In 1955, the Copyright Office began sponsoring-before any legislative action on revising the existing 1909 law-a series of thirty-four studies on copyright law and practice for the Senate Judiciary Subcommittee on Patents, Trademarks, and Copyrights. Studies number 14 and 15, “Fair Use of Copyrighted Works” by Alan Latman, and ‘Photoduplication of Copyrighted Material by Libraries” by Borge Varmer, respectively, appeared in 1960.38

After examining the status of fair use under American case law, previous proposals for legislative revision, and the laws of other nations, Latman summarized the issue as follows:

1. Should a statutory provision concerning fair use be introduced into the U.S. law?

2. If so:

(a) Should the statute merely recognize the doctrine in general terms and leave its definition to the courts?

(b) Should the statute specify the general criteria of fair use? If so, what should be the basic criteria?

3. Should specific situations be covered? If so, what specific situations?39

Varmer followed the same format in his study on photoduplication and made this summary of the basic issues:

The following appear to be the primary questions to be considered.

1. Should the copyright statute provide expressly for the photocopying of copyrighted works by libraries? If so:

(a) Should the statute merely provide, in general terms, that a library may supply a single photocopy of any work to any person for his personal use in research and study?

(b) Should the statute specify limitations and conditions with respect to:

(1) the kinds of library institutions that may make and supply photocopies?

(2) the purposes for which they may make and supply photocopies?

(3) the conditions under which they may make and supply photocopies?

(4) the extent to which they may photocopy, under the specified conditions, the contents of (1) periodicals and (2) other publications?

(5) the kinds of published material, if any, which they may not photocopy?

c) Should the statute provide for photocopying in general terms (as in (a) above) subject to limitations and conditions to be prescribed by administrative regulations?

2. Instead of a statutory prescription, would it be preferable to encourage the libraries, publishers, and other groups concerned to develop a working arrangement, in the nature of a code of practice, to govern photocopying by libraries?40

Comments on this study by the following individuals (with their affiliations when given) are appended to the text:

Philip B. Wattenberg, 73

Robert Gibbon, Curtis Publishing Company, 73

Harry R. Olsson, Jr., 74

{Page 90}

Elisha Hanson,74

Melville B. Nimmer, 75

Edward G. Freehafer, Joint Libraries Committee on Fair Use in Photocopying, 75

William P. Fidler, 76

Sixteen years later, following numerous congressional hearings and several attempts at revising the law, these questions were answered by the Copyright Act of 1976.

In July 1961, the House Committee on the Judiciary issued a report containing “the tentative recommendations of the Copyright Office for revision of the law.” It was “issued for the purpose of inviting all persons concerned to submit comments and suggestions. . . .” The report dealt with photocopying by libraries in the following language:

Library photocopying.—The report would permit a library to make a single photocopy of material in its collections for research purposes under explicit conditions. . . .41

Photocopying by Libraries

a. Statement of the problem

The application of the principle of fair use to the making of a photocopy by a library for the use of a person engaged in research is an important question which merits special consideration. This question has not been decided by the courts, and it is uncertain how far a library may go in supplying a photocopy of copyrighted material in its collections. Many libraries and researchers feel that this uncertainty has hampered research and should be resolved to permit the making of photocopies for research purposes to the fullest extent compatible with the interests of copyright owners.

Scholars have always felt free to copy by hand from the works of others for their own private research and study. Aside from the impossibility of controlling copying done in private, the acceptance of this practice may have been based on the inherent limitations of the extent to which copying could be done by hand. But copying has now taken on new dimensions with the development of photocopying devices by which any quantity of material can be reproduced readily and in multiple copies.

Researchers need to have available, for reference and study, the growing mass of published material in their particular fields. This is true especially, though not solely, of material published in scientific, technical, and scholarly journals. Researchers must rely on libraries for much of this material. When a published copy in a library’s collections is not available for loan, which is very often the case, the researcher’s need can be met by a photocopy.

On the other hand, the supplying of photocopies of any work to a substantial number of researchers may diminish the copyright owner’s market for the work. Publishers of scientific, technical, and scholarly works have pointed out that their market is small; and they have expressed the fear that if many of their potential subscribers or purchasers were furnished with photocopies, they might be forced to discontinue publication.

b. Approach to a solution: single photocopies for research use

As a general premise, we believe that photocopying should not be permitted where it would compete with the publisher’s market. Thus, when a researcher wants the whole of a publication, and a publisher’s copy is available, he should be expected to procure such a copy.

In situations where it would not be likely to compete with the publisher’s market, however, we believe that a library should be permitted to supply a single photocopy of material in its collections for use in research. Thus, when a researcher wants only a relatively small part of a publication, or when the work is Out of print, supplying him with a single photocopy would not seriously prejudice the interests of the copyright owner. A number of foreign laws permit libraries to supply single photocopies in these circumstances.

c. Multiple and commercial photocopying

The question of making photocopies has also arisen in the situation where an industrial concern wishes to provide multiple copies of publications, particularly of scientific and technical journals, to a number of research workers on its staff. To permit multiple photocopying may make serious inroads on the publisher’s potential market. We believe that an industrial concern should be expected to buy the number of copies it needs from the publisher, or to get the publisher’s consent to its making of photocopies.

Similarly, any person or organization undertaking to supply photocopies to others as a commercial venture would be competing directly with the publisher, and should be expected to get the publisher’s consent.

There has been some discussion of the possibility of a contractual arrangement whereby industrial concerns would be given blanket permission to make photocopies for which they would pay royalties to the publishers. Such an arrangement, {Page 91 }which has been made in at least one foreign country, would seem to offer the best solution for the problem of multiple and commercial photocopying.

d. Recommendations

The statute would permit a library, whose collections are available to the public without charge, to supply a single photocopy of copyrighted material in its collections to any applicant under the following conditions:

(a) A single photocopy of one article in any issue of a periodical, or of a reasonable part of any other publication, may be supplied when the applicant states in writing that he needs and will use such material solely for his own research.

(b) A single photocopy of an entire publication may be supplied when the applicant also states in writing, and the library is not otherwise informed, that a copy is not available from the publisher.

(c) Where the work bears a copyright notice, the library should be required to affix to the photocopy a warning that the material appears to be copyrighted.42

A meeting was convened on September 14, 1961, by the Register of Copyrights to discuss the report. Comments on the photocopy provisions quoted above are contained in Copyright Law Revision, Part 2.43 Written comments from the following individuals and organizations also appear in the document:

American Book Publishers Council, Inc., and American Textbook Publishers Institute, 227

Authors League of America, Inc., 256-57

Ray W Frantz, Jr., 293

Harry G. Henn, 303

David G. Hughes, Harvard University, 307-8

Irwin Karp, 315, 321-24

Horace S. Manges, 325-26

Joseph A. McDonald, 331

Motion Picture Association of America, Inc., 351

Harriet F. Pilpel and Morton David Goldberg, 381

K. S. Pitzer, 387

John Schulman, 389

Samuel W. Tannenbaum, 395

John F. Whicher, 403-4

Writers Guild of America, 412

A third report in this series, issued in September 1964, contains the following proposed section:

§ 7. Limitations on exclusive rights: copying and recording by libraries

Notwithstanding the provisions of section 5, any library whose collections are available to the public or to researchers in any specialized field shall be entitled to duplicate, by any process including photocopying and sound recording, any work in its collections other than a motion picture, and to supply a single copy or sound recording upon request, but only under the following conditions:

(a) The library shall be entitled, without further investigation, to supply a copy of no more than one article or other contribution to a copyrighted collection or periodical issue, or to supply a copy or sound recording of a similarly small part of any other copyrighted work.

(b) The library shall be entitled to supply a copy or sound recording of an entire work, or of more than a relatively small part of it, if the library has first determined, on the basis of a reasonable investigation that a copy or sound recording of the copyrighted work cannot readily be obtained from trade sources.

A discussion of section 7 appears in the transcript of a, meeting held at the Library of Congress on February 20, 1963.45 The following organizations and individuals submitted written responses to the draft:

American Textbook Publishers Institute, 337-40

Robert D. Franklin, Toledo Public Library, 371

Alan Green, 373

Melville B. Nimmer, University of California at Los Angeles Law School, 400

Harold Orenstein, 409

George Schiffer, 418-19

Mark Van Doren, 442

Philip B. Wattenberg, 443-44

Those commenting on the proposed section 7 found several phrases disturbing. In particular, they questioned the definitions of “reasonable investigation” and “readily be obtained from trade sources.”

Additional responses to the proposed section 7 appear in the fourth volume of the series:46

American Book Publishers Council, Inc., 251-53

American Book Publishers Council, Inc., and American Textbook Publishers Institute, 273-77

{Page 92}

American Council of Learned Societies, 290

American Institute of Physics, 291-92

Joint Libraries Committee on Fair Use in Photocopying, 293-97

Authors League of America, Inc., 31617

Robert D. Franklin, 347--l8

Music Library Association, 374

Music Publishers Association, 380

National Audiovisual Association, 396

The Eighty-eighth Congress

The 1964 Revision Bill

During the second session of the 88th Congress, three identical versions of the 1964 Revision Bill were introduced: S. 3008 by Mr. McClellan, on July 20, 1974; H.R. 11947 by Mr. Celler,also on July 20, and H.R. 12354 by Mr. St. Onge, on August 12, 1964.

The text of the bill and comments on it appear in Copyright Law Revision, Part 5. The bill did not directly address photocopying by libraries; Sections 5(a) (1) and 6 are pertinent to the matter, however.

§ 5. Exclusive rights in copyrighted works

(a) General Scope of Copyright-Subject to sections 6 through 13, the owner of copyright under this title has the exclusive rights to do or to authorize any of the following:

(1) to reproduce the copyrighted works in copies or phonorecords;

§ 6. Limitations on exclusive rights: fair use

Notwithstanding the provisions of section 5, the fair use of a copyrighted work to the extent reasonably necessary or incidental to a legitimate purpose, such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. 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;

(2) the nature of the copyrighted work;

(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.

On August 6, 1964, the Register of Copyrights convened a meeting in New York City, at which brief testimony on photocopying was presented. The General Electric Company also submitted a brief comment on photocopying.47

The 1965 Revision Bill

In light of the comments received on the 1964 bill, two new bills (H.R. 4347 and S.1006) were introduced in the 89th Congress on February 4, 1965. Copyright Law Revision, Part 6 contains the 1965 bill in summary. Appendix B is a comparative table showing the language of the then-current law, the 1965 and 1964 bills, and the 1963 draft.

The supplementary report “represents an effort to state . . . the thinking behind the language of the 1965 bill and, in many cases, the arguments for and against particular provisions.48

In the portion of the report on fair use, the Register explained why, once again, the 1965 bill did not directly deal with photocopying:

In a way the comments on section 749 of the preliminary draft represented an interesting case study. Opposition to the provision was equally strong on both sides but for exactly opposite reasons, with one side arguing that the provision would permit things that are illegal now and the other side maintaining that it would prevent things that are legal now. Both agreed on one thing: that the section should be dropped entirely. We also became convinced that the provision would be a mistake in any event. At the present time the practices, techniques, and devices for reproducing visual images and sound and for “storing” and “retrieving” information are in such a stage of rapid evolution that any specific statutory provision would be likely to prove inadequate, if not unfair or dangerous, in the not too distant future. As important as it is, library copying is only one aspect of the much larger problem of changing technology, and we feel the statute should deal with it in terms of broad fundamental concepts that can be adapted to future developments.

The decision to drop any provision on photocopying tended to increase the importance attached to including a general section on fair use in the statute. Thus, in the 1964 bill, further language was added to section 6 in an attempt to clarify the scope of the doctrine of fair use but without freezing or delimiting its application to new uses. . . .

This language elicited a large body of comments, most of them critical. Without reviewing the arguments in detail, it can be said in general {Page 93 }that the author-publisher groups expressed fears that specific mention of uses such as “teaching, scholarship, or research” could be taken to imply that any use even remotely connected with these activities would be a “fair use.” On the other side, serious objections were raised to the use of qualifying language, such as “to the extent reasonably necessary or incidental to a legitimate purpose and “the amount and substantiality of the portion used. . . .”

In addition to opposing this language as unduly restrictive, a group of educational organizations urged that the bill adopt a new provision which would specify a number of activities involved in teaching and scholarship as completely exempt from copyright control. In broad terms, and with certain exceptions, the proposal as it evolved would permit any teacher or other person or organization engaged in nonprofit educational activities to make a single copy or record of an entire work, or a reasonable number of copies of “excerpts or quotations,” for use in connection with those activities. It was argued that these privileges are a necessary part of good teaching, and that it is unjustifiable to burden educators with the need to buy copies for limited use or to obtain advance clearances and pay royalties for making copies. These proposals were opposed very strongly by authors, publishers, and other copyright owners on the ground that in the short run the reproduction of copies under this proposal would severely diminish the market for their works, and that the ultimate result would be to destroy the economic incentive for the creation and publication of the very works on which education depends for its existence. It was suggested that a clearinghouse for educational materials, through which it would be possible to avoid problems of clearances, is a practical possibility for the near future.

For reasons we have already discussed at some length, we do not favor sweeping, across-the-board exemptions from the author’s exclusive rights unless an overriding public need can be conclusively demonstrated. There is hardly any public need today that is more urgent than education, but we are convinced that this need would be ill-served if educators, by making copies of the materials they need, cut off a large part of the revenue to authors and publishers that induces the creation and publication of those materials. We believe that a statutory recognition of fair use would be sufficient to serve the reasonable needs of education with respect to the copying of short extracts from copyrighted works, and that the problem of obtaining clearances for copying larger portions or entire works could best be solved through a clearinghouse arrangement worked out between the educational groups and the author-publisher interests.

Since it appeared impossible to reach agreement on a general statement expressing the scope of the fair use doctrine, and since in any event the doctrine emerges from a body of judicial precedent and not from the statute, we decided with some regret to reduce the fair use section to its barest essentials. Section 107 of the 1965 bill therefore provides:

Notwithstanding the provisions of section 106, the fair use of a copyrighted work is not an infringement of copyright.

We believe that, even in this form, the provision serves a real purpose and should be incorporated in the statute.

The author-publisher interests have suggested that fair use should be treated as a defense, with the statute placing the burden of proof on the user. The educational group has urged just the opposite, that the statute should provide that any nonprofit use for educational purposes is presumed to be a fair use, with the copyright owner having the burden of proving otherwise. We believe it would be undesirable to adopt a special rule placing the burden of proof on one side or the other. When the facts as to what use was made of the work have been presented, the issue as to whether it is a “fair use” is a question of law. Statutory presumptions or burden-of-proof provisions could work a radical change in the meaning and effect of the doctrine of fair use. The intention of section 107 is to give statutory affirmation to the present judicial doctrine, not to change it.50

Subcommittee No.3 of the House Committee on the Judiciary held hearings in May, June, and August of 1965.51 A number of witnesses presented testimony and statements on photocopying issues:

Kenneth B. Keating, American Book Company, etc., 63-64

Lee Deighton, American Textbook Publishers Institute, 68, 73

Elizabeth Janeway, Authors League of America, Inc., 100-101

John Hersey, Authors League of America, Inc., 103

Dan Lacy, American Book Publishers Council, Inc., 120-21, 127

Horace S. Manges, American Book Publishers Council, Inc., 131, 139-40

Rutherford D. Rogers, Joint Libraries Committee on Copyright 448~9, 452

{Page 94}

Charles F. Gosnell, American Library Association, 460-62, 471-72

Robert T. Jordan, 464-65, 468-70

Robert H. Bahmer, General Services Administration, 1110-16

Anthony J. Celebrezze, Department of Health, Education and Welfare, 1131-32

Alanson W. Willcox, Department of Health, Education and Welfare, 1132-33

Julian P. Boyd, Society of American Archivists, etc., 1140-43

Maxwell C. Freudenberg, Department of Defense, 1164

Mark Carroll, Association of American University Presses, 1216

Bella L. Linden, American Textbook Publishers Institute, 1420, 1430-32, 1435, 1438-52, 1460

Carl F. J. Overhage, Massachusetts Institute of Technology, 1455

Howard A. Meyerhoff with Gerald Sophar, Committee to Investigate Copyright Problems 1471-83

Ralph H. Devan, Raymond H. Herzog, and Charles Lauder, Minnesota Mining and Manufacturing, 1497-1508

Lyle Lodwick and Francis Old, Williams and Wilkins, 1511-18

Frederick Burkhardt and Martin F. Richman, American Council of Learned Societies, 1550, 1555-57

Fred S. Siebert, Michigan State University, 1563-64, 1566

Frank C. Campbell, Music Library Association, 1575

Gerhard Van Arkel, International Typographical Union, 1650

Harry F. Howard, Book Manufacturers’ Institute, 1666-67, 1674

Irwin Karp, Authors League of America, Inc., 1755-61, 1765-69

Melville B. Nimmer, University of California at Los Angeles Law School, 1810-13, 1817-18

William D. Barns, West Virginia University, 1887-88

J. C. Wilson, Xerox Corporation, 1930

During August 1965 hearings on S. 1006 were also being held, at which the following individuals submitted statements or testimony on photocopying:52

Alanson W. Willcox, Department of Health, Education and Welfare, 50-51

Abraham L. Kaminstein, Register of Copyrights, 69-70

Harold E. Wigren, Ad Hoc Committee on Copyright Law Revision, 84-93

Harry N. Rosenfield, Ad Hoc Committee on Copyright Law Revision, 118-27, 129, 132-36, 148-149

Charles F. Gosnell, American Library Association, 136-38

Fred S. Siebert, American Council on Education, 144

Mark Carroll, American Association of University Presses, 180

Kenneth B. Keating, representing publishers, 219-20

On October 12, 1966, the House Committee on the Judiciary issued a report to accompany H.R. 4347, the 1965 Revision Bill.53 Several changes relating to photocopying had been incorporated into the bill: section 107 reinstated the “factors to be considered” in determining fair use from section 6 of the 1964 Revision Bill.

§ 107. Limitations on exclusive rights: fair use

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. 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;

(2) the nature of the copyrighted work;

(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.

The analysis and discussion of this section address fair use within the classroom setting as had most of the testimony and discussion before that time.54

The House Report made this commentary on the subject of library copying:

[B]oth the American Council of Learned Societies and the Department of Health, Education and Welfare argued that the problem is too important to be left uncertain, and proposed adoption of a statutory provision allowing libraries to supply single photocopies of material under limited conditions.

{Page 95}

As in the case of reproduction of copyrighted material by teachers for classroom use, the committee does not favor a specific provision dealing with library photocopying.

Unauthorized library copying, like everything else, must be judged a fair use or an infringement on the basis of all of the applicable criteria and the facts of the particular case. Despite past efforts, reasonable arrangements involving a mutual understanding of what generally constitutes acceptable library practices, and providing workable clearance and licensing conditions, have not been achieved and are overdue. The committee urges all concerned to resume their efforts to reach an accommodation under which the needs of scholarship and the rights of authors would both be respected.55

This version of the bill added a new section dealing with nonprofit archives:

§ 108. Limitations on exclusive rights: reproduction of works in archival collections

Notwithstanding the provisions of section 106, it is not an infringement of copyright for a nonprofit institution, having archival custody over collections of manuscripts, documents, or other unpublished works of value to scholarly research, to reproduce, without any purpose of direct or indirect commercial advantage, any such work in its collections in facsimile copies or phonorecords for purposes of preservation and security, or for deposit for research use in any other such institution.

The discussion of section 108 in the report explains the inclusion of this section:

Section 108.—Reproduction of works in archival collections

Although the committee does not favor special fair use provisions dealing with the problems of library photocopying, it was impressed with the need for a specific exemption permitting reproduction of manuscript collections under certain conditions. . . .

The committee has therefore adopted a new provision, section 108, under which a “nonprofit institution, having archival custody over collections of manuscripts, documents, or other unpublished works of value to scholarly research,” would be entitled to reproduce “any such work in its collections” under certain circumstances. Only unpublished works could be reproduced under this exemption, but the privilege would extend to any type of work, including photographs, motion pictures, and sound recordings.

The archival reproduction privilege accorded by section 108 would be available only where there was no “purpose of direct or indirect commercial advantage, and where the copies or phonorecords are reproduced in “facsimile.” Under the exemption, for example, a repository could make photocopies of manuscripts by microfilm or electrostatic process, but could not reproduce the work in “machine-readable” language for storage in an information system.

The purposes of the reproduction must either be “preservation and security” or “deposit for research use in any other such institution.” Thus, no facsimile copies or phonorecords made under this section can be distributed to scholars or the public; if they leave the institution that reproduced them, they must be deposited for research purposes in another “nonprofit institution” that has “archival custody over collections of manuscripts, documents, or other unpublished works of value to scholarly research.”

This section is not intended to override any contractual arrangements under which the manuscript material was deposited in the institution. For example, if there is an express contractual prohibition against reproduction for any purpose, section 108 could not be construed as justifying a violation of the contract [emphasis added].56

This version of the bill also added an “innocent infringer” clause in section 504(c) (2) which would apply in the following instance:

In a case where an instructor in a nonprofit educational institution, who infringed by reproducing a copyrighted work in copies or phonorecords for use in the course of face-to-face teaching activities in a classroom or similar place normally devoted to instruction, sustains the burden of proving that he believed and had reasonable grounds for believing that the reproduction was a fair use under section 107, the court in its discretion may remit statutory damages in whole or in part.

Congress adjourned before taking any action on this bill.

The Ninetieth Congress

In the first session of the 90th Congress, Representative Celler reintroduced the revision bill as H.R. 2512 on January 17, 1967; S. 597 followed on January 23. On March 8, the House Committee on the Judiciary reported {Page 96 }HR. 2512. The Sectional Analysis and Discussions for sections 107 and 108 are virtually identical to those found in H.R. 89-2237.57 The House of Representatives passed the bill, with several amendments, on April 11, 1967.

Meanwhile, the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Judiciary Committee held hearings on S. 597 in March and April of 1967. The transcripts of these hearings, issued in four parts, contain numerous references to statements on photocopying:58

Herman Wouk, Authors League of America, Inc., 38-42

Authors League of America, Inc., statement, 52-53

Jesse W. Markham, American Book Publishers Council, Inc., and American Textbook Institute, 64-73

Lee C. Deighton, 84

Howard A. Meyerhoff, Committee to Investigate Copyright Problems Affecting Communication in Science and Technology, 116-33

Ad Hoc Committee (of Educational Institutions and Organizations) on Copyright Law Revision [Harold E. Wigren] , 153

Charles F. Gosnell, American Library Association, 594, 600 ff.

Erwin C. Surrency, Joint Committee on Copyright of American Library Association, Special Libraries Association, Medical Library Association, and American Association of Law Libraries, 616-18

James R. French, Book Manufacturers’ Institute, 678

James H. Sampson, Allied Printing Trades Association, 696-97, 700-701

Robert A. Saltzstein, American Business Press, 725-27

Norton R. Goodwin, 745, 748

William M. Passano, Williams and Wilkins, 974-76

Lyle Lodwick and Andrea Widerman, Williams and Wilkins, 977-89

Horace S. Manges, American Book Publishers Council, Inc., 1055

C. G. Overberger, American Chemical Society, 1119-21

Irwin Karp, Authors League of America, Inc., 1150-56

Cable television emerged as a serious and long-lasting problem; thus, no action was taken on the Copyright Revision Bill in the 90th Congress.

The National Commission on New Technological Uses of Copyrighted Works

By the summer of 1967 it had become apparent that the revision bill then before Congress did not deal with a number of copyright problems in computer-related fields. On August 2, Senator McClellan introduced S. 2216, a bill to create a National Commission on New Technological Uses of Copyrighted Works. Further discussion of this bill is found in the portion of this appendix dealing with computer-related works.

On October 12, S. 2216 was passed by the Senate, but the House of Representatives took no corresponding action during the 90th Congress.

The Ninety-first Congress

On January 22 (legislative day of January 10), 1969, Senator McClellan once again introduced the revision bill in the Senate as S. 543. This bill combined most of the provisions of 5. 597 and S. 2216 from the 90th Congress. When the Senate Judiciary Subcommittee referred the bill to the full committee on December 10, 1969, section 108 specified the type of library which would be eligible for “isolated and unrelated reproduction or distribution” exemptions and the conditions under which copies could be made for patrons.

§ 108. Limitations on exclusive rights: reproduction by libraries and archives

(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, or distribute such copy or phonorecord, under the conditions specified by this section and if:

(1) The reproduction or distribution is made without any purpose of direct or indirect commercial advantage; and

(2) The collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field.

(b) The rights of reproduction and distribution under this section apply to a copy or phonorecord of an unpublished work duplicated in facsimile {Page 97 }form solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if the copy or phonorecord reproduced is currently in the collections of the library or archives.

(c) The right of reproduction under this section applies to a copy or phonorecord of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a normal price from commonly known trade sources in the United States, including authorized reproducing services.

(d) The rights of reproduction and distribution under this section apply to a copy of a work, other than a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audio.visual work, made at the request of a user of the collections of the library or archives, including a user who makes his request through another library or archives, if:

(1) The user has established to the satisfaction of the library or archives that an unused copy cannot be obtained at a normal price from commonly known trade sources in the United States, including authorized reproducing services;

(2) The copy becomes the property of the user, and the library or archives has had no notice that the copy would be used for any purpose other than private study, scholarship, or research; and

(3) The library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyrights in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

(e) Nothing in this section—

(1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: provided that such equipment displays a notice that the making of a copy may be subject to the copyright law.

(2) excuses a person who uses such reproducing equipment or who requests a copy under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy, if it exceeds fair use as provided by section 107;

(3) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed by the library or archives when it obtained a copy or phonorecord of the work for its collections.

(f) The rights of reproducing or distributing no more than one copy or phonorecord” in accordance with this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same work on separate occasions, but do not extend to cases where the library or archives, or its employees, is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same work, whether on one occasion or over ~ period of time, and whether intended for aggregate use by one individual or for separate use by the individual members of a group.

Section 504(c) (2) extended the “innocent infringer” status to librarians and archivists as well as to instructors in educational institutions. Disagreement on issues related to cable television again forestalled further congressional action.

The Ninety-second Congress

Senator McClellan introduced a bill (S. 644) which was, apart from minor amendments, virtually identical to that reported by the Senate Judiciary Subcommittee in the 91st Congress on February 18, 1971. As the Federal Communications Commission was engaged in formulating rules for cable television, the Senate took no action on S. 644. Public Law 92-140, for limited copyright in sound recordings, was enacted during this Congress.

The Ninety-third Congress

The 93d Congress saw the introduction of a Copyright Revision Bill with the same provisions as that of S. 644 of the previous Congress. On March 26, 1973, S. 1361 was introduced, and more copyright hearings were held on July 31 and August 1. Testimony on photocopying was presented at these hearings by the following individuals:59

Stephen A. McCarthy. Association of Research Libraries, 89-98

Philip B. Brown, Association of Research Libraries, 92-100

{Page 98}

Edmon Low, American Library Association, 100-106

Frank E. McKenna, Special Libraries Association, 106-10

Jacqueline W. Felter, Medical Library Association, 110-14

Robert W. Cairns, American Chemical Society, with Richard L. Kenyon, Ben H.

Weil, Stephen T. Quigley, and Arthur B. Hanson 114-28

Kenneth B. Keating, Harcourt Brace Jovanovich, Inc., and Macmillan, Inc., with Bella L. Linden, 128-37

Arthur J. Rosenthal, Association of American University Presses, with John P. Putnam and Sanford C.Thatcher,137-42

W. Bradford Wiley, Association of American Publishers, with Ross Sackett and Charles L. Lieb,142-47

Robert A. Saltzstein, American Business Press, 147-50

Andrea Albrecht, Williams and Wilkins, with Arthur Greenbaum, 150-71

Jerome Weidman, Authors League of America, Inc., with Irwin Karp, 172-79

John Stedman, American Association of University Professors, 201-7

Harry N. Rosenfield, 207-9

Irwin Karp, Authors League of America, Inc., 210-13

Ross Sackett, Association of American Publishers, with W. Bradford Wiley and Charles H. Lieb,217-19

Paul G. Zurkowski, Information Industry Association, 266-76

The subcommittee invited interested parties to submit written statements which were included in the record of the hearings. The following individuals and organizations responded to this invitation:

Julius Marke, Copyright Committee, American Association of Law Libraries, 553-55

Robert W. Cairns, American Chemical Society, 555-57

H. Richard Crane. American Institute of Physics, 557-59

Edmon Low, American Library Association, 559-60

Ernest B. Howard, American Medical Association, 560-61

John A. D. Cooper, Association of American Medical Colleges, 566-67

Association of American Publishers, 567-71

Stephen A. McCarthy, Association of Research Libraries, 571-72

Albert P. Blaustein, Rutgers University School of Law, 573-75

Stanley Bougas, Federal Librarians Association, 584-85

Morton I. Grossman, VA Wadsworth Hospital Center, 587

Bella L. Linden, Linden and Deutsch, 587-88

Mildred M. Jeffrey, Detroit Public Library, 589

Paul G. Zurkowski, Information Industry Association, 589-90

Irwin M. Freedman, Journal of Investigative Dermatology, 590-91

Stewart A. Wulf, Marine Biomedical Institute, 604

Sarah C. Brown, Medical Library Association, 604

Medical Library Association ,605

Franz J. Inglefinger, New England Journal of Medicine, 645-47

Robert J. Myers, New Republic, 647

Ernest E. Doerschuk, Jr., State Library of Pennsylvania, 648-49

William W. Bodine, Free Library of Philadelphia, 649

Frank E. McKenna, Special Libraries Association , 663-65

Arthur J. Greenbaum, Cowan, Liebowitz and Latman, 669

Robert L. Shafter, Xerox Corporation, 670

C. Peter McColough, Xerox Corporation, 670

A number of those who testified at the hearings and submitted written statements urged that the proposed national commission undertake the study of photocopying issues related to both educational uses of copyrighted works and library reproduction and distribution of copyrighted works.

The Senate Judiciary Subcommittee reported 5. 1361 on April 9, 1974. The subcommittee made substantial changes in the wording of section 108, adding subsection (a) (3) which required a notice of copyright to be placed on the copies made, and putting the phrase “at a fair price” in subsection (c) in place of an earlier phrase requiring the library to check “commonly-known trade sources in the United States, including authorized reproduction services.” Section 108 also distinguishes between copies made for users of portions of works [subsection (d)] and of whole works which are otherwise unavailable [subsection (e)]. The subcommittee added subsection (h) to specify those works which might not be reproduced except for “preservation or security” or because they are “damaged,” etc.:

§ 108. Limitations on exclusive rights: reproduction by libraries and archives

(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting {Page 99 }within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, or distribute such copy or phonorecord, under the conditions specified by this section, if:

(1) The reproduction or distribution is made without any purpose of direct or indirect commercial advantage; and

(3) The reproduction or distribution of the work includes a notice of copyright.

(b) The rights of reproduction and distribution under this section apply to a copy or phonorecord of an unpublished work duplicated in facsimile form solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if the copy or phonorecord reproduced is currently in the collections of the library or archives.

(d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archive where the user makes his request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if:

(1) The copy becomes the property of the user, and the library or archives has had no notice that the copy would be used for any purpose other than private study, scholarship, or research; and

(2) The library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his request or from that of another library or archives, if the library or archives had first determined, on the basis of a reasonable investigation that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if:

(1) The copy becomes the property of the user, and the library or archives has had no notice that the copy would be used for any purpose other than private study, scholarship, or research; and

(f) Nothing in this section—

(1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises, provided that such equipment displays a notice that the making of a copy may be subject to the copyright law;

(3) in any way affects the right of fair use as provided by section 107, or any contractual obligation assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.

(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee:

(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords 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; or

(2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d).

(h) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work, except that no such limitation shall apply with respect to rights granted by subsections (b) and (c).

{Page 100}

The full Judiciary Committee of the Senate reported the bill on July 3, 1974. There is considerable discussion of section 108 in the Senate report. The legislators had found it difficult to define “systematic reproduction or distribution,” although they gave three examples of library practice prohibited by section 108(g) (1) and (2). The report goes on to state the following:

The committee believes that section 108 provides an appropriate statutory balancing of the rights of creators, and the needs of users. However, neither a statute nor legislative history can specify precisely which library photocopying practices constitute the making of “single copies” as distinguished from “systematic reproduction.” Isolated single spontaneous requests must be distinguished from “systematic reproduction.

The photocopying needs of such operations as multi-county regional systems must be met. The committee therefore recommends that representatives of authors, book, and periodical publishers and other owners of copyrighted material meet with the library community to formulate photocopying guidelines to assist library patrons and employees. Concerning library photocopying practices not authorized by this legislation, the committee recommends that workable clearance and licensing procedures be developed.

In adopting these provisions on library photocopying, the committee is aware that through such programs as those of the National Commission on Libraries and Information Science there will be a significant evolution in the functioning and services of libraries. To consider the possible need for changes in copyright law and procedures as a result of new technology, title II of this legislation establishes a National Commission on New Technological Uses of Copyrighted Works. It is the desire of the committee that the Commission give priority to those aspects of the library-copyright interface which require further study and clarification.60

On July 9, S. 1361 was then referred to the Senate Commerce Committee, which amended several sections and reported the bill on July 29, 1974. The Senate passed S. 1361 with several amendments on September 9, 1974.

The end of the 93d Congress was approaching, and it did not seem likely that there would be time for S. 1361 to be considered in the House of Representatives. On the same day that S. 1361 passed the Senate, Senator McClellan introduced S. 3976, an interim bill which, among other provisions, would establish the National Commission on New Technological Uses of Copyrighted Works. On September 9, 1974, the Senate considered and passed the bill on that same day.

The House subcommittee held a hearing on S. 3976 on November 26, 1974. The Register of Copyrights testified at the hearing in sup-port of the establishment of the Commission.61 The bill was amended to include on the Commission “at least one member selected from among experts in consumer protection affairs.” The House Judiciary Committee reported the bill on December 12, 1974, with a dissenting view by Rep. Robert F. Drinan opposing the establishment of the Commission.62 The House of Representatives considered and passed the bill on December 19, 1974. It was then signed by President Gerald Ford on December 31 and became Public Law 93-573,

The Ninety-fourth Congress

Early in the 94th Congress a copyright revision bill was introduced by Senator McClellan as S. 22 on January 15, 1975, and by RepresentativeKastenmeier as H.R. 2223 on January 28. The bill was substantially the same as S. 1361, which had been passed by the Senate in the 93d Congress. The Senate Judiciary Committee reported S. 22 on November 20, 1975. In its discussion of section 108(g), the Committee repeated its recommendation that

representatives of authors, book and periodical publishers and other owners of copyrighted material meet with the library community to formulate photocopying guidelines to assist library patrons and employees. Concerning library photocopying practices not authorized by this legislation, the committee recommends that workable clearance and licensing procedures be developed. . . .

It is still uncertain how far a library may go under the Copyright Act of 1909 in supplying a photocopy of copyrighted material in its collection. The recent case of The Williams and Wilkins Company v. The United States failed to significantly illuminate the application of the fair use doctrine to library photocopying practices. Indeed, the opinion of the Court of Claims said {Page 101 }the Court was engaged in “a ‘holding operation’ in the interim period before Congress enacted its preferred solution.”

While the several opinions in the Wilkins case have given the Congress little guidance as to the current state of the law on fair use, these opinions provide additional support for the balanced resolution of the photocopying issue adopted by the Senate last year in S. 1361 and preserved in section 108 of this legislation. As the Court of Claims opinion succinctly stated “there is much to be said on all sides.

In adopting these provisions on library photocopying, the committee is aware that through such programs as those of the National Commission on Libraries and Information Science there will be a significant evolution in the functioning and services of libraries. To consider the possible need for changes in copyright law and procedures as a result of new technology, a National Commission on New Technological Uses of Copyrighted Works has been established (Public Law 93-573).63

Subsection 108(f) (4) was added to the bill:

[B]y the adoption of an amendment proposed by Senator fHoward] Baker [of Tennessee]. It is intended to permit libraries and archives, subject to the general conditions of this section, to make off-the-air videotape recordings of television news programs. Despite the importance of preserving television news, the United States currently has no institution performing this function on a systematic basis.

The purpose of the clause is to prevent the copyright law from precluding such operations as the Vanderbilt University Television News Archive. . . .64

The text of the new subsection is as follows:

§ 108 (f) Nothing in this section-

(4) shall be construed to limit the reproduction and distribution of a limited number of copies and excerpts by a library or archives of an audiovisual news program subject to clauses (1), (2), or (3) of subsection (a).

Subsection 108(h) was changed in this version to read:

§ 108 (h) The rights of reproduction under this section do not apply to 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, except that no such limitation shall apply with respect to rights granted by subsections (b) and (c).

The Senate approved S.22 unanimously on February 19, 1976.

The House Judiciary Subcommittee on Courts, Civil Liberties, and the Administration of Justice held eighteen days of hearings on H.R. 2223 in 1975.65 The Register of Copyrights testified at several hearings and presented material from the Second Supplementary Report of the Register of Copyrights.66

During testimony received at these hearings, representatives of the six national library associations,67 and author and publisher associations discussed, among other topics, the definition of “systematic reproduction” and a proposed copyright clearinghouse. Testimony or statements from the following appear in the record:

Edmon Low, the six national library associations, with Julius J. Marke, John P. McDonald, Joan T. Adams, Susan Sommer, Frank E. McKenna, James A. Sharaf, William North, and Philip Brown, 184-216

Irwin Karp, Authors League of America, Inc., 216-25, 240-41

Charles Lieb, Association of American Publishers, 225-29, 240

Robert W. Cairns, American Chemical Society, with Richard Kenyon, Stephen

Quigley, and William Butler, 229-36, 241-51

Townsend Hoopes, Association of American Publishers, 237-40

Bella L. Linden, Linden & Deutsch, 242

American Business Press, Inc., 252-54

Julius J. Marke, American Association of Law Libraries, 254-60

William M. Passano, Williams and Wilkins, 260-61

David Mathews, Department of Health,Education and Welfare, 261-62

Kevin J. Keaney, Federal Librarians Association, 262-63

John B. Hightower, Advocates for the Arts, Associated Councils of the Arts, 263-65

Ray Woodruff, Montana State University, 265-66

{Page 102}

Leo J. Raskind, Association of American Law Schools, American Association of

University Presses, and American Council on Education, 269-72

Edwin Meele, Educational Media Producers Council, 317

Ernest R. Farmer, Music Publishers Association, National Music Publishers Association, 346-48

Albert Warren, Independent Newsletter Association, 367-68

Rondo Cameron, educator and author, 467-74

Association of American Publishers, 2198-2201

Authors League of America, Inc., 2203-6

National Commission on Libraries and Information Science, 2239

During the October hearings the Register of Copyrights in a discussion of the Second Supplementary Report outlined the history of section 108, defined some of the continued problems in the interpretation of the section, and called for “a much clearer statement in the report concerning the interrelationship between sections 107 and 108, and a careful look at the wording and content of subsections (g) and (h).”68 She went on to say:

A line must be drawn between legitimate inter-library loans using photocopies instead of bound books, and prearranged understandings that result in a particular library agreeing to become the source of an indeterminate number of photo-copies. To find that line and draw it clearly is one of the most difficult legislative tasks remaining in the revision program. . . .

I also indicate that I think CONTU, the new National Commission on New Technological Uses of Copyrighted Works, should not be forgotten here. There are legitimate things it can do. But, at the meeting yesterday, at one point, there was a suggestion made that they shouldn’t try to reinvent the wheel and that the Congress has a long history behind this provision. And I think that proposals are coming to you, and maybe already have, that you should delay action on, or you should make interim action, pending what CONTU does. And I don’t argue with that, as long as you lay a groundwork for what it does. I do feel the interrelationship between 108 and the Commission should be addressed in your report. I think it is important that you get out of the Commission what you want. You created it and it should do what you want it to do, in relation to this problem.

The Register also stated that the phrase “with-out any purpose of direct or indirect commercial advantage” was a problem with respect to special libraries and needed clarification.69

Appendix 2 of the hearings contains a series of eighteen “Briefing Papers on Current Issues Raised by H.R. 2223,” prepared by the staff of the Copyright Office, one portion of which covers section 108.70 Appendix 3 is the “Report of Working Group of Conference on Resolution of Copyright Issues (Dealing with Library Photocopying).”71

After these extensive hearings and the public markup sessions which followed, the House subcommittee reported the bill on August 3, 1976. The full Judiciary Committee of the House reported the bill without further amendment on September 3. The subcommittee had made two changes in section 108, which the Judiciary Committee accepted and explained in this way:

Multiple copies and systematic reproduction

Subsection (g) provides that the rights granted by this section extend only to the “isolated and unrelated reproduction of a single copy or phonorecord of the same material on separate occasions.” However, this section does not authorize the related or concerted reproduction of multiple copies or phonorecords of the same materials, whether made on one occasion or over a period of time, and whether intended for aggregate use by one individual or for separate use by the individual members of a group.

With respect to material described in subsection (d)-articles or other contributions to periodicals or collections, and small parts of other copyrighted works-subsection (g) (2) provides that the exemptions of section 108 do not apply if the library or archive [sic] engages in “systematic reproduction or distribution of single or multiple copies of phonorecords.” This provision in S.22 provoked a storm of controversy, centering around the extent to which the restrictions on systematic” activities would prevent the continuation and development of interlibrary networks and other arrangements involving the exchange of photocopies. After thorough consideration, the Committee amended section 108(g) (2) to add the following proviso:

Provided, that nothing in this clause prevents a library or archives from participating in inter-library arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for {Page 103 }distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.

In addition, the Committee added a new subsection (i) to section 108, requiring the Register of Copyrights, five years from the effective date of the new Act and at five-year intervals thereafter, to report to Congress upon the extent to which this section has achieved the intended statutory balancing of the rights of creators and the needs of users,” and to make appropriate legislative or other recommendations. As noted in connection with section 107, the Committee also amended section 504(c) in a way that would insulate librarians from unwarranted liability for copyright infringement; this amendment is discussed below.

The key phrases in the Committee’s amendment of section 108(g) (2) are “aggregate quantities” and “substitute for a subscription to or purchase of” a work. To be implemented effectively in practice, these provisions will require the development and implementation of more-or-less specific guidelines establishing criteria to govern various situations.

The National Commission on New Technological Uses of Copyrighted Works (CONTU) offered to provide its good offices in helping to develop these guidelines. This offer was accepted and, although the final text of guidelines has not yet been achieved, the Committee has reason to hope that, within the next month, some agreement can be reached on an initial set of guidelines covering practices under section 108(g) (2).72

The House committee also addressed the issue of “indirect commercialadvantag~” in section 108(a) (1), which the Register of Copyrights had pointed out as an area needing clarification in the hearings on H.R. 2223:

The reference to indirect commercial advantage” has raised questions as to the status of photocopying done by or for libraries or archival collections within industrial, profit-making, or proprietary institutions (such as the research and development departments of chemical, pharmaceutical, automobile, and oil corporations, the library of a proprietary hospital, the collections owned by a law or medical partnership, etc.).

There is a direct interrelationship between this problem and the prohibitions against “multiple” and “systematic” photocopying in section 108 (g)(1) and (2). Under section 108, a library in a profit-making organization would not be authorized to:

(a) use a single subscription or copy to supply its employees with multiple copies of material relevant to their work; or

(b) use a single subscription or copy to supply its employees, on request, with single copies of material relevant to their work, where the arrangement is “systematic” in the sense of deliberately substituting photocopying for subscription or purchase; or

(c) use “interlibrary loan” arrangements for obtaining photocopies in such aggregate quantities as to substitute for subscriptions or purchase of material needed by employees in their work.

Moreover, a library in a profit-making organization could not evade these obligations by installing reproducing equipment on its premises for unsupervised use by the organization’s staff.

Isolated, spontaneous making of single photocopies by a library in a for-profit organization, without any systematic effort to substitute photocopying for subscriptions or purchases, would be covered by section 108, even though the copies are furnished to the employees of the organization for use in their work. Similarly, for-profit libraries could participate in interlibrary arrangements for exchange of photocopies as long as the production or distribution was not “systematic.” These activities, by themselves, would ordinarily not be considered “for direct or indirect commercial advantages,” since the “advantage” referred to in this clause must attach to the immediate commercial motivation behind the reproduction or distribution itself, rather than to the ultimate profit-making motivation behind the enterprise in which the library is located. On the other hand, section 108 would not excuse reproduction or distribution if there were a commercial motive behind the actual making or distributing of the copies, if multiple copies were made or distributed, or if the photocopying activities were “systematic” in the sense that their aim was to substitute for subscriptions or purchases.73

In addition, the report contains the Guidelines for Classroom Copying in Not-for-Profit Educational Institutions and Guidelines for Educational Use of Music.74

The CONTU Guidelines

On April 2, 1976, the National Commission on New Technological Uses of Copyrighted {Page 104 }Works (CONTU) adopted the following resolution:75

BE IT RESOLVED, that the National Commission on New Technological Uses of Copyrighted Works shall offer its assistance to the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Committee on the Judiciary in helping to develop language and guidelines relating to library photocopying in the Senate Bill 22.

The House subcommittee accepted the Commission’s offer, as did the chairman of the Senate Judiciary Subcommittee, Senator McClellan.

The Commission requested written statements from parties who had expressed interest in the library photocopying issue throughout the legislative proceedings. The following submitted comments:

American Association of Law Libraries

American Institute of Physics

American Library Association

American Society for Testing and Materials

Association of American Publishers

Association of Research Libraries

Authors League of America, Inc.

Ben H. Weil

Harcourt Brace Jovanovich, Inc.

Macmillan Publishing Company, Inc.

Medical Library Association

Music Library Association

National Commission on Libraries and Information Science

National Library of Medicine

Special Libraries Association

Williams and Wilkins Company

At its meeting on June 9-10, 1976, the Commission discussed the comments received and began to draft guidelines.76 These guidelines were submitted to the interested parties, further comments were received, and a revised draft was drawn up. Representatives of the principal library, author, and publisher organizations accepted the revised guidelines, which were then submitted to the chairman of the Conference Committee on September 22, 1976. The text of the guidelines may be found in this report under the section CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements.

The Conference Report

As reported by the House Judiciary Committee, S.22 was approved by the House of Representatives on September 22, 1976. The Conference Committee was appointed to reconcile the differences in the two versions of the bill; as noted above, the Senate had approved S.22 some seven months previously. The Conference Committee accepted the House version of section 108 along with the CONTU guidelines, which were included in the conference report. The Committee also gave a further clarification of “indirect commercial advantage” as used in section 108(a) (1) in relation to proprietary libraries.77

Both Houses of Congress accepted the Conference Committee version of S.22 on September 30, 1976, and President Ford signed the bill on October 19, 1976.78

38 Congress, Senate, Judiciary, Copy right Law Revision: Studies Prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 86th Cong., 2d sess.,1960.

39 Ibid., p. 34.

40 Ibid., p.66.

41 Congress, House, Judiciary Committee, Copyright Law Revision: Report of the Register of Copyrights on the GeneralRevision of the U.S. Copyright Law, 87th Cong., 1st sess., 1961, iii, v [footnote omitted; committee print].

42 Ibid., p. 25.

43 U.S., Congress, House, Judiciary Committee, Copyright Law Revision, Part 2: Discussion and Comments on Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong., 1st sess., 1963, p.31 [committee print].

44 Copy. Law Rev., Pt. 3, supra note 1, p.6.

45 Ibid., p.159.

46 Copy. Law Rev., Pt. 4, supra note 5.

47 Ibid., pp.103, 270.

48 Copy. Law Rev., Pt. 6, supra note 13, p. viii.

49 Copy. Law Rev., Pt. 3, supra note 1.

50 Copy. Law Rev., Pt. 6, supranote 13, p.26.

51 Supra note 15.

52 Supra note 16.

53 89th Cong., 2d sess., 1966, H. Rept.2237.

54 Ibid., p.58.

55 Ibid., p.65., cf. statements of Celebrezze, Willcox, and Burkhardt, above.

56 Ibid., p.66.

57 90th Cong., 1st sess., 1967, H. Rept.83, p.29.

58 Hearings on S. 597, supra note 20.

59 Hearings on S. 1361, supra note 25.

60 93d Cong., 2d sess., 1974, S. Rept.983, p. 122.

61 Supra note 29.

62 93d Cong., 2d sess., 1974, H. Rept.1581, 17.

63 94th Cong., 1st sess., 1975, S. Rept.473, p.71.

64 Ibid., p.69.

65 Supra note 33.

66 The report has not yet been published. Copies of the draft are available from the Copyright Office.

67 American Library Association, Association of Research Libraries, Medical Library Association, Music Library Association, Special Libraries Association, and American Association of Law Libraries.

68 Hearings on H.R. 2223, supra note 33, p.1801.

69 Ibid., pp. 1801-4.

70 Ibid., p.2057.

71 Ibid., p.2092.

72 94th Cong., 2d sess., 1976, H. Rept.1476, p.77. Corrections appeared in 122 Cong. Rec. H10727 (daily edition, September 21, 1976).

73 Ibid., p.74.

74 Ibid., pp.68, 70.

75 For a fuller discussion, see Chapter 4 under CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements.

76 Transcript, CONTU Meeting No.7.

77 94th Cong., 2d sess., 1976, H. Rept.1733, pp.72-73.

78 P.L. 94-553 (1976).