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A heavily litigated aspect of fair use that I don't have time to get into, but it is one of the more colorful aspects, is criticism that is humorous in the nature of parody or burlesque. The question there is whether in the nature of parody or insulates the parodist from liability.

And as Jack Benny showed when he transformed "Gaslight," the melodrama, into a comedy called "Autolite," parody doesn't insulate.31 But as later cases show, it does give leeway, enough leeway to conjure up the original.32

Now, a similar bit of leeway, but not an exemption, is the nonprofit element, which gets us a little closer to your subject, for example, just like parody, nonprofit uses do have some breathing room and some leeway, but that leeway is not complete.

That would bring us to a most dramatic incident, that involved the teacher out in Iowa. Remember? Everybody has heard about that music teacher who found that the song in question did not suit his choir's needs, so he rearranged it, made 48 copies on the school duplicating machine, performed it once in the school and twice in church on Sunday.

There are a lot of interesting factors in the case-good faith in that he sent the arrangement to the proprietor, and some of the bad vibes that the proprietor gave in his overbearing letters and in his testimony on the stand. Nevertheless the district court said that that is fair use, that the teacher was just experimenting.33

But as most of you know, that was unanimously reversed by the eighth circuit, which said, notwithstanding the innocence the substantiality of the copying made it infringement.34

This sent shock waves through the educational community including many of you back in 1962, and it stepped up the requests of that community for a specific educational exemption across the board, so to speak, which, of course, was not granted. Rather, what was granted were the specific provisions I indicated earlier.

I am getting to the end of my presentation without reaching the cases that I mentioned earlier. I will do the best I can before the break. And that is to talk about the shift that I identified at the outset. To me, a philosophical shift could be detected in the 1968 case involving the home movies of the procession, the tragic motorcade, that turned out to be the assassination of President Kennedy. Several of the significant frames in that case were copied. And the judge, in a very complex case, discussing all the issues, including fair use, trotted out the four criteria that were then taking shape in the revision

program.

But in my opinion-and as you see, I like to reduce everything to a single sentence-I think the aggregate indication of the holding in that case was the sentence: "There is a public interest in having the fullest information about available on the murder of President Kennedy." 35

This is not to suggest that public interest as perceived by a particular judge will automatically bury copyright owners' rights. It does

Si Benny v. Loews, Inc., 239 F. 2d 532, 112 USPQ 111 (9th Cir. 1956), aff'd by an equally divided Court, 356 U.S. 43, 116 USPQ 479 (1958).

Columbia Pictures Corp. v. NBC, 137 F. Supp. 348, 107 USPQ 344 (S.D. Cal. 1955). 33 Withol v. Crow, 199 F. Supp. 682, 132 USPQ 392 (S.D. Iowa 1961). For reversal, see note 32 infra.

4309 F. 2d 777, 135 USPQ 385 (8th Cir. 1962).

Time, Inc. v. Bernard Geis Associates, 233 F. Supp. 130, 159 USPQ 663 (S.D.N.Y. 1968).

suggest, though, that the emphasis might be shifting from the cases that I mentioned earlier to cases where sometimes a substantial, if not total, amount is taken by means of new technology, not for incorporation in a new work, but for the important purposes of research or education.

This is, of course, the issue that is facing you. This difference is a two-edged sword. Copyright owners, on the one hand, argue that the very purpose of fair use was to encourage further creation and that a library photocopy or video tape by educators, for example, does not fit into that category. Indeed, in the words of Irwin Karp, it is "bare, naked reproduction."

Librarians and educators, on the other hand, have argued that if fair use is permitted in the case of a published, potentially competitive work, then it is even more clearly fair use to do something that doesn't produce a potentially competitive work.

The only other case involving bare, naked reproduction was the New York Herald Tribune case in 1941, that I don't have time to go into.36 But I think there was some recognition through the years that there was some form of such bare, naked reproduction which was fair

use.

For example, the Register's 1961 Report lists two or three of those, such as the reproduction for litigation or legislation, et cetera.37

The matter was, of course, tested or supposed to be tested in the Williams and Wilkins against the United States case, where the question was whether the photocopying of journal articles from the plaintiffs' medical journals constituted infringement or fair use.

After a trial judge's decision in favor of the publisher,38 the Court of Claims reversed, 4 to 3, finding fair use.39 I'm sure many of you have read the opinions or summaries.

I suppose again, if we reduced ourselves to the single sentence, we probably would come up with something that is reminiscent of the Kennedy assassination photograph case. And that is, the four judge majority felt potential harm to medical research by finding infringement seemed to them to outweight the potential harm to the publisher by finding fair use.

The Supreme Court heard the case and split 4 to 4. It left the case without the Supreme Court's imprimatur, and therefore, we're left with the close decision and also the self-limiting factors that the Williams and Wilkins opinion involved.

I mentioned the Walt Disney against Alaska Network case.40 And that is the case where there was off-the-air videotaping of a program in the State of Washington, and shipping it to Alsaka. Fair use wasn't even raised in that case; at least it didn't appear in the opinion. And the commercial use of that certainly made it, I think, an easier case than otherwise.

So finally, I come to the case in Buffalo brought by the Encyclopedia Britannica, General Learning Corp., and Time-Life against BOCES." I have the feeling most of you know that case as well,

36 N.Y. Tribune Co. v. Otis & Co., 39 F. Supp. 67, 49 USPQ 361 (S.D.N.Y. 1941).

37 "Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, Report to House Committee on Judiciary," 87th Cong., 1st sess., 24 (1961). as 172 USPQ 670 (1972). For reversal, see note 39 infra.

487 F. 2d 1345, 180 USPQ 49 (Ct. Cl. 1973), "aff'd by an equally divided Court," 420 U.S. 376, 184 USPQ 705 (1975).

40 See note 23 supra.

4 See note 24 supra.

if not better, than I. The introductory statement of the court bears on what you are doing today:

Educational institutions have been videotaping television broadcasts for strictly educational purposes for some time. The legality of such copying has never been determined either by the courts or the legislature. The problem of accommodating the competing interests of both educators and film producers raises policy questions which the legislature is better equipped to resolve. However, Congress has not as yet provided a legislative solution to the problem, but has left it to the courts.42

7

The court reviewed briefly the fair use doctrine, then focused on the Williams and Wilkins case and the distinguishing factors that the court felt were present. In particular, the court did emphasize at a couple of places the fact that this was a preliminary injunction motion, that is, an early, preliminary, though important decision, but one that is not final necessarily, nor one that has all the evidence in.

My latest information as of yesterday was the case is still being vigorously prosecuted and vigorously defended. So it may go to trial, at which point there would be another decision.

For example, on the question of the effect of the taping on the plaintiff, the court said, "The court must assume for the purposes of this motion that Boces' practices have had or will have a substantial affect on the plaintiffs." 43

Two final comments:

First, the court in Boces took pains to point out that:

This case does not involve an isolated instance of a teacher copying copyrighted material for classroom use, but concerns a highly organized and systematic program for reproducing videotapes on a massive scale." 4

This brings to mind some language that were in the reports such as the 1975 Senate report, stressing that the spontaneity of classroom action by classroom teachers, is a factor favoring fair use, and then said:

A different result is indicated where the copying was done by educational institutions, school systems or larger units, or where the copying was required or suggested by the school administration, either in special instances or as part of a general plan." 45

As I mentioned earlier, at this very moment in Los Angeles, the Betamax case is on trial, right in the course of a trial. It does involve home use rather than school use.

Some people argue one way or the other on the difference. In other words, everyone agrees there are differences.

Some people think that is an easier case, others, a harder case.

As you know, in that case the plaintiffs are trying to establish liability on the part of the home user-that is, direct infringementand also that the stores which are selling and demonstrating the equipment and, of course, Sony, that is manufacturing the equipment, according to the plaintiffs, should also be held liable.

I think the outcome of the case will be interesting as will all sorts of other developments.

Thank you for your time.

[Applause.]

Mr. LEHMAN. Thank you very much, Alan. I think that is an ex-cellent way to begin.

42 447 F. Supp. at 248.

43 Id. at 251.

44 Id. at 252.

45 S. Rept. No. 94-473 supra at 63.

I think we all now have a good grounding in what perhaps-I would like to say "what the law is," but I think we have to say "what the law is not." Because it doesn't seem thet we have much on this area. And of course that is one of the things we will be trying to work out within the next few months with the committee which Congressman Kastenmeier referred to.

Now the agenda says, "coffee break," and we had attempted to provide that by having a big 100-cup coffeemaker over here which unfortunately does not work.

We have a smaller one which does work, which has about 35 cups in it. So I invite you to begin the competition which will begin after coffee break among various sides by struggling to gain the few cups of coffee we have.

And there also is a little carryout coffee shop one floor below us here which has doughnuts and other things in case you haven't had anything to eat this morning.

However, we are going to try to move right along. So if you could be back in 10 minutes, then we can proceed to go on and we will hear presentations by the Copyright Proprietors.

[Brief recess.]

Mr. LEHMAN. Now we really get to the meat of the program by beginning to hear from both sides to the controversy on off-air recording.

Most of you have agendas, I hope. If you don't have them, they are at the table where you came in, and they list who is going to speak when, and so on. And I hope that this meets with most people's approval as a fairly representative group.

We are going to start out with a presentation by the Copyright Proprietors. And everyone excepting the networks will have approximately 15 minutes each.

Because the commercial networks represent a common, but not identical interest, each one of them, they are going to have to share their time among themselves. So their presentations will be sort of in little bits and pieces of maybe about 5 to 8 minutes each.

I would like to start out with the Association of Media Producers who will be represented by Mr. James LeMay of Coronet Instructional Media in Chicago, a producer for the educational market.

One thing I would like to say just before we go ahead, on an administrative note: When we break for lunch, the program says 1 o'clock, and it is just as well we are running about 15 minutes late, which is to be expected, because this building has a cafeteria in the basement one floor below, which is open to the public-that is, those who are not Members of Congress or staff people at 1:15.

So we will adjourn at about 1:15. Everybody will be able to get a fairly efficient lunch in the cafeteria below.

So you might keep that in mind if you are worried about where you are going to eat lunch.

We will proceed with Mr. LeMay.

TESTIMONY OF JAMES LEMAY, CORONET INSTRUCTIONAL MEDIA, ON BEHALF OF THE ASSOCIATION OF MEDIA PRODUCERS

Mr. LEMAY. Thank you. Good morning.

My name is James LeMay. I am general manager of Coronet Films in Chicago. And I am cochairman of the Copyright Committee of the Association of Media Producers.

The Association of Media Producers is the national association of producers and distributors of audiovisual educational materials. Virtually the only market for our products is schools and libraries.

Our members are strong advocates of increased and more effective utilization of technology in education and training, and our industry plays a vital role in the country's educational system.

We agree wholeheartedly that students and teachers should have convenient access to the widest possible variety of materials which will assist in the learning process; indeed that is the reason our companies exist.

However, we are deeply concerned that in the endeavor to meet the needs of our educational system, the impact on creators of these materials is being neglected. The goal of everyone in this room is to improve instruction.

This can only be fully achieved if a proper balance exists between the requirements of the schools and the rights which copyright proprietors must possess-if they are to continue to provide the very instructional materials teachers feel are an essential part of quality education.

We must work together to meet the needs of our schools and to ensure just compensation to copyright proprietors for the use of materials taped off the air. Only then can we assure the survival of a private educational media industry and prevent the educational system from becoming completely dependent on instructional resources designed and produced under the aegis of Government agencies.

Most people think of films and television in terms of entertainment programs, large Hollywood studios, and commercial TV networks. However, that is not our industry. It is important to understand the unique nature of the educational media industry in order to recognize the effect of unauthorized off-air recording.

First, our industry is composed primarily of small companies: 43.2 percent of AMP's members in 1978 had gross annual sales volumes of $500,000 or less; less than 7 percent of our members had gross sales volumes of $5 million or more. In today's economy, this is indeed "small business."

Second, we sell our products to a very limited marketplace. Educational materials are not sold to consumers in general, nor for entertainment; in 1978, schools, colleges, and libraries accounted for 93 percent of industry sales. The number of schools and libraries themselves is very limited. For example, there are fewer than 5,000 school and library customers for educational films in the United States.

Third, the number of copies of audiovisual products produced and sold is very limited. Compared with textbooks, for example, which are generally provided on the basis of one to a student, one or two prints of a 16-millimeter educational film may serve an entire school system of moderate size; a single filmstrip may be used by all the pupils in one or more grades. A successful film will sell a few hundred prints during its lifetime; a well-received filmstrip set, in the low thousandsand this is over a 5- to 10-year period.

The initial investment in an educational audiovisual product is substantial and includes market research, consultation with educational specialists, development, production, and market testing before we begin marketing.

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