Section 103: Compilations and derivative works

Section 103 specifies another fundamental principle: that copyright may subsist in new versions or compilations using pre-existing materials, but that the new copyright extends only to the new authorship. Copyright cannot extend to any part of a work based directly on pre-existing materials that was used unlawfully. Section 104: National original

In general section 104 restates the present law with respect to eligibility of foreign nationals to enjoy copyright under United States law. Subsection (a) provides that unpublished works are subject to protection irrespective of nationality or domicile. Under present law, most unpublished works are protected by common law, and the common law makes no distinction based on nationality or domicile. The revision bill makes this a statutory principle with respect to unpublished works.

Under subsection (b), published works are subject to copyright if one of four conditions is met :

1. The author is a U.S. national or domiciliary, or a national of a country with which we have entered into a bilateral or multilateral copyright agreement; or 2. The work is first published in the United States or in a foreign country that is a member of the Universal Copyright Convention; or

3. The work is a publication of a designated international organization; or 4. the work comes within the scope of a Presidential Proclamation; the President issues a Proclamation on the basis of a finding that the foreign country accords our authors substantially the same protection as that country accords its own authors.

As interpreted by the courts, the present law extends protection to works by stateless persons, regardless of where the author is domiciled or where his work is first published. Section 104 does not achieve this result, and Congress may wish to consider a revision for this purpose.

Subsection (c) of section 104 is intended to foreclose U.S. courts from sanctioning an expropriation by a foreign government or governmental organization of an author's rights. It is likely that the principle of this provision exists in our law presently, although it has not been definitively tested. Another, possibly better, approach to this question would be to include a general provision against involuntary transfers in Chapter 2.

Summary

CHAPTER 1, SECTIONS 106, 109

SCOPE OF EXCLUSIVE RIGHTS

The section setting forth the exclusive rights of the copyright owner is the heart of any copyright law. On the theory that copyright is a creature of statute, the exclusive rights section determines the limits of protection granted to authors and their successors in interest. This is especially true under section 1 of the Act of 1909 (the present copyright law) since the exclusive rights and limitations on their scope are stated in the same section.

The structural stress of an outmoded law is also felt most keenly here. To the extent that the courts have stretched the limits of statutory language, our "ancient" 1909 law has been made serviceable in the face of technological change. To the extent that the courts have not been able to do this (for example, in the case of cable television and photocopying), we are left with a turn-of-the-century statute in the age of computers, communications satellites, and space travel. The United States has one of the oldest copyright laws of any civilized country and nowhere is this demonstrated more graphically than in the exclusive rights sections. Section 106 of the revision bill would recast the exclusive rights provisions of the law in broad, simple terms. The right to display a work publicly would be added specifically. Detailed limitations on the broad exclusive rights follow in sections 107 through 117. With one exception, these sections are dealt with in separate briefing papers. Section 109 is discussed here, since it expresses the fundamental distinction between rights in a copyrighted work and a physical object embodying that work.

Section 106: Exclusive rights in copyrighted works

General analysis.-The fundamental rights of the copyright owner under the revision bill are the rights (1) to reproduce the work in copies or phonorecords,

(2) to prepare derivative works (new versions), (3) to distribute copies or phonorecords publicly, (4) to perform the work publicly in the case of literary, musical, dramatic, and choreographic works, pantomimes, motion pictures and other audiovisual works, and (5) to display the work publicly in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work. Sections 107 through 117 state the limitations on these exclusive rights.

Reproduction in copies of phonorecords.-The right to reproduce the work is the most fundamental right granted by any copyright law. As defined in section 101, the term "phonorecords" describes the physical reproductions of sound recordings, and the term "copies" describes any other physical embodiment of a copyrightable work.

The terms "copies" and "phonorecords" include the first or original physical embodiment of the work (the prototype), as well as any other objects from which the work can be "perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

Preparation of derivative works.—The right to prepare new versions of copyrighted works is a valuable one, and its existence permits the copyright owner to control uses of his work that might not otherwise be included in the reproduction right. The derivative work right covers the right to adapt, translate, abridge, revise, dramatize, and generally to cast the copyrighted work in a multitude of new forms.

Public distribution.-Together with reproduction of copies, the right to make copies available to the public comprises the most basic right of the copyright owner. The right includes distribution by sale, gift, or other transfer of ownership of the material object embodying the work, or by rental, lease, or lending the material object. This right, among others, is qualified by section 109, discussed below.

Public performing right.-For certain kinds of works, the right of public performance has become the most important of the copyright owner's bundle of rights. The revision bill eliminates the blunderbuss approach of the present law, which establishes an ambiguous, all-or-nothing dichotomy between public performance for profit and not for profit. Under the existing statute, public performance of musical works and nondramatic literary works is within the copyright owner's control only if the performance is "for profit." Section 106 of the bill states the public performing right without qualification and applies to literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works. Definitions of "perform" and "publicly" appear in section 101.

The public performing right affords protection against a variety of acts that constitute a performance of a work, including face-to-face live renditions, renditions from recordings, broadcasting, retransmission by loudspeakers, and transmissions or retransmissions by cable. Each act, if done publicly, is under the general control of the proprietor, but that control is subject to the limitations specified in sections 107 through 117.

Right of public display.—This right is the only one granted under the revision bill whose existence is open to question under the present law. The other exclusive rights though limited in one way or another, have been part of our law at least since 1909.

The right to display a work in public should be distinguished both from the right of reproduction and from the right to perform the work publicly. By definition in section 101, to " 'display' a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially." Thus, subject to the limitations discussed below in connection with section 109, the right of public display applies to any work embodied in manuscript or printed matter and in pictorial, graphic, and sculptural works, including "stills." Exhibition of a motion picture or other audiovisual work as a whole is a performance rather than a display. Section 109: Effect of transfer of copy or phonorecord

This section draws a basic distinction between the rights of a copyright owner and the rights of someone who owns a physical object (a "copy" or “phonorecord") that embodies a copyrighted work. In particular, subsection (a) makes clear that, once a copy or phonorecord has been lawfully made, it can be dis

posed of by its owner without the copyright owner's permission. Similarly, under subsection (b), the owner of a lawfully-made copy can display it publicly to viewers present at the same place as the copy.

Summary

FAIR USE; NONPROFIT EDUCATIONAL AND RESEARCH USES

Under the present law, "fair use" is a judicially created limitation on the exclusive rights of the copyright owner. It generally covers incidental use of a part of a work for socially laudable purposes. Whether a particular use will be considered "fair" or not depends upon all of the circumstances surrounding the use and the nature of the copyrighted work.

The revision bill in section 107 codifies this judicial doctrine in general terms. "Fair use" has special relevance to nonprofit educational and research activities. The bill also creates specific exemptions for educators and scholars with respect to library photocopying, instructional broadcasting, and classroom uses. Section 504 (c) (2) permits the courts to remit any statutory damages for an infringement by an instructor, librarian, or archivist in a nonprofit school who proves that he acted out of the reasonable belief that the use was excused as "fair."

Background

Although fair use is an important limitation on the exclusive rights of copyright owners, there never has been a "fair use" provision in any U.S. copyright statute. The doctrine has been developed by the courts and is firmly established. It is conceded that “fair use" is not susceptible of exact definition. Generally speaking, however, it allows copying without permission from, or payment to, the copyright owner where the use is reasonable and not harmful to the rights of the copyright owner. It has been generally considered that, since "fair use" is such an important limitation on the rights of the copyright owner, the statute should mention it and indicate its general scope.

Beginning with the House hearings in 1965, educational users have sought broader and more explicit exemptions than those embraced in the general concept of "fair use." The original House Judiciary Committee report on the bill contained an extensive discussion of the various classroom activities that could be considered "fair use" and free of copyright control, and this language has been retained for the most part in succeeding legislative reports (see pp. 115120 of S. Rept. No. 93-983, 93rd Congress, 2d Session). In addition, an ad hoc group of educational organizations have been seeking a general exemption for nonprofit uses for teaching, scholarship, and research; their proposal is discussed below.

Section 107: Fair use

Section 107, the "fair use" section, is purposely somewhat vague, since it would be difficult to prescribe precise rules to cover all situations. It refers to "purposes such as criticism, comment, news reporting, teaching, scholarship, or research" and specifies four factors to be considered in determining whether or not a particular use is fair. Section 107 as drafted is intended to restate the present judicial doctrine; it is not intended to change, narrow or enlarge it in any way. The four criteria were included in the statute to give guidance to the courts and to users, but they are not intended to be determinative.

Section 107 makes it clear that fair use can extend to reproduction of copyrighted material for classroom use. Educational uses, as is true of all other uses, will be judged on the basis of the applicable criteria and the facts of the particular case.

Section 110, Clause (1): Face-to-face teaching activities

Clause (1) of Section 110 is intended to set out the conditions under which performances or displays, in the course of instructional activities other than broadcasting, are to be exempt from copyright control. This clause covers all types of works. Thus, a teacher or student would be free to perform or display anything in class as long as all of the other conditions are met. He could read aloud from a copyrighted book, act out a play, or display a copyrighted photograph.

To be exempt the performance or display must be by an instructor or a pupil. "Instructor" would generally mean a teacher but it is intended to be broad enough to cover a guest lecturer or the like. Performance by actors, singers or musicians brought in from outside of the school would not be exempt. "Pupils" is intended generally to mean the enrolled members of a class.

"Face-to-face" was inserted to exclude broadcasting or other transmissions, whether radio or television, or open or closed circuit, from an outside location into a classroom. The exemption does, however, extend to the use of devices for amplifying or reproducing sound and for projecting visual images, as long as the instructor and the students are in the same area. "Teaching activities" is intended to mean systematic instruction; it would not include performances or displays that are given for the recreation or entertainment of any part of the audience. This is true even though the work performed or displayed has great cultural or intellectual appeal.

The phrase "classroom or similar place" limits the exemption to places devoted to instruction. The 1967 House Committee Report and its successor indicate that a "similar place" might be a studio, workshop, gymnasium, or library as long as it actually is used as a classroom for systematic instructional activities. Performances in an auditorium for a school assembly, a graduation exercise, a class play, or a sporting event would be outside the scope of this exemption because the audience is not confined to members of a specific class, although they might be exempted under other provisions of section 110.

Section 504 (C) (2): Innocent educational infringement

Another exemption important to educators is found in section 504 (c) (2); it insulates educators who infringe innocently and was included because it is often difficult for educators to ascertain the boundaries of infringement. Where a teacher proves that he acted innocently and in good faith, believing a reproduction of copyrighted material to be a fair use, the court is given discretion to reduce the statutory damages for infringement, or to remit them entirely. This would help protect teachers who are uncertain about the specific effects of the copyright law and should diminish the discomfort some educators have felt concerning the vagueness of the criteria governing fair use.

Proposed nonprofit exemption

In the course of Senate hearings in August 1973 on S. 1361 (93rd Congress, 1st Session), the Ad Hoc Committee on Copyright Law Revision proposed that a new section be added to the revision bill as a further limitation on exclusive rights. The text of the 1973 proposal is as follows:

Section. Limitations on exclusive rights: Reproduction for teaching scholarship and research

Notwithstanding other provisions of this Act nonprofit use of a portion of a copyrighted work for noncommercial teaching, scholarship or research is not an infringement of copyright.

For purpose of this section

(1) "use" shall mean reproduction, copying and recording; storage and retrieval by automatic systems capable of storing, processing, retrieving, or transferring information or in conjunction with any similar device, machine or process;

(2) "portion" shall mean brief excerpts (which are not substantial in length in proportion to their source) from certain copyrighted works except that it shall also include

(a) the whole of short literary, pictorial and graphic works

(b) entire works reproduced for storage in automatic systems capable of storing, processing, retrieving, or transferring information or in conjunction with any similar device, machine or process, provided that

(i) a method of recording retrieval of the stored information is established at the time of reproduction for storage, and

(ii) the rules otherwise applicable under law to copyrighted works shall apply to information retrieved from such systems; (c) recording and retransmission of broadcasts within five school days after the recorded broadcast; provided that such recording is immediately destroyed after such 5-day period and that such retransmission is limited to immediate viewing in schools and colleges. Provided that "portion" shall not include works which are

(a) originally consumable upon use, such as workbook exercises, problems, or standardized tests and the answer sheets for such tests; (b) used for the purpose of compilation within the provisions of Section 103 (a ).

It is possible that this or a similar proposal may be made again during the House hearings.

The arguments in favor of this exemption stem from a belief that section 107 is too vague and that it leaves educators with few practical guidelines. Educational representatives argue that education is vital to America and therefore all efforts to strengthen and enrich our educational system should be supported. They stress that educators should have maximum availability of all kinds of teaching materials and resources, and that teachers have no time to obtain the requisite permissions. They argue that if a teacher must obtain permission he will not use the particular work and the students will suffer.

On the other hand, authors and publishers argue that the specific mention of uses such as "teaching, scholarship or research" in section 107 already presents a potential danger to their rights. They point out that further intrusion in their rights in the form of a blanket nonprofit exemption would present a genuine danger to the creative impulse. Many works are created and published specifically for the educational market, and a broad nonprofit exemption would probably cut off a large part of the revenue needed to induce creation. They suggest establishment of a clearinghouse for licensing educational materials in the case of uses beyond section 107.

Summary

CHAPTER 1, SECTION 108

REPRODUCTION BY LIBRARIES

Related to the general question of the extent to which the "fair use" doctrine should operate as a limitation on the exclusive rights of the copyright proprietor is the specific issue of exceptions for library reproduction of copyrighted works, principally by photocopying. The extent to which the "fair use" doctrine is ap plicable to absolve libraries from liability for various types of photocopying is not at all clear under the present law. Since the Court of Claims decision in the Williams & Wilkins was extremely limited in scope, and the case ended with an even split by the Supreme Court, it cannot be considered a significant precedent. Section 108 of the revision bill represents an effort to provide a partial legislative solution to this most difficult issue. It covers libraries serving the public or specialized researchers, and it extends only to reproduction or distribution made without any commercial purpose. Single photocopies may be made from books and periodicals for purposes of scholarship and research under certain conditions, but the library must not engage in the related or concerted reproduction of multiple copies or in "systematic" reproduction. Musical works, pictorial, graphic or sculptural works, and motion pictures, or other audiovisual works (not including news programs) can be reproduced only for archival or replacement purposes, or under the limited "fair use" doctrine codified in section 107.

General considerations

The purpose of copyright protection has been to encourage authors and crea tors to make their material available for the benefit of society by granting them certain exclusive rights for a limited time. These exclusive rights include the making of copies of the work, and the publishing, or distributing of these copies. For many years scholars and researchers have felt free to copy by hand or by typewriter from the works of others for their own private use, without securing permission from the copyright owner of the work. The practice has been tolerated because manual copying was so laborious and time-consuming that it was necessarily limited in amount and rarely if ever affected the economics of authorship and publishing.

Technological developments over the past thirty years in the fields of photocopying, microreproduction, and computers, however, have led to a proliferation of increasingly inexpensive machines for reproducing, storing, and transferring, the contents of copyrighted works. Now, libraries may copy a complete volume in less time than it takes to try to locate printed copy or seek permission of the copyright owner to make the copy. Librarians argue that the copyright law must be flexible enough to permit them to utilize photocopying machines and the rest of the new technology to facilitate scholarship and research.

Authors and publishers, on the other hand, point out that if a library is allowed to provide photocopies without limit and in any quantity, even to individual users, the library essentially becomes a publisher. The economic base for authorship and commercial publishing would thus be placed in jeopardy. While authorship and publishing will need to make major adjustments to survive the tech57-786-76-pt. 3- -43