The Project Gutenberg EBook of Reproduction of Copyrighted Works By
Educators and Librarians, by Library of Congress. Copyright Office. and United States
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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
*** 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.
------------------------------------------------------------------------
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