Michigan Document Services Case & Coursepacks

Of Counsel:

Carey R. Ramos

Peter L. Felcher

Donald W. Hawthorne

Stephanie A. Gore

PAUL, WEISS, RIFKIND, WHARTON & GARRISON

1285 Avenue of the Americas

New York, NY 10019-66064

(212) 373-3000

Charles J. Sanders

NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC.

711 Third Avenue

New York, NY 10017

(212) 370-5330

Table of Contents

TABLE OF AUTHORITIES

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

INTERESTS OF THE AMICUS

SUMMARY OF ARGUMENT

ARGUMENT

1. The Legislative History of the Copyright Act of 1976 Establishes That Congress Sought to Place Reasonable Limits on Copying of Copyrighted Works for Educational Purposes

2. Case Law Supports that There Is No General Fair Use Exception for "Educational Copying"

3. Deeming For-Profit Copying for Educational Purposes a &quote;Fair Use&quote; Would Entangle Courts in Line-Drawing Issues Without Principled Grounds for Resolution

4. Recognition of a Fair Use Exemption for &quote;Educational&quote;Copying of Copyrighted Works Would Have a Damaging Effect on the Music Publishing Industry

CONCLUSION

Cases:

Addison-Wesley Publishing Co.. Inc. v. New York Univ.,
1983 Copyright L. Dec. (CCH) ¶ 25,544 (S.D.N.Y. 1983) . . . . . . . . . . . . . . . . . . . Pages 6, 11

American Geophysical Union v. Texaco, Inc.,
60 F.3d 913 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . Page 11

Association of Am. Medical Colleges v. Mikaelian,
571 F. Supp. 144 (E. D. Pa. 1983), aff'd per curiam,
734 F. 2d. 3 (3d Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . Pages 14, 15

Basic Books. Inc. v. Kinko's Graphics Corp.,
758 F. Supp. 1522 (S.D.N.Y. 1991) . . . . . . . . . . . . . . . . . . . . . . . . Page 15

Campbell v. Acuff-Rose Music,
114 S. Ct. 1164 (1994) . . . . . . . . . . . . . . . . . . . . . . . . Page 6

Encyclopedia Britannica Educ. Corp. v. Crooks,
542 F. Supp. 1156 (W.D.N.Y. 1982) . . . . . . . . . . . . . . . . . . . . . . . . Pages 14, 19

F. E. L. Publications, Ltd. v. Catholic Bishop of Chicago,
506 F. Supp. 1127 (N.D. Ill. 1981) . . . . . . . . . . . . . . . . . . . . . . . . Page 14

Harper & Row, Publishers. Inc. v. Nation Enterprises,
471 U.S. 539 (1985) . . . . . . . . . . . . . . . . . . . . . . . . Pages 6, 7

Macmillan Co. v. King,
223 F. 862 (D. Mass. 1914) . . . . . . . . . . . . . . . . . . . . . . . . Page 14

Marcus v. Rowley,
695 F. 2d 1171
(9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . Pages 6, 11, 14

Sony Corp. v. Universal City Studios. Inc.,
464 U.S. 417 (1984) . . . . . . . . . . . . . . . . . . . . . . . . Pages 6, 14

Wihtol v. Crow,
309 F.2d 777 (8th Cir. 1962) . . . . . . . . . . . . . . . . . . . . . . . . Pages 12, 13, 14

Constitutions

U. S. Const. art. I, § 8, cl. 8 . . . . . . . . . . . . . . . . . . . . . . . . Page 8

Statutes and Other Authorities

17 U. S. C. § 106 . . . . . . . . . . . . . . . . . . . . . . . . Page 12

17 U. S. C. § 107 . . . . . . . . . . . . . . . . . . . . . . . . Pages 6, 7, 12

Copyright Law Revision: Further Discussion and Comments on
Preliminary Draft for Revised U. S. Copyright Law,
88th Cong. , 2nd Sess., pt. 4 (1964) . . . . . . . . . . . . . . . . . . . . . . . . Page 9

Copyright Law Revision: Hearings on S. 1361 Before the Subcomm. on
Patents, Trademarks and Copyrights of the Senate Comm. on the
Judiciary ,93rd Cong. , 1st Sess., (1973) . . . . . . . . . . . . . . . . . . . . . . . . Pages 7, 8, 9, 10

Copyright Law Revision: Hearings on S.597 Before the Subcomm. on Patents,
Trademarks and Copyrights of the Senate Comm. on the Judiciary ,
90th Cong. , 1st Sess., pt. 1 (1964) . . . . . . . . . . . . . . . . . . . . . . . . Pages 8, 17

H. R. Rep. No. 1476, 94th Cong., 2d Sess. (1976) . . . . . . . . . . . . . . . . . . . . . . . . Pages 6, 10, 12

H. R. Rep. No. 1733, 94th Cong., 2d Sess. (1976) . . . . . . . . . . . . . . . . . . . . . . . . Page 10

Kansas Attorney General's Opinion of August 25, 1981, No. 81-202,
181 Copr. L. Dec. ¶ 25,331 (1981) . . . . . . . . . . . . . . . . . . . . . . . . Page 13

3 Nimmer on Copyright . . . . . . . . . . . . . . . . . . . . . . . . Pages 13, 15

Pursuant to Sixth Cir. R. 25, amicus curiae National Music Publishers' Association, Inc. makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly-owned corporation?

   No.

2. Is there a publicly-owned corporation, not a party to this appeal, that has a financial interest in the outcome?

   No.

3. Additional: prospective amicus curiae National Music Publishers' Association, Inc. is a non-profit incorporated trade association that does not have any parent or affiliate. Its sole subsidiary is The Harry Fox Agency Inc., an agency that performs licensing functions on behalf of NMPA's members and others. Fox Agency International is a wholly- owned subsidiary of The Harry Fox Agency, and performs similar functions in the Pacific Rim area. NMPA has more than 600 music publisher members, and The Harry Fox Agency performs licensing on behalf of over 15,000 American music publishers. While the names of NMPA's members are too numerous to list here, none of the parties to this litigation is a member of the NMPA.

The National Music Publishers' Association, Inc. ("NMPA") submits this brief amicus curiae pursuant to Rule 29 of the Federal Rules of Appellate Procedure in support of plaintiffs-appellees' Brief and Supplementary Brief.

NMPA is the principal trade association of music publishers in the United States. The over 600 music publisher members of NMPA, their subsidiaries and affiliates, own or adminiser at least sixty percent of the musical compositions registered for copyright in the United States. Since its founding in 1917, NMPA has been involved in legislative, legal and educational initiatives relating to copyright on behalf of the common legal interests of its members.

The primary activities of NMPA are representing the interests of creative artists and copyright holders before Congress and the courts In matters affecting music copyrights, educating the public on the need for copyright protection and generally safeguarding the interest of copyrights in musical works. NMPA participated in the development of the Copyright Act of 1976 and was among the drafters of the Guidelines for Educational Uses of Music that are part of the legislative history of that Act.

NMPA's licensing subsidiary, The Harry Fox Agency, Inc., represents over 15,000 publisher-principals in the issuance of mechanical recording licenses and other licensing activities. Established in 1927, The Harry Fox Agency, Inc., serves as an information source, clearing house and monitoring service for a large percentage of the uses of music in the United States and worldwide. The Harry Fox Agency licenses copyrighted musical compositions for use on records, tapes and CDs (mechanical licensing), and in motion pictures, broadcast and cable programs (synchronization licensing), commercial advertising, recordings made outside of the United States for importation into this country (import licensing), and a variety of other applications. The Harry Fox Agency also collects and distributes royalties derived from these licensed uses of copyrighted music, audits the records of licensees, and identifies unlicensed, infringing products.

NMPA is actively involved in protecing the rights of music copyright holders and preventing the distribution of infringing copies in all circumstances in which music is used, including education and instruction. Although the copyrighted materials at issue in this case did not include music, the panel majority's decision drew no distinctions based on the contents of the material copied by copy-shops. NMPA is concerned about the potential impact of the panel majority's decision on copyrighted music and lyrics, which are particularly susceptible to the kind of copying at issue here. NMPA therefore submits this amicus brief in order to express its views on the fair use of copyrighted musical material in educational contexts In order to assist the Court in understanding the broader implications of the issues before it.

Educational institutions and, more generally, not-for-profit entities are significant users of copyrighted music. School bands and choirs, at all educational levels, are major consumers of musical scores. Music education courses are also significant users of music to which NMPA's members hold rights. For many types of copyrighted music, such as choral music or church hymns, educational and not-for-profit entities provide the principal and, in some cases, nearly the exclusive market for the sale or license of copyrighted musical works.

Although educational uses typically involve the purchase of entire scores or copies of musical works, they also frequently entail licensing or the grant of permission (for a fee) with respect to a part or a limited use of a work, such as a license to make and use arrangements, to copy out-of-print works, or to use a work on a one-time basis. Licensing for educational uses is a significant source of income for both large and small music publishers alike. Some publishers receive hundreds of requests a month for licenses to copy and use musical works. Major publishers often have staff with the sole responsibility of responding to such requests for permission to use works.

Copyright doctrine recognizes the importance of the education market for music rights holders. The Guidelines for Educational Uses of Music, which NMPA helped to formulate, reflect the careful balance struck by Congress and the Courts in acknowledging both the importance of education and the necessity of providing adequate incentives to stimulate creative musical effort, from which students and their teachers benefit. The arguments advocated by appellants and embraced by the panel majority would unbalance that careful equilibrium.

NMPA subscribes to many of the arguments made by plaintiffs-appellees in their Brief and Supplemental Brief. However, because of its familiarty with the important role that educational markets play for music rights holders, and because of its involvement in defining the permissible extent of educational copying of music, NMPA believes it can best assist the court by addressing itself to these issues in this amicus brief.

Adopting arguments advanced by appellants, the panel majority indicated that its decision was based on the assumption of a general educational fair use exception, applying to professors and their students:

The professors and students, who might otherwise copy the materials themselves, have assigned the task of copying to a professional service that can perform the copying more efficiently . . . . We hold that the Copyright Act does not prohibit professors and students who may make copies themselves from using the photo reproduction services of a third party in order to obtain those same copies at less cost.

That conclusion rests on a mistaken premise. The legislative history of the Copyright Act demonstrates that its drafters, recognizing the importance of providing incentives for the production of creative works, considered and rejected sweeping educational exemptions. Seeking instead to strike a balance between encouraging creative activity and ensuring its availability, Congress endorsed carefully-tailored guidelines providing a limited safe harbor for educational fair use of copyrighted works, including music.

Case law, prior to and since the enactment of the Copyright Act of 1976, demonstrates that educators venture outside of that safe harbor, indiscriminately copying works without authorization, at their peril. As the case law makes clear, there is no general fair use exception for educators or educational uses. Any use outside the guidelines' safe harbor must be justified in terms of traditional fair use analysis. As the cases also show, where eductors' unreasonable duplication of materials inflicts harm on the market for copyrighted works, their educational status will not insulate them from a finding of infringement.

The argument advanced by appellants contains a second critical flaw. They claim not only that educators are necessarily entitled to a fair use defense; they go the further step, asserting that for-profit institutions are equally entitled to wrap their activities in the mantle of fair use if they are making copies for educational purposes or at the direction of teachers. That leap of reasoning is again directly contradicted by prior case law. It would also, as we demonstrate herein, inevitably give rise to intractable disputes, requiring that courts properly distinguish "educational" from non-educational uses-- disputes that courts would have no principled way to resolve.

Appellants' arguments may be construed to advocate either a general fair use defense for educators and their for-profit co-venturers, or a defense limited to circumstances where the unanthorized copier would not--he or she claims after the fact-- purchase the copied work if prohibited from copying it without charge. Were either principle applied to the field of music publishing, NMPA's members and the composers whose works they publish would be seriously harmed, and incentives for the creation and distribution of musical works correspondingly diminished.

In seeking fair use protection for their unlicensed use of copyrighted works, appellants in effect ask this Court to require creators and publishers to subsidize education by providing their copyrighted works free of charge. While this might serve the laudable goal of reducing the cost of education, such a result would be no more fair than to require the manufacturers of school supplies, desks or band uniforms to give their merchandise away free to schools or to require teachers to teach without compensation. Such a subsidy cannot be justified as a matter of law or public policy.

1. The Legislative History of the Copyright
Act of 1976 Establishes That Congress Sought
to Place Reasonable Limits on Copying of
Copyrighted Works for Educational Purposes

The legislative history of the Copyright Act of 1976 demonstrates that Congress, rejecting proposals for a general nonprofit educational fair use exemption, endorsed a reasonable, narrowly-tailored understanding of fair use copying for educational purposes--an understanding that faIIs far short of permitting the type of systematic, for-profit duplication undertaken by appellants.

At the outset, appellants urge, and the panel majority agreed, that this authoritative legislative history should not even be consulted by this Court. That position is without precent or basis in law. Courts applying the fair use factors of section 107 of the 1976 Copyright Act routinely consult the statute's legislative history to illuminate the intention of its drafters.[FN 1] Accordingly, courts determining the permissibility of duplicating copyrighted works for educational use have repeatedly looked to the portions of the legislative history where that issue is addressed.[FN 2] Indeed, until the panel majority's decision, no court applying the fair use factors of section 107 of the 1976 Copyright Act has ever characterized these factors as "unambiguous "[FN 3] or concluded that the statute's legislative history can be ignored.

When the legislative history is consulted, it reveals that Congress concluded that "a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control is not justified." H.R. Rep. No. 1476, 94th Cong., 2d Sess. 66-67(1976) (internal quotation omitted). Rather, when the House Committee on the Judiciary amended section 107 to include a reference to "multiple copies for classroom use," it explained that the amendment was "a recognition that, under the proper circumstances of fairness, the doctrine [of fair use] can be applied to reproductions of multiple copies for the members of a class. "[FN 4] Id. at 66 (emphasis added). SimIlarly, when the Committee amended the first fair use factor to include a consideration of "whether such use is of a commercial nature or is for non-profit educational use," it stated that this amendment was "an express recognition that . . . the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions." Id. (emphasis added).

In the course of the long legislative process that culminated in the enactment of the Copyright Act of 1976, several proposals for a nonprofit educational exemption were submitted to the drafters and rejected.[FN 5] The legislators well understood that the aim of fair use is to strike a balance between "protect[ing] and provid[ing] for some incentives to the creator of the material," to encourage the production and dissemination of creative works, and securing their availability to the public.[FN 6] And, as Congrsss also understood, a blanket educational exemption would upset the proper balance between those factors.[FN 7]

As the chairman of the Subcommittee on Patents, Trademarks and Copyrights recognized, by tipping the balance too far in favor of making creative works freely avaIlable in the short term, a blanket educational exemption would thwart the interests of both the producers and consumers of creative works in the long term by underining the incentive to produce such works:

Sen. McClellan: [in response to the proposal for an educational exemption] . . .I do think this question ought to be borne in mind, and I would like for some of you to give us an answer to it. Is there any danger of [copyrighted] material drying up or being greatly diminished by reason of the inability of the producers to finance the costs of it unless they get revenues, additional revenues in some other way?. [I]f they can't produce it, and get a return, at least on their investment, enough to keep them in business, you are not going to have the material."

Mr. Wigren: Well, we are asking for only minimal things in the course of teaching and learning that we feel will not undercut at all the ability of the publisher to make a profit, which, of course, we think he should do.

Sen. McClellan: But on the other hand, if they don't have anybody to subscribe for it, they are certainly not going to produce any of it.

Copyright Law Revisions: Hearings on S. 1361, Subcomm. on Patents, Trademarks and Copyrights of the Senate Comm. on the Judiciary, 93rd Cong., 1st Sess. 182 (1973) (statement of Harold E. Wigren, Chair, Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revisions, and Sen. John L. McClellan, Chair, Subcomm. on Patents, Trademarks and Copyrights of the Senate Comm. on the Judiciiay).

This point was eloquently presented to the Judiciary Committee by a representative of the American Textbook Publishers Institute:

[I]n a system such as that of the United States, it is essential that authors be given the incentive to create. . . .I am suggesting that, instead of various groups taking firm, adamant positions that they must have free use of copyrighted materials, they ought to recognize the old and perhaps oversimplified, banal adage, 'Don't kill the goose that lays the golden egg.' Don't reIy on photocopying equipment and information storage and retrieval hardware to disseminate information if in the long run you will stultify the development of the very information which you need in order to feed the machines in order to feed your students.

Copyright Law Revision: Further Discussions and Comments on Preliminary Draft for Revised U.S. Copyright Law, 88th Cong., 2nd Sess., pt. 4, at 226 (1964) (statement of Bella L. Linden, American Textbook Publishers Institute) (emphasis added).

Even educational advocates, when testifying before the Congressional subcommittee, conceded that fair use was not a free license to copy entire scores or to create anthologies with excerpts copied from copyrighted works[FN 8]--a concession appellants have apparently forsaken.

Congress recognized the difficulty of attempting to strike the proper balance between these interests; to aid in the effort, Congress asked groups representing educational institutions, authors, composers and publishers to negotiate and agree upon guidelines to insert in the Committee Report concerning permissible educational uses of copyrighted materials. The resulting proposals, known as the Guidelines for Classroom Copying[FN 9]

and the Guidelines for Educational Uses of Music, [FN 10]informed Congress' understding of the fair use doctrine and were incorporated directly into the final House Report and, by reference, into the final Conference Report.[FN 11]

Counsel for appellees and other amici discuss the Guidelines for Classroom Copying in their briefs; we therefore confine our discussion to the Guidelines for Educational Uses of Music.

The Guidelines for Educational Uses of Music permit emergency copying for performances to replcce purchased copies which are not available for an imminent performance, provided that purchased replacements are substituted in due course; and multiple copies, up to one per student, of excerpts for academic purposes other than performances, provided they do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria, or amount to more than ten percent of the entire work. Furher, the guidelines prohibit copying to create, replace or substitute for anthologies, compilations or collective works, and copying for the purpose of substituting for the purchase of music. In providing a minimum standard of educational fair use, these guidelines provide a safe harbor for educators. Outside that safe harbor, educators must justify their uses as fair, and cannot presume to copy with impunity. That point has been forcefully demonstrated by cases that have held that educational copying exceeding the limits defined in the Classroom Guidelines infringed plaintiffs' copyrights. [FN 12]

By refusing to consider the legislative history of the 1976 Act, appellants and the panel majority threaten to undo the careful balance struck by Congress between the interests of authors, composers, and publishers, on the one hand, and educators on the other--a balance Congress fashioned through fifteen years of debate and memorialized in the precisely-crafted terms of the Classroom and Music Guidelines.

2. Case Law Supports that There Is No General
Fair Use Exception for "Educational Copying"

The legislative history regarding educational copying does not stand alone. Before the Copyright Act of 1976, and since its enactment, courts have concluded that unauthorized copying by educators must satisfy the traditional tests of fair use. Where those tests are not met--as often occurs when educators exceed the Guidelines' safe harbor or harm the market for copyrighted works--unauthorized duplication constitutes infringement, notwithstanding the infringer's educational credentials.

In the leading case of Wihtol v. Crow, the Eighth Circuit held that an educator's copying of copyrighted songs was not a fair use, even though the defendant's purpose was educational.[FN 13] 309 F.2d 777 (8th Cir. 1962). The defendant in Wihtol was the director of a church choir and head of the vocal department at a junior college and high school, where he directed a school choir. Without authorization from any rights holder, the defendant arranged a copyrighted song, made forty-eight copies of the new arrangement himself "upon one of the School's duplicating machines," and furnished the copies to the school and church choirs he directed, each of which performed the work on one occasion.[FN 14] Id. at 778-79.

The Eighth Circuit rejected a fair use defense: "[w]hatever may be the breadth of the doctrine of 'fair use,' it is not conceivable to us that the copying of all or substantially all, of a copyrighted song can be held to be a 'fair use' merely because the infringer had no intent to infringe." Id. at 780. Wihtol remains one of the "leading" cases on the question of the permissible limits of photocopying.[FN 15] See 3 Nimmer on Copyright § 13.05[E][4] at 13-252 (1995).

The circumstances of Wihtol are instructive. The song in question earned its writer some $25,000 annually in royalties, and the songwriter depended upon this income. The primary use for the song was in performance by school and church choirs; therefore, any blanket "educational" fair use exception would have deprived the writer of essentially all return on his work. Moreover, "[p]artof the income [was] derived from granting licenses for the making of special arrangements of the song." Id. at 777. As in the present case, a licensing or permissions market constituted a significant source of the return guaranteed to the writer by his copyright.

Wihtol underscores the potential implications of the instant case for music copyrights Educators are a significant part of the market for many musical works. Any blanket fair use exemption for all noncommercial educational uses would eliminate much of the market for, and the value of, many copyrighted musical works. More fundamentally, Wihtol and the many decisions following its reasoning make clear that the mere fact that an educator is involved in making copies does not automatically entitle him or her to the fair use defense.[FN 16]

3. Deeming For-Profit Copying for Educational
Purposes a "Fair Use" Would Entangle Courts in Line-
Drawing Issues Without Principled Grounds for Resolution

As the preceding sections demonstrate, there is no "educational" fair use exemption even where copying is not for profit. It follows that a commercial copy-shop cannot justify infringement on the ground that it serves an educational purpose. See Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1531 (S.D.N.Y. 1991); 3 Nimmer § 13.O5[A][1], at 13-170 ("an educational use that is rendered for profit may be regarded as the equivalent of a commercial use"); see also Association of Am. Medical Colleges v. Mikaelian, 571 F. Supp. 144, 152-33 (E.D. Pa. 1983), aff'd per curiam, 734 F.2d 3 (3d Cir. 1984) (copying of tests for exam preparation was not fair use, where, even if provider of test preparation service was an "educator," test preparation course was "highly commercial" enterprise).

Moreover, if an educational end-use alone were sufficient to render commercial, for-profit duplication a fair use, the floodgates to wholesale copying of musical works would burst wide, giving rise to interminable litigation and involving the courts in hopeless efforts at line-drawing. The implications of such an "educational use" exception may be illustrated by considering a hypothetical instance of unauthorized copying, purportedly for an educational use or purpose.

Assume that a college professor chose to make a recording containing excerpts from a number of copyrighted twentieth century classical works, to illustrate a pedagogical point. On the panel majority's view, the professor would apparently be entitled to make and distribute tapes of these compilations herself, or even to enlist an independent record company to make multiple copies in the form of tapes or CDs for the professor's class, without paying the statutory mechanical recording license royalty, notwithstanding the fact that an active market exists for the sale of records anthologizing excerpts from classical works.

A proper reading of the fair use doctrine would likely deem any such uncompensated copying an infringement. But if, as appellants and the panel majority suggest, an educational purpose were all that divided legitimate copying from infringement, how could that line be drawn? Appellants' theory would oblige courts to draw any number of distinctions between "genuinely educational" and essentially commercial uses, with no principled basis for doing so. For example:

• Would a commercial anthology become an educational "fair use" merely because an educator selected the materials anthologized?
• Would such a work lose its "educational" status if sales were not limited to a university community, or perhaps even to the students of a particular class?
• If that were so, how could the store selling the recording ensure that only members of the intended "educational" audience purchased the work?
• Could a record producer invoke the protection of the fair use doctrine merely by finding a professor to endorse the record company's anthology?
• If not, how can the line be drawn between genuine and illegitimate pedagogical involvement?
• Could a correspondence school or television program advertising itself as an "open university" or "continuing education" program copy and distribute musical anthologies with no risk of infringement?
• If not, how are courts to distinguish between legitimate and illegitimate educational ventures?

An interpretation of fair use that gave rise to such imponderable distinctions would be a disservice to users and copyright holders alike, for it would make even more difficult, if not impossible, the determination of when copying crosses the line into infringement. However, that is precisely the notion of fair use that appellants and the panel majority accept. In their professed zeal to free educators of their obligations to the creators of copyrighted works--and to make a profit in the process--appellants advocate a theory of fair use that invites such intractable questions and the equally intractable litigation that would inevitably follow. In so doing, appellants ignore both the substantial case law and legislative history that squarely reject such an exemption.

4. Recognition of a Fair Use Exemption for "Educational"
Copying of Copyrighted Works Would Have a
Damaging Effect on the Music Publishing Industry

With over 28,000 schools and university music departments nationwide, educational uses of music are a primary market for music publishers. Marching bands and school choirs are among the most significant consumers of many types of printed music, and virtually the only market in some cases.[FN 17] Music publishing is also particularly susceptible to injury from unauthorized copying. All it takes is a few moments at a copy machine to turn one score into enough copies to satisfy a hundred-voice choir.[FN 18] Unauthorized copies of musical works are also particularly damaging to the interests of rights holders because they are generally adequate substitutes for originals, often appearing no less permanent or attractive than the original sheet music. A singer or musician with a copy of a score may see no reason not to add the copy to her permanent library, just as she might have retained an authorized original.

Even if limited to situations where an educator would not have purchased a copyrighted work, appellants' theory of fair use would still threaten serious harm to music copyrights, because it would eliminate the important market for licensing permissions for musical works. Adopting appellants' arguments, the panel majority concluded, in defense of course packs, that "[t]he publishing industry does not offer such highiy customized and current materials, and indeed is not equipped to do so." The validity of this statement as applied to book publishing, while not NMPA's particular area of expertise, appears questionable. There is no question, however, that this statement is not true of the music publishing industry.

There is an active permission market in the music educational field. Following simple procedures, educators, professors, music instructors and college bookstores routinely request permission (often by facsimile) to use works in whole or in part. Music publishers submit a form granting permission for a particular use, and the licensee pays the agreed fee. This system is well-established. In 1995 alone, just one publisher, Warner Brothers Publications, Inc., granted 2,185 permissions for use of its copyrighted works. Major music publishers have staff devoted to responding to such requests for permission.

Among other purposes, educators seek permission to copy out-of-print works, make "custom" arrangements for groups with special instrumentation, and use excerpts from longer works to create course books. For example, an instructor in a musical form and analysis course might want to provide examples to her class of short themes or elements from a number of copyright-proteced classical works by a range of composers. Today, educators in that position typically seek and receive licenses, and pay fees, for the right to make such use of copyrighted music.[FN 19]

The loss of such permission fees would cause real and significant harm to music publishers. But the most threatening suggestion urged by appellants and accepted by the panel majority is the view that for-profit commercial copying constitutes fair use so long as that copying is done for an educational purpose. Whether that principle is limited to the permissions market or applied to all copying, it strikes at the heart of the protections secured by the Copyright Act to NMPA's members. The opportunity to free ride on others' creative work, undercut music publishers' prices, and collect as profit anything beyond the minimal costs of mass copying, would create a tremendous incentive for for-profit "educational" copying. The same factors that make unauthorized copying by educators such a threat to music publishing would make it possible for for-profit "educational" duplication to squeeze out publishing profits and, with them, the incentive to create and distribute creative works.

It is a inevitable that, if copyright laws are interpreted and enforced in the way that Congress intended, a few potontial educational users may determine that they cannot afford to pay the fees required to use copyrighted musical works legitimately. But the tremendous size and vitality of the educational market for music suggests that the great majority of educators and students do not find the price of a score or a permission fee an insuperable obstacle to obtaining the music they desire. And it is those payments for copyrighted work that in turn guarantee that students and student performers will continue to have access to the best, most challenging creative work of composers and lyricists. If for-profit copyshops are permitted to make short-term windfall profits by reproducing works in whole or substantial part without compensating their creators, the long-term consequence will be to eliminate the incentives for artists to produce creative works, and for publishers to make those works widely available to consumers.

Appellants may believe that the solution for those few educators who cannot pay for copyrighted works is to deem all educational uses "fair." But the cost of such misguided beneficence would be to diminish the public's access to creative works--a benefit that the Copyright Act was intended to promote.

For the foregoing reasons, NMPA respectfully urges the Court to affirm the decision of the Court below granting appellees' motion for summary judgment and denying appellants' cross-motion for summary judgment.

Dated:Cincinnati, Ohio

May 17, 1996

Of Counsel:

Carey R. Ramos
Peter L. Felcher
Donald W. Hawthorne
Stephanie A. Gore
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 Avenue of the Americas
New York, NY 10019-6004
(212) 373-3000

Charles J. Sanders
NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC.
711 Third Avenue
New York, NY 10017
(212) 370-5330

Footnote 1 See, e.g., Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1170 (1994); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549-553 (1985) (relying on statements in the legislative history regarding classroom copying to "confirm[]" what "Congress intended" regarding the scope of fair use); Sony Corp. of America, v. Universal City Studios, Inc., 464 U.S. 417, 479 (1984).

Footnote 2See, e.g., Marcus v. Rowley, 695 F.2d 1171, 1178 (9th Cir. 1983); Addison-Wesley Publishing Co., Inc. v. New York Univ., 1983 Copr. L. Dec. (CCH)  25,544 (S.D.N.Y. 1983).

Footnote 3See, e.g., Sony Corp. of America, 464 U.S. at 475 ("The doctrine of fair use has been called, with some justification, 'the most troublesome in the whole law of copyright'") (citation omitted).

Footnote 4 The majority appears to accord near-determinative effect to the fact that section 107 of the Copyright Act mentions "teaching (including multiple copies for classroom use)" among the statutory examples of fair use. Such a reading of section 107 is misplaced. As the Supreme Court stated in Harper & Row, Publishers, Inc. v. Nadon Enterprises, the fact that an article constituted "news reporting"-anther category enumerated in Section 107-was "simply one factor in a fair use analysis," and did not require a finding of fair use. 471 U.S. 539, 561(1985).

Footnote 5 The last version of the rejected proposals reads in relevant part as follows: "Notwithstanding other provisions of this Act, nonprofit use of a portion of a copyrighted work for noncommercial teaching, scholarship and research is not an infringement of copyright. For purposes of this section, (1) "use" shall mean reproduction, copying and recording.. .; (2) "portion" shall mean brief excerpts (which are not substantial in length in proportion to their source) from copyrighted works, except that it shall also include (a) the whole of short literary, pictorial and graphic works, . . ." Copyright Law Revision: Hearings on S. 1361 Before the Subcomm. on Patents, Trademarks and Copyrights of the Senate Comm. on the Judiciary, 93rd Cong., 1st Sess. 181 (1973) (statement of Harold E. Wigren, Chair, Ad Hoc Comminee of Educational Institutions and Organtations on Copyright Law Revisions).

Footnote 6 Copyright Law Revision: Hearings on S. 597 Before the Subcomm. on Patents, Trademarks, and Copyrights of the Senate Comm. on the Judicary, 90th Cong., 1st Sess., Pt. 1, at 101 (1%7) (statement by Sen. John L. McClellan, CiLair, Subcomm. on Patents, Trademarks, and Copyrights of the Senate Comm. on the Judiciary). The principle that copyright serves the purpose of encouraging creative expression has a long and distinguished pedigree. In granting Congress the power to pass copyright laws, the Framers of the Constitution recognized that "securing for limited Times to Authors . . . the exclusive Right to their . . . Writings" served to "promote the Progress of Science and usefid Arts." U.S. Const; art. I, § 8, cI. 8.

Footnote 7This understanding was expressed many times throughout the hearings. See, e.g., Copyright Law Revision: Hearings on S. 597 at 165 ("Sen. Burdick: [T]he only thing I am afraid of is that you have someone who spends years in perfecting a textbook and all of a sudden, it is used free of charge, where does he sell textbooks . . . This is the balance we are trying to achieve. I certainly do not want to destroy initiative, inventiveness, and new ideas. This we haw to have.") (emphasis added). See also Copyright Law Revisions: Hearings on S. 1361 Before the Subcomm. on Patents, Trademarks and Copyrights of the Senate Comm. on the Judiciary, 93rd Cong., 1st Sess. 194 (1973) ("Sen. McClellan: Now, I am not taking up for anyone here. I am trying not to. In fact, I don't know which side I am on, actually, but you have this benefit to the educational community and to have these facts disseminated in these publications and so forth, well, they have to he created, they have to have an author to create them, and somebody to publish them first. That involves some costs, and when that cost can't be recovered, we are going to dry up the source.").

Footnote 8 The Ad Hoc Committee representing educational institutions acknowledged that even an educational exemption would not give them free reign to copy substantial portions of copyrighted materials. Copyright Law Revisions: Hearings on S. 1361 at 183 (statement of Harold E. Wigren, Chair, Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revisions) ("The ad hoc committee is not asking for the right to copy an entire book or novel; . . . [or] musical score; . . . nor is it asking for permission to anthologize").

Footnote 9The Classroom Guidelines were submitted by the Ad Hoc Committee on Copyright Law Revisions, the Authors League of America, Inc., and the Association of American Publishers, Inc. H.R. Rep. No. 1476 at 67-70.

Footnote 10The Music Guidelines were submied by the NMPA, the Music Publishers' Association of the United Stes, Inc., the Music Teachers National Cooference, the National Association of Schools of Music, and the Ad Hoc Committee on Copyright Law Revisions, the Authors League of America, Inc., and the Association of American Publishers, Inc. Id. at 70-71.

Footnote 11Id. at 67-72; H.R. Conf. Rep. No. 1733, 94th Cong., 2d Sess. 70 (1976) ("The conferees accept as part of their understanding of fair use the Guidelines for Classroom Copying in Not- for-Profit Educational Institutions with respect to books and periodicals . . . , and for educational uses of music.")

Footnote 12 See, e.g., American Geophysical Union v. Texaco Inc., 60 F.3d 913, 919 & n.5 (2d Cir. 1995) (Classroom Guidelines, although not binding on courts, "exist as a persuasive authority"); Marcus, 695 F.2d at 1178; see also Addison-Wesley Publishing Co., 1983 Copr. L. Dec. (CCH) ¶ 25,344 (guidelines incorporated in consent decree).

Footnote 13 Enactment of section 107 does not diminish the precedential value of Wihtol. As the House Report stated, "Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way." H.R. Rep. No. 1476 at 66.

Footnote 14The right to prepare derivative works, including arrangements, and the right to copy such works are among the rights exclusively reserved to the copyright holder by section 106 of the Copyright Act.

Footnote 15 The Kansas Attorney General, relying on Wihtol nearly twenty years later, reached very much the same conclusions in an opinion concerning the duplication of musical scores. Kansas Attorney General's Opinion of August 23, 1981, No. 81-202, 1981 Copr. L. Dec. ¶ 25,331, 16,853 (1981). The music director for a public school district in Kansas sought to make duplicates of musical scores to provide judges at state music festivals, to aid them in judging the performance of student groups. The music director contended that this represented a fair use of the works because it served "the purpose of criticism and comment in furtherance of a nonprofit, educational purpose." Id. at 16,854. The Attorney General rejected this argument, concluding that the proposed use was not a fair use, "even though it is for a nonprofit, educational purpose." Id. at 16,857. Relying on the Guidelines for Educational Uses of Music, which it quoted at length, the Attorney General's opinion stated that duplication of musical scores for the purpose of judging performances contravened the prohibition in the Guidelines of copying as a substitute for purchasing music. While acknowledging that the copying was "not for commercial purposes," the Attorney General still found the proposed use infringing, in part based on the market harm that unlimited copying would bring about: "Certainly the demand for the original work would be decreased if all teachers could make copies for all judges in all music competitions. Because music teachers are obviously a major part of the potential market for certain works of music it is likely that the market for those works would decrease if unauthorized copies could be made indiscriminately." Id. at 16,857.

Footnote 16See, e.g., Marcus v. Rowley, 695 F.2d 1171, 1175 (9th Cir. 1983) (no fair use where teacher duplicated copyrighted material and made it available, on a non-profit basis, to students in class; a finding of a nonprofit educational purpose does not automatically compel a finding of fair use"); see also Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 452 (1984) ("Even copying for noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended hiin to have"); Association of Am. Medical Colleges v. Mikaelian, 571 F. Supp. 144, 153 (E.D. Pa. 1983), aff'd per curiam, 734 F.2d 3 (3d Cir. 1984) ("[e]ven where a nonprofit corporation is making clearly educational use of copyrighted works, this has not in and of itself been sufficient to sustain a fair use defense") (dictum); Encyclopedia Britannica Educ. Corp. v. Crooks, 542 F. Supp. 1156, 1175 (W.D.N.Y. 1982) (videotaping of educational television broadcasts by non-profit corporation funded by public school districts and created under state law to provide educational services to public schools was not fair use; scope and methods of copying "cannot be deemed reasonable, even under the most favorable light of fair use for non-profit educational purposes"); F.E.L Publications, Ltd. v. Catholic Bishop of Chicago, 5O6 F. Supp. 1127, 1132 (N.D. 111. 1981) (making of "Xeroxed or typewritten hymnals from songs in copyrighted hymnals, . . . only for the purpose of enabling a congregation to participate in the mass or other religious service . . . could have been held to be copyright infringement") (dictum); MacMillan Co. v. King, 223 F. 862, 867 (D. Mass. 1914) (outline prepared for use in tutoring session infringed texthook, even though outline was never sold; "I am unable to believe that the defendant's use of the outlines is any the less infringement of the copyright because he is a teacher [or] because he uses them in teaching the contents of the book").

Footnote 17 To the extent the panel majority's reasoning is based on the non-profit nature of the educational enterprise, its rationale might be extended to religious uses as well. This would also have serious implications, for religious uses are another very significant market for copyrighted musical works.

Footnote 18 Cf. Copyright Law Revision: Hearings on S. 597 at 436 (1967) (Statement of Philip B. Wattenberg, Music Publishers' Association of the United States, Inc.) ("The deep concern of music publishers is understandable when it is realized how easy it is to reproduce musical compositions. The average edition for piano is only four to five pages of music and for chorus six to eight pages. In addition, pages of music are seldom bound and may be separated to facilitate quick reproduction.").

Footnote 19 Many churches rely almost exclusively on licensing to obtain music for use in their services. A licensing agent, Christian Copyright Licensing, Inc. (CCLI), grants annual blanket licenses to allow use of any music in its repertory. Churches pay licensing fees based on the size of their congregations. However, churches monitor and record the frequency and nature of the use of particular works, and that information is used by the licensing agent to distribute royalties among rights-holders. Moreover, the music industry is not the only business in which an active licensing market exists for users disinclined to purchase copyrighted works. Cf Encyclopedia Britannica Educational Corp. v. Crooks, 542 F. Supp. 1156, 1171 (W.D.N.Y. 1982) (even if defendants would not have purchased videotapes they copied, rights holders of videotapes were harmed by unathorized copies because "defendants could have leased or rented these. . . works from the plaintiffs for classroom use").

I, Stephen Gillen, certify under penalty of perjury that on May 17, 1996 I caused to be served one true copy of the "Motion For Leave to File Brief Amicus Curiae On Behalf of National Music Publishers' Association, Inc." and two true copies of the attached "Brief Amicus Curiae of National Music Publishers' Association, Inc. in Support of Plaintiffs-Appellees Princeton University Press, Macmillan, Inc. and St. Martin's Press, Inc. Brief and Supplemental Brief upon plaintiffs-appellees PRINCETON UNIVERSITY PRESS, MACMILLAN, INC. and ST. MARTIN'S PRESS, INC. at the address designated by them for that purpose, Proskauer Rose Goetz & Mendelsohn LLP, 1585 Broadway, New York, New York 10036, and upon defendants-appellants MICHIGAN DOCUMENT SERVICES, INC. and JAMES M. SMITH at the address designated by them for that purpose, Bodman, Longley & Dahling, 110 Miller, Suite 300, Ann Arbor, Michigan 48104, by depositing the papers in a prepaid sealed wrapper, properly addressed, in an official depository under the care and custody of The United States Postal Service within Ohio.