copyright system and thereby works to diminish the quantity and diversity of new creations that can be offered to the public. - to reproduce a copyrighted work belonging to the owners of copyrights in sound recordings and musical works. Without any compensation, home taping is nothing more than a "home taking" of private property. detail. We next discuss each of these points in more A. The Constitutional Basis of In considering the issue of home taping, it is important to bear in mind that our American copyright system is based not merely upon statutory enactment but upon the United States Constitution itself. Article One, Section Eight of the Constitution authorizes the Congress: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." "The economic philosophy behind the 27 In other words, the purpose of affording copyright protection is both to reward the creator and to encourage the production of literary and artistic works for the public benefit. As the Supreme Court has put it: But "The immediate effect of our copyright the labor of authors.28blic from The musical arts in our country have flourished under this system, and as a result, the consumer has enjoyed 27/ Mazer v. Stein, 347 U.S. 201, 219 (1954). 28/ Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). 96-601 0-82--48 classical and jazz to rock and country, from ethnic and gospel to soul and reggae. Pursuant to the Copyright Clause of the Constitution, the Congress has given copyright owners of musical compositions and sound recordings the exclusive right to control, and obtain royalty payments for the use of, their creative works. Among these exclusive rights is the right to control the reproduction of their copyrighted musical works and sound recordings.29/ As discussed more fully in Section III, above, uncompensated home taping infringes those rights. In understanding just why the copyright system is so essential to the recording industry, it is important to remember that the recording business is exceedingly risky. More than 80 percent of all records released fail even to recover their costs. On average, a company must sell almost 150,000 copies of a popular LP just to break even. It is the copyright system that makes it possible for record companies and other creators to bear these 29/ 17 U.S.C. § 106(1). enormous risks and bring to the market an extraordinary variety and quality of musical offerings each year. Under that system, record companies are able to rely on the revenues derived from their ownership of the copyright in the occasional hit to subsidize the more than 80 percent that are losers, the recording of new unknown artists, and the release of special music (such as classical, jazz, ethnic, and gospel). In this way the copyright system not only enables the industry to survive, but also encourages experimentation and the promotion of unknown talents. It thereby ensures the availability of a broad variety of music. Certainly, at a time when we are witnessing a decrease in public funding for the arts, the copyright system plays an even more vital role in fostering the production of new creative works. If the arts are to be self-sufficient, then Congress must ensure that the marketplace operates fairly and that copyright owners can obtain fair compensation notwithstanding technological developments. Unless the home taping issue is resolved in such a way as to guarantee fair compensation to those whose intellectual property is now being appropriated in massive amounts, the recording industry will be unable 41 to continue to bear the enormous risks of the marketplace. It will not be able to subsidize specialized forms of music or promote the variety of unknown artists and songwriters it has in the past. In the final analysis, the practical consequences of uncompensated home taping will be detrimental to everyone, including home tapers who will have less and less new material to tape and the large number of Americans (indeed the vast majority) who do not tape, but who buy records. By siphoning off revenues, home taping will not only force record prices higher, but will also cause further diminution in the quantity, quality and variety of music available to the public. B. The Importance of the Property Musical compositions and sound recordings are, of course, a form of property. Like any other form of property, whether tangible or intangible, its owners possess the fundamental right under our constitutional system to preclude others from interfering with it. Home taping subverts that essential characteristic of copyright ownership. And that is not in anyone's interest. As the Register of Copyrights, Mr. David Ladd, has aptly said: |