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diff --git a/4318.txt b/4318.txt new file mode 100644 index 0000000..dc2c8cc --- /dev/null +++ b/4318.txt @@ -0,0 +1,2654 @@ +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 +Educators and Librarians, by Library of Congress. 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