Sections 107 and 108 of the Copyright Act of 1976 govern photocopying activities.213 An understanding of these sections and their legislative history is necessary to analyze the needs of copyright proprietors and those who seek access to printed works by means of photocopying.

The 1976 Act deals with photocopying in four different ways:

1. Copying for teaching purposes is dealt with, not by specific statutory exemptions, but rather by a list of permissible practices held to be fair use under section 107. This is accomplished by means of the so-called educational guidelines, the “Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions,” which were negotiated by educational, author, and publisher organizations and accepted by the congressional committees.214 {Page 53} (They will not be dealt with here in any further detail because of the explicit exclusion from the jurisdiction of the Commission of copying done in connection with face-to-face teaching activities.)

2. Permissible copying of music for educational use is also covered in guidelines which were negotiated between music publishing organizations and organizations representing music users. The House Committee report sets forth these guidelines.215

3. Specific exemptions for photocopying by libraries and archives are set forth in section 108 of the 1976 Act and are discussed in detail in the following sections of this chapter.

4. By implication, since they are the subject of no specific exemptions or guidelines, the following classes of copiers may engage in only fair use copying under the four general standards set forth in section 107 of the act: (a) individuals doing their own copying; (b) libraries and archives not qualifying for the privileges of section 108; and (c) organizations which are not libraries or archives, including profit organizations charging fees for copying.216

Section 108 permits copying of most materials without authorization by libraries or archives for themselves and for their users in specified circumstances provided that: (1) the library or archives is open to the public or available to specialized researchers; (2) the reproduction or distribution includes a notice of copyright; and (3) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage.217 This third limitation is interpreted in the House report to mean that “direct or indirect commercial advantage” is an intention to profit directly from the sale of copies, rather than to profit from the use of the reproduced material in the business of the organization.218

Libraries and archives qualifying for the privileges of section 108 are permitted to make copies for themselves (as opposed to making copies for their patrons or users) only in two cases. Section 108(b) permits a library or archives to reproduce an unpublished work for purposes of preservation, security, or research use in another library if the copy or phonorecord is currently in the collections of the library or archives. Section 108(c) permits libraries and archives to reproduce damaged, deteriorated, lost, or stolen copies if, after a reasonable effort, an unused replacement cannot be obtained at a fair price.

Libraries and archives are given more extensive privileges of making copies for users both from their own collections and by securing copies from other sources. The principal privilege is conferred by section 108(d), which permits the making of not more than one copy of an article from a periodical, or other contribution to a copyrighted collection, or a small part of any other copyrighted work, for purposes of private study, scholarship, or research, provided that the library displays prominently at the place where orders are accepted and includes in its order forms the warning of copyright prescribed by regulation of the Register of Copyrights.

Libraries and archives also have the right under section 108(e) to make a copy for a user of an entire copyrighted work or a substantial part of it, or to secure a copy from another source, if (1) determination has been made that a copy cannot be obtained at a fair price; (2) the purpose of the requester is private study, scholarship, or research; and (3) the prescribed warning by the Register of Copyrights is displayed and included on the order form.

All of the rights to make copies that are enumerated in section 108 are limited by the prohibition in section 108(g) against “the related or concerted reproduction . . . of multiple copies . . . of the same material” and the “systematic reproduction or distribution” of periodical articles or other small portions of copyrighted works. This prohibition against systematic reproduction and distribution, however, is in turn limited by the proviso in section 108(g) (2), which states “[t]hat nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription {Page 54} to or purchase of such work.” The aggregate quantities that constitute a substitution for a subscription or purchase of a work are defined in the CONTU guidelines, which are described in the next section.

Next section: CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements

213 For the full text of these sections, see Appendix J, which also contains the text of two other provisions concerning photocopying: section 504(c) (2), relating to the possible remission of statutory damages for infringement by employees or agents of nonprofit educational institutions, libraries, or archives acting within the scope of their employment; and section 602(a) (3), relating to the importation of copies by nonprofit scholarly, educational, and religious organizations.

214 House Report, supra note 1, pp. 68 - 70.

215 Ibid., pp. 70 - 72.

216 See Appendix J for the text of section 107.

217 Section 108(h) excludes “a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news . . .”

218 House Report, supra note 1, p.74.