US Copyright Office: circ21

8/14/2019 US Copyright Office: circ21

1/24

Circu

la

rUnited States Copyright Office

21 Reproductionof

Copyrighted

Works by

Educators

and

Librarians

Many educators and librarians ask about the fair use

and photocopying provisions of the copyright law. TheCopyright Office cannot give legal advice or offer opinions

on what is permitted or prohibited. However, we havepublished in this circular basic information on some of themost important legislative provisions and other docu-

ments dealing with reproduction by librarians and educa-tors.

Also available is the 1983 Report of the Register of

Copyrights on Library Reproduction of CopyrightedWorks (17 U.S.C. 108). The Report and seven appen-dixes can be purchased in microfiche or paper copies bywritten request from the National Technical Information

Service, U.S. Department of Commerce, 5285 Port RoyalRoad, Springfield, VA 22161 or by calling the Sales Desk

at (703)487-4650. The FAX number for placing orders is(703) 321-8547. The TTY number for placing orders is

(703) 487-4639. When ordering, please include the fol-lowing NTIS Accession Numbers: PB83 148239ACY,Entire Set; PB83 148247ACY, Report Only; PB83

148254ACY, Appendix l (King Report); PB83148262ACY, Appendix II (Chicago Hearing and Written

Comments); PB83 148270ACY, Appendix III (HoustonHearing and Written Comments); PB83 148288ACY,

Appendix IV (Washington Hearing and Written Com-ments); PB83 148296ACY, Appendix V (Anaheim Hear-

ing and Written Comments); PB83 148304ACY, Appen-dix VI (New York Hearing and Written Comments); andPB83 148312ACY, Appendix VII (Final Written Com-

ments).The 1988 5-year Report of the Register of Copyrights

on Library Reproduction of Copyrighted Works is alsoavailable from NTIS. Use NTIS Accession Number PB88

212014ACY.


2/24

2


3/24

3

Contents of This Booklet

A. Introductory Note ................................................................................................................................................... 4

B. Exclusive Rights in Copyrighted Works.............................................................................................................. 41. Text of Section 106 .............................................................................................................................................. 42. Excerpts From House Report .............................................................................................................................. 5

C. Fair Use ................................................................................................................................................................... 5

1. Text of Section 107 .............................................................................................................................................. 52. Excerpts From House Report .............................................................................................................................. 6

a. Introductory Discussion ................................................................................................................................... 6

b. Statement of Intention as to Classroom Reproduction ................................................................................... 7(i) Introductory Statement .................................................................................................................................. 7

(ii) Guidelines With Respect to Books and Periodicals ...................................................................................... 7(iii) Guidelines With Respect to Music ................................................................................................................. 9

(iv) Discussion of Guidelines ............................................................................................................................... 9

c. Additional Excerpts .......................................................................................................................................... 103. Excerpts From Conference Report ...................................................................................................................... 10

4. Excerpts From Congressional Debates ............................................................................................................... 11

D. Reproduction by Libraries and Archives ............................................................................................................ 121. Text of Section 108 .............................................................................................................................................. 12

2. Excerpts From Senate Report ............................................................................................................................. 13a. Discussion of Libraries and Archives in Profit-Making Institutions.................................................................. 13b. Discussion of Multiple Copies and Systematic Reproduction ......................................................................... 13

3. Excerpts From House Report .............................................................................................................................. 14a. Introductory Statement .................................................................................................................................... 14

b. Discussion of Libraries and Archives in Profit-Making Institutions.................................................................. 15c. Rights of Reproduction and Distribution Under Section 108 .......................................................................... 15

d. General Exemptions for Libraries and Archives.............................................................................................. 16e. Discussion of Multiple Copies and Systematic Reproduction ......................................................................... 17f. Discussion of Works Excluded ........................................................................................................................ 17

4. Excerpts From Conference Report ...................................................................................................................... 17a. Introductory Discussion of Section 108 ........................................................................................................... 18

b. Conference Committee Discussion of CONTU Guidelines on Photocopyingand Interlibrary Arrangements ......................................................................................................................... 18

c. Reprint of CONTU Guidelines on Photocopying and Interlibrary Arrangements ............................................ 18d. Discussion of Audiovisual News Program .................................................................................................... 19e. Discussion of Libraries and Archives in Profit-Making Institutions.................................................................. 19

5. Copyright Office Regulations Under Section 108 ................................................................................................ 19

E. Liability for Infringement ....................................................................................................................................... 201. Text of Section 504 .............................................................................................................................................. 20

2. Excerpts From House Report .............................................................................................................................. 213. Excerpts From Conference Report ...................................................................................................................... 22

F. Guidelines for Off-air Recording of Broadcast Programming for Educational Purposes ............................. 22


4/24

4

A. INTRODUCTORY NOTE

The Subjects Covered in This Booklet

The documentary materials collected in this booklet deal

with reproduction of copyrighted works by educators, librar-ians, and archivists for a variety of uses, including:

Reproduction for teaching in educational institutions at

all levels; and

Reproduction by libraries and archives for purposes of

study, research, interlibrary exchanges, and archivalpreservation.

The documents reprinted here are limited to materialsdealing with reproduction. Under the copyright law, repro-

duction can take either of two forms:

The making of copies: by photocopying, making micro-form reproductions, videotaping, or any other method ofduplicating visually-perceptible material; and

The making of phonorecords: by duplicating sound

recordings, taping off the air, or any other method ofrecapturing sounds.

The copyright law also contains various provisions dealingwith importations, performances, and displays of copyrighted

works for educational and other noncommercial purposes, butthey are outside the scope of this booklet. You can obtain a

copy of the statute and information about specific provisionsby writing to the Publications Section, LM-455, Copyright Of-

fice, Library of Congress, Washington, D.C. 20559-6000.

A Note on the Documents Reprinted

The documentary materials in this booklet are reprints orexcerpts from six sources:

1. The Copyright Act of October 19, 1976. This is thecopyright law of the United States, effective January 1, 1978

(title 17 of the United States Code, Public Law 94-553, 90Stat. 2541).

2. The Senate Report. This is the 1975 report of the Sen-ate Judiciary Committee on S. 22, the Senate version of the

bill that became the Copyright Act of 1976 (S. Rep. No. 94-473, 94th Cong., 1st Sess., November 20 (legislative dayNovember 18,1975)).

3. The House Report. This is the 1976 report of the House

of Representatives Judiciary Committee on the Houseamendments to the bill that became the Copyright Act of1976 (H.R. Rep. No. 94-1476, 94th Cong., 2d Sess., Sep-

tember 3,1976).

4. The Conference Report. This is the 1976 report of the

committee of conference on the disagreeing votes of thetwo Houses on the amendments of the House to the bill

(S. 22) for the general revision of the Copyright Law (H.RRep. No. 94-1733, 94th Cong., 2d Sess., Septembe

29,1976).

5. The Congressional Debates. This booklet contains excerpts from the Congressional Recordof September 22

1976, reflecting statements on the floor of Congress at thetime the bill was passed by the House of Representatives(122 CONG. REC. H 10874-76, daily edition, Septembe

22,1976).

6. Copyright Office Regulations. These are regulations

issued by the Copyright Office under section 108 dealingwith warnings of copyright for use by libraries and archives

(37 Code of Federal Regulations201.14).

Items 2 and 3 on this listthe 1975 Senate Report and

the 1976 House Reportpresent special problems. Onmany points the language of these two reports is identica

or closely similiar. However, the two reports were written adifferent times, by committees of different Houses of Congress, on somewhat different bills. As a result, the discus

sions on some provisions of the bills vary widely, and oncertain points they disagree.

The disagreements between the Senate and House ver-sions of the bill itself were, of course, resolved when the Ac

of 1976 was finally passed. However, many of the disagreements as to matters of interpretation between statements

in the 1975 Senate Report and in the 1976 House Reporwere left partly or wholly unresolved. It is therefore difficul

in compiling a booklet such as this to decide in some caseswhat to include and what to leave out.

The House Report was written later than the SenateReport, and in many cases it adopted the language of theSenate Report, updating it and conforming it to the version

of the bill that was finally enacted into law. Thus, where thedifferences between the two Reports are relatively minor

or where the discussion in the House Report appears tohave superseded the discussion of the same point in the

Senate Report, we have used the House Report as thesource of our documentation. In other cases we have included excerpts from both discussions in an effort to

present the legislative history as fully and fairly as possibleAnyone making a thorough study of the Act of 1976 as it

affects librarians and educators should not, of course, relyexclusively on the excerpts reprinted here but should go

back to the primary documentary sources.

B. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS

1. Text of Section 106

The following is a reprint of the entire text of section 106 oftitle 17, United States Code.


5/24

5

exclusive rights encompassed by these clauses, thoughclosely related, are independent; they can generally becharacterized as rights of copying, r ecording, adapt ationand publishing. A single act of infringeme nt may violate alof these rights at once, as where a publisher reproducesadapts, and sells copies of a persons copyrighted work aspart of a publishing venture. Infringement takes placewhen any one of the rights is violated: where, for examplea printer reproduces copies without selling them or a re-tailer sells copies without having anything t o do with theirreproduction. The references to copies or phonorecords,although in the plural, are intended here and throughoutthe bill to include t he singular (1 U.S.C. 1).

Reproduction.Read together with the r elevant definitions in section 101, the right to reproduce the copy-righted work in copies or phonorecords means t he right toproduce a mat erial object in which t he work is duplicatedtranscribed, imitated, or simulated in a fixed form fromwhich it can be perceived, reproduced, or otherwise com-

municated, either directly or with the aid of a machine ordevice. As under the present law, a copyrighted workwould be infringed by reproducing it in whole or in anysubstant ial part , and by duplicating it exact ly or by imita-tion or simulation. Wide depar tur es or var iations from thecopyright ed work would st ill be an infringement a s long asthe aut hors expression rathe r t han merely t he author sideas are taken. An exception t o this gener al principleapplicable to the reproduction of copyrighted sound re-cordings, is specified in section 114.

Reproduction under clause (1) of sect ion 106 is to be dis-tinguished from display under clause (5). F or a work to bereproduced, its fixation in tangible form must be suffi-

ciently permanent or stable t o permit it t o be perceived, reproduced, or otherwise communicated for a period of morethan transitory duration. Thus, the showing of images on ascreen or t ube would not be a violation of clause (1), althoughit might come within the scope of clause (5).

C. FAIR USE


The following is a reprint of the entire text of section107 of

title 17, United States Code.

107. Limitations o n e xclusiv e righ ts: Fair use

Notwithstanding the provisions of sections 106 and106A, the fair u se of a copyr ighted work, including such useby r eproduction in copies or phonorecords or by any othermeans specified by t hat section, for purposes su ch as criticism, comment, news reporting, teaching (including mul-tiple copies for classroom use), scholar ship, or r esear ch, isnot an infringement of copyright . In det ermining whetherthe use made of a work in any par ticular case is a fair use

106. Exclusive righ ts in copyrigh ted w orks

Subject t o sections 107 th rough 120, th e owner of copy-right under this title has the exclusive rights t o do and toaut horize any of the following:

(1) to reproduce the copyrighted work in copies orphonorecords;

(2) to prepare derivative works based upon the copy-righted work;

(3) to distribute copies or phonorecords of the copy-righted w ork to the pu blic by sale or other t ransfer of own-ership, or by rent al, lease, or lending;

(4) in the case of lite ra r y, musical, dr amat ic, and chore o-graphic works, pantomimes, and motion pictur es and oth eraudiovisual works, to per form t he copyrighted work pub -licly; and

(5) in the case of lite ra r y, musical, dr amat ic, and chore o-graphic works, pantomimes, and pictorial, graphic, orsculptur al works, including t he individual images of a mo-tion pictur e or ot her audiovisual work, t o display t he copy-

righted work publicly.

2. Excerpts From House Report on Section 106

The following excerpts are reprinted from the House Reporton the new copyright law (H.R. Rep. No. 94-1476, pages61-62). The text of the corresponding Senate Report(S. Rep. No. 94-473, pages 57-58) is substantially the same.

SECTION 106. E XCLUSIVE R IGHTSINCOPYRIGHTED WORKS

General scope of copyright

The five fundament al rights t hat the bill gives t o copy-right ownersthe exclusive r ights of reproduction, adap-tat ion, publication, per formance, and displayare stat edgener ally in section 106. These exclusive right s, which com-prise t he so-called bundle of right s that is a copyr ight, ar ecumulative and may over lap in some cases. Each of the fiveenumerat ed r ights may be sub divided indefinitely and, asdiscussed be low in connection with section 201, each subd i-vision of an exclusive right may be owned and enforcedseparately.

The approach of the bill is to set forth the copyright

owner s exclusive right s in broad t er ms in section 106, andthen to pr ovide va rious limitations, qualifications, or e x-empt ions in the 12 sections t hat follow. Thus, every th ing insection 106 is made sub ject to sect ions 107 thr ough 118,and must be r ead in conjunction with t hose provisions.

* * *

Rights of reproduction, a daptation, an d pu blication

The first three clauses of section 106, which cover allrights un der a copyright except t hose of performance anddisplay, extend to every kind of copyrighted work. The


6/24

6

the factors to be considered shall include(1) the purpose and character of the use, including

whether such use is of a commercial nature or is for non-profit educational purposes;

(2) the nat ure of the copyrighted work ;(3) the amount and su bstant iality of the port ion used in

relation to the copyrighte d work as a whole; and(4) the effect of the use upon th e potent ial market for or

value of the copyrighte d work.The fact that a work is unpublished shall not itself bar afinding of fair use if such finding is made upon consider-at ion of all the ab ove factors.


The following excerpts are reprinted from the House Reporton the new copyright law (H.R. Rep. No. 94-1476, pages 65-74). The discussion of section 107 appears at pages61-67 of the Senate Report (S. Rep. No. 94-473). The text ofthis section of the Senate Report is not reprinted in this book-let, but similarities and differences between the House andSenate Reports on particular points will be noted below.

a. House Report: Introductory Discussion onSection 107

The first two paragraphs in this portion of the House Reportare closely similar to the Senate Report. The remainder ofthe passage differs substantially in the two Reports.

SECTION 107. F AI R USE

General backgroun d of the problem

The judicial doctr ine of fair use, one of th e most impor -tant and w ell-established limitations on t he e xclusive rightof copyright owners, would be given expr ess st atut ory r ec-ognition for the first time in section 107. The claim that adefendants acts constituted a fair use rather than an in-fringement has been raised as a defense in innumerablecopyright actions over t he year s, and ther e is ample caselaw recognizing the existence of the doctrine and applyingit. The examples enumerat ed at page 24 of the R egisters1961 Report , while by no means exhaust ive, give some ideaof the sort of activities the court s might r egard as fair u seunder the circumst ances: quotat ion of excerpt s in a reviewor criticism for pur poses of illustr at ion or comment; quota-tion of short passages in a scholarly or t echnical work, forillustr at ion or clarification of the aut hors obser vat ions; usein a parody of some of the content of the work parodied;summary of an address or ar ticle, with br ief quotations, ina news r eport; rep roduction by a librar y of a portion of awork t o replace part of a damaged copy; reproduction by ateacher or student of a small part of a work t o illustr ate a

lesson; repr oduction of a work in legislative or judicial pro-ceedings or r eport s; incidenta l and fort uitous repr oductionin a newsr eel or br oadcast, of a work located in the scene oan event being reported .

Although the courts have considered and r uled upon thefair use doctrine over and over again, no real definition othe concept has ever emerged. Indeed, since the doctrineis an equit able r ule of reason, no gener ally app licable definition is possible, and each case raising the question mustbe decided on its own facts. On the other hand, the court shave evolved a set of criteria which, though in no case de-finitive or determinative, provide some gauge for balancing the equities. These criteria have been st ated in variousways, but essentially they can all be reduced to the fourst andar ds which have been adopt ed in section 107: (1) th epurpose and character of the use, including whether suchuse is of a commercial nature or is for non-profit educa-tional purposes ; (2) the nat ur e of th e copyr ighted work; (3the amount and subst antiality of the port ion used in rela

tion to t he copyright ed work as a whole; and (4) the effectof the use upon the potential market for or value of thecopyright ed work.

These criteria are relevant in determining whether t hebasic doctr ine of fair use, as st ated in the first sentence osection 107, applies in a par ticular case: Not withs tandingthe pr ovisions of section 106, the fair use of a copyright edwork, including such use by reproduction in copies orphonorecords or by any other means specified by that section, for pur poses such as criticism, comment, news reporting, te aching (including mult iple copies for classr oom use)scholarship, or research, is not an infringement of copy-right.

The specific wording of section 107 as it now stands isthe result of a process of accret ion, resulting from t he longcontr oversy over t he related p roblems of fair use and t herepr oduction (mostly by phot ocopying) of copyright ed ma-ter ial for educational and scholarly purposes. F or examplethe reference to fair use by reproduction in copies orphonorecords or by any other means is mainly intended t omake clear that the doctrine has as much application tophotocopying and taping as to older forms of use; it is notintended to give these kinds of reproduction any speciastat us under the fair use pr ovision or to sanction any r eproduction beyond the normal and r easonable limits of fair useSimilarly, the newly-added r eference t o multiple copies

for classroom use is a r ecognition t hat, under the propercircumstances of fairness, the doctrine can be applied torepr oductions of multiple copies for t he member s of a class

The Committ ee has amended the first of the criter ia tobe consideredthe p urpose and character of the usetostat e explicitly that this factor includes a consideration owhether such use is of a commercial nature or is for non-profit educational purposes. This amendment is not intended to be inter pret ed as any sort of not-for-profit limita tion on educational uses of copyright ed works. It is an express r ecognition that , as under the pr esent law, the commer cial or non-profit charact er of an act ivity , while not con


7/24

7

clusive with r espect t o fair use, can and should be weighedalong with other factors in fair u se decisions.

General in tention behind the provision

The st at ement of the fair use doctr ine in section 107 of-

fers some guidance to user s in deter mining when t he pr in-ciples of the doctr ine apply. However, the endless varietyof situa tions and combinations of circumstances t hat canrise in par ticular cases precludes the formulation of exactrules in the stat ute. The bill endorses th e purpose and gen-er al scope of the judicial doctr ine of fair use, but ther e is nodisposition t o freeze t he doctrine in th e st atut e, especiallyduring a period of rapid technological change. Beyond avery broad statutory explanation of what fair use is andsome of the criter ia applicable t o it, t he courts must be freeto adapt the doctr ine to part icular situat ions on a case-by-case basis. Section 107 is intended to restate the presentjudicial doctrine of fair use, not to change, narrow, or en-

large it in any way.

b. House Report: Statement of Intention as toClassroom Reproduction

The House Report differs substantially from the SenateReport on this point.

(i) Introductory Statement

Intention as to classroom reproduction

Although the works and uses to which the doctrine offair use is applicable ar e as br oad as t he copyright law it-self, most of the discussion of section 107 has centeredaround quest ions of classr oom r epr oduction, part icularlyphotocopying. The argument s on the quest ion are summa-rized at pp. 30-31 of this Committees 1967 report (H.R.Rep. No. 83, 90th Cong., 1st Sess.), and have not changedmater ially in the inter vening years.

The Committee also adheres to its earlier conclusion,that a specific exemption freeing certain reproductions ofcopyrighte d works for educational and scholarly pur posesfrom copyright contr ol is not just ified. At the same t imethe Committ ee r ecognizes, as it did in 1967, that ther e is aneed for great er cert ainty and protection for teachers. Inan effort to meet this need the Committee has not onlyadopted further amendments to section 107, but has alsoamended section 504(c) to pr ovide innocent t eachers andother non-profit users of copyrighted mater ial with br oadinsulation against unwarr anted liability for infringement.The latt er amendments are discussed below in connectionwith Chapt er 5 of the bill.

In 1967 the Committee also sought to approach thisproblem by including, in its r eport, a very thorough discus-sion of the consider ations lying behind th e four criter ialist ed in the am ended s ection 107, in the contex t of typical

classroom situations arising today. This discussion appeared on pp. 32-35 of the 1967 report, and with somechanges has been r etained in the Senate r eport on S. 22(S. Rep. No. 94-473, pp. 63-65). The Committee has re-viewed this discussion, and considers that it still has valueas an analysis of various aspects of the problem.

At the Judiciary Subcommittee he arings in June 1975Chairman Kastenmeier and other members urged t he par-ties to meet together independently in an effort to achievea meet ing of the minds as t o permissible educational usesof copyrighted mater ial. The response t o these suggest ionswas positive, and a number of meetings of three groupsdealing respectively with classroon, reproduction ofprinted material, music, and audio-visual material, wereheld beginning in September 1975.

(ii) Guidelines With Respect to Books and Periodicals

In a joint letter to Chairman Kastenmeier, dated

March 19, 1976, the representatives of the Ad HocCommitt ee of E ducational Inst itutions and Organiza-tions on Copyright Law Revision, and of the AuthorsLeague of America, Inc., and the Association ofAmerican Publishers, Inc., stat ed:

You may remember that in our lett er of March 8,1976 we told you that the negotiating teams repre-senting authors and publishers and t he Ad H oc Grouphad re ached tent ative agreemen t on guidelines to in-sert in the Committ ee R eport covering educationalcopying from books and per iodicals under Section 107of H.R . 2223 and S. 22, and t hat as part of that tent a-tive agreement each side would accept the amend-

ment s to Sections 107 and 504 which wer e adopt ed byyour Subcommitt ee on Mar ch 3,1976.We are now happy to tell you that the agreement

has been a pproved by t he pr incipals and we enclose acopy her ewith. We had originally intend ed to t rans-late the agreement into language suitable for inclu-sion in t he legislative report dealing with Sect ion 107,but we have since been advised by committee staffthat this will not be necessary.

As stated above, the agreement refers only tocopying from books and periodicals, and it is not in-tended to apply to musical or audiovisual works.

The full text of the ag reement is as follows:

AGREEMENT ON GUIDELINES F OR CLASSROOMCOPYINGIN

N OT-F OR-P ROFIT E DUCATIONAL I NSTITUTIONSWITH RESPECTTOBOOKSAN DPERIODICALS

The pur pose of th e following guidelines is to st at ethe minimum and not the maximum standar ds of edu-cational fair use u nder Section 107 of H.R . 2223. Thepart ies agree t hat t he conditions deter mining the ex-tent of permissible copying for educational purposesmay change in the futur e; that cert ain types of copy-ing permitted under these guidelines may not be


8/24

8

per missible in t he futur e; and conversely that in the fu-tur e other t ypes of copying not per mitt ed under t heseguidelines may be per missible under r evised guidelines .

Moreover, t he following st at ement of guidelines isnot intended t o limit t he ty pes of copying per mittedunder the standar ds of fair use under judicial decisionand which are stat ed in Section 107 of the CopyrightRevision Bill. Ther e may be instances in which copy-ing which does not fall within the guidelines st ate dbelow may nonetheless be permitted under the crite-ria of fair use .

GUIDELINES

I . Sin gle Copyin g for TeachersA single copy may be made of any of the following

by or for a teacher at his or her individual reque st forhis or her scholarly research or use in teaching orprepar ation to teach a class:

A. A chapter from a book;B. An ar ticle from a per iodical or newspaper ;C. A short story, short essay or short poem,

whet her or not from a collective work;D. A chart, graph, diagram, drawing, cartoon or

picture from a book, periodical, or newspaper;

I I .Multiple Copies for Classroom UseMultiple copies (not to exceed in any event more

than one copy per pupil in a course) may be made byor for the teacher giving t he course for classroom useor d iscussion;provided that:

A. The copying meets the tests of brevity and

spontaneity as defined below; and,B. Meets the cumulative effect test as defined be-

low; and,C. E ach copy includes a not ice of copyright

Definitions

Brevity

(i ) Poetry: (a) A complete poem if less than 250words and if printed on not more than two pages or,(b) from a longer poem, an excerpt of not more t han250 words .

(ii) Pr ose: (a) E ither a complete art icle, story or es-say of less than 2,500 words, or (b) an excerpt fromany pr ose work of not more t han 1,000 words or 10%

of the w ork, whichever is less, but in any event a mini-mum of 500 words.[Each of the numerical limits st at ed in i and ii

above may be expand ed t o permit t he completion ofan un finished line of a poem or of an unfinished pr oseparagraph.]

(iii) Illustrat ion: One chart , graph, diagram, draw-ing, cart oon or pictur e per book or per per iodical issue .

(iv) Special works: Certain works in poetry,prose or in poetic prose which often combine lan-guage with illustrations and which are intendedsometimes for children and at other times for a moregener al audience fall short of 2,500 words in the ir en-

tirety. Paragraph ii above notwithstandiiig suchspecial works may not be reproduced in their en-tiret y; however, an excerpt comprising not more t hantwo of the published pages of such special work andcontaining not more than 10% of the words found inthe t ext t hereof, may be reproduced.

Spontaneity

(i ) The copying is at the instance and inspiration ofthe individual teacher, and

(ii) The inspiration and decision to use the workand t he moment of its use for maximum t eaching ef-fectiveness ar e so close in time that it would be unrea -sonable to expect a t imely reply to a r equest for per -mission.

Cum ulative E ffect

(i ) The copying of the material is for only onecourse in the school in which the copies are made.

(ii) Not more than one short poem, article, story,essay or two excerpts may be copied from the same

author , nor more than t hree from the same collectivework or periodical volume during one class term.

(iii) Ther e shall not be more t han nine instances ofsuch multiple copying for one cour se dur ing one classterm.

[The limita tions st at ed in ii and iii above sha llnot apply to current news per iodicals and newspapersand curr ent news sections of other periodicals.]

I I I . Prohibitions as to I an d II A boveNotwithstanding any of the above, the following

shall be prohibited:(A) Copying shall not be used to create or to re-

place or subst itut e for ant hologies, compilations orcollective works. Such replacement or substitutionmay occur whether copies of various works or ex-cerpts t herefrom are accumulated or r eproduced andused separat ely.

(B) There shall be no copying of or from wor ks in-tende d t o be consumable in t he course of study orof teaching. These include workbooks, exercises,standardized tests and test booklets and answersheets and like consumable mater ial.

(C) Copying shall not :(a) subst itut e for t he pur chase of books, publish-

ers repr ints or periodicals;

(b) be directed by higher aut hority;(c) be repeated with r espect to the same item bythe same teacher from term to ter m.

(D) No charge shall be made to the st udent beyondthe actual cost of the photocopying.

Agreed MARCH 19, 1976.Ad H oc Committ ee on Copyright L aw R evision:

BY SHELDON E LLIOTT STEINBACH.Author -Publisher Group:Author s League of America:

BY I RWIN KAR P, Counsel.Association of American Publishers , Inc.:

BY ALEXANDER C.H OFFMAN ,Chairman , Copyright Com m ittee.


9/24

9

2. For academic purposes other than performancesingle or multiple copies of excerp ts of works may be m adeprovided that the excerpts do not comprise a part of thewhole which would constit ut e a per forma ble unit such as asection*, movement or aria, but in no case more than 10per cent of the whole work. The nu mber of copies shall noexceed one copy per pupil.**

3. Printed copies which have been purchased may beedited or simplified provided that the fundamental character of the w ork is not d istorted or the lyrics, if any, alter edor lyrics added if none exist .

4. A single copy of recordings of performances by stu-dents may be made for evaluation or rehearsal purposesand may be r etained by t he educational institution or individual teacher.

5. A single copy of a sound r ecording (such as a t ape, discor casset te ) of copyr ighted music may be made from soundrecordings owned by an educat ional institution or an individual teacher for t he pur pose of constructing aur al exer

cises or examinations and may be retained by the educa-tional institution or individual teacher. (This pertains onlyto t he copyright of the music itself and not t o any copyrightwhich may exist in t he sound r ecording.)B. P rohibitions

1. Copying to creat e or r eplace or su bstitut e for ant hologies, compilations or collective w orks.

2. Copying of or from works intended to he consumable in t he course of study or of tea ching such as w ork-books, exercises, standar dized test s and answer sheets andlike material.

3. Copying for the purpose of performance, except as inA (1) above.

4. Copying for t he pur pose of substitut ing for t he purchase of music, except a s in A(1) and A(2) above.

5. Copying without inclusion of the copyright noticewhich appear s on the pr inted copy.

(iv) Discussion of GuidelinesThe Committee appreciates and commends the efforts

and the cooperative ancl reasonable spirit of the partieswho achieved the agreed guidelines on books and periodi-cals and on music. Represe ntat ives of the American Association of University Professors and of the Association ofAmerican Law Schools have written to the Committeestrongly criticizing the guidelines, particularly with re-

spect t o multiple copying, as being t oo restr ictive with re-spect to classroom situat ions at t he university and gr adu

(iii) Guidelines With Respect to MusicIn a joint letter dated April 30,1976, repr esentat ives of

the Music Publishers Association of the United States,Inc., the National Music Publishers Association, Inc., theMusic Teacher s Na tional Association, the Music E ducator sNational Conference, the National Association of Schoolsof Music, and the Ad Hoc Committee on Copyright LawRevision, wrote to Chairman Kaste nmeier as follows:

Dur ing the hear ings on H.R. 2223 in June 1975, youand several of your subcommittee members sug-gested that concerned groups should work togetherin developing guidelines which would be helpful toclarify Section 107 of the bill.

Representatives of music educators and musicpublishers delayed their meetings until guidelineshad been developed relat ive to books and periodicals.Shortly after that work was completed and thoseguidelines were forwarded to your subcommittee,representatives of the undersigned music organiza-

tions met together with representatives of the AdHoc Committee on Copyright L aw R evision to draftguidelines relative to music.

We are v ery pleased t o inform you th at t he discus-sions thus have been fruitful on the guidelines whichhave been developed. Since private music teachersare an important factor in music education, due con-sideration has been given to the concerns of thatgroup.

We tr ust t hat t his will be helpful in the report onthe bill to clarify F air U se as it applies to music.

The text of the guidelines accompanying this letter is asfollows:

GUIDELINESF OR EDUCATIONAL USESOF MUSIC

The pur pose of the following guidelines is to st ate theminimum and n ot t he maximum st andards of educationalfair use under Section 107 of HR 2223. The parties agreethat the conditions deter mining th e extent of permissiblecopying for educational purposes may change in the future;that certain types of copying permitt ed under t hese guide-lines may not be per missible in t he futur e, and convers elythat in the futur e other t ypes of copying not per mitted un-der these guidelines may be permissible under revisedguidelines.

Moreover, the following statement of guidelines is notintended to limit the t ypes of copying permitt ed under t hest andar ds of fair use under judicial decision and which ar est at ed in Section 107 of the Copyr ight R evision Bill. Ther emay be instances in which copying which does not fallwithin the guidelines stat ed below may nonetheless be per -mitted under the criter ia of fair use.

A. Perm issible Uses

1. Emer gency copying to r eplace purchased copieswhich for any r eason are not available for an imminent per -formance provided purchased replacement copies shall besubstitut ed in due course.

*Corrected from Congressional R ecord.**Editors N ote: As repr inted in the House Report , subsection A.2 of theMusic Guidelines had consisted of two separ at e par agra phs, one dealingwith multiple copies and a second dealing with single copies. In hiintroductory r emarks dur ing the H ouse debates on S.22, the Chairmanof the H ouse Judiciary Subcommitt ee, Mr. Kaste nmeier, announced thatthe report , as printed, does not reflect a subsequent change in the joinguidelines which was described in a subsequent letter to me from arepresentative of [the signatory organizations], and provided therevised text of subsection A.2. (122 CONG. REC. H 10875, Sept. 221976). The text reprinted her e is the r evised text.


10/24

10

tur n on the facts of the individual case. However, as a gen-eral pr inciple, it seems clear that the scope of the fair usedoctrine should be considerably narrower in the case ofnewslette rs than in that of either mass-circulation periodicals or scient ific journ als. The commercial natur e of th euser is a significant factor in such cases: Copying by aprofit-making user of even a small portion of a newslettermay have a significant impact on the commercial marketfor t he work.

The Committ ee has examined the use of excerpts fromcopyrighted works in the art work of calligraphers. Thecommittee believes t hat a single copy r eproduction of anexcerpt from a copyrighted work by a calligrapher for asingle client does not r epres ent an infringement of copy-right. Likewise, a single reproduction of excerpts from acopyrighted work by a student calligrapher or teacher in alearning situat ion would be a fair use of the copyr ighted work

The Register of Copyrights has recommended that thecommitt ee r eport describe t he r elationship between t his

section and the provisions of section 108 relating to reproduction by libraries and archives. The doctrine of fair useapplies to library photocopying, and nothing contained insection 108 in any way affects the right of fair use. ` Nopr ovision of section 108 is intended t o take away any r ightsexisting under t he fair use doctr ine. To the contrar y, section 108 authorizes certain photocopying practices whichmay not qualify as a fair use.

The criter ia of fair use ar e necessarily set fort h in general t erms. I n t he application of the criteria of fair use t ospecific photocopying practices of libr ar ies, it is t he intentof th is legislation to provide an appropr iate balancing of therights of creat ors, and the needs of users.

3. Excerpts From Conference Report on Section 107

The following excerpt is reprinted from the Report of theConference Committee on the new copyright law (H.R.Rep. No. 94-1733, page 70).

F AI R U SE

Senate bill

The Senate bill, in section 107, embodied express statu-

tory recognition of the judicial doctr ine that the fair use oa copyrighted work is not an infringement of copyright. I tset fort h the fair use doctr ine, including four crit er ia for de-termining its applicability in particular cases, in generaterms.

House bill

The House bill amended section 107 in two respects: inthe gener al statement of the fair use doctr ine it added aspecific reference t o multiple copies for classroom use, andit amplified t he st atement of the first of the criteria t o beused in judging fair use (the pur pose and character of the

ate level. However , the Committ ee notes that the Ad H ocgroup did include repr esentat ives of higher education, thatthe sta ted pur pose of the . . . guidelines is to st at e the m ini-mum and not the maximum standar ds of educational fairuse and that t he agreement acknowledges ther e may beinstances in which copying which does not fall within theguidelines . . . may nonetheless be permitt ed under the cri-te ria of fair use.

The Committee believes t he guidelines ar e a r easonableinterpr etat ion of the minimum st andards of fair use. Teach-er s will know that copying within t he guidelines is fair use.Thus, t he guidelines serve t he pur pose of fulfilling t he needfor gr eater certainty and pr otection for t eachers. The Com-mittee expresses the hope that if there are areas wherestandar ds other than t hese guidelines may be appropriate,the part ies will continue t heir effort s t o provide additionalspecific guidelines in t he s ame sp irit of good will and g iveand ta ke that has marke d the discussion of this subject inrecent months.

c. House Report: Additional Excerpts

Under the heading Reproduction and uses for other pur-poses, the House Report, at pages 72-74, parallels muchof the material appearing at pages 65-67 of the SenateReport under the same heading, but with some differences.

The concentr ated att ention given t he fair us e pr ovisionin the context of classroom teaching activities should notobscure its application in other areas. It must be empha-sized again that the same ge neral stand ards of fair use are

applicable to all kinds of uses of copyrighted material, al-though the r elative weight t o be given them will differ fromcase to case.

* * *

A pr oblem of particular urgency is that of preserving forposter ity pr ints of motion pictur es made before 1942.Asidefrom the deplorable fact t hat in a great many cases the onlyexisting copy of a film has been deliberately destroyed,those that remain are in immediate danger of disintegra-tion; they were printed on film stock with a nitrate basethat will inevitably decompose in time. The efforts of theLibrary of Congress, the American Film Institute, andother organizations to rescue and preser ve this irreplace-

able contr ibution t o our cultur al life ar e t o be applauded,and t he making of duplicate copies for pur poses of ar chivalpreservation certanly falls within the scope of fair use.

* * *

During the consideration of the revision bill in the 94thCongress it was proposed that independent newsletter s, asdistinguished from house organs and publicity or advert is-ing publications, be given separat e tr eatment . It is arguedthat newsletters are particularly vulnerable to mass pho-tocopying, and that most newsletters have fairly modestcirculat ions. Whet her the copying of port ions of a newslet -ter is an act of infringement or a fair use will necessarily


11/24

11

use) by referring to the commercial nature or nonprofiteducational purpose of the use.

Conference su bstitute

The conference substitute adopts the House amend-

ments. The conferees accept as par t of their under standingof fair use the Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with respect to booksand per iodicals appea ring at pp. 68-70 of the H ouse Report(H. Rept. No. 94-1476, as corrected at p. H 10727 of theCongressional Record for September 21, 1976), and foreducational uses of music appearing at pp. 70-71 of theHouse report, as amended in the statement appearing at p.H 10875 of the Congressional Record of September 22,1976. The confer ees also endor se the st at ement concern ingthe meaning of the word teacher in the guidelines forbooks and per iodicals, and t he app lication of fair use in t hecase of use of te levision progr ams wit hin the confines of a

nonprofit educational institut ion for t he deaf and hearingimpaired, both of which appear on p. H 10875 of the Con-gr essional Record of Sept ember 22, 1976.

4. Excerpts From Congressional Debates

The following excerpts are reprinted from the Congres-sional Record of September 22, 1976, including statementsby Mr. Kastenmeier (Chairman of the House Judiciary Sub-committee responsible for the bill) on the floor of the Houseof Representatives.

MR. KASTE NME lER . * * *

Mr. Chairman, before concluding my r emark s I wouldlike to discuss several questions which have been raisedconcern ing the meaning of sever al provisions of S. 22 as re-ported by the House Judiciary Committee and of state-ment s in the committ ees r eport , No. 94-1476.

* * *

Another question involves the r eference to teacher inthe Agreement on Guidelines for Classr oom Copying in

Not-for-Profit Educational Institutions reproduced atpages 68-70 of the committ ees r eport No. 94-1476 in con-nection with s ection 107. It has been pointed out t hat , inplanning his or her teaching on a day-to-day basis in a var i-ety of educational situations, an individual teacher willcommonly consult with instr uctional specialist s on the st affof the school, such as reading specialists, curriculum spe-cialists, audiovisual directors, guidance counselors, and t helike. As long as the copying meets all of the other criterialaid out in the guidelines, including t he r equirement s forspontaneity and the prohibition against t he copying beingdirected by higher aut hority, the committee r egards t heconcept of teacher as broad enough to include instruc-

tional specialists working in consultation with actual instructors.

Also in consultation with section 107, the committeesatt ention has been directed t o the unique educational needsand problems of the approximately 50,000 deaf and hear-ing-impaired students in the United States, and the inad-equacy of both public and commercial television to servetheir educational needs. It has been suggest ed that , as longas clear-cut constr aints ar e imposed and enforced, the doctr ine of fair use is broad enough t o permit t he making of anoff-the-air fixation of a television program within a non-profit educational institution for the deaf and hear ing impaired, the repr oduction of a master and a wor k copy of acaptioned version of the original fixation, and the perfor-mance of the pr ogram from the work copy within t he confines of the institut ion. In ident ifying the constraint s th atwould have to be imposed with in an inst itut ion in ord er forthese activities to be considered as fair use, it has been su ggested that the purpose of the use would have to be non-

commercial in ever y r espect, and educational in the sensethat it serves as part of a deaf or hearing-impairedstudent s learning environment within th e institut ion, andthat the institution would have to insure that the masterand wor k copy would r emain in the ha nds of a limited num-ber of authorized personnel within the inst itut ion, would beresponsible for assur ing against its un authorized r eproduction or distribution, or its performance or retention forother than educational purposes within the institutionWork copies of captioned pr ogram s could be shar ed amonginstitutions for the deaf abiding by the constr aints specified. Assuming t hat these constraints ar e both imposed andenforced, and that no other factors inter vene to render the

use unfair, the committee believes that the activities described could reasonably be considered fair use under sect ion 107.

* * *

Mr. Chair man, because of the complexity of this bill andthe delicate balances which it creates among competingeconomic interests, the committee will resist extensiveamendment of th is bill. On beha lf of the committ ee I wouldur ge all of my colleagues t o vote favor ably on S. 22.

Mr. SKU BlTZ. Mr. Chairman , will the gentleman yield?Mr. KASTEN MEI E R. I am happy to yield to my friend

the gent leman from Kansas.

Mr. SKUBITZ. Mr. Chairman, I t hank my friend, thegent leman from Wisconsin, for yielding.Mr. Chairman, I have received a gr eat deal of mail from

the schoolteachers in my distr ict who are part icularly concerned about section 107fair usethe fair use of copy-righted mater ial. Having been a former schoolteacher my-self, I b elieve t hey make a good point and t here is a sincerefear on their part that , because of the vaguenes s or ambiguity in t he bills t reat ment of the doctr ine of fair use, theymay subject themselves t o liability for an unint ent ional infringement of copyright when all they were trying to dowas the job for which they wer e tr ained.


12/24

12

The vast majority of teachers in this country w ould notknowingly infringe upon a persons copyright, but, as anyteacher can appr eciate, ther e are t imes when informat ionis needed and is available, but it may be liter ally impossibleto locate the r ight person to approve th e use of that mate-rial and the purchase of such would not be feasible and, inthe meantime, the teacher may have lost that teachablemoment.

Did the subcommittee take these problems into consid-erat ion and did they do anything to tr y and help the teach-ers t o better underst and section 107?

Hav e the t eachers been pr otected by t his section 107?Mr. KASTEN MElER . Mr. Chairman, in response to the

gent lemans quest ion and h is obser vations preceding t hequestion, I would say, indeed t hey have.

Over the years this has been one of the most difficultquestions. It is a problem that I believe has been very suc-cessfully r esolved.

Section 107 on F air U se has, of cour se, res ta ted four

standards, and these standards are, namely: The purposeand character of the us e of the mat erial; the nat ure of thecopyrighted work; the amount and substantiality of theportion used in relation to the copyrighted work as a whole;and th e effect of the use upon the potent ial market for orvalue of the copyrighte d work.

These are t he four F air Use criteria. These alone werenot adequate to guide teachers, and I am sure the gentle-man from Kansas (Mr. SKUBITZ) understands that as aschoolteacher himself.

There fore, the educators, the pr oprietors, and the pub-lisher s of educational mater ials did, at the committ ees longinsistence, get together. While there were many fruitless

meetings, they did finally get together .Mr. Chairman, I will draw the gentlemans att ention to

pages 65 through 74 in th e rep ort w hich contain ext ensiveguidelines for teachers. I am ver y happy to say that ther ewas an agreement r eached between teachers and publish-ers of educational material, and that today the NationalEducation Association supports the bill, and it has, in fact,sent a t elegram which at t he appropr iate time I will makea part of the R ECORD and which r equests support for t he billin its p resent form, believing that it has sat isfied the needsof the t eachers:

NATIONAL E DUCATION ASSOCIATION ,Wa shin gton, D.C., Septem ber 10, 1976.

Nat ional E ducation Association urgent ly request s yoursupport of the Copyr ight R evision bill, H.R. 2223, as re-ported by t he J udiciary Committee. This compromise ef-fort repr esents a major br eakthr ough in establishing equi-table legal guidelines for t he use of copyright mat er ials forinstructional and rese arch pur poses. We ask your supportof the committee bill without amendment s.

J AMES W. GR E E N,Assista nt Director for Legislation.

Mr. SKUBITZ. Mr. Chairman, if the gentleman willyield further , then the N E A is satisfied with t he languagein the bill as it now st ands; is t hat corr ect?

Mr. KASTE NME IE R. The gentleman is correct.Mr. SKUBlTZ. Mr. Chairman, I t hank th e gentleman.

D. REPRODUCTION BY LIBRARIES AND ARCHIVES


The following is a reprint of the entire text of section 108 oftitle 17, United States Code.

108. Limitations on exclu sive righ ts:

Reproduct ion by l ibraries and archives

(a) Notwithstanding the provisions of section 106, it isnot an infringement of copyright for a librar y or archives

or any of its employees acting within t he scope of their em-ployment, to reproduce no more than one copy or pho-norecord of a work, or to distribute such copy or phono-record, under the conditions specified by t his section, if

(1) the repr oduction or distr ibution is made with-out any purpose of direct or indirect commercial ad-vantage;

(2) the collections of the librar y or ar chives are (i)open to the public, or (ii) available not only to re-searchers affiliated with the library or archives orwith t he institut ion of which it is a part , but also toother persons doing research in a specialized field;and

(3) the repr oduction or distr ibution of the work in-cludes a notice of copyright .(b) The rights of reproduction and distribution under

this section apply to a copy or phonorecord of an unpub-lished work duplicat ed in facsimile form solely for pur posesof preser vation and security or for de posit for r esearch usein another library or archives of the type described byclause (2) of subsection (a), if the copy or phonorecord r eproduced is currently in the collections of the library orarchives.

(c) The r ight of repr oduction under this section appliesto a copy or phonorecord of a published work dup licated infacsimile form solely for the purpose of replacement of acopy or p honorecord t hat is damaged, deter iorat ing, lost

or st olen, if the librar y or ar chives has, after a r easonableeffort, determined that an unused replacement cannot beobtained at a fair price.

(d) The rights of reproduction and distribution underthis section apply to a copy, made from the collection of alibrar y or archives where the user makes his or her requestor from that of another librar y or ar chives, of no more thanone art icle or oth er contr ibution to a copyr ighted collectionor periodical issue, or to a copy or phonorecord of a smalpart of any other copyrighte d work, if

(1) the copy or phonorecord becomes the propert yof the user, and the library or archives has had no


13/24

13

notice that the copy or phonorecord would be used forany pur pose other than pr ivate stu dy, scholarship, orresear ch; and

(2) the librar y or archives displays pr ominently, atthe place wher e order s are accepted, and includes onits order form, a warning of copyright in accordancewith requirements that the Register of Copyrightsshall prescribe by r egulation.(e) The rights of reproduction and distribution under

this section apply to the entire work, or to a substantialpar t of it, made from t he collection of a librar y or ar chiveswhere t he user makes his or her request or from that ofanother librar y or ar chives, if the librar y or ar chives. hasfirst deter mined, on t he basis of a reasonable investigation,that a copy or p honorecord of the copyrighted work cannotbe obta ined at a fair pr ice, if

(1) the copy or phonorecord becomes the propert yof the user, and the library or archives has had nonotice that the copy or phonorecord would be used for

any pur pose other than pr ivate stu dy, scholarship, orresear ch; and

(2) the librar y or archives displays pr ominently, atthe place wher e order s are accepted, and includes onits order form, a warning of copyright in accordancewith requirements that the Register of Copyrightsshall prescribe by r egulation.(f) Noth ing in this sect ion

(1) shall be constr ued to impose liability for copy-right infringement upon a library or archives or itsemployees for the unsupervised use of reproducingequipment located on its premises: Provided, Thatsuch equipment displays a notice that the making of a

copy may be subject t o the copyright law;(2) excuses a person who uses such reproducing

equipment or who requests a copy or phonorecordunder subsection (d) from liability for copyright in-fringement for any such act, or for any later use ofsuch copy or phonorecord, if it exceeds fair use as pr o-vided by sect ion 107;

(3) shall be construed to limit the reproductionand distribution by lending of a limited number ofcopies and excerpt s by a librar y or ar chives of an au-diovisual news program, subject to clauses (1), (2),and (3) of subsection (a); or

(4) in any way affects the right of fair use as pr o-

vided by section 107, or any contractual obligationsassumed at any t ime by the library or ar chives whenit obt ained a copy or phonorecord of a work in its col-lections.(g) The rights of reproduction and distribution under

this section exten d to the isolated and u nrelated r eproduc-tion or distribution of a single copy or phonorecord of thesame mater ial on separat e occasions, but do not ext end t ocases where t he librar y or ar chives, or its employee

(1) is aware or has substaiitial reason to believethat it is engaging in the related or concert ed repr o-duction or distribution of multiple copies orphonorecords of the same mater ial, whether made on

one occasion or over a period of time, and whetherintended for aggr egate use by one or more individu-als or for separat e use by the individual members of agr oup; or

(2) engages in t he syst ematic repr oduction or dis-tr ibution of single or multiple copies or phonorecordsof mat er ial descr ibed in subsection (d):Provided, That nothing in this clause prevents a li-brary or archives from participating in interlibraryarr angements that do not have, as their pur pose oreffect, that the librar y or archives receiving such cop-ies or phonorecords for dist ribut ion does so in suchaggregate quantities as to substitute for a subscrip-tion to or pur chase of such work.(h) The rights of reproduction and distribution under

this section do not apply to a musical work, a pictorialgraphic or sculptur al work, or a motion pictur e or other audiovisual work other than an audiovisual work dealing withnews, except that no such limitation shall apply with re

spect t o rights gr anted by subsections (b) and (c), or withrespect to pictorial or gr aphic works published as illustra-tions, diagrams, or similar adjunct s to work s of which copies are r eproduced or distributed in accordance with sub-sections (d) and (e).

2. Excerpts From Senate Report on Section 108

The following excerpts are reprinted from the 1975 SenateReport on the new copyright law (S. Rep. No. 94- 473,pages 67-71). Where the discussions of particular points

are generally similar in the two Reports, the passages fromthe later House Report are reprinted in this booklet. Wherethe discussion of particular points is substantially different,passages from both Reports are reprinted.

a. Senate Report: Discussion of Libraries and

Archives in Profit-Making Institutions

The limitat ion of section 108 to repr oduction and distr ibution by libraries and archives without any purpose ofdirect or indirect commercial advantage is intended topreclude a librar y or archives in a profit-making organization from providing photocopies of copyrighted materialsto employees engaged in furtherance of the organizations

commercial enterprise, unless such copying qualifies as afair use, or the organization has obtained the necessarycopyr ight licenses . A commer cial org anization should pur-chase the number of copies of a work that it requires, orobtain the consent of the copyright owner t o the making othe photocopies.

b. Senate Report: Discussion of Multiple Copies and

Systematic Reproduction

Multiple copies an d sy stematic reproduction

Subsection (g) provides that the rights granted by this


14/24

14

section extend only to the isolated and unrelated repro-duction of a single copy, but this section does not autho-rize the related or concert ed r eproduction of multiple cop-ies of the same material whether made on one occasion orover a period of time, and whet her intended for aggr egateuse by one individual or for separat e use by t he individualmember s of a gr oup. For examp le, if a college pr ofessor in-str ucts his class to r ead an ar ticle from a copyrighted jour-nal, the school librar y would not be per mitted, under sub-section (g), to repr oduce copies of the ar ticle for t he mem-bers of the class.

Subsection (g) also provides t hat section 108 does notauthorize the systematic reproduction or distribution ofcopies or phonorecords of ar ticles or other contr ibutions tocopyrighted collections or periodicals or of small parts ofother copyrighted works whether or not multiple copiesare r eproduced or distributed. Syst ematic reproduction ordistribution occurs when a library makes copies of suchmater ials available to other libraries or t o groups of users

under formal or informal arr angements whose purpose oreffect is to have the reproducing library serve as theirsource of such mat erial. Such syst ematic repr oduction anddistribution, as distinguished from isolated and unr elatedrepr oduction or distr ibution, may substitut e the copies re-produced by the source library for subscriptions or re-prints or other copies which t he r eceiving librar ies or us-ers might otherw ise have purchased for t hemselves, fromthe publisher or t he licensed r eproducing agencies.

While it is not possible to formulat e specific definitionsof syst emat ic copying, the following examples ser ve t o il-lustrat e some of the copying pr ohibited by subsection (g).

(1) A librar y wit h a collection of journals in b iology in-

forms other libraries with similar collections that it willmainta in and build its own collection and will make copiesof art icles from t hese journals available t o them and theirpatr ons on request . Accordingly, the other librar ies discon-tinue or refrain from purchasing subscriptions to thesejourn als and fulfill their pat rons requ ests for art icles byobtaining photocopies from the source library.

(2) A r esearch center employing a number of scientistsand technicians subscribes to one or two copies of neededper iodicals. By r epr oducing phot ocopies of art icles the cen-ter is able t o make the mater ial in these per iodicals avail-able to its st aff in the same manner which other wise wouldhave r equired multiple subscriptions.

(3) Several branches of a librar y syst em agree that onebranch will subscribe to particular journals in lieu of eachbranch pur chasing its own subscriptions, and the one sub-scribing branch will reproduce copies of articles from thepublication for users of the other branches.

The committee believes that section 108 provides anappropriate statutory balancing of the rights of creatorsand the needs of users. However , neither a stat ute nor leg-islative history can specify precisely which library photo-copying practices constitute the making of single copiesas d istinguished from systemat ic repr oduction. Isolatedsingle spontaneous requests must be distinguished fromsystematic reproduction. The photocopying needs of

such operations as multi-county r egional systems must bemet. The committ ee ther efore recommends that re presen-ta tives of aut hors, book and per iodical publishers and ot herowners of copyrighted mat erial meet with t he librar y community to formulate photocopying guidelines t o assist library patrons and employees. Concerning library photocopying practices not authorized by this legislation, thecommittee recommends that workable clearance and li-censing pr ocedures be developed.

It is still uncertain how far a library may go under theCopyright Act of 1909 in supplying a photocopy of copy-righted material in its collection. The recent case ofTheWilliams and Wilkins Company v. The United Statesfailed t o significant ly illuminate the app lication of the fairuse doctrine t o library photocopying pr actices. Indeed, t heopinion of the C ourt of Claims said the Court was engagedin a holding Oper at ion in the inter im period before Congress enacte d its preferr ed solution.

While the several opinions in the Wilkins case have

given the Congress little guidance as to the current stateof the law on fair u se, these opinions pr ovide add itional sup-port for the balanced resolution of the photocopying issueadopted by t he Senat e last year in S. 1361 and pr eserved insection 108 of this legislation. As t he Court of Claims opinion succinctly st at ed ther e is much to be sa id on all sides.

In adopting these provisions on library photocopyingthe committee is aware that through such programs asthose of the N ational Commission on Librar ies and I nfor-mation Science there will be a significant evolution in thefunctioning and services of libraries. To consider the possible need for changes in copyright law and pr ocedures asa re sult of new technology, a Nat ional Commission on New

Technological Uses of Copyrighted Works has been est ablished (Public Law 93-573).


The following excerpts are reprinted from the House Reporton the new copyright law (H.R. Rep. No. 94-1476, pages74-79). All of the House Reports discussion of section 108is reprinted here; similarities and differences between theHouse and Senate Reports on particular points will benoted below.

a. House Report: Introductory Statement

This paragraph is substantially the same in the Senate andHouse Reports.

Notwithstanding the exclusive rights of the owners ocopyright , section 108 provides t hat under certa in conditions it is not an infringement of copyright for a library orar chives, or any of its employees act ing within t he scope otheir employment, to reproduce or distribute not morethan one copy or phonorecord of a work, provided (1) the


15/24

15

repr oduction or d istribution is made without any pur poseof direct or indirect commer cial advant age and (2) the col-lections of the librar y or archives are open to t he public oravailable not only to re searchers affiliated with the librar yor archives, but also to other persons doing research in aspecialized field, and (3) the r epr oduction or distr ibution ofthe work includes a notice of copyr ight.

b. House Report: Discussion of Libraries and

Archives in Profit-Making Institutions

The Senate and House Reports differ substantially on thispoint. The Senate Reports discussion is reprinted at page17, above.

Under this provision, a purely commercial enterprisecould not establish a collection of copyrighted works, call

itself a library or ar chive, and engage in for-profit repr o-duction and d istr ibution of photocopies. Similarly, it wouldnot be possible for a non-profit institu tion, by means of con-tractual arrangements with a commercial copying enter-prise, to authorize the enter prise to carr y out copying anddistribution functions that would be exempt if conductedby the non-profit institution itself.

The r eference to indirect commercial advantage hasraised quest ions as t o the st atus of photocopying done byor for libraries or archival collections within industrial,profitmaking, or proprietary institutions (such as the re-search and development depart ments of chemical, pharma-ceutical, automobile, and oil corporations, the library of apropriatary hospital, the collections owned by a law ormedical par tner ship, etc.).

There is a direct inter relationship betw een this pr oblemand t he pr ohibitions against multiple and systemat icphotocopying in sect ion 108 (g) (1) and (2). Under section108, a librar y in a profit-making organ izat ion would not beauthorized to:

(a) use a single subscript ion or copy to supply its em -ployees with multiple copies of mat er ial relevan t t o theirwork ; or

(b) use a single subscr iption or copy t o supply its em-ployees, on r equest , with single copies of mater ial rel-evant to t heir work, where t he arr angement is system-at ic in the sense of deliberat ely substit uting phot ocopy-

ing for subscript ion or pur chase; or(c)use inter librar y loan arrangement s for obtaining

photocopies in such aggregate quantities as to substi-tut e for subscript ions or pur chase of material needed byemployees in their work.

Moreover, a library in a profit-making organization couldnot evade these obligations by installing reproducingequipment on its premises for unsupervised use by theorgan izat ions st aff.

Isolat ed, spontaneous making of single photocopies by alibrar y in a for-profit organization, without any syst ematiceffort to subst itute photocopying for subscriptions or pu r-chases, would be covered by section 108, even though the

copies are furnished to the employees of the organizationfor use in their work. Similarly, for-profit libraries couldpart icipate in interlibrar y ar rangements for exchange ophotocopies, as long as the r epr oduction or distr ibution wasnot syst emat ic. These activities, by the mselves, wouldordinarily not be considered for d irect or indirect commer -cial advantage, since t he advantage r eferred to in thisclause must att ach to t he immediate commercial motivation behind the r eproduction or distr ibution itself, rat herthan to the ultimate pr ofit-making motivation behind theenterprise in which the library is located. On the otherhand, section 108 would not excuse reproduction or distribution if ther e wer e a commercial motive behind the actuamaking or d istr ibuting of the copies, if multiple copies wer emade or distributed, or if the photocopying activities weresystematic in the sense that their aim was to substitut efor subscriptions or purchases.

c. House Report: Rights of Reproduction andDistribution Under Section 108

The following paragraphs are closely similar in the Senateand House Reports.

The rights of reproduction and distribution under sec-tion 108 apply in the following circumst ances:

Archival reproductions

Subsection (b) authorizes t he r eproduction and d istribu

tion of a copy or phonorecord of an unpublished work du-plicated in facsimile form solely for purposes of preserva-tion and security, or for deposit for resear ch use in anotherlibrar y or archives, if the copy or phonorecord r eproducedis curr ent ly in t he collections of the first libra ry or ar chivesOnly unpublished works could be reproduced under thisexemption, but t he right w ould extend t o any type of workincluding photographs, motion pictures and sound record-ings. Under th is exemption, for example, a repositor y couldmake phot ocopies of manuscript s by microfilm or electrostat icprocess, but could not reproduce the work in machine-read-able language for st orage in an informat ion system.

Replacem ent of dam aged copy

Subsection (c) authorizes the reproduction of a pub-lished work duplicat ed in facsimile form solely for t he purpose of replacement of a copy or phonorecord that is damaged, deter iorat ing, lost or st olen, if the librar y or ar chiveshas, after a reasonable effort, determined that an unusedreplacement cannot be obtained at a fair pr ice. The scopeand natu re of a reasonable investigation to deter mine thatan unused replacement cannot be obtained will vary ac-cording to the circumstances of a particular situation. Itwill always require recourse to commonly-known tradesources in the United States, and in the normal situationalso to the publisher or other copyright owner (if such


16/24

16

owner can be located at the ad dress listed in the copyrightregistr ation), or an aut horized r eproducing ser vice.Articles and sm all excerpts

Subsection (d) authorizes t he r eproduction and d istribu-tion of a copy of not more than one article or other contri-

but ion t o a copyr ighted collection or p er iodical issue, or ofa copy or phonorecord of a small part of any other copy-righted work. The copy or phonorecord may be made bythe library where t he user makes his request or by anotherlibrar y pursuant to an interlibrar y loan. It is further re-quired that the copy become the propert y of the user , thatthe librar y or ar chives have no notice th at t he copy wouldbe used for any purposes other than private study, schol-arship or resear ch, and that the library or ar chives displayprominently at the place where r eproduction request s areaccepted, and includes in its orde r form, a war ning of copy-right in accordance with requirement s that t he Register ofCopyrights shall prescribe by r egulation.

Out-of-print works

Subsection (e) authorizes t he r eproduction and d istribu-tion of a copy or phonorecord of an entire work under cer-tain circumstances, if it h as been esta blished t hat a copycannot be obtained at a fair p rice. The copy may be madeby the library where t he user makes his request or by an-other library pursuant to an interlibrary loan. The scopeand natu re of a reasonable investigation to deter mine thatan unused copy cannot be obtained will vary according tothe circumstances of a par ticular situation. It will alwaysrequire recourse t o commonly-known tr ade sources in theUnited S tat es, and in the nor mal situat ion also to the pub -

lisher or other copyright owner (if the owner can be locatedat the address listed in the copyright registration), or anauthorized reproducing service. It is further required t hatthe copy become the propert y of the user , that t he librar yor ar chives have n o notice that the copy would be used forany purpose other than private study, scholarship, or re-search, and that the library or archives display promi-nently at t he place where repr oduction r equests ar e ac-cepted, and include on its order form, a warning of copy-right in accordance with requirement s that t he Register ofCopyrights shall prescribe by r egulation.

d. House Report: General Exemptions for Librariesand Archives

Parts of the following paragraphs are substantially similarin the Senate and House Reports. Differences in the HouseReport on certain points reflect certain amendments in sec-tion 108(f) and elsewhere in the Copyright Act.

General exem ptions

Clause (1) of subsection (f) specifically exempt s a libr ar yor ar chives or its employees from liability for t he unsup er-

vised use of reproducing equipment located on its pre-mises, provided that the repr oducing equipment displays anotice that the making of a copy may be sub ject t o the copyright law. Clause (2) of subsection (f) makes clear t hat th isexemption of the librar y or archives does not ext end to th eperson using such equipment or r equesting such copy if theuse exceeds fair use. In sofar as such per son is concernedthe copy or phonor ecord made is not considered lawfullymade for pur poses of sections 109, 110 or other pr ovisionsof the title.

Clause (3) provides that nothing in section 108 is in-tended to limit th e re production and distr ibution by lending of a limited number of copies and excer pt s of an audiovisual news program. This exempt ion is intended to applyto t he daily newscasts of the nat ional television networkswhich report the major e vents of the day. It does not applyto documentary (except documentar y pr ograms involvingnews r eporting as t hat t erm is used in section 107), magazine-for mat or ot her p ublic affairs b roadcast s dealing with

subjects of general interest to t he viewing public.The clause was first added to t he r evision bill in 1974 by

the adopt ion of an amendment proposed by Senator Ba kerIt is intended to permit libraries and archives, subject tothe general conditions of this section, to make off-the-airvideotape recordings of daily netw ork news casts for limited distribut ion to scholars and r esearchers for use in research pur poses. As such, it is an adjunct t o the Amer icanTelevision and Radio Archive est ablished in Section 113 othe Act which will be the pr incipal repositor y for t elevisionbroadcast material, including news broadcasts. The inclusion of language indicating that such mat er ial may only bedistributed by lending by t he librar y or ar chive is intend ed

to pr eclude per formance, copying, or sale, whether or notfor profit, by the recipient of a copy of a television broad-cast t aped off-the-air p ursuant to t his clause.

Clause (4), in addition to asserting that nothing con-tained in section 108 affects the right of fair use as pro-vided by section 107, also provides that the right of re-production granted by this section does not override anycontr actual arrangement s assumed by a librar y or archiveswhen it obt ained a work for its collections. For examp le, ithere is an express contractual prohibition against reproduction for any purpose, this legislation shall not be con-st rued as just ifying a violation of the contr act. This clauseis intended to encompass the situat ion wher e an individua

makes papers, manuscripts or other works available to alibrar y with the under standing that they will not be repr oduced.

It is the intent of this legislation that a subseq uent un-lawful use by a user of a copy or phonorecord of a work law-fully made by a libra ry , shall not make t he librar y liable forsuch improper use.


17/24

17

e. House Report: Discussion of Multiple Copies andSystematic Reproduction

The Senate and House Reports differ substantially on thispoint. The Senate Reports discussion is reprinted at page

17. above.

Multiple copies an d sy stematic reproduction

Subsection (g) provides that the rights granted by thissection extend only to the isolated and unrelated repro-duction of a single copy or phonorecord of the same mate-rial on separa te occasions. However , this section does notauthorize the related or concert ed r eproduction of multiplecopies or phonorecords of the sam e mater ial, whether madeon one occasion or over a period of time, and whether in-tended for aggr egate u se by one individual or for separ ateuse by t he individual members of a group.

With r espect t o mater ial described in subsection (d)ar ticles or ot her cont ribut ions t o periodicals or collections,and small part s of other copyright ed works subsection(g) (2) provides that the exemptions of section 108 do notapply if the library or archive engages in systematic re-production or distribution of single or multiple copies orphonorecords . This pr ovision in S.22 provoked a st orm ofcontr oversy, center ing around the ext ent t o which the r e-str ictions on systemat ic activities would pr event the con-tinuation and development of interlibrary networks andother a rr angemen ts involving the exchange of photocopies.After thorough consideration, the Committee amendedsection 108 (g) (2) to add the following proviso:

Provided, that nothing in th is clause prevent s a li-brary or archives from participating in interlibraryarr angements that do not have, as their pur pose oreffect, that the librar y or archives receiving such cop-ies or phonorecords for distr ibution does so in suchaggregate quantities as to substitute for a subscrip-tion to or pur chase of such work.In addition, the Committ ee added a new subsection (i)

to section 108, requiring the Register of Copyrights, fiveyears from the effective date of the new Act and at fiveyear intervals thereafter, to r eport to Congress upon theextent to which this section has achieved the intendedstat utory b alancing of the right s of creators, and t he needsof users, and t o make appropriat e legislative or other rec-ommendat ions. As noted in connection with sect ion 107, theCommittee also amended s ection 504(c) in a way t hat wouldinsulate libr ar ians from unwar rant ed liability for copyr ightinfringement; this amendment is discussed below.

The key phrases in the Committees amendment of sec-tion 108(g) (2) are aggregat e quant ities and substitutefor a subscription to or purchase of a work. To be imple-ment ed effectively in practice, these p rovisions will requirethe development and implementation of more-or-less spe-cific guidelines est ablishing crit er ia to govern va rious situ-ations.

The N at ional Commission on New Technological Uses ofCopyrighted Works (CONTU ) offered t o provide good offices in helping to develop these gu idelines. This offer wasaccepted and, although the final text of guidelines has notyet been achieved, the Committee has r eason to hope thatwithin the next month, some agreement can be reached onan initial set of guidelines cover ing practices under section108(g) (2).

f. House Report: Discussion of Works Excluded

The House Reports discussion of section 108(h) is longerthan the corresponding paragraph in the Senate Report,and reflects certain amendments in the subsection.

Works excluded

Subsection (h) provides t hat the rights of repr oductionand distr ibution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a mo-tion picture or other audiovisual work other than an audiovisual work dealing with news. The latter ter m is intended as t he equivalent in meaning of the phr ase audiovisual news pr ogram in section 108 (f) (3). The exclusionsunder subsection (h) do not apply t o archival reproductionunder subsection (b), to replacement of damaged or lostcopies or phonorecords under subsection (c), or to picto-rial or gr aphic works published as illustrat ions, diagramsor similar ad juncts t o works of which copies ar e repr oducedor distributed in accordance with subsections (d) and (e).

Although subsection (h) generally removes musical

gra phic, and a udiovisual works fr om the specific exemp-tions of section 108, it is import ant to r ecognize t hat thedoctrine of fair use under section 107 remains fully appli-cable to the photocopying or other reproduction of suchworks. In the case of music, for example, it would be fairuse for a scholar doing musicological re sear ch to have a librar y supply a copy of a port ion of a score or t o repr oduceport ions of a phonorecord of a work. N othing in sect ion 108impairs the applicability of the fair use doctrine to a widevar iety of situations involving photocopying or othe r re-production by a library of copyrighted material in its col-lections, where the user requests the reproduction for le-gitimate scholarly or r esearch pur poses.

4. Excerpts From Conference Report

The following excerpt is reprinted from the Report of theConference Committee on the new copyright law (H.R.Rep. No. 94-1733, pages 70-74).


18/24


19/24

19

when t he request for t he copy ther eof is made, constitut esa substitute for a subscription to such periodical. Themeaning of t he pr oviso to subsection 108 (g) (2) in such caseis left t o futur e interpr etat ion.

The point has been made t hat t he present practice oninterlibrary loans and use of photocopies in lieu of loansmay be supplemented or even largely replaced by a systemin which one or more agencies or institu tions, public or pr i-vate, exist for the specific purpose of providing a centralsource for photocopies. Of course, these guidelines wouldnot apply to such a situat ion.

GUIDELINESF OR TH E PROVISOOF SUBSECTION 108 (G)(2)

1. As used in the proviso of subsection 108 (g) (2), thewords . . . such aggr egate q uantities as t o substitute for asubscription to or purchase of such work shall mean:

(a)with respect t o any given per iodical (as opposed t oany given issue of a periodical), filled requests of a li-

brar y or ar chives (a request ing entity) within any cal-endar year for a total of six or more copies of an articleor ar ticles published in such periodical within five yea rsprior t o the date of the r equest. These guidelines specifi-cally shall not apply, directly or indirectly, to any re-quest of a requesting entity for a copy or copies of anar ticle or a rt icles published in any issue of a per iodical,the publication date of which is more than five yearsprior to the dat e when the r equest is made. These guide-lines do not de fine t he meaning, with r espect t o such arequest , of . . . such aggregat e quant ities as to substi-tu te for a subscr iption to [such periodical].

(b) With respect to any other material described in

subsection 108 (d), (including fiction and poetry), filledreques ts of a request ing entity within any calendar yearfor a total of six or more copies or phonorecords of orfrom any given work (including a collective work) dur-ing the entire period when such material shall be pro-tected by copyright.2. In t he event t hat a r equesting entity

(a)shall have in force or shall have enter ed an orderfor a subscript ion t o a per iodical