or political subdivision of a state," and would include importation by a public school or school district. It is not limited as to the number of copies which may be imported or as to the use to which the copies may be put. Under this provision any metropolitan school district, without permission of or payment to the domestic producer, could import 5,000 copies of a Japanese printing of an educational text for use in its many schools, notwithstanding the fact that the same text is available from its United States publisher and is protected by a U.S. copyright. This type of importation would seriously reduce the available market for copies of the textbook. The second situation, defined by the use to which the copies or phonorecords will be put, is importation "for the use, other than in schools, of the government of the United States or of any state or political subdivision of a state," and is not limited as to the number of copies which may be imported or as to the party importing the copies. The solution to the problem is to require the satisfaction of both conditions to establish a non-infringing importation. This can be done by use of the word "and" instead of the word "or" between "authority" and "for the use" so that the defining phrase reads "under the authority and for the use". INTERACTION OF THE DEFINED TERMS, "TO PERFORM", "TO DISPLAY", "TO PERFORM OR DISPLAY. PUBLICITY", AND "AUDIOVISUAL WORKS" WITH SECTION 106 (5) WILL GREATLY REDUCE THE VALUE OF COPYRIGHTED WORKS The definitions in section 101 "to perform" and "to display" both refer specifically to audiovisual works. To perform an audiovisual work is "to show its images in sequence". To display an audiovisual work is "to show individual images nonsequentially". The definition of audiovisual works limits the class to "works that consist of a series of related images". In combination, these three definitions provide that when a series of related images is shown in sequence it is performed, but when individual images from the series are shown nonsequentially, the showing is a display. The original sequence in which the images are arranged is an important characteristic of a motion picture, because to show the images in succession imparts an impression of motion. (See the definition of "motion pictures" in section 101.) To show images from a motion picture nonsequentially would cancel the impression of motion. The sequence in which images of a filmstrip (or set of transparencies or slides) are shown does not impart motion, and sequence is not an intrinsic characteristic of the filmstrip. These images are organized by the author and producer in an orderly arrangement, but to alter the exact order need not deprive the filmstrip of its value. For example, a series of images showing life along the Ohio River could begin at either Pittsburgh or Cairo, Ill., and successive images could move either upstream or downstream. A third way in which the images could be arranged would be to depict: first rural life along the river, then fishing, then recreation, and later shipping, cities, industrial use of the water, pollution problems and finally antipollution measures. The exact order in which the images are shown is not what gives educational value to the group of images. The selection of a subject containing interrelated topics, the preparation of an image or images to depict each of the topics, and the production and marketing of these images as a work, is the creative activity which should be rewarded and protected from infringement. The committee recognizes that the showing of audiovisual works and the transmission of such showings are rights of the copyright owner which should be protected by law. The intended limitations on these rights (see § 110, for example) are far less extensive than the limitations on the exclusive right to show and to transmit showings of other works. However, the words "sequence", "nonsequential" and "series", as used in the definitions in section 101, have the effect of limiting the protection of exclusive rights in audiovisual works. The protection extends only to performances-that is, showings of series of images in sequence. When the images are rearranged and shown, e.g., in reverse order (upstream instead of downstream, for example), or in a different order of topics (recreation before pollution, instead of pollution before recreation, for example), the images are not in sequence and the Bill treats the showing as a display. Displays may be transmitted freely to many schools, although performances (sequential showings) may not be so transmitted without permission of the copyright owner. Displays (nonsequential showings) may be videotaped during such transmissions, and retransmitted under section 112. That the present definitions of "perform", "display", and "audiovisual works" may sharply curtail the commercial value of filmstrips, sets of slides and sets of transparencies, becomes evident when one considers the use of those terms in sections 110(2), 110(3) and 112(b). Section 110(2) exempts "display of a work" (including the showing of rearranged images of an audiovisual work) by or in the course of a transmission to schools etc., from any requirement of approval by the copyright owner. Section 110(3) likewise exempts "display of a work" at a religious assembly. Section 112(b) permits making ephemeral recordings of transmissions of displays which are exempt under section 110(2), and permits using such recordings for extensive retransmissions. All of these sections would permit the uncompensated use of the creative product of the atuhors of audiovisual works, if the users adopted the simple expedient of showing numerous individual images from the work (or all of such images) "nonsequentially", i.e. in a rearranged order. Yet this vitally important and serious effect was surely not contemplated by the House Committee. Moreover, many filmstrips now on the market were made by selecting certain frames from educational motion pictures. Such filmstrips consist of “individual images nonsequentially" arranged. Therefore to show them is to "display" the motion picture, and such displays can be extensively transmitted, retransmitted. and ephemerally recorded without consent of the owner of the copyright of the motion picture. Nothing in the Committee Report implies that the Committee was aware of the loss of markets which can result from transmitting and retransmitting, and using ephemeral copies of, nonsequential showings of filmstrips and other audiovisual works. The key to the solution of the problem of showing reversed or otherwise rearranged images from audiovisual works is to delete three references to series and sequences. Thus "audiovisual works" can be defined as "works that consist of [a series of related] images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied". To "display" a work can be defined as "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 an individual image[s] [nonsequentially ].” To "perform" a work can be defined as "to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any combination [sequence] or to make the sounds accompanying it audible." Once the definitions of to "perform", to "display", and "audiovisual works" are corrected so they no longer fail to properly distinguish between the types of showings of audiovisual works, there still remains a serious underlying problem. Section 106(5), which grants the exclusive right to display a work, fails to grant the exclusive right of public "display" to owners of copyrights in an audiovisual work. In order to grant certain exceptions from this right, and thereby leave in the copyright owner other exclusive display rights, it is essential that the exclusive right of public display originally be granted to the copyright owner. Section 106 (5) can easily be corrected by an insert so that "in the case of literary, musical, dramatic, and choreographic works, pantomimes, [and] pietorial, graphic, or sculptural works, and motion pictures and other audiovisual arorks, to display the copyrighted work publicly" is an exclusive right of the copyright owner. Still another dimension of the seriousness of this problem arises from a similar failure of scope in the grants in section 106 (4) and (5) caused by the definition of "to perform or display a work ‘publicly' ". In clause (1) of the definition, this phrase is defined to include the performance or display of a work at either of two places: (a) a place "open to the public", or (b) a place "where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered". This latter includes such semi-public places as a school classroom or a club meeting hall. In clause (2) of the definition, the phrase is defined to include the transmission of the performance or display of a work to a certain group "to the public",-but no mention is made of transmission to the second group included in clause (1). Transmission is made expressly independent of whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. Clause (1) refers to performances or displays at places open to the public or at places where semi-public groups are gathered. Clause (2) refers to transmissions to the public but not to semi-public groups. Since transmissions to classrooms, meeting halls used by clubs, etc. are not transmissions to the public, performances and displays transmitted to such places are not included within the phrase "to perform or display a work publicly". This means that section 106 (4) will not accomplish its purpose of granting the exclusive right to transmit educational films and other audiovisual works to classrooms and other meeting places which are not open to the public at large. By the same reasoning, section 106 (5) will not grant the exclusive right to transmit the works listed therein to such semi-public places. Unless clause (2) of the definition of "to perform or display a work publicly” is amended, the right to transmit performances and displays to semi-public groups will be freely available to all, and an essential protection of the rights of authors and publishers will be in jeopardy. This problem can be solved quite simply and will not affect the other provisions of the Bill since the entire series of limitations on rights granted in section 106 (sections 107-116) presupposes that section 106 does grant to the copyright owner the right to transmit performances and displays to semi-public groups. The solution to the problem in the definition of "to perform or display a work 'publicly'" is to include in subparagraph (2) the phrase used in subparagraph (1) to refer to semi-public groups, thereby changing subparagraph (2) of the present definition to read: "(2) to transmit or otherwise communicate a performance or display of the work to the public or to a substantial number of persons outside of a normal circle of a family and its social acquaintances by means of any device or process, whether the [members of the public] persons capable of receiving the performance or display are capable of receiving1 [receive] it in the same place or in separate places and at the same time or at different times." SECTION 110 (1) LIMITS THE RIGHTS OF COPYRIGHT OWNERS IN REGARD TO A MAJOR POTENTIAL MARKET FOR WORKS The intent of the House Committee in granting an exemption for the use of materials in a face-to-face classroom teaching situation was to extend to teachers and students who do not own the copy the traditional privilege of the owner of a copy to display it directly to persons present where the copy is located. In addition, teachers and students are permitted to perform it to persons present where the copy is located. The Committee intended to retain reasonable restrictions on any use of the copy by a teacher or student which would result in a reduction of the copyright owner's market for reproduction and distribution of copies. In Section 109, in order to prevent any such reduction of the copyright owner's market, the privilege of the owner of a particular copy to display that copy directly was proscribed by limiting the display to projection of no more than one image at a time. For the same reason, the privilege to perform or display a work in the course of face-to-face teaching activities, granted in Section 110(1), should be limited in a similar manner. This can be accomplished by insertion of the phrase 1 For consistency. this additional change should be made, clarifying that. for the purposes of this definition, the market for a transmission is measured by those capable of receiving it and not those who actually receive it. "unless the same image appears simultaneously on more than one receiving apparatus," immediately following the comma after the word "instruction" in line 38 on page 9 of S. 597. SECTION 110 (1) INADVERTENTLY ENCOURAGES IMPROPER USE OF COPYRIGHTED WORKS BY TEACHERS AND STUDENTS Another problem in subsection 110(1) relates to the legality of the copy being used. The subsection provides generally that any instructor or pupil in possession of a legally or illegally made copy of a work may perform or display the work in face-to-face teaching in a nonprofit educational institution. However, the performance of an audiovisual work is not authorized by this subsection where the copy was not lawfully made and the person responsible for the performance knew or had reason to believe it was not lawfully made. This seems a just limitation upon such performances since it allows the copyright owner to prevent continued use of unlawfully made copies by placing the party concerned on notice that the copy was unlawfully made. However, any justification for allowing the display of unlawfully made copies of audiovisual works, or the display or performance of unlawfully made copies of other types of works, when the party showing the copy is aware that the copy was unlawfully made, escapes me. It is just as appropriate that these uses of unlawfully made copies should be subject to similar control by the copyright owner. The provision in the subsection which places limitations upon the showing of unlawfully made copies of audiovisual works should apply equally to the showing of unlawfully made copies of all types of works. This can be accomplished by omission of the phrase "in the case of a motion picture or other audiovisual work," from line 1 on page 82. and insertion of the phrase "or display" following the word "performance" in line 2 on page 82 of the revised Bill. Incorporation in section 110 (1) of the suggested solutions to the various problems discussed above would result in the following provision: "(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless the same image appears simultaneously on more than one receiving apparatus, or unless [, in the case of a motion picture or other audiovisual work,] the performance or display is given by means of a copy that was not lawfully made under this title and that the person responsible for the performance or display knew or had reason to believe was not lawfully made." |