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films for students was given in the lease, not in the statute.


Under the 1976 Act there is a welcome clearing of the air. Not only may all motion pictures be performed in the classroom of nonprofit educational institutions but all other dramatic works may as well. It is clear in the broad definition of the word "perform" in Section 101 that performance may be live or by mechanical means:

To "perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

Unfortunately, the only other terms used in Section 110(1) which are defined in Section 101 are "audiovisual works," "copies," "display," and "motion pictures." It is curious that terms relating to education are left undefined in the Act. Instead, their definitions are unsatisfactorily discussed in the House and Senate Committee Reports and in the Conference Report. There is an open invitation in the House Report for the parties themselves to develop guidelines for off-the-air taping for nonprofit classroom use, but only as a means of clarification of the requirement that all copies used in teaching be lawfully made.' Such guidelines should also address the scope of the performance exemption and the missing definitions.

It is axiomatic that courts are bound only by definitions contained in the Act. The eminent authority on statutory interpretation, Professor Reed Dickerson, has stated concerning legislative history: "For legislatures, it would be a wise course never to create legislative history merely for the purpose of helping courts interpret or apply statutes." Had the drafters of the Act been more generous with


8. 17 U.S.C.A. § 101 (1977).

9. HOUSE REPORT, supra note 2, at 71-72. The Committee statement reads:

The problem of off-the-air taping for nonprofit classroom use of copyrighted audiovisual works incorporated in radio and television broadcasts has proved to be difficult to resolve. The committee believes that a fair use doctrine has some limited application in this area, but it appears that the development of detailed guidelines will require a more thorough exploration than has so far been possible of the needs and problems of a number of different interests affected, and of the various legal problems presented. Nothing in section 107 or elsewhere in the bill is intended to change or prejudge the law on the point. On the other hand, the Committee is sensitive to the importance of the problem, and urges the representatives of the various interests, if possible under the leadership of the Register of Copyrights, to continue their discussions actively and in a constructive spirit. If it would be helpful to a solution, the Committee is receptive to undertaking further consideration of the problem in a future Congress..

10. R. DICKERSON, THE INTERPRETATION AND Application of STATUTES 195 (1975). Professor



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[Vol. 4/225 definitions, their work would have been more complete. To illustrate the pitfalls in relying on legislative history for definitions, one may puzzle over a subtle difference in the Senate and House Reports in which they describe works which may be performed in class. The Senate Report says that "a teacher or student would be free to perform or display anything in class as long as the other conditions of the clause are met. He could read aloud from copyrighted text material, act out a drama, play or sing a musical work . . . .' That Report was published November 20, 1975. The House Report, published on September 3, 1976, states that "teachers or students would be free to perform or display anything in class as long as the other conditions of classrooms teaching are met. They could read aloud from copyrighted text material, act out a drama, play or sing a musical work . . . ."2 Was the change to the plural accidental and casual, or was it a clarification that envisioned ensemble performances in class? The latter interpretation is more probably the correct one. Analysis of the undefined terms is necessary.


Restrictions on use of lawfully made copies in teaching seem disarmingly simple. Even a heretofore off-limits Broadway play or musical written solely for entertainment might be used by teachers if but four tests are met. The performance or display of the work must be (1) by instructors or pupils, (2) in the course of face-to-face teaching activities, (3) of a nonprofit educational institution, and (4) in a classroom or similar place devoted to instruction.13

Where only a one-room schoolhouse is concerned, these tests are sufficient to guide educators. The single "instructor" with one

Dickerson goes on to say:


The more realistic approach to legislative history would be to end or severely limit its judicial use. Aside from eliminating the wholly useless at its source, the most effective way to restrict use is through professional persuasion rather than fiat (even English judges have privately confessed to taking an occasional, surreptitious look at legislative history). So long as they are needed for other purposes, records of committee hearings and house debates should not be eliminated. However, because they are highly unreliable as a basis for inferring legislative intent, a court should refuse to consult them either for the purposes of cognition or for those of judicial lawmaking. Even for confirming results reached by legitimate means, they have little value.

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"classroom" would have no alternative to "face-to-face teaching" of "pupils." But the tests fail for lack of clarity when the one-room schoolhouse gives way to multiple classrooms on campuses with several buildings where many activities in addition to face-to-face teaching are carried out. These classrooms might have sophisticated electronic equipment and the audiovisual department might be able to transmit copyrighted materials remotely for performance in classrooms." What do the terms in the tests mean in the context of the modern school? Educators must find the meanings in the legislative history, and, because this history will not be readily available to them, the meaning of the legislative history will be further interpreted for them in trade journals and the like.15

Audiovisual departments are the natural offices to interpret Section 110(1) for teachers, but it would appear they have little guidance from their administrations for doing this. Administrators tend to think of the school as owner of copyrights under the "works for hire" doctrine and not as user of copyrighted materials.1

14. Id. § 101. "To 'transmit' a performance or display it is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent." Id.

15. Useful guidelines have been published. Among the best are: Counsel from Legal Dep't, Nat'l Ass'n of Broadcasters, Copyright Q & A No. 5, Educational Use of Broadcast Programming Under the 1976 Copyright Revision Act (Jan. 1977) [hereinafter cited as Copyright Q & A No. 5]; Association for Educ. Com. & Tech. and Ass'n of Media Producers, Copyright and Educational Media, A Guide to Fair Use and Permissions Procedures (1977); EDUC. & INDUS. TELEVISION, Nov., 1976, at 22 (Smith, The New Copyright Law: What You Can and Can't Do).

16. Under the "works for hire" doctrine, the school, as employer of the instructor, would be considered the author of whatever works the instructor creates. The school would thus own and be able to copyright such works. See 17 U.S.C. § 26 (1971) (§ 26 of the 1909 Act); Annot., 11 A.L.R. Fed. 457 (1972). Section 201(b) of the 1976 Act adopts the "works for hire" doctrine: In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

17 U.S.C.A. § 201(b) (1977). An instructional text, as defined in Section 101 under "work made for hire," is a work made for hire if specially ordered or commissioned. An "instructional text" is a "literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities." 17 U.S.C.A. § 101 (1977). Schools customarily have policies, sometimes stated formally in writing, whereby they waive copyright in instructional texts and other intellectual property created by their instructors but not specially ordered or commissioned. See, e.g., University Policy on Copyrights and Other Property Rights, UNIVERSITY OF KENTUCKY Administrative ReguLATION AR 11-2.0-4 (1974). It has been established by case law that a lecture of a professor belongs to the professor. Williams v. Weisser, 153 U.S.P.Q. 866 (Cal. Super. 1967), aff'd on other grounds, 273 Cal. App. 2d 726, 78 Cal. Rptr. 542, 38 A.L.R. 3d 761 (1969). On January 4, 1977, a letter request



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A comment in the legislative history is of particular importance to educators who would transmit programs into the classroom: "Use of the phrase 'in the course of face-to-face teaching activities' is intended to exclude broadcasting or other transmissions from an outside location into the classroom, whether radio or television and whether open or closed circuit."" This crucial definition, submerged in the legislative history, is suggested in Section 110(2) of the statute itself, but only by implication. Section 110(2) declares that:

performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission [is not an infringement of copyright] if—(A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and (C) the transmission is made primarily for (i) reception in the classrooms or similar places normally devoted to instruction . . .

The negative implication of this language is that a transmission into the classroom may incorporate performances of no other copyrighted works than those mentioned. Thus, in the course of transmissions to classrooms, educators may read prose and poetry, play music, and display pictorial, graphic and sculptural works, but they may not use audiovisual works nor perform dramas or dramatic musical works, even though these may be performed live in class


Reactions of some organizations indicate Sections 110(1) and 110(2) are already being interpreted narrowly. The National Association protested the "face-to-face teaching" language, feeling it would indeed "rule out closed-circuit in-school uses as well as uses

ing information on copyright policy was sent to twelve universities located within a 150-mile radius of Cincinnati by Cindy Sullivan, Director of Audiovisual Services, Northern Kentucky University. The following nine schools replied: Eastern Kentucky University, Indiana University, Kentucky State University, Miami University, Morehead State University, Ohio State University, University of Cincinnati, University of Kentucky, and Xavier University. None of them indicated awareness of an existing policy with respect to use of audiovisual materials. Perhaps the most frank answer was offered by Robert Dro, Director, Community Relations, Indiana University. After Mr. Dro related that he was informed as to what was occurring on his campus relating to copyright matters, he said, “As you can see, Indiana University actually has no definite policy. However, the subject has come up from time to time as to just what policy the University should have." Letter from Robert Dro to Cindy Sullivan (January 17, 1977).

17. SENATE REPORT, supra note 2, at 73.




over dial-or remote-access system in schools, all of which are designed to bring materials to learners rather than transport learners to materials."18 The National Association of Broadcasters gives an equally restrictive meaning to "face-to-face teaching," maintaining that the instructor, his pupils and the copy of the program utilized for a performance must all be located in the same classroom. 19

These interpretations of "face-to-face teaching" ignore the distinction between large scale transmitting of copyrighted materials into many classrooms simultaneously and the harmless, isolated request by an individual instructor for an audiovisual performance in a single classroom. The centralized audiovisual department is most efficiently run by remoting visual and audio signals into classrooms, if equipped to do so.20 Otherwise, equipment for performing works in the classroom must be shuttled from room to room, floor to floor, and from building to building, rain or shine. If such equipment as projectors and videotape players may be used in the classroom within the spirit of Section 110(1), why may they not be used for lawful performance from outside the classroom? The answer of media producers would parallel their reaction against unauthorized copying of films: the wider the nonpaying audience for a particular audiovisual product, the fewer the sales possible." The open or closed circuit transmission of copyrighted materials greatly expands the use to which a single copy may be put. The restriction of one copy for one classroom attributed to the term "face-to-face teaching" effectively limits the number of pupils who might be exposed to a copyrighted work. Moreover, further interpretation of "face-toface teaching" to mean the instructor must be present with the pupils where a performance takes place presents another obstacle to mass viewing by transmissions.22

It is justifiable that producers should be able to prevent mass viewing of their copyrighted works without payment or clearance

18. Copyright Law Revision: Hearings on H. R. 2223 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice, 94th Cong., 1st Sess. 275 (1975) (statement of James A. Harris, President, National Education Association) [hereinafter cited as Hearings]. 19. Copyright Q & A No. 5, supra note 15, Question 17.

20. By using a film chain device, motion pictures may be transmitted electronically for reception on the television screens.

21. Hearings, supra note 18, at 330 (Testimony of Edward J. Meell, Chairman, Educational Media Producers Council).

22. SENATE REPORT, supra note 2, at 73.

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