reproduction any special status under the fair use provision or to sanction any reproduction beyong the normal and reasonable limits of fair use.10 The second specific comment about section 107; the purposes of a use alleged to be fair and the criteria by which it is to be judged as set forth in section 107 are illustrative only. Remember, this is a statute that defines everything, almost. It defines terms such as "such as" and "including," to make it clear that those terms are illustrative and not exhaustive or limitative." It is interesting to note that the four criteria which we all know by heart and I won't recite-are not given in any particular priority. Of course they are listed one through four, but there is no particular priority or weighting of importance. A lot of people have had the habit of saying through the years that the fourth criterion; that is, the potential effect of the use upon the market or value of the work is the most important. An interesting article on this question appears in the current issue of the Copyright Society Bulletin.12 I might as well offer a commercial. A student was let loose with a Lexis system and actually counted all the fair use cases to see what the court said were the important factors. And he came up with the conclusion that it wasn't that fourth factor; it was the third factor, the amount and substantiality of the taking. He was disturbed at that. And I think he disclaimed any attempt to psychoanalyze the courts to find out what really was going on. He just counted the named criteria. The third comment about 107: A phrase was added by this committee in 1976 to the illustrative purposes of fair use to indicate that multiple copies for classroom use are potentially eligible for the exemption. And another phrase was added to the illustrative criteria to make sure that the nonprofit educational purpose of a use is accorded proper weight. Of course, it was as a corollary to these concepts that the guidelines which Chairman Kastenmeier referred to were developed. These were two of the three sets of guidelines-the guidelines for classroom reproduction of books and periodicals on the one hand, and the guidelines for music on the other. You all know, I think, that after those guidelines are set forth in the report, this committee says: "The committee believes the guidelines are a reasonable interpretation of the minimum standards of fair use." 13 The final comment I have to make about 107 as such, is that the keynote which has been constant since 1966, is the following statement that is substantially contained in both the final Senate report and the final House report. The bill endorses the purpose and general scope of the doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Sec 12 Hayes, Classroom "Fair Use": A Reevaluation, 26 Bull. Copr. Soc'y. 101 (1978). 13 H. Rept. No. 94-1476 supra, at 72. tion 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow or enlarge it in any way. 14 Thus, this language and this section are among the many examples in the statute where we are forced to read the old cases because Congress is saying clearly that they are not intending to modify that. They want to take it forward. I am always inclined, being an advocate and a teacher, to say: Are there any questions? But I understand that is not part of the format. We move from section 107, broad-gaged provision, to the next provision of the statute, which brushes by the question that you are concerned with. And that is the section 108 (f) (3), the so-called Vanderbilt University exemption which permits specialized off-the-air taping. The three things to keep in mind are: First, the taping covers only audiovisual news programs; And third, the library or archive has to fit within the very specific limitations of section 108. In the conference report, it was recognized that a qualifying library or archive would be free to "reproduce, on videotape or any other medium of fixation or reproduction, local, regional, or network newscasts, interviews concerning current news events, and on-the-spot coverage of news events, and to distribute a limited number of reproductions of such a program on a loan basis." 15 So there is the conference committee's elaboration of what an audiovisual news program means within the meaning of 108(f) (3). We now turn to six provisions dealing with instruction and with public broadcasting. The first is section 110(1), subdivision (1) of section 110, which permits performance or display, not copying, not reproduction, of all works in the course of face-to-face, nonprofit teaching activities under the limitations set forth in that exemption. However, this exemption is lost if the performance or display of a motion picture or other audiovisual work is given by means of an unlawfully produced copy, provided that the person responsible has actual or constructive knowledge that it was unlawfully produced. Second, the provision in section 110(2) dealing with instructional broadcasting says nothing about audiovisual works, because these works are not included in that exemption. The very terms of 110(2) would exclude audiovisual works. Third, one of the cable provisions, section 111(a)(2), contains a provision exempting cable or other secondary transmissions, of material covered by the instructional broadcasting exclusion in section 110(2). These last two I am only trotting out to say we don't really have to be concerned about them in the sense of taping audiovisual materials. Fourth, another provision that doesn't quite get there in terms of covering our problem is section 112, particularly 112(b). This grants the so-called ephemeral recording right to public broadcasters, permitting the making of copies or phonorecords as an adjunct to their peforming rights. But again, this limitation does not permit the making of a videotape of a motion picture or other audiovisual works. 14 Id. at 66. Cf. S. Rept. No. 94-473, 94th Cong., 1st sess., 62 (1975). 15 H. Rept. No. 94-1733, 94th Cong., 2d sess., 72 (1976). Fifth, section 114(b) deals with the question of sound recordings, that is, the recorded performances fixed on a phonorecord as opposed to the musical, dramatic, or other material that is recorded thereon. And it grants an exemption to public broadcasting, which may reproduce such sound recordings for inclusion in "educational television and radio programs." I might just add a word about sound recordings in a slightly different context, because it has been mentioned sometimes in our connection. That is the slightly different, but related context of home recordings. It may be recalled that sound recordings were first protected by Federal legislation in 1971, while the general revision program was in progress, and that this committee included in its report the following statement: Specifically, it is not the intention of the committee to restrain the home recording from broadcasts or from tapes or records of recorded performances where the home recording is for private use, and with no purpose of reproducing or otherwise capitalizing commercially on it. 16 Questions have been very sharply raised as to whether this 1971 statement has or has not been implicitly carried forward into the 1976 act. Moreover, it will be recalled that this dealt only with sound recordings, audio taping, we might say, not videotaping. And in a draft statement made by the Government as comment on an international study on video cassettes," the Government said that this 1971 statement was made, of course, in a context different from that of off-theair videotaping of television programs incorporating copyrighted motion pictures and other material under copyright. It is unclear how far its implications can be said to apply to the recording of video programs for private use. 18 I think I have only one more section to go as far as the public broadcasting instructional complex is concerned. That is section 118, which, of course, is the section granting a compulsory license to public broadcasting to broadcast, perform and record published, nondramatic music and pictorial, graphic, and sculptural works upon payment of a fee, either to be negotiated or determined by the Copyright Royalty Tribunal. 19 Under this provision, as most of you know, schools are given the right to reproduce such works-that is, the musical or art worksas contained in the public broadcast programs, under specific limitations, including the requirement of destruction at the end of 7 days. It should be noted that this section does not seem to grant the right to tape the program itself over and above the music and art that is in it. But such a privilege to tape the program itself, is of course, granted by various public broadcasting entities such as PBS' 7-day policy. That doesn't come out of the statute. I might just tarry a moment on this question of retention because I just have a sneaking feeling somehow or other that may come up as the day goes on, the question of 7 days or what. 16 H. Rept. No. 487, 92d Cong., 1st sess. 7 (1971). 17 Klaver, The Legal Problems of Video-Cassettes and Audio-Visual Discs, 23 Bull. Copr. Soc'y. 152 (1976). 18 Draft Comments of the United States of America on the Study by Professor Franca Klaver Concerning the Legal Problems of Video-Cassettes and Audiovisual Discs, 17 (1977). 19 The first such proceeding resulted in a determination reported at 43 Fed. Reg. 25070 (June 8, 1978). The notion of a limited period of retention contained in this provision and policies such as PBS' are not without precedents in the legislative history of these kinds of problems. For example, going back to section 107, the 1967 House report and the 1975 Senate report, in discussing fair use, give as an example something that might normally be fair use: Exercises by student, such as in shorthand or music classes or other classes. And the reports say that such exercises, quote, "would normally be regarded as fair use unless the copies or phonorecords were retained or duplicated." " 20 The word "retained" is a key word. Maybe that hints back to this problem. Moreover, in the same pair of reports, the committees took note of the special problem involved in the reception of instructional television programs in remote areas, particularly extending over several time zones. The Senate committee stated as follows: The Committee believes that the making by a school located in such a remote area of an off-the-air recording of instructional television transmissions for the purpose of a delayed viewing of the program by students for the same school constitutes a fair use. The Committee does not intend to suggest, however, that off-the-air recording for convenience would under any circumstances be considered fair use. To meet the requirement of temporary use, the school may retain the recording for only a limited period of time after the broadcast. This is language in the legislative reports.21 Finally, it should be noted that the National Commission on New Technological Uses of Copyrighted Works, CONTU, in its final report, recommended that a scholar using a computer for fair use purposes should, to enjoy that privilege, erase any copy created in a machine memory after completion of the project. 22 I close this trip through the statute by noting the authority given to the Librarian of Congress in two places under the mandatory deposit section, 407, and at the tail end of the statute, in the American Television and Radio Archives Act, contained in transitional and supplementary section 113. Now, for the time that remains, I will meander through history to try to give you some of the background of fair use in the courts, because, as I indicated earlier, that background remains relevant. I know that I am not going to get through the meandering. So I should say at the outset that I counted up four cases that dealt specifically with off-air taping: The Walt Disney against Alaska Network case, 23 which was commercially done. I will mention it if I have time later. Encyclopaedia Britannica against BOCES, a case up in New York.24 Universal and Disney against Sony in the BetaMax case on the west coast.25 The CBS against Vanderbilt case which, though settled, gave rise to the audiovisual news program provision in section 108 (f) (3) mentioned earlier. 20 E.g., S. Rept. 94-473, supra, at 63 (1975). 2 Final report at 98, n. 171 (July 31, 1978). 22 Id. at 66. Cf. § 111(e) (certain video taping by cable systems permitted). Walt Disney Production v. Alaska Television Network, Inc., 310 F. Supp. 1073, 164 USPQ 211 (W.D. Wash. 1969). Encyclopaedia Britannica Educational Corp. v. Crooks, 447 F. Supp. 243, 197 USPQ 280 (W.D.N.Y. 1978). 25 Universal City Studios, Inc. v. Sony Corp. of America, No. cv 76 3520 F. (C.D. Cal.). Many people trace fair use in this country back to 1841, when a Supreme Court Justice and scholar named Joseph Story was traveling around the country on circuit, as they did in those days, hearing cases by himself. And in the case of Folsom against Marsh,26 the issue was whether infringement resulted from the taking of a number of pages. of the plaintiff's work on George Washington. Story found it a very troublesome case. He makes that clear. And he says: We often, in deciding cases of this sort, look to the nature and objects of the selections made, the quantity and quality of the materials used, and the degree in which the use may prejudice the sale or diminish the profits or supersede the objects of the original work. I suppose if his opinion were copyrightable and still under copyright, section 107 might be accused of infringing such copyright. But it does show that the criteria were stated, restated, juggled and supplemented through a century or so after Justice Story. Normally, we are dealing with a particular problem in those cases, which may not be the problem before you-whether the quantity and quality of what was taken was sufficient under the particular circumstances to amount to infringement. For example, one group of cases involved clearly incidental use of materials, such as open the pages of a short story and you find the heroine walking into a room, and the radio is playing *** ‘You must remember this, a kiss is just a kiss'," where the lyrics or part of the lyrics of a song are used as the background. And in those cases, they were uniformly held to be fair use.27 In the electronic era, the same thing. The flashing or showing of a hand puppet on television was considered to be fair use. 28 And even more recently, a few blocks from my law school, when the San Gennaro street festival was going on, ABC news taped a float going by and caught the strains of an Italian song and was sued because it put the song on evening television-the 11 o'clock news. Incidentally, ABC didn't just run the scene. It actually synchronized the sound track with the reporter's voice, so there was a slight variation from the way it was picked up. That was held to be fair use, the judge saying he didn't have to get to the first amendment implications of that.29 Another familiar setting of fair use is in the field of criticism and scholarly use. We all know that a critic can quote extensively from a work and so can a scholar writing in the same field. Incidentally, a scholar, according to the Howard Hughes case, happily, can be an average citizen rather than a college professor. Scholorship is broadly treated. In fact, the same court last year had to decide whether Louis Nizer's book on the Ethel and Julius Rosenberg trial and execution was scholarly because Nizer had used some of the letters written by the Rosenbergs from the deathhouse. It was held that the trial court had to consider carefully whether the particular use made by Nizer of the letters was scholarly.30 26 Folsom v. Marsh, 9 Fed. Cas. 342, No. 4.901. 27 E.g., Shapiro Bernstein & Co. v. P. F. Collier & Son Co. 26 USPQ 40 (S.D.N.Y. 1934). 28 Mura v. Columbia Broadcasting System, Inc., 245 F. Supp. 587, 147 USPQ 38 (S.D.N.Y. 1965). Italian Book Corp. v. American Broadcasting Cos., 200 USPQ 312 (S.D.N.Y. 1978). 30 Meeropol v. Nizer, 560 F. 2d 1061, 195 USPQ 273 (2d cir. 1977), Cert. denied 434 U.S. 1013, 196 USPQ 592 (1978). 46-894-79- -2 |