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The Williams and Wilkins case was accepted for review by the Supreme Court where, after the arguments were heard, the Court split 4 to 4 without an exposition of the reasoning on the two sides (420 U.S. 376, 1975). The case thus came to an inconclusive end.

A.2.5.1 The Copyright Act of 1976. During the proceedings for general revision of the copyright law, the question of photocopying came up primarily and most importantly in two contexts; in connection with copying by teachers for classroom use in schools, and with copying by libraries for the use of scholars and researchers. The proposals for legislation in each of these contexts were subjects of major controversy. Two sets of provisions evolved in the successive revision bills; section 107 dealing with fair use generally and containing special references to copying for purposes of teaching, scholarship, or research; and section 108 dealing specifically with copying by libraries.

Section 107, providing that "the fair use of a copyrighted work...is not an infringement of copyright," specifies that:

"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 nonprofit 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."

As noted in the Congressional committee reports on the revision bills, this statement of the determining factors is a distillation of those stated by the courts in the line of decisions that developed the fair use doctrine, except for the phrase in clause (1) reading "including whether such use is of a commercial nature or is for nonprofit educational purposes." This added phrase was thought to be within the spirit of the court-developed doctrine and was added to the bill as a concession to the educators.

Section 107 also specifies, as examples of uses that may be fair use (if they come within the stated criteria):

"The fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means...,
for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use),
scholarship, or research..."

It may be noted that the parenthetical phrase was added to the bill in the late stages of the Congressional proceedings as a further concession to the educators.

The language of section 107 pertaining to copying for educational purposes reflects agreements reached between the educator and copyright owner groups over a period of time. In addition, the Reports of the Congressional Committees on earlier versions of the revision bill (House Report No. 83, 90th Cong., and Senate Reports No. 93-983 and No. 94-473) contained an explanatory discussion in considerable detail of how the four criteria of fair use stated in section 107 would apply to copying by teachers for classroom use, which also reflected an understanding between those groups. Further, and with more finality, the House Committee Report (No. 94-1476 at pages 67-71) sets forth the texts of agreements between educator groups on one hand and representatives of authors and publishers of books, periodicals, and music on the other, stating in precise terms, as guidelines, the minimum standards of fair use copying for educational purposes. These agreements were reached at the urging of the Congressional committees, after a series of meetings between the interested groups.

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The more far-reaching problem raised by modern photocopying devices that of copying by libraries for scholars and researchers -- is dealt with in section 108 of the new statute. (That section also provides for copying for certain internal library purposes but we are not concerned with that here.) In main substance, section 108(d) and (e) permits libraries to make, for any user requesting it, a single copy of no more than one article or other contribution to a copyrighted collection or periodical issue or of a small part of any other work (such as a book), or a single copy of an entire work or a substantial part of it if the library has first determined that a copy cannot be obtained from trade sources at a fair price. (This right of a library to make single copies for users is subject to certain specified conditions and exceptions which we need not detail here.)

To preclude multiple copying under the guise of repeated single copying, section 108(g) states that, while the right of a library to make copies extends to "the isolated and unrelated reproduction...of a single copy...of the same material on separate occasions," it does not extend

to "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 or more individuals or for separate use by the individual members of a group;" and to preclude wholesale copying under a systematic program whereby one library would serve as the source of material for a number of other libraries or persons who might otherwise subscribe for or purchase copies, section 108 states further that the right of a library to make copies does not extend to "the systematic reproduction...of single or multiple copies," with the proviso that this does not prevent a library "from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library... receiving such copies...for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work."

This latter provision of section 108 excluding "systematic reproduction" had been objected to strongly by library groups, and the proviso to permit "interlibrary arrangements" was added in an effort to meet those objections. The proviso, however, was thought to be too vague in its reference to "such aggregate quantities as to substitute for a subscription to or purchase of such work." Accordingly, the National Commission on New Technological Uses of Copyrighted Works (CONTU) undertook to bring the interested parties together to see if agreement could be reached on a practical definition of that phrase, and it succeeded in formulating a set of guidelines that were accepted by the several groups concerned. These guidelines are set forth in the Conference Report (H. Rept. No. 94-1733, at pages 71-73) on the bill which was then enacted. In essence, the guidelines state that the "aggregate quantities" limitation in the proviso would permit, for any requesting library within any calendar year, not more than five copies of articles published in any given periodical during the preceding five years, and not more than five copies of any other material from any given work (including a collective work) during the entire period of copyright.

So it was that the complex and multi-faceted resolution of the problem of adapting the copyright law to the availability of modern copying machines was achieved through the legislative process. The one appeal to the courts to resolve the issue -- the Williams and Wilkins case -- proved to be futile. As the Court of Claims observed, the problem of photocopying in its broad and varied aspects did not lend itself to judicial resolutions; the Court could do no more than to decide whether the photocopying done in the particular circumstances of the case before it was or was not an infringement of copyright under the existing law; Congressional action was needed to examine the wide range of situations in which photocopying could be a useful practice, and to arrive at policy determinations that in certain circumstances and under certain conditions

photocopying should be permitted free of copyright while other circumstances and conditions called for subjecting photocopying to copyright restrictions. On the foundation of the fair use doctrine developed earlier by the courts, the principles underlying the "Gentlemen's Agreement" worked out initially be some of the interested groups, and the practical and equitable considerations presented by the needs of the several interested groups, Congress was able to establish sets of basic principles and subsidiary conditions and exceptions to resolve the issues in the variety of situations that had arisen or could be foreseen. In this process Congress was aided by the spirit of compromise and accommodation in which the interested groups negotiated agreements among themselves on the principles of the legislative provisions and on practical guidelines for their application.

A.2.6 CABLE TELEVISION SYSTEMS

During the early 1960s commercial enterprises began to be organized to bring to subscribers, by means of new technologies, using special antennas located on high points and a network of cables and amplifiers, television broadcasts of stations whose signals could not be received satisfactorily by the subscribers off-the-air because of the distance or the hilly terrain between the station and the location of the subscribers. By the middle of that decade such commercial enterprises, known as cable television or CATV systems, were proliferating rapidly and expanding their operations to carry more, and farther distant, broadcasting stations; and it had become apparent that a copyright problem of considerable magnitude was involved in their operation. Television broadcast programs commonly included performances of copyrighted motion pictures, plays, music, and other works, for which broadcasters obtained licenses from the copyright owners. Was the retransmission of the broadcast programs by a cable system to its subscribers to be treated as a further performance of the copyrighted works which infringed the copyright owners' exclusive right of public performance?

The existence of this problem and its economic importance for copyright owners and the operators of cable systems, and indirectly for broadcasters, had come to the attention of the House Subcommittee by the time it held its first hearings, in 1965, on the initial bill for general revision of the copyright law. The testimony at the hearings demonstrated that the issue was highly controversial, and that it involved many ramifications pertaining to the economic position and potential growth of cable systems, and their potential impact upon broadcasters as well as copyright owners. It was also evident that the copyright problem was complicated by being intertwined with the problems of communications policy relating to the nations' broadcasting system that were dealt with by the Federal Communications Commission.

In 1966, after its hearing had been completed, the House Subcommittee formulated a complex set of provisions for inclusion in the revision bill by which it proposed to reconcile the divergent views and needs of the interested parties. The Subcommittee recognized that the copyright problem could not be resolved by a uniform rule under which all cable retransmissions would be an infringement, or not an infringement, of copyright; it proposed that in some situations retransmissions by a cable system would be exempt from copyright, in certain other situations their retransmissions would be subject to copyright, in still other situations their retransmissions (of broadcasts from another area) would become subject to copyright only if they were given advance notice that a local broadcasting station had an exclusive license to show the program in the local area, and in yet other situations (where they brought the broadcasts of distant stations into an area not adequately served by local stations) they would be liable only for payment of a reasonable license fee.

Meanwhile, the problem was brought before the courts in the case of United Artists Television, Inc., v. Fortnightly Corp., where a cable system brought to its subscribers the television programs of several stations whose signals could not be received satisfactorily by the subscribers because of the intervening mountainous terrain. The copyright owners of motion pictures shown in the broadcasts retransmitted by the cable system sued the system for infringement. The District Court (255 F. Supp. 177, S.D.N.Y. 1966) held that the retransmission constituted infringement of the copyright owner's exclusive right of public performance. On appeal, the Circuit Court of Appeals reached the same conclusion (377 F. 2d 872, 1967). Both the District and Circuit Courts considered this case to be parallel with those decided a generation earlier, particularly the Remick, Jewell-LaSalle, and SESAC cases (reviewed above in the portion of this report dealing with radio and television broadcasts); in those earlier cases, broadcasts of copyrighted works, and the public diffusion of receptions of such broadcasts, were held to be infringing public performance. Of particular interest here is the philosophical approach stated in the District Court opinion in the Fortnightly case as to the judicial application of the 1909 Copyright Law to the new technology of cable retransmission of broadcasts:

"The updating of statutory language to accommodate it with
current technological advances is part of the genius of our
law to adapt and to grow. The achievements of modern science
and technology surpass the imagined marvels of the philosopher's
stone and Aladdin's lamp. The practical necessities of such
an age require judicial recognition of the contemporary mean-
ing of the words of the Copyright Act...

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