PUBLIC PERFORMANCE RIGHTS AND THE ACADEMIC LIBRARY

I. INTRODUCTION:

II. WHAT IS A PUBLIC PERFORMANCE?

III. OWNER'S RIGHTS

IV. USER'S RIGHTS

V. NOTABLE COURT CASES

VI. EXEMPTIONS

VII. LIBRARIES:

VIII. USEFUL ARTICLES

I. INTRODUCTION:

The principal objective of copyright is to further the distribution of information for the public good. Article I, § 8, cl. 8 of the United States Constitution bestows Congress with authority "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 U.S. Supreme Court has upheld this notion in a number of cases in which they have established that the objective of copyright is not to reward the author's labor but to stimulate artistic creativity for the public good and promote the distribution of knowledge. (Feist Publications v. Rural Telephone Service Co., 111 S. Ct. 1282, 1290 (1991); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

Libraries have wrestled with the issue of copyright for a long time albeit that it's been in regard to print publications. However, now that libraries are purchasing increasing numbers of videocassettes we must also address the issue of copyright with respect to video format ie. public performance rights.
 

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II. WHAT IS A PUBLIC PERFORMANCE?

17 U.S.C. §101 (1994)

To perform or display a work ``publicly'' means--

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, 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.
 

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III. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS "Owner's Rights"

17 USC §106 (1994)

Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101-318, Sec. 3(d), July 3, 1990, 104 Stat. 288; Pub. L. 101-650, title VII, Sec. 704(b)(2), Dec. 1, 1990, 104 Stat. 5134; Pub. L. 104-39, Sec. 2, Nov. 1, 1995, 109 Stat. 336.)
 

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IV. LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE "Users Rights"

17 USC 107 (1994)

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101-650, title VI, Sec. 607, Dec. 1, 1990, 104 Stat. 5132; Pub. L. 102-492, Oct. 24, 1992, 106 Stat. 3145.)
 

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V. NOTABLE COURT CASES

Columbia Pictures Industries v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984)

Columbia Pictures Industries v.Aveco, Inc., 800 F.2d 59 (3rd Cir. 1986),

Columbia Pictures Industries v. Professional Real Estate Investors, 866 F.2d 278 (9th Cir. 1989)
 

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VI. LIMITATIONS ON EXCLUSIVE RIGHTS: "EXEMPTION" OF CERTAIN PERFORMANCES AND DISPLAYS

17 USC 110 (1994)

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(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, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

(2) performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if--

(3) performance of a nondramatic literary or musical work or of a dramatic or musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;

(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if--

(5) communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless--

(6) performance of a nondramatic musical work by a governmental body or a nonprofit agricultural or horticultural organization, in the course of an annual agricultural or horticultural fair or exhibition conducted by such body or organization; the exemption provided by this clause shall extend to any liability for copyright infringement that would otherwise be imposed on such body or organization, under doctrines of vicarious liability or related infringement, for a performance by a concessionaire, business establishment, or other person at such fair or exhibition, but shall not excuse any such person from liability for the performance

(7) performance of a nondramatic musical work by a vending establishment open to the public at large without any direct or indirect admission charge, where the sole purpose of the performance is to promote the retail sale of copies or phonorecords of the work, and the performance is not transmitted beyond the place where the establishment is located and is within the immediate area where the sale is occurring;

(8) performance of a nondramatic literary work, by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap, or deaf or other handicapped persons who are unable to hear the aural signals accompanying a transmission of visual signals, if the performance is made without any purpose of direct or indirect commercial advantage and its transmission is made through the facilities of: i) a governmental body; or ii) a noncommercial educational broadcast station (as defined in section 397 of title 47); or iii) a radio subcarrier authorization (as defined in 47 CFR 73.293-73.295 and 73.593-73.595); or (iv) a cable system (as defined in section 111(f)).

(9) performance on a single occasion of a dramatic literary work published at least ten years before the date of the performance, by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap, if the performance is made without any purpose of direct or indirect commercial advantage and its transmission is made through the facilities of a radio subcarrier authorization referred to in clause (8)(iii), Provided, That the provisions of this clause shall not be applicable to more than one performance of the same work by the same performers or under the auspices of the same organization.

(10) notwithstanding paragraph 4 above, the following is not an infringement of copyright: performance of a nondramatic literary or musical work in the course of a social function which is organized and promoted by a nonprofit veterans' organization or a nonprofit fraternal organization to which the general public is not invited, but not including the invitees of the organizations, if the proceeds from the performance, after deducting the reasonable costs of producing the performance, are used exclusively for charitable purposes and not for financial gain. For purposes of this section the social functions of any college or university fraternity or sorority shall not be included unless the social function is held solely to raise funds for a specific charitable purpose.

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2549; Pub. L. 97-366, Sec. 3, Oct. 25, 1982, 96 Stat. 1759.)
 

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VII. LIBRARIES:

Academic libraries are considered public places since most allow the community to use their collection ie. use is not limited to students, faculty and staff. Therefore, the viewing of videotapes in an academic library is considered a public performance. Does this mean that we must obtain a public performance license for every video added to the collection? Yes and no, 17 USC 110 (1994) identifies situations in which public performances are allowed without the copyright holders permission. Generally, library use falls into the "classroom exemption" (§110 pt.1-2) in which case a license is not needed. That is the library or an instructor may use a library classroom to show a videotape to a class if it directly supports the educational content of the course and the face-to-face requirement is met.

However, what happens if a student misses the performance and requests to view the video in the library without the instructor being on the premises? Two issues come into play, first the library is a public place and a performance of this nature could be considered similar to the Redd Horne and Aveco cases. Second, it may be considered outside the boundaries of the classroom exemption. Unfortunately there is no case law on this issue with respect to libraries.
 

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VIII. USEFUL ARTICLES

Cochran, J. Wesley, Why can't I watch this video here?: copyright confusion and performances of videocassettes & videodiscs in libraries, Hastings Communications & Entertainment Law Journal 15 (Summer 1993) : 837-892.

Heller, James, The public performance right in libraries: is there anything fair about it?, Law Library Journal 84 (Spring 1992) : 315-340.
 

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