Laws with secular exceptions -- copyright

[Volokh, Eugene]

        I very much appreciate Tom's response to my Challenge; I had a
few thoughts in response, which I will split up over two responses,
since I think they are a bit different.

        As I understand it, Tom's proposed analysis is that the Free
Exercise Clause authorizes religiously motivated copyright infringements
only if they have more or less the same effect on the copyright work as
does the conduct that's secularly exempted.  Religious uses might have a
sort of "most favored nation" status, but no more than that.  Therefore,
while small noncommercial religious infringements might therefore be
allowed, large-scale or commercial infringements would presumably not
be.

        The trouble is that the Copyright Act *does* license certain
kinds of secular uses even if they are commercial.  Consider parodies:
Parodies are generally allowed under section 107 *even if* they are
commercial, and even if they therefore deprive the owner of the license
fees that it would have earned had it had the power to license them.
(The courts conclude that parodies don't have an "effect on the market"
only because they read "the market" as excluding the market for
parodies.)  The same is true for copying for purposes of news reporting
and some other favored uses.  It's true that such copies don't actually
result in out-of-pocket costs for the copyright owner, but that's often
true of copying; when copyright infringements "harm" the owner, it's
often only because they deprive the owner of money that he would have
earned had the copier gone to the owner for a license -- consider the
classic example of a moviemaker making a movie based on an author's
book, something that's an infringement even though it might *increase*
the book's sales.

        The principle behind fair use, then, isn't just that some
noncommercial uses don't materially hurt the author.  Rather, it's that
some commercial uses that *do* "hurt" the author (in the standard
copyright sense of "hurt") are to be licensed because they are socially
favored: news reporting, commentary, criticism, parody, and to some
extent educational copying.

        Likewise for the "soundalike" exception in section 114.  The
Copyright Act is generally infringed by manual copies as well as
mechanical ones.  If I make a photo that looks like your copyrighted
photo, I'm an infringer, even if I restage the photo myself, rather than
mechanically copying your work; likewise for movies, books, and so on.
But under the sec. 114 exception, if I make a sound recording that
sounds like another sound recording, I'm not an infringer of the other
sound recording.  Thus, if I want to record a sound recording that
sounds just like (say) Tori Amos's cover of Leonard Cohen's "Famous Blue
Raincoat," I can imitate Amos's voice and delivery without infringing
her copyright (I'd still have to pay some money to Cohen, the owner of
the separate copyright in the composition, but that's an analytically
different matter).  This applies even if my recording is commercial.

        In a somewhat different vein, section 115 and some other
sections provide for a "compulsory license" of compositions and some
other works; this means that, contrary to normal copyright rules, I may
-- even for entirely commercial purposes -- use another's composition so
long as I pay a preset royalty.  Though the copyright owner is
compensated, he doesn't have the standard copyright owner's right to
categorically bar uses of his property.  The reasons for this, by the
way, are apparently a mix of history and modern copyright politics;
there's little by way of sound policy justification for this.

        It seems to me that if one takes the "most favored nation"
theory of the Free Exercise Clause, then even some commercial
religiously motivated infringements would have to be allowed, either
outright or under a "compulsory license" theory.  Someone who has a
religious motivation to broadly distribute, say, an unauthorized edition
of a work would be able to argue that his distribution would deprive the
owner of no more royalties than, say, an unauthorized parody or an
unauthorized soundalike would; or, echoing section 115, that he should
have a "compulsory license" to copy the book.

        Tom, would the claimant have a strong case, or would be there
some justifications I'm missing for denying him the exemption or the
compulsory license?

> -----Original Message-----
> From: Thomas Berg [SMTP:tcberg at SAMFORD.EDU]
> Sent: Sunday, March 14, 1999 4:31 PM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Laws with secular exceptions -- copyright
>
> Eugene has posed the "copyright challenge" several times now, and it
> deserves
> a specific response.  Eugene's question is whether the existing
> statutory
> exemptions in the Copyright Act justify an exemption for copying done
> out of
> religious motivation.  To the extent that the answer is "no" in some
> cases
> (and I think that's how Eugene expects us intuitively to react), it
> doesn't
> undercut the validity of looking at the extent and nature of secular
> statutory
> exemptions to determine whether a free exercise exemption should also
> be
> declared.
>
> The exceptions in the Copyright Act (1) tend to be limited in scope,
> and (2)
> tend to exempt instances of copying whose individual effect on the
> economic
> value of the copyrighted work is not very great, relatively speaking.
> Thus,
> for example, the section 108 exception for libraries only gives a safe
> harbor
> to "isolated and unrelated reproduction and copying" of a work at
> different
> times, as opposed to the "systematic reproduction or distribution of
> single or
> multiple copies," and does not authorize copying for "direct or
> indirect
> commercial advantage."   Likewise, in the more general fair use
> defense of
> section 107, which encompasses the parody defense that Eugene
> mentions, one
> important factor (the most important, according to some Supreme Court
> decisions) is "the effect of the use upon the potential market for or
> value of
> the copyrighted work."  In many cases, the two points above are
> related:
> often the reason that declaring a particular use free would have
> little market
> effect is precisely because each such individual use is limited and
> small and
> therefore, because of negotiation costs, the copyright holder probably
> would
> not try to exploit that market anyway.
>
> In other words, to advert to a distinction Doug made earlier, the
> existing
> copyright exceptions do not simply reflect a judgment that certain
> uses are
> harmful to the copyright holder but that those harms are outweighed by
> other
> interests.  Rather, at least some of the exceptions reflect a judgment
> that
> certain individual uses do not significantly harm the copyright holder
> in the
> first place.
>
> Without trying to draw precise lines, I think that given the nature of
> these
> existing exceptions, there is a very strong case for exempting a
> religiously
> motivated use if it is noncommercial and somehow limited in nature
> (e.g.
> small):  like, for example, distributing photocopies of parts of a
> religious
> book to members of a bible study or other religious discussion group.
> Of
> course, some such uses would already be exempted under the Act:
> section 110
> already contains an exemption for public performances of works at
> worship
> services (among other places), and many religious uses (like the
> excerpts at a
> bible study) would qualify as fair uses.  But if the use in question
> were of
> the same broad general category but fell outside the contours of the
> statutory
> exceptions, then the case for exemption under the Free Exercise Clause
> would
> be very strong.
>
> Eugene, however, seems to be asking about an unlimited right to
> reproduce and
> distribute copies on the basis of religious motivation, even in large
> quantities, commercially, or in ways that exhaust the primary market
> for the
> copyrighted work.  I doubt that such a right follows from the presence
> of the
> statutory exemptions.  But that's because the statutory exemptions are
> limited
> in nature.  It is not because the presence of significant secular
> exemptions
> should not serve as the basis for a court to declare a comparable free
> exercise exemption.
>
> Tom Berg
>
>
>
>
> Michael McConnell wrote:
>
> > Eugene Volokh writes:
> >
> > >                 OK, let me ask, as I usually do when this question
> comes
> > > up:  (1)  Given the exceptions to the Copyright Act, do you think
> the
> > > Free Exercise Clause gives people a right to copy others'
> copyrighted
> > > works, so long as they do it out of a religious motivation?  (2)
> Given
> > > the exceptions to the duty to testify, do you think the Free
> Exercise
> > > Clause gives people a right to refuse to testify, so long as they
> do it
> > > out of a religious motivation?  (3)  Given the exceptions to
> employment
> > > discrimination laws, do you think the Free Exercise Clause gives
> people
> > > a right to discriminate in hiring based on sex, so long as they do
> it
> > > out of a religious motivation?  (4)  Do you agree that Carthage
> should
> > > be destroyed?
> >
> > I don't see why this is so hard. Laws like these cannot be given a
> > free pass, just because the exceptions make no overt reference to
> > religion. It is necessary to examine the exceptions, both with
> > respect to quantity (if it turns out that there are more cases
> > governed by exceptions than the "the rule," then the law is not
> > generally applicable) and with respect to type (if the exceptions
> are
> > analogous to the free exercise claim then it probably is necessary
> to
> > extend the exemptions to include a free exercise claim). I do not
> > know the details of the Copyright Act, but I wouldn't be surprised
> to
> > find that the exceptions, while numerous, are limited and
> defensible.
> > As to the duty to testify, I doubt that the existing exceptions
> > would justify a general religious-motivation exception, but I do
> > think that lawyer-client, doctor-patient, therapist-patient, and
> > similar exceptions *compel* a clergy-penitent exception. As to Title
> > VII: Of course. There is a BFOQ defense for sex discrimination, and
> > I see absolutely no reason not to include religious reasons among
> the
> > class. And Carthage should, without doubt, be destroyed.
> > -- Michael McConnell (U of Utah)