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[Vol. 4/225 since, by such viewing, schools would be substituting copyrighted materials for teaching staff. The producers have a legitimate claim to some of the savings; however, Section 110(1) can reasonably be interpreted to permit transmissions in lieu of in-class performances when requested by an instructor not acting in concert with any other personnel in the school. Such an interpretation is not contradicted by Section 110(2). When Section 110(2) is read together with Section 112(b) it becomes clear that it is addressed to instructional broadcasting.23

The phrase in Section 110(1) requiring that exempt performances take place "in a classroom or similar place devoted to instruction" is defined in the Senate Report in terms of what is not a classroom. A performance in an auditorium or stadium during a school assembly, graduation ceremony, class play, or sporting event, where the audience is not confined to the members of a particular class, is not a performance in a classroom.24 Once again there is protection for producers against mass viewing. What, then, of a course devoted to the study of modern drama or the film with enrollment restricted only by the size of an auditorium? Might packing students into such large "classrooms" violate the spirit of Section 110(1)? The Senate Report responds to the question negatively, maintaining that any place devoted to instruction can become a classroom. A studio, workshop, gymnasium, training field, library, the stage of an auditorium, or the auditorium itself may be used for systematic instructional activities without violation of Section 110(1).25

Here it is advisable to read the legislative history cautiously in some cases for the protection of producers. Large survey classes are routinely conducted in university auditoriums seating hundreds or thousands of students. By loosely defining the requirements for course credit, universities may violate the spirit of Section 110(1). There is a fine line between a class during which some illustrative dramas are performed and a drama series open to all students for credit, with large attendance, where the dramatic performances are

23. Section 110(2) of the 1976 Act, 17 U.S.C.A. § 110(2) (1977), specifies the types of copyrighted works which may be incorporated into teaching programs created by the schools themselves. Such programs might substitute for instructors teaching live in the classroom. Section 112(b), 17 U.S.C.A. § 112(b) (1977), permits schools to make up thirty copies of programs incorporating nondramatic literary or musical works or displays of works as permitted by Section 110(2), 17 U.S.C.A. § 110(2) (1977).

24. SENATE REPORT, supra note 2, at 74.

25. Id.




only infrequently punctuated by comments of an instructor. The latter class may not be within the meaning of Section 110(1) especially "where the audience is not confined to the members of a particular class."26 Factors tending to show that a class is not a sham would be prior enrollment of students a cut-off time not unreasonably late in the course after which a pupil may drop the course only with academic or monetary penalty, nonavailability of the course to pupils who wish merely to audit, and credit for the course toward a degree issued by the institution.

Having dealt with the meaning of "classroom" and "face-to-face teaching" it is necessary to determine who may occupy the classrooms and who may engage in face-to-face teaching within the meaning of Section 110(1). "Pupils" are defined tersely in the Senate Report as "enrolled members of a class."27 The Act would allow pupils to join with instructors in performing copyrighted works.

Defining "instructors" is problematical. Traditionally, a class is taught by one instructor but the Act will accomodate team teaching. The Act is silent as to whether guests brought into a classroom to perform a copyrighted work can be considered instructors. There is no logical basis for the remark in the Senate Report that payment or clearance is required for performances by actors, singers, or instrumentalists brought in from outside the school to stage a program.28 If professional people wish to donate their time and perform in the context of face-to-face teaching in a classroom as part of systematic instruction, they should qualify for the instructors' exemption. The key to their status as instructors is that they not be


26. Id. The Senate Report maintains that it would not be permissible for teachers to perform a copyrighted work before a group some of whom are enrolled in the class and some of whom are not.

27. Id. The author regrets that the word used in Section 110(1) is "pupil" instead of "student." "Student" is the nobler word, deriving from the Latin word "studens," which means "to be eager about study." "Pupil" applies "either to a child in school or to a person who is under the personal supervision of a teacher." "Student," on the other hand, is applied "either to one who attends an institution of higher learning or to one who is making a study of a particular problem." WEBSTER's Third New InTERNATIONAL DICTIONARY 2268, 1844 (1964). The drafters of the Act made their choices, and the author will follow their choice of words, including the word, "instructor," rather than "teacher."

28. SENATE REPORT, supra note 2, at 74.

29. Continuing the not-for-profit exemption in the 1909 Act, 17 U.S.C. § 104 (1971), Section 110(4) of the 1976 Act, 17 U.S.C.A. § 110(4) (1977), provides that public performance by anyone of a nondramatic literary work is exempt if there is "no direct or indirect admission charge." If performance of these works in public is exempt, then performance of them in faceto-face teaching must also be exempt.



[Vol. 4/225 paid for performing. Their unpaid performance cannot be distinguished from the performance by an audiovisual technician (in a classroom) of a television broadcast, videotape, motion picture, or phonorecord.30 In fact, another part of the legislative history does indicate that audiovisual directors are to be regarded as instructors when working in consultation with actual instructors.331


Section 110(1) might seem like a Magna Carta for instructors who perform or display copyrighted materials in the classroom but it is illusory with respect to audiovisual materials. 32 It provides that motion pictures and other audiovisual works may not be performed in face-to-face teaching unless "lawfully made under this title.' Under the title, however, no guidance is given for copying an audiovisual work to be used in teaching without payment or clearance, with the possible exception of Section 108(f) (3). That section permits a library or archives to reproduce and distribute by lending a limited number of copies and excerpts of an audiovisual news program, subject only to clauses (1), (2), and (3) of subsection (a) of Section 108. These clauses provide that no commercial use may be made of the news programs, that collections of the library or archives must be open to the public or available to all persons doing

To perform or display a work “publicly" means

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or separate places and at the same time or at different times.

17 U.S.C.A. § 101 (1977). Thus, performance in a classroom is a public performance. The author submits that anyone who is willing to perform in a classroom for pupils enrolled in a legitimate course of study becomes an instructor within the meaning of Section 110(1). 17 U.S.C.A. 110(1) (1977).

30. The terms "motion picture" and "phonorecord" are separately defined in Section 101 of the Act. Television broadcast, videotape, and motion picture are lumped together under the general term, "audiovisual work." 17 U.S.C.A. § 101 (1977).

31. SENATE REPORT, supra note 2, at 74.

32. The twelve sections following Section 106, 17 U.S.C.A. § 106 (1977), that pertain to a copyright owner's exclusive rights, discuss the limitations on and the scope of these rights, but they provide little guidance on infringement by videotaping for educational purposes. 33. Section 110(1) will, however, exculpate an instructor who, in good faith, believed the copy was lawfully made.




research in a specialized field, and that the copy of the news program must include a notice of copyright. Thus, nothing in the Act prevents an instructor from borrowing a news program and performing it in face-to-face teaching under Section 110(1), notwithstanding legislative history to the contrary.34

Even if this break in the statutory wall of silence were interpreted by courts and libraries to allow classroom performance, there would still remain a definitional trap for the instructor. Already there is debate on the meaning of "audiovisual news program" centering on whether it should include in-depth interviews on current news events, on-the-spot coverage of news events, commentaries on the news, and the like. Surprisingly, the documentary, one of the most desirable programs from the point of view of instructors, would sometimes be classified as a news program by the National Association of Broadcasters.35

34. The HOUSE REPORT, supra note 2, at 77, declares that Section 108(f)(3)

is intended to permit libraries and archives subject to the general conditions of this Section, to make off-the-air videotape recordings of daily network newscasts for limited distribution to scholars and researchers for use in research purposes. . . . The inclusion of language indicating that such material may only be distributed by lending by the library or archive is intended to preclude performance, copying, or sale, whether or not for profit, by the recipient of a television broadcast tape off-the-air pursuant to this clause.

17 U.S.C.A. § 108(f) (3) (1977).

Not surprisingly, the National Association of Broadcasters follows the HOUSE REPORT interpretation. It says, "Libraries may lend the tapes only for use in research. A recipient of a copy of a television broadcast may not perform, copy or sell, whether or not for profit, a copy of the television news broadcast." Copyright Q & A No. 5, supra note 15, Question 14. Quaere: May a school or university audiovisual department which maintains a large collection of films, tapes, and the like, qualify under Section 108(a)(2) as a library? Is there another missing definition?

35. The National Association of Broadcasters' statement, borrowing language from the HOUSE REPORT, supra note 2, at 77, says:

This provision, Sec. 108(f)(3), applies to (1) the daily newscasts of the national networks, and local stations, which report events of the day; (2) interviews concerning current news events and (3) on-the-spot coverage of news events. It does not apply to documentaries (except documentary programs involving news reporting), magazine formats, or other public affairs broadcasts dealing with subjects of general interest to the viewing public.

Copyright Q & A No. 5, supra note 15, Question 13. Quaere: How will they draw the line between a documentary program involving news reporting and other documentaries? Surely, their inclusion of documentaries, which might carry a message and be the product of considerable creativity, will be lamented if Section 108(f) (3), 17 U.S.C.A. § 108(f) (3) (1977), is read to allow performance of taped news programs by instructors. A leader in the debate over offthe-air taping, Ivan Bender, believes the definitional problem was not foreseen by Congress, and that networks do not regard such programs as "60 Minutes" (CBS), “White Paper"



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In any event, the Section 108(f) (3) exemption to the exclusive right to copy inures only to libraries and archives. There is no specific exemption anywhere in the Act allowing instructors to copy audiovisual works. There is, however, a limited exemption for public broadcasters. Section 118(d) provides that a "public broadcasting entity," as defined in 47 U.S.C. 397, may incorporate in its programs published nondramatic musical works and published pictorial, graphic, and sculptural works. In the event clearance and payment cannot be agreed upon, the Copyright Royalty Tribunal will impose terms and reasonable royalty payments.36 Nondramatic literary works were considered for inclusion in this compulsory licensing system but not included because “a compulsory license for literary works would result in loss of control by authors over the use of their work in violation of basic principles of artistic and creative freedom."37

Section 118 is also linked to Section 110(1). Section 118(d)(3) provides that schools are permitted to copy programs of public broadcasters off-the-air insofar as they contain cleared nondramatic musical works and pictorial, graphic, or sculptural works. They may retain the copies for seven days and perform or display the contents in accordance with Section 110(1). The catch is that permission will still be needed from the public broadcaster (presumably the copyright owner) to copy the parts of the program not cleared under Section 118. Thus, the rights granted to instructors to copy off-theair appear illusory.

(NBC), and "Issues and Answers" (ABC) as being within the purview of Section 108(f)(3). However, he would include a Presidential address to the nation, especially when the networks pooled their resources, even over objections that setting up equipment for such coverage requires enough creativity to be protected. Address by Ivan Bender, University of Kentucky Symposium I: Public Law 94-553 (Apr. 22, 1977) [hereinafter cited as Address by Ivan Bender]; cf. International News Serv. v. Associated Press, 248 U.S. 215, 234 (1918) (“[T]he framers of the Constitution [did not intend] to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it"); Bleistein v. Donaldson Litho. Co., 188 U.S. 239 (1903) (lithographs for use in advertising a circus possess the requisite creativity to be copyrightable); Burrow-Giles Litho. Co. v. Sarony, 111 U.S. 53 (1884) (photograph can be the product of "intellectual invention" and therefore copyrightable); Time Inc. v. Bernard Geis Assoc., 293 F. Supp. 130 (S.D.N.Y. 1968); Jeweler's Circ. Publ. Co. v. Keystone Publ. Co., 274 F. 932 (S.D.N.Y. 1921), aff'd, 281 F. 83 (2d Cir. 1922).

36. Perhaps noncommercial broadcasters, the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Incorporated (BMI), the Society of European Stage Authors and Composers (SESAC), and music publishers will establish a blanket industry-wide fee to cover all music before the Tribunal imposes terms.

37. HOUSE REPORT, supra note 2, at 119.

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