The members of the INDEPENDENT MEDIA PRODUCERS

ASSOCIATION, a nationwide organization of producers of motion pictures and videotapes, have a great interest in the outcome of the debate over the future legality of the off-air videotaping of broadcast materials. The recent decision in UNIVERSAL CITY STUDIOS v. SONY CORPORATION OF AMERICA indicated that recording copyrighted material off-air on home video recorders is now a violation of the Copyright Act of 1976.

On the

On the one hand, the convenience of being able to videotape an interesting television program for later home viewing is something we have often taken advantage of ourselves. other hand, this very convenience makes us, as producers of copyrighted materials, open to considerable financial loss as unscrupulous individuals and organizations make and distribute unauthorized copies of those videotapes to avoid legitimate royalty payments to the producers or authorized distributors.

Senate Bill 1758, which we understand was introduced in response to the UNIVERSAL v. SONY decision with the intent of legalizing home video recording of off-air material, unfortunately is much broader than necessary to achieve that goal. The bill gives a tremendous foot in the door to those who would make unauthorized copies of all types of video and motion picture programming broadcast or not. In fact, the words "broadcast" and "television" do not even appear in the bill!

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The apparent intent of the bill is definitely worthwhile: to allow American citizens the right to this technological convenience. But this must be done without disallowing the copyright holders a fair return on their investment. If the profit incentive is removed or significantly reduced for the

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producers, all those who enjoy films and television programs will suffer because independent producers will either turn their attentions to other endeavors or will produce material that will

be specifically excluded from any market that cannot be tightly

controlled.

The members of I-M-P-A, with a few exceptions, are not the large studios or corporations that have tremendous resources to fall back upon. Rather, most are independent entrepreneurs or small businesses that produce programs for training and education as well as entertainment.

Often these programs are produced spontaneously in the hopes of recouping the costs through future sales. Therefore,

the making of any unauthorized duplicates of these programs
represents a significant financial loss to producers. Although
this has been the case for some time, the passage of S.1758 in
its present form will only exacerbate the situation.

As a result, a major concern of our organization is that the passage of this bill, as written, could be construed by the general public to be a wide opening of the door to unauthorized duplication. The bill, as written, states that it "is not an infringement of copyright for an individual to record copyrighted works on a video recorder if (1) the recording is made for private use; and (2) the recording is not used in a commercial nature,"

Let me illustrate our concerns with this wording:

Does S.1758 mean that an individual may order a preview

copy of any kind of film or videotape or obtain such a program on
approval from an authorized distributor, make his or her own copy
of that program, and return the original material to the distributor
without a purchase? S.1758 seems to give away the store!

It would also seem that the current wording of the

bill would allow anyone to copy any program obtained from any
source and not be in violation of the Copyright Act as long as
it is for private use and not used in a commercial nature.
Under S.1758 it would seem that the copyright holder would have
no recourse...and would make very few sales.

Furthermore, what constitutes use "in a commercial nature?" In the vernacular, "commercial" use would probably mean that someone had received money for the use. Could this then be construed to mean that an individual could make 40 copies of an educational program and give those copies to teachers in a private school system. Since no money has changed hands...certainly not going into the hands of the producer...this might be interpreted as not being a use of a commercial nature.

An independent producer of motion pictures or television programming would seem to have little hope of ever making a return on his or her investment as a result of this apparent abrogation of his or her copyright. narrow as to be limited to that material which could be obtained off-air from open-circuit broadcasting or cable television where the producers have theoretically been already reimbursed for their efforts, it would be bad enough; but the wording of the bill is so loose as to endanger the copyright protection of ALL video material!

If the wording of the bill were sufficiently

Indeed, the wording of S.1758 seems to enable a person to bypass all vestiges of legitimate commerce in the video programming marketplace!

With the passage of S.1758 in its present form, the holder of copyrights on video material would have little hope of ever making a return on a speculative investment...and might well decide that plumbing or carpentry would be a more profitable profession. That may well prove to be the case! The end result

would be a reduction in the amount of future programming since there will be little chance of paying the developmental costs of any programs not having a prior guarantee of network or theatrical play. This would seem to be to the detriment of the very people that this bill is intended to benefit.

Currently, this unauthorized duplication of materials

is frequently referred to as piracy and, if you are a producer, the term is apt! The Federal Bureau of Investigation has been making considerable strides recently in developing ways of determining whether the production of specific motion picture prints and videotapes has been done with the consent of the copyright holder. It is also I-M-P-A's concern that the passage of this bill as written will make i. more difficult for the F-B-I's anti-piracy unit to continue this work. This bill might also make it more difficult to obtain convictions of those few who cause a significant loss to the entire industry through their wholesale production of pirated copies of programs.

While a variety of solutions have been suggested which should definitely be considered by this Committee, I-M-P-A would like to make the recommendation that changing the wording of

the bill could go a long way toward addressing many of our organization's concerns.

This wording would address the specific situation that inspired the bill and would allow individuals the full use of their recording equipment to enjoy television programming at

their leisure.

This wording would also provide a measure of

protection to the copyright holders of the broadcast material. Finally, the wording would provide additional protection to the producers of copyrighted educational materials which are rarely broadcast into the home but are often telecast over closed-circuit or I-T-F-S systems into classrooms.

Additionally, we feel that the bill should be expanded to stipulate that it does not authorize any further duplication of any videotapes recorded under its provisions; does not authorize reproduction of any copyrighted materials not telecast into the home; and that any such duplications without the express consent of the copyright holder constitutes a violation of copyright.

To conclude, the INDEPENDENT MEDIA PRODUCERS ASSOCIATION agrees that individuals should be allowed to enjoy television in their home on their own schedule. This means that off-air video recording of television programs for private use should not be illegal.

However, in correcting the apparent oversight in the Copyright Act brought to light by the UNIVERSAL v. SONY decision, the Congress should not pass legislation that would be so broad as to deny copyright protection to the producers. We feel that S.1758 in its present form does just that!

We respectfully urge that this Committee study ways to revise the language of the bill so that the rights of the few

will not be annulled in the haste to re-establish the rights of

the many.

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