and revisit, and then revisit again, until hopefully a solution of sorts

emerges.

I don't think anyone here in this room this morning believes that it is going to be solved this morning or this afternoon, but especially for those of you who attended the Airlie House conference of July 1977, you may be a little bit skeptical. But I think when you look around and see how many people have turned out and the interest, I think one thing we can say very positively is that the door seemingly is still open.

But it is also important that, after a reasonable time and a herculean effort by the parties involved, that we may have to come to the realization and I think it is important for Chairman Kastenmeier to be made aware of that too-that the parties cannot come to an agreement. But hopefully that will not be the case.

And I think with all of us here today the purpose is to make every effort possible. And with your permission, I would just like to read a brief letter that was sent to our chairman by Congressman Railsback, and it says:

DEAR BOB: Due to commitments in my district, I will be unable to attend the copyright meeting of March 2. I would like to commend you on your efforts in bringing the interested parties together on this most difficult and controversial issue. Off-air taping for educational purposes is an issue that affects millions of people and billions of dollars, and it is an issue that must be brought to a resolution either through the efforts of the parties that are being assembled on Friday or through legislation. It is an issue that is not partisan.

As you know, you have my full support and backing in your efforts to try and bring the parties together. If the parties are unable to come to a satisfactory solution of this matter, I am willing to support legislation that will resolve this issue.

Warm regards,

Thank you.

Mr. LEHMAN. Thank you very much, Tom.

TOM RAILSBACK.

We heard from the Democrats and the Republicans, and now the Copyright Office. Perhaps now that my boss has left the room, I can say that we are saving the best for the end. We will be hearing from Barbara Ringer at the closing of today's meeting.

But to acquaint you a little bit with the Copyright Office and some of the program details of this morning, I will turn the podium over briefly to Ivan Bender, who has done a lot of the work, as many of you know, in helping the subcommittee put together the program this morning.

Just before I turn the program over, I would just like briefly to mention a little bit about the nature of the program to followup on what Chairman Kastenmeier said. This is a very highly structured meeting, because we have a limited amount of time, and we need to get everybody's point of view on the record in that limited period of

time.

We are taking an official transcript of the meeting this morning, and it will be published and made available to everyone who is here and also to those who will be working on this problem in the future. That record will be open for additional comments, so that if anybody, for a period of 2 weeks subsequent to this meeting, wants to submit written statements, comments appropriate to this issue we will be happy to accept them, and they will all be bound together in one volume and will serve as a very excellent working document for dealing with this problem in the future.

There probably will not be a lot of time for open general discussion. We will see how it goes. If at the end of the day we have been moving along fairly rapidly, then we might be able to get into a little bit of discussion of the issue.

We don't want to be authoritarian about that, but in order to make sure everybody is treated fairly, we have to have a very structured program.

But if we do get into discussion, I would like you to be thinking of comments you would like to make and commit them to a piece of paper, just a few sentences about what you would like to bring up.

Mrs. Marcus over here on the side of the room will be happy to take those from you, and then we can take a look at them, and, if we have time, select the ones that are representative, and that will constitute our closing discussion.

So with that I would like to recognize Ivan Bender. Then we will get into the meat of the program.

Mr. BENDER. Bruce said I will welcome you briefly, and Bruce doesn't know me very well, but I will be brief, I promise you, this time. On behalf of the Copyright Office, Library of Congress, Barbara Ringer, Register of Copyrights, Jon Baumgarten, General Counsel of Copyright, I want to welcome all of you to this conference.

I look out on a sea of friendly faces. It reminds me that to some extent it is a reunion of Airlie House.

Airlie House has been mentioned this morning on several occasions. All the prior speakers have talked about it, made reference to it, and I think that the principles that were discussed at Airlie House are still valid today, in spite of the fact that the problem is still unresolved.

Hopefully, therefore, the Airlie House conference can more or less serve as a jumping off point rather than beginning, as we did at Airlie, to define and otherwise try to determine what the principal issues are.

We know that the problem is complex, and we know that it is not going to be easy to solve. A lot of things in life are not easy to solve, but that doesn't mean that you give up. And as a matter of fact, I am reminded that earlier this morning a major political upset occurred in Chicago, and everybody said that would probably never happen. So perhaps with that as a somewhat recent precedent, we can say, as difficult as this problem is to resolve, it can be done.

As Bruce mentioned, the agenda is a fairly tight one, and many of you that I spoke to are well aware of that. You pretty much know what your time frames are, and we hope that we can stick to that as much as possible, so that we can indeed leave some time at the end of the program for comments or questions from the audience.

One other thing that I would like to mention to you, some people during the course of establishing the agenda asked if written statements would be appropriate or indeed necessary. We have not asked the presenters to provide us with written statements. However, if any of the presenters or anyone else that represents themselves or constituencies would like to provide a written statement for the record, please do so.

Some of the other mechanics, we will discuss as the day goes on. We will have a break following our next presentation. And with that, I will turn the microphone over to Bruce to introduce Professor Latman.

Mr. LEHMAN. One of the things that we decided was essential to this program, after talking to a lot of people about their perceptions of the issue over a period of time, was to begin it with a scholarly, but hopefully not deadly boring, presentation of the history of the problem by a person who is impartial and who has a good reputation in the field and can set good tone for future discussions in the meeting. Looking around the country, the person who Chairman Kastenmeier thought would be the best for that purpose is Prof. Alan Latman of New York University Law School. Professor Latman is rapidly, I think, becoming recognized as one of the leading scholarly experts in copyright law. He is the head of the Copyright Center at the Law Center at the New York University Law School.

Of course, New York is the center of a lot of industries associated with copyright law. In addition, Professor Latman is the executive director of the Copyright Society of the United States, which is a professional copyright association, that I know many of you who are lawyers belong to and perhaps some of the nonlawyers too, actually. I have heard Professor Latman speak many times, and I hope that he will be able to at least warm up the meeting this morning and set the proper tone.

So with that I would like to turn this meeting over to Alan Latman.

TESTIMONY OF PROF. ALAN LATMAN, PROFESSOR OF LAW,

NEW YORK UNIVERSITY SCHOOL OF LAW

1

Mr. LATMAN. In a simpler time, what my children like to call olden days namely, 1958-a simple-minded scholar offered a simpleminded question that could be trotted out whenever we talked about fair use; in other words, whenever it was claimed that a particular reproduction or performance of a copyrighted work constituted fair use rather than infringement, one could simply ask, "Would a reasonable copyright owner have consented to the use?"

It was added that at times public policy, custom, and a lot of other things determined what is reasonable. This suggestion which reduces all of those criteria that we have heard of to one single criterion is like one of my students. I suppose I am getting to appreciate my illustrious predecessor, Professor Derenberg, who could always recognize his students in any group. And I see one here today.

My student decided he wanted to reduce the entire course to one page, the essence. He did it. But it wasn't short enough. So he reduced it further to a paragraph, to a sentence, and finally the whole course. to a single word. He walked into the exam. He forgot the word.

But the single question from the 1958 study does remind us of some of the theoretical bases of the fair use doctrine in copyright law. For example, one is implied consent. As part of the figurative, legendary bargain with the author or copyright owner, where the owner is accorded and accepts a limited term of copyright, the theory is that he or she consents in advance to certain uses of the copyrighted work which might otherwise infringe.

The popular theoretical basis for fair use these days is the Constitution-namely, the constitutional power of Congress to "promote

1 Latman, Fair Use of Copyrighted Works, 2 Studies on Copyright 15 (Arthur Fisher Mem. Ed. 1963).

the progress of science," that is, knowledge, by providing a system of copyrights to private citizens.

So in one important case involving the right of a biographer of Howard Hughes to copy from a magazine series which had been one of the few articles dealing with Hughes, the court said, "The fundamental justification for the privilege lies in the constitutional purpose in granting copyright protection in the first instance." 2

I wish I had time to go into the question of whether the Constitution really answers the controversies that come up. For example, the sentence I just quoted you from the Howard Hughes case is followed by another sentence from an even more colorful case, which we call the "Mad Comics Case," which says, "To serve that purpose [that is, the constitutional purpose] courts in passing upon particular claims of infringement must occasionally subordinate the copyright holder's interest in a maximum financial return to the greater public interest in the development of art, science, and industry."

I am sure that sentence rings pleasantly in the ears of those among you who consider yourselves part of the user groups. User groups very often quote another maximum: "The copyright law like the patent statutes makes reward to the owner a secondary consideration.

But when the Supreme Court quoted this maxim in the Mazer v. Stein case, it immediately noted that the law is, nevertheless, intended to grant valuable enforceable rights to authors, publishers, et cetera, because: "The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance the public welfare through the talents of authors."

Without burdening you with too many quotations, I do want to add a pertinent comment made by this committee, the House Judiciary Committee in its 1967 report on this very subject:

The fullest possible use of the multitude of technical devices now available to education should be encouraged. But, bearing in mind that the basic constitutional purpose of granting copyright protection is the advancement of learning, the committee also recognizes that a potential destruction of incentives to authorship presents a serious danger."

Maybe this whole question of the constitutional controversy is overrated. After all, James Madison didn't have any trouble with it. He probably drafted the clause. And in the "Federalist Papers" he said that, "The public good fully coincides with the claims of individuals with regard to patent and copyrights." So maybe the problem is easy.

Against this background, of course, the courts developed the equitable rule of reason called "fair use." It arises in a few characteristic settings. But in my view its development has also included a very significant shift since the olden days of 1958. I would like to describe these settings and talk about the shift, but first I suppose I must walk through the statute with gun and camera, as they say, to note the provisions bearing most closely on off-the-air taping by schools.

2 Rosemont Enterprises, Inc. v. Random House, Inc., 366 F. 2d 303, 150 USPQ 715 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 152 USPQ 844 (1967).

Berlin v. E. C. Publications, Inc., 329 F. 2d 541, 141 ÚSPQ 1 (2d Cir.), cert. denied. 379 U.S. 822, 143 USPQ 464 (1964).

U.S. v Paramount Pictures, 334 U.S. 131, 158 (1948).

$347 U.S. 201, 100 USPQ 325 (1954).

H. Rept. No. 83, 90th Congress, 1st session 31 (1967).

7 "The Federalist," No. 43 at 279 (modern library edition, 1941).

Some of the things I am about to say will necessarily reflect interpretations about ambiguous developments. And so here is a quick disclaimer. I personally have through the years been involved in some reported lawsuits and many unreported counselings to clients on all sorts and on various sides of questions of fair use. I hope only one side at a time, but nevertheless, in the aggregate on all sides, and some pretty close to the subject that we are talking about today. Needless to say, I speak only for myself.

What are the statutory provisions? First, to begin with and only to begin with is, of course, the group of sections that grant rights and define infringement. Section 106 is the source of the exclusive rights to reproduce, distribute, publicly perform, publicly display.

And section 501, without too much detail, simply labels as infringement anything that violates these exclusive rights.

But section 106 begins with six very important words, "Subject to sections 107 through 118," so we must look at these sections also.

Although some people disagree, I do feel that each of these sections, 107 through 118, are cumulative; that is, if you can fit under one of them, you fit. If you can fit under more than one of them, you may. But, of course, you must fit.

These 12 provisions, 107 through 118, can perhaps be broken into four groups. First is the fair use provision itself. Second involves library or archival taping of television news programs. The third and the most variegated involves a variety of instructional and public broadcasting uses. And the fourth is easy because it is restricted to the taping by the Librarian of Congress.

So let's start with the fair use provision, section 107. This section is the broadest gaged of all limitations. It potentially covers all the uses of all works. Of course, I said "potentially." It is also the first express statutory recognition in this country of fair use principle, stating in essence in its first sentence that "The fair use of a copyright work *** is not an infringement of copyright." A very important principle.

Incidentally, that bare bones sentence is just about how the provision read early in the revision program, 1965.8 When the very first revision bill appeared in 1964, it contained a provision with some criteria in some detail which succeeded in making everybody unhappy. So a year later the 1965 bill provided simply that fair use is not infringement.

A few more specific comments about fair use. First, fair use potentitially applies to "reproduction in copies and phonorecords or by any other means specified in section 106." If we start with the proposition that section 106 grants the copyright owner the right to reproduce copies or phonorecords, et cetera, then we say we have a fair use provision. Isn't this particular language redundant? Isn't it obvouis? Maybe it is, but this committee notes in its 1976 report that this language-namely, that fair use includes the privilege to make copies or phonorecords, et cetera, "is mainly intended to make clear that the doctrine has as much application to photocopying and taping as to the older forms of use;" it is not intended to give these kinds of

8 E.g., H.R. 4347, 89th Cong., 1st sess. E.g., H.R. 11947, 88th Cong., 2d sess.