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others) argued on behalf of the libraries was that their photocopying was a fair use. The case was a particularly difficult one because it presented a situation of copying on such a large scale as to strain the usual limits of fair use and perhaps jeopardize the economic viability of publishing such journals; but, on the other hand, copying for a noncommercial social purpose to supply medical and related scientific information to those engaged in medical research and health maintenance -- as worthy and essential as any that could be thought to justify copying as a fair use.

In both the initial opinion of the Commissioner of the Court of Claims
(172 USPQ 670, 1972) and the subsequent decision by the full Court
(487 F. 2d 1345, 1973), it was noted that fair use is a judicially-
created doctrine that cannot be defined with precision, and that the
House Judiciary Committee, in its Report (No. 83, 90th Cong.) on the
copyright law revision bill then pending had stated that the principal
factors in determining what constitutes a fair use were:

"(a) the purpose and character of the use, (b) the nature of
the copyrighted work, (c) the amount and substantiality of
the material used in relation to the copyrighted work as a
whole, and (d) the effect of the use on a copyright owner's
potential market for and value of his work.

The Commissioner held that the photocopying practices of the two Government libraries were not within the bounds of fair use but constituted infringement of the copyrights. As he saw it:

"Defendant's photocopying is wholesale copying and meets none of the criteria for 'fair use.' The photocopies are exact duplicates of the original articles; are intended to be substitutes for, and serve the same purpose as, the original articles; and serve to diminish plaintiff's potential market for the original articles since the photocopies are made at the request of, and for the benefit of, the very persons who constitute the plaintiff's market."

The full Court divided 4 to 3 on the issue. The majority stressed the social importance of making information readily available for medical research and played down the potential damage to the copyright owner, concluding that the photocopying practices of the two libraries were fair use. Quoting from the majority opinion:

"While, as we have said, this record fails to show that plaintiff (or any other medical publisher) has been substantially

harmed by the photocopying practices of NIH and NLM, it does show affirmatively that medical science will be hurt if such photocopying is stopped. Thus, the balance of risks is definitely on defendant's side -- until Congress acts more specifically, the burden on medical science of a holding that the photocopying is an infringement would appear to be much greater than the present or foreseeable burden on plaintiff and other medical publishers of a ruling that these practices fall within 'fair use.'"

The majority opinion wound up by calling for Congressional resolution of the problem:

"Finally, but not at all least, we underline again the need for
Congressional treatment of the problems of photocopying...
The Courts are now precluded, both by the Act and by the nature
of the judicial process, from contriving pragmatic or com-
promise solutions which would reflect the legislature's choice
of policy and its mediation among the competing interests...
Hopefully, the result in the present case will be but a
'holding operation' in the interim period before Congress
enacts its preferred solution.'

The three judges of the Court of Claims who dissented from the majority opinion expressed their agreement with the Commissioner's view of the case, saying:

"What we have before us is a case of wholesale, machine 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...

"It is indisputed that the photocopies in issue here were exact duplicates of the original articles; they were intended to be substitutes for and they served the same purpose as the original articles. They were copies of complete copyrighted works within the meaning of Sections 3 and 5 of the Copyright Act. This is the very essence of wholesale copying and, without more, defeats the defense of fair use."

The minority opinion sought to counter the fear expressed by the majority that a holding of infringement in this case would result in stopping entirely the furnishing of photocopies needed by medical researchers; the minority suggested that those needs could be met by arrangements for licensing photocopying.

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;

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(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.

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

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