On February 11, Senator Arlen Specter (R-PA) introduced a very specific reform measure for the US Copyright Act — a bill that would add to the exceptions to the public performance rights a special provision to allow churches to host Super Bowl parties.

Senator Specter is justifiably angry at the NFL for intimidating churches that want to host parties where folks get together, often share a meal or heavy snacking, and watch the big game. Some churches also use the events as an opportunity to raise money for various causes (like the “Souper Bowl” movement to assist community food pantries) or to have Sunday evening services. For several years the NFL has sent letters to such churches telling them that the parties infringe rights in the trademarked name “Super Bowl” and in the NFL’s copyright in its broadcast.

So Senator Specter has introduced an amendment that would allow only churches, based on a definition in the IRS code, to host viewings of “professional football contests.” Presumably a World Series party would still be potentially infringing, as would a party held at the local Elks or Kiwanis club. His anger is justified, but his narrow solution makes the legislation look silly and like special pleading. What is needed is a more comprehensive reevaluation of the copyright exceptions with a eye to the foundational purpose of copyright law.

The question that should be asked is “if the exclusive right is intended to provide an incentive for creativity and innovation, does this exception put that incentive at risk?” When the answer is clearly no, as it is here, the correct approach is to determine how broad the exception should be based on the public interest to be served, not to craft a narrow exception to penalize over-reaching, however satisfying that punative urge may seem.

Here, the ridiculous claims of the NFL seem to be unrelated to any incentive to create new TV broadcasts.  The same number of eyeballs, if not more, will witness the advertising that is the true purpose, and often the true entertainment value, of a Super Bowl broadcast.  And there is no indication that the NFL or the networks are trying to extract a licensing fee from the churches that host these parties.  But if restricting the viewing of broadcast TV to personal homes and a few closely defined exceptions does not serve an incentive purpose, why are we doing it at all?  Why not recognize that sporting event parties, “Sopranos” get-togethers, and lots of other gatherings to watch TV that seem like public performances, pose no risk to the reasoning behind copyright law and simply ought to be allowed?  Instead of punishing the NFL, however much that punishment is earned,  lets take the opportunity to discuss whether the public performance exceptions ought to be much broader than they are in order to serve legitimate public interests.

 

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