1964 BILL

§ 6. Limitations on exclusive rights: fair use.

Notwithstanding the provisions of section 5, the fair use of a copyrighted work to the extent reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, 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;

(2) the nature of the copyrighted vzork;

(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.

PRELIMINARY DRAFT

§ 6. LIMITATIONS ON EXCLUSIVE RIGHTS FAIR USE. All of the exclusive rights specified in section 5 shall be limited by the privilege of making fair use of a copyrighted work. In determining whether, under the circumstances in any particular case, the use of a copyrighted work constitutes a fair use rather than an infringement of copyright, the following factors, among others, shall be considered: (a) the purpose and character of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, ard (d) the effect of the use upon the potential value of the copyrighted work.

§ 7. LIMITATIONS ON EXCLUSIVE RIGHTS: COPYING AND RECORDING BY LIBRARIES. Notwithstanding the provisions of section 5, any library whose collections are available to the public or to researchers in any specialized field shall be entitled to duplicate, by any process including photocopying and sound recording, any work in its collections other than a motion picture, and to supply a single copy or sound recording upon request, but only under the following conditions :

(a) The library shall be entitled, without further investigation, to supply a copy of no more than one article or other contribution to a copyrighted collection or periodical issue, or to supply a copy or sound recording of a similarly small part of any other copyrighted work.

(b) The library shall be entitled to supply a copy or sound recording of an entire work, or of more than a relatively small part of it, if the library has first determined, on the basis of a reasonable investigation that a copy or sound recording of the copyrighted work cannot readily be obtained from trade sources.

(c) The library shall attach to the copy a warning that the work appears to be copyrighted.

1965 BILL

§ 108. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord

(a) Notwithstanding the provisions of section 106(a)(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by him, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

(b) Notwithstanding the provisions of section 106(a) (5), the owner of a particular copy lawfully made under this title, or any person authorized by him, is entitled, without the authority of the copyright owner, to exhibit that copy publicly to viewers present at the place where the copy is located.

(c) The privileges prescribed by subsections (a) and (b) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.

PRESENT LAW

$27. COPYRIGHT DISTINCT FROM PROPERTY IN OBJECT COPYRIGHTED; EFFECT OF SALE OF OBJECT, AND OF ASSIGNMENT OF COPYRIGHT.-The copyright is distinct from the property in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object; but nothing in this title shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained.

1964 BILL

§ 7. Limitations on exclusive rights: effect of transfer of particular

copy or phonorecord.

(a) Notwithstanding the provisions of section 5(a) (3), the owner of a particular copy or phonorecord lawfully made under this title is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

(b) Notwithstanding the provisions of section 5(a) (5), the owner of a particular copy of a pictorial, graphic, or sculptural work lawfully made under this title is entitled, without the authority of the copyright owner, to exhibit that copy publicly by showing it to viewers present at the place where the copy is located.

(c) The privileges prescribed by subsections (a) and (b) do not extend to any person who has acquired possession of the copy or phonorecord by rental, lease, loan, or any method of disposition except sale or other lawful transfer of ownership.

PRELIMINARY DRAFT

. §5(b) The right to distribute copies and sound recordings. Copyright shall include the exclusive right to sell or otherwise transfer ownership of, rent, lease, or lend one or more copies or sound recordings of the work. Except in the case of articles made in violation of the exclusive right provided in subsection (a), this right shall end with respect to a particular copy or sound recording as soon as its first sale or other transfer of ownership has taken place; but, until such sale or transfer occurs, the rental, lease, or lending of a particular copy or sound recording shall not impair this right with respect to such copy or recording.

§ 5(d) The right to exhibit. Copyright in pictorial, graphic, and sculptural works shall include the exclusive right to exhibit copies by broadcasting or retransmission, over wires or otherwise, or by showing them in a public place, either directly or through motion pictures, slides, or any other means. Except in the case of copies made in violation of the exclusive right provided in subsection (a), this right shall end with respect to a particular copy as soon as its first sale or other transfer of ownership has taken place; but, until such sale or transfer occurs, the rental, lease, or lending of a particular copy shall not impair this right with respect to such copy.

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1965 BILL

PRESENT LAW

§ 109. Limitations on exclusive rights: Exemption of certain performances and exhibitions

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or exhibition of a work by instructors or pupils in the course of face-to-face teaching activities in a classroom or similar place normally devoted to instruction;

(2) performance of a nondramatic literary or musical work, or exhibition of a work, by or in the course of a transmission, if the transmission is made primarily for reception in classrooms or similar places normally devoted to instruction and is a regular part of the systematic instructional activities of a nonprofit educational institution;

(3) performance of a nondramatic literary or musical work or of a dramatico-musical work, or éxhibition of a work, in the course of services at a place of worship or other religious assembly;

(4) performance of a nondramatic literary or musical work, otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if:

(A) there is no direct or indirect admission charge, or

(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain;

(5) the further transmitting to the public of a transmission embodying a performance or exhibition of a work, if the further transmission is made without altering or adding to the content of the original transmission, without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the further transmission;

[Under subsections (c) and (e) of section 1 at page 186 supra, the exclusive right of the copyright owner to perform a nondramatic literary of musical work is limited to a public performance for profit]

§ 104. *** nothing in this title shall be so construed as to prevent the performance of religious or secular works such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs, or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charitable or edticational purposes and not for profit.