" exceptions. in the 1909 Act, they were sure to be confused by the limiting term, "nondramatic literary work." For decades they had been performing dramatic works in the form of motion pictures with seeming impunity. This was because then, as now, most films are only available by lease from an authorized distributor. Permission to perform the

3. Section 110(1) reads, in its entirety, as follows:

Limitations on exclusive rights: Exemption of certain performances and displays Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made . . . .

17 U.S.C.A. § 110(1) (1977).

4. 17 U.S.C. § 1(c), (e) (1971).

5. M. NIMMER, COPYRIGHT & 107.1 (1963 & Supp. 1976).

6. Under the 1976 Act these items are defined as "[plictorial, graphic, and sculptural works," and include "two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, technical draw. ings, diagrams and models." 17 U.S.C.A. § 101 (1977).

7. See generally Nevins, Copyright, Property and the Film Collector, 29 RUTGERS 1. Rev. 2 (1975).