At present, no persuasive evidence exists that the provisions of the Copyright Act of 1976 affecting photocopying are inadequate to serve the dual purposes of copyright: to reward creators of and facilitate public access to works of authorship. There can be no directly applicable evidence without some experience with the new law, now only a few months in effect. The importance of this absence of experience is accentuated by the fact that (1) photocopying received much attention during the debates preceding enactment of the new law; (2) the legislative process has produced two statutory sections dealing with photocopying;198 (3) representatives of publisher, author, and library groups have agreed on a set of formal guidelines interpreting how these statutory provisions apply to interlibrary lending;199 and (4) both government and private organizations are adapting their photocopying activities to the requirements of the new law.

Developments that have taken place since the new law came into effect on January 1, 1978, strongly support a wait-and-see attitude toward recommending major changes in its photocopying provisions. The National Technical Information Service is offering a service to provide its thirteen thousand deposit account customers with photocopies of scientific, technical, and professional literature from several thousand domestic and foreign journals. The price of the service includes a copying fee for the copyright proprietor.200 The Copyright Clearance Center, Inc., has been developed through the joint efforts of the Authors League of America, Inc., and the Association of American Publishers, scientific societies and user organizations to provide a licensing and clearing mechanism for the photocopying of copyrighted periodical literature, {Page 49} initially encompassing primarily scientific and technical journals.201 The National Commission on Libraries and Information Science has proposed the establishment of a nonprofit National Periodicals Center to provide the public with copies, including photocopies on demand, from a comprehensive collection of periodical literature.202 The operation of all these services within the framework of the new law may affect the balance of interest between copyright proprietors and users desiring photocopies of copyrighted works. Discretion would seem to require that these services operate under the new law for a reasonable period of time before any modifications are suggested.

No significant evidence has been presented to the Commission to support an argument that major legislative changes are necessary at this time. There is no immediate, measurable crisis in the publication of periodical journal literature - which is, by all accounts, the segment of publishing most directly affected by photocopying. No persuasive evidence exists that journals for which there is significant demand are going out of business because of photocopying. Nor is there a reliable means of separating the effects of photocopying from those of the pressures of rising costs and limited demand on the viability of individual journal titles. On the other hand, there is no evidence that the payments requested and the procedure for obtaining authorization to make photocopies not permitted as fair use under section 107 of the act or as a specific exemption under section 108 will impose unacceptable burdens on individuals and organizations wishing to copy.

Furthermore, there has been no strong support for modifying the statutory provisions of the 1976 Act among those most directly affected by the regulation of photocopying; neither library groups, publisher and author interests, nor members of the general public have seriously urged the Commission to recommend legislative action at this time. Although the library associations and author and publisher associations considered the advisability of further defining some terms in section 108 and clarifying the application of fair use to photocopying, they made no proposals to the Commission for legislative changes.203 Should such interest develop as a result of experiences gained from operating under the present provisions of the 1976 Act, nothing would prevent these groups, acting individually or in concert, from pursuing these concerns with the appropriate congressional committees. All of these considerations seem to counsel against major legislative action at present. Such action should await an assessment of the effects of the new law and private arrangements made in regard to its provisions.

The one area in which some legislative change is recommended in the 1976 Act concerns copying performed by commercial organizations in the business of making copies for profit. The 1976 Act and legislative history, including the educational copying, music copying,204 and CONTU interlibrary loan guidelines, provide extensive guidance to those educational institutions, libraries, and archives engaged in copying and to individuals requesting copies from such institutions. The statute requires that two warning notices be prescribed by the Register of Copyrights and posted in libraries and archives in which copying takes place. One regulation, promulgated pursuant to section 108(d), prescribes the form of copyright warning that is to appear on the order form for obtaining copies and at the place where these orders are accepted. The second regulation, promulgated pursuant to section 108(e), prescribes the form of the notice that is to appear on the order form and at the place where requests are made to copy entire copyrighted works or substantial parts thereof.205

Neither the statute, the two sets of regulations, nor the three guidelines provide particular guidance as to what may be copied by commercial organizations that make copies for customers or by individuals buying copying services from such organizations. The Commission suggests that Congress require the posting of a notice in commercial copying organizations, both to describe that copying which in most cases would not constitute fair use and to warn prospective customers of the liability they might incur {Page 50} for copying in violation of the copyright law.

The proposed statutory amendment would retain the present language of section 107, renumbered as section 107(a), and a new section 107(b) as follows:

§ 107(b) For the purpose of this title, those who make or supply copies or phonorecords to customers on demand in the regular course of their commercial business activity are referred to as “commercial copiers.” Commercial copiers shall be required to display prominently, at any location where orders for copies or phonorecords are solicited or accepted, a notice advising the public of restrictions on reproduction of copyrighted works created by this title. Displaying the notice does not in itself constitute a fair use defense for a commercial copier, but failure by a commercial copier to display the prescribed notice shall result in the denial to such commercial copier of fair use as a defense to any copyright infringement action arising from copying done in the absence of the notice, and a trebling of any monetary amounts awarded a copyright owner who prevails in a copyright infringement action against a commercial copier. Such notice shall read as follows:

Warning Concerning Copyright Restrictions

The copyright law of the United States (Title 17, United States Code) governs the making of reproductions of copyrighted works. If a work is protected by copyright, in most cases it is copyright infringement, even for purposes of private study, to reproduce more than one article or other contribution to a copyrighted collection or periodical, or more than a small part of any other copyrighted work, or to make at the same time or at different times, more than one copy of any such article, contribution or small part. Copying in violation of copyright may subject you to an action for money damages under the copyright law.

Next section: Recommendations Concerning the Five-Year Review of Photocopying Practices

198 17 U.S.C. §§ 107 and 108, which appear, along with other selected sections of the 1976 Act, in Appendix J.

199 See the discussion of Commission guidelines in this chapter.

200 The Institute for Scientific Information and University Microfilms described in this chapter have long offered similar services from their collections.

201 See this chapter under Clearance Mechanism and directly above Periodical Centers in General.

202 See this chapter under Possible Periodical Copying Centers.

203 Transcripts, CONTU Meetings Nos. 17 and 21.

204 House Report, supra note 1, pp.68, 70.

205 See Appendix J for the texts of these subsections of section 108.