Section 108 of the Senate bill dealt with a variety of situations_Reproduction of Copyrighted Works by Educators and Librarians

Produced by George Davis

United States Copyright Office

Circular 21

Reproduction of Copyrighted Works by Educators and Librarians

------------------------------------------------------------------------

Many educators and librarians ask about the fair use and photocopying

provisions of the copyright law. The Copyright Office cannot give legal

advice or offer opinions on what is permitted or prohibited. However, we

have published in this circular basic information on some of the most

important legislative provisions and other documents dealing with

reproduction by librarians and educators.

Also available is the 1983 Report of the Register of Copyrights on

Library Reproduction of Copyrighted Works (17 U.S.C. 108). The Report

and seven appendixes can be purchased in microfiche or paper copies by

written request from the National Technical Information Service, U.S.

Department of Commerce, 5285 Port Royal Road, 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); PB83 148262ACY, Appendix II

(Chicago Hearing and Written Comments); PB83 148270ACY, Appendix III

(Houston Hearing and Written Comments); PB83 148288ACY, Appendix IV

(Washington Hearing and Written Comments); PB83 148296ACY, Appendix V

(Anaheim Hearing and Written Comments); PB83 148304ACY, Appendix VI

(New York Hearing and Written Comments); and PB83 148312ACY, Appendix

VII (Final Written Comments).

The 1988 5-year Report of the Register of Copyrights on Library

Reproduction of Copyrighted Works is also available from NTIS. Use NTIS

Accession Number PB88 212014ACY.

**Contents of This Booklet**

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

B. Exclusive Rights in Copyrighted Works ............................. 4

1. Text of Section 106 ............................................... 4

2. Excerpts From House Report ........................................ 5

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

1. Text of Section 107 ............................................... 5

2. 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 .............................................. 10

3. Excerpts From Conference Report .................................. 10

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

D. Reproduction by Libraries and Archives ........................... 12

1. Text of Section 108 .............................................. 12

2. Excerpts From Senate Report ...................................... 13

a. Discussion of Libraries and Archives in Profit-Making

Institutions .............................................. 13

b. Discussion of Multiple Copies and Systematic Reproduction ........ 13

3. Excerpts From House Report ....................................... 14

a. Introductory Statement ........................................... 14

b. Discussion of Libraries and Archives in Profit-Making

Institutions............................................... 15

c. Rights of Reproduction and Distribution Under Section 108 ........ 15

d. General Exemptions for Libraries and Archives .................... 16

e. Discussion of Multiple Copies and Systematic Reproduction ........ 17

f. Discussion of Works Excluded ..................................... 17

4. Excerpts From Conference Report .................................. 17

a. Introductory Discussion of Section 108 ........................... 18

b. Conference Committee Discussion of CONTU Guidelines on

Photocopying and Interlibrary Arrangements ................ 18

c. Reprint of CONTU Guidelines on Photocopying and Interlibrary

Arrangements .............................................. 18

d. Discussion of "Audiovisual News Program" ......................... 19

e. Discussion of Libraries and Archives in Profit-Making

Institutions............................................... 19

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

E. Liability for Infringement ....................................... 20

1. Text of Section 504 .............................................. 20

2. Excerpts From House Report ....................................... 21

3. Excerpts From Conference Report .................................. 22

F. Guidelines for Off-air Recording of Broadcast Programming for

Educational Purposes ...................................... 22

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A. INTRODUCTORY NOTE

--------------------

*The Subjects Covered in This Booklet*

The documentary materials collected in this booklet deal with

reproduction of copyrighted works by educators, librarians, 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 archival preservation.

The documents reprinted here are limited to materials dealing with

reproduction. Under the copyright law, reproduction can take either of

two forms:

+ The making of copies: by photocopying, making micro-form

reproductions, videotaping, or any other method of duplicating

visually-perceptible material; and

+ The making of phonorecords: by duplicating sound recordings, taping

off the air, or any other method of recapturing sounds.

The copyright law also contains various provisions dealing with

importations, performances, and displays of copyrighted works for

educational and other noncommercial purposes, but they are outside the

scope of this booklet. You can obtain a copy of the statute and

information about specific provisions by writing to the Publications

Section, LM-455, Copyright Office, Library of Congress, Washington,

D.C. 20559-6000.

*A Note on the Documents Reprinted*

The documentary materials in this booklet are reprints or excerpts from

six sources:

1. The Copyright Act of October 19, 1976. This is the copyright law of

the United States, effective January 1, 1978 (title 17 of the United

States Code, Public Law 94-553, 90 Stat. 2541).

2. The Senate Report. This is the 1975 report of the Senate Judiciary

Committee on S. 22, the Senate version of the bill that became the

November 20 (legislative day November 18,1975)).

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

Representatives Judiciary Committee on the House amendments to the bill

that became the Copyright Act of 1976 (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 the two Houses on the amendments

of the House to the bill (S. 22) for the general revision of the

29,1976).

5. The Congressional Debates. This booklet contains excerpts from the

Congressional Record of September 22, 1976, reflecting statements on the

floor of Congress at the time the bill was passed by the House of

Representatives (122 CONG. REC. H 10874-76, daily edition, September

22,1976).

6. Copyright Office Regulations. These are regulations issued by the

for use by libraries and archives (37 Code of Federal Regulations

Sec. 201.14).

Items 2 and 3 on this list--the 1975 Senate Report and the 1976 House

Report--present special problems. On many points the language of these

two reports is identical or closely similiar. However, the two reports

were written at different times, by committees of different Houses of

Congress, on somewhat different bills. As a result, the discussions on

some provisions of the bills vary widely, and on certain points they

disagree.

The disagreements between the Senate and House versions of the bill

itself were, of course, resolved when the Act 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 Report were left partly or wholly unresolved. It is therefore

difficult in compiling a booklet such as this to decide in some cases

what to include and what to leave out.

The House Report was written later than the Senate Report, and in many

cases it adopted the language of the Senate Report, updating it and

conforming it to the version of the bill that was finally enacted into

law. Thus, where the differences between the two Reports are relatively

minor, or where the discussion in the House Report appears to have

superseded the discussion of the same point in the Senate Report, we

have used the House Report as the source 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 possible. Anyone

making a thorough study of the Act of 1976 as it affects librarians and

educators should not, of course, rely exclusively 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 of

title 17, United States Code.

===============================================================

*Section 106. Exclusive rights in copyrighted works*

Subject to sections 107 through 120, the owner of copyright under this

title has the exclusive rights to do and to authorize any of the

following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the

public by sale or other transfer of ownership, or by rental, lease,

or lending;

(4) in the case of literary, musical, dramatic, and choreographic

works, pantomimes, and motion pictures and other audiovisual works,

to perform the copyrighted work publicly; and

(5) in the case of literary, musical, dramatic, and choreographic

works, pantomimes, and pictorial, graphic, or sculptural works,

including the individual images of a motion picture or other

audiovisual work, to display the copyrighted work publicly.

*2. Excerpts From House Report on Section 106*

=====================================================================

The following excerpts are reprinted from the House Report on the new

corresponding Senate Report (S. Rep. No. 94-473, pages 57-58) is

substantially the same.

=====================================================================

SECTION 106. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS

General scope of copyright

The five fundamental rights that the bill gives to copyright owners--the

exclusive rights of reproduction, adaptation, publication, performance,

and display--are stated generally in section 106. These exclusive

rights, which comprise the so-called "bundle of rights" that is a

five enumerated rights may be subdivided indefinitely and, as discussed

below in connection with section 201, each subdivision of an exclusive

right may be owned and enforced separately.

The approach of the bill is to set forth the copyright owner's exclusive

rights in broad terms in section 106, and then to provide various

limitations, qualifications, or exemptions in the 12 sections that

follow. Thus, everything in section 106 is made "subject to sections 107

through 118," and must be read in conjunction with those provisions.

* * *

*Rights of reproduction, adaptation, and publication*

The first three clauses of section 106, which cover all rights under a

of copyrighted work. The exclusive rights encompassed by these clauses,

though closely related, are independent; they can generally be

characterized as rights of copying, recording, adaptation, and

publishing. A single act of infringement may violate all of these rights

at once, as where a publisher reproduces, adapts, and sells copies of a

person's copyrighted work as part of a publishing venture. Infringement

takes place when any one of the rights is violated: where, for example,

a printer reproduces copies without selling them or a retailer sells

copies without having anything to do with their reproduction. The

references to "copies or phonorecords," although in the plural, are

intended here and throughout the bill to include the singular (1 U.S.C.

Sec. 1).

*Reproduction.*--Read together with the relevant definitions in section

101, the right "to reproduce the copyrighted work in copies or

phonorecords" means the right to produce a material object in which the

work is duplicated, transcribed, imitated, or simulated in a fixed form

from which it can be "perceived, reproduced, or otherwise communicated,

either directly or with the aid of a machine or device." As under the

present law, a copyrighted work would be infringed by reproducing it in

whole or in any substantial part, and by duplicating it exactly or by

imitation or simulation. Wide departures or variations from the

copyrighted work would still be an infringement as long as the author's

"expression" rather than merely the author's "ideas" are taken. An

exception to this general principle, applicable to the reproduction of

copyrighted sound recordings, is specified in section 114.

"Reproduction" under clause (1) of section 106 is to be distinguished

from "display" under clause (5). For a work to be "reproduced," its

fixation in tangible form must be "sufficiently permanent or stable to

permit it to be perceived, reproduced, or otherwise communicated for a

period of more than transitory duration." Thus, the showing of images on

a screen or tube would not be a violation of clause (1), although it

might come within the scope of clause (5).

-----------

C. FAIR USE

-----------

1. *Text of Section 107*

=====================================================================

The following is a reprint of the entire text of section 107 of title

17, United States Code.

=====================================================================

*Section 107. Limitations on exclusive rights: Fair use*

Notwithstanding the provisions of sections 106 and 106A, the fair use of

a copyrighted work, including such use by reproduction in copies or

phonorecords or by any other means specified by that section, for

purposes such as criticism, comment, news reporting, teaching

(including multiple copies for classroom use), scholarship, or research,

is not an infringement of copyright. In determining whether the use made

of a work in any particular case is a fair use 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 nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the

copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the

copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of

fair use if such finding is made upon consideration of all the above

factors.

*2. Excerpts From House Report on Section 107*

=====================================================================

The following excerpts are reprinted from the House Report on the new

of section 107 appears at pages 61-67 of the Senate Report (S. Rep.

No. 94-473). The text of this section of the Senate Report is not

reprinted in this booklet, but similarities and differences between

the House and Senate Reports on particular points will be noted

below.

=====================================================================

*a. House Report: Introductory Discussion on Section 107*

=====================================================================

The first two paragraphs in this portion of the House Report are

closely similar to the Senate Report. The remainder of the passage

differs substantially in the two Reports.**

=====================================================================

SECTION 107. FAIR USE

*General background of the problem*

The judicial doctrine of fair use, one of the most important and

well-established limitations on the exclusive right of copyright owners,

would be given express statutory recognition for the first time in

section 107. The claim that a defendant's acts constituted a fair use

rather than an infringement has been raised as a defense in innumerable

recognizing the existence of the doctrine and applying it. The examples

enumerated at page 24 of the Register's 1961 Report, while by no means

exhaustive, give some idea of the sort of activities the courts might

regard as fair use under the circumstances: "quotation of excerpts in a

review or criticism for purposes of illustration or comment; quotation

of short passages in a scholarly or technical work, for illustration or

clarification of the author's observations; use in a parody of some of

the content of the work parodied; summary of an address or article, with

brief quotations, in a news report; reproduction by a library of a

portion of a work to replace part of a damaged copy; reproduction by a

teacher or student of a small part of a work to illustrate a lesson;

reproduction of a work in legislative or judicial proceedings or

reports; incidental and fortuitous reproduction, in a newsreel or

broadcast, of a work located in the scene of an event being reported."

Although the courts have considered and ruled upon the fair use doctrine

over and over again, no real definition of the concept has ever emerged.

Indeed, since the doctrine is an equitable rule of reason, no generally

applicable definition is possible, and each case raising the question

must be decided on its own facts. On the other hand, the courts have

evolved a set of criteria which, though in no case definitive or

determinative, provide some gauge for balancing the equities. These

criteria have been stated in various ways, but essentially they can all

be reduced to the four standards which have been adopted in section 107:

"(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 nature of the copyrighted work; (3) the amount and substantiality of

the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the

copyrighted work."

These criteria are relevant in determining whether the basic doctrine of

fair use, as stated in the first sentence of section 107, applies in a

particular case: "Notwithstanding the provisions of section 106, the

fair use of a copyrighted work, including such use by reproduction in

copies or phonorecords or by any other means specified by that section,

for purposes such as criticism, comment, news reporting, teaching

(including multiple copies for classroom use), scholarship, or research,

is not an infringement of copyright."

The specific wording of section 107 as it now stands is the result of a

process of accretion, resulting from the long controversy over the

related problems of fair use and the reproduction (mostly by

photocopying) of copyrighted material for educational and scholarly

purposes. For example, the reference to fair use--"by reproduction in

copies or phonorecords or by any other means"--is mainly intended to make

clear that the doctrine has as much application to photocopying and

taping as to older forms of use; it is not intended to give these kinds

of reproduction any special status under the fair use provision or to

sanction any reproduction beyond the normal and reasonable limits of

fair use. Similarly, the newly-added reference to "multiple copies for

classroom use" is a recognition that, under the proper circumstances of

fairness, the doctrine can be applied to reproductions of multiple

copies for the members of a class.

The Committee has amended the first of the criteria to be

considered--"the purpose and character of the use"--to state explicitly

that this factor includes a consideration of "whether such use is of a

commercial nature or is for non-profit educational purposes." This

amendment is not intended to be interpreted as any sort of not-for-

profit limitation on educational uses of copyrighted works. It is an

express recognition that, as under the present law, the commercial or

non-profit character of an activity, while not conclusive with respect to

fair use, can and should be weighed along with other factors in fair use

decisions.

*General intention behind the provision*

The statement of the fair use doctrine in section 107 offers some

guidance to users in determining when the principles of the doctrine

apply. However, the endless variety of situations and combinations of

circumstances that can rise in particular cases precludes the

formulation of exact rules in the statute. The bill endorses the purpose

and general scope of the judicial doctrine of fair use, but there is no

disposition to freeze the doctrine in the statute, especially during a

period of rapid technological change. Beyond a very broad statutory

explanation of what fair use is and some of the criteria applicable to

it, the courts must be free to adapt the doctrine to particular

situations on a case-by-case basis. Section 107 is intended to restate

the present judicial doctrine of fair use, not to change, narrow, or

enlarge it in any way.

*b. House Report: Statement of Intention as to Classroom Reproduction*

==================================================================

The House Report differs substantially from the Senate Report on

this point.

==================================================================

*(i) Introductory Statement*

*Intention as to classroom reproduction*

Although the works and uses to which the doctrine of fair use is

applicable are as broad as the copyright law itself, most of the

discussion of section 107 has centered around questions of classroom

reproduction, particularly photocopying. The arguments on the question

are summarized at pp. 30-31 of this Committee's 1967 report (H.R. Rep.

No. 83, 90th Cong., 1st Sess.), and have not changed materially in the

intervening years.

The Committee also adheres to its earlier conclusion, that "a specific

exemption freeing certain reproductions of copyrighted works for

educational and scholarly purposes from copyright control is not

justified." At the same time the Committee recognizes, as it did in

1967, that there is a "need for greater certainty and protection for

teachers." In an effort to meet this need the Committee has not only

adopted further amendments to section 107, but has also amended section

504(c) to provide innocent teachers and other non-profit users of

copyrighted material with broad insulation against unwarranted liability

for infringement. The latter amendments are discussed below in

connection with Chapter 5 of the bill.

In 1967 the Committee also sought to approach this problem by including,

in its report, a very thorough discussion of "the considerations lying

behind the four criteria listed in the amended section 107, in the

context of typical classroom situations arising today." This discussion

appeared on pp. 32-35 of the 1967 report, and with some changes has

been retained in the Senate report on S. 22 (S. Rep. No. 94-473, pp.

63-65). The Committee has reviewed this discussion, and considers that

it still has value as an analysis of various aspects of the problem.

At the Judiciary Subcommittee hearings in June 1975, Chairman

Kastenmeier and other members urged the parties to meet together

independently in an effort to achieve a meeting of the minds as to

permissible educational uses of copyrighted material. The response to

these suggestions was positive, and a number of meetings of three

groups, dealing respectively with classroon, reproduction of printed

material, music, and audio-visual material, were held 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 Hoc Committee of Educational Institutions and

Organizations on Copyright Law Revision, and of the Authors League of

America, Inc., and the Association of American Publishers, Inc., stated:

"You may remember that in our letter of March 8, 1976 we told you that

the negotiating teams representing authors and publishers and the Ad

Hoc Group had reached tentative agreement on guidelines to insert in

the Committee Report covering educational copying from books and

periodicals under Section 107 of H.R. 2223 and S. 22, and that as part

of that tentative agreement each side would accept the amendments to

Sections 107 and 504 which were adopted by your Subcommittee on March

3,1976.

"We are now happy to tell you that the agreement has been approved by the

principals and we enclose a copy herewith. We had originally intended to

translate the agreement into language suitable for inclusion in the

legislative report dealing with Section 107, but we have since been

advised by committee staff that this will not be necessary.

"As stated above, the agreement refers only to copying from books and

periodicals, and it is not intended to apply to musical or audiovisual

works."

The full text of the agreement is as follows:

AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING IN NOT-FOR-PROFIT

EDUCATIONAL INSTITUTIONS WITH RESPECT TO BOOKS AND PERIODICALS

The purpose of the following guidelines is to state the minimum and not

the maximum standards of educational fair use under Section 107 of H.R.

2223. The parties agree that the conditions determining the extent of

permissible copying for educational purposes may change in the future;

that certain types of copying permitted under these guidelines may not

be permissible in the future; and conversely that in the future other

types of copying not permitted under these guidelines may be permissible

under revised guidelines.

Moreover, the following statement of guidelines is not intended to limit

the types of copying permitted under the standards of fair use under

judicial decision and which are stated in Section 107 of the Copyright

Revision Bill. There may be instances in which copying which does not

fall within the guidelines stated below may nonetheless be permitted

under the criteria of fair use.

GUIDELINES

I. Single Copying for Teachers

A single copy may be made of any of the following by or for a teacher at

his or her individual request for his or her scholarly research or use

in teaching or preparation to teach a class:

A. A chapter from a book;

B. An article from a periodical or newspaper;

C. A short story, short essay or short poem, whether or not from a

collective work;

D. A chart, graph, diagram, drawing, cartoon or picture from a book,

periodical, or newspaper;

II. Multiple Copies for Classroom Use

Multiple copies (not to exceed in any event more than one copy per pupil

in a course) may be made by or for the teacher giving the course for

classroom use or discussion; provided that:

A. The copying meets the tests of brevity and spontaneity as defined

below; and,

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

C. Each copy includes a notice of copyright

Definitions

*Brevity*

(i) Poetry: (a) A complete poem if less than 250 words and if printed on

not more than two pages or, (b) from a longer poem, an excerpt of not

more than 250 words.

(ii) Prose: (a) Either a complete article, story or essay of less than

2,500 words, or (b) an excerpt from any prose work of not more than

1,000 words or 10% of the work, whichever is less, but in any event a

minimum of 500 words.

[Each of the numerical limits stated in "i" and "ii" above may be

expanded to permit the completion of an unfinished line of a poem or of

an unfinished prose paragraph.]

(iii) Illustration: One chart, graph, diagram, drawing, cartoon or

picture per book or per periodical issue.

(iv) "Special" works: Certain works in poetry, prose or in "poetic

prose" which often combine language with illustrations and which are

intended sometimes for children and at other times for a more general

audience fall short of 2,500 words in their entirety. Paragraph "ii"

above notwithstandiiig such "special works" may not be reproduced in

their entirety; however, an excerpt comprising not more than two of the

published pages of such special work and containing not more than 10% of

the words found in the text thereof, may be reproduced.

*Spontaneity*

(i) The copying is at the instance and inspiration of the individual

teacher, and

(ii) The inspiration and decision to use the work and the moment of its

use for maximum teaching effectiveness are so close in time that it

would be unreasonable to expect a timely reply to a request for

permission.

*Cumulative Effect*

(i) The copying of the material is for only one course 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 three from the same

collective work or periodical volume during one class term.

(iii) There shall not be more than nine instances of such multiple

copying for one course during one class term.

[The limitations stated in "ii" and "iii" above shall not apply to

current news periodicals and newspapers and current news sections of

other periodicals.]

*III. Prohibitions as to I and II Above*

Notwithstanding any of the above, the following shall be prohibited:

(A) Copying shall not be used to create or to replace or substitute for

anthologies, compilations or collective works. Such replacement or

substitution may occur whether copies of various works or excerpts

therefrom are accumulated or reproduced and used separately.

(B) There shall be no copying of or from works intended to be

"consumable" in the course of study or of teaching. These include

workbooks, exercises, standardized tests and test booklets and answer

sheets and like consumable material.

(a) substitute for the purchase of books, publishers' reprints or

periodicals;

(b) be directed by higher authority;

term to term.

(D) No charge shall be made to the student beyond the actual cost of the

photocopying.

Agreed MARCH 19, 1976.

Ad Hoc Committee on Copyright Law Revision:

BY SHELDON ELLIOTT STEINBACH.

Author-Publisher Group:

Authors League of America:

BY IRWIN KARP, Counsel.

Association of American Publishers, Inc.:

BY ALEXANDER C. HOFFMAN, Chairman, Copyright Committee.

(iii) Guidelines With Respect to Music

In a joint letter dated April 30,1976, representatives of the Music

Publishers' Association of the United States, Inc., the National Music

Publishers' Association, Inc., the Music Teachers National Association,

the Music Educators National Conference, the National Association of

Schools of Music, and the Ad Hoc Committee on Copyright Law Revision,

wrote to Chairman Kastenmeier as follows:

"During the hearings on H.R. 2223 in June 1975, you and several of your

subcommittee members suggested that concerned groups should work

together in developing guidelines which would be helpful to clarify

Section 107 of the bill.

"Representatives of music educators and music publishers delayed their

meetings until guidelines had been developed relative to books and

periodicals. Shortly after that work was completed and those guidelines

were forwarded to your subcommittee, representatives of the undersigned

music organizations met together with representatives of the Ad Hoc

Committee on Copyright Law Revision to draft guidelines relative to

music.

"We are very pleased to inform you that the discussions thus have been

fruitful on the guidelines which have been developed. Since private

music teachers are an important factor in music education, due

consideration has been given to the concerns of that group.

"We trust that this will be helpful in the report on the bill to clarify

Fair Use as it applies to music."

The text of the guidelines accompanying this letter is as follows:

GUIDELINES FOR EDUCATIONAL USES OF MUSIC

The purpose of the following guidelines is to state the minimum and not

the maximum standards of educational fair use under Section 107 of HR

2223. The parties agree that the conditions determining the extent of

permissible copying for educational purposes may change in the future;

that certain types of copying permitted under these guidelines may not

be permissible in the future, and conversely that in the future other

types of copying not permitted under these guidelines may be permissible

under revised guidelines.

Moreover, the following statement of guidelines is not intended to limit

the types of copying permitted under the standards of fair use under

judicial decision and which are stated in Section 107 of the Copyright

Revision Bill. There may be instances in which copying which does not

fall within the guidelines stated below may nonetheless be permitted

under the criteria of fair use.

A. Permissible Uses

1. Emergency copying to replace purchased copies which for any reason

are not available for an imminent performance provided purchased

replacement copies shall be substituted in due course.

2. For academic purposes other than performance, single or multiple

copies of excerpts of works may be made, provided that the excerpts do

not comprise a part of the whole which would constitute a performable

unit such as a section [1], movement or aria, but in no case more than

10 percent of the whole work. The number of copies shall not exceed one

copy per pupil. [2]

3. Printed copies which have been purchased may be edited or simplified

provided that the fundamental character of the work is not distorted or

the lyrics, if any, altered or lyrics added if none exist.

4. A single copy of recordings of performances by students may be made

for evaluation or rehearsal purposes and may be retained by the

educational institution or individual teacher.

5. A single copy of a sound recording (such as a tape, disc or cassette)

of copyrighted music may be made from sound recordings owned by an

educational institution or an individual teacher for the purpose of

constructing aural exercises or examinations and may be retained by the

educational institution or individual teacher. (This pertains only to

the copyright of the music itself and not to any copyright which may

exist in the sound recording.)

B. Prohibitions

1. Copying to create or replace or substitute for anthologies,

compilations or collective works.

2. Copying of or from works intended to be "consumable" in the course

of study or of teaching such as workbooks, exercises, standardized

tests and answer sheets and like material.

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

4. Copying for the purpose of substituting for the purchase of music,

except as in A(1) and A(2) above.

5. Copying without inclusion of the copyright notice which appears on

the printed copy.

(iv) Discussion of Guidelines

The Committee appreciates and commends the efforts and the cooperative

ancl reasonable spirit of the parties who achieved the agreed guidelines

on books and periodicals and on music. Representatives of the American

Association of University Professors and of the Association of American

Law Schools have written to the Committee strongly criticizing the

guidelines, particularly with respect to multiple copying, as being too

restrictive with respect to classroom situations at the university and

graduate level. However, the Committee notes that the Ad Hoc group did

include representatives of higher education, that the stated "purpose of

the . . . guidelines is to state the minimum and not the maximum

standards of educational fair use" and that the agreement acknowledges

"there may be instances in which copying which does not fall within the

guidelines . . . may nonetheless be permitted under the criteria of fair

use."

The Committee believes the guidelines are a reasonable interpretation of

the minimum standards of fair use. Teachers will know that copying

within the guidelines is fair use. Thus, the guidelines serve the

purpose of fulfilling the need for greater certainty and protection for

teachers. The Committee expresses the hope that if there are areas

where standards other than these guidelines may be appropriate, the

parties will continue their efforts to provide additional specific

guidelines in the same spirit of good will and give and take that has

marked the discussion of this subject in recent months.

c. House Report: Additional Excerpts

=================================================================

Under the heading "Reproduction and uses for other purposes," the

House Report, at pages 72-74, parallels much of the material

appearing at pages 65-67 of the Senate Report under the same

heading, but with some differences.

=================================================================

The concentrated attention given the fair use provision in the context

of classroom teaching activities should not obscure its application in

other areas. It must be emphasized again that the same general standards

of fair use are applicable to all kinds of uses of copyrighted material,

although the relative weight to be given them will differ from case to

case.

* * *

A problem of particular urgency is that of preserving for posterity

prints of motion pictures made before 1942. Aside from the deplorable

fact that in a great many cases the only existing copy of a film has

been deliberately destroyed, those that remain are in immediate danger

of disintegration; they were printed on film stock with a nitrate base

that will inevitably decompose in time. The efforts of the Library of

Congress, the American Film Institute, and other organizations to rescue

and preserve this irreplaceable contribution to our cultural life are to

be applauded, and the making of duplicate copies for purposes of

archival preservation certanly falls within the scope of "fair use."

* * *

During the consideration of the revision bill in the 94th Congress it

was proposed that independent newsletters, as distinguished from house

organs and publicity or advertising publications, be given separate

treatment. It is argued that newsletters are particularly vulnerable to

mass photocopying, and that most newsletters have fairly modest

circulations. Whether the copying of portions of a newsletter is an act

of infringement or a fair use will necessarily turn on the facts of the

individual case. However, as a general principle, it seems clear that

the scope of the fair use doctrine should be considerably narrower in

the case of newsletters than in that of either mass-circulation

periodicals or scientific journals. The commercial nature of the user is

a significant factor in such cases: Copying by a profit-making user of

even a small portion of a newsletter may have a significant impact on

the commercial market for the work.

The Committee has examined the use of excerpts from copyrighted works in

the art work of calligraphers. The committee believes that a single copy

reproduction of an excerpt from a copyrighted work by a calligrapher for

a single client does not represent an infringement of copyright.

Likewise, a single reproduction of excerpts from a copyrighted work by a

student calligrapher or teacher in a learning situation would be a fair

use of the copyrighted work.

The Register of Copyrights has recommended that the committee report

describe the relationship between this section and the provisions of

section 108 relating to reproduction by libraries and archives. The

doctrine of fair use applies to library photocopying, and nothing

contained in section 108 "in any way affects the right of fair use." No

provision of section 108 is intended to take away any rights existing

under the fair use doctrine. To the contrary, section 108 authorizes

certain photocopying practices which may not qualify as a fair use.

The criteria of fair use are necessarily set forth in general terms. In

the application of the criteria of fair use to specific photocopying

practices of libraries, it is the intent of this legislation to provide

an appropriate balancing of the rights of creators, and the needs of

users.

3. Excerpts From Conference Report on Section 107

====================================================================

The following excerpt is reprinted from the Report of the

Conference Committee on the new copyright law (H.R. Rep. No. 94-1733,

page 70).

====================================================================

FAIR USE

Senate bill

The Senate bill, in section 107, embodied express statutory recognition

of the judicial doctrine that the fair use of a copyrighted work is not

an infringement of copyright. It set forth the fair use doctrine,

including four criteria for determining its applicability in particular

cases, in general terms.

House bill

The House bill amended section 107 in two respects: in the general

statement of the fair use doctrine it added a specific reference to

multiple copies for classroom use, and it amplified the statement of the

first of the criteria to be used in judging fair use (the purpose and

character of the use) by referring to the commercial nature or nonprofit

educational purpose of the use.

Conference substitute

The conference substitute adopts the House amendments. The conferees

accept as part of their understanding of fair use the Guidelines for

Classroom Copying in Not-for-Profit Educational Institutions with

respect to books and periodicals appearing at pp. 68-70 of the House

Report (H. Rept. No. 94-1476, as corrected at p. H 10727 of the

Congressional Record for September 21, 1976), and for educational uses

of music appearing at pp. 70-71 of the House report, as amended in the

statement appearing at p. H 10875 of the Congressional Record of

September 22, 1976. The conferees also endorse the statement concerning

the meaning of the word "teacher" in the guidelines for books and

periodicals, and the application of fair use in the case of use of

television programs within the confines of a nonprofit educational

institution for the deaf and hearing impaired, both of which appear on

p. H 10875 of the Congressional Record of September 22, 1976.

4. Excerpts From Congressional Debates

==================================================================

The following excerpts are reprinted from the Congressional Record

of September 22, 1976, including statements by Mr. Kastenmeier

(Chairman of the House Judiciary Subcommittee responsible for the

bill) on the floor of the House of Representatives.

==================================================================

MR. KASTENMElER.

* * *

Mr. Chairman, before concluding my remarks I would like to discuss

several questions which have been raised concerning the meaning of

several provisions of S. 22 as reported by the House Judiciary

Committee and of statements in the committee's report, No. 94-1476.

* * *

Another question involves the reference to "teacher" in the "Agreement

on Guidelines for Classroom Copying in Not-for-Profit Educational

Institutions" reproduced at pages 68-70 of the committee's report No.

94-1476 in connection with section 107. It has been pointed out that,

in planning his or her teaching on a day-to-day basis in a variety of

educational situations, an individual teacher will commonly consult with

instructional specialists on the staff of the school, such as reading

specialists, curriculum specialists, audiovisual directors, guidance

counselors, and the like. As long as the copying meets all of the other

criteria laid out in the guidelines, including the requirements for

spontaneity and the prohibition against the copying being directed by

higher authority, the committee regards the concept of "teacher" as

broad enough to include instructional specialists working in

consultation with actual instructors.

Also in consultation with section 107, the committee's attention has

been directed to the unique educational needs and problems of the

approximately 50,000 deaf and hearing-impaired students in the United

States, and the inadequacy of both public and commercial television to

serve their educational needs. It has been suggested that, as long as

clear-cut constraints are imposed and enforced, the doctrine of fair

use is broad enough to permit the making of an off-the-air fixation of a

television program within a non-profit educational institution for the

deaf and hearing impaired, the reproduction of a master and a work copy

of a captioned version of the original fixation, and the performance of

the program from the work copy within the confines of the institution.

In identifying the constraints that would have to be imposed within an

institution in order for these activities to be considered as fair use,

it has been suggested that the purpose of the use would have to be

non-commercial in every respect, and educational in the sense that it

serves as part of a deaf or hearing-impaired student's learning

environment within the institution, and that the institution would have

to insure that the master and work copy would remain in the hands of a

limited number of authorized personnel within the institution, would be

responsible for assuring against its unauthorized reproduction or

distribution, or its performance or retention for other than educational

purposes within the institution. Work copies of captioned programs could

be shared among institutions for the deaf abiding by the constraints

specified. Assuming that these constraints are both imposed and

enforced, and that no other factors intervene to render the use unfair,

the committee believes that the activities described could reasonably be

considered fair use under section 107.

* * *

Mr. Chairman, because of the complexity of this bill and the delicate

balances which it creates among competing economic interests, the

committee will resist extensive amendment of this bill. On behalf of the

committee I would urge all of my colleagues to vote favorably on Sec.

22.

Mr. SKUBlTZ. Mr. Chairman, will the gentleman yield?

Mr. KASTENMEIER. I am happy to yield to my friend, the gentleman from

Kansas.

Mr. SKUBITZ. Mr. Chairman, I thank my friend, the gentleman from

Wisconsin, for yielding.

Mr. Chairman, I have received a great deal of mail from the

schoolteachers in my district who are particularly concerned about

section 107--fair use--the fair use of copyrighted material. Having

been a former schoolteacher myself, I believe they make a good point and

there is a sincere fear on their part that, because of the vagueness or

ambiguity in the bill's treatment of the doctrine of fair use, they may

subject themselves to liability for an unintentional infringement of

were trained.

The vast majority of teachers in this country would not knowingly

infringe upon a person's copyright, but, as any teacher can appreciate,

there are times when information is needed and is available, but it may

be literally impossible to locate the right person to approve the use of

that material and the purchase of such would not be feasible and, in the

meantime, the teacher may have lost that "teachable moment."

Did the subcommittee take these problems into consideration and did they

do anything to try and help the teachers to better understand section

107?

Have the teachers been protected by this section 107?

Mr. KASTENMElER. Mr. Chairman, in response to the gentleman's question

and his observations preceding the question, I would say, indeed they

have.

Over the years this has been one of the most difficult questions. It is

a problem that I believe has been very successfully resolved.

Section 107 on "Fair Use" has, of course, restated four standards, and

these standards are, namely: The purpose and character of the use of the

material; the nature of the copyrighted work; the amount and

substantiality of the portion used in relation to the copyrighted work

as a whole; and the effect of the use upon the potential market for or

value of the copyrighted work.

These are the four "Fair Use" criteria. These alone were not adequate to

guide teachers, and I am sure the gentleman from Kansas (Mr. SKUBITZ)

understands that as a schoolteacher himself.

Therefore, the educators, the proprietors, and the publishers of

educational materials did, at the committee's long insistence, get

together. While there were many fruitless meetings, they did finally get

together.

Mr. Chairman, I will draw the gentleman's attention to pages 65 through

74 in the report which contain extensive guidelines for teachers. I am

very happy to say that there was an agreement reached between teachers

and publishers of educational material, and that today the National

Education Association supports the bill, and it has, in fact, sent a

telegram which at the appropriate time I will make a part of the RECORD

and which requests support for the bill in its present form, believing

that it has satisfied the needs of the teachers:

***

NATIONAL EDUCATION ASSOCIATION,

Washington, D.C., September 10, 1976.

National Education Association urgently requests your support of the

Committee. This compromise effort represents a major breakthrough in

establishing equitable legal guidelines for the use of copyright

materials for instructional and research purposes. We ask your support

of the committee bill without amendments.

JAMES W. GREEN,

Assistant Director for Legislation.

***

Mr. SKUBITZ. Mr. Chairman, if the gentleman will

yield further, then the NEA is satisfied with the language

in the bill as it now stands; is that correct?

Mr. KASTENMEIER. The gentleman is correct.

Mr. SKUBlTZ. Mr. Chairman, I thank the gentleman.

-----------------------------------------

D. REPRODUCTION BY LIBRARIES AND ARCHIVES

-----------------------------------------

1. Text of Section 108

===============================================================

The following is a reprint of the entire text of section 108 of

title 17, United States Code.

===============================================================

Section 108. Limitations on exclusive rights:

*Reproduction by libraries and archives*

(a) Notwithstanding the provisions of section 106, it is not an

infringement of copyright for a library or archives, or any of its

employees acting within the scope of their employment, to reproduce no

more than one copy or phonorecord of a work, or to distribute such copy

or phonorecord, under the conditions specified by this section, if--

(1) the reproduction or distribution is made without any purpose of

direct or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the

public, or (ii) available not only to researchers affiliated with the

library or archives or with the institution of which it is a part, but

also to other persons doing research in a specialized field; and

(3) the reproduction or distribution of the work includes a notice of

(b) The rights of reproduction and distribution under this section apply

to a copy or phonorecord of an unpublished work duplicated in facsimile

form solely for purposes of preservation and security or for deposit for

research use in another library or archives of the type described by

clause (2) of subsection (a), if the copy or phonorecord reproduced is

currently in the collections of the library or archives.

phonorecord of a published work duplicated in facsimile form solely for

the purpose of replacement of a copy or phonorecord that is damaged,

deteriorating, lost, or stolen, if the library or archives has, after a

reasonable effort, determined that an unused replacement cannot be

obtained at a fair price.

(d) The rights of reproduction and distribution under this section apply

to a copy, made from the collection of a library or archives where the

user makes his or her request or from that of another library or

archives, of no more than one article or other contribution to a

copyrighted collection or periodical issue, or to a copy or phonorecord

of a small part of any other copyrighted work, if--

(1) the copy or phonorecord becomes the property of the user, and the

library or archives has had no notice that the copy or phonorecord would

be used for any purpose other than private study, scholarship, or

research; and

(2) the library or archives displays prominently, at the place where

orders are accepted, and includes on its order form, a warning of

Copyrights shall prescribe by regulation.

(e) The rights of reproduction and distribution under this section apply

to the entire work, or to a substantial part of it, made from the

collection of a library or archives where the user makes his or her

request or from that of another library or archives, if the library or

archives. has first determined, on the basis of a reasonable

investigation, that a copy or phonorecord of the copyrighted work cannot

be obtained at a fair price, if--

(1) the copy or phonorecord becomes the property of the user, and the

library or archives has had no notice that the copy or phonorecord would

be used for any purpose other than private study, scholarship, or

research; and

(2) the library or archives displays prominently, at the place where

orders are accepted, and includes on its order form, a warning of

Copyrights shall prescribe by regulation.

(f) Nothing in this section--

(1) shall be construed to impose liability for copyright infringement

upon a library or archives or its employees for the unsupervised use of

reproducing equipment located on its premises: Provided, That such

equipment displays a notice that the making of a copy may be subject to

the copyright law;

(2) excuses a person who uses such reproducing equipment or who requests

a copy or phonorecord under subsection (d) from liability for copyright

infringement for any such act, or for any later use of such copy or

phonorecord, if it exceeds fair use as provided by section 107;

(3) shall be construed to limit the reproduction and distribution by

lending of a limited number of copies and excerpts by a library or

archives of an audiovisual news program, subject to clauses (1), (2),

and (3) of subsection (a); or

(4) in any way affects the right of fair use as provided by section 107,

or any contractual obligations assumed at any time by the library or

archives when it obtained a copy or phonorecord of a work in its

collections.

(g) The rights of reproduction and distribution under this section

extend to the isolated and unrelated reproduction or distribution of a

single copy or phonorecord of the same material on separate occasions,

but do not extend to cases where the library or archives, or its

employee--

(1) is aware or has substaiitial reason to believe that it is engaging

in the related or concerted reproduction or distribution of multiple

copies or phonorecords of the same material, whether made on one

occasion or over a period of time, and whether intended for aggregate

use by one or more individuals or for separate use by the individual

members of a group; or

(2) engages in the systematic reproduction or distribution of single or

multiple copies or phonorecords of material described in subsection (d):

Provided, That nothing in this clause prevents a library or archives

from participating in interlibrary arrangements that do not have, as

their purpose or effect, that the library or archives receiving such

copies or phonorecords for distribution does so in such aggregate

quantities as to substitute for a subscription to or purchase of such

work.

(h) The rights of reproduction and distribution under this section do

not apply to a musical work, a pictorial, graphic or sculptural work, or

a motion picture or other audiovisual work other than an audiovisual

work dealing with news, except that no such limitation shall apply with

respect to rights granted by subsections (b) and (c), or with respect to

pictorial or graphic works published as illustrations, diagrams, or

similar adjuncts to works of which copies are reproduced or distributed

in accordance with subsections (d) and (e).

2. Excerpts From Senate Report on Section 108

===================================================================

The following excerpts are reprinted from the 1975 Senate Report 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 from the later House Report are reprinted in

this booklet. Where the 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 limitation of section 108 to reproduction and distribution by

libraries and archives "without any purpose of direct or indirect

commercial advantage" is intended to preclude a library or archives in a

profit-making organization from providing photocopies of copyrighted

materials to employees engaged in furtherance of the organization's

commercial enterprise, unless such copying qualifies as a fair use, or

the organization has obtained the necessary copyright licenses. A

commercial organization should purchase the number of copies of a work

that it requires, or obtain the consent of the copyright owner to the

making of the photocopies.

b. Senate Report: Discussion of Multiple Copies and Systematic

Reproduction

*Multiple copies and systematic reproduction*

Subsection (g) provides that the rights granted by this section extend

only to the "isolated and unrelated reproduction of a single copy," but

this section does not authorize the related or concerted reproduction of

multiple copies of the same material whether made on one occasion or

over a period of time, and whether intended for aggregate use by one

individual or for separate use by the individual members of a group. For

example, if a college professor instructs his class to read an article

from a copyrighted journal, the school library would not be permitted,

under subsection (g), to reproduce copies of the article for the members

of the class.

Subsection (g) also provides that section 108 does not authorize the

systematic reproduction or distribution of copies or phonorecords of

articles or other contributions to copyrighted collections or

periodicals or of small parts of other copyrighted works whether or not

multiple copies are reproduced or distributed. Systematic reproduction

or distribution occurs when a library makes copies of such materials

available to other libraries or to groups of users under formal or

informal arrangements whose purpose or effect is to have the reproducing

library serve as their source of such material. Such systematic

reproduction and distribution, as distinguished from isolated and

unrelated reproduction or distribution, may substitute the copies

reproduced by the source library for subscriptions or reprints or other

copies which the receiving libraries or users might otherwise have

purchased for themselves, from the publisher or the licensed reproducing

agencies.

While it is not possible to formulate specific definitions of

"systematic copying," the following examples serve to illustrate some

of the copying prohibited by subsection (g).

(1) A library with a collection of journals in biology informs other

libraries with similar collections that it will maintain and build its

own collection and will make copies of articles from these journals

available to them and their patrons on request. Accordingly, the other

libraries discontinue or refrain from purchasing subscriptions to these

journals and fulfill their patrons' requests for articles by obtaining

photocopies from the source library.

(2) A research center employing a number of scientists and technicians

subscribes to one or two copies of needed periodicals. By reproducing

photocopies of articles the center is able to make the material in

these periodicals available to its staff in the same manner which

otherwise would have required multiple subscriptions.

(3) Several branches of a library system agree that one branch will

subscribe to particular journals in lieu of each branch purchasing its

own subscriptions, and the one subscribing branch will reproduce copies

of articles from the publication for users of the other branches.

The committee believes that section 108 provides an appropriate

statutory balancing of the rights of creators and the needs of users.

However, neither a statute nor legislative history can specify precisely

which library photocopying practices constitute the making of "single

copies" as distinguished from "systematic reproduction." Isolated single

spontaneous requests must be distinguished from "systematic

reproduction." The photocopying needs of such operations as multi-county

regional systems must be met. The committee therefore recommends that

representatives of authors, book and periodical publishers and other

owners of copyrighted material meet with the library community to

formulate photocopying guidelines to assist library patrons and

employees. Concerning library photocopying practices not authorized by

this legislation, the committee recommends that workable clearance and

licensing procedures be developed.

It is still uncertain how far a library may go under the Copyright Act

of 1909 in supplying a photocopy of copyrighted material in its

collection. The recent case of The Williams and Wilkins Company v. The

United States failed to significantly illuminate the application of the

fair use doctrine to library photocopying practices. Indeed, the opinion

of the Court of Claims said the Court was engaged in "a 'holding

Operation' in the interim period before Congress enacted its preferred

solution."

While the several opinions in the Wilkins case have given the Congress

little guidance as to the current state of the law on fair use, these

opinions provide additional support for the balanced resolution of the

photocopying issue adopted by the Senate last year in S. 1361 and

preserved in section 108 of this legislation. As the Court of Claims

opinion succinctly stated "there is much to be said on all sides."

In adopting these provisions on library photocopying, the committee is

aware that through such programs as those of the National Commission on

Libraries and Information Science there will be a significant evolution

in the functioning and services of libraries. To consider the possible

need for changes in copyright law and procedures as a result of new

technology, a National Commission on New Technological Uses of

Copyrighted Works has been established (Public Law 93-573).

3. Excerpts From House Report on Section 108

====================================================================

The following excerpts are reprinted from the House Report on the

new copyright law (H.R. Rep. No. 94-1476, pages 74-79). All of the

House Report's discussion of section 108 is reprinted here;

similarities and differences between the House and Senate Reports on

particular points will be noted below.

====================================================================

a. House Report: Introductory Statement

=====================================================================

This paragraph is substantially the same in the Senate and House

Reports.

=====================================================================

Notwithstanding the exclusive rights of the owners of copyright, section

108 provides that under certain conditions it is not an infringement of

within the scope of their employment, to reproduce or distribute not

more than one copy or phonorecord of a work, provided (1) the

reproduction or distribution is made without any purpose of direct or

indirect commercial advantage and (2) the collections of the library or

archives are open to the public or available not only to researchers

affiliated with the library or archives, but also to other persons doing

research in a specialized field, and (3) the reproduction or

distribution of the work includes a notice of copyright.

b. House Report: Discussion of Libraries and Archives in Profit-Making

Institutions

===================================================================

The Senate and House Reports differ substantially on this point.

The Senate Report's discussion is reprinted at page 17, above.

===================================================================

Under this provision, a purely commercial enterprise could not establish

a collection of copyrighted works, call itself a library or archive, and

engage in for-profit reproduction and distribution of photocopies.

Similarly, it would not be possible for a non-profit institution, by

means of contractual arrangements with a commercial copying enterprise,

to authorize the enterprise to carry out copying and distribution

functions that would be exempt if conducted by the non-profit

institution itself.

The reference to "indirect commercial advantage" has raised questions as

to the status of photocopying done by or for libraries or archival

collections within industrial, profitmaking, or proprietary institutions

(such as the research and development departments of chemical,

pharmaceutical, automobile, and oil corporations, the library of a

propriatary hospital, the collections owned by a law or medical

partnership, etc.).

There is a direct interrelationship between this problem and the

prohibitions against "multiple" and "systematic" photocopying in section

108 (g) (1) and (2). Under section 108, a library in a profit-making

organization would not be authorized to:

(a) use a single subscription or copy to supply its employees with

multiple copies of material relevant to their work; or

(b) use a single subscription or copy to supply its employees, on

request, with single copies of material relevant to their work, where

the arrangement is "systematic" in the sense of deliberately

substituting photocopying for subscription or purchase; or

such aggregate quantities as to substitute for subscriptions or

purchase of material needed by employees in their work.

Moreover, a library in a profit-making organization could not evade

these obligations by installing reproducing equipment on its premises

for unsupervised use by the organization's staff.

Isolated, spontaneous making of single photocopies by a library in a

for-profit organization, without any systematic effort to substitute

photocopying for subscriptions or purchases, would be covered by section

108, even though the copies are furnished to the employees of the

organization for use in their work. Similarly, for-profit libraries

could participate in interlibrary arrangements for exchange of

photocopies, as long as the reproduction or distribution was not

"systematic." These activities, by themselves, would ordinarily not be

considered "for direct or indirect commercial advantage," since the

"advantage" referred to in this clause must attach to the immediate

commercial motivation behind the reproduction or distribution itself,

rather than to the ultimate profit-making motivation behind the

enterprise in which the library is located. On the other hand, section

108 would not excuse reproduction or distribution if there were a

commercial motive behind the actual making or distributing of the

copies, if multiple copies were made or distributed, or if the

photocopying activities were "systematic" in the sense that their aim

was to substitute for subscriptions or purchases.

c. House Report: Rights of Reproduction and Distribution Under

Section 108

====================================================================

The following paragraphs are closely similar in the Senate and House

Reports.

====================================================================

The rights of reproduction and distribution under section 108 apply in

the following circumstances:

*Archival reproductions*

Subsection (b) authorizes the reproduction and distribution of a copy or

phonorecord of an unpublished work duplicated in facsimile form solely

for purposes of preservation and security, or for deposit for research

use in another library or archives, if the copy or phonorecord

reproduced is currently in the collections of the first library or

archives. Only unpublished works could be reproduced under this

exemption, but the right would extend to any type of work, including

photographs, motion pictures and sound recordings.

Under this exemption, for example, a repository could make photocopies

of manuscripts by microfilm or electrostatic process, but could not

reproduce the work in "machine-readable" language for storage in an

information system.

*Replacement of damaged copy*

Subsection (c) authorizes the reproduction of a published work

duplicated in facsimile form solely for the purpose of replacement of a

copy or phonorecord that is damaged, deteriorating, lost or stolen, if

the library or archives has, after a reasonable effort, determined that

an unused replacement cannot be obtained at a fair price. The scope and

nature of a reasonable investigation to determine that an unused

replacement cannot be obtained will vary according to the circumstances

of a particular situation. It will always require recourse to

commonly-known trade sources in the United States, and in the normal

situation also to the publisher or other copyright owner (if such owner

can be located at the address listed in the copyright registration), or

an authorized reproducing service.

*Articles and small excerpts*

Subsection (d) authorizes the reproduction and distribution of a copy of

not more than one article or other contribution to a copyrighted

collection or periodical issue, or of a copy or phonorecord of a small

part of any other copyrighted work. The copy or phonorecord may be made

by the library where the user makes his request or by another library

pursuant to an interlibrary loan. It is further required that the copy

become the property of the user, that the library or archives have no

notice that the copy would be used for any purposes other than private

study, scholarship or research, and that the library or archives display

prominently at the place where reproduction requests are accepted, and

includes in its order form, a warning of copyright in accordance with

requirements that the Register of Copyrights shall prescribe by

regulation.

*Out-of-print works*

Subsection (e) authorizes the reproduction and distribution of a copy or

phonorecord of an entire work under certain circumstances, if it has

been established that a copy cannot be obtained at a fair price. The

copy may be made by the library where the user makes his request or by

another library pursuant to an interlibrary loan. The scope and nature

of a reasonable investigation to determine that an unused copy cannot be

obtained will vary according to the circumstances of a particular

situation. It will always require recourse to commonly-known trade

sources in the United States, and in the normal situation also to the

publisher or other copyright owner (if the owner can be located at the

address listed in the copyright registration), or an authorized

reproducing service. It is further required that the copy become the

property of the user, that the library or archives have no notice that

the copy would be used for any purpose other than private study,

scholarship, or research, and that the library or archives display

prominently at the place where reproduction requests are accepted, and

include on its order form, a warning of copyright in accordance with

requirements that the Register of Copyrights shall prescribe by

regulation.

d. House Report: General Exemptions for Libraries and Archives

===================================================================

Parts of the following paragraphs are substantially similar in the

Senate and House Reports. Differences in the House Report on certain

points reflect certain amendments in section 108(f) and elsewhere

in the Copyright Act.

===================================================================

*General exemptions*

Clause (1) of subsection (f) specifically exempts a library or archives

or its employees from liability for the unsupervised use of reproducing

equipment located on its premises, provided that the reproducing

equipment displays a notice that the making of a copy may be subject to

the copyright law. Clause (2) of subsection (f) makes clear that this

exemption of the library or archives does not extend to the person using

such equipment or requesting such copy if the use exceeds fair use.

Insofar as such person is concerned the copy or phonorecord made is not

considered "lawfully" made for purposes of sections 109, 110 or other

provisions of the title.

Clause (3) provides that nothing in section 108 is intended to limit the

reproduction and distribution by lending of a limited number of copies

and excerpts of an audio-visual news program. This exemption is intended

to apply to the daily newscasts of the national television networks,

which report the major events of the day. It does not apply to

documentary (except documentary programs involving news reporting as

that term is used in section 107), magazine-format or other public

affairs broadcasts dealing with subjects of general interest to the

viewing public.

The clause was first added to the revision bill in 1974 by the adoption

of an amendment proposed by Senator Baker. It is intended to permit

libraries and archives, subject to the general conditions of this

section, to make off-the-air videotape recordings of daily network

newscasts for limited distribution to scholars and researchers for use

in research purposes. As such, it is an adjunct to the American

Television and Radio Archive established in Section 113 of the Act which

will be the principal repository for television broadcast material,

including news broadcasts. The inclusion of language indicating that

such material may only be distributed by lending by the library or

archive is intended to preclude performance, copying, or sale, whether

or not for profit, by the recipient of a copy of a television broadcast

taped off-the-air pursuant to this clause.

Clause (4), in addition to asserting that nothing contained in section

108 "affects the right of fair use as provided by section 107," also

provides that the right of reproduction granted by this section does

not override any contractual arrangements assumed by a library or

archives when it obtained a work for its collections. For example, if

there is an express contractual prohibition against reproduction for

any purpose, this legislation shall not be construed as justifying a

violation of the contract. This clause is intended to encompass the

situation where an individual makes papers, manuscripts or other works

available to a library with the understanding that they will not be

reproduced.

It is the intent of this legislation that a subsequent unlawful use by a

user of a copy or phonorecord of a work lawfully made by a library,

shall not make the library liable for such improper use.

e. House Report: Discussion of Multiple Copies and Systematic

Reproduction

=====================================================================

The Senate and House Reports differ substantially on this point. The

Senate Report's discussion is reprinted at page 17. above.

=====================================================================

*Multiple copies and systematic reproduction*

Subsection (g) provides that the rights granted by this section extend

only to the "isolated and unrelated reproduction of a single copy or

phonorecord of the same material on separate occasions." However, this

section does not authorize the related or concerted reproduction of

multiple copies or phonorecords of the same material, whether made on

one occasion or over a period of time, and whether intended for

aggregate use by one individual or for separate use by the individual

members of a group.

With respect to material described in subsection (d)--articles or other

contributions to periodicals or collections, and small parts of other

copyrighted works--subsection (g) (2) provides that the exemptions of

section 108 do not apply if the library or archive engages in

"systematic reproduction or distribution of single or multiple copies or

phonorecords." This provision in S.22 provoked a storm of controversy,

centering around the extent to which the restrictions on "systematic"

activities would prevent the continuation and development of

interlibrary networks and other arrangements involving the exchange of

photocopies. After thorough consideration, the Committee amended section

108 (g) (2) to add the following proviso:

Provided, that nothing in this clause prevents a library or archives

from participating in interlibrary arrangements that do not have, as

their purpose or effect, that the library or archives receiving such

copies or phonorecords for distribution does so in such aggregate

quantities as to substitute for a subscription to or purchase of such

work.

In addition, the Committee added a new subsection (i) to section 108,

requiring the Register of Copyrights, five years from the effective date

of the new Act and at five year intervals thereafter, to report to

Congress upon "the extent to which this section has achieved the

intended statutory balancing of the rights of creators, and the needs of

users," and to make appropriate legislative or other recommendations. As

noted in connection with section 107, the Committee also amended section

504(c) in a way that would insulate librarians from unwarranted

liability for copyright infringement; this amendment is discussed below.

The key phrases in the Committee's amendment of section 108(g) (2) are

"aggregate quantities" and "substitute for a subscription to or purchase

of" a work. To be implemented effectively in practice, these provisions

will require the development and implementation of more-or-less specific

guidelines establishing criteria to govern various situations. The

National Commission on New Technological Uses of Copyrighted Works

(CONTU) offered to provide good offices in helping to develop these

guidelines. This offer was accepted and, although the final text of

guidelines has not yet been achieved, the Committee has reason to hope

that, within the next month, some agreement can be reached on an initial

set of guidelines covering practices under section 108(g)(2).

f. House Report: Discussion of Works Excluded

==================================================================

The House Report's discussion of section 108(h) is longer than the

corresponding paragraph in the Senate Report, and reflects certain

amendments in the subsection.

==================================================================

*Works excluded*

Subsection (h) provides that the rights of reproduction and distribution

under this section do not apply to a musical work, a pictorial, graphic

or sculptural work, or a motion picture or other audiovisual work other

than "an audiovisual work dealing with news." The latter term is

intended as the equivalent in meaning of the phrase "audio-visual news

program" in section 108 (f) (3). The exclusions under subsection (h) do

not apply to archival reproduction under subsection (b), to replacement

of damaged or lost copies or phonorecords under subsection (c), or to

"pictorial or graphic works published as illustrations, diagrams, or

similar adjuncts to works of which copies are reproduced or distributed

in accordance with subsections (d) and (e)."

Although subsection (h) generally removes musical, graphic, and

audiovisual works from the specific exemptions of section 108, it is

important to recognize that the doctrine of fair use under section 107

remains fully applicable to the photocopying or other reproduction of

such works. In the case of music, for example, it would be fair use for

a scholar doing musicological research to have a library supply a copy

of a portion of a score or to reproduce portions of a phonorecord of a

work. Nothing in section 108 impairs the applicability of the fair use

doctrine to a wide variety of situations involving photocopying or other

reproduction by a library of copyrighted material in its collections,

where the user requests the reproduction for legitimate scholarly or

research purposes.

4. Excerpts From Conference Report

=====================================================================

The following excerpt is reprinted from the Report of the Conference

Committee on the new copyright law (H.R. Rep. No. 94-1733, pages

70-74).

=====================================================================

a. Conference Report: Introductory Discussion of Section 108

REPRODUCTION BY LIBRARIES AND ARCHIVES

Senate bill

Section 108 of the Senate bill dealt with a variety of situations

involving photocopying and other forms of reproduction by libraries and

archives. It specified the conditions under which single copies of

copyrighted material can be noncommercially reproduced and distributed,

but made clear that the privileges of a library or archives under the

section do not apply where the reproduction or distribution is of

multiple copies or is "systematic." Under subsection (f), the section

was not to be construed as limiting the reproduction and distribution,

by a library or archive meeting the basic criteria of the section, of a

limited number of copies and excerpts of an audiovisual news program.

House bill

The House bill amended section 108 to make clear that, in cases

involving interlibrary arrangements for the exchange of photocopies, the

activity would not be considered "systematic" as long as the library or

archives receiving the reproductions for distribution does not do so in

such aggregate quantities as to substitute for a subscription to or

purchase of the work. A new subsection (i) directed the Register of

Copyrights, by the end of 1982 and at five-year intervals thereafter, to

report on the practical success of the section in balancing the various

interests, and to make recommendations for any needed changes. With

respect to audiovisual news programs, the House bill limited the scope

of the distribution privilege confirmed by section 108 (f) (3) to cases

where the distribution takes the form of a loan.

b. Conference Report: Conference Committee Discussion of CONTU

Guidelines on Photocopying and Interlibrary Arrangements

Conference substitute

The conference substitute adopts the provisions of section 108 as

amended by the House bill. In doing so, the conferees have noted two

letters dated September 22, 1976, sent respectively to John L.

McClellan, Chairman of the Senate Judiciary Subcommittee on Patents,

Trademarks, and Copyrights, and to Robert W. Kastenmeier, Chairman of

the House Judiciary Subcommittee on Courts, Civil Liberties, and the

Administration of Justice. The letters, from the Chairman of the

National Commission on New Technological Uses of Copyrighted Works

(CONTU), Stanley H. Fuld, transmitted a document consisting of

"guidelines interpreting the provision in subsection 108 (g) (2) of S.

22, as approved by the House Committee on the Judiciary." Chairman

Fuld's letters explain that, following lengthy consultations with the

parties concerned, the Commission adopted these guidelines as fair and

workable and with the hope that the conferees on S. 22 may find that

they merit inclusion in the conference report. The letters add that,

although time did not permit securing signatures of the representatives

of the principal library organizations or of the organizations

representing publishers and authors on these guidelines, the Commission

had received oral assurances from these representatives that the

guidelines are acceptable to their organizations.

The conference committee understands that the guidelines are not

intended as, and cannot be considered, explicit rules or directions

governing any and all cases, now or in the future. It is recognized that

their purpose is to provide guidance in the most commonly-encountered

interlibrary photocopying situations, that they are not intended to be

limiting or determinative in themselves or with respect to other

situations, and that they deal with an evolving situation that will

undoubtedly require their continuous reevaluation and adjustment. With

these qualifications, the conference committee agrees that the

guidelines are a reasonable interpretation of the proviso of section 108

(g) (2) in the most common situations to which they apply today.

c. Conference Report: Reprint of CONTU Guidelines on Photocopying and

Interlibrary Arrangements

The text of the guidelines follows:

PHOTOCOPYING--INTERLIBRARY ARRANGEMENTS INTRODUCTION

Subsection 108(g)(2) of the bill deals, among other things, with limits

on interlibrary arrangements for photocopying. It prohibits systematic

photocopying of copyrighted materials but permits interlibrary

arrangements "that do not have, as their purpose or effect, that the

library or archives receiving such copies or phonorecords for

distribution does so in such aggregate quantities as to substitute for a

subscription to or purchase of such work."

The National Commission on New Technological Uses of Copyrighted Works

offered its good offices to the House and Senate subcommittees in

bringing the interested parties together to see if agreement could be

reached on what a realistic definition would be of "such aggregate

quantities." The Commission consulted with the parties and suggested the

interpretation which follows, on which there has been substantial

agreement by the principal library, publisher, and author organizations.

The Commission considers the guidelines which follow to be a workable

and fair interpretation of the intent of the proviso portion of

subsection 108(g)(2).

These guidelines are intended to provide guidance in the application of

section 108 to the most frequently encountered interlibrary case: a

library's obtaining from another library, in lieu of interlibrary loan,

copies of articles from relatively recent issues of periodicals--those

published within five years prior to the date of the request. The

guidelines do not specify what aggregate quantity of copies of an

article or articles published in a periodical, the issue date of which

is more than five years prior to the date when the request for the copy

thereof is made, constitutes a substitute for a subscription to such

periodical. The meaning of the proviso to subsection 108(g)(2) in such

case is left to future interpretation.

The point has been made that the present practice on interlibrary loans

and use of photocopies in lieu of loans may be supplemented or even

largely replaced by a system in which one or more agencies or

institutions, public or private, exist for the specific purpose of

providing a central source for photocopies. Of course, these guidelines

would not apply to such a situation.

GUIDELINES FOR THE PROVISO OF SUBSECTION 108 (G)(2)

1. As used in the proviso of subsection 108 (g) (2), the words ". . .

such aggregate quantities as to substitute for a subscription to or

purchase of such work" shall mean:

(a) with respect to any given periodical (as opposed to any given issue

of a periodical), filled requests of a library or archives (a

"requesting entity") within any calendar year for a total of six or more

copies of an article or articles published in such periodical within

five years prior to the date of the request. These guidelines

specifically shall not apply, directly or indirectly, to any request of

a requesting entity for a copy or copies of an article or articles

published in any issue of a periodical, the publication date of which is

more than five years prior to the date when the request is made. These

guidelines do not define the meaning, with respect to such a request, of

". . . such aggregate quantities as to substitute for a subscription to

[such periodical]".

(b) With respect to any other material described in subsection 108 (d),

(including fiction and poetry), filled requests of a requesting entity

within any calendar year for a total of six or more copies or

phonorecords of or from any given work (including a collective work)

during the entire period when such material shall be protected by

2. In the event that a requesting entity--

(a) shall have in force or shall have entered an order for a

subscription to a periodical, or

(b) has within its collection, or shall have entered an order for, a

copy or phonorecord of any other copyrighted work, material from either

category of which it desires to obtain by copy from another library or

archives (the "supplying entity"), because the material to be copied is

not reasonably available for use by the requesting entity itself, then

the fulfillment of such request shall be treated as though the

requesting entity made such copy from its own collection. A library or

archives may request a copy or phonorecord from a supplying entity only

under those circumstances where the requesting entity would have been

able, under the other provisions of section 108, to supply such copy

from materials in its own collection.

3. No request for a copy or phonorecord of any material to which these

guidelines apply may be fulfilled by the supplying entity unless such

request is accompanied by a representation by the requesting entity that

the request was made in conformity with these guidelines.

4. The requesting entity shall maintain records of all requests made by

it for copies or phonorecords of any materials to which these guidelines

apply and shall maintain records of the fulfillment of such requests,

which records shall be retained until the end of the third complete

calendar year after the end of the calendar year in which the respective

request shall have been made.

5. As part of the review provided for in subsection 108 (i), these

guidelines shall be reviewed not later than five years from the

effective date of this bill.

d. Conference Report: Discussion of "Audiovisual News Program"

The conference committee is aware that an issue has arisen as to the

meaning of the phrase "audiovisual news program" in section 108(f)(3).

The conferees believe that, under the provision as adopted in the

conference substitute, a library or archives qualifying under section

108 (a) would be free, without regard to the archival activities of the

Library of Congress or any other organization, to reproduce, on

videotape or any other medium of fixation or reproduction, local,

regional, or network newscasts, interviews concerning current news

events, and on-the-spot coverage of news events, and to distribute a

limited number of reproductions of such a program on a loan basis.

e. Conference Report: Discussion of Libraries and Archives in

Profit-Making Institutions

Another point of interpretation involves the meaning of "indirect

commercial advantage," as used in section 108(a)(1), in the case of

libraries or archival collections within industrial, profit-making, or

proprietary institutions. As long as the library or archives meets the

criteria in section 108

(a) and the other requirements of the section, including the

prohibitions against multiple and systematic copying in subsection (g),

the conferees consider that the isolated, spontaneous making of single

photocopies by a library or archives in a for-profit organization

without any commercial motivation, or participation by such a library or

archives in interlibrary arrangements, would come within the scope of

section 108.

5. Copyright Office Regulations Under Section 108

=================================================================

The following is the text of regulations adopted by the Copyright

Office to implement sections 108(d)(2) and 108(e) of the new

=================================================================