B. Photocopies for individual research.. C. Multiple photocopies for corporate research. Page PHOTODUPLICATION OF COPYRIGHTED MATERIAL BY LIBRARIES I. INTRODUCTION The various methods of photocopying have become indispensable to persons engaged in research and scholarship, and to libraries that provide research material in their collections to such persons. Effective research requires that the researcher be informed of the findings and opinions of others and have an opportunity to study the materials written by them. These materials are often very extensive and appear in a large number of publications. It is here that the libraries provide an indispensable service to research by furnishing the individual researcher with the materials needed by him for reference and study. The need of researchers for ready access to a mass of materials is present in every field of scholarly investigation, but the problem is exemplified most clearly in the field of scientific and technical research. The body of scientific and technical literature has grown so rapidly during the last few decades that it would be extremely difficult for the individual scholar or researcher to gain access to the works he may need to consult unless he can obtain copies from a library. This is true especially of periodical literature. It would be virtually impossible for a person engaged in research to subscribe to all the periodicals which from time to time may touch upon his field of interest, and even the libraries where he lives may be unable to furnish the necessary material. Nor can libraries be expected to meet the needs of any number of researchers by loan of the copies in their collections. In response to the needs of researchers, most major libraries are equipped to provide them with photocopies of materials in the library's collections. It is invaluable to a researcher to be able to obtain from a central or specialized library photocopies of the various articles he needs for reference and study. However, much of the materials needed for scholarship and research is of recent date and is under copyright, and the question arises whether the making and furnishing of photocopies of copyrighted material without the permission of the copyright owner is a violation of his exclusive right to copy secured by section 1(a) of the copyright law. It is the purpose of this study to examine this question and to consider possibilities for its solution. In general the justification for the photocopying of copyrighted material would seem to be founded on the doctrine of "fair use". In this connection it must be borne in mind that there are two distinct aspects of the "fair use" that researchers might make of a copyrighted work. One aspect concerns the making of copies for the sole purpose of reference and study. The other concerns the reproduction in the researcher's writing, by quotation, etc., of the writings of other 117 U.S.C. authors. As already indicated, this study deals only with the former aspect. The latter has been examined elsewhere in connection with a general analysis of the fair use doctrine.2 Aside from the aforementioned practice of furnishing photocopies to researchers for their reference and study, libraries make photocopies for a variety of other purposes. Rare books and manuscripts are photocopied, usually microfilmed, to secure against their destruction or loss, and to obtain copies which may be made accessible to the public without any risk of harm to the often extremely valuable originals. Similarly, for the purpose of preservation, photocopies are made of newspapers and other items printed on fast-deteriorating pulp paper. Other similar purposes could also be mentioned.3 Common for them all is that they mainly serve intralibrary purposes, namely the maintenance and preservation of the collections. Photocopying for these purposes may also raise some problem as to copyright infringement. This problem seems less urgent than that caused by the supplying of photocopies to library patrons, but it will be examined briefly in the following. II. PRESENT LAW AND PRACTICE In relation to copyright protection library collections may be divided into three groups of works: (1) published works protected by statutory copyright; (2) unpublished works protected under the common law; and (3) works in the public domain. A. PUBLISHED COPYRIGHTED WORKS For published works under copyright, section 1 of the copyright law provides that the copyright owner shall have the exclusive right: (a) To print, reprint, publish, copy, and vend the copyrighted work.' The copyright law does not specify any limitations on the exclusive right of the copyright owner to "copy" the copyrighted work. Nevertheless, this right is limited by the doctrine of "fair use" developed by court decisions. Unfortunately, there are no decisions dealing specifically with photocopying by libraries, or even with the narrower question of a person making photocopies for his own use. The courts have dealt with the other aspect of fair use referred to above, namely, that of reproducing in a new work an extract taken from the copyrighted work of another. However, the criteria of fair use developed by the courts in the latter context might furnish some general indication of the permissible scope of photocopying. The court decisions indicate that the major criteria as to what constitutes fair use are: (1) the size and importance of the extract taken in relation to the copyrighted work as a whole; (2) the nature of the copyrighted work; (3) the purpose for which the extract is taken; and (4) the effect of the use of the extract upon the demand for the copyrighted work." It can be argued, though at the risk of oversimplification, that the first three criteria are important chiefly See Latman, Fair Use of Copyrighted Works, Copyright Law Revision, Study No. 14, in the present committee print. See Smith, The Copying of Liberary Property in Library Collections, 46 LAW LIB. JOURNAL 197 (1953); 47 LAW LIB. JOURNAL 204 (1954). 4 Section 1 also specifies other exclusive rights of the copyright owner which are not germane to this study. 8 Latman, op cit., note 2, supra, pp. 14-18. |