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NORTHERN KENTUCKY LAW REVIEW
as under the 1909 Act, actual or statutory damages. But, under the 1976 Act, audiovisual directors and their staffs benefit from the umbrella of protection against statutory damages in Section 504(c)(2), which provides: "The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under Section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution. . . ."56 Here appears another part of the Magna Carta for educators contained in the Act.57
by Melville Nimmer, who criticizes the immunity holding in his treatise. M. NIMMER, supra note 5, § 131.42.
In Mills Music Co. v. Arizona, 187 U.S.P.Q 22 (D. Ariz. 1975), the court found the state to be an infringer when it broadcasted the song, "Happiness Is," with special lyrics to promote the 1971 Arizona State Fair. The court made no mention of immunity, but the issue is before the Ninth Circuit Court of Appeals.
In an early case, it was held that a compiler of Michigan laws, who used plaintiff's annotations, was not immune from copyright infringement liability under the eleventh amendment merely because he acted under authority of his contract with the State. Howell v. Miller, 91 F. 129 (6th Cir. 1898). The decision would not, however, stand for liability of an audiovisual director if he or she made copies under authority of the State and used them only within the school, for the court said:
If this suit had as its only object a decree disturbing the State's possession of that manuscript, and ordering the surrender of it to the plaintiff, or its destruction, so that it could not be used, we should say, according to the rule of Belknap v. Schild, that such a suit would be one against the State and could not be entertained.
91 F. at 136.
56. 17 U.S.C.A. § 504(c)(2) (1977).
57. Section 504 reads in full as follows:
Remedies for infringement: Damages and profits
(a) In General.-Except as otherwise provided by this title, an infringer of copyright is liable for either
(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).
(b) Actual Damages and Profits.-The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
(c) Statutory Damages.
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $250 or more than $10,000 as the court
VIDEORECORDING AND COPYRIGHT
The absence of this remedy could render educators safe from prosecution by producers because statutory damages are "a cornerstone of the remedies sections of the bill." Relegated to proving actual damages and loss of profits, and with scant hope of recovering costs and attorney's fees under Section 505 in view of the protective intent manifested by Section 504(c)(2), producers might well stay out of court when an educator is the target.
With these protective provisions in mind, the instructor might feel comfortable in copying, but the audiovisual director will not. If unauthorized copying is being done with departmental equipment,
considers just. For the purposes of this subsection, all the parts of a compilation
(2) In a case where the copyright owner sustains the burden of proving, and
17 U.S.C.A. § 504 (1977). Giving broad meaning to the word "teacher" so as to include directors was the subject of a remark by Congressman Robert W. Kastenmeier of Wisconsin during the House Floor Debate on S.22:
Another question involves the reference to "teacher" in the "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions," reproduced at pages 68-70 of the committee's report No. 94-1476 in connection with section 107. It has been pointed out that, in planning his or her teaching on a day-to-day basis in a variety of educational situations, an individual teacher will commonly consult with instructional specialists on the staff of the school such as reading specialists, curriculum specialists, audiovisual directors, guidance counselors, and the like. As long as the copying meets all of the other criteria laid out in the guidelines, including the requirements for spontaneity and the prohibition against the copying being directed by higher authority, the committee regards the concept of "teacher" as broad enough to include instructional specialists working in consultation with actual instructors.
122 CONG. REC. 10875 (1976).
58. SENATE REPORT, supra note 2, at 143. See generally Wasserstrom, An Analysis of the Infringement Sections of the Copyright Code and Chapter 5 of S.22, 1976 N.Y. LAW SCH. L. REV. 271.
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it is likely to include systematic copying of whole works rather than parts of the works. Moreover, if anyone in the school is likely to be aware of the interpretive problems of the 1976 Act as it applies to copying, it is the audiovisual director. Section 504 (c) (2) does not protect them from intentional infringement and, while individual producers might not have incentive to redress loss of isolated sales, their economic loss could be measurable if a film series were transmitted over closed circuit without permission. Closed circuit rights are being offered under licenses costing thousands of dollars to a single licensee.59 Here, injunctive relief alone is appropriate.60
Returning to the monarch butterfly, it appears that unauthorized copying of a small segment from an audiovisual work presents a de minimis case against educators. Should a producer wish to incur the expense of obtaining an injunction, the defense would be advised to ask for new guidelines for fair use of parts of an audiovisual work. Educators will argue they have no way to know in advance what parts of a film or program meet the quality test as well as the quantity test. Rather, the owners should specify the sequences of each film that may not be copied without permission or suffer the implication that sequences not reserved may be copied. Designations of reserved segments of works may be placed in the title material, in catalogues, and on packaging. Audiovisual personnel will become used to looking for them. An owner of a televised work wishing to prevent off-the-air videotaping may identify reserved sequences in a message preceding the telecast. For example, "The sequence in this program of a butterfly emerging from the cocoon may not be copied off-the-air for educational use without prior written permission from [the company]." Such a warning would be no more out of place than the familiar "parental discretion advised" notices.
With owners able to protect their most valuable sequences, there should be no difficulty in allowing the rest of their works to be copied on a percentage basis. Such a system is appealing in that the
59. See text accompanying notes 68-69 infra.
60. 17 U.S.C.A. § 502 (1977). It is interesting to speculate on the outcome of a request for relief under Section 503: "Remedies for infringement: Impounding and Disposition of Infringing Articles." Under this section, a court may order destruction of both unauthorized copies and the equipment used to make them. It is improbable that a court would go so far as to deprive a nonprofit educational institution of its audiovisual equipment. Indeed, the doctrine of sovereign immunity and the eleventh amendment could prevent any seizure of state-owned copies. See note 55 supra.
VIDEORECORDING AND COPYRIGHT
quantity rule for educational copying may be stated in one sentence. For example, "Up to 10% of any audiovisual work may be copied off-the-air or otherwise for educational use under Section 110(1) except for sequences identified by the owner on the work which may not be copied under any circumstances without permission." Because of the face-to-face teaching limitation in Section 110(1), there would be no appreciable likelihood of loss of revenue to the owner. Closed circuit use of sequences in multiple classrooms would be a matter for licensing.
There remain the problems of spontaneity and cumulative effect. The print media guidelines deal with these, but in the audiovisual context they are unduly complicated." The rule should be retained that the copying must be at the instance and inspiration of the individual teacher because any systematic copying for many classes should be the subject of licenses. However, the requirement that individual instructors must request permission unless "[t]he inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply" is vague and unreason
61. Compare this with a provision in the Guidelines for Educational Uses of Music: 2. (a) For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not constitute a performable unit such as a section, movement or aria, but in no case more than (10% of the work). The number of copies shall not exceed one copy per pupil.
HOUSE REPORT, supra note 2, at 71.
62. Id. at 67-72. The tests for spontaneity and cumulative effect must be met, as well as the quantity test, in order for an instructor to make multiple copies of print media for classroom use:
(i) The copying is at the instance and inspiration of the individual teacher, and (ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
(i) The copying of the material is for only one course in the school in which the copies are made.
(ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
(iii) There shall not be more than nine instances of such multiple copying for one course during one class term.
[The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.] Id. at 69.
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[Vol. 4/225 able.63 If an individual instructor wishes to use a permitted excerpt year after year with the limits of Section 110(1), there is no compelling reason for imposing a requirement continually to check with the owner. A cumulative effect test should prohibit instructors from putting together sequences from the same work so as to subvert the quantity guidelines. There should also be no limit to the number of courses in a school in which an excerpt may be used independently. There would be safeguard enough for owners in the prohibition on use of reserved segments. Unless an owner offers segments under a convenient license arrangement it would seem reasonable for educators to copy and use in classrooms up to 10% of the remainder of an audiovisual work with appropriate credits, without editing the segment and without incorporating it in any other work.64
64. The integrity of a work is a growing concern of producers and owners. See Gilliam v. American Broadcasting Companies, Inc., 538 F.2d 14 (2d Cir. 1976); Comment, Education and the Copyright Law: Still an Open Issue, 46 FORDHAM L. REV. 91, 125-26 (1977). The author proposes the following guidelines for off-the-air videotaping:
(e) EXEMPTED USES: TAPING OF BROADCASTS.—Notwithstanding the provisions of section 106, it is not an infringement of copyright for a school to—
(1) make tapes incorporating the sound or pictures or both (including recording of television or radio signals in any form now known or later developed) of broadcasts of copyrighted works for a subsequent use in a current learning activity, provided
(A) the work taped is not available for purchase or rental in the same or a substantially similar format;
(B) the tape is retained only as long as is necessary, not to extend beyond the end of a current learning activity for which the tape was made;
(C) the taping is done to satisfy a spontaneously arising need presented by a current learning activity;
(D) the taping is not part of a systematic practice, such as the regular taping of all such broadcasts by a media specialist; and
(E) the tape is not used as a substitute for rental or purchase of another work which would otherwise have taken place.
(2) make and retain tapes incorporating the sound or pictures or both (including recording of television or radio signals in any form now known or later developed) of broadcasts of current news events, provided
(A) the substantial nature of the broadcast is current news, not origi
nal creations such as editorials or documentaries; and
(B) the tapes, if retained, are not used for any purpose except subsequent learning activities, scholarly research, or preparation for the conduct of learning activities.
Id. at 134. Essentially, this proposal would allow off-the-air videotaping of an entire work for use during "current learning activity" except when the work is for sale or rent. How long is a "current learning activity"? What if the work is not for sale or rent but a license is available? Is videotaping of excerpts ever a fair use? The author does not address these questions. The