'Tape Wars' -- Congressional battle over recording TV

Last fall a federal court ruled that home video taping is a copyright infringement. Since then, as Congress struggles with legislation that would levy a copyright fee on recording equipment, partisans have fired salvos of rhetoric that sometimes obscure the core problem.

The rhetoric has flowered into images of ''Tape Police'' squads creeping through shrubbery to catch illegal recording; out-of-work performers peddling apples on Rodeo Drive in Beverly Hills; Hollywood producers meeting poolside to discuss methods of enhancing their rapacity.

But peel back the silver-tongued oratory and you find a problem resonant with complexity: In today's rapidly changing world of communications technology, who owns what goes over the airwaves?

''From 1906 to 1971 we had one copyright law,'' says James Fitzpatrick, a lawyer representing the Recording Industry Association of America. ''Never again are you going to have that kind of stability.''

On Oct. 19, the nation's 31/2 million owners of video cassette recorders (VCRs) became fugitives from justice. That day, the Ninth Circuit Court of Appeals ruled that taping television programs, even in the privacy of a living room, was against the law. At issue now is legislation that would legalize private taping -- at a price.

Makers of video recorders and blank cassettes would be required to pay copyright royalties on their products, with proceeds going to owners of the programs being taped. The legislation, pushed by Sen. Charles McC. Mathias Jr. (R) of Maryland and Rep. Don Edwards (D) of California, has been broadened to include audio recorders and tapes in an effort to help the embattled recording industry.

On one side of the issue, riding beneath the banner of artistic rights, are the forces of the entertainment industry, led by a man sometimes called the smoothest talker in Washington -- Jack Valenti, president of the Motion Picture Association of America.

''The central point, the dominating overwhelming point, is that our private property is being used by a machine that hasn't gotten our permission to use that property,'' Mr. Valenti says.

On the other side is the Home Recording Rights Coalition, representing the video equipment industry and led by Charles Ferris, the folksy former chairman of the Federal Communications Commission.

''I have said, and Jack gets wild when I say it, that the VCR is the best friend of Hollywood,'' Mr. Ferris says.

The first line of battle, involving perhaps the most mind-numbing rhetoric, is the question of how VCRs will affect the entertainment industry's revenues.

The industry says video recorders will shrink the number of people watching network TV, as viewers opt for their library of back tapes. VCRs also have the ability to zap out commercials, they complain, thus attacking the revenue base of commercial television. Advertisers will insist on paying less for commercial time.

Commercial TV, in turn, may then pay less to program producers.

''It's an insignificant thing now. Advertisers really don't care,'' says Valenti. ''But we expect our revenues from networks to go down, from local stations to go down, from pay cable to go down.''

Charles Ferris, on the other hand, claims VCRs will expand the gross audience , since the machines will capture programs when owners are at work or otherwise occupied -- an action labeled ''time shifting.''

In addition, Mr. Ferris claims the VCR has pried open vast new markets for the entertainment industry. ''What has the prerecorded cassette market done? It's exceeded this year the total revenue major Hollywood studios are going to receive from commercial TV,'' he says. (''Totally untrue,'' snaps Mr. Valenti, citing different figures.)

In any case, a copyright fee would not go directly to actors and scriptwriters.

''There is constant reference to poor, starving American artists,'' says Carol Foreman, a consultant to the Home Recording Rights Coalition. ''Copyright holders aren't individuals. They're huge American corporations.''

Barclays Bank, for instance, holds the copyright for ''Reds.'' ''Chariots of Fire'' is owned by a consortium of British, American, and Egyptian investors.

The VCR bill would channel yet a few more dollars toward the entertainment industry by striking down the ''first sale'' doctrine for videocassettes. First sale allows anyone who buys an artistic work to rent, sell, or pass around the product however he pleases. Libraries, for instance, can lend books free because of first sale.

Abolition would allow film companies more control over the lucrative market in videocassette rentals -- a market now dominated by private entrepreneurs.

It is almost impossible to predict how a yet-unsettled technology will affect the marketplace in years to come.

When discussing copyright law, Mr. Valenti is fond of saying that ''if what you own cannot be protected, you own nothing.''

Mr. Ferris, on the other hand, counters that copyright is to promote broad public availability of artistic product, and that when ''they decide to use the distribution mechanism of the public airwaves, they have to accept the premises of the public airwaves.''

And that is the central problem Congress must settle: When a program flits over the air, is it a free spirit in the public domain? ''It's hard for them to tell who owns what,'' says Norm Balmer of the Congressional Office of Technology Assessment.

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