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- Table of Contents -

Introduction to the online version

Chapter 1 – The Commission and Its Recommendations

Chapter 2 – The Establishment, Mandate, and Activities of the Commission

Chapter 3 – Computers and Copyright

Chapter 4 – Machine Reproduction – Photocopying

- Recommendations of the Commission

- Recommendation for Amending One Area of the 1976 Copyright Act

- Recommendations Concerning the Five-Year Review of Photocopying Practices

- Recommendations to Publishers

- Recommendations to Government Agencies

- Provisions of the 1976 Copyright Act Affecting Photocopying

- CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements

- Volume of Library Photocopying in 1976

- Means of Obtaining Permission to Make Photocopies or to Obtain Authorized Copies under the 1976 Copyright Act

- Interrelated Economics of Publishing and Libraries and the Impact of Copying Fees

- Legislation and Systems Relating to Photocopying in Other Countries

- Recommendations of Interested Organizations

- Effects of Future Technological Change

Chapter 5 – Summary

Appendix A – Summary of the Legislative History of Computer-Related Issues and the Photocopy Issue

Appendix B – Public Law 93-573 and Public Law 95-146

Appendix C – Commissioners

Appendix D – Staff

Appendix E – Lists of Witnesses

Appendix F – Alphabetical Listing of Persons Appearing before the Commission

Appendix G – Transcripts of Commission Meetings

Appendix H – Summaries of Commission-Sponsored Studies

Appendix I – Bibliography

Appendix J – Selected Provisions of the Copyright Act of 1976 and Copyright Office Regulations

Full table of contents

PDF version of the report

Picture of commissioners and staff

Final Report of the National Commission on New Technology Uses of Copyrighted Works

Chapter 4 – Machine Reproduction – Photocopying

Volume of Library Photocopying in 1976

Enactment of the 1976 Act was one prerequi­site to the Commission’s formulation of recom­mendations concerning photocopying. Another was access to data about the incidence of photocopying {Page 56} and its impact, both real and perceived, on the activities of authors, publishers, and those seeking access to works of authorship. Two studies published in 1976 and 1977 pro­vided most of the data that was utilized by the Commission for these purposes.

Comprehensive quantitative data on the pho­tocopying of copyrighted materials in the United States is provided by the 1977 report of King Research, lnc.,221 which was based primarily on sample surveys of photocopying conducted on supervised machines by public, academic, federal government, and special libraries.222 Records of 130,000 interlibrary loan transactions in 1976 in the Minnesota Interlibrary Telecommunica­tions Exchange (MINITEX), a network of libraries in Minnesota and surrounding states, supplemented the King Research survey sam­ple.223 An advisory committee consisting of librarians, publishers, and government agency officials provided oversight for the project.

Although the study has furnished the most comprehensive body of data on photocopying ever assembled in the United States, it did not cover every kind of photocopying of copyrighted materials. It excluded, for example: (1) copy­ing in public and nonpublic elementary and sec­ondary school libraries; (2) copying for class­room use in nonprofit educational institutions at all levels-elementary, secondary, and higher-unless the copying was performed by the library of the institution; (3) copying on unsupervised machines (including coin-operated machines in libraries and elsewhere in organizations); (4) copying by government agencies other than in their libraries; (5) copying by organizations other than libraries or in organizations in units other than the libraries, such as by business organizations without libraries or departments of educational institutions; and (6) copying by organizations selling copying services either as a major or incidental part of their operations, such as commercial photocopying services and “information brokers.”224

The overall volume of items of copyrighted materials estimated to have been copied by the four types of libraries sampled in the King study are shown in Table 2.225

Table 2 - Photocopying in Libraries from All Copyrighted Materials

Millions of Photocopied Items (one or several pages)

An estimated total of 53.9 million items from copyrighted materials was copied on supervised machines in the twenty-two thousand libraries in the universe sampled. Of this total, 70 per­cent was copied from serials, 24 percent from books, and 6 percent from other copyrighted materials. The task of estimating what amount of this volume of copyrighted materials would be exempted under sections 107 and 108 of the 1976 Act and what amount would require authorization to copy is complicated by the fact that the contract for the King study came into effect in July 1976, three months before the new Copyright Act was enacted and its detailed provisions on photocopying were known. The data gathered, therefore, may not correspond exactly with the activities defined in the act. Nevertheless, some rough estimates may be drawn for the types of libraries included in the survey. This analysis is undertaken in the fol­lowing sections, broken down into the three types of transactions, and then broken down in each case by type of library.

Copying of Copyrighted U.S. Serials for Interlibrary Loan

The King sample survey collected more de­tailed data concerning copying for interlibrary loan arrangements than for any other cate­gory.226{Page 57} Its data were supplemented and rein­forced by the data on the 130,000 actual trans­actions in the MINITEX system. Table 3 contains the King study figures on the total volume of copying of U.S. copyrighted serials for inter-library loan and the alternative estimates of the volume of copying that would require authoriza­tion under section 108(g) (2) and the CONTU guidelines.227

Table 3 - Photocopying From U.S. Copyrighted Serials For Interlibrary Loan

Millions of Photocopied Items (one or several pages)

The King study data suggest that from 505,000 to 1,925,000 of the items from U.S. serials photocopied for interlibrary loan in 1976 would have required authorization from the copyright proprietor, had the provisions of the 1976 Act been applicable.228 To this number, however, must be added some portion of the 1,200,000 copies made from copyrighted books, of the 600,000 photocopies made from other copyrighted materials, and of the copies of for­eign serials and materials for which copyright status was not reported. Appropriate deductions not from all of these categories must be made to take into account copying for classroom use and replacement. A portion of that copying may be exempted from copyright liability under sections 107 and 108. These figures in turn should be reduced by the number of single-page photo­copied items made for interlibrary loan, which likely fall under the definition of fair use.

Information on One-page and two-page items is available in the King study only for period­icals and other serials and not for books or other copyrighted material. That information indicates that 16 percent of the filled requests were for one page. If 16 percent is deducted from the figures in columns 3 and 4 of Table 3, the number of copies of domestic serial items photocopied for interlibrary loan and requiring authorization would be reduced to 420,000 copies for articles less than six years old and 1,621,000 copies of articles, irrespective of age.

Photocopies Made for Local Use

Copying for local use as defined in the King study includes copying by public library bor­rowers, students and faculty of colleges and uni­versities, and employees of libraries and the institutions in which they are located, including corporate employees. The number of copies for local use will also include those permitted under the fair use provisions of section 107, which permit the making of one copy of an article or a small portion of other works for purposes of private study, scholarship, or research, as well as those permitted under the provisions of section 108(d). The King study provides no {Page 58} direct data on these types of exempted copying, but an approximation appears in Table 4, arrived at by distinguishing single and multiple copies and by applying estimates of the number of photocopied items consisting of but one page.

Table 4 – Photocopying from All Copyrighted Serials for Local Use

Millions of Photocopied Items (one or several pages)

At first glance it appears that only some 5,100,000 photocopied items made for local patrons would require authorization. To this number must be added some portion of the 4,260,000 single items photocopied by libraries in profit organizations to take into account photocopies by those libraries that do not avail themselves of the benefits of section 108(d) because their collections are not open to the public or specialized researchers.

Photocopies Made for Intrasystem Use

The second-highest volume of copying of copyrighted materials in the types of libraries surveyed by King Research was for intrasystem loan. This volume was almost as great as copying for local patrons and more than twice as great as copying for interlibrary loan. Intrasystem loan was defined in the King study as “borrowing or lending of library materials carried on between branches or departments within the same library system as determined by common funding.” No definition was provided for library system, but a library was defined to include “both the central library/headquarters {Page 59} and the branch libraries/departments of your library system or archives.”229

The problem of estimating what portion of the intrasystem photocopying of copyright ma­terials falls within fair use under section 107 or within the exceptions in section 108 is fur­ther complicated by the lack in either the 1976 Copyright Act or its legislative history of defi­nitions of the terms library or archives. It is necessary to estimate what portion of intrasys­tem loan copies is governed by section 108(d) - single copies for patrons of articles or other small portions of copyrighted works - and what portion of the copies is governed by the limita­tions in section 108(g) (2) on copying for in­terlibrary loan. Presumably, Congress intended that individual instances of copying would fall under one or the other of these provisions, but not under both.

The estimates made in the analysis which fol­lows are based upon the assumption that copy­ing for intrasystem use is copying within a libraryas that term is used in the statute. For example, it is assumed that a large city’s central or headquarters library and its numerous branches constitute one library, and, therefore, any library patron in that city may go to the headquarters or any branch to secure a single copy of an article from any periodical sub­scribed to by any library unit in that city-pro­vided that the requests for the copies are isolated, unrelated, and not a part of a concerted or systematic scheme-without incurring liability to the copyright proprietor in accord with sec­tion 108(d). Conversely, securing such a copy would not count as an interlibrary loan under the provisions of section 108(g)(2) and the CONTU guidelines. The corollary of this inter­pretation is that if the periodical is not sub­scribed to by any unit in the city system, all re­quests for copies of articles made to any unit in the city which were met from sources not in the city system would count against the quota of five copies in the CONTU guidelines. This inter­pretation seems to fit best with usual library practice, wherein only requests for copies that cannot be met within a city system are counted as interlibrary loans.

Table 5, which follows, applies this assump­tion in attempting to estimate what portion of the volume of photocopying shown in the King study as intrasystem use requires authorization.

Table 5 – Photocopying From All Copyrighted Serials For Intrasystem Loan

Millions of Photocopied Items (one or several pages)

An examination of Table 5 suggests that some 2,270,000 items copied for intrasystem loan would require authorization. To this num­ber, however, should be added some portion of the 2,100,000 single copies made by special li­braries, shown in column 3, to account for intrasystem copying by libraries in for-profit or­ganizations that do not avail themselves of the privileges of section 108.

Table 6 recapitulates estimates of the minimum number of items copied from copyrighted materials on unsupervised machines in libraries that would require consent of the copyright pro­prietor.

{Page 60}

Table 6 – Items Copied from Copyrighted Materials on Unsupervised Machines

Next section: Means of Obtaining Permission to Make Photocopies or to Obtain Authorized Copies under the 1976 Copyright Act

221 See note 194, supra. This study was conducted in 1976 and 1977 under contract with the National Commission on Libraries and Information Science (NCLIS), with additional financial support from the National Science Foundation and CONTU. Such a study was recommended in 1975 by the Conference on the Resolution of Copyright Issues, which con­sisted of representatives of producers and consumers of copyrighted materials under the joint chairmanship of Frederick Burkhardt, chairman of NCLIS, and Bar­bara Ringer, Register of Copyrights.

222 Special libraries generally are libraries other than public, school, federal, or academic. Included would be libraries located in business corporations, trade associations, law firms, museums, hospitals, etc.

223 The MINITEX records constituted the only exist­ing comprehensive data on interlibrary loan trans­actions for an entire year.

224 See this chapter under Secondary Suppliers of Authorized Copyright-Fee-Paid Copies.

225 The volumes of photocopying discussed in the following section may be significantly smaller than the estimated volumes which would have resulted from a more comprehensive survey covering the ex­emptions noted above. Such a survey would probably have been precluded by such factors as cost, available time, and lack of adequate statistical universes (mail­ing lists).

226 The definition of a serial used in the King study. supra note 194, p. ix, is: “A publication issued in successive parts bearing numerical or chron­ological designations, which is intended to be con­tinued indefinitely and which may be identified by an ISSN (International Standard Serial Number). Serials include periodicals, newspapers, and the jour­nals, memoirs, proceedings, transactions, etc., of soci­eties. Serials are subject to subscription prices paid in advance. (This eliminates publications that appear annually or less frequently.)”

227 The King study provides no similar breakdown for books or other copyrighted materials, nor for serials not published in the United States.

228 The total figure would depend on how articles from journals over five years old - those not covered by the CONTU guidelines-were treated.

229 King study, supra note 194, pp. viii, 216.