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It will be observed that the preceding definitions embrace all forms of transmission and communication, including broadcasting and wire transmission, by which a performance or display is brought to members of the public, in a group or individually, at another place or places. The definitions would also include the communication to the public of a performance or display reproduced from a broadcast or wire transmission.

A.2.5 PHOTOCOPYING

In common usage, the duplication of a printed page by modern copying machines is referred to as "photocopying" whether the process used by the machines is photographic or is of another kind such as a thermal or xerographic process. As the making of copies by such machines became easier, faster, more effective, and less costly, the practice of using those machines to provide copies of copyrighted material for persons engaged in study, research, teaching, and other activities, created serious and difficult problems concerning the application of the copyright law to such copying.

The 1909 Copyright Act (like all the earlier acts) made no provision allowing any copying of copyrighted material without the copyright owner's permission. The Act gave the copyright owner the exclusive right to make copies of his work, without qualification. The courts, however, over a long period of time, had developed the doctrine of "fair use" which, stated in broad terms, allowed the copying of small portions of copyrighted works, for a legitimate purpose, in circumstances where such copying would have no appreciable effect upon the copyright owner's market for his work. The court decisions dealt mainly with short quotations from the work of one author in the later works of other authors; how far the doctrine of fair use extended to photocopying for research or scholarly purposes remained problematical.

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At an early stage when the photocopying processes were less proficient and more costly, the processes then in use being mainly photostatic and mimeographic, copies made by libraries for scholars and researchers were relatively few in number and short in length and were made in response to isolated and occasional requests. Even then the existence of a copyright problem was recognized, and the first efforts to resolve the problem were made by members of the groups concerned publishers, scholarly and research organizations, and libraries -- who sought to work out an agreement defining the area and limits of permissible photocopying. In 1935 members of those groups adopted a statement known as the "Gentlemen's Agreement" which stated that a library owning copyrighted books or periodicals "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."

The "Gentlemen's Agreement" had no binding effect for several reasons: Among others, the persons signing it were not representative of the generality of the groups concerned. Nevertheless, it suggested guidelines that were followed thereafter by many libraries, and that were to be referred to as a basis for working out a solution to the copyright issue concerning library photocopying. It is also significant as an example of attempts to adapt the copyright law to a new technology by a practical agreement negotiated between the opposing interest groups.

The photocopying problem became acute as copying machines became highly proficient in producing excellent reproductions rapidly and at steadily declining cost. During the 1960s and early 1970s the volume of copyrighted material being photocopied by libraries, as well as in schools and elsewhere, ballooned continuously to the point, and beyond the point, where publishers -- especially of scientific and technical journals and of educational texts -- expressed the fear that the resulting loss of subscriptions and sales might force them to discontinue publication of some of those materials.

The problem was given attention in the preliminary stages of the program looking toward the general revision of the copyright law*, but the groups concerned were agreed, when the first revision bill to be considered by Congress was introduced in 1965, that no specific rules for library photocopying should be incorporated in the bill; they were all willing to leave the photocopying issue for resolution by agreement among themselves or by the courts under the general principles of the fair use doctrine.

Meanwhile, a suit was instituted in the U.S. Court of Claims, Williams and Wilkins Co., v. United States, in which the plaintiff, a publisher of medical journals and books, charged two Government libraries, the National Institutes of Health library and the National Library of Medicine, with having infringed the copyright in several of its medical journals by supplying photocopies of articles in those journals to the staff researchers of NIH and to medical libraries, research institutes, and practitioners throughout the country. The main defense (among

* See the Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, published as a House Judiciary Committee Print in July, 1961, at p. 25.

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 judiciallycreated 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.

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.

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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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