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+The Project Gutenberg EBook of Reproduction of Copyrighted Works By
+Educators and Librarians, by Library of Congress.  Copyright Office. and United States
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: Reproduction of Copyrighted Works By Educators and Librarians
+
+Author: Library of Congress.  Copyright Office.
+        United States
+
+Posting Date: August 8, 2009 [EBook #4318]
+Release Date: August, 2003
+First Posted: January 5, 2002
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK REPRODUCTION OF COPYRIGHTED WORKS ***
+
+
+
+
+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
+
+
+
+--------------------
+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
+Copyright Act of 1976 (S. Rep. No. 94-473, 94th Cong., 1st Sess.,
+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
+Copyright Law" (H.R. Rep. No. 94-1733, 94th Cong., 2d Sess., September
+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
+Copyright Office under section 108 dealing with warnings of copyright
+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
+   copyright law (H.R. Rep. No. 94-1476, pages 61-62). The text of the
+   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
+copyright, are cumulative and may overlap in some cases. Each of the
+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
+copyright except those of performance and display, extend to every kind
+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
+   copyright law (H.R. Rep. No. 94-1476, pages 65-74). The discussion
+   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
+copyright actions over the years, and there is ample case law
+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.
+
+(C) Copying shall not:
+
+(a) substitute for the purchase of books, publishers' reprints or
+periodicals;
+
+(b) be directed by higher authority;
+
+(c) be repeated with respect to the same item by the same teacher from
+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
+copyright when all they were trying to do was the job for which they
+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
+Copyright Revision bill, H.R. 2223, as reported by the Judiciary
+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
+copyright.
+
+(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.
+
+(c) The right of reproduction under this section applies to a copy or
+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
+copyright in accordance with requirements that the Register 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
+copyright in accordance with requirements that the Register 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
+copyright for a library or archives, or any of its employees acting
+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
+
+(c) use "interlibrary loan" arrangements for obtaining photocopies in
+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
+copyright.
+
+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
+   copyright law (37 Code of Federal Regulations Sec. 201.14).
+   =================================================================
+
+Section 201.14 Warnings of copyright for use by certain libraries and
+               archives.
+
+(a) Definitions. (1) A "Display Warning of Copyright" is a notice under
+paragraphs (d)(2) and (e)(2) of section 108 of Title 17 of the United
+States Code as amended by Pub. L. 94-553. As required by those sections
+the "Display Warning of Copyright" is to be displayed at the place where
+orders for copies or phonorecords are accepted by certain libraries and
+archives.
+
+(2) An "Order Warning of Copyright" is a notice under paragraphs (d) (2)
+and (e)(2) of section 108 of Title 17 of the United States Code as
+amended by Pub. L. 94-553. As required by those sections the "Order
+Warning of Copyright" is to be included on printed forms supplied by
+certain libraries and archives and used by their patrons for ordering
+copies or phonorecords.
+
+(b) Contents. A Display Warning of Copyright and an Order Warning of
+Copyright shall consist of a verbatim reproduction of the following
+notice, printed in such size and form and displayed in such manner as to
+comply with paragraph (c) of this section:
+
+                                 NOTICE
+               WARNING CONCERNING COPYRIGHT RESTRICTIONS
+
+The copyright law of the United States (Title 17, United States Code)
+governs the making of photocopies or other reproductions of copyrighted
+material.
+
+Under certain conditions specified in the law, libraries and archives
+are authorized to furnish a photocopy or other reproduction. One of
+these specified conditions is that the photocopy or reproduction is not
+to be "used for any purpose other than private study, scholarship, or
+research." If a user makes a request for, or later uses, a photocopy or
+reproduction for purposes in excess of "fair use," that user may be
+liable for copyright infringement.
+
+This institution reserves the right to refuse to accept a copying order
+if, in its judgment, fulfillment of the order would involve violation of
+copyright law.
+
+(c)Form and Manner of Use.
+
+(1) A Display Warning of Copyright shall be printed on heavy paper or
+other durable material in type at least 18 points in size, and shall be
+displayed prominently, in such manner and location as to be clearly
+visible, legible, and comprehensible to a casual observer within the
+immediate vicinity of the place where orders are accepted.
+
+(2) An Order Warning of Copyright shall be printed within a box located
+prominently on the order form itself, either on the front side of the
+form or immediately adjacent to the space calling for the name or
+signature of the person using the form. The notice shall be printed in
+type size no smaller than that used predominantly throughout the form,
+and in no case shall the type size be smaller than 8 points. The notice
+shall be printed in such manner as to be clearly legible,
+comprehensible, and readily apparent to a casual reader of the form.
+
+
+
+-----------------------------
+E. LIABILITY FOR INFRINGEMENT
+-----------------------------
+
+1. Text of Section 504
+
+   =====================================================================
+   The following is a reprint of the entire text of section 504 of title
+   17, United States Code. The special provisions affecting librarians
+   and educators are in subsection (c)(2).
+   =====================================================================
+
+Section 504. Remedies for infringement: Damages and profits. [3]
+
+(a) IN GENERAL.--Except as otherwise provided by this title, an
+infringer of copyright is liable for either--
+
+(1) the copyright owner's actual damages and any additional profits of
+the infringer, as provided by subsection (b); or
+
+(2) statutory damages, as provided by subsection (c).
+
+(b) ACTUAL DAMAGES AND PROFITS.--The copyright owner is entitled to
+recover the actual damages suffered by him or her as a result of the
+infringement, and any profits of the infringer that are attributable to
+the infringement and are not taken into account in computing the actual
+damages. In establishing the infringer's profits, the copyright owner
+is required to present proof only of the infringer's gross revenue, and
+the infringer is required to prove his or her deductible expenses and
+the elements of profit attributable to factors other than the
+copyrighted work.
+
+(c) STATUTORY DAMAGES.--
+
+(1) Except as provided by clause (2) of this subsection, the copyright
+owner may elect, at any time before final judgment is rendered, to
+recover, instead of actual damages and profits, an award of statutory
+damages for all infringements involved in the action, with respect to
+any one work, for which any one infringer is liable individually, or for
+which any two or more infringers are liable jointly and severally, in a
+sum of not less than $500 or more than $20,000 as the court considers
+just. For the purposes of this subsection, all the parts of a
+compilation or derivative work constitute one work.
+
+(2) In a case where the copyright owner sustains the burden of proving,
+and the court finds, that infringement was committed willfully, the
+court in its discretion may increase the award of statutory damages to a
+sum of not more than $100,000. In a case where the infringer sustains
+the burden of proving, and the court finds, that such infringer was not
+aware and had no reason to believe that his or her acts constituted an
+infringement of copyright, the court in its discretion may reduce the
+award of statutory damages to a sum of not less than $200. The court
+shall remit statutory damages in any case where an infringer believed
+and had reasonable grounds for believing that his or her use of the
+copyrighted work was a fair use under section 107, if the infringer was:
+(i) an employee or agent of a nonprofit educational institution,
+library, or archives acting within the scope of his or her employment
+who, or such institution, library, or archives itself, which infringed
+by reproducing the work in copies or phonorecords; or (ii) a public
+broadcasting entity which or a person who, as a regular part of the
+non-profit activities of a public broadcasting entity (as defined in
+subsection (g) of section 118) infringed by performing a published
+nondramatic literary work or by reproducing a transmission program
+embodying a performance of such a work.
+
+
+2. Excerpts From House Report on Section 504
+
+   =====================================================================
+   The following excerpts are reprinted from the House Report on the new
+   copyright law (H.R. Rep. No. 94-1476, pages 161-163). Material not of
+   immediate interest to librarians and educators has been omitted. Much
+   of the corresponding discussion in the Senate Report (S. Rep. No.
+   94-473, pages 143-145) is substantially the same; the House Report's
+   discussion of statutory damages applicable to librarians and
+   educators is new.
+   =====================================================================
+
+
+IN GENERAL
+
+A cornerstone of the remedies sections and of the bill as a whole is
+section 504, the provision dealing with recovery of actual damages,
+profits, and statutory damages. The two basic aims of this section are
+reciprocal and correlative: (1) to give the courts specific unambiguous
+directions concerning monetary awards, thus avoiding the confusion and
+uncertainty that have marked the present law on the subject, and, at the
+same time, (2) to provide the courts with reasonable latitude to adjust
+recovery to the circumstances of the case, thus avoiding some of the
+artificial or overly technical awards resulting from the language of the
+existing statute.
+
+Subsection (a) lays the groundwork for the more detailed provisions of
+the section by establishing the liability of a copyright infringer for
+either "the copyright owner's actual damages and any additional profits
+of the infringer," or statutory damages. Recovery of actual damages and
+profits under section 504 (b) or of statutory damages under section 504
+(c) is alternative and for the copyright owner to elect; as under the
+present law, the plaintiff in an infringement suit is not obliged to
+submit proof of damages and profits and may choose to rely on the
+provision for minimum statutory damages. However, there is nothing in
+section 504 to prevent a court from taking account of evidence
+concerning actual damages and profits in making an award of statutory
+damages within the range set out in subsection (c).
+
+*Actual damages and profits*
+
+In allowing the plaintiff to recover "the actual damages suffered by him
+or her as a result of the infringement," plus any of the infringer's
+profits "that are attributable to the infringement and are not taken
+into account in computing the actual damages," section 504 (b)
+recognizes the different purposes served by awards of damages and
+profits. Damages are awarded to compensate the copyright owner for
+losses from the infringement, and profits are awarded to prevent the
+infringer from unfairly benefiting from a wrongful act.***
+
+*Statutory damages*
+
+Subsection (c) of section 504 makes clear that the plaintiff's election
+to recover statutory damages may take place at any time during the trial
+before the court has rendered its final judgment. The remainder of
+clause (1) of the subsection represents a statement of the general rates
+applicable to awards of statutory damages.
+
+Clause (2) of section 504 (c) provides for exceptional cases in which
+the maximum award of statutory damages could be raised from $10,000 to
+$50,000, and in which the minimum recovery could be reduced from $250 to
+$100. The basic principle underlying this provision is that the courts
+should be given discretion to increase statutory damages in cases of
+willful infringement and to lower the minimum where the infringer is
+innocent. The language of the clause makes clear that in these
+situations the burden of proving willfulness rests on the copyright
+owner and that of proving innocence rests on the infringer, and that
+the court must make a finding of either willfulness or innocence in
+order to award the exceptional amounts.
+
+The "innocent infringer" provision of section 504(c)(2) has been the
+subject of extensive discussion. The exception, which would allow
+reduction of minimum statutory damages to $100 where the infringer "was
+not aware and had no reason to believe that his or her acts constituted
+an infringement of copyright," is sufficient to protect against
+unwarranted liability in cases of occasional or isolated innocent
+infringement, and it offers adequate insulation to users, such as
+broadcasters and newspaper publishers, who are particularly vulnerable
+to this type of infringement suit. On the other hand, by establishing a
+realistic floor for liability, the provision preserves its intended
+deterrent effect; and it would not allow an infringer to escape simply
+because the plaintiff failed to disprove the defendant's claim of
+innocence.
+
+In addition to the general "innocent infringer" provision clause (2)
+deals with the special situation of teachers, librarians, archivists,
+and public broadcasters, and the non-profit institutions of which they
+are a part. Section 504 (c)(2) provides that, where such a person or
+institution infringes copyrighted material in the honest belief that
+what they were doing constituted fair use, the court is precluded from
+awarding any statutory damages. It is intended that, in cases involving
+this provision, the burden of proof with respect to the defendant's good
+faith should rest on the plaintiff.
+
+
+3. Excerpts From Conference Report on Section 504
+
+   ====================================================================
+   The following excerpts are reprinted from the Report of the
+   Conference Committee on the new copyright law (H.R. Rep. No. 94-1733,
+   pages 79-80).
+   ====================================================================
+
+REMEDIES FOR COPYRIGHT INFRINGEMENT
+
+Senate bill
+
+Chapter 5 of the Senate bill dealt with civil and criminal infringement
+of copyright and the remedies for both. Subsection (c) of section 504
+allowed statutory damages within a stated dollar range, and clause (2)
+of that subsection provided for situations in which the maximum could
+be exceeded and the minimum lowered; the court was given discretion to
+reduce or remit statutory damages entirely where a teacher, librarian,
+or archivist believed that the infringing activity constituted fair
+use.***
+
+House bill
+
+Section 504(c)(2) of the House bill required the court to remit
+statutory damages entirely in cases where a teacher, librarian,
+archivist, or public broadcaster, or the institution to which they
+belong, infringed in the honest belief that what they were doing
+constituted fair use.***
+
+Conference substitute
+
+The conference substitute adopts the House amendments with respect to
+statutory damages in section 504(c)(2)***
+
+
+
+----------------------------------------------------------------
+F. GUIDELINES FOR OFF-AIR RECORDING OF BROADCAST PROGRAMMING FOR
+   EDUCATIONAL PURPOSES
+----------------------------------------------------------------
+
+   ====================================================================
+   The following excerpts are reprinted from the House Report on piracy
+   and counterfeiting amendments (H.R. 97-495, pages 8-9).
+   ====================================================================
+
+In March 1979, Congressman Robert Kastenmeier, Chairman of the House
+Subcommittee on Courts, Civil Liberties and Administration of Justice,
+appointed a Negotiating Committee consisting of representatives of
+educational organizations, copyright proprietors, and creative guilds
+and unions. The following guidelines reflect the Negotiating Committee's
+consensus as to the application of "fair use" to the recording,
+retention, and use of television broadcast programs for educational
+purposes. They specify periods of retention and use of such off-air
+recordings in classrooms and similar places devoted to instruction and
+for homebound instruction. The purpose of establishing these guidelines
+is to provide standards for both owners and users of copyrighted
+television programs.
+
+(1) The guidelines were developed to apply only to off-air recording by
+non-profit educational institutions.
+
+(2) A broadcast program may be recorded off-air simultaneously with
+broadcast transmission (including simultaneous cable transmission) and
+retained by a non-profit educational institution for a period not to
+exceed the first forty-five (45) consecutive calendar days after date of
+recording. Upon conclusion of such retention period, all off-air
+recordings must be erased or destroyed immediately. "Broadcast programs"
+are television programs transmitted by television stations for reception
+by the general public without charge.
+
+(3) Off-air recordings may be used once by individual teachers in the
+course of relevant teaching activities, and repeated once only when
+instructional reinforcement is necessary, in classrooms and similar
+places devoted to instruction within a single building, cluster, or
+campus, as well as in the homes of students receiving formalized home
+instruction, during the first ten (10) consecutive school days in the
+forty-five (45) day calendar day retention period. "School days" are
+school session days--not counting weekends, holidays, vacations,
+examination periods, or other scheduled interruptions--within the
+forty-five (45) calendar day retention period.
+
+(4) Off-air recordings may be made only at the request of, and used by,
+individual teachers, and may not be regularly recorded in anticipation
+of requests. No broadcast program may be recorded off-air more than once
+at the request of the same teacher, regardless of the number of times
+the program may be broadcast.
+
+(5) A limited number of copies may be reproduced from each off-air
+recording to meet the legitimate needs of teachers under these
+guidelines. Each such additional copy shall be subject to all provisions
+governing the original recording.
+
+(6) After the first ten (10) consecutive school days, off-air recording
+may be used up to the end of the forty-five (45) calendar day retention
+period only for teacher evaluation purposes, i.e., to determine whether
+or not to include the broadcast program in the teaching curriculum, and
+may not be used in the recording institution for student exhibition or
+any other non-evaluation purpose without authorization.
+
+(7) Off-air recordings need not be used in their entirety, but the
+recorded programs may not be altered from their original content.
+Off-air recordings may not be physically or electronically combined or
+merged to constitute teaching anthologies or compilations.
+
+(8) All copies of off-air recordings must include the copyright notice
+on the broadcast program as recorded.
+
+(9) Educational institutions are expected to establish appropriate
+control procedures to maintain the integrity of these guidelines.
+
+
+--------
+ENDNOTES:
+
+[1] Corrected from Congressional Record.
+
+[2] Editor's Note: As reprinted in the House Report, subsection A.2 of the
+Music Guidelines had consisted of two separate paragraphs, one dealing
+with multiple copies and a second dealing with single copies. In his
+introductory remarks during the House debates on S.22, the Chairman of
+the House Judiciary Subcommittee, Mr. Kastenmeier, announced that "the
+report, as printed, does not reflect a subsequent change in the joint
+guidelines which was described in a subsequent letter to me from a
+representative of [the signatory organizations]," and provided the
+revised text of subsection A.2. (122 CONG. REC. H 10875, Sept. 22,
+1976). The text reprinted here is the revised text.
+
+[3]  NOTE: Section 504 was amended in subsection (c) by the Act of October
+31, 1988, Pub. L. 100-568, 102 Stat. 2853, 2860.
+
+------------------------------------------------------------------------
+
+Library of Congress
+Copyright Office
+101 Independence Avenue, S.E.
+Washington, D.C. 20559-6000
+
+http://www.loc.gov/copyright
+
+September 1995 - 20,000
+WEB REV: June 1998
+
+
+
+
+
+
+
+
+
+End of the Project Gutenberg EBook of Reproduction of Copyrighted Works By
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+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
+Copyright Act of 1976 (S. Rep. No. 94-473, 94th Cong., 1st Sess.,
+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
+Copyright Law" (H.R. Rep. No. 94-1733, 94th Cong., 2d Sess., September
+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
+Copyright Office under section 108 dealing with warnings of copyright
+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
+   copyright law (H.R. Rep. No. 94-1476, pages 61-62). The text of the
+   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
+copyright, are cumulative and may overlap in some cases. Each of the
+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
+copyright except those of performance and display, extend to every kind
+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
+   copyright law (H.R. Rep. No. 94-1476, pages 65-74). The discussion
+   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
+copyright actions over the years, and there is ample case law
+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.
+
+(C) Copying shall not:
+
+(a) substitute for the purchase of books, publishers' reprints or
+periodicals;
+
+(b) be directed by higher authority;
+
+(c) be repeated with respect to the same item by the same teacher from
+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
+copyright when all they were trying to do was the job for which they
+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
+Copyright Revision bill, H.R. 2223, as reported by the Judiciary
+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
+copyright.
+
+(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.
+
+(c) The right of reproduction under this section applies to a copy or
+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
+copyright in accordance with requirements that the Register 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
+copyright in accordance with requirements that the Register 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
+copyright for a library or archives, or any of its employees acting
+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
+
+(c) use "interlibrary loan" arrangements for obtaining photocopies in
+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
+copyright.
+
+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
+   copyright law (37 Code of Federal Regulations Sec. 201.14).
+   =================================================================
+
+Section 201.14 Warnings of copyright for use by certain libraries and
+               archives.
+
+(a) Definitions. (1) A "Display Warning of Copyright" is a notice under
+paragraphs (d)(2) and (e)(2) of section 108 of Title 17 of the United
+States Code as amended by Pub. L. 94-553. As required by those sections
+the "Display Warning of Copyright" is to be displayed at the place where
+orders for copies or phonorecords are accepted by certain libraries and
+archives.
+
+(2) An "Order Warning of Copyright" is a notice under paragraphs (d) (2)
+and (e)(2) of section 108 of Title 17 of the United States Code as
+amended by Pub. L. 94-553. As required by those sections the "Order
+Warning of Copyright" is to be included on printed forms supplied by
+certain libraries and archives and used by their patrons for ordering
+copies or phonorecords.
+
+(b) Contents. A Display Warning of Copyright and an Order Warning of
+Copyright shall consist of a verbatim reproduction of the following
+notice, printed in such size and form and displayed in such manner as to
+comply with paragraph (c) of this section:
+
+                                 NOTICE
+               WARNING CONCERNING COPYRIGHT RESTRICTIONS
+
+The copyright law of the United States (Title 17, United States Code)
+governs the making of photocopies or other reproductions of copyrighted
+material.
+
+Under certain conditions specified in the law, libraries and archives
+are authorized to furnish a photocopy or other reproduction. One of
+these specified conditions is that the photocopy or reproduction is not
+to be "used for any purpose other than private study, scholarship, or
+research." If a user makes a request for, or later uses, a photocopy or
+reproduction for purposes in excess of "fair use," that user may be
+liable for copyright infringement.
+
+This institution reserves the right to refuse to accept a copying order
+if, in its judgment, fulfillment of the order would involve violation of
+copyright law.
+
+(c)Form and Manner of Use.
+
+(1) A Display Warning of Copyright shall be printed on heavy paper or
+other durable material in type at least 18 points in size, and shall be
+displayed prominently, in such manner and location as to be clearly
+visible, legible, and comprehensible to a casual observer within the
+immediate vicinity of the place where orders are accepted.
+
+(2) An Order Warning of Copyright shall be printed within a box located
+prominently on the order form itself, either on the front side of the
+form or immediately adjacent to the space calling for the name or
+signature of the person using the form. The notice shall be printed in
+type size no smaller than that used predominantly throughout the form,
+and in no case shall the type size be smaller than 8 points. The notice
+shall be printed in such manner as to be clearly legible,
+comprehensible, and readily apparent to a casual reader of the form.
+
+
+
+-----------------------------
+E. LIABILITY FOR INFRINGEMENT
+-----------------------------
+
+1. Text of Section 504
+
+   =====================================================================
+   The following is a reprint of the entire text of section 504 of title
+   17, United States Code. The special provisions affecting librarians
+   and educators are in subsection (c)(2).
+   =====================================================================
+
+Section 504. Remedies for infringement: Damages and profits. [3]
+
+(a) IN GENERAL.--Except as otherwise provided by this title, an
+infringer of copyright is liable for either--
+
+(1) the copyright owner's actual damages and any additional profits of
+the infringer, as provided by subsection (b); or
+
+(2) statutory damages, as provided by subsection (c).
+
+(b) ACTUAL DAMAGES AND PROFITS.--The copyright owner is entitled to
+recover the actual damages suffered by him or her as a result of the
+infringement, and any profits of the infringer that are attributable to
+the infringement and are not taken into account in computing the actual
+damages. In establishing the infringer's profits, the copyright owner
+is required to present proof only of the infringer's gross revenue, and
+the infringer is required to prove his or her deductible expenses and
+the elements of profit attributable to factors other than the
+copyrighted work.
+
+(c) STATUTORY DAMAGES.--
+
+(1) Except as provided by clause (2) of this subsection, the copyright
+owner may elect, at any time before final judgment is rendered, to
+recover, instead of actual damages and profits, an award of statutory
+damages for all infringements involved in the action, with respect to
+any one work, for which any one infringer is liable individually, or for
+which any two or more infringers are liable jointly and severally, in a
+sum of not less than $500 or more than $20,000 as the court considers
+just. For the purposes of this subsection, all the parts of a
+compilation or derivative work constitute one work.
+
+(2) In a case where the copyright owner sustains the burden of proving,
+and the court finds, that infringement was committed willfully, the
+court in its discretion may increase the award of statutory damages to a
+sum of not more than $100,000. In a case where the infringer sustains
+the burden of proving, and the court finds, that such infringer was not
+aware and had no reason to believe that his or her acts constituted an
+infringement of copyright, the court in its discretion may reduce the
+award of statutory damages to a sum of not less than $200. The court
+shall remit statutory damages in any case where an infringer believed
+and had reasonable grounds for believing that his or her use of the
+copyrighted work was a fair use under section 107, if the infringer was:
+(i) an employee or agent of a nonprofit educational institution,
+library, or archives acting within the scope of his or her employment
+who, or such institution, library, or archives itself, which infringed
+by reproducing the work in copies or phonorecords; or (ii) a public
+broadcasting entity which or a person who, as a regular part of the
+non-profit activities of a public broadcasting entity (as defined in
+subsection (g) of section 118) infringed by performing a published
+nondramatic literary work or by reproducing a transmission program
+embodying a performance of such a work.
+
+
+2. Excerpts From House Report on Section 504
+
+   =====================================================================
+   The following excerpts are reprinted from the House Report on the new
+   copyright law (H.R. Rep. No. 94-1476, pages 161-163). Material not of
+   immediate interest to librarians and educators has been omitted. Much
+   of the corresponding discussion in the Senate Report (S. Rep. No.
+   94-473, pages 143-145) is substantially the same; the House Report's
+   discussion of statutory damages applicable to librarians and
+   educators is new.
+   =====================================================================
+
+
+IN GENERAL
+
+A cornerstone of the remedies sections and of the bill as a whole is
+section 504, the provision dealing with recovery of actual damages,
+profits, and statutory damages. The two basic aims of this section are
+reciprocal and correlative: (1) to give the courts specific unambiguous
+directions concerning monetary awards, thus avoiding the confusion and
+uncertainty that have marked the present law on the subject, and, at the
+same time, (2) to provide the courts with reasonable latitude to adjust
+recovery to the circumstances of the case, thus avoiding some of the
+artificial or overly technical awards resulting from the language of the
+existing statute.
+
+Subsection (a) lays the groundwork for the more detailed provisions of
+the section by establishing the liability of a copyright infringer for
+either "the copyright owner's actual damages and any additional profits
+of the infringer," or statutory damages. Recovery of actual damages and
+profits under section 504 (b) or of statutory damages under section 504
+(c) is alternative and for the copyright owner to elect; as under the
+present law, the plaintiff in an infringement suit is not obliged to
+submit proof of damages and profits and may choose to rely on the
+provision for minimum statutory damages. However, there is nothing in
+section 504 to prevent a court from taking account of evidence
+concerning actual damages and profits in making an award of statutory
+damages within the range set out in subsection (c).
+
+*Actual damages and profits*
+
+In allowing the plaintiff to recover "the actual damages suffered by him
+or her as a result of the infringement," plus any of the infringer's
+profits "that are attributable to the infringement and are not taken
+into account in computing the actual damages," section 504 (b)
+recognizes the different purposes served by awards of damages and
+profits. Damages are awarded to compensate the copyright owner for
+losses from the infringement, and profits are awarded to prevent the
+infringer from unfairly benefiting from a wrongful act.***
+
+*Statutory damages*
+
+Subsection (c) of section 504 makes clear that the plaintiff's election
+to recover statutory damages may take place at any time during the trial
+before the court has rendered its final judgment. The remainder of
+clause (1) of the subsection represents a statement of the general rates
+applicable to awards of statutory damages.
+
+Clause (2) of section 504 (c) provides for exceptional cases in which
+the maximum award of statutory damages could be raised from $10,000 to
+$50,000, and in which the minimum recovery could be reduced from $250 to
+$100. The basic principle underlying this provision is that the courts
+should be given discretion to increase statutory damages in cases of
+willful infringement and to lower the minimum where the infringer is
+innocent. The language of the clause makes clear that in these
+situations the burden of proving willfulness rests on the copyright
+owner and that of proving innocence rests on the infringer, and that
+the court must make a finding of either willfulness or innocence in
+order to award the exceptional amounts.
+
+The "innocent infringer" provision of section 504(c)(2) has been the
+subject of extensive discussion. The exception, which would allow
+reduction of minimum statutory damages to $100 where the infringer "was
+not aware and had no reason to believe that his or her acts constituted
+an infringement of copyright," is sufficient to protect against
+unwarranted liability in cases of occasional or isolated innocent
+infringement, and it offers adequate insulation to users, such as
+broadcasters and newspaper publishers, who are particularly vulnerable
+to this type of infringement suit. On the other hand, by establishing a
+realistic floor for liability, the provision preserves its intended
+deterrent effect; and it would not allow an infringer to escape simply
+because the plaintiff failed to disprove the defendant's claim of
+innocence.
+
+In addition to the general "innocent infringer" provision clause (2)
+deals with the special situation of teachers, librarians, archivists,
+and public broadcasters, and the non-profit institutions of which they
+are a part. Section 504 (c)(2) provides that, where such a person or
+institution infringes copyrighted material in the honest belief that
+what they were doing constituted fair use, the court is precluded from
+awarding any statutory damages. It is intended that, in cases involving
+this provision, the burden of proof with respect to the defendant's good
+faith should rest on the plaintiff.
+
+
+3. Excerpts From Conference Report on Section 504
+
+   ====================================================================
+   The following excerpts are reprinted from the Report of the
+   Conference Committee on the new copyright law (H.R. Rep. No. 94-1733,
+   pages 79-80).
+   ====================================================================
+
+REMEDIES FOR COPYRIGHT INFRINGEMENT
+
+Senate bill
+
+Chapter 5 of the Senate bill dealt with civil and criminal infringement
+of copyright and the remedies for both. Subsection (c) of section 504
+allowed statutory damages within a stated dollar range, and clause (2)
+of that subsection provided for situations in which the maximum could
+be exceeded and the minimum lowered; the court was given discretion to
+reduce or remit statutory damages entirely where a teacher, librarian,
+or archivist believed that the infringing activity constituted fair
+use.***
+
+House bill
+
+Section 504(c)(2) of the House bill required the court to remit
+statutory damages entirely in cases where a teacher, librarian,
+archivist, or public broadcaster, or the institution to which they
+belong, infringed in the honest belief that what they were doing
+constituted fair use.***
+
+Conference substitute
+
+The conference substitute adopts the House amendments with respect to
+statutory damages in section 504(c)(2)***
+
+
+
+----------------------------------------------------------------
+F. GUIDELINES FOR OFF-AIR RECORDING OF BROADCAST PROGRAMMING FOR
+   EDUCATIONAL PURPOSES
+----------------------------------------------------------------
+
+   ====================================================================
+   The following excerpts are reprinted from the House Report on piracy
+   and counterfeiting amendments (H.R. 97-495, pages 8-9).
+   ====================================================================
+
+In March 1979, Congressman Robert Kastenmeier, Chairman of the House
+Subcommittee on Courts, Civil Liberties and Administration of Justice,
+appointed a Negotiating Committee consisting of representatives of
+educational organizations, copyright proprietors, and creative guilds
+and unions. The following guidelines reflect the Negotiating Committee's
+consensus as to the application of "fair use" to the recording,
+retention, and use of television broadcast programs for educational
+purposes. They specify periods of retention and use of such off-air
+recordings in classrooms and similar places devoted to instruction and
+for homebound instruction. The purpose of establishing these guidelines
+is to provide standards for both owners and users of copyrighted
+television programs.
+
+(1) The guidelines were developed to apply only to off-air recording by
+non-profit educational institutions.
+
+(2) A broadcast program may be recorded off-air simultaneously with
+broadcast transmission (including simultaneous cable transmission) and
+retained by a non-profit educational institution for a period not to
+exceed the first forty-five (45) consecutive calendar days after date of
+recording. Upon conclusion of such retention period, all off-air
+recordings must be erased or destroyed immediately. "Broadcast programs"
+are television programs transmitted by television stations for reception
+by the general public without charge.
+
+(3) Off-air recordings may be used once by individual teachers in the
+course of relevant teaching activities, and repeated once only when
+instructional reinforcement is necessary, in classrooms and similar
+places devoted to instruction within a single building, cluster, or
+campus, as well as in the homes of students receiving formalized home
+instruction, during the first ten (10) consecutive school days in the
+forty-five (45) day calendar day retention period. "School days" are
+school session days--not counting weekends, holidays, vacations,
+examination periods, or other scheduled interruptions--within the
+forty-five (45) calendar day retention period.
+
+(4) Off-air recordings may be made only at the request of, and used by,
+individual teachers, and may not be regularly recorded in anticipation
+of requests. No broadcast program may be recorded off-air more than once
+at the request of the same teacher, regardless of the number of times
+the program may be broadcast.
+
+(5) A limited number of copies may be reproduced from each off-air
+recording to meet the legitimate needs of teachers under these
+guidelines. Each such additional copy shall be subject to all provisions
+governing the original recording.
+
+(6) After the first ten (10) consecutive school days, off-air recording
+may be used up to the end of the forty-five (45) calendar day retention
+period only for teacher evaluation purposes, i.e., to determine whether
+or not to include the broadcast program in the teaching curriculum, and
+may not be used in the recording institution for student exhibition or
+any other non-evaluation purpose without authorization.
+
+(7) Off-air recordings need not be used in their entirety, but the
+recorded programs may not be altered from their original content.
+Off-air recordings may not be physically or electronically combined or
+merged to constitute teaching anthologies or compilations.
+
+(8) All copies of off-air recordings must include the copyright notice
+on the broadcast program as recorded.
+
+(9) Educational institutions are expected to establish appropriate
+control procedures to maintain the integrity of these guidelines.
+
+
+--------
+ENDNOTES:
+
+[1] Corrected from Congressional Record.
+
+[2] Editor's Note: As reprinted in the House Report, subsection A.2 of the
+Music Guidelines had consisted of two separate paragraphs, one dealing
+with multiple copies and a second dealing with single copies. In his
+introductory remarks during the House debates on S.22, the Chairman of
+the House Judiciary Subcommittee, Mr. Kastenmeier, announced that "the
+report, as printed, does not reflect a subsequent change in the joint
+guidelines which was described in a subsequent letter to me from a
+representative of [the signatory organizations]," and provided the
+revised text of subsection A.2. (122 CONG. REC. H 10875, Sept. 22,
+1976). The text reprinted here is the revised text.
+
+[3]  NOTE: Section 504 was amended in subsection (c) by the Act of October
+31, 1988, Pub. L. 100-568, 102 Stat. 2853, 2860.
+
+------------------------------------------------------------------------
+
+Library of Congress
+Copyright Office
+101 Independence Avenue, S.E.
+Washington, D.C. 20559-6000
+
+http://www.loc.gov/copyright
+
+September 1995 - 20,000
+WEB REV: June 1998
+
+
+End of The Project Gutenberg Etext of Reproduction of Copyrighted Works by Educators and Librarians
+by US Copyright Office
+
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