Fair Use and Home Videotape Copying of Television Broadcasts
| Publication year | 1977 |
Recent technological advances such as photocopiers, home sound recorders, and now home videotape recorders, raise unanswered questions about liability for private copying of copyrighted material. Assuming an author's copyright prohibits private copying,(fn1) United States copyright law, designed to protect authors' and publishers' commercial interests,(fn2) is poorly adapted to protect copyright holders from the private copying these machines foster. Although detection of infringing works is relatively easy when a single infringer mass produces and distributes the copyrighted work, detection of private copying is difficult. Yet, because private copies satisfy some of the demand for a copied work, thus reducing the volume of a copyright holder's sales, the aggregate effect of private copying is potentially as injurious as mass production and distribution of infringing works.
This comment discusses home videotape recording under both the 1909 Copyright Act(fn3) and the new copyright law(fn4) which becomes effective January 1, 1978. Because home videotaping violates the copyright holder's exclusive rights to transcribe or copy the copyrighted program, the comment focuses on the application of the fair use doctrine(fn5) to home recording of television programs. If home videotape recording is not a fair use, individuals recording copyrighted television programs are liable for copyright infringement; yet, because private copying is difficult to detect, it may be impossible for copyright holders to protect themselves from this private copying. The comment, therefore, discusses the possibility of preventing distribution of home videotaping machines and concludes by suggesting a change in our copyright law. Before considering the fair use doctrine, however, it is helpful to consider American copyright law as it applies to television broadcasts.
Under the 1909 Act, the United States has a dual system of common law and statutory copyright, which, although protecting essentially the same rights,(fn6) protects these rights at different times. Live television broadcasts of uncopyrighted material must depend on common law copyright,(fn7) which protects the author's rights from the work's creation until the author permits publication of the work.(fn8) All prerecorded programs can receive statutory copyright protection,(fn9) which generally begins when the author publishes the work and grants the author a monopoly limited both in the scope of the rights protected(fn10) and in the duration of protection.(fn11)
The new copyright law nearly abolishes the United States' dual system of common law and statutory copyright by preempting all state and common law copyright for any work capable of obtaining statutory copyright.(fn12) Under the new law, every work obtains statutory copyright from the moment of its fixation in tangible form.(fn13) The new law's definition of fixation includes those programs which the networks broadcast live while simultaneously making a videotape copy.(fn14) Because networks videotape virtually everything they broadcast, the new law protects most television broadcasts, thereby preempting common law protection.(fn15)
Both the 1909 Act and the new copyright law grant the copyright holder several exclusive rights.(fn16) For purposes of home videotaping of television broadcasts, the right to transcribe (fn17) under the 1909 Act and the right to copy(fn18) under the new law are the most important rights. The respective laws define a transcription or a copy as any tangible object from which the copyrighted work may be exhibited, performed, or reproduced. A videotape recording of a copyrighted program infringes the author's exclusive right to transcribe(fn19) or to copy(fn20) because the videotape is a tangible object from which the home viewer, with the aid of a television and a play back machine, can view the copied program. Users of home videotape recording machines, therefore, may be liable for copyright infringement.
Although some writers indicate private use is outside the scope of statutory copyright,(fn21) an examination of statutory copyright's purpose reveals private use may subject the private user to liability for copyright infringement. The United States Constitution grants Congress the power to create statutory copyright to encourage the creation and spread of ideas for the public benefit.(fn22) Congress designed statutory copyright to ensure authors full financial benefit from the creation and distribution of their works, thereby encouraging authors to create and share their ideas.(fn23) Whether one individual copies a work and distributes 10,000 copies to individual users or whether 10,000 individuals copy the work independently for their own use, the copyright holder's potential sales decrease by 10,000. A decrease in sales might deter authors from creating and sharing their ideas. To achieve its purpose, statutory copyright must prohibit private as well as commercial uses of copyrighted works which unnecessarily deter authors from creating and publishing their ideas.
To protect authors, the 1909 Act on its face gives the copyright holder the exclusive right to copy or reproduce any portion of the protected work.(fn24) Although substantial similarity and access to the copyrighted work are often used to show that the defendant copied plaintiffs work,(fn25) courts also have interpreted the 1909 Act as imposing liability for infringement only if the derivative work is substantially similar to the protected work.(fn26) A derivative work is substantially similar if it contains a substantial quantity of the copied work, or if it contains any of the copyrighted work's important or essential material.(fn27) Limiting the use of an earlier work to its unimportant or nonessential parts, however, reduces the effectiveness of criticisms and interferes with the improvement and development of the ideas contained in the earlier work. Because strict adherence to the copyright statute would impede the development and spread of ideas by severely limiting the use of earlier works, courts developed the equitable doctrine of fair use to balance the public's interest in the development and distribution of ideas against the author's interest in his limited monopoly.(fn28)
Although courts agree a finding of fair use relieves the user from liability for copyright infringement, commentators disagree on whether a finding of fair use excuses the individual's infringemerit(fn29) or limits the copyright holder's exclusive rights, thus making the individual's use noninfringing.(fn30) Under the 1909 Act, commentators could debate the nature of fair use because the Act did not specifically recognize the doctrine. The new law settles the disagreement by expressly recognizing the fair use doctrine as a limitation on the copyright holder's exclusive rights.(fn31)
In certain instances, fair use allows reasonable uses of copyrighted works without the copyright holder's consent.(fn32) The new law codifies the four factors courts generally consider in determining fair use.(fn33) The factors are: (1) the effect of the use on the copyrighted work's value; (2) the nature of the use; (3) the amount of the copyrighted work used; and (4) the nature of the copyrighted work. Although courts consider all four factors in deciding if a particular use is a fair use, the effect and nature of the use are the crucial factors. Courts must carefully balance these two factors to maximize the creation and spread of ideas, thereby achieving statutory copyright's purpose. Authors may refrain from publishing their creations if courts allow uses which economically injure copyright holders.(fn34) Yet, usesoof copyrighted works which benefit society by distributing useful ideas may justify tolerating some harm to the copyright holder.(fn35) The initial consideration, therefore, should be the nature of the use.(fn36) The greater the societal benefits of a use, the more tolerant courts should be of some harm to the copyright holder because the use may benefit society more than the possible detriment to society incurred by allowing injury to the copyright holder.(fn37) When the use has little societal benefit, however, courts should not risk possible deterrence of other authors by allowing the use to continue if it injures the copyright holder.(fn38)
There are two factors to consider when examining the nature of the use. First is the commercial versus the scholarly or artistic elements of the use.(fn39) Although nearly all uses contain both of these elements,(fn40) some uses are obviously primarily commercial, such as advertisements, or primarily scholarly or artistic, such as scientific, historical, or educational uses. A commercial use possessing little value as a distributor of useful ideas will be difficult to justify as a fair use.(fn41) A use, whether or not motivated by a desire for commercial gain, containing useful information will be easier to justify as a fair use.(fn42) The second factor is whether the copier plans to distribute multiple copies of the work or otherwise allow others to use the copy, or whether the copier plans to keep the copy for his or her own personal use. Noncommercial, private uses of copyrighted works differ in two respects from commercial uses where the copier allows others to use the copy...
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