Reproduction of Copyrighted Works by Educators and Librarians

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Text

Circular 21

2 21.0814

Reproduction of

Copyrighted Works

by Educators and

Librarians

Many educators and librarians ask about the fair use and photocopying provi-

sions of the copyright law. The Copyright Office cannot give legal advice or

offer opinions on what is permitted or prohibited. However, we have published

in this circular basic information on some of the most important legislative

provisions and other documents dealing with reproduction by librarians and

educators.

Also available is the 1983 Report of the Register of Copyrights on Library

Reproduction of Copyrighted Works (17 U.S.C. 108). The Report, seven appen-

dixes, and other related materials can be purchased from the National Technical

Information Service (NTIS), U.S. Department of Commerce, 5301 Shawnee Rd.,

Alexandria, VA 22312. Go to the NTIS website at www.ntis.gov. For further infor-

mation, call NTIS at 1-800-553-6847 or (703) 605-6000.

The 1988 five-year Report of the Register of Copyrights on Library Repro-

duction of Copyrighted Works is also available from NTIS.

A. Introductory Note

The Subjects Covered in This Booklet

The documentary materials collected in this circular deal with reproduction of

copyrighted works by educators, librarians, and archivists for a variety of uses,

including:

• Reproduction for teaching in educational institutions at all levels and

• Reproduction by libraries and archives for purposes of study, research,

interlibrary exchanges, and archival preservation.

The documents reprinted here are limited to materials dealing with reproduc-

tion. Under the copyright law, reproduction can take either of two forms:

• The making of copies: by photocopying, making microform reproductions,

videotaping, or any other method of duplicating visually-perceptible

material and

• The making of phonorecords: by duplicating sound recordings, taping off the

air, or any other method of recapturing sounds

limited to materials dealing with reproduc-

tion. Under the copyright law, reproduction can take either of two forms:

• The making of copies: by photocopying, making microform reproductions,

videotaping, or any other method of duplicating visually-perceptible

material and

• The making of phonorecords: by duplicating sound recordings, taping off the

air, or any other method of recapturing sounds.

The copyright law also contains various provisions dealing with importations,

performances, and displays of copyrighted works for educational and other

noncommercial purposes, but they are outside the scope of this circular. You

can view and download the statute from the Copyright Office website at

Reproduction of Copyrighted Works · 2

www.loc.gov. To purchase a copy, go to http://bookstore.gpo.gov

and search for Circular 92. For information about specific

provisions, write to:

Library of Congress

101 Independence Avenue SE

Washington, DC 20559-6304

A Note on the Documents Reprinted

The documentary materials in this booklet are reprints or

excerpts from six sources:

1 The Copyright Act of October 19, 1976. This is the copy-

right law of the United States, effective January 1, 1978

(title 17 of the United States Code, Public Law 94-553, 90

Stat. 2541).

2 The Senate Report. This is the 1975 report of the Senate

Judiciary Committee on S. 22, the Senate version of the

bill that became the Copyright Act of 1976 (S. Rep. No.

94-473, 94th Cong., 1st Sess., November 20 (legislative day

November 18, 1975)).

3 The House Report. This is the 1976 report of the House

of Representatives Judiciary Committee on the House

amendments to the bill that became the Copyright Act of

1976 (H.R. Rep. No. 94-1476, 94th Cong., 2d Sess., Sep-

tember 3, 1976).

4 The Conference Report. This is the 1976 report of the

“committee of conference on the disagreeing votes of

the two Houses on the amendments of the House to the

bill (S. 22) for the general revision of the Copyright Law”

(H.R. Rep

Judiciary Committee on the House

amendments to the bill that became the Copyright Act of

1976 (H.R. Rep. No. 94-1476, 94th Cong., 2d Sess., Sep-

tember 3, 1976).

4 The Conference Report. This is the 1976 report of the

“committee of conference on the disagreeing votes of

the two Houses on the amendments of the House to the

bill (S. 22) for the general revision of the Copyright Law”

(H.R. Rep. No. 94-1733, 94th Cong., 2d Sess., September

29, 1976).

5 The Congressional Debates. This booklet contains

excerpts from the Congressional Record of September 22,

1976, reflecting statements on the floor of Congress at the

time the bill was passed by the House of Representatives

(122 Cong. Rec. H 10874-76, daily edition, September 22,

1976).

6 Copyright Office Regulations. These are regulations

issued by the Copyright Office under section 108 deal-

ing with warnings of copyright for use by libraries and

archives (37 Code of Federal Regulations §201.14).

Items 2 and 3 on this list—the 1975 Senate Report and

the 1976 House Report—present special problems. On many

points the language of these two reports is identical or closely

similar. However, the two reports were written at different

times, by committees of different Houses of Congress, on

somewhat different bills. As a result, the discussions on some

provisions of the bills vary widely, and on certain points they

disagree.

The disagreements between the Senate and House ver-

sions of the bill itself were resolved when the Act of 1976

was finally passed. However, many of the disagreements as

to matters of interpretation between statements in the 1975

Senate Report and in the 1976 House Report were left partly

or wholly unresolved. It is therefore difficult in compiling a

booklet such as this to decide in some cases what to include

and what to leave out

House ver-

sions of the bill itself were resolved when the Act of 1976

was finally passed. However, many of the disagreements as

to matters of interpretation between statements in the 1975

Senate Report and in the 1976 House Report were left partly

or wholly unresolved. It is therefore difficult in compiling a

booklet such as this to decide in some cases what to include

and what to leave out.

The House Report was written later than the Senate

Report, and in many cases it adopted the language of the

Senate Report, updating it and conforming it to the version

of the bill that was finally enacted into law. Thus, where the

differences between the two Reports are relatively minor, or

where the discussion in the House Report appears to have

superseded the discussion of the same point in the Senate

Report, we have used the House Report as the source of our

documentation. In other cases we have included excerpts

from both discussions in an effort to present the legislative

history as fully and fairly as possible. Anyone making a thor-

ough study of the Act of 1976 as it affects librarians and edu-

cators should not rely exclusively on the excerpts reprinted

here but should go back to the primary documentary sources.

B. Exclusive Rights in Copyrighted Works

1. Text of Section 106

note: The following is a reprint of the entire text of section

106 of title 17, United States Code, as amended in 1995 and 2002.

§ 106 · Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright

under this title has the exclusive rights to do and to authorize

any of the following:

(1) to reproduce the copyrighted work in copies or

phonorecords;

(2) to prepare derivative works based upon the copyrighted

work;

(3) to distribute copies or phonorecords of the copyrighted

work to the public by sale or other transfer of ownership,

or by rental, lease, or lending;

, the owner of copyright

under this title has the exclusive rights to do and to authorize

any of the following:

(1) to reproduce the copyrighted work in copies or

phonorecords;

(2) to prepare derivative works based upon the copyrighted

work;

(3) to distribute copies or phonorecords of the copyrighted

work to the public by sale or other transfer of ownership,

or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreo-

graphic works, pantomimes, and motion pictures and

Reproduction of Copyrighted Works · 3

other audiovisual works, to perform the copyrighted

work publicly;

(5) in the case of literary, musical, dramatic, and choreo-

graphic works, pantomimes, and pictorial, graphic, or

sculptural works, including the individual images of a

motion picture or other audiovisual work, to display the

copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copy-

righted work publicly by means of a digital audio trans-

mission.

2. Excerpts from House Report on Section 106

note: The following excerpts are reprinted from the House

Report on the new copyright law (H.R. Rep. No. 94-1476, pages

61–62). The text of the corresponding Senate Report (S. Rep.

No. 94-473, pages 57–58) is substantially the same.

Section 106. Exclusive Rights in Copyrighted Works

General scope of copyright

The five fundamental rights that the bill gives to copyright

owners—the exclusive rights of reproduction, adaptation,

publication, performance, and display—are stated generally

in section 106. These exclusive rights, which comprise the so-

called “bundle of rights” that is a copyright, are cumulative

and may overlap in some cases. Each of the five enumerated

rights may be subdivided indefinitely and, as discussed below

in connection with section 201, each subdivision of an exclu-

sive right may be owned and enforced separately

rmance, and display—are stated generally

in section 106. These exclusive rights, which comprise the so-

called “bundle of rights” that is a copyright, are cumulative

and may overlap in some cases. Each of the five enumerated

rights may be subdivided indefinitely and, as discussed below

in connection with section 201, each subdivision of an exclu-

sive right may be owned and enforced separately.

The approach of the bill is to set forth the copyright own-

er’s exclusive rights in broad terms in section 106, and then

to provide various limitations, qualifications, or exemptions

in the 12 sections that follow. Thus, everything in section 106

is made “subject to sections 107 through 118,” and must be

read in conjunction with those provisions.

* * *

Rights of reproduction, adaptation, and publication

The first three clauses of section 106, which cover all rights

under a copyright except those of performance and display,

extend to every kind of copyrighted work. The exclusive

rights encompassed by these clauses, though closely related,

are independent; they can generally be characterized as

rights of copying, recording, adaptation, and publishing. A

single act of infringement may violate all of these rights

at once, as where a publisher reproduces, adapts, and sells

copies of a person’s copyrighted work as part of a publishing

venture. Infringement takes place when any one of the rights

is violated: where, for example, a printer reproduces copies

without selling them or a retailer sells copies without having

anything to do with their reproduction. The references to

“copies or phonorecords,” although in the plural, are intended

here and throughout the bill to include the singular (1 U.S.C. §1)

part of a publishing

venture. Infringement takes place when any one of the rights

is violated: where, for example, a printer reproduces copies

without selling them or a retailer sells copies without having

anything to do with their reproduction. The references to

“copies or phonorecords,” although in the plural, are intended

here and throughout the bill to include the singular (1 U.S.C. §1).

Reproduction.—Read together with the relevant defini-

tions in section 101, the right “to reproduce the copyrighted

work in copies or phonorecords” means the right to pro-

duce a material object in which the work is duplicated,

transcribed, imitated, or simulated in a fixed form from

which it can be “perceived, reproduced, or otherwise com-

municated, either directly or with the aid of a machine or

device.” As under the present law, a copyrighted work would

be infringed by reproducing it in whole or in any substantial

part, and by duplicating it exactly or by imitation or simula-

tion. Wide departures or variations from the copyrighted

work would still be an infringement as long as the author’s

“expression” rather than merely the author’s “ideas” are taken.

An exception to this general principle, applicable to the

reproduction of copyrighted sound recordings, is specified

in section 114.

“Reproduction” under clause (1) of section 106 is to be

distinguished from “display” under clause (5). For a work to

be “reproduced,” its fixation in tangible form must be “suf-

ficiently permanent or stable to permit it to be perceived,

reproduced, or otherwise communicated for a period of

more than transitory duration.” Thus, the showing of images

on a screen or tube would not be a violation of clause (1),

although it might come within the scope of clause (5).

C. Fair Use

1. Text of Section 107

note: The following is a reprint of the entire text of section

107 of title 17, United States Code as amended in 1990 and 1992

ed,

reproduced, or otherwise communicated for a period of

more than transitory duration.” Thus, the showing of images

on a screen or tube would not be a violation of clause (1),

although it might come within the scope of clause (5).

C. Fair Use

1. Text of Section 107

note: The following is a reprint of the entire text of section

107 of title 17, United States Code as amended in 1990 and 1992.

§ 107 · Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106a,

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 criti-

cism, comment, news reporting, teaching (including multiple

copies for classroom use), scholarship, or research, is not an

infringement of copyright. In determining whether the use

Reproduction of Copyrighted Works · 4

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, including whether

such use is of a commercial nature or is for nonprofit

educational purposes;

(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 fact that a work is unpublished shall not itself bar a

finding of fair use if such finding is made upon consider-

ation of all the above factors.

2. Excerpts from House Report on Section 107

note: The following excerpts are reprinted from the House

Report on the new copyright law (H.R. Rep. No. 94-1476, pages

65–74). The discussion of section 107 appears at pages 61–67

of the Senate Report (S. Rep. No. 94-473). The text of this sec-

tion of the Senate Report is not reprinted in this booklet, but

similarities and differences between the House and Senate

Reports on particular points will be noted below.

rpts are reprinted from the House

Report on the new copyright law (H.R. Rep. No. 94-1476, pages

65–74). The discussion of section 107 appears at pages 61–67

of the Senate Report (S. Rep. No. 94-473). The text of this sec-

tion of the Senate Report is not reprinted in this booklet, but

similarities and differences between the House and Senate

Reports on particular points will be noted below.

a. House Report: Introductory Discussion on Section 107

note: The first two paragraphs in this portion of the House

Report are closely similar to the Senate Report. The remainder

of the passage differs substantially in the two Reports.

Section 107. Fair Use

General background of the problem

The judicial doctrine of fair use, one of the most important

and well-established limitations on the exclusive right of

ognition for the first time in section 107. The claim that

a defendant’s acts constituted a fair use rather than an

infringement has been raised as a defense in innumerable

recognizing the existence of the doctrine and applying it.

The examples enumerated at page 24 of the Register’s 1961

Report, while by no means exhaustive, give some idea of the

sort of activities the courts might regard as fair use under the

circumstances: “quotation of excerpts in a review or criticism

for purposes of illustration or comment; quotation of short

passages in a scholarly or technical work, for illustration or

clarification of the author’s observations; use in a parody of

some of the content of the work parodied; summary of an

address or article, with brief quotations, in a news report;

reproduction by a library of a portion of a work to replace

part of a damaged copy; reproduction by a teacher or stu-

dent of a small part of a work to illustrate a lesson; repro-

duction of a work in legislative or judicial proceedings or

reports; incidental and fortuitous reproduction, in a newsreel

or broadcast, o

; summary of an

address or article, with brief quotations, in a news report;

reproduction by a library of a portion of a work to replace

part of a damaged copy; reproduction by a teacher or stu-

dent of a small part of a work to illustrate a lesson; repro-

duction of a work in legislative or judicial proceedings or

reports; incidental and fortuitous reproduction, in a newsreel

or broadcast, of a work located in the scene of an event being

reported.”

Although the courts have considered and ruled upon the

fair use doctrine over and over again, no real definition of

the concept has ever emerged. Indeed, since the doctrine is

an equitable rule of reason, no generally applicable defini-

tion is possible, and each case raising the question must be

decided on its own facts. On the other hand, the courts have

evolved a set of criteria which, though in no case defini-

tive or determinative, provide some gauge for balancing

the equities. These criteria have been stated in various ways,

but essentially they can all be reduced to the four standards

which have been adopted in section 107: “(1) the purpose and

character of the use, including whether such use is of a com-

mercial nature or is for non-profit educational purposes; (2)

the nature of the copyrighted work; (3) the amount and sub-

stantiality of the portion used in relation to the copyrighted

work as a whole; and (4) the effect of the use upon the poten-

tial market for or value of the copyrighted work.”

These criteria are relevant in determining whether the

basic doctrine of fair use, as stated in the first sentence of

section 107, applies in a particular case: “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 sec-

tion, for purposes such as criticism, comment, news report-

ing, teaching (including multiple copies for classroom use),

scholarship, or research, is not an infringement of copyright.”

The specific w

case: “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 sec-

tion, for purposes such as criticism, comment, news report-

ing, teaching (including multiple copies for classroom use),

scholarship, or research, is not an infringement of copyright.”

The specific wording of section 107 as it now stands is

the result of a process of accretion, resulting from the long

controversy over the related problems of fair use and the

reproduction (mostly by photocopying) of copyrighted

material for educational and scholarly purposes. For exam-

ple, the reference to fair use “by reproduction in copies or

phonorecords or by any other means” is mainly intended

to make clear that the doctrine has as much application to

photocopying and taping as to older forms of use; it is not

intended to give these kinds of reproduction any special

status under the fair use provision or to sanction any repro-

duction beyond the normal and reasonable limits of fair use.

Reproduction of Copyrighted Works · 5

Similarly, the newly-added reference to “multiple copies for

classroom use” is a recognition that, under the proper cir-

cumstances of fairness, the doctrine can be applied to repro-

ductions of multiple copies for the members of a class.

The Committee has amended the first of the criteria to

be considered—“the purpose and character of the use”—

to state explicitly that this factor includes a consideration

of “whether such use is of a commercial nature or is for

non-profit educational purposes.” This amendment is not

intended to be interpreted as any sort of not-for-profit

limitation on educational uses of copyrighted works. It is

an express recognition that, as under the present law, the

commercial or non-profit character of an activity, while

not conclusive with respect to fair use, can and should be

weighed along with other factors in fair use decisions

onal purposes.” This amendment is not

intended to be interpreted as any sort of not-for-profit

limitation on educational uses of copyrighted works. It is

an express recognition that, as under the present law, the

commercial or non-profit character of an activity, while

not conclusive with respect to fair use, can and should be

weighed along with other factors in fair use decisions.

General intention behind the provision

The statement of the fair use doctrine in section 107 offers

some guidance to users in determining when the principles

of the doctrine apply. However, the endless variety of situa-

tions and combinations of circumstances that can rise in par-

ticular cases precludes the formulation of exact rules in the

statute. The bill endorses the purpose and general scope of

the judicial doctrine of fair use, but there is no disposition to

freeze the doctrine in the statute, especially during a period

of rapid technological change. Beyond a very broad statu-

tory explanation of what fair use is and some of the criteria

applicable to it, the courts must be free to adapt the doctrine

to particular situations on a case-by-case basis. Section 107

is intended to restate the present judicial doctrine of fair use,

not to change, narrow, or enlarge it in any way.

b. House Report: Statement of Intention as to

Classroom Reproduction

note: The House Report differs substantially from the Senate

Report on this point.

applicable to it, the courts must be free to adapt the doctrine

to particular situations on a case-by-case basis. Section 107

is intended to restate the present judicial doctrine of fair use,

not to change, narrow, or enlarge it in any way.

b. House Report: Statement of Intention as to

Classroom Reproduction

note: The House Report differs substantially from the Senate

Report on this point.

(i) Introductory Statement

Intention as to classroom reproduction

Although the works and uses to which the doctrine of fair

use is applicable are as broad as the copyright law itself, most

of the discussion of section 107 has centered around ques-

tions of classroom reproduction, particularly photocopying.

The arguments on the question are summarized at pp. 30–31

of this Committee’s 1967 report (H.R. Rep. No. 83, 90th

Cong., 1st Sess.), and have not changed materially in the

intervening years.

The Committee also adheres to its earlier conclusion, that

“a specific exemption freeing certain reproductions of copy-

righted works for educational and scholarly purposes from

mittee recognizes, as it did in 1967, that there is a “need for

greater certainty and protection for teachers.” In an effort to

meet this need the Committee has not only adopted further

amendments to section 107, but has also amended section

504(c) to provide innocent teachers and other non-profit

users of copyrighted material with broad insulation against

unwarranted liability for infringement. The latter amend-

ments are discussed below in connection with Chapter 5 of

the bill.

In 1967 the Committee also sought to approach this prob-

lem by including, in its report, a very thorough discussion of

“the considerations lying behind the four criteria listed in the

amended section 107, in the context of typical classroom sit-

uations arising today.” This discussion appeared on pp. 32–35

of the 1967 report, and with some changes has been retained

in the Senate report on S. 22 (S

67 the Committee also sought to approach this prob-

lem by including, in its report, a very thorough discussion of

“the considerations lying behind the four criteria listed in the

amended section 107, in the context of typical classroom sit-

uations arising today.” This discussion appeared on pp. 32–35

of the 1967 report, and with some changes has been retained

in the Senate report on S. 22 (S. Rep. No. 94-473, pp. 63–65).

The Committee has reviewed this discussion, and considers

that it still has value as an analysis of various aspects of the

problem.

At the Judiciary Subcommittee hearings in June 1975,

Chairman Kastenmeier and other members urged the par-

ties to meet together independently in an effort to achieve a

meeting of the minds as to permissible educational uses of

copyrighted material. The response to these suggestions was

positive, and a number of meetings of three groups, dealing

respectively with classroom, reproduction of printed mate-

rial, music, and audio-visual material, were held beginning

in September 1975.

(ii) Guidelines with Respect to Books and Periodicals

In a joint letter to Chairman Kastenmeier, dated March 19,

1976, the representatives of the Ad Hoc Committee of Edu-

cational Institutions and Organizations on Copyright Law

Revision, and of the Authors League of America, Inc., and

the Association of American Publishers, Inc., stated:

You may remember that in our letter of March 8, 1976 we

told you that the negotiating teams representing authors

and publishers and the Ad Hoc Group had reached tenta-

tive agreement on guidelines to insert in the Committee

Report covering educational copying from books and

periodicals under Section 107 of H.R. 2223 and S. 22, and

that as part of that tentative agreement each side would

accept the amendments to Sections 107 and 504 which

were adopted by your Subcommittee on March 3, 1976.

nting authors

and publishers and the Ad Hoc Group had reached tenta-

tive agreement on guidelines to insert in the Committee

Report covering educational copying from books and

periodicals under Section 107 of H.R. 2223 and S. 22, and

that as part of that tentative agreement each side would

accept the amendments to Sections 107 and 504 which

were adopted by your Subcommittee on March 3, 1976.

Reproduction of Copyrighted Works · 6

We are now happy to tell you that the agreement has

been approved by the principals and we enclose a copy

herewith. We had originally intended to translate the

agreement into language suitable for inclusion in the

legislative report dealing with Section 107, but we have

since been advised by committee staff that this will not be

necessary.

As stated above, the agreement refers only to copying from

books and periodicals, and it is not intended to apply to

musical or audiovisual works.

The full text of the agreement is as follows:

Agreement on Guidelines for Classroom Copying

in Not-For-Profit Educational Institutions

with respect to books and periodicals

The purpose of the following guidelines is to state the mini-

mum and not the maximum standards of educational fair

use under Section 107 of H.R. 2223. The parties agree that

the conditions determining the extent of permissible copy-

ing for educational purposes may change in the future; that

certain types of copying permitted under these guidelines

may not be permissible in the future; and conversely that in

the future other types of copying not permitted under these

guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is not

intended to limit the types of copying permitted under the

standards of fair use under judicial decision and which are

stated in Section 107 of the Copyright Revision Bill. There

may be instances in which copying which does not fall

within the guidelines stated below may nonetheless be per-

mitted under the criteria of fair use

uidelines.

Moreover, the following statement of guidelines is not

intended to limit the types of copying permitted under the

standards of fair use under judicial decision and which are

stated in Section 107 of the Copyright Revision Bill. There

may be instances in which copying which does not fall

within the guidelines stated below may nonetheless be per-

mitted under the criteria of fair use.

Guidelines

I. Single Copying for Teachers

A single copy may be made of any of the following by or

for a teacher at his or her individual request for his or her

scholarly research or use in teaching or preparation to teach

a class:

a A chapter from a book

b An article from a periodical or newspaper

c A short story, short essay or short poem, whether or

not from a collective work

d A chart, graph, diagram, drawing, cartoon or

picture from a book, periodical, or newspaper

II. Multiple Copies for Classroom Use

Multiple copies (not to exceed in any event more than one

copy per pupil in a course) may be made by or for the

teacher giving the course for classroom use or discussion;

provided that:

a The copying meets the tests of brevity and sponta-

neity as defined below and,

b Meets the cumulative effect test as defined below

and,

c Each copy includes a notice of copyright

Definitions

Brevity

i Poetry: (a) A complete poem if less than 250 words and if

printed on not more than two pages or, (b) from a longer

poem, an excerpt of not more than 250 words.

ii Prose: (a) Either a complete article, story or essay of less

than 2,500 words, or (b) an excerpt from any prose work

of not more than 1,000 words or 10% of the work, which-

ever is less, but in any event a minimum of 500 words.

[Each of the numerical limits stated in “i” and “ii” above

may be expanded to permit the completion of an unfin-

ished line of a poem or of an unfinished prose paragraph.]

iii Illustration: One chart, graph, diagram, drawing, cartoon

or picture per book or per periodical issue

e work

of not more than 1,000 words or 10% of the work, which-

ever is less, but in any event a minimum of 500 words.

[Each of the numerical limits stated in “i” and “ii” above

may be expanded to permit the completion of an unfin-

ished line of a poem or of an unfinished prose paragraph.]

iii Illustration: One chart, graph, diagram, drawing, cartoon

or picture per book or per periodical issue.

iv “Special” works: Certain works in poetry, prose or in “poetic

prose” which often combine language with illustrations

and which are intended sometimes for children and at

other times for a more general audience fall short of 2,500

words in their entirety. Paragraph “ii” above notwith-

standing such “special works” may not be reproduced in

their entirety; however, an excerpt comprising not more

than two of the published pages of such special work and

containing not more than ten percent of the words found

in the text thereof, may be reproduced.

Spontaneity

i The copying is at the instance and inspiration of

the individual teacher, and

ii The inspiration and decision to use the work and the

moment of its use for maximum teaching effectiveness

are so close in time that it would be unreasonable to

expect a timely reply to a request for permission.

Reproduction of Copyrighted Works · 7

Cumulative Effect

i The copying of the material is for only one course in the

school in which the copies are made.

ii Not more than one short poem, article, story, essay or two

excerpts may be copied from the same author, nor more

than three from the same collective work or periodical

volume during one class term.

iii There shall not be more than nine instances of such mul-

tiple copying for one course during one class term.

[The limitations stated in “ii” and “iii” above shall not

apply to current news periodicals and newspapers and

current news sections of other periodicals.]

III

copied from the same author, nor more

than three from the same collective work or periodical

volume during one class term.

iii There shall not be more than nine instances of such mul-

tiple copying for one course during one class term.

[The limitations stated in “ii” and “iii” above shall not

apply to current news periodicals and newspapers and

current news sections of other periodicals.]

III. Prohibitions as to I and II Above

Notwithstanding any of the above, the following shall be

prohibited:

a Copying shall not be used to create or to replace or sub-

stitute for anthologies, compilations or collective works.

Such replacement or substitution may occur whether

copies of various works or excerpts therefrom are accu-

mulated or reproduced and used separately.

b There shall be no copying of or from works intended to

be “consumable” in the course of study or of teaching.

These include workbooks, exercises, standardized tests

and test booklets and answer sheets and like consumable

material.

c Copying shall not:

a substitute for the purchase of books, publishers’

reprints or periodicals;

b be directed by higher authority;

c be repeated with respect to the same item by the

same teacher from term to term.

d No charge shall be made to the student beyond the actual

cost of the photocopying.

Agreed March 19, 1976.

Ad Hoc Committee on Copyright Law Revision:

By Sheldon Elliott Steinbach.

Author-Publisher Group:

Authors League of America:

By Irwin Karp, Counsel.

Association of American Publishers, Inc.:

By Alexander C. Hoffman,

Chairman, Copyright Committee.

the

same teacher from term to term.

d No charge shall be made to the student beyond the actual

cost of the photocopying.

Agreed March 19, 1976.

Ad Hoc Committee on Copyright Law Revision:

By Sheldon Elliott Steinbach.

Author-Publisher Group:

Authors League of America:

By Irwin Karp, Counsel.

Association of American Publishers, Inc.:

By Alexander C. Hoffman,

Chairman, Copyright Committee.

(iii) Guidelines with Respect to Music

In a joint letter dated April 30, 1976, representatives of the

Music Publishers’ Association of the United States, Inc., the

National Music Publishers’ Association, Inc., the Music

Teachers National Association, the Music Educators National

Conference, the National Association of Schools of Music,

and the Ad Hoc Committee on Copyright Law Revision,

wrote to Chairman Kastenmeier as follows:

During the hearings on H.R. 2223 in June 1975, you and

several of your subcommittee members suggested that

concerned groups should work together in developing

guidelines which would be helpful to clarify Section 107

of the bill.

Representatives of music educators and music publish-

ers delayed their meetings until guidelines had been

developed relative to books and periodicals. Shortly after

that work was completed and those guidelines were

forwarded to your subcommittee, representatives of the

undersigned music organizations met together with rep-

resentatives of the Ad Hoc Committee on Copyright Law

Revision to draft guidelines relative to music.

We are very pleased to inform you that the discussions

thus have been fruitful on the guidelines which have been

developed. Since private music teachers are an important

factor in music education, due consideration has been

given to the concerns of that group.

We trust that this will be helpful in the report on the

bill to clarify Fair Use as it applies to music

guidelines relative to music.

We are very pleased to inform you that the discussions

thus have been fruitful on the guidelines which have been

developed. Since private music teachers are an important

factor in music education, due consideration has been

given to the concerns of that group.

We trust that this will be helpful in the report on the

bill to clarify Fair Use as it applies to music.

The text of the guidelines accompanying this letter is as follows:

Guidelines for Educational Uses of Music

The purpose of the following guidelines is to state the mini-

mum and not the maximum standards of educational fair

use under Section 107 of H.R. 2223. The parties agree that

the conditions determining the extent of permissible copy-

ing for educational purposes may change in the future; that

certain types of copying permitted under these guidelines

may not be permissible in the future, and conversely that in

the future other types of copying not permitted under these

guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is not

intended to limit the types of copying permitted under the

standards of fair use under judicial decision and which are

stated in Section 107 of the Copyright Revision Bill. There

may be instances in which copying which does not fall

within the guidelines stated below may nonetheless be per-

mitted under the criteria of fair use.

idelines.

Moreover, the following statement of guidelines is not

intended to limit the types of copying permitted under the

standards of fair use under judicial decision and which are

stated in Section 107 of the Copyright Revision Bill. There

may be instances in which copying which does not fall

within the guidelines stated below may nonetheless be per-

mitted under the criteria of fair use.

Reproduction of Copyrighted Works · 8

a Permissible Uses

1 Emergency copying to replace purchased copies which

for any reason are not available for an imminent per-

formance provided purchased replacement copies shall

be substituted in due course.

2 For academic purposes other than performance, single

or multiple copies of excerpts of works may be made,

provided that the excerpts do not comprise a part of

the whole which would constitute a performable unit

such as a section¹, movement or aria, but in no case

more than 10 percent of the whole work. The number

of copies shall not exceed one copy per pupil.²

3 Printed copies which have been purchased may be

edited or simplified provided that the fundamental

character of the work is not distorted or the lyrics, if

any, altered or lyrics added if none exist.

4 A single copy of recordings of performances by students

may be made for evaluation or rehearsal purposes and

may be retained by the educational institution or indi-

vidual teacher.

5 A single copy of a sound recording (such as a tape, disc,

or cassette) of copyrighted music may be made from

sound recordings owned by an educational institu-

tion or an individual teacher for the purpose of con-

structing aural exercises or examinations and may be

retained by the educational institution or individual

teacher. (This pertains only to the copyright of the

music itself and not to any copyright which may exist

in the sound recording.)

b Prohibitions

1 Copying to create or replace or substitute for antholo-

gies, compilations or collective works

n individual teacher for the purpose of con-

structing aural exercises or examinations and may be

retained by the educational institution or individual

teacher. (This pertains only to the copyright of the

music itself and not to any copyright which may exist

in the sound recording.)

b Prohibitions

1 Copying to create or replace or substitute for antholo-

gies, compilations or collective works.

2 Copying of or from works intended to he “consumable”

in the course of study or of teaching such as work-

books, exercises, standardized tests and answer sheets

and like material.

3 Copying for the purpose of performance, except as in

A(1) above.

4 Copying for the purpose of substituting for the pur-

chase of music, except as in A(1) and A(2) above.

5 Copying without inclusion of the copyright notice

which appears on the printed copy.

(iv) Discussion of Guidelines

The Committee appreciates and commends the efforts and

the cooperative and reasonable spirit of the parties who

achieved the agreed guidelines on books and periodicals

and on music. Representatives of the American Association

of University Professors and of the Association of American

Law Schools have written to the Committee strongly criti-

cizing the guidelines, particularly with respect to multiple

copying, as being too restrictive with respect to classroom

situations at the university and graduate level. However, the

Committee notes that the Ad Hoc group did include rep-

resentatives of higher education, that the stated “purpose

of the … guidelines is to state the minimum and not the

maximum standards of educational fair use” and that the

agreement acknowledges “there may be instances in which

copying which does not fall within the guidelines … may

nonetheless be permitted under the criteria of fair use.”

The Committee believes the guidelines are a reasonable

interpretation of the minimum standards of fair use. Teach-

ers will know that copying within the guidelines is fair use

um standards of educational fair use” and that the

agreement acknowledges “there may be instances in which

copying which does not fall within the guidelines … may

nonetheless be permitted under the criteria of fair use.”

The Committee believes the guidelines are a reasonable

interpretation of the minimum standards of fair use. Teach-

ers will know that copying within the guidelines is fair use.

Thus, the guidelines serve the purpose of fulfilling the need

for greater certainty and protection for teachers. The Com-

mittee expresses the hope that if there are areas where stan-

dards other than these guidelines may be appropriate, the

parties will continue their efforts to provide additional spe-

cific guidelines in the same spirit of good will and give and

take that has marked the discussion of this subject in recent

months.

c. House Report: Additional Excerpts

note: Under the heading “Reproduction and uses for other

purposes,” the House Report, at pages 72–74, parallels much of

the material appearing at pages 65–67 of the Senate Report

under the same heading, but with some differences.

The concentrated attention given the fair use provision in the

context of classroom teaching activities should not obscure

its application in other areas. It must be emphasized again

that the same general standards of fair use are applicable to

all kinds of uses of copyrighted material, although the rela-

tive weight to be given them will differ from case to case.

* * *

A problem of particular urgency is that of preserving for

posterity prints of motion pictures made before 1942. Aside

from the deplorable fact that in a great many cases the only

existing copy of a film has been deliberately destroyed, those

air use are applicable to

all kinds of uses of copyrighted material, although the rela-

tive weight to be given them will differ from case to case.

* * *

A problem of particular urgency is that of preserving for

posterity prints of motion pictures made before 1942. Aside

from the deplorable fact that in a great many cases the only

existing copy of a film has been deliberately destroyed, those

Reproduction of Copyrighted Works · 9

that remain are in immediate danger of disintegration; they

were printed on film stock with a nitrate base that will inevi-

tably decompose in time. The efforts of the Library of Con-

gress, the American Film Institute, and other organizations

to rescue and preserve this irreplaceable contribution to our

cultural life are to be applauded, and the making of duplicate

copies for purposes of archival preservation certainly falls

within the scope of “fair use.”

* * *

During the consideration of the revision bill in the 94th

Congress it was proposed that independent newsletters, as

distinguished from house organs and publicity or advertising

publications, be given separate treatment. It is argued that

newsletters are particularly vulnerable to mass photocopy-

ing, and that most newsletters have fairly modest circulations.

Whether the copying of portions of a newsletter is an act of

infringement or a fair use will necessarily turn on the facts

of the individual case. However, as a general principle, it

seems clear that the scope of the fair use doctrine should be

considerably narrower in the case of newsletters than in that

of either mass-circulation periodicals or scientific journals.

The commercial nature of the user is a significant factor in

such cases: Copying by a profit-making user of even a small

portion of a newsletter may have a significant impact on the

commercial market for the work.

The Committee has examined the use of excerpts from

copyrighted works in the art work of calligraphers

s than in that

of either mass-circulation periodicals or scientific journals.

The commercial nature of the user is a significant factor in

such cases: Copying by a profit-making user of even a small

portion of a newsletter may have a significant impact on the

commercial market for the work.

The Committee has examined the use of excerpts from

copyrighted works in the art work of calligraphers. The

committee believes that a single copy reproduction of an

excerpt from a copyrighted work by a calligrapher for a

single client does not represent an infringement of copyright.

Likewise, a single reproduction of excerpts from a copy-

righted work by a student calligrapher or teacher in a learn-

ing situation would be a fair use of the copyrighted work.

The Register of Copyrights has recommended that the

committee report describe the relationship between this sec-

tion and the provisions of section 108 relating to reproduc-

tion by libraries and archives. The doctrine of fair use applies

to library photocopying, and nothing contained in section

108 “in any way affects the right of fair use.” No provision of

section 108 is intended to take away any rights existing under

the fair use doctrine. To the contrary, section 108 authorizes

certain photocopying practices which may not qualify as a

fair use.

The criteria of fair use are necessarily set forth in general

terms. In the application of the criteria of fair use to specific

photocopying practices of libraries, it is the intent of this

legislation to provide an appropriate balancing of the rights

of creators, and the needs of users.

3. Excerpts from Conference Report on Section 107

note: The following excerpt is reprinted from the Report of

the Conference Committee on the new copyright law (H.R.

Rep. No. 94-1733, page 70).

Fair Use

Senate bill

The Senate bill, in section 107, embodied express statutory

recognition of the judicial doctrine that the fair use of a

copyrighted work is not an infringement of copyright

users.

3. Excerpts from Conference Report on Section 107

note: The following excerpt is reprinted from the Report of

the Conference Committee on the new copyright law (H.R.

Rep. No. 94-1733, page 70).

Fair Use

Senate bill

The Senate bill, in section 107, embodied express statutory

recognition of the judicial doctrine that the fair use of a

copyrighted work is not an infringement of copyright. It set

forth the fair use doctrine, including four criteria for deter-

mining its applicability in particular cases, in general terms.

House bill

The House bill amended section 107 in two respects: in the

general statement of the fair use doctrine it added a specific

reference to multiple copies for classroom use, and it ampli-

fied the statement of the first of the criteria to be used in

judging fair use (the purpose and character of the use) by

referring to the commercial nature or nonprofit educational

purpose of the use.

Conference substitute

The conference substitute adopts the House amendments.

The conferees accept as part of their understanding of fair

use the “Guidelines for Classroom Copying in Not-for-

Profit Educational Institutions” with respect to books and

periodicals appearing at pp. 68–70 of the House Report (H.

Rept. No. 94-1476, as corrected at p. H 10727 of the Congres-

sional Record for September 21, 1976), and for educational

uses of music appearing at pp. 70–71 of the House report, as

amended in the statement appearing at p. H 10875 of the

Congressional Record of September 22, 1976. The conferees

also endorse the statement concerning the meaning of the

word “teacher” in the guidelines for books and periodicals,

and the application of fair use in the case of use of television

programs within the confines of a nonprofit educational

institution for the deaf and hearing impaired, both of which

appear on p. H 10875 of the Congressional Record of Septem-

ber 22, 1976.

1976. The conferees

also endorse the statement concerning the meaning of the

word “teacher” in the guidelines for books and periodicals,

and the application of fair use in the case of use of television

programs within the confines of a nonprofit educational

institution for the deaf and hearing impaired, both of which

appear on p. H 10875 of the Congressional Record of Septem-

ber 22, 1976.

4. Excerpts from Congressional Debates

note: The following excerpts are reprinted from the Congres-

sional Record of September 22, 1976, including statements by

Mr. Kastenmeier (Chairman of the House Judiciary Subco

Reproduction of Copyrighted Works · 10

mittee responsible for the bill) on the floor of the House of

Representatives.

Mr. Kastenmeier … Mr. Chairman, before concluding

my remarks I would like to discuss several questions which

have been raised concerning the meaning of several provi-

sions of S. 22 as reported by the House Judiciary Committee

and of statements in the committee’s report, No. 94-1476.

* * *

Another question involves the reference to “teacher” in

the “Agreement on Guidelines for Classroom Copying in

Not-for-Profit Educational Institutions” reproduced at pages

68–70 of the committee’s report No. 94-1476 in connection

with section 107. It has been pointed out that, in planning his

or her teaching on a day-to-day basis in a variety of educa-

tional situations, an individual teacher will commonly con-

sult with instructional specialists on the staff of the school,

such as reading specialists, curriculum specialists, audio-

visual directors, guidance counselors, and the like. As long

as the copying meets all of the other criteria laid out in the

guidelines, including the requirements for spontaneity and

the prohibition against the copying being directed by higher

authority, the committee regards the concept of “teacher” as

broad enough to include instructional specialists working in

consultation with actual instructors

irectors, guidance counselors, and the like. As long

as the copying meets all of the other criteria laid out in the

guidelines, including the requirements for spontaneity and

the prohibition against the copying being directed by higher

authority, the committee regards the concept of “teacher” as

broad enough to include instructional specialists working in

consultation with actual instructors.

Also in consultation with section 107, the committee’s

attention has been directed to the unique educational needs

and problems of the approximately 50,000 deaf and hearing-

impaired students in the United States, and the inadequacy

of both public and commercial television to serve their edu-

cational needs. It has been suggested that, as long as clear-cut

constraints are imposed and enforced, the doctrine of fair

use is broad enough to permit the making of an off-the-air

fixation of a television program within a nonprofit edu-

cational institution for the deaf and hearing impaired, the

reproduction of a master and a work copy of a captioned

version of the original fixation, and the performance of the

program from the work copy within the confines of the

institution. In identifying the constraints that would have to

be imposed within an institution in order for these activities

to be considered as fair use, it has been suggested that the

purpose of the use would have to be noncommercial in every

respect, and educational in the sense that it serves as part of

a deaf or hearing-impaired student’s learning environment

within the institution, and that the institution would have to

insure that the master and work copy would remain in the

hands of a limited number of authorized personnel within

the institution, would be responsible for assuring against

its unauthorized reproduction or distribution, or its per-

formance or retention for other than educational purposes

within the institution

arning environment

within the institution, and that the institution would have to

insure that the master and work copy would remain in the

hands of a limited number of authorized personnel within

the institution, would be responsible for assuring against

its unauthorized reproduction or distribution, or its per-

formance or retention for other than educational purposes

within the institution. Work copies of captioned programs

could be shared among institutions for the deaf abiding by

the constraints specified. Assuming that these constraints are

both imposed and enforced, and that no other factors inter-

vene to render the use unfair, the committee believes that the

activities described could reasonably be considered fair use

under section 107.

* * *

Mr. Chairman, because of the complexity of this bill and

the delicate balances which it creates among competing eco-

nomic interests, the committee will resist extensive amend-

ment of this bill. On behalf of the committee I would urge all

of my colleagues to vote favorably on S. 22.

Mr. Skubitz. Mr. Chairman, will the gentleman yield?

Mr. Kastenmeier. I am happy to yield to my friend, the

gentleman from Kansas.

Mr. Skubitz. Mr. Chairman, I thank my friend, the gen-

tleman from Wisconsin, for yielding.

Mr. Chairman, I have received a great deal of mail from

the schoolteachers in my district who are particularly con-

cerned about section 107—fair use—the fair use of copy-

righted material. Having been a former schoolteacher myself,

I believe they make a good point and there is a sincere fear

on their part that, because of the vagueness or ambiguity in

the bill’s treatment of the doctrine of fair use, they may sub-

ject themselves to liability for an unintentional infringement

of copyright when all they were trying to do was the job for

which they were trained

righted material. Having been a former schoolteacher myself,

I believe they make a good point and there is a sincere fear

on their part that, because of the vagueness or ambiguity in

the bill’s treatment of the doctrine of fair use, they may sub-

ject themselves to liability for an unintentional infringement

of copyright when all they were trying to do was the job for

which they were trained.

The vast majority of teachers in this country would not

knowingly infringe upon a person’s copyright, but, as any

teacher can appreciate, there are times when information

is needed and is available, but it may be literally impossible

to locate the right person to approve the use of that mate-

rial and the purchase of such would not be feasible and, in

the meantime, the teacher may have lost that “teachable

moment.”

Did the subcommittee take these problems into consider-

ation and did they do anything to try and help the teachers

to better understand section 107?

Have the teachers been protected by this section 107?

Mr. Kastenmeier. Mr. Chairman, in response to the

gentleman’s question and his observations preceding the

question, I would say, indeed they have.

Over the years this has been one of the most difficult

questions. It is a problem that I believe has been very success-

fully resolved.

Reproduction of Copyrighted Works · 11

Section 107 on “Fair Use” has, of course, restated four

standards, and these standards are, namely: The purpose and

character of the use of the material; the nature of the copy-

righted work; the amount and substantiality of the portion

used in relation to the copyrighted work as a whole; and the

effect of the use upon the potential market for or value of

the copyrighted work.

These are the four “Fair Use” criteria. These alone were

not adequate to guide teachers, and I am sure the gentleman

from Kansas (Mr. Skubitz) understands that as a school-

teacher himself

opy-

righted work; the amount and substantiality of the portion

used in relation to the copyrighted work as a whole; and the

effect of the use upon the potential market for or value of

the copyrighted work.

These are the four “Fair Use” criteria. These alone were

not adequate to guide teachers, and I am sure the gentleman

from Kansas (Mr. Skubitz) understands that as a school-

teacher himself.

Therefore, the educators, the proprietors, and the pub-

lishers of educational materials did, at the committee’s long

insistence, get together. While there were many fruitless

meetings, they did finally get together.

Mr. Chairman, I will draw the gentleman’s attention to

pages 65 through 74 in the report which contain extensive

guidelines for teachers. I am very happy to say that there was

an agreement reached between teachers and publishers of

educational material, and that today the National Education

Association supports the bill, and it has, in fact, sent a tele-

gram which at the appropriate time I will make a part of the

Record and which requests support for the bill in its present

form, believing that it has satisfied the needs of the teachers:

National Education Association

Washington, D.C., September 10, 1976.

National Education Association urgently requests your

support of the Copyright Revision bill, H.R. 2223, as

reported by the Judiciary Committee. This compromise

effort represents a major breakthrough in establishing

equitable legal guidelines for the use of copyright materi-

als for instructional and research purposes. We ask your

support of the committee bill without amendments.

James W. Green

Assistant Director for Legislation.

Mr. Skubitz. Mr. Chairman, if the gentleman will yield

further, then the NEA is satisfied with the language in the bill

as it now stands; is that correct?

Mr. Kastenmeier. The gentleman is correct.

Mr. Skubitz. Mr. Chairman, I thank the gentleman.

D. Reproduction by Libraries and Archives

our

support of the committee bill without amendments.

James W. Green

Assistant Director for Legislation.

Mr. Skubitz. Mr. Chairman, if the gentleman will yield

further, then the NEA is satisfied with the language in the bill

as it now stands; is that correct?

Mr. Kastenmeier. The gentleman is correct.

Mr. Skubitz. Mr. Chairman, I thank the gentleman.

D. Reproduction by Libraries and Archives

1. Text of Section 108

note: The following is a reprint of the entire text of section 108

of title 17, United States Code as amended in 1992, 1998, and 2005.

§ 108 · Limitations on exclusive rights:

Reproduction by libraries and archives

(a) Except as otherwise provided in this title and not-

withstanding 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, except as provided in

subsections (b) and (c), or to 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;

(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 insti-

tution of which it is a part, but also to other persons

doing research in a specialized field; and

(3) the reproduction or distribution of the work includes

a notice of copyright that appears on the copy or

phonorecord that is reproduced under the provisions

of this section, or includes a legend stating that the

work may be protected by copyright if no such notice

can be found on the copy or phonorecord that is

reproduced under the provisions of this section.

h in a specialized field; and

(3) the reproduction or distribution of the work includes

a notice of copyright that appears on the copy or

phonorecord that is reproduced under the provisions

of this section, or includes a legend stating that the

work may be protected by copyright if no such notice

can be found on the copy or phonorecord that is

reproduced under the provisions of this section.

(b) The rights of reproduction and distribution under this

section apply to three copies or phonorecords of an

unpublished work duplicated 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 —

(1) the copy or phonorecord reproduced is currently in

the collections of the library or archives; and

(2) any such copy or phonorecord that is reproduced

in digital format is not otherwise distributed in that

format and is not made available to the public in that

format outside the premises of the library or archives.

three copies or phonorecords of a published work

Reproduction of Copyrighted Works · 12

duplicated solely for the purpose of replacement of a

copy or phonorecord that is damaged, deteriorating, lost,

or stolen, or if the existing format in which the work is

stored has become obsolete, if —

(1) the library or archives has, after a reasonable effort,

determined that an unused replacement cannot be

obtained at a fair price; and

(2) any such copy or phonorecord that is reproduced

in digital format is not made available to the public

in that format outside the premises of the library or

archives in lawful possession of such copy.

For purposes of this subsection, a format shall be consid-

ered obsolete if the machine or device necessary to render

perceptible a work stored in that format is no longer manu-

factured or is no longer reasonably available in the commer-

cial marketplace.

format is not made available to the public

in that format outside the premises of the library or

archives in lawful possession of such copy.

For purposes of this subsection, a format shall be consid-

ered obsolete if the machine or device necessary to render

perceptible a work stored in that format is no longer manu-

factured or is no longer reasonably available in the commer-

cial marketplace.

(d) The rights of reproduction and distribution under this

section apply to a copy, made from the collection of

a library or archives where the user makes his or her

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 or phonorecord becomes the property of

the user, and the library or archives has had no notice

that the copy or phonorecord 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 or her request or from that of

another library or archives, if the library or archives has

first determined, on the basis of a reasonable investiga-

tion, that a copy or phonorecord of the copyrighted

work cannot be obtained at a fair price, if —

(1) the copy or phonorecord becomes the property of

the user, and the library or archives has had no notice

that the copy or phonorecord would be used for any

purpose other than private study, scholarship, or

research; and

r archives has

first determined, on the basis of a reasonable investiga-

tion, that a copy or phonorecord of the copyrighted

work cannot be obtained at a fair price, if —

(1) the copy or phonorecord becomes the property of

the user, and the library or archives has had no notice

that the copy or phonorecord 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.

(f) Nothing in this section —

(1) shall be construed to impose liability for copy-

right 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 equip-

ment or who requests a copy or phonorecord under

subsection (d) from liability for copyright infringe-

ment for any such act, or for any later use of such

copy or phonorecord, if it exceeds fair use as pro-

vided by section 107;

(3) shall be construed to limit the reproduction and

distribution by lending of a limited number of copies

and excerpts by a library or archives of an audiovisual

news program, subject to clauses (1), (2), and (3) of

subsection (a); or

(4) in any way affects the right of fair use as provided by

section 107, or any contractual obligations assumed at

any time by the library or archives when it obtained a

copy or phonorecord of a work in its collections.

tion by lending of a limited number of copies

and excerpts by a library or archives of an audiovisual

news program, subject to clauses (1), (2), and (3) of

subsection (a); or

(4) in any way affects the right of fair use as provided by

section 107, or any contractual obligations 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 reproduc-

tion 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 occa-

sion 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 distribu-

tion of single or multiple copies or phonorecords of

material described in subsection (d): Provided, That

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

Reproduction of Copyrighted Works · 13

distribution does so in such aggregate quantities as

to substitute for a subscription to or purchase of such

work.

d): Provided, That

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

Reproduction of Copyrighted Works · 13

distribution does so in such aggregate quantities as

to substitute for a subscription to or purchase of such

work.

(h)(1) For purposes of this section, during the last 20 years

of any term of copyright of a published work, a

library or archives, including a nonprofit educational

institution that functions as such, may reproduce,

distribute, display, or perform in facsimile or digital

form a copy or phonorecord of such work, or por-

tions thereof, for purposes of preservation, scholar-

ship, or research, if such library or archives has first

determined, on the basis of a reasonable investigation,

that none of the conditions set forth in subpara-

graphs (A), (B), and (C) of paragraph (2) apply.

(2) No reproduction, distribution, display, or perfor-

mance is authorized under this subsection if —

(a) the work is subject to normal commercial

exploitation;

(b) a copy or phonorecord of the work can be

obtained at a reasonable price; or

notice pursuant to regulations promulgated

by the Register of Copyrights that either of the

conditions set forth in subparagraphs (A) and

(B) applies.

(3) The exemption provided in this subsection does not

apply to any subsequent uses by users other than such

library or archives.

(i) The rights of reproduction and distribution under

this section do not apply to a musical work, a picto-

rial, 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),

subsequent uses by users other than such

library or archives.

(i) The rights of reproduction and distribution under

this section do not apply to a musical work, a picto-

rial, 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),

(c), and (h), or with respect to pictorial or graphic works

published as illustrations, diagrams, or similar adjuncts

to works of which copies are reproduced or distributed

in accordance with subsections (d) and (e).

2. Excerpts from Senate Report on Section 108

note: The following excerpts are reprinted from the 1975

Senate Report on the new copyright law (S. Rep. No. 94-473,

pages 67–71). Where the discussions of particular points are

generally similar in the two Reports, the passages from the

later House Report are reprinted in this booklet. Where the

discussion of particular points is substantially different, pas-

sages from both Reports are reprinted.

a. Senate Report: Discussion of Libraries and Archives

in Profit-Making Institutions

The limitation of section 108 to reproduction and distribu-

tion by libraries and archives “without any purpose of direct

or indirect commercial advantage” is intended to preclude

a library or archives in a profit-making organization from

providing photocopies of copyrighted materials to employ-

ees engaged in furtherance of the organization’s commercial

enterprise, unless such copying qualifies as a fair use, or the

organization has obtained the necessary copyright licenses.

A commercial organization should purchase the number of

copies of a work that it requires, or obtain the consent of the

ies of copyrighted materials to employ-

ees engaged in furtherance of the organization’s commercial

enterprise, unless such copying qualifies as a fair use, or the

organization has obtained the necessary copyright licenses.

A commercial organization should purchase the number of

copies of a work that it requires, or obtain the consent of the

b. Senate Report: Discussion of Multiple Copies

and Systematic Reproduction

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,” but this section does not authorize the related or

concerted reproduction of multiple copies of the same mate-

rial 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. For

example, if a college professor instructs his class to read an

article from a copyrighted journal, the school library would

not be permitted, under subsection (g), to reproduce copies

of the article for the members of the class.

Subsection (g) also provides that section 108 does not

authorize the systematic reproduction or distribution of

copies or phonorecords of articles or other contributions to

copyrighted collections or periodicals or of small parts of

other copyrighted works whether or not multiple copies are

reproduced or distributed. Systematic reproduction or dis-

tribution occurs when a library makes copies of such mate-

rials available to other libraries or to groups of users under

formal or informal arrangements whose purpose or effect is

to have the reproducing library serve as their source of such

material

cals or of small parts of

other copyrighted works whether or not multiple copies are

reproduced or distributed. Systematic reproduction or dis-

tribution occurs when a library makes copies of such mate-

rials available to other libraries or to groups of users under

formal or informal arrangements whose purpose or effect is

to have the reproducing library serve as their source of such

material. Such systematic reproduction and distribution, as

distinguished from isolated and unrelated reproduction or

distribution, may substitute the copies reproduced by the

source library for subscriptions or reprints or other copies

which the receiving libraries or users might otherwise have

purchased for themselves, from the publisher or the licensed

reproducing agencies.

While it is not possible to formulate specific definitions of

“systematic copying,” the following examples serve to illus-

trate some of the copying prohibited by subsection (g).

Reproduction of Copyrighted Works · 14

1 A library with a collection of journals in biology informs

other libraries with similar collections that it will main-

tain and build its own collection and will make copies

of articles from these journals available to them and

their patrons on request. Accordingly, the other libraries

discontinue or refrain from purchasing subscriptions to

these journals and fulfill their patrons’ requests for articles

by obtaining photocopies from the source library.

2 A research center employing a number of scientists and

technicians subscribes to one or two copies of needed

periodicals. By reproducing photocopies of articles the

center is able to make the material in these periodicals

available to its staff in the same manner which otherwise

would have required multiple subscriptions

uests for articles

by obtaining photocopies from the source library.

2 A research center employing a number of scientists and

technicians subscribes to one or two copies of needed

periodicals. By reproducing photocopies of articles the

center is able to make the material in these periodicals

available to its staff in the same manner which otherwise

would have required multiple subscriptions.

3 Several branches of a library system agree that one branch

will subscribe to particular journals in lieu of each branch

purchasing its own subscriptions, and the one subscribing

branch will reproduce copies of articles from the publica-

tion for users of the other branches.

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 dis-

tinguished from “systematic reproduction.” Isolated single

spontaneous requests must be distinguished from “system-

atic reproduction.” The photocopying needs of such opera-

tions 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 recom-

mends that workable clearance and licensing procedures be

developed.

It is still uncertain how far a library may go under the

righted material in its collection. The recent case of The Wil-

liams and Wilkins Company v. The United States failed to sig-

nificantly illuminate the application of the fair use doctrine

to library photocopying practices

hat workable clearance and licensing procedures be

developed.

It is still uncertain how far a library may go under the

righted material in its collection. The recent case of The Wil-

liams and Wilkins Company v. The United States failed to sig-

nificantly illuminate the application of the fair use doctrine

to library photocopying practices. Indeed, the opinion of the

Court of Claims said 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 Sci-

ence 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 (CONTU) has been established

(Public Law 93-573).

3. Excerpts from House Report on Section 108

note: The following excerpts are reprinted from the House

Report on the new copyright law (H.R. Rep. No. 94-1476, pages

74–79). All of the House Report’s discussion of section 108 is

reprinted here; similarities and differences between the House

and Senate Reports on particular points will be noted below.

a. House Report: Introductory Statement

note: This paragraph is substantially the same in the Senate

and House Reports

e reprinted from the House

Report on the new copyright law (H.R. Rep. No. 94-1476, pages

74–79). All of the House Report’s discussion of section 108 is

reprinted here; similarities and differences between the House

and Senate Reports on particular points will be noted below.

a. House Report: Introductory Statement

note: This paragraph is substantially the same in the Senate

and House Reports.

Notwithstanding the exclusive rights of the owners of copy-

right, section 108 provides that under certain conditions it is

not an infringement of copyright for a library or archives, or

any of its employees acting within the scope of their employ-

ment, to reproduce or distribute not more than one copy or

phonorecord of a work, provided (1) the reproduction or dis-

tribution is made without any purpose of direct or indirect

commercial advantage and (2) the collections of the library

or archives are open to the public or available not only to

researchers affiliated with the library or archives, but also

to other persons doing research in a specialized field, and

(3) the reproduction or distribution of the work includes a

notice of copyright.

b. House Report: Discussion of Libraries and Archives

in Profit-Making Institutions

note: The Senate and House Reports differ substantially on

this point. The Senate Report’s discussion is reprinted at page 13.

Under this provision, a purely commercial enterprise could

not establish a collection of copyrighted works, call itself

n or distribution of the work includes a

notice of copyright.

b. House Report: Discussion of Libraries and Archives

in Profit-Making Institutions

note: The Senate and House Reports differ substantially on

this point. The Senate Report’s discussion is reprinted at page 13.

Under this provision, a purely commercial enterprise could

not establish a collection of copyrighted works, call itself

Reproduction of Copyrighted Works · 15

a library or archive, and engage in for-profit reproduction

and distribution of photocopies. Similarly, it would not be

possible for a nonprofit institution, by means of contractual

arrangements with a commercial copying enterprise, to

authorize the enterprise to carry out copying and distribu-

tion functions that would be exempt if conducted by the

non-profit institution itself.

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 partner-

ship, 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 pho-

tocopies in such aggregate quantities as to substitute for

subscriptions or purchase of mater

ngle 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 pho-

tocopies in such aggregate quantities as to substitute for

subscriptions or purchase of material needed by employ-

ees in their work.

Moreover, a library in a profit-making organization could

not evade these obligations by installing reproducing equip-

ment on its premises for unsupervised use by the organiza-

tion’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 pur-

chases, 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 reproduction or distribution was

not “systematic.” These activities, by themselves, would ordi-

narily not be considered “for direct or indirect commercial

advantage,” 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 distribut-

ing 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.

c. House Report: Rights of Reproduction and Distribution

Under Section 108

note: The following paragraphs are closely similar in the

Senate and House Reports

behind the actual making or distribut-

ing 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.

c. House Report: Rights of Reproduction and Distribution

Under Section 108

note: The following paragraphs are closely similar in the

Senate and House Reports.

The rights of reproduction and distribution under section

108 apply in the following circumstances:

Archival reproductions

Subsection (b) authorizes the reproduction and distribu-

tion of a copy or phonorecord of an unpublished work

duplicated in facsimile form solely for purposes of preserva-

tion and security, or for deposit for research use in another

library or archives, if the copy or phonorecord reproduced

is currently in the collections of the first library or archives.

Only unpublished works could be reproduced under this

exemption, but the right would extend to any type of

work, including photographs, motion pictures and sound

recordings. Under this 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.

Replacement of damaged copy

Subsection (c) authorizes the reproduction of a published

work duplicated in facsimile form solely for the purpose of

replacement of a copy or phonorecord that is damaged, dete-

riorating, lost or stolen, if the library or archives has, after a

reasonable effort, determined that an unused replacement

cannot be obtained at a fair price. The scope and nature

of a reasonable investigation to determine that an unused

replacement cannot be obtained will vary according to the

circumstances of a particular situation

eplacement of a copy or phonorecord that is damaged, dete-

riorating, lost or stolen, if the library or archives has, after a

reasonable effort, determined that an unused replacement

cannot be obtained at a fair price. The scope and nature

of a reasonable investigation to determine that an unused

replacement cannot be obtained will vary according to the

circumstances of a particular situation. It will always require

recourse to commonly-known trade sources in the United

States, and in the normal situation also to the publisher or

other copyright owner (if such owner can be located at the

address listed in the copyright registration), or an authorized

reproducing service.

Reproduction of Copyrighted Works · 16

Articles and small excerpts

Subsection (d) authorizes the reproduction and distribution

of a copy of not more than one article or other contribution

to a copyrighted collection or periodical issue, or of a copy

or phonorecord of a small part of any other copyrighted

work. The copy or phonorecord may be made by the library

where the user makes his request or by another library pur-

suant to an interlibrary loan. It is further required that the

copy become the property of the user, that the library or

archives have no notice that the copy would be used for any

purposes other than private study, scholarship or research,

and that the library or archives display prominently at the

place where reproduction requests are accepted, and includes

in its order form, a warning of copyright in accordance with

requirements that the Register of Copyrights shall prescribe

by regulation.

Out-of-print works

Subsection (e) authorizes the reproduction and distribution

of a copy or phonorecord of an entire work under certain

circumstances, if it has been established that a copy cannot

be obtained at a fair price. The copy may be made by the

library where the user makes his request or by another

library pursuant to an interlibrary loan

of Copyrights shall prescribe

by regulation.

Out-of-print works

Subsection (e) authorizes the reproduction and distribution

of a copy or phonorecord of an entire work under certain

circumstances, if it has been established that a copy cannot

be obtained at a fair price. The copy may be made by the

library where the user makes his request or by another

library pursuant to an interlibrary loan. The scope and

nature of a reasonable investigation to determine that an

unused copy cannot be obtained will vary according to the

circumstances of a particular situation. It will always require

recourse to commonly-known trade sources in the United

States, and in the normal situation also to the publisher or

other copyright owner (if the owner can be located at the

address listed in the copyright registration), or an autho-

rized reproducing service. It is further required that the copy

become the property of the user, that the library or archives

have no notice that the copy would be used for any purpose

other than private study, scholarship, or research, and that

the library or archives display prominently at the place where

reproduction requests are accepted, and include on its order

form, a warning of copyright in accordance with require-

ments that the Register of Copyrights shall prescribe by

regulation.

d. House Report: General Exemptions for Libraries

and Archives

note: Parts of the following paragraphs are substantially

similar in the Senate and House Reports. Differences in the

House Report on certain points reflect certain amendments in

section 108(f) and elsewhere in the Copyright Act.

General exemptions

Clause (1) of subsection (f) specifically exempts a library or

archives or its employees from liability for the unsupervised

use of reproducing equipment located on its premises, pro-

vided that the reproducing equipment displays a notice that

the making of a copy may be subject to the copyright law

ect certain amendments in

section 108(f) and elsewhere in the Copyright Act.

General exemptions

Clause (1) of subsection (f) specifically exempts a library or

archives or its employees from liability for the unsupervised

use of reproducing equipment located on its premises, pro-

vided that the reproducing equipment displays a notice that

the making of a copy may be subject to the copyright law.

Clause (2) of subsection (f) makes clear that this exemption

of the library or archives does not extend to the person using

such equipment or requesting such copy if the use exceeds

fair use. Insofar as such person is concerned the copy or

phonorecord made is not considered “lawfully” made for

purposes of sections 109, 110 or other provisions of the title.

Clause (3) provides that nothing in section 108 is intended

to limit the reproduction and distribution by lending of a

limited number of copies and excerpts of an audiovisual

news program. This exemption is intended to apply to the

daily newscasts of the national television networks, which

report the major events of the day. It does not apply to docu-

mentary (except documentary programs involving news

reporting as that term is used in section 107), magazine-for-

mat or other public affairs broadcasts dealing with subjects

of general interest to the viewing public.

The clause was first added to the revision bill in 1974 by

the adoption of an amendment proposed by Senator Baker.

It is intended to permit libraries and archives, subject to

the general conditions of this section, to make off-the-air

videotape recordings of daily network newscasts for limited

distribution to scholars and researchers for use in research

purposes. As such, it is an adjunct to the American Television

and Radio Archive established in Section 113 of the Act which

will be the principal repository for television broadcast mate-

rial, including news broadcasts

neral conditions of this section, to make off-the-air

videotape recordings of daily network newscasts for limited

distribution to scholars and researchers for use in research

purposes. As such, it is an adjunct to the American Television

and Radio Archive established in Section 113 of the Act which

will be the principal repository for television broadcast mate-

rial, including news broadcasts. The inclusion of language

indicating that such material may only be distributed by

lending by the library or archive is intended to preclude per-

formance, copying, or sale, whether or not for profit, by the

recipient of a copy of a television broadcast taped off-the-air

pursuant to this clause.

Clause (4), in addition to asserting that nothing contained

in section 108 “affects the right of fair use as provided by

section 107,” also provides that the right of reproduction

granted by this section does not override any contractual

arrangements assumed by a library or archives when it

obtained a work for its collections. For example, if there is

an express contractual prohibition against reproduction for

any purpose, this legislation shall not be construed as justi-

fying a violation of the contract. This clause is intended to

encompass the situation where an individual makes papers,

manuscripts or other works available to a library with the

understanding that they will not be reproduced.

Reproduction of Copyrighted Works · 17

It is the intent of this legislation that a subsequent unlaw-

ful use by a user of a copy or phonorecord of a work lawfully

made by a library, shall not make the library liable for such

improper use.

e. House Report: Discussion of Multiple Copies

and Systematic Reproduction

note: The Senate and House Reports differ substantially

on this point. The Senate Report’s discussion is reprinted at

page 13

intent of this legislation that a subsequent unlaw-

ful use by a user of a copy or phonorecord of a work lawfully

made by a library, shall not make the library liable for such

improper use.

e. House Report: Discussion of Multiple Copies

and Systematic Reproduction

note: The Senate and House Reports differ substantially

on this point. The Senate Report’s discussion is reprinted at

page 13.

Multiple copies and systematic reproduction

Subsection (g) provides that the rights granted by this sec-

tion 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 material, 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 engages in “systematic reproduction

or distribution of single or multiple copies or 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 arrange-

ments involving the exchange of photocopies

f the library or archive engages in “systematic reproduction

or distribution of single or multiple copies or 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 arrange-

ments 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

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 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 bal-

ancing 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 librar-

ians from unwarranted liability for copyright infringement;

this amendment is discussed below.

The key phrases in the Committee’s amendment of sec-

tion 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 devel-

opment and implementation of more-or-less specific guide-

lines establishing criteria to govern various situations.

The National Commission on New Technological Uses

of Copyrighted Works (CONTU) offered to provide good

offices in helping to develop these guidelines

a subscription to or purchase of” a work. To be implemented

effectively in practice, these provisions will require the devel-

opment and implementation of more-or-less specific guide-

lines establishing criteria to govern various situations.

The National Commission on New Technological Uses

of Copyrighted Works (CONTU) offered to provide 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).

f. House Report: Discussion of Works Excluded

note: The House Report’s discussion of section 108(h) is longer

than the corresponding paragraph in the Senate Report, and

reflects certain amendments in the subsection.

Works excluded

Subsection (h) provides that 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 other than “an audiovi-

sual work dealing with news.” The latter term is intended

as the equivalent in meaning of the phrase “audiovisual

news program” in section 108(f)(3). The exclusions under

subsection (h) do not apply to archival reproduction under

subsection (b), to replacement of damaged or lost copies

or phonorecords under subsection (c), or to “pictorial or

graphic works published as illustrations, diagrams, or similar

adjuncts to works of which copies are reproduced or distrib-

uted in accordance with subsections (d) and (e).”

Although subsection (h) generally removes musical,

graphic, and audiovisual works from the specific exemptions

of section 108, it is important to recognize that the doctrine

of fair use under section 107 remains fully applicable to the

photocopying or other reproduction of such works

adjuncts to works of which copies are reproduced or distrib-

uted in accordance with subsections (d) and (e).”

Although subsection (h) generally removes musical,

graphic, and audiovisual works from the specific exemptions

of section 108, it is important to recognize that the doctrine

of fair use under section 107 remains fully applicable to the

photocopying or other reproduction of such works. In the

case of music, for example, it would be fair use for a scholar

doing musicological research to have a library supply a

copy of a portion of a score or to reproduce portions of a

phonorecord of a work. Nothing in section 108 impairs the

applicability of the fair use doctrine to a wide variety of situ-

ations involving photocopying or other reproduction by a

Reproduction of Copyrighted Works · 18

library of copyrighted material in its collections, where the

user requests the reproduction for legitimate scholarly or

research purposes.

4. Excerpts from Conference Report

note: The following excerpt is reprinted from the Report of

the Conference Committee on the new copyright law (H.R. Rep.

No. 94-1733, pages 70–74).

a. Conference Report: Introductory Discussion

of Section 108

Reproduction by Libraries and Archives

Senate bill

Section 108 of the Senate bill dealt with a variety of situa-

tions involving photocopying and other forms of reproduc-

tion by libraries and archives. It specified the conditions

under which single copies of copyrighted material can be

noncommercially reproduced and distributed, but made

clear that the privileges of a library or archives under the

section do not apply where the reproduction or distribution

is of multiple copies or is “systematic.” Under subsection (f),

the section was not to be construed as limiting the reproduc-

tion and distribution, by a library or archive meeting the

basic criteria of the section, of a limited number of copies

and excerpts of an audiovisual news program

privileges of a library or archives under the

section do not apply where the reproduction or distribution

is of multiple copies or is “systematic.” Under subsection (f),

the section was not to be construed as limiting the reproduc-

tion and distribution, by a library or archive meeting the

basic criteria of the section, of a limited number of copies

and excerpts of an audiovisual news program.

House bill

The House bill amended section 108 to make clear that, in

cases involving interlibrary arrangements for the exchange of

photocopies, the activity would not be considered “system-

atic” as long as the library or archives receiving the reproduc-

tions for distribution does not do so in such aggregate quan-

tities as to substitute for a subscription to or purchase of the

work. A new subsection (i) directed the Register of Copy-

rights, by the end of 1982 and at five-year intervals thereafter,

to report on the practical success of the section in balancing

the various interests, and to make recommendations for any

needed changes. With respect to audiovisual news programs,

the House bill limited the scope of the distribution privilege

confirmed by section 108(f)(3) to cases where the distribu-

tion takes the form of a loan.

b. Conference Report: Conference Committee Discussion

of CONTU Guidelines on Photocopying and Interlibrary

Arrangements

Conference substitute

The conference substitute adopts the provisions of section

108 as amended by the House bill. In doing so, the conferees

have noted two letters dated September 22, 1976, sent respec-

tively to John L. McClellan, Chairman of the Senate Judiciary

Subcommittee on Patents, Trademarks, and Copyrights,

and to Robert W. Kastenmeier, Chairman of the House

Judiciary Subcommittee on Courts, Civil Liberties, and the

Administration of Justice. The letters, from the Chairman

of the National Commission on New Technological Uses of

Copyrighted Works (CONTU), Stanley H

976, sent respec-

tively to John L. McClellan, Chairman of the Senate Judiciary

Subcommittee on Patents, Trademarks, and Copyrights,

and to Robert W. Kastenmeier, Chairman of the House

Judiciary Subcommittee on Courts, Civil Liberties, and the

Administration of Justice. The letters, from the Chairman

of the National Commission on New Technological Uses of

Copyrighted Works (CONTU), Stanley H. Fuld, transmit-

ted a document consisting of “guidelines interpreting the

provision in subsection 108(g)(2) of S. 22, as approved by the

House Committee on the Judiciary.” Chairman Fuld’s letters

explain that, following lengthy consultations with the parties

concerned, the Commission adopted these guidelines as fair

and workable and with the hope that the conferees on S. 22

may find that they merit inclusion in the conference report.

The letters add that, although time did not permit secur-

ing signatures of the representatives of the principal library

organizations or of the organizations representing publish-

ers and authors on these guidelines, the Commission had

received oral assurances from these representatives that the

guidelines are acceptable to their organizations,

The conference committee understands that the guide-

lines are not intended as, and cannot be considered, explicit

rules or directions governing any and all cases, now or in the

future. It is recognized that their purpose is to provide guid-

ance in the most commonly-encountered interlibrary pho-

tocopying situations, that they are not intended to be limit-

ing or determinative in themselves or with respect to other

situations, and that they deal with an evolving situation that

will undoubtedly require their continuous reevaluation and

adjustment. With these qualifications, the conference com-

mittee agrees that the guidelines are a reasonable interpreta-

tion of the proviso of section 108(g)(2) in the most common

situations to which they apply today.

determinative in themselves or with respect to other

situations, and that they deal with an evolving situation that

will undoubtedly require their continuous reevaluation and

adjustment. With these qualifications, the conference com-

mittee agrees that the guidelines are a reasonable interpreta-

tion of the proviso of section 108(g)(2) in the most common

situations to which they apply today.

c. Conference Report: Reprint of CONTU Guidelines on

Photocopying and Interlibrary Arrangements

The text of the guidelines follows:

Photocopying—Interlibrary Arrangements Introduction

Subsection 108(g)(2) of the bill deals, among other things,

with limits on interlibrary arrangements for photocopying.

Reproduction of Copyrighted Works · 19

It prohibits systematic photocopying of copyrighted materi-

als but permits interlibrary arrangements “that do not have,

as their purpose or effect, that the library or archives receiv-

ing such copies or phonorecords for distribution does so in

such aggregate quantities as to substitute for a subscription

to or purchase of such work.”

The National Commission on New Technological Uses

of Copyrighted Works offered its good offices to the House

and Senate subcommittees in bringing the interested par-

ties together to see if agreement could be reached on what

a realistic definition would be of “such aggregate quantities.”

The Commission consulted with the parties and suggested

the interpretation which follows, on which there has been

substantial agreement by the principal library, publisher, and

author organizations. The Commission considers the guide-

lines which follow to be a workable and fair interpretation

of the intent of the proviso portion of subsection 108(g)(2)

uld be of “such aggregate quantities.”

The Commission consulted with the parties and suggested

the interpretation which follows, on which there has been

substantial agreement by the principal library, publisher, and

author organizations. The Commission considers the guide-

lines which follow to be a workable and fair interpretation

of the intent of the proviso portion of subsection 108(g)(2).

These guidelines are intended to provide guidance in the

application of section 108 to the most frequently encoun-

tered interlibrary case: a library’s obtaining from another

library, in lieu of interlibrary loan, copies of articles from

relatively recent issues of periodicals—those published

within five years prior to the date of the request. The guide-

lines do not specify what aggregate quantity of copies of an

article or articles published in a periodical, the issue date

of which is more than five years prior to the date when the

request for the copy thereof is made, constitutes a substitute

for a subscription to such periodical. The meaning of the

proviso to subsection 108(g)(2) in such case is left to future

interpretation.

The point has been made that the present practice on

interlibrary loans and use of photocopies in lieu of loans

may be supplemented or even largely replaced by a system in

which one or more agencies or institutions, public or private,

exist for the specific purpose of providing a central source

for photocopies. Of course, these guidelines would not apply

to such a situation

interpretation.

The point has been made that the present practice on

interlibrary loans and use of photocopies in lieu of loans

may be supplemented or even largely replaced by a system in

which one or more agencies or institutions, public or private,

exist for the specific purpose of providing a central source

for photocopies. Of course, these guidelines would not apply

to such a situation.

Guidelines for the Proviso of Subsection 108(g)(2)

1 As used in the proviso of subsection 108(g)(2), the words

“… such aggregate quantities as to substitute for a sub-

scription to or purchase of such work” shall mean:

a with respect to any given periodical (as opposed to any

given issue of a periodical), filled requests of a library

or archives (a “requesting entity”) within any calendar

year for a total of six or more copies of an article or

articles published in such periodical within five years

prior to the date of the request. These guidelines spe-

cifically shall not apply, directly or indirectly, to any

request of a requesting entity for a copy or copies of an

article or articles published in any issue of a periodi-

cal, the publication date of which is more than five

years prior to the date when the request is made. These

guidelines do not define the meaning, with respect to

such a request, of “… such aggregate quantities as to

substitute for a subscription to [such periodical]”.

b With respect to any other material described in sub-

section 108(d), (including fiction and poetry), filled

requests of a requesting entity within any calendar year

for a total of six or more copies or phonorecords of

or from any given work (including a collective work)

during the entire period when such material shall be

protected by copyright

ute for a subscription to [such periodical]”.

b With respect to any other material described in sub-

section 108(d), (including fiction and poetry), filled

requests of a requesting entity within any calendar year

for a total of six or more copies or phonorecords of

or from any given work (including a collective work)

during the entire period when such material shall be

protected by copyright.

2 In the event that a requesting entity—

a shall have in force or shall have entered an order for a

subscription to a periodical, or

b has within its collection, or shall have entered an order

for, a copy or phonorecord of any other copyrighted

work, material from either category of which it desires

to obtain by copy from another library or archives (the

“supplying entity”), because the material to be copied

is not reasonably available for use by the requesting

entity itself, then the fulfillment of such request shall

be treated as though the requesting entity made such

copy from its own collection. A library or archives may

request a copy or phonorecord from a supplying entity

only under those circumstances where the requesting

entity would have been able, under the other provi-

sions of section 108, to supply such copy from materi-

als in its own collection.

3 No request for a copy or phonorecord of any material

to which these guidelines apply may be fulfilled by the

supplying entity unless such request is accompanied by

a representation by the requesting entity that the request

was made in conformity with these guidelines.

4 The requesting entity shall maintain records of all

requests made by it for copies or phonorecords of any

materials to which these guidelines apply and shall

maintain records of the fulfillment of such requests,

which records shall be retained until the end of the third

complete calendar year after the end of the calendar year

in which the respective request shall have been made

idelines.

4 The requesting entity shall maintain records of all

requests made by it for copies or phonorecords of any

materials to which these guidelines apply and shall

maintain records of the fulfillment of such requests,

which records shall be retained until the end of the third

complete calendar year after the end of the calendar year

in which the respective request shall have been made.

5 As part of the review provided for in subsection 108(i),

these guidelines shall be reviewed not later than five years

from the effective date of this bill.

Reproduction of Copyrighted Works · 20

d. Conference Report: Discussion of “Audiovisual

News Program”

The conference committee is aware that an issue has arisen

as to the meaning of the phrase “audiovisual news program”

in section 108(f)(3). The conferees believe that, under the

provision as adopted in the conference substitute, a library

or archives qualifying under section 108(a) would be free,

without regard to the archival activities of the Library of

Congress or any other organization, to reproduce, on video-

tape or any other medium of fixation or reproduction, local,

regional, or network newscasts, interviews concerning cur-

rent news events, and on-the-spot coverage of news events,

and to distribute a limited number of reproductions of such

a program on a loan basis.

e. Conference Report: Discussion of Libraries

and Archives in Profit-Making Institutions

Another point of interpretation involves the meaning of

“indirect commercial advantage,” as used in section 108(a)(1),

in the case of libraries or archival collections within indus-

trial, profit-making, or proprietary institutions. As long as

the library or archives meets the criteria in section 108(a) and

the other requirements of the section, including the prohibi-

tions against multiple and systematic copying in subsection

olves the meaning of

“indirect commercial advantage,” as used in section 108(a)(1),

in the case of libraries or archival collections within indus-

trial, profit-making, or proprietary institutions. As long as

the library or archives meets the criteria in section 108(a) and

the other requirements of the section, including the prohibi-

tions against multiple and systematic copying in subsection

(g), the conferees consider that the isolated, spontaneous

making of single photocopies by a library or archives in a

for-profit organization without any commercial motivation,

or participation by such a library or archives in interlibrary

arrangements, would come within the scope of section 108.

5. Copyright Office Regulations Under Section 108

note: The following is the text of regulations adopted by the

the new copyright law (37 Code of Federal Regulations §201.14).

§ 201.14 · Warnings of copyright for use by certain

libraries and archives.

(a) Definitions.

(1) A Display Warning of Copyright is a notice under

paragraphs (d)(2) and (e)(2) of section 108 of title

17 of the United States Code as amended by Pub. L.

94-553. As required by those sections the “Display

Warning of Copyright” is to be displayed at the place

where orders for copies or phonorecords are accepted

by certain libraries and archives.

(2) An Order Warning of Copyright is a notice under

paragraphs (d)(2) and (e)(2) of section 108 of title

17 of the United States Code as amended by Pub.

L. 94-553. As required by those sections the “Order

Warning of Copyright” is to be included on printed

forms supplied by certain libraries and archives

and used by their patrons for ordering copies or

phonorecords.

n libraries and archives.

(2) An Order Warning of Copyright is a notice under

paragraphs (d)(2) and (e)(2) of section 108 of title

17 of the United States Code as amended by Pub.

L. 94-553. As required by those sections the “Order

Warning of Copyright” is to be included on printed

forms supplied by certain libraries and archives

and used by their patrons for ordering copies or

phonorecords.

(b) Contents. A Display Warning of Copyright and an Order

Warning of Copyright shall consist of a verbatim repro-

duction of the following notice, printed in such size and

form and displayed in such manner as to comply with

paragraph (c) of this section:

Notice: Warning Concerning Copyright Restrictions

The copyright law of the United States (title 17, United States

Code) governs the making of photocopies or other reproduc-

tions of copyrighted material.

Under certain conditions specified in the law, libraries and

archives are authorized to furnish a photocopy or other repro-

duction. One of these specified conditions is that the photo-

copy or reproduction is not to be “used for any purpose other

than private study, scholarship, or research.” If a user makes

a request for, or later uses, a photocopy or reproduction for

purposes in excess of “fair use,” that user may be liable for

This institution reserves the right to refuse to accept a copying

order if, in its judgment, fulfillment of the order would involve

violation of copyright law.

d for any purpose other

than private study, scholarship, or research.” If a user makes

a request for, or later uses, a photocopy or reproduction for

purposes in excess of “fair use,” that user may be liable for

This institution reserves the right to refuse to accept a copying

order if, in its judgment, fulfillment of the order would involve

violation of copyright law.

(1) A Display Warning of Copyright shall be printed on

heavy paper or other durable material in type at least

18 points in size, and shall be displayed prominently,

in such manner and location as to be clearly vis-

ible, legible, and comprehensible to a casual observer

within the immediate vicinity of the place where

orders are accepted.

(2) An Order Warning of Copyright shall be printed

within a box located prominently on the order form

itself, either on the front side of the form or imme-

diately adjacent to the space calling for the name or

signature of the person using the form. The notice

shall be printed in type size no smaller than that

used predominantly throughout the form, and in no

case shall the type size be smaller than 8 points. The

notice shall be printed in such manner as to be clearly

legible, comprehensible, and readily apparent to a

casual reader of the form.

Reproduction of Copyrighted Works · 21

E. Liability for Infringement

1. Text of Section 504

note: The following is a reprint of the entire text of section

504 of title 17, United States Code, as amended in 1982, 1988, 1990,

1997, 1998, 1999, 2002, 2004, and 2005. The special provisions

affecting librarians and educators are in subsection (c)(2).

§ 504 · Remedies for infringement: Damages and profits.

(a) In General.—Except as otherwise provided by this

title, an infringer of copyright is liable for either—

(1) the copyright owner’s actual damages and any addi-

tional profits of the infringer, as provided by subsec-

tion (b); or

(2) statutory damages, as provided by subsection (c).

ng librarians and educators are in subsection (c)(2).

§ 504 · Remedies for infringement: Damages and profits.

(a) In General.—Except as otherwise provided by this

title, an infringer of copyright is liable for either—

(1) the copyright owner’s actual damages and any addi-

tional profits of the infringer, as provided by subsec-

tion (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits.—The copyright

owner is entitled to recover the actual damages suf-

fered by him or her as a result of the infringement, and

any profits of the infringer that are attributable to the

infringement and are not taken into account in comput-

ing the actual damages. In establishing the infringer's

profits, the copyright owner is required to present proof

only of the infringer's gross revenue, and the infringer is

required to prove his or her deductible expenses and the

elements of profit attributable to factors other than the

copyrighted work.

(1) Except as provided by clause (2) of this subsection,

the copyright owner may elect, at any time before

final judgment is rendered, to recover, instead of

actual damages and profits, an award of statutory

damages for all infringements involved in the action,

with respect to any one work, for which any one

infringer is liable individually, or for which any two

or more infringers are liable jointly and severally, in

a sum of not less than $750 or more than $30,000

as the court considers just. For the purposes of this

subsection, all the parts of a compilation or deriva-

tive work constitute one work.

s for all infringements involved in the action,

with respect to any one work, for which any one

infringer is liable individually, or for which any two

or more infringers are liable jointly and severally, in

a sum of not less than $750 or more than $30,000

as the court considers just. For the purposes of this

subsection, all the parts of a compilation or deriva-

tive work constitute one work.

(2) In a case where the copyright owner sustains the

burden of proving, and the court finds, that infringe-

ment was committed willfully, the court in its discre-

tion may increase the award of statutory damages to

a sum of not more than $150,000. In a case where the

infringer sustains the burden of proving, and

the court finds, that such infringer was not aware

and had no reason to believe that his or her acts

constituted an infringement of copyright, the court

in its discretion may reduce the award of statutory

damages to a sum of not less than $200. The court

shall remit statutory damages in any case where an

infringer believed and had reasonable grounds for

believing that his or her use of the copyrighted work

was a fair use under section 107, if the infringer was:

(i) an employee or agent of a nonprofit educational

institution, library, or archives acting within the

scope of his or her employment who, or such institu-

tion, library, or archives itself, which infringed by

reproducing the work in copies or phonorecords; or

(ii) a public broadcasting entity which or a person

who, as a regular part of the nonprofit activities of a

public broadcasting entity (as defined in subsection

nonprofit educational

institution, library, or archives acting within the

scope of his or her employment who, or such institu-

tion, library, or archives itself, which infringed by

reproducing the work in copies or phonorecords; or

(ii) a public broadcasting entity which or a person

who, as a regular part of the nonprofit activities of a

public broadcasting entity (as defined in subsection

(g) of section 118) infringed by performing a pub-

lished nondramatic literary work or by reproducing a

transmission program embodying a performance of

such a work.

(3)(a) In a case of infringement, it shall be a rebut-

table presumption that the infringement was

committed willfully for purposes of determin-

ing relief if the violator, or a person acting in

concert with the violator, knowingly provided

or knowingly caused to be provided materi-

ally false contact information to a domain

name registrar, domain name registry, or other

domain name registration authority in reg-

istering, maintaining, or renewing a domain

name used in connection with the infringe-

ment.

(b) Nothing in this paragraph limits what may be

considered willful infringement under this

subsection.

“domain name” has the meaning given that

term in section 45 of the Act entitled “An Act

to provide for the registration and protection

of trademarks used in commerce, to carry out

the provisions of certain international conven-

tions, and for other purposes” approved July 5,

1946 (commonly referred to as the “Trademark

Act of 1946”; 15 U.S.C. 1127).

For purposes of this paragraph, the term

“domain name” has the meaning given that

term in section 45 of the Act entitled “An Act

to provide for the registration and protection

of trademarks used in commerce, to carry out

the provisions of certain international conven-

tions, and for other purposes” approved July 5,

1946 (commonly referred to as the “Trademark

Act of 1946”; 15 U.S.C. 1127).

(d) Additional Damages in Certain Cases.—In any

case in which the court finds that a defendant

Reproduction of Copyrighted Works · 22

proprietor of an establishment who claims as a defense

that its activities were exempt under section 110(5) did

not have reasonable grounds to believe that its use of a

copyrighted work was exempt under such section, the

plaintiff shall be entitled to, in addition to any award of

damages under this section, an additional award of two

times the amount of the license fee that the proprietor

of the establishment concerned should have paid the

plaintiff for such use during the preceding period of up

to 3 years.

2. Excerpts from House Report on Section 504

note: The following excerpts are reprinted from the House

Report on the new copyright law (H.R. Rep. No. 94-1476, pages

161–163). Material not of immediate interest to librarians and

educators has been omitted. Much of the corresponding dis-

cussion in the Senate Report (S. Rep. No. 94-473, pages 143–145)

is substantially the same; the House Report’s discussion of

statutory damages applicable to librarians and educators

is new.

In general

A cornerstone of the remedies sections and of the bill as a

whole is section 504, the provision dealing with recovery

of actual damages, profits, and statutory damages

esponding dis-

cussion in the Senate Report (S. Rep. No. 94-473, pages 143–145)

is substantially the same; the House Report’s discussion of

statutory damages applicable to librarians and educators

is new.

In general

A cornerstone of the remedies sections and of the bill as a

whole is section 504, the provision dealing with recovery

of actual damages, profits, and statutory damages. The two

basic aims of this section are reciprocal and correlative:

1 to give the courts specific unambiguous directions con-

cerning monetary awards, thus avoiding the confusion

and uncertainty that have marked the present law on the

subject, and, at the same time,

2 to provide the courts with reasonable latitude to adjust

recovery to the circumstances of the case, thus avoiding

some of the artificial or overly technical awards resulting

from the language of the existing statute.

Subsection (a) lays the groundwork for the more detailed

provisions of the section by establishing the liability of a

damages and any additional profits of the infringer,” or

statutory damages. Recovery of actual damages and profits

under section 504(b) or of statutory damages under section

504(c) is alternative and for the copyright owner to elect; as

under the present law, the plaintiff in an infringement suit

is not obliged to submit proof of damages and profits and

may choose to rely on the provision for minimum statutory

damages. However, there is nothing in section 504 to prevent

a court from taking account of evidence concerning actual

damages and profits in making an award of statutory dam-

ages within the range set out in subsection (c)

the present law, the plaintiff in an infringement suit

is not obliged to submit proof of damages and profits and

may choose to rely on the provision for minimum statutory

damages. However, there is nothing in section 504 to prevent

a court from taking account of evidence concerning actual

damages and profits in making an award of statutory dam-

ages within the range set out in subsection (c).

Actual damages and profits

In allowing the plaintiff to recover “the actual damages suf-

fered by him or her as a result of the infringement,” plus

any of the infringer’s profits “that are attributable to the

infringement and are not taken into account in computing

the actual damages,” section 504(b) recognizes the different

purposes served by awards of damages and profits. Damages

are awarded to compensate the copyright owner for losses

from the infringement, and profits are awarded to prevent

the infringer from unfairly benefiting from a wrongful act.4

Statutory damages

Subsection (c) of section 504 makes clear that the plaintiff’s

election to recover statutory damages may take place at any

time during the trial before the court has rendered its final

judgment. The remainder of clause (1) of the subsection rep-

resents a statement of the general rates applicable to awards

of statutory damages.

Clause (2) of section 504(c) provides for exceptional cases

in which the maximum award of statutory damages could be

raised from $10,000 to $50,000, and in which the minimum

recovery could be reduced from $250 to $100. The basic

principle underlying this provision is that the courts should

be given discretion to increase statutory damages in cases of

willful infringement and to lower the minimum where the

infringer is innocent

for exceptional cases

in which the maximum award of statutory damages could be

raised from $10,000 to $50,000, and in which the minimum

recovery could be reduced from $250 to $100. The basic

principle underlying this provision is that the courts should

be given discretion to increase statutory damages in cases of

willful infringement and to lower the minimum where the

infringer is innocent. The language of the clause makes clear

that in these situations the burden of proving willfulness

rests on the copyright owner and that of proving innocence

rests on the infringer, and that the court must make a find-

ing of either willfulness or innocence in order to award the

exceptional amounts.

The “innocent infringer” provision of section 504(c)(2)

has been the subject of extensive discussion. The exception,

which would allow reduction of minimum statutory dam-

ages to $100 where the infringer “was not aware and had no

reason to believe that his or her acts constituted an infringe-

ment of copyright,” is sufficient to protect against unwar-

ranted liability in cases of occasional or isolated innocent

infringement, and it offers adequate insulation to users, such

as broadcasters and newspaper publishers, who are particu-

larly vulnerable to this type of infringement suit. On the

other hand, by establishing a realistic floor for liability, the

provision preserves its intended deterrent effect; and it would

not allow an infringer to escape simply because the plaintiff

failed to disprove the defendant’s claim of innocence.

quate insulation to users, such

as broadcasters and newspaper publishers, who are particu-

larly vulnerable to this type of infringement suit. On the

other hand, by establishing a realistic floor for liability, the

provision preserves its intended deterrent effect; and it would

not allow an infringer to escape simply because the plaintiff

failed to disprove the defendant’s claim of innocence.

Reproduction of Copyrighted Works · 23

In addition to the general “innocent infringer” provision

clause (2) deals with the special situation of teachers, librar-

ians, archivists, and public broadcasters, and the nonprofit

institutions of which they are a part. Section 504(c)(2)

provides that, where such a person or institution infringes

copyrighted material in the honest belief that what they

were doing constituted fair use, the court is precluded from

awarding any statutory damages. It is intended that, in cases

involving this provision, the burden of proof with respect to

the defendant’s good faith should rest on the plaintiff.

3. Excerpts from Conference Report on Section 504

note: The following excerpts are reprinted from the Report of

the Conference Committee on the new copyright law (H.R. Rep.

No. 94-1733, pages 79–80).

Remedies for Copyright Infringement

Senate bill

Chapter 5 of the Senate bill dealt with civil and criminal

infringement of copyright and the remedies for both. Sub-

section (c) of section 504 allowed statutory damages within

a stated dollar range, and clause (2) of that subsection

provided for situations in which the maximum could be

exceeded and the minimum lowered; the court was given dis-

cretion to reduce or remit statutory damages entirely where

a teacher, librarian, or archivist believed that the infringing

activity constituted fair use.5

House bill

Section 504(c)(2) of the House bill required the court to

remit statutory damages entirely in cases where a teacher,

librarian, archivist, or public broadcaster, or the institution

to which they belong, infringed in the hon

dis-

cretion to reduce or remit statutory damages entirely where

a teacher, librarian, or archivist believed that the infringing

activity constituted fair use.5

House bill

Section 504(c)(2) of the House bill required the court to

remit statutory damages entirely in cases where a teacher,

librarian, archivist, or public broadcaster, or the institution

to which they belong, infringed in the honest belief that what

they were doing constituted fair use.6

Conference substitute

The conference substitute adopts the House amendments

with respect to statutory damages in section 504(c)(2).7

F. Guidelines for Off-Air Recording of Broadcast

Programming for Educational Purposes

note: The following excerpts are reprinted from the House

Report on piracy and counterfeiting amendments (H.R. 97-495,

pages 8–9).

In March 1979, Congressman Robert Kastenmeier, Chairman

of the House Subcommittee on Courts, Civil Liberties and

Administration of Justice, appointed a Negotiating Commit-

tee consisting of representatives of educational organizations,

following guidelines reflect the Negotiating Committee’s

consensus as to the application of “fair use” to the recording,

retention, and use of television broadcast programs for edu-

cational purposes. They specify periods of retention and use

of such off-air recordings in classrooms and similar places

devoted to instruction and for homebound instruction. The

purpose of establishing these guidelines is to provide stan-

dards for both owners and users of copyrighted television

programs.

1 The guidelines were developed to apply only to off-air

recording by non-profit educational institutions.

2 A broadcast program may be recorded off-air simultane-

ously with broadcast transmission (including simultane-

ous cable transmission) and retained by a non-profit

educational institution for a period not to exceed the

first forty-five (45) consecutive calendar days after date of

recording

e guidelines were developed to apply only to off-air

recording by non-profit educational institutions.

2 A broadcast program may be recorded off-air simultane-

ously with broadcast transmission (including simultane-

ous cable transmission) and retained by a non-profit

educational institution for a period not to exceed the

first forty-five (45) consecutive calendar days after date of

recording. Upon conclusion of such retention period, all

off-air recordings must be erased or destroyed immedi-

ately. “Broadcast programs” are television programs trans-

mitted by television stations for reception by the general

public without charge.

3 Off-air recordings may be used once by individual

teachers in the course of relevant teaching activities, and

repeated once only when instructional reinforcement is

necessary, in classrooms and similar places devoted to

instruction within a single building, cluster, or campus,

as well as in the homes of students receiving formalized

home instruction, during the first ten (10) consecutive

school days in the forty-five (45) day calendar day reten-

tion period. “School days” are school session days—not

counting weekends, holidays, vacations, examination

periods, or other scheduled interruptions—within the

forty-five (45) calendar day retention period.

4 Off-air recordings may be made only at the request of,

and used by, individual teachers, and may not be regu-

larly recorded in anticipation of requests. No broadcast

program may be recorded off-air more than once at the

request of the same teacher, regardless of the number of

times the program may be broadcast.

5 A limited number of copies may be reproduced from each

off-air recording to meet the legitimate needs of teachers

under these guidelines. Each such additional copy shall be

subject to all provisions governing the original recording.

o broadcast

program may be recorded off-air more than once at the

request of the same teacher, regardless of the number of

times the program may be broadcast.

5 A limited number of copies may be reproduced from each

off-air recording to meet the legitimate needs of teachers

under these guidelines. Each such additional copy shall be

subject to all provisions governing the original recording.

Reproduction of Copyrighted Works · 24

U.S. Copyright Office · The Library of Congress · 101 Independence Avenue, SE · Washington, DC 20559 · www.copyright.gov

6 After the first ten (10) consecutive school days, off-air

recording may be used up to the end of the forty-five (45)

calendar day retention period only for teacher evaluation

purposes, i.e., to determine whether or not to include

the broadcast program in the teaching curriculum, and

may not be used in the recording institution for student

exhibition or any other non-evaluation purpose without

authorization.

7 Off-air recordings need not be used in their entirety, but

the recorded programs may not be altered from their

original content. Off-air recordings may not be physically

or electronically combined or merged to constitute teach-

ing anthologies or compilations.

8 All copies of off-air recordings must include the copyright

notice on the broadcast program as recorded.

9 Educational institutions are expected to establish appro-

priate control procedures to maintain the integrity of

these guidelines.

For Further Information

By Internet

Circulars, announcements, regulations, other related mate-

rials, and certain copyright application forms are available

from the Copyright Office website at www.copyright.gov.

To send an email communication, click on Contact Us at

the bottom of the homepage.

By Telephone

For general information about copyright, call the Copyright

Public Information Office at (202) 707-3000 or 1-877-476-

0778 (toll free)

nnouncements, regulations, other related mate-

rials, and certain copyright application forms are available

from the Copyright Office website at www.copyright.gov.

To send an email communication, click on Contact Us at

the bottom of the homepage.

By Telephone

For general information about copyright, call the Copyright

Public Information Office at (202) 707-3000 or 1-877-476-

0778 (toll free). Staff members are on duty from 8:30 am to

5:00 pm, Monday through Friday, eastern time, except federal

holidays. Recorded information is available 24 hours a day.

Or, if you know which application forms and circulars you

want, request them from the Forms and Publications Hotline

at (202) 707-9100 24 hours a day. Leave a recorded message.

By Regular Mail

Write to:

Library of Congress

101 Independence Avenue SE

Washington, DC 20559

Endnotes

Corrected from Congressional Record.

As reprinted in the House Report, subsection A.2 of the Music

Guidelines had consisted of two separate paragraphs, one dealing

with multiple copies and a second dealing with single copies. In

his introductory remarks during the House debates on S.22, the

Chairman of the House Judiciary Subcommittee, Mr. Kastenmeier,

announced that “the report, as printed, does not reflect a subse-

quent change in the joint guidelines which was described in a subse-

quent letter to me from a representative of [the signatory organiza-

tions],” and provided the revised text of subsection A.2. (122 Cong.

Rec. H 10875, Sept. 22, 1976). The text reprinted here is the revised

text.

3–7 Section 504 was amended by the Act of October 31, 1988, Pub. L.

100-568, 102 Stat. 2853, 2860; by the Act of 1999, Pub. L. 106-160, 113

Stat. 1774; and by the Act of December 23, 2004, Pub. L. 108-482, 118

Stat. 3912, 3916.

circular 21

rev: 08/2014

Printed on recycled paper

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.