The Fair Use Doctnne in Copyright: A Growing Concern for Judge Advocates

• Author: by Captain James M. Hohensee
• Pages: 03

1. INTRODUCTION

   To what extent may a writer at an Army school u8e previous works in writing a paper? If he quotes from another work will that prevent publication of the paper? If the officers' club is playing a local radio station over the speakers 18 it a copyright violation? Is it a violation to copy "the big game" on a videotape recorder while the troops are downrange and replay it in the club or the day room? Is a unit satellite dish at the barracks allowed? Isn't any use of copynghted materials for teaching a fair use? The general 8aw a computer program dem. onstrated and wants UJ to design one that will do the same thing. Would that be a copyright violation?

   Questions like these can strike fear into the hearts of administrative law attorneys. I know from personal experience. While working as an administrative law action officer in 1985 I was assigned a prob. lem from the post youth activities. When the post theater cancelled Saturday afternoon children's matinees, the youth activities wanted to rent videotapes and show them for a small fee. Would this violate the copyrights on the films?

   To answer the question I turned to the Administrative Law Handbook' and was surprised to find no guidance an copyright matters. I examined the Copyright Act' and the applicable Army capy.Judge Advocate Generaps Corps, United States Army Currently asaimed to the Tnal Counsel Aasiatance Program, United States Army Legal Senices Agency, FallsChmch, Virginia Formerly assigned 88 Chief Trial Counsel and Chief oi Criminal Law, Fort Carson. Colorado. 1984-1985. Group Judge Advocate, AHUAS TARA 11. Honduras, 1983.1984. Defense Counsel. Trial Defense Servlre. 6th Infantry Dlvmon, Federal Republic af Germany, 1980-1962 Graduate Judge Advocate Officer Graduate Course, 1987 Judge Advoeale Officer Basic Coune, 1919 B A , State Umvermty of New York at BuEfala, 1975, J.D, State Unirersity ai New York m Buffalo, 1978 Member af the bare of the State of Kew York the Umred States Supreme Court, and the United States Court of Millfar). Ap~eab This article IB based won

   B thema submitred m partial satisfaction of the requirement% of the 33th Judge Advocate Officer r-rlrl,,ris rn..rss

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   'Dep't of Army Pamphlet S o 27-21, Military Admmiifrafire Law 11 Oct 19851 '17 US C I 5 101-914 (1982)

   nght regulations I also checked my answer with the Patents. Copyrights, and Trademarks Division of the United States Army Legal Services Agency. I concluded the plan would violate the copyrights.

   That opimon was right, but it faded in two respects. It failed because I wa8 reduced to hiding behind the language in the regulation to say no. I didn't understand the Ian that the regulation embodied The second failure stemmed from the first Because I didn't understand the law well enough, I was unable to devise an alternative course of action that might have achieved the mission

   Judge advocates need a better grasp of copyright principles to give complete advice and ta devise ways to meet the miasion. The current version of Army Regulation 215-2, for example, provides. 'A clearance will be obtained prior to the public performance of any copyrighted sound or video recording. Installation commanders will determine whether such performances are 'publie'."' Without doubt, the installation commander will be looking to his or her local staff judge advocate for advice on that matter Without an understanding of the applicable legal principles and exceptions, the lawyers in that office will give bad advice.

   This article will focus on the fair use doctrine. It 1s only one aspect of the complicated law involved In resolving copyright questions. Fair u ~ e

   1s frequently invoked to defend otherwise infringing activity. Also. it 1s frequently misunderstood or misinterpreted. As such. it deserves close attention.

   11. COPYRIGHT A GENERAL OVERVIEW

   The Constitution authorizes copyright for the purpose of advancing "science and the useful arts."' Copyright law seeks to achieve this goal by granting authors certain rights in their original works The current Copyright Act is codified in Title 17, United States Code

   'The regvlafion concerned WBQ Dep't of Amy. Reg. 60 215-2. Morale. Welfare & Recreation The Management & Operation of Army Morale. \Velfare & Recreation Rograms & Nonappropriated Fund Instrumentalities para 6-67 (20 Feb 19841 G 5 26 Aug 19651 (superseded 1966) Other rwdatlans s130 address copyright mattere sos, P g , Dep't of Army, Reg No 310.1. Military Publication8 Publications Blank Forms, and Rinting Management. paras 2-35 to 2-41 115 Feb 19801, Dep't ofAmy Reg So 106.2 Audmsmual Seriices Army Training & Audiovisual Supparr. para 7.7 126 July 1976) iC2 1 On 19781. Dep't of Army, Reg ha 27-90, Legal Services Patents, Invantmne. & Copyright8 (1 July 19741 (CZ 15 July 19761

   'Dep't of Amy. Reg No 215-2. Marale, Welfare & Recreation The Management of Army Maralr, Welfare, &Recreation Pragrama & Sonappropriated Fund Instrumen-talities, para 6.67 I31 Ocf 19861

   'US Canrt art 1. see 8, e1 S '17USC $9 101-914819621

   19661 FAIR USE DOCTRINE

   Section 102 of the Coppght Act describes the types of works that may be protected.' Military lawyers should note that copyright protection is not available for any work of the federal government.s The rights accorded the copyright ownem are set out in section 106 of the act.9 They give the copyright owner the right to. 1. make copies of the work;

   2. make derivative works based on the original;

   3. distribute copies of the original to the public;

   4. perform or display the work m pubhc.

   To qualify for these protections, the works must be "fued in any tangible medium of e~pression."'~

   That is, they must be recorded in some form that renders the work capable of perception or reproduction. A book, a tape, or a microchip are examples of such a medium of expression.

   These rights are subject to certain limitations." Most of the limitations apply to specific tspes of works or specific situations. An ex-ample is the exception that allows libraries and archives to reproduce works for purposes such as inter-library loan and archival preservation.12 The limitation with the broadest application is the fair use exception codified m section 107

   Certain of the limitations require the copyright owner to grant others rights to copy or use the works in exchange for a fixed royalty. This 18 called a compulsory license. An example of such a compulsory license arrangement far sound recordings is found in section 115.14

   Copyright protection for works created or first published on or after 1 January 1978 lasts for the life of the author plus fifty years.1J If the work 18 made anonymously, under a pseudonym, or 1s made for hire, the protections will last the shorter of seventyfive years from first publication or one hundred years from the works creation Works created or published before 1 January 1976 are subject to

   transitional rules which generally afford a seventy-five year penod of protect1on.l'

   Civil remedies for Infringement include actual or statutory damages, recovery of profits made by the Infringer, injunctions against further Infringement, and costa and attorneys' fees Is Criminal penalties are available in cases of wdlful infringement for profit.'g

   111. THE CHANGING FACE OF FAIR USE

   In 1984 the Supreme Court announced its decision in Sony Corp u Unioersal C~ty

   Studios The Court concluded that home videotape recording of television programs off the air was not a violation of the U.S. copyright laws. To reach this decision, the Court ruled that home recording fell within the "fair use'' exception to copyright In 60

   holding, the Court generated more confusion in an area that has long been considered "the most troublesome in the whole of copyright "22

   The decision made significant changes in fair use principles by placing new emphasis on certain components of the far use analysis Read together with another recent far use case, Harper and Rol~

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   Nation Enterprrse~,~~it can also be argued that the Court has re- fmhianed the traditional and statutory factors used in fair u ~ e anal.

   yms, rejecting certain long-standing pnnc~ples.

   These changes in the doctrine are significant If the "Betamax" case is treated like other Supreme Court decisions on fair use The changes became less significant, however, if the caw is placed in the context of the times in which it arose. The decision in Sony represents a determination an the part ofthe Court not to interfere in technological advances. That job will be left to the legislature Sony represents B

   change only to the extent it generates a technological fair-use exception Read out of its technological context, however, Sony can lead unwary attorneys to mistakenly simplify the complex fair use doctrme

4. FAIR USE GENERALLY

   Fair use IS usually defined as "a privilege ~n others than the owner of a copyright to use the copyrighted material in a reasonable manner

   19881 FAIR USE DOCTRINE

   without his consent, not withstanding the monopoly granted to the owne~.''~'

   The concept strikes a balance between competing ideals in copy. right. The purpose of copyright 1s to advance "science and the usefulart^.''^^ The copyright owner's monopoly defeats this purpose to the extent It prevents one author from building on the work of another Too strong a monopoly would actually hinder the progress of science and art?B "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 af art, science and induatry m' The fair use doctrine strikes a balance between the copyright monopoly and these greater interests of smety

   A. JUDICIAL ORIGIN OF FAIR USE

   Fair use began a8 a judicially created doctrine. Its first appearance is generally ascribed to Folsom o Marsh.2S The case concerned the copyright of certain of George Washingon's letters. These letters had been published BS part of e twelvevolume...