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in their relation to the fourth one, and that the ultimate consideration is the competitive effect of the particular use on the market for the copyrighted work. And it might be observed that the courts havo shown a tendency to apply the doctrine of fair use more liberally to scholarly uses than to commercial uses."

It is, of course, a matter of conjecture as to how the courts would apply the doctrine of fair use to photocopying by libraries. On the basis of the foregoing summation of the criteria, it seems tenable to argue that the supplying of photocopies to individual researchers for the sole purpose of reference and study might be regarded as fair use in some circumstances; the bounds of fair use may be passed when the supplying of photocopies would operate to diminish the publisher's market. Whether the publisher's market would be affected materially would seem to depend upon a number of factors such as whether the work is in print, how much of the work is photocopied, how many photocopies of the same work are supplied to various persons, and the relative cost of a photocopy and a publisher's copy.

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Text writers on copyright have rarely dealt with this problem. One text writer goes so far as to say that it would constitute an infringement "in principle, at least, ** * if an individual made copies for personal use, even in his own handwriting." Another writer has gone to the other extreme in saying that the only copying restrained by copyright is the making of multiple copies for publication, and that anyone is free to make single copies of an entire work for the personal use of himself or of another person. Both of these views [seem dubious, with no clear support in the court decisions. It may be that copying for one's own private use, at least by hand, is sanctioned by custom; but other factors would seem to be involved in the making of copies by one person for the use of others.

In the absence of any authoritative ruling on the question, libraries have sought to formulate some practical basis for their photocopying policies.

The first attempt to formulate a uniform library policy regarding photoduplication was the informal "Gentlemen's Agreement" issued in May 1937 as a result of discussion between the Joint Committee on Materials for Research of the American Council of Learned Societies and the Social Science Research Council on the one hand, and the National Association of Book Publishers on the other. Although this "Gentlemen's Agreement" is without legal force, it is not unimportant. As stated by Miles O. Price, Law Librarian and Professor of Law at Columbia University: "In effect, it gives some status to fair use, though on an informal basis, and prescribes certain minimum conditions to be observed." 10 Regardless of its informal character, the "Agreement" reflects what its draftsmen considered a fair balance between the interests of researchers and libraries and the rights of copyright owners, and therefore may serve as a convenient starting point for discussion.

Id. pp. 10, 11.

7 WEIL, AMERICAN COPYRIGHT LAW, 406 (1917). That Weil may have been thinking of copies made for other persons, rather than for the maker's own use, is indicated by his next sentence: "That the copies are intended for gratuitous distribution is no defense."

SHAW, LITERARY PROPERTY IN THE UNITED STATES, 98, 99 (1950).

• One of the parties to the so-called agreement, the National Association of Book Publishers, has since ceased to exist. The book publishers are now organized in the American Book Publishers Council. Furthermore, the periodical publishers, who publish most of the scientific and technical material of interest to researchers, were not generally members of that Association, and even many book publishers were not members.

10 See Price, Acquisition and Technical Processing, 6 LIB. TRENDS 430 (1958).

The "Gentlemen's Agreement" states in part as follows:

A library, archives office, museum, or similar institution owning books or periodical volumes in which copyright still subsists may make and deliver a single photographic reproduction or reduction of a part thereof to a scholar representing in writing that he desires such reproduction in lieu of loan of such publication or in place of manual transcription and solely for the purpose of research; provided(1) That the person receiving it is given due notice in writing that he is not exempt from liability to the copyright proprietor for any infringement of copyright by misuse of the reproduction constituting an infringement under the copyright law:

(2) That such reproduction is made and furnished without profit to itself by the institution making it.

The "Agreement" contains a paragraph which purports to exonerate the library from liability for possible infringement. This would not seem to absolve the library from liability (if any) to the copyright owner, but it might make it possible for a library to recover from a patron any damages paid as a result of an infringement suit.

The legal basis for permissible photocopying is stated in a subsequent paragraph of the "Agreement" as follows:

The statutes make no specific provision for a right of a research worker to make copies by hand or by typescript for his research notes, but a student has always been free to "copy" by hand; and mechanical reproductions from copyright material are presumably intended to take the place of hand transcriptions, and to be governed by the same principles governing hand transcription."

There may be some question as to the implications of this last assumption that mechanical reproduction is equivalent to hand transcription. It may be that hand transcription created no practical problem because the extent of copying by hand was ordinarily limited by its nature, while mechanical reproduction by modern devices makes it easy to copy extensively and quickly in any number of copies. Moreover, the fact that hand transcription by a scholar himself has long been considered permissible does not necessarily justify the making of photocopies by others for scholars; thus, the supplying of photocopies as a commercial enterprise could hardly be justified on that premise. These factors were apparently recognized by the provisions of the "Gentlemen's Agreement," quoted above, referring to a "single" photocopy of a "part" of a book or periodical to be furnished "without profit."

In 1911, the American Library Association adopted a "Reproduction of Materials Code" formulated as a statement of policy to be observed by the Association members. The "Code" recognizes that "the final determination as to whether any act of copying is a 'fair use' rests with the courts." But it accepts the "Gentlemen's Agreement" as stating "the practical and customary meaning of 'fair use' applicable to reproduction for research purposes." The main portion of the "Code" is a restatement of the rules of the "Gentlemen's Agreement," but additional rules of caution are incorporated. Thus, the "Code" recommends that, "in all cases which do not clearly come within the scope of the agreement, either the scholar requiring the reproduction or the library to which the request is made should seek the permission of the copyright owner before reproducing copyright material." The "Code" further states:

Special care is called for in the case of illustrations or articles that are covered by a special copyright in addition to the general copyright on the whole book or

The "Gentlemen's Agreement" is reproduced in full in 2 JOURNAL OF DOCUMENTARY REPRODUCTION 31 (1939).

periodical. Attention is called to the fact that a publisher's permission is not legal protection to the library unless the publisher is either the copyright owner or an agent of the owner duly authorized to grant such permission.

Finally, the "Code" states:

Legally there is no distinction between in print and out-of-print copyright material. Reproduction of in print material, however, is more likely to bring financial harm to the owner of the copyright, and it is recommended that libraries be even more careful than in the case of out-of-print material.12

13

There is little available information as to the current practices of libraries generally in making and supplying photocopies. Perhaps this much can be said: that libraries differ widely in their practices," and that many of them feel that the present uncertainty as to the permissible scope of photocopying hampers their services to researchers and needs to be resolved.

B. UNPUBLISHED WORKS AND MANUSCRIPTS

In the main, the unpublished works involved in the problem of library photocopying consists of the manuscripts that have been deposited in a library. With some exceptions not pertinent here, such manuscripts are not subject to statutory copyright, but the authors or their successors have literary property rights under the common law which preclude copying without their consent. Such common law rights are recognized in section 2 of the copyright law.

The A.L.A. "Code" contains the following provision regarding manuscripts:

Manuscript material is protected by common law but the restrictions on its reproduction are probably less rigid than those on copyright material. Reproduction may probably be made to assist genuine scholarly research if no publication is involved. Libraries should, however, be careful to observe any restrictions of copying such material that have been stipulated by the donor.

The "Code" further recommends that libraries seek a definite understanding regarding their rights at the time of each donation.

The contention of the "Code" that manuscript material protected by common law is more susceptible to photocopying than published material protected by statutory copyright may be questioned, inasmuch as the "fair use" doctrine is generally thought not to apply to unpublished works. However, in the absence of any specific restrictions, the donation of manuscripts to a public library may often imply a dedication to the public domain, or at least an authorization to the library to furnish copies of the material to scholars. In some instances, though, the situation may be complicated by the fact that the donor is not the owner of the common law literary property.14 The special questions involved in the photocopying of manuscripts are outside the scope of this study.

C. WORKS IN THE PUBLIC DOMAIN

Works in the public domain present no copyright problems. But for ethical reasons, the A.L.A. "Code" cautions against unrestricted reproduction of current material in print though not copyrighted. The "Code" states:

12 The "Reproduction of Materials Code" is reproduced in full in 35 A.L.A. Bull. 64 (1941). "See Bray, Photocopying and Copyright in the March and Nov. 1957 issues of SPECIAL LIBRARIES. 14 For example, the manuscripts given to a library may include letters received by the donor or his predecessor. The literary property is generally in the writers of the letters or their heirs.

In the case of works (in print) which have not been copyrighted in the United States*** it is evident that it would not be in the best interest of scholarship to engage in widespread reproduction which would deprive the publisher of income to which he appears to be entitled and might result in suspension of the publication. It is recommended, therefore, that before reproducing uncopyrighted material less than 20 years old, either for sale or for use within the library, libraries should ascertain whether or not the publication is still in print and, if it is in print, should refrain from reproducing whole numbers or volumes or series of volumes.

III. LEGISLATIVE PROPOSALS

There seem to be only two bills which have dealt specifically with the problem of photocopying of copyrighted material by libraries. These are: the Thomas (Shotwell) general revision bill of 1940,15 and a bill introduced by Senator Lucas in 1944.16

A. THE THOMAS (SHOTWELL) BILL, 1940

The Thomas bill (812) provided in effect that the following shall not be an infringement of copyright:

(g) The making of single copies of an unpublished work lawfully acquired by a library if such copies are made and used for study or research only and not for sale or hire.

(h) The making by a library of one copy of a published work for research purposes and not for sale, exchange, or hire: Provided, That

(i) such work has publicly been offered for sale in a published, limited, or general edition by or with the consent of the author or owner of the particular publication right, at a publication price under such circumstances as to pass title in and to the physical copies thereof; and

(ii) the publication and distribution of said edition has been discontinued and the library has offered by registered mail to purchase a copy from, and tendered the retail publication price plus carriage to, the Register of Copyrights on behalf of the owner of said publication right and such owner thereupon failed for a period of thirty days after written notice from the Register of Copyrights addressed to the owner's last-known address either to send a copy of said published edition to such library or to return or direct the Register of Copyrights to return the tendered payment accompanied by a designation of a place where such copy can lawfully be secured at said price; and

(iii) such owner has not filed with the Register of Copyrights a notice of intention to publish a new edition of such work and such edition has not been published within six months from the filing of such notice; and

(iv) the payment tendered by libraries, as hereinabove provided, shall be deposited with the Register of Copyrights, who shall promulgate regulations for the carrying out of this subsection.

(v) There is hereby created in the Treasury of the United States a trust fund to be known as the copyright trust fund. The Register of Copyrights shall deposit in such fund all moneys received by him from libraries as herein before provided in trust for the persons entitled thereto. At least once each year the Register of Copyrights shall certify to the Secretary of the Treasury for payment through the Division of Disbursement from the copyright trust fund to each person entitled thereto all amounts theretofore received in trust for such person and not previously paid to such person

Under these complicated provisions, a photocopy of a published work was to be authorized only when the work was out of print, and then only after a time-consuming procedure had been followed to make certain that the copyright owner could not supply a copy; and payment of the established price of a publisher's copy was to be made to the copyright owner through the Register of Copyrights. The above provisions were drafted by the Shotwell Committee after long discussions on the subject of photocopying for scholarly

'S. 3043, 76th Cong., 3d'Sess. (1940). 14 S. 2039, 78th Cong., 2d Sess. (1944)

purposes. The position of the scholars had been presented to the Shotwell Committee in a memorandum prepared by the Joint Committee on Materials for Research. The memorandum stated:

The particular problems in which scholars wish to be assured that their activities are within the protection of the law are these:

(1) They need the right to make copies of any material they read in order to form a part of the body of research notes with which they work. This right is probably theirs by custom, since it is not publication but transcription for use that is involved. Copying is here merely an aid to mental reproduction or digestion. Manual transcription, typescript transcription, photostat, and microcopying should be on the same footing for this purpose. The principle is not different regardless of the technique of copying that is used. The cheapness and efficiency of microcopying mean that the amount of this copying in the collection of research notes will probably be much greater in the future than it has been in the past.

The provisions of the copyright law should leave intact a free right to copy as a part of the normal procedure of research. This right to copy should never be confused with the right to publish. The finished product, the book, that results from research is the object to which the copyright law applies, and not the notes and collection of material that enter into the production of the book.

(2) Under some conditions a library may make, without profit to itself, a copy of some work or a part of some work, and the the research man may use the copy instead of borrowing the book from the library.

A person ordering a copy made (whether in manuscript, typing, photographic, or any other form of reproduction) should bear full responsibility. So long as he uses the copy merely as research material, just as he would use a borrowed book, the matter is covered by (1) above. If he goes beyond this, and by publishing it damages the rights of the copyright owner, he and not the library should be held liable.

(3) A special situation arises in connection with learned journals. The number of these journals is so large, and their availability in America so restricted, that articles in many of them are inaccessible to numerous American scholars. We feel that the authors of these articles usually want their writings to reach colleagues in the field and to be used * * *.

(4) Books out-of-print but still under copyright ought not to become inaccessible to scholarship, and it should be lawful to make copies of such books not alone as research notes but as additions to library resources. In some cases, the wear and tear on a library book is so great that the library in order to protect the original, usually out of print, will photostat or microfilm it and have the public use the copy thus made ***.

An equitable arrangement would be to create a statutory license for the reproduction of out-of-print books * * * 17

The Thomas bill apparently attempted to follow the last recommendation of the Joint Committee on Materials for Research by providing a statutory licensing system for photocopying out-of-print works. The procedures required, however, would have been cumbersome and would have imposed a rather long period of delay before a photocopy could have been made. The Thomas bill would have afforded little or no help in solving the problem of photocopying in the more critical area of articles appearing in recent periodicals. No action was taken on the Thomas bill.

B. THE LUCAS BILL, 1944

Section 1 of the Lucas bill provided that nothing in the copyright law should be construed

to prohibit the Librarian of Congress from making, or having made, and furnishing a copy in whole or in part of any published copyright work in the collections of the Library to the following persons.

17 Memorandum on Copyright on Behalf of Scholarship Presented by the Joint Committee on Materials for Research, July 15, 1938, 1 Shotwell Papers 18. (The memoranda, minutes, and proposals of the Shotwell Committee are collected and paginated in the U.S. Copyright Office.)

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