the bills would partially overrule the decision of the Ninth Circuit either by declaring that home taping does not constitute copyright infringement or by absolving the home taper from direct liability for copyright infringement. H.R. 5705 would absolve home tapers from liability for copyright infringement. copyright owners for audio and video home taping. It would do so by making importers and manufacturers who distribute audio and video home recorders and blank tapes in the United States directly liable for copyright infringement. The bill would create a system under which a fee would be imposed on tapes and audio and video recorders. Such fees would be held in a fund from which royalties could be paid to copyright holders. The amount of the royalties and their method of distribution to copyright holders would be within the jurisdiction of the Copyright Royalty Tribunal. In addition, the bill would modify the so-called "first sale" doctrine of copyright law, codified in 17 U.S.c. S 109, so as to permit copyright owners to use the copyright laws to prevent unauthorized rental of copies of their copyrighted audio and video works. Throughout American history the law has encouraged literary and artistic creativity by giving authors and artists an intellectual property right in the fruits of their labor. The Founding Fathers recognized the importance of this right in framing the Copyright Clause of the Constitution, Article I, Section Eight, which authorizes Congress "[t]o promote the Supreme Court precedents clearly indicate that the Copyright Clause references to "authors" and "writings" are to be 2/ liberally construed. Congress has also adopted an expansive view of the copyright principle, by modifying the copyright laws over the years to embrace new forms of artistic creation which were undreamed of in the eighteenth century. Thus, Congress extended copyright protection to "motion pictures" in passing the copyright Act of 1909, 3 and to sound recordings through the Sound Recording Amendment of 1971. 4/ Most recently, in enacting 5/ Section 102 (a) (6) of the Copyright Act of 1976, Congress specifically included "audiovisual works" in general within the 2/ See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884); Goldstein v. California, 412 U.S. 546 (1973). 3/ See 1 Nimmer on Copyright $ 2.09[C] (1979). 4/ 17 U.S.C. S 102 (7) (1980), discussed in 1 Nimmer on ambit of the copyright laws. In sum, both judicial and legislative developments have favored the broad extension of the copyright mantle to protect "what the ingenuity of men should This broad extension of copyright protection is based upon a recognition that inadequate financial incentives to create artistic works would exist if the artist's work could be freely copied. The Supreme Court has noted that underlying the copyright grant "is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare 7/ through the talents of authors." What justifies the copyright monopoly is "the general benefits derived by the public from the 8/ " labor of authors. These "general benefits" are threatened when a copyright is infringed upon through the act of unautho9/ rized copying. The Congress and the courts have recognized the importance of vindicating copyright holders' interests. At the same time, however, they have not been unmindful of the 6/ Reiss v. National Quotation Bureau, 276 Fed. 717 (S.D.N.Y. 1921) (Learned Hand, J.). 7/ Mazer v. Stein, 347 U.S. 201, 219 (1954). 8/ 9/ Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932). Accord, When copyright ownership has been established, a plaintiff need only prove copying in order to establish infringement by the defendant. 3 Nimmer on Copyright $ 13.01 (1979). public interest in reasonable limitations on the scope of copyright privileges. Accordingly, legislators and judges have attempted to weigh the copyright interest in spurring creative efforts against the public's interest in the widespread distribution of reproductions of artistic works. As the Supreme Court has stated, The limited scope of a copyright holder's statutory It follows that copyright legislation ideally should provide incentive for artistic creation in order to promote the widespread dissemination of copyrighted work without imposing unnecessary cost to the general public. In sum, the central thrust of the copyright law has been to encourage creativity for the public good by treating unauthorized copying of copyrighted works as infringement. By this logic, both audio and visual taping have the potential to diminish copyright values, much like other forms of copying. 10/ Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 H.R. 5705 and the other bills before this Committee would exempt from copyright liability an individual who makes an audio or video home recording for the private use of members of the individual's immediate household. The collection of royalties directly from home tapers simply is not a viable method for compensating copyright owners. Because taping is done in the privacy of the home, it would be impractical, if not Orwellian, to attempt to detect which individuals tape at home and which works they tape. Moreover, even if such taping could be detected, it would be highly inefficient for copyright holders to negotiate with the millions of individuals who tape at home and to bring suit for injunctions or damages against those that refuse to pay an appropriate royalty. Therein lies our current problem. We have arrived at this point because technology has outrun the relevant legal concepts. The original concept of copyright was defined in an age when such inventions as photocopying machines and home audio and video recorders did not exist. The doctrine of copyright was originally developed to maintain for the creator of an artistic work owner - - the copyright the benefits of its reproduction. Now that technology has made possible the easy and swift reproduction of an artistic work in the privacy of one's own home, all sides to the present debate admit, as they must, that neither politics nor practicality suggest a lengthy debate over whether the home copier is or is |