of the problems pertaining to library photocopying. As to single articles in a periodical, subsections (1) and (2) appear to adopt the principles of the earlier "Fair Copying Declaration" of the Royal Society. As to other works, the remaining subsections impose conditions that appear to be quite restrictive. They have been criticized as being too complicated and restrictive; and it has been suggested that libraries, instead of attempting to meet the conditions of section 7, may furnish photocopies to students under the more liberal "fair dealing" provision of section 6.24

This last suggestion seems questionable. During the discussion of sections 6 and 7 in the Parliamentary Committee, the Parliamentary Secretary to the Board of Trade (Mr. Derek Walter-Smith) made the following observation:

Clause 6(1) gives to students the right of copying for research or private study, and, as the Committee will see, that is a very broad right which extends to the work as a whole. It is quite appropriate that the particular fair-dealing provision should be in such wide terms, because there are physical inhibitions upon what the student can do which of themselves operate so as not to require any legal reinforcement. A student copies by hand, and therefore he can be given wide rights because he will not physically be able to do more than provide for his genuine personal needs ****.

A librarian, of course, will make his copies by these new, or fairly new, mechanical processes. There is no physical limitation upon what he can do, because he has got his photocopying apparatus. The librarian is necessarily in rather a different position from that of the student, both in what should be his legitimate requirements and what is his capacity for making copies of the work. It is not suggested, therefore, that he should have such a wide right as the student. It is in this case not appropriate, I think, that the very wide powers in subsection (1) of clause 6 which apply to students should be given to the librarian for the supplying of copies *** 25

After this statement by the Parliamentary Secretary, an amendment which proposed that librarians should be allowed to do for students what they could do for themselves failed to carry.

The provisions of section 7 of the new United Kingdom Act are discussed in the report issued in 1957 by the Canadian Royal Commission on Patents, Copyright, Trade Marks and Industrial Designs.26 The Canadian Commission recommended that the United Kingdom provisions be adopted in a new Canadian copyright law, but with several liberalizing modifications. The most important modifications suggested were: (1) that section 7(2) (d) be changed so as to permit the supplying of more than one article in any one periodical publication in cases where more than one article relates to the same subject matter; (2) that section 7 (2) (e), which requires a payment for photocopies of not less than the cost of producing them, be omitted in the Canadian law; and, (3) that the provision of section 7(3) requiring permission from the copyright owner, if he can be located by reasonable inquiry, for the photocopying of parts of works other than periodicals, be omitted.

The New Zealand Library Association has recently recommended to a goverment committee, which is working on a new copyright law for New Zealand that rules similar to the United Kingdom rules, but with the modifications suggested by the Canadian Commission, be adopted.27

24 See Woledge, Copyright and Libraries in the United Kingdom, 14 JOURNAL OF DOCUMENTATION 45 (1958).

25 Parliamentary Debates, House of Commons, Official Report 192 (3 July 1956).

* Report on Copyright 57–60 (1957).

27 1959 New Zealand Libraries 12.

F. THE SCANDINAVIAN COUNTRIES

The present Danish, Finnish, Norwegian, and Swedish copyright laws do not expressly provide for any right to make copies of copyrighted material. Provisions to permit the making of copies for personal use are proposed in the new draft laws which have been published recently by the respective Governments. Thus, the Swedish draft contains the following provision:

§ 11. A disseminated work may be reproduced in single copies for private Such copies may not be used for other purposes.

use.

It is clear from the official reports issued with the draft laws that this provision is intended to cover the making and supplying of photocopies, etc., by libraries and similar institutions although the privilege is not limited to them. According to the Swedish report, the draftsmen considered limiting the privilege to certain types of works. They found, however, that practical conditions, the price of photocopying, etc., would establish appropriate limitations in this field.28 The draftsmen also considered a compulsory licensing system, but they abandoned this idea, partly because it would be too complicated to administer, and partly because it might mean that Swedish users would have to pay for the use of foreign periodicals while foreign users of Swedish periodicals might not be subjected to such a burden.29 The Swedish draft law (but not the other Scandinavian drafts) also contains the following provision:

§ 12. Upon permission of the King, and according to the conditions he shall stipulate, archives and libraries may make photographic reproductions of a work for the purposes of their activities.

V. SUMMARY AND ANALYSIS OF THE PROBLEM

A. GENERAL OBSERVATIONS

It has long been a matter of common practice for individual scholars to make manual transcriptions of published material, though copyrighted, for their own private use, and this practice has not been challenged. Such transcription imposed its own quantitative limitations; and in the nature of the event, it would not be feasible for copyright owners to control private copying and use. But reproduction for private use takes on different dimensions when made by modern photocopying devices capable of reproducing quickly any volume of material in any number of copies, and when copies are so made to be supplied to other persons. Publisher's copies are bought for the private use of the buyer, and in some circumstances a person supplying copies to others will be competing with the publisher and diminishing his market.

Not only is such competition unfair to the publisher and copyright owner, but it may be injurious to scholarship and research. Thus, it has been pointed out that the widespread photocopying of technical

29 UPPHOVSMANNARATT TILL LITTERARA OCH KONSTNARLIGA VERK 191 (Stockholm 1956).

29 Id. at 190.

journals might so much diminish the volume of subscriptions for the journals as to force the suspension of their publication. 30

At the same time, the availability of a growing mass of published materials is essential to persons engaged in research, and in many situations they must be able to obtain copies for study from libraries (or similar institutions) where the materials are collected. To fulfill this need, libraries must be able to supply photocopies to the extent that it is not practicable to provide published copies for the use of researchers.

The problem, in essence, may be seen as this: How can researchers be supplied with the materials they need for study, without undercutting the publisher's market? Perhaps various limitations can be placed on photocopying to preclude or minimize the potential injury to publishers or copyright owners, without depriving researchers of the materials they need.

B. PHOTOCOPIES FOR INDIVIDUAL RESEARCH

Some guides to the limitations that might be appropriate for supplying photocopies to individuals might be found in the "Gentlemen's Agreement" of 1937, the "Fair Copying Declaration" of the British Royal Society, the proposals presented to the Shotwell Committee, and the foreign laws and proposed laws, all outlined above.

These sources suggest for consideration limitations such as the following: that photocopying be limited to nonprofit institutions; that only one photocopy be supplied to any one individual or organization; that in the case of periodicals photocopies be limited to one or two articles from any issue; that in the case of other works, photocopies be limited to a reasonable portion of the work (though no mathematical formula would seem to be feasible), except that a photocopy of an entire work might be permitted where it is not available from the publisher.

Other conditions for the photocopying might also be suggested for consideration, for example: that on each photocopy the source should be shown and the copyright notice appearing on the source should be reproduced; that the person requesting the photocopy should be required to state in writing that it is to be used only for his private study; that if he requests a photocopy of an entire work, he be required to state in writing that he has made inquiry and has found that the publisher cannot supply him with a copy.

See, for example, Walter J. Murphy, Should the Copyright Law Be Abolished? in CHEMICAL AND ENGINEERING NEWS, Oct. 6, 1958. In regard to scientific journals in particular, it may be the publishers rather than the authors who are concerned about photocopying. In a recent Report by the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Judiciary Committee (S. REP. 97, 86th Cong., 1st Sess. 12 (1959)), appears the following: "Most scientists feel that their work is not published to gain any financial reward for the authors but should provide scientific data which other scientists may freely use and build upon to advance the cause of science. On the other hand, the commercial publishers of scientific articles regard copyright protection as essential to meet their costs of publication. A clash between these authors and publishers occurs when public libraries or private industrial subscribers undertake to circulate numerous copies of scientific articles for the benefit of interested scientific personnel. The authors regard such copying as desirable. The publishers feel that it impairs their circulation and revenue.'

C. MULTIPLE PHOTOCOPIES FOR CORPORATE RESEARCH

The limitations mentioned above would seem to preclude the making of multiple photocopies by or for a corporate organization for the use of its staff of research workers. This is a problem of growing importance since scientific research is being conducted increasingly by the staffs of corporate organizations. The materials needed in multiple copies for their research staffs are primarily articles in current technical journals. There is probably not the same need for supplying copies of other kinds of works (such as books or older periodicals) simultaneously to several members of a corporation's research staff. One copy of such other works, to be supplied on the same basis as to an individual researcher, might suffice.

Multiple photocopying for the use of a corporation's research staff seems more difficult to justify than the making of a single photocopy. Publishers of technical journals may well feel that such multiple photocopying of current material would seriously curtail their market, and that corporate organizations, particularly those operated for profit, should be expected to buy the publisher's copies in the number needed for their staff.31

As noted above, the Supreme Court of the German Federal Republic in 1955 held that such multiple photocopying by an industrial corporation is an infringement of copyright; and a practical solution to the problem has recently been worked out by an agreement between the German publishing and industrial associations, whereby industrial organizations pay royalties for photocopies they make of articles in periodicals less than 3 years old. Some such royalty arrangement appears to be a reasonable solution for this special problem. In fact, a royalty arrangement might be a solution to the photocopying problem in a broader area, as will be mentioned later.

D. PHOTOCOPYING FOR A LIBRARY'S COLLECTIONS

Mention has been made of the need of libraries to make microfilm or other photocopies of items in their collections for their preservation. Also, libraries have occasion to supply other libraries with photocopies of items not otherwise available. În either case, as long as the copies needed are not available from the publisher, photocopying for a library would not appear to prejudice the interests of the publisher or copyright owner.

VI. APPROACHES TO A SOLUTION

A. GENERAL ALTERNATIVES

Two alternative approaches to a solution of the photocopying problem may be considered: (1) to provide by statute for the making and supplying of photocopies for purposes of research and study, or (2) to leave the matter to the working out of practical arrangements between libraries and research groups on the one hand and publisher and author groups on the other.

1. Statutory provisions.-Several kinds of statutory provisions might be suggested for consideration. Possible models are found in See Walter J. Murphy, op. cit., note 30, supra.

the laws and proposed laws of other countries outlined in part IV of this study, and perhaps in the two prior bills outlined in part III. (a) The statute might provide in general terms that single photocopies may be made by or for any person for his private use only. Such provisions are found in the Austrian law (with limitations added. where copies are supplied "for compensation"), in the present German law and the new draft law for the German Federal Republic (the draft law adding limitations where the copies are not made "free of charge"), and in the new draft laws for the Scandinavian countries (except for certain kinds of works).

Such a general provision would serve to establish the right to make and supply single photocopies for the sole purpose of research and study. It would not limit the persons or institutions by whom photocopies could be made and supplied, or the kinds of works or the quantity of any work that might be photocopied.

The addition of some limitations might be considered; for example, that the photocopies be supplied without profit (which may be the purport of the Austrian law and the new draft law for the German Federal Republic).

A broad provision of this character would have the merit of simplicity, but it might open the door to such extensive photocopying as to present the danger of injury to the interests of publishers and copyright owners, unless further limitations were prescribed.

(b) A statutory provision might prescribe precise limitations and conditions under which photocopies may be supplied. Thus, in addition to the general limitations of a single copy for private use only, a number of further limitations and conditions are found in the United Kingdom Act of 1956. It limits the privilege of supplying photocopies to nonprofit libraries. Photocopies of periodicals are limited to one article in any issue (the Canadian Commission has recommended that photocopies of more than one article be authorized where the articles relate to the same subject). Photocopies of other literary, dramatic or musical works are limited to a "reasonable proportion" of the work; and they may be supplied only where the librarian does not know and could not ascertain by reasonable inquiry the name and address of the copyright owner (the Canadian Commission has recommended deletion of this last condition). Under this last condition a photocopy of a complete work may be supplied by one library to another. The recipient must pay for the photocopy not less than the cost of its production (the Canadian Commission has recommended deletion of this requirement).

A detailed statutory prescription of this character would have the apparent advantage of fixing, with some degree of certainty, the permissible scope of photocopying. Thus, the statute could define the institutions authorized to make photocopies, the purposes for which photocopies may be made and supplied to others, the kinds of material and how much of each kind may be photocopied, and the conditions under which photocopies may be made and supplied. Precise limitations and conditions could be imposed in these respects to assure safeguarding the interests of publishers and copyright owners. But any such detailed prescription is likely to prove too complex and too restrictive from the standpoint of libraries and researchers. The new United Kingdom Act has been severely criticized on this score.