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signals the system is authorized to carry by the Federal Communications Commission, and it is not liable for any royalties before the effective date of the new Act.


The issue of photocopying as a serious concern to copyright proprietors of printed matter dates from the 1930s. During that period, microphotography came to be extensively used, because it was a process that enabled printed matter to be reproduced at a reasonable cost.

In the 1930s, discussions took place between the predecessor to the Association of American Publishers and organizations of scholarly users such as the American Council of Learned Societies and the Social Science Research Council in order to define the boundaries of acceptable noninfringing photocopying. These discussions resulted in the "Gentlemen's Agreement" of 1935 which, although not binding, provided guidelines that were followed by many libraries and which stood as a basis governing library photocopying for a generation.

The significant paragraphs of the Gentlemen's Agreement are 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 reproduc-
tion 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 infringe-
ment under the copyright law;

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

This was an important effort on the part of opposing interest groups to solve a national copyright problem among themselves without recourse to Government instrumentalities.

From the 1960s onward, the photocopying problem became progressively more acute as new photocopying technologies and improved mechanical paper-handling systems combined to reduce significantly the cost per copy and to increase significantly the speed of multi-copying. Publishers, especially of scientific and technical journals and of educational texts, expressed fears that loss of sales due to photocopying might force them to discontinue certain publications. However, the several opposing interests groups agreed that in the revision bills Congress considered

in the late 1960s, the doctrine of fair use would be incorporated rather than any specific rules for photocopying. The groups hoped to work out the details of an agreement among themselves using the fair use doctrine as a basis. This doctrine, as it had been developed by the courts, was contained in Section 107 of the copyright bill passed by the House of Representatives in 1966 but never enacted into law. Section 107 of the 1966 bill included the following:

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...the fair use of a copyrighted work such as criticism,
comment, news reporting, teaching, scholarship or research,
is not an infringement of copyright. 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;
(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."

However, final agreement between librarians and publishers was not able to be worked out at that time. It foundered on the essential question of the specific boundary between fair use and infringement, and the quantity and purposes of copying which crossed the boundary.

3.6.1 Williams & Wilkins v. United States

In 1971, a suit was instituted in the U.S. Court of Claims in which the plaintiff, a publisher of medical journals and books, charged that two Government libraries, The National Institutes of Health library and the National Library of Medicine, had infringed the copyright in several of its medical journals. The plaintiff claimed that the copying done by those institutions in supplying journal articles to other medical libraries, research institutes, individual researchers, and practitioners exceeded fair use.

This case was Williams & Wilkins Co. v. United States. The initial opinion of the Commissioner hearing the case (1972) held that photocopying practices of the two Government libraries exceeded fair use. The full Court (1973) reversed this decision, 4 to 3, basing its majority opinion on essentially three criteria:

"First, plaintiff has not in our view shown, and there is in-
adequate reason to believe that it is being or will be harmed
substantially by these specific practices of NIH and NLM;

"second, we are convinced that medicine and medical research
will be injured by holding these particular practices to be an
infringement; and

"third, since the problem of accomodating the interests of

science with those of the publishers (and authors) calls
fundamentally for legislative solution or guidance, which
has not yet been given, we should not, during the period be-
fore congressional action is forthcoming, place such a risk
of harm upon science and medicine. "18

The three dissenting judges of the Court of Claims noted, in opposition:

"What we have before us is a case of wholesale copying, and
distribution of copyrighted material by defendant's libraries
on a scale so vast that it dwarfs the output of many small
publishing companies... This is the very essence of wholesale
copying and, without more, defeats the defense of fair use."

Thus, the two sides differed materially on the interpretation of the facts. The situation is reminiscent of the cable TV cases, Fortnightly and Teleprompter, where Court majorities were of the opinion that the situation demanded a legislative answer that was more flexible, involving components of right from both sides, rather than the limited yes-no answer of a judicial decision. As in those cases, the Court refrains here from providing the decision that would tend more to permanently end the controversy and would tend to end it with a greater detriment to one side than the Court feels that the losing side deserves. This interpretation may be supported with this quote from the majority opinion in Williams & Wilkins:

"The Courts are now precluded, both by the Act and by the na-
ture of the judicial process, from contriving pragmatic or
compromise solutions which would reflect the legislature's
choice of policy and its mediation among the competing inter-
ests...Hopefully, the result in the present case will be but
a 'holding operation' in the interim period before Congress
enacts its preferred solutions."

The Williams & 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. This had the effect of affirming the decision of the full Court of Claims.

3.6.2 The 1976 General Revision

Certain provisions included in the 1976 General Revision of Copyright Law were the result of hard bargaining among authors, publishers, educators, and librarians. Section 107 of the 1976 Act contains the fair use concept essentially as reproduced above (in Section 3.6) except for the addition of two phrases as concessions to educators. A purpose of use for which fair use is allowable is now teaching "(including multiple copies for classroom use)." In addition, a factor to be considered in determining whether a particular use is a fair use is "whether such use is of a commercial nature or is for nonprofit educational purposes. The House of Representatives report on the proposed 1976 Act (Report No.

94-1476 at pages 67-71) includes the texts of agreements between educators on one side and authors and publishers on the other establishing standards of fair use for educational purposes. These agreements were reached at the urging of the Congressional committees, after a series of meetings between the opposing parties.

The problem of library photocopying for scholars and researchers is dealt with in Section 108 of the 1976 Act. The language of Section 108 makes it clear that library rights do not extend to "the related or concerted reproductions...of multiple copies...of the same material," or "the systematic reproduction...of single or multiple copies." In addition, the Conference Report on the proposed 1976 General Revision (House Report No. 94-1733 at pages 71-73) contains a set of guidelines agreed to by the opposing parties that define the extent of loans permitted in interlibrary arrangements. These guidelines were developed with the assistance of the National Commission on New Technological Uses of Copyrighted Works (see Section 3.8, below).

3.6.3 Current Situation

Despite the successful negotiations that resulted in the provisions of the 1976 General Revision, the photocopying problem is not fully solved. There does not exist at this time any fully-established clearinghouse or other mechanism for payment of royalties for photocopying beyond the guidelines established, nor is it clear that the current guidelines can be enforced. At present, an effort is underway through the auspices of the Association of American Publishers to establish a clearinghouse system.19


The decision to accept for copyright registration a work on a micromedium that would otherwise be copyrightable if intelligible to the unaided eye was made independently by the Copyright Office through its regulations. It was believed by that office that the 1908 Supreme Court decision in the White-Smith case, which had never been overturned, would not prevent the registration of a work on micromedia since that Court ruling concerned a piano roll which was not intended to be made visually intelligible in its normal use. Since a work on any type of micromedia was intended to be made visually intelligible (with the aid of devices) when communicating information to people, the Copyright Office did not believe that the White-Smith ruling took precedence. The same reasoning was applied in the later acceptance for copyright of works on videotape.

These regulations of the Copyright Office were generally accepted and not challenged in the Courts. The 1976 General Revision of Copyright Law removed any lingering doubts about these regulations by making copyrightability independent of the medium in which a work is fixed.


Significant recognition of the need for the National Commission on New

Technological Uses of Copyrighted Works (CONTU) dates from 1967.

It became clear at that time that the lack of adequate study of the problem of the impact of computers and information storage and retrieval systems on copyright would conflict with efforts to enact a general revision of copyright law.

The question of how the law would view computer uses of copyrightable works during the time that CONTU was deliberating and before Congress acted on CONTU's recommendations prevented quick agreement on the formation of CONTU and delayed its establishment. Ultimately, agreement was achieved among opposing interest groups on inserting a section in the proposed general revision of copyright law that provided that the law on the use of copyrighted works in computer systems was to be unaffected by enactment of the general revision. This paved the way for establishment of CONTU on Dec. 31, 1974 as P.L. 93-573.20

In addition, the "hold constant" section, Section 117, was enacted as a part of the 1976 General Revision of Copyright Law, P.L 94-553 on Oct. 19, 1976. The new Act takes effect on January 1, 1978. Section 117 states that:

...this title does not afford to the owner of copyright in a work any greater or lesser rights with respect to the use of the work in conjunction with automatic systems capable of storing, processing, retrieving, or transferring information... than those afforded to works under the effect on December 31, 1977..."

The function of CONTU (according to P.L. 93-573, Section 201) is to study and make recommendations to Congress on legislation or procedures concerning:

"(1) the reproduction and use of copyrighted works of author


(A) in conjunction with automatic systems capable of
storing, processing, retrieving, and transferring in-
formation, and

(B) by various forms of machine reproduction, not in-
cluding reproduction by or at the request or instructors
for use in face-to-face teaching activities; and
(2) the creation of new works by the application or inter-
vention of such automatic systems of machine reproduc-

It may be noted also that CONTU is to be concerned with:

"Changes in copyright law or procedures that may be necessary
to assure...access to copyrighted works, and to provide recog-
nition of the rights of copyright owners" (Section 201 (c)).

In the above, the balancing of the needs of users and producers may be

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