1977] VIDEORECORDING AND COPYRIGHT V. CONTRACTUAL CONTROL OF COPYING AND PERFORMANCE 247 Unlike print media owners, audiovisual media owners have experimented with licensing agreements during the pendency of the 1976 Act.65 Most of the licenses contemplate use of a whole work. However, one plan, Encyclovideo, offers copying of excerpts from the entire backlist of Encyclopedia Britannica Educational Corporation.66 In Encyclovideo, each film is broken down into excerpts which are then cross-indexed in several ways. The Encyclovideo system, limited to the films of one producer, does not have the advantages of the industry-wide approach of print media owners in their Copyright Clearance Center (CCC). The American Association of Publishers with guidance from the Commission on New Technological Uses of Copyright, made the CCC operational on January 1, 1978.67 Journal articles have been published with codes informing all potential users what they must pay the CCC. Anyone at a participating copy center may pay the fee and make photocopies. The fee is sent to the CCC which, with the aid of codes read by computer, remits proceeds to publishers. There are still the problems of affording authors the right to withhold permission to copy and of maintaining Department of Justice clearance for antitrust aspects of the program.68 Warrenton, Virginia Conference revealed that, at the least, educators want seven-day rights to videotape any work off-the-air without payment or clearance. See note 74 infra. 65. Even the Williams and Wilkins Co. made a abortive attempt to license the National Institutes of Health Library for photocopying. 487 F.2d 1345 (Ct. Cl. 1973). 66. See Encyclopedia Brittanica Corp., Encyclovideo Catalogue, A Computer-Generated Master Index of Film Footage from Encyclopedia Brittanica Corporation. 67. See American Ass'n of Publishers, Program for the Provision of Copies of TechnicalScientific-Medical Journal Articles and for Related Information-Service Copying (Mar. 17, 1976); 345 PATENT, TRADEMARK & COPYRIGHT J., Sept. 15, 1977, at A-5. 68. See PUBLISHER'S WEEKLY, Apr. 11, 1977, at 28. It is interesting to note that the Program contemplates developing, along with publishers, authors, and library associations, new guidelines for fair use of journal articles, only temporarily using those guidelines now contained in the House Report as interim guidelines. See text accompanying note 41, supra. It is not clear whether libraries will participate in the plan, or, by their disinterest, force the establishment of print-supply centers. Libraries would have increased administrative costs. Section 108(f)(1), 17 U.S.C.A. § 108(f)(1) (1977), exempts libraries (not just public libraries), archives, and their employees from liability arising from the unsupervised use of reproducing equipment located on their premises provided the equipment displays a warning notice that the making of a copy may be subject to the copyright law. An almost identical program involving textbooks was described in Comment, The Effect of the Fair Use Doctrine on Textbook Publishing and Copying, 2 AKRON L. REV. 64, 65 (1969). In a business review letter dated September 1, 1977, the Antitrust Division of the Justice Department declared that "the 248 NORTHERN KENTUCKY LAW REVIEW [Vol. 4/225 Audiovisual licenses often combine rights to copy and rights to perform, and the licensor considers several criteria to arrive at a fee. For example, a license to perform might be triggered at no extra cost simply with the purchase of a program on the state level as in the case of the AIT Policy, or the licensor might charge separately for performance rights per copy, per student, per monitor, per building, per school, per district, per campus (with or without branch campuses), or per state system, and for transmission over closed circuit, open circuit, or otherwise. For example, the BFA Videotape Duplication Plan allows the user to make annual payments based on titles to be copied and on the number of students in the school district. Upon payment of the copying fee, the licensee is granted rights for unlimited copying of titles.70 Licenses may provide for making copies from purchased copies or from borrowed copies, but if a program is expected to have wide appeal, the most efficient system is licensing to copy off-the-air. The first such license was the License to Make and Use Off-Air Recorded Video Cassettes of the thirteen-episode series, "The Age of Uncertainty," offered in early April, 1977 by Films Incorporated." For the first time, a company obtained from the owners of a televised series not just the traditional rights to market films and videocassettes, but also the right to license schools to copy off-the-air. Off-the-air rights benefit licensees in that they may purchase the series for half the price of 16 mm film and about two thirds the price of the videocassette format.72 They benefit the licensor by saving the expense. of preview copies which are customarily sent to audiovisual departments as a necessary marketing device.73 Division has no present intention of challenging the organization or operation of the [Copyright Clearance] Center under the antitrust laws." 344 PATENT, TRADEMARK & COPYRIGHT J., Sept. 8, 1977, at A-2. 69. See generally W. CARSON, LICENSING A-V MEDIA: ONE STEP AHEAD (I. Bender ed. 1975). 70. Id. at 5. 71. Films Inc., "The Age of Uncertainty" (A BBC series with John Kenneth Galbraith, coproduced by KCET-Los Angeles). Announcement of this license was immediately hailed as a new concept in copyright licensing. See VARIETY, Copyright Twist: Sell Licenses to TV Show Pirates. Apr. 6, 1977, at 2. 72. Id. See also note 74 infra. 73. Even with the obvious advantages available under an of-the-air license, sales were not satisfactory three months after its introduction. The Sales Manager of Films Incorporated speculates there might be two reasons. First, there is some doubt about the popularity of the series among educators. Second, the broadcasting began in May near the end of the school year. The company believes that, logically, the license concept must be acceptable because 1977] VIDEORECORDING AND COPYRIGHT 249 There are several business hazards in sending out preview copies. The copy might be damaged by carelessness of the previewer, might not lead to a sale, or might be copied without permission. In fact, the making of pirated copies off-the-air or from preview copies has already given rise to a copyright infringement suit." Instead of litigation, licensors have tried to rely on the contractual device of certificates of destruction or erasure. For example, the Films Incorporated license carries a privilege to make an off-the-air copy of each episode for preview use only for fifteen days, but failure to supply the licensor with a certificate of erasure within that time shall be deemed a purchase of the license for that episode. 75 Failure to com it offers the quickest and cheapest way to preview a program. The company plans to continue offering such licenses. Interview with Herbert A. Schiff, Vice-President and National Sales Manager of Films Incorporated (June 28, 1977). 74. When an upstate New York school system reportedly circulated a catalogue listing bootleg videotapes of educational programs for sale to other schools, it appeared a test case was in the making by a number of distributors. The Register of Copyrights then requested a conference on July 19-22, 1977, in Virginia, at which representatives of the parties would address the problem of off-the-air videotaping. Address by Barbara Ringer, Register of Copyright, University of Kentucky Symposium I: Public Law 94-553 (Apr. 22, 1977). The suit was nevertheless filed. See note 51 supra. The conference which resulted was described as follows: The "Conference on Videorecording for Educational Uses," sponsored jointly by the Copyright Office and The Ford Foundation, was held July 19-22, 1977 at Airlie House in Warrenton, Virginia. The conference was attended by roughly 80 participants, who were divided into five working groups chaired by the following: Group I-Barbara Ringer, Register of Copyrights Copyright Office Group II-Jon Baumgarten, General Counsel Group III-Richard Lacey, Consultant Group IV-David Davis, Officer in Charge, to the Register of Copyrights, Copyright Office Letter from Linda Cox, Secretary to the Register of Copyrights, to author (Oct. 28, 1977). 75. The license provisions read in full: 1. OFF-AIR TAPING AND PREVIEW: FILMS INC. grants to LICENSEE and LICENSEE hereby accepts from FILMS INC. a limited nonexclusive license under copyright as follows: a. LICENSEE shall have the right to record off-the-air, on videotape, from a commercial telecast or otherwise, one copy only of each of the programs listed above or as may, from time to time, be added to this Agreement by a schedule B or Supplements thereto. b. Unless otherwise stipulated by FILMS INC. for recording of multi-episode series, LICENSEE shall have fifteen (15) days following the date the program is recorded by it to determine whether it desires to license such program for its use under the terms of this Agreement. During such fifteen day period LICENSEE may exhibit the video 250 NORTHERN KENTUCKY LAW REVIEW [Vol. 4/225 ply with the requirement to supply a certificate of destruction gives the licensor the option of suing in state court for breach of contract or in federal court for the tort of infringement of copyright." Certificates of erasure cannot be required without a contract providing for them; but the fact that certificates of erasure can only be required under a contract does not mean they should not be asked for where there is no license. By contrast, in the Public Broadcasting Service Statement of Policy, schools that have recorded off-the-air under the seven-day privilege are merely requested to erase or destroy copies at the end of seven days." It is interesting to note that this seven-day privilege to record and perform in an accredited nonprofit educational institution applies to "The Age of Uncertainty Series" and that instructors may either use the series free for seven days or acquire a license to use it indefinitely.78 VI. CONCLUSION The Warrenton Conference reports reveal there is no agreement among educators and owners on the propriety of videocopying offthe-air." Some owners would allow copying only for previewing; tape copy of the program only to those persons who are involved in the administrative decision as to whether the program should be licensed for use by LICENSEE under the terms of this Agreement. LICENSEE shall have the option, prior to the end of such fifteen (15) day period, to furnish FILMS INC. with a Certificate of Erasure in the form attached hereto as Exhibit C in which event this Agreement shall be inapplicable to such program. In the event LICENSEE does not furnish FILMS INC. with a Certificate of Erasure within the required time, it shall be conclusively presumed that LICENSEE desires to use the videotape copy of the program under the terms and conditions contained herein. c. Any action by LICENSEE with respect to the videotape copy of the program other than the permitted showing as provided in subparagraph b. of this paragraph 1. shall be deemed a copyright violation. It would appear that the part of the license granting performance rights will have to be rewritten to be in conformity with the 1976 Act. It would read: FILMS INC. grants to LICENSEE and LICENSEE hereby accepts from FILMS INC. a limited nonexclusive license under copyright to exhibit the videotape copy or copies pursuant to this Agreement during their useful life to nonpaying private audi ences.... As noted, a performance in a classroom is a public performance. See note 29 supra. 76. Twentieth Century Fox-Film Corp. v. National Publishers, Inc., 294 F. Supp. 10 (S.D.N.Y. 1968); Twentieth Century Fox-Film Corp. v. Peoples Theatres of Ala., Inc., 24 F. Supp. 793 (D. Ala. 1938); Metro-Goldwyn-Mayer Distrib. Corp., 3 F. Supp. 66 (D. Mass. 1933); see M. NIMMER, supra note 5, § 130. 77. See text accompanying notes 38-39 supra. 78. See note 75 supra. 79. See note 74 supra. 1977] VIDEORECORDING AND COPYRIGHT 251 others would allow none at all.80 Even if the premise of some copying for performance under Section 110(1) were accepted the number of days or weeks the copy could be used would be contested. Owners expect that, soon after copying, the copies must be paid for, perhaps after seven days, while educators speak in terms of semesters and quarters." After the time for use without payment has run, either payment or erasure must occur. What controls will be acceptable to owners? Would certificates of erasure by the hundreds of thousands kept on file be a meaningful control? Would school administrators assume responsibility for keeping them or, as in the past, show little interest in the problem of videocopying?"2 While complete works may eventually be copied under controlled circumstances the question of unauthorized use of excerpts remains. It is not analogous to photocopying excerpts from the print media. Those owners are not as sensitive to the value of a particular part of a work, but audiovisual media owners want to control copying of especially costly and desirable excerpts. Nothing in Section 107 on fair use denies this right but it might be in the owners' interest for permission to be stated on the work itself to copy a standard 10% for classroom use while reserving certain portions as available only by license. Perhaps this policy would lessen the tension that exists between owners and educators. 80. Id. 81. Working Group I observed that the period might either start from the first broadcast of a program or from any broadcast, even a rerun, provided that copying a rerun might be prohibited where the program is available for licensing. 82. See note 17 supra. In addition to the requirement of erasure, other principles for the protection of owners seem desirable. A particularly well-drafted statement of them emerged from the Warrenton Conference: Where an entire work is reproduced, the appropriate credits and the copyright notice should be included in all cases. Where an excerpt is reproduced, the work from which it is taken should be identified, and the copyright notice should be reproduced unless impracticable (e.g. stock footage). The following practices would be prohibited under the doctrine of fair use: a. the making of more than a single copy by or for a particular teacher; c. Reproduction of "theatrical" or "feature" films (i.e., films previously dis- d. Off-air taping of broadcasts by an educational institution, not at the specific instance of an individual teacher. |