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As a practical matter, the Public Broadcasting Service, the Agency for Instructional Television, the Great Plains National Instructional Television Library, and the Public Television Library, on November 15, 1975, issued a Statement of Policy authorizing supplemental school rerecordings of public and instructional television programs for use for seven days.38 This pioneer program operates to give schools off-the-air copying rights to all programs except those listed on a bi-monthly circular from the Public Broadcasting Service as not authorized for seven-day school use. For the most part, the excepted programs are licensed for broadcast by the Public Broadcasting System without rerecording rights.39

On September 1, 1976, the Agency for Instructional Television (AIT) broke away from the seven-day limit and permitted certain school districts to retain off-the-air rerecordings during the entire school year, September through June. Prerequisites are that the state education agency be authorized to broadcast AIT telecourses and the school systems be specifically identified as participants in the instructional television services of the agency. It is worth noting that the stated purpose of the experiment is "o test the extent to which unrestricted broadcast rerecordings will be used in classrooms. A further objective is to determine if such an extended use will increase school support for instructional broadcast services. Finally, it is hoped the experiment will provide insight into the effect of advances in recording and playback technology upon instructional broadcasting.""

(A) "The Monarch Butterfly" Argument

If there is no exemption allowing instructors to copy audiovisual works off-the-air, neither is there any explicit prohibition except for the exclusive right to make copies in Section 106(1). This exclusive right, in turn, is offset by the four tired guidelines for fair use in Section 107 which have been languishing in the wings, essentially unchanged since 1964." The House Report, in discussing Section

38. Letter from Eugene N. Aleinikoff to author (Mar. 30, 1977). 39. Id.

40. Statement by Agency for Instructional Television, Extended Instructional Use of AIT Telecourses (Apr. 28, 1976).

41. The SENATE REPORT mentions that they were contained in the 1964 bill. Senate Report, supra note 2, at 62. Persons who have followed copyright revision have seen the guidelines so often that they veritably swim before their eyes. Out of necessity the final version of Section

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107, declares that "there is ample case law recognizing the existence of the doctrine [of fair use] and applying it,"42 but, in fact, there is no case law at all on the copying of audiovisual materials in a nonprofit setting as a fair use.43

Time, Inc. v. Bernard Geis Associates, the celebrated case involving fair use of the Zapruder film of the assassination of President Kennedy, is the only decided case which approaches making a statement about fair use of audiovisual materials in the classroom." It was held that publishing charcoal sketches of frames from the film in a book, Six Seconds in Dallas, was a fair use because of the public

107 should be set out here:

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C.A. § 107 (1977). Recently, a court construed Section 107 and called the doctrine of fair use the principal difference between the protection afforded by a copyright and that given by a patent. New York Times Co. v. Roxbury Data Interfare, Inc., (D.N.J. 1977), reported in 333 PATENT, TRADEMARK & COPYRIGHT J., June 26, 1977.

42. HOUSE REPORT, supra note 2, at 65; cf. Rosemond Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966).

43. The two cases involving instructors copying intellectual materials for classroom use without payment or clearance have involved only print media: Wihtol v. Crow, 199 F. Supp. 682 (S.D. Iowa 1961), rev'd, 309 F.2d 777 (8th Cir. 1962) (choral director of an Iowa high school prepared a new arrangement of the plaintiff's copyrighted song, "My God and I," and manufactured 48 copies on the school duplicating machine) and MacMillan Co. v. King, 223 F. 862 (D. Mass. 1914) (tutor at Harvard distributed to his students 30 summary sheets of chapters in economics textbook). These two cases did yeoman duty in the many law review articles on photocopying of medical journals by the National Institutes of Health Library. Williams and Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd, 420 U.S. 376 (1975) (equally divided decision). The decision allowing the photocopying as a fair use was discredited in a passage of the Senate Report: "The recent case of The Williams and Wilkins Company v. The United States failed to significantly illuminate the application of the fair use doctrine to library photocopying practices." SENATE REPORT, supra note 2, at 71. A dissenting judge called it the Dred Scott decision of copyright law. 487 F.2d 1345, 1387 (Nichols, J., dissenting). For discussion of two pending cases on videotaping of copyrighted works, see notes 47 and 51 infra.

44. 293 F. Supp. 130 (S.D.N.Y. 1968); cf. Rosemond Enterprises, Inc. v. Random House, Ind., 366 F.2d 303 (2d Cir. 1966).

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interest in having the fullest information available on the assassination. Can the holding be made to stand for a similar interest of pupils in having information of national importance or of special importance to a particular class? The case has "not-for-profit" implications because Bernard Geis Associates offered to pay Life magazine a royalty equal to the profits from publication of the book in return for a license, but Life refused. Moreover, subjects of the case were actually photographs registered as such when Life published individual frames from the film, and to that extent there was no audiovisual question.45

The situation in which a private citizen, the actor Roddy McDowall, obtains unauthorized copies of commercial motion pictures for his private use invites comparison." So does the situation in which. a private citizen uses a videotape recorder to record a television. program off-the-air." If the use of a videotape machine in the home.

45. Section 101 includes this definition:

"Audiovisual works" are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

17 U.S.C.A. § 101 (1977).

46. 17 U.S.C.A. § 107(4) (1977). According to the New York Times, more than 500 films and television shows were removed from Mr. McDowall's house by federal authorities on December 18, 1975 as part of a crackdown on a film piracy ring. Mr. McDowall is reported to have admitted purchasing a number of films from Ray Atherton, who, allegedly, was a dealer in unauthorized copies. N.Y. Times, Jan. 18, 1976, at 36, col. 1. Later it was reported that, on June 2, Assistant U.S. Attorney Chester Brown declined to indict Mr. McDowall, apparently because there was no evidence that he had offered copies for sale. Had he done so, he could have been indicted for willful infringement for profit under Section 104 of the 1909 Act (17 U.S.C. § 104 (1971)), a misdemeanor. Id., June 3, 1976, at 25, col. 1. This left unanswered the question of the extent of Mr. McDowall's civil liability for infringement for showing the films privately and not-for-profit. See generally Nevins, supra note 8.

47. A test case on this issue has been filed in Los Angeles against Sony Corporation of America and others by Universal City Studios and Walt Disney Productions, Inc., Wall St. J., Nov. 15, 1976, at 4, col. 1. There is speculation that the suit was filed to protect not only TV programs, but also a multimillion dollar investment by MCA, Inc., parent of Universal City Studios, which, with N. V. Phillips, a Netherlands corporation, has developed a videodisc playing system for home use. Since the video-disc player would have no capability to record off-the-air, the owner of the machine would depend upon MCA to supply the prerecorded discs. The Sony Betamax machine, capable of recording off-the-air, could reduce sales of these discs if it were legal to use it. No one knows how a prohibition on the use of videotape recorders in the home can be enforced. Many other articles have appeared in newspapers and periodicals about the Betamax case and videotape players. See, eg., TIME, Apr. 11, 1977, at 64; THE CHRONICLE OF HIGHER EDUCATION, Apr. 11, 1977, at 5; Wash. Post, Dec. 21, 1975, § 7, at 1, col. 1.

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[Vol. 4/225 results in build-up of private libraries of programs, it becomes apparent that the potential market for reruns of the programs could be affected. In like manner, educational media producers argue that build-up of an unauthorized library in audiovisual departments of schools and universities affects their potential market." Moreover, media producers do not see an analogy to guidelines for photocopying of print media by educators." These guidelines quantified the amount that could be copied by using word counts. For example, the guidelines allowed copying of not more than 250 words of a poem nor 2,500 words of a complete article, story or essay and no more. than two excerpts from the same author nor more than nine instances of copying for one course during one class term.50 Such quantification alone was not satisfactory to media producers as a guideline and their talks with educators broke down before any guidelines could be given to the House Committee on the Judiciary.51

The reason media producers would not accept quantification is that small portions of a tape or film might represent the most valuable part of it, and that therefore a quality test must be added to the quantity test. For example, a brief sequence showing a monarch butterfly emerging from the cocoon might be the essence of an educational film about the monarch butterfly and its most costly part to produce.52 Similarly, the few seconds of footage by Abraham Za

48. Hearings, supra note 18, at 330 (Testimony of Edward J. Meell). Ivan Bender maintains that sale of fifty to seventy-five prints of an educational film makes it a best-seller. The producers' investment in such a film is $2,000 per minute, or more. Address by Ivan Bender, supra note 35.

49. See HOUSE REPORT, supra note 2, at 67-72.

50. Id.

51. Address by Ivan Bender, supra note 35. Irwin Karp, counsel for Authors' League of America, Inc., maintains that quantitative guidelines were essential to an agreement on educational fair use of print media. Address by Irwin Karp, Indiana University Conference: The Copyright Dilemma-A Rational Outcome (Apr. 14-15, 1977). Perhaps guidelines will emerge from the decision in a suit filed in United States District Court for the Western District of New York (seated in Buffalo) by Learning Corporation of America, Time-Life Films, Inc., and Encyclopaedia Britannica Educational Corporation against the Board of Cooperative Educational Services (BOCES) in the First Supervisory District, Erie County, New York. Significantly, named also as defendants were Joseph Plesur, director of the media center, his chief engineer, and other staff. Allegedly they distributed a 200-page catalogue listing videotape copies made off-the-air without clearance or payment. These were made available on request for performance in classrooms. It is doubtful that it would be in the best interest of educators to win a complete victory, since carte blanche copying privileges could force some producers of educational works out of business. EDUC. & INDUS. TELEVISION, Dec., 1977, at 6.

52. Address by Ivan Bender, supra note 35. Edward Meell made the point well in his statement to the House Committee on the Judiciary:

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pruder showing the assassination of President Kennedy might be the most valuable part of an otherwise routine television program. The issue is complicated by the decision in Time, Inc. v. Bernard Geis Associates which clothed the frames of the assassination with a public interest that, when read with Section 108(f) (3) (which permits archival copying of news programs), might well mean that instructors may copy it off-the-air for use in the classroom.53

(B) Section 504(c)(2): Protection for Instructors; Peril for Audiovisual Directors

Where copying is done for educational use and the part to be copied cannot reasonably be classified as news, the decision on the legality of the copying will rest, for practical purposes, with the audiovisual director. It has been seen that school administrators have little concerned themselves with the issue of copyright infringement and when they do promulgate a policy, it will probably devolve upon the audiovisual department to enforce it. In these circumstances, the director faces exposure to liability under the Act and might stand alone with the instructor as defendant in some cases should the doctrine of sovereign immunity protect state and local public schools. 55 The remedies available to plaintiffs include,

54

The concept of "brief excerpts" (which are not substantial in length in proportion to their source) is very difficult to apply to educational audiovisual materials. A half hour education, nature or biology film, for example, may be built around an exceedingly difficult photographic sequence which may take months of work to capture, but may in the final product only take up a minute or two of time in the film. To permit this minute or two to be reproduced freely under an educational exemption would very likely destroy the economic viability of the product.

Hearings, supra note 18, at 316.

53. See discussion of HOUSE REPORT, supra note 2, at note 34 supra.

54. See note 16 supra.

55. There is little case law on the issue. In Wihtol v. Crow, the trial court rendered judgment for the school choral director, Nelson Crow, not finding his actions in arranging and copying Austris Wihtol's copyrighted song to be an infringement. As to the school's liability, the court said, "[I]n the exercise of its governmental function it is not liable for tort claims. [citations omitted]. Under the doctrine of governmental immunity the defendant, Clarinda, Iowa School District, cannot be held liable for the copyright infringement alleged herein." 199 F. Supp. 682, 685.

On appeal, the decision was reversed. 309 F.2d 777 (8th Cir. 1962). The court of appeals held that Mr. Crow was an infringer, but upheld the immunity of the school under the eleventh amendment to the United States Constitution, which provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. The plaintiff had been represented

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