Home video and the law

Will those home video recorders under next week's Christmas trees turn into white elephants because of legal curbs on using them? Not if Senator DeConcini of Arizona and Representative Parris of Virginia have their way. They have introduced copyright legislation to allow continued sale and use of video recorders for noncommercial purposes. It would let mom and dad and the kids tape movies and other copyrighted programs off the tube without turning out to be in violation of the law.

The bipartisan sponsors deserve credit for such a prompt congressional response to an October federal court ruling that such taping does constitute an infringement.There are already an estimated three million video recorder owners in the United States who could be affected. Without legislative or further court action, they might eventually face damage suits along with recorder manufacturers, sellers, and advertisers.

The whole question of ''home use'' is becoming a prime copyright issue as the new entertainment and instructional technology proliferates. This technology makes possible the home recording and playing of works involving producers, writers, and performers of all kinds. The question is how and whether they should somehow be remunerated for such home use beyond their initial payments and royalties for theatrical or broadcast distribution. Answers need to be arrived at in fairness to all - and in line with the country's historical commitment to encouraging creative works through protecting property rights and financial interest in them.

The present amendment would leave such matters to future negotiation, legislation, or court decision, while immediately removing legal liability from consumers.

Perhaps the best long-term suggestion is that any payments to producers for home recording would be included in the payments for initial television presentation. The amount could be related to the number of home recordings made as determined by surveys similar to the current audience ratings.

Another plan, however, has received more attention. It would place a levy on video recording machines and/or blank tapes to provide a fund for division among program originators. A mechanism already exists by which cable-TV firms now pay into such a fund.

But the complexity of the subject may be indicated by the diversity of approaches in Europe. West Germany has a levy on machines for home recording. Austria next month is scheduled to put one on blank tapes. The Netherlands specifically permits home recording without levy. Britain specifically prohibits it.

Then there is the question of fairness to performers as well as copyright holders when extra use is made of their work. Media laborers worthy of their hire should be properly paid all along the way for the commercial and competitive uses of their efforts. But once a broadcast signal enters a private home, as Senator DeConcini suggests, surely it becomes free of yet more payments unless it is recaptured for commercial use.

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