Cases already decided in other contexts will give valuable guidance to courts confronted with NII-related cases. Just as courts have distinguished between home use of a VCR to make time-shifting tapes of materials broadcast over the air (fair use) and school systems' attempts to use VCRs to download broadcast instructional materials for the creation of an educational film library (not fair use), courts will subject users of copyrighted works available via the NII to like scrutiny. Educational uses that serve the same ends and are constrained in the same manner as the copying permitted under the Classroom Guidelines261 will likely be fair, while attempts to supplant the market for books, films, software and other materials by proliferating them without permission via the NII will likely be infringing.

Finally, it may be that technological means of tracking transactions and licensing will lead to reduced application and scope of the fair use doctrine. Thus, one sees in American Geophysical Union v. Texaco Inc.,22 a a court establishing liability for the unauthorized photocopying of journal articles based in part on the court's perception that obtaining a license for the right to make photocopies via the Copyright Clearance Center was not unreasonably burdensome. The court also speculated that should the proprietors fail to establish a licensing system for the use in question, then the balance might shift in favor of a finding of fair use.

262 802 F. Supp. 1 (S.D.N.Y. 1992), aff'd, 37 F.3d 881, 892 (2d Cir. 1994). The Court of Appeals noted, with respect to Texaco's argument that such photocopying was "reasonable and customary," that "whatever validity this argument might have had before the advent of... photocopying licensing... the argument today is insubstantial." This suggests that, together with Section 108's proscription on most "systematic" photocopying (discussed below), the precedential value of Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973) (Federal libraries not liable for infringement where no licensing option existed as between full price subscription to scientific journals and holding of fair use) may be reduced.

FAIR USE GUIDELINES FOR LIBRARIES AND

EDUCATIONAL INSTITUTIONS

The fair use, library copying and educational use provisions of the current copyright law have been the subject of four sets of "guidelines" for libraries and educational institutions, to which contending parties agreed, that are enshrined at various places in the legislative history.263 The result has been, in certain circumstances, a quantitative gloss on the construction of fair use and library copying privileges. For instance, the classroom guidelines generally permit the copying, for educational purposes, of short extracts of works, provided that the copying is spontaneously done or requested by the instructor (and the copies are neither used nor re-made repeatedly over time), 264

THE CONFERENCE ON FAIR USE

To determine whether educational or library guidelines of a similar nature might prove attainable in the NII context, the Working Group has convened a conference of more than 60 interested parties who have met more or less monthly since September 1994. To date, no formal guidelines have been the subject of agreement, but it appears reasonable to anticipate that drafts now in preparation may be formalized as guidelines before the end of 1995. The participants in the conference are discussing several areas, including multimedia, library preservation, "browsing" and "distance learning."

In most such instances, current law often provides clear rules while the "digital difference" tests, bends or sometimes breaks those rules. For example, library

263

Existing guidelines cover certain copying by and for teachers in the classroom context, the copying of music for educational purposes, the copying of relatively recent journal articles by one library for another, and the off-air videotaping of educational broadcast materials.

264 See HOUSE REPORT at 68-74,reprinted in 1976 U.S.C.C.A.N. 5681-88.

preservation is covered in some detail in the analog context (paper, microfiche, etc.) in Section 108 of the law, but that section's terms do not appear to encompass digital copying in the quantities to which libraries have become accustomed,265 and many conventional distance learning issues are arguably covered with respect to the performance but not the reproduction of works -- in Section 110.

Some participants have suggested that the United States is being divided into a nation of information "haves" and "have nots" and that this could be ameliorated by ensuring that the fair use defense is broadly generous in the NII context. The Working Group rejects the notion that copyright owners should be taxed -- apart from all others -to facilitate the legitimate goal of "universal access.

11266

Should the participants in the Conference on Fair Use fail to agree on appropriate guidelines, the Working Group may conclude that the importance of such guidelines may necessitate regulatory or legislative action in that area.

b. LIBRARY EXEMPTIONS

Section 108 of the Copyright Act provides that in certain circumstances and under certain conditions it is not an infringement of copyright for a library or archives, or its employees acting within the scope of their employment,267 to reproduce or distribute one copy or phonorecord of a

265

See discussion of the Working Group's proposed amendments to Section 108 infra pp. 225-27.

266 The laws of economics and physics protect producers of equipment and tangible supplies to a greater extent than copyright owners. A university, for example, has little choice but to pay to acquire photocopy equipment, computers, paper and diskettes. It may, however, seek subsidization from copyright owners by arguing that its copying and distribution of their works should, as a fair use, not be compensated.

267

Hereinafter, the term "library" will be used to refer to a library or archives, or any of its employees acting within the scope of their employment.

work 268 under circumstances that would typically not amount to fair use. The conditions of the library exemption are that (1) the reproduction or distribution must be made without any purpose of direct or indirect commercial advantage; (2) the collections of the library must be open to the public or available not only to researchers affiliated with the library, but also to other persons doing research in a specialized field; (3) the reproduction or distribution of the work must include a notice of copyright;269 and (4) a specific exemption in subsections (b) through (g) of Section 108 applies.

The exemptions granted under Section 108 extend only to isolated and unrelated reproduction of a single copy or phonorecord of the same material on separate occasions,270 and do not apply to (1) musical works; (2) pictorial, graphic, or sculptural works; or (3) motion pictures or other audiovisual works, except news programs."

271

The circumstances under which a library may reproduce or distribute a copyrighted work without infringement liability include:

ARCHIVAL COPIES

A library may reproduce and distribute a copy or phonorecord of an unpublished work reproduced in facsimile form if the sole purpose is preservation and

268

See 17 U.S.C. § 108(a) (1988). Section 108 limitations are additional exemptions provided specifically for certain libraries. Libraries, of course, may also take advantage of fair use privileges or any other exemptions to the Copyright Act (see 17 U.S.C. § 108(f)(4) (1988)), but the exemptions in Section 108 generally exceed fair use. See generally Report of the Register of Copyrights on Library Reproduction of Copyrighted Works (1983).

272

security, and if the copy or phonorecord reproduced is currently in the collection of the library. The House Report notes that this right "would extend to any type of work, including photographs, motion pictures and sound recordings." However, the copy or phonorecord made must be in "facsimile form." A library may "make photocopies of manuscripts by microfilm or electrostatic process, but [may] not reproduce the work in 'machinereadable' language for storage in an information system."273 Thus, this exemption does not allow for preservation in electronic or digital form.

REPLACEMENT COPIES

274

A library may reproduce a published work duplicated in facsimile form solely for the purpose of replacing a copy or phonorecord that is damaged, deteriorated, lost or stolen, if the library has, after reasonable efforts, determined that an unused replacement cannot be obtained at a fair price. Again, the copy or phonorecord made must be in "facsimile form." The exemption does not allow for replacement of a published work by reproduction in digital form (at least when the original copy of the published work was not in digital form).

ARTICLES AND SHORT EXCERPTS FOR USERS

A library may make and distribute a copy of one article or other contribution to a copyrighted collection or periodical issue, or a copy or phonorecord of a small part of any other copyrighted work at the request of a user, subject to two conditions.275 First, the copy or phonorecord must

272

273

274

See 17 U.S.C. § 108(b) (1988).

HOUSE REPORT at 75, reprinted in 1976 U.S.C.C.A.N. 5689.

17 U.S.C. § 108(c) (1988); see HOUSE REPORT at 75, reprinted in 1976 U.S.C.C.A.N. 5689.