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Clause (2) of section 112(a) provides that, to be exempt from copyright, the copy or phonorecord must be “used solely for the transmitting organization’s own transmissions within its local service area, or for purposes of archival preservation of security”. The term “local service area” is defined in section 111(e). In the context of section 112 it means that, although a transmitter may use a ephemeral recording as many times as it wishes within the time limits specified in clause (3), its use must be confined to the organization’s own transmissions within the radius that its signal “is expected to reach effectively under normal conditions.”
Clause 3 of section 112(a) provides that unless preserved exclusively for archival purposes, the copy of a transmission program must be destroyed within six months from the day the transmission program was first transmitted to the public.
Recording for instructional transmissions
Section 112(b) represents a response to the arguments of educational broadcasters and other educational groups for special recording privileges, although it does not go as far as these groups requested. In general, it permits a nonprofit organization that is free to transmit a performance or display of a work, under section 110(2) or under the limitations on exclusive rights in sound recordings specified by section 114(a), to make not more than thirty copies or phonorecords and to use the ephemeral recordings for transmitting purposes for not more than seven years after the initial transmission.
Organizations covered.—The privilege of making ephemeral recordings under section 112(b) extends to a “governmental body or other nonprofit organization entitled to transmit a performance or display of a work under section 110(2) or under the limitations on exclusive rights in sound recordings specified by section 114(a).” The ephemeral recordings made by an instructional broadcaster under subsection (b) must embody a performance or display that meets all of the qualifications for exemption under section 110(2). Copies or phonorecords made for educational broadcasts of a general cultural nature, or for transmission as part of an information storage and retrieval system, would not be exempted from copyright protection under section 112(b).
Motion pictures and other audiovisual works.—Since the performance exemption provided by section 110(2) applies only to nondramatic literary and musical works, there was no need to exclude motion pictures and other audiovisual works explicitly from the scope of section 112(b). Another point stressed by the producers of educational films during the hearings of the Senate Subcommittee on Patents, Trademarks and Copyrights, in this connection, however, was that ephemeral recordings made by instructional broadcasters are in fact audiovisual works that often compete for exactly the same market. They argued that it is unfair to allow instructional broadcasters to reproduce multiple copies of films and tapes, and to exchange them with other broadcasters, without paying any copyright royalties, thereby directly injuring the market of producers of audiovisual works who now pay substantial fees to authors for the same uses. These arguments are persuasive and justify the placing of reasonable limits on the recording privilege.
Scope of the privilege.—Under subsection (b) an instructional broadcaster may make “no more than thirty copies or phonorecords
