The complexities of the new copyright law and the data compiled in the several studies (discussed in this chapter under Interrelated Economics of Publishing . . .) highlight the importance of ascertaining the copyright status of works and the need for easily obtaining permission to copy. Because the 1976 Copyright Act became effective on January 1, 1978, it is too early to know all the various arrangements that may come into existence for obtaining consent to make or to receive copies of copyrighted works not permitted under the new law-either as fair use under section 107 or pursuant to the various exemptions in section 108. However, some of the principal methods and mechanisms for obtaining authorization and making payments are known and may be discussed briefly.

Publisher May Notify Public That Certain Works May Be Photocopied for Individual Use

The absence of copyright notice on any work subject to copyright normally may be relied on by the public as evidence, in the absence of knowledge to the contrary, that a work may be copied.230 There are various ways to notify the public that a proprietor grants consent for photocopying beyond that permitted under sections 107 and 108 of the 1976 Act. One method is to print in each issue a specific license stating what copying may be done without individual authorization. Some periodical publishers are likely to adopt liberal copying policies on photocopying and will publish such policies in each issue of the periodicals. A variety of such policies are conceivable: (1) general permission to copy except for resale; (2) permission to copy (single or multiple copies) by nonprofit organizations; and (3) permission to copy from older issues before a certain date.

The 1977 Fry/White/Johnson study-a report prepared for the Commission in 1977 by Bernard Fry, Herbert S. ‘White, and Elizabeth Johnson of the Indiana University Graduate School and entitled Survey of Publisher Practices and Present Attitudes on Authorized Journal Article Copying and Licensing - throwssome light on the extent to which periodical publishers may wish to adopt such policies.231 Approximately 20 percent of the 974 responding journals were willing to permit copying by nonprofit organizations beyond that authorized in the law (and to permit copying to a lesser extent by for-profit organizations). The journals surveyed were more liberal in permitting copying from older issues than from more recent issues. Copyright Office records indicate that of the 1,485 journals not responding in this study, approximately 600, or 40 percent, did not register claims to copyright under the 1909 Act, which may indicate that a considerable portion of the journals not registering in the past may be willing to permit copying beyond that which is permissible under sections 107 and 108 of the 1976 Act.

A considerable number of older issues fall into the public domain when copyright is not renewed at the expiration of the first twenty-eight-year period of protection under the 1909 {Page 61} Act.232 Unfortunately, there exists no simple and inexpensive method to determine whether these older issues are still under copyright. The Copyright Office has published annually a Catalog of Copyright Entries for periodicals that indicates what serial titles are registered for copy-right under the 1909 Act, including renewal registrations, and will continue to publish data on renewal registrations. Obtaining access to and using these catalogs, however, is a rather cumbersome way of checking the copyright status of older periodical issues. At least three methods may be conceived to simplify the process:

1. A statement published in current issues of periodicals that issues more than twenty-eight years old regularly are (or are not) under copyright.

2. A statement in the catalog of journals participating in the Copyright Clearance Center that older issues are (or are not) under copyright or, alternatively, an indication that copying fees will not be requested for older issues.

3. A statement on the copyright status of individual journal titles in the on-line bibliographic data on periodicals available through library networks. It might well be possible for those responsible for the CONSER project to add copyright status to this computerized data base at a one-time cost that would be minimal when spread over libraries throughout the country.233

Clearance Mechanism

The Copyright Clearance Center, Inc. (CCC), is a nonprofit New York corporation created under the sponsorship of publisher and author organizations. After December 31, 1977, persons or organizations wishing to copy material entered into the CCC’s system (initially predominantly scientific, technical, and medical journals), for which consent must be obtained from copyright proprietors, may do so by paying the center the copying fee per article or periodical page printed in the publication or for pre-1978 issues listed in the CCC catalog.234

Publishers have the option of designating CCC as their agent to authorize the making of photocopies. Publishers who elect this option are also free to enter into agreements directly with individuals or organizations to authorize the making of photocopies. Accordingly, CCC provides but one mechanism of securing authorization to photocopy copyrighted works.

Suppliers of Authorized Photocopies

The great majority of photocopies of material that libraries do not possess and thus must secure from other sources will continue to be supplied through traditional interlibrary loan channels, pursuant to the proviso in section 108(g) (2) of the 1976 Act as further defined in the CONTU guidelines. However, there will be a small but significant portion of requests for photocopies of materials that will require securing authorized copies from institutions prepared to furnish photocopies on demand.235 Some of the principal suppliers will be described briefly.

Institute for Scientific Information

The Institute for Scientific Information (ISI) in Philadelphia has been furnishing various bibliographic information services and providing tearsheets or authorized photocopies of journal articles to its clients for some twenty years.236 This tearsheet/ photocopy service is called Original Article Tear Sheets (OATS).

{Page 62}

Copies of articles in the most recent five years from more than 5,000 scientific, technical, and social science journals are available through OATS. More than 100,000 tearsheets or photocopies of articles were supplied by ISI in 1977, and volume has been growing at a rate of 10 percent a year.

During 1978, ISI will add about 800 arts and humanities journals and 3,000 published scientific proceedings to its collections. When feasible, OATS service will be extended to these new materials, thereby providing access to more than 180,000 additional items a year.

University Microfilms

University Microfilms International (UMI) in Ann Arbor, Michigan, a subsidiary of the Xerox Corporation, has contracts with publishers of several thousand serials authorizing it to sell microform copies of full-year volumes. The bulk of its business has been with libraries, which substitute the microfilm copies for the original paper issues to save storage space and binding costs. Through its contracts with publishers, UMI supplies on demand single or multiple copies of articles from about eight thousand serials (usually in full size). The periodical titles for which UMI has contracts for the most part do not duplicate those journals from which ISI supplies copies. A catalog is published by UMI so that libraries and other users may determine the periodical titles from which UMI is authorized to photocopy. Unlike ISI, however, UMI ordinarily can supply copies of articles from all issues of its serials, back to the start of publication.

Secondary Suppliers of Authorized Copyright-Fee-Paid Copies

There are or will be a number of so-called secondary suppliers of authorized copies of copyrighted materials. The National Technical Information Service (NTIS), for one example, is an agency of the Department of Commerce, established to make the results of research reports and other materials prepared in or for federal agencies more readily available to industry, business, and the general public. A large facility is operated by NTIS in Springfield, Virginia, a suburb of Washington, D.C., which stores these documents and supplies full-size or microform copies of hundreds of thousands of documents annually. Catalogs of documents are published by NTIS, which also enters them into a bibliographic data base, to which on-line access is available through some of the commercial data base services. In May 1978, NTIS instituted a means of ordering and paying for authorized copies of articles from fifty-three hundred non-government journals. The service estimates that by midsummer of 1978 it will have completed arrangements for supplying copies from eight thousand to nine thousand journals.

Another source of copies of articles are so-called information-on-demand or information-broker companies. These companies are organized to do research and supply information on a wide variety of topics to anyone interested in such services.237 There are also organizations which provide computerized access to approximately 360 bibliographic data bases.238 Subscribers to certain of these services may electronically order copies of documents from these bibliographic data bases of certain materials and from certain suppliers for delivery by mail. Convenience and the increased speed of document delivery make it likely that this kind of electronic ordering of documents will increase in volume. Table 7 summarizes and compares the authorized copy delivery services provided by ISI, UMI, and NTIS.

Table 7 – Three Authorized Copy Delivery Services

Characteristic	Institute for Scientific Information (OATS)¹	University Microfilms Intl. (UMI)²	National Technical Information Service (NTIS/JACS)
Number of titles	5,000 science, social science journals (for last 5 years); 1,000 humanities journals (1978 - ); 3,000 proceedings volumes (1978 - )	10,000 serials (all issues) 80,000 monographs	8,000 – 9,000 (est.) (time coverage varies)
Serials included
Science/technology	yes	yes	yes
Social sciences	yes	yes	yes
Humanities	yes (1978 - )	yes	a few
Monographs included	no	yes	no
Proceedings included	yes (1978 - )	no	no
Base price range/transaction	$3.50, plus air mail postage	$6.00 per article³ (first copy), $10.00 per issue; monograph: price varies; entire work only	$6.00 - $13.50 ($6.50 for majority)
Method of ordering	mail, telex, on-line, or telephone	mail or telephone	TWX, telex, on-line or telephone
Processing time	48 hours plus delivery	24 hours plus delivery	2 days plus delivery
Method of payment	prepaid stamps or cash	cash with order, credit card, or deposit accounts	deposit account only
¹Approximately 4,000 titles from ISI are also available through NTIS
²UMI titles generally are not available through NTIS.
3Journals listed in Current Index to Journals in Education are four dollars per article for the first copy.

Possible Nonprofit Periodical Copying Centers

In April 1977, the National Commission on Libraries and Information Science (NCLIS) published a task force report which proposed a national system for providing libraries with better access to copies of periodical materials not in their collections, based on three levels of supply:

Level 1-Local, state, and regional library {Page 63} systems responsible for meeting a substantial portion of routine needs for periodicals.

Level 2 - A comprehensive periodicals collection dedicated for lending and photocopy service to meet the majority of unfulfilled requests derived from Level 1. Initially, a single National Periodicals Center would be developed, but experience and demand may warrant more than one.

Level 3 - Existing national libraries and other unique collections to back up the first two levels. The report was approved by NCLIS in June 1977.239

Levels 1 and 3 already exist for the most part and only need to be tied into the total system. The local, state, and regional library systems would be expected to provide access in Level 1 to most heavily used periodicals, estimated to consist of some two thousand titles. Level 2 in this system would be a new National Periodicals Center, designed to supply copies of periodical articles from some fifty-five thousand periodicals in the middle range of use. In Level 3, access to very rarely used periodicals would be provided by the three national libraries and other special collections.

The NCLIS report makes the following statement with respect to the status of such a center under the 1976 Copyright Act:

The impact of the new copyright law, effective January 1, 1978, on the National Center is unclear at this time. Should the law be interpreted {Page 64} in light of the suggested CONTU guidelines, the responsibility rests on the individual borrowing libraries to account for their borrowing activities in accordance with the guidelines. This would seem to imply that a library would have to account for its combined borrowing activities from both the National Center and from other sources. The guidelines are expressed in terms of borrowing on a title by title basis. It would only be possible for the Center to do the accounting for libraries using the Center on a title by title basis.

King Research, Inc., in their photocopy study for the NCLIS, NSF, and CONTU, will investigate alternatives for royalties payment mechanisms. The results and recommendations of this study are expected to provide direction for the Center on the copyright issue.

The Library of Congress has indicated that it would be willing to operate such a center, if the library community desired that it do so, and if the initial funding for setting up the system is supplied by nonfederal sources. The Council on Library Resources, using funds of its own and other foundations, is making a further study of how such a center might be operated, either by the Library of Congress or by some other organization, existing or to be created. This further study is expected to be completed by the late summer of 1978.

This report is being published in advance of the completion of the additional study of a National Periodicals Center discussed above. Therefore, the Commission does not know what the study may recommend. Since it seems possible, however, that one or more such centers may come into existence within the next few years, the Commission has considered how they might operate and how they would fit in with other means of securing copies of copyrighted material not in hand.

The Commission agrees with the basic recommendation of the NCLIS report that improved methods of securing copies of periodical articles not in hand are needed, since the traditional interlibrary loan arrangements tend to be slow, inefficient, and costly. But the Commission does not take a position concerning the merits of nonprofit centers as opposed to other methods of achieving the objectives sought.

The experience of the British Library Lending Division (BLLD) in Boston Spa shows that a centralized and specialized source of supply can provide a very rapid service at a relatively low cost.240 In addition, the existence of such centers in the future might provide a means for the on-demand publishing of short documents as an alternative to, or a supplement to, traditional journal publishing. Publishers could supply documents to these centers, which would sell copies in full size or microform, much as NTIS now sells copies of government reports.

The status of such nonprofit centers with respect to the 1976 Copyright Act is unclear. Can such nonprofit copying centers be considered a “library or archives” entitled to the benefits of the various exemptions in section 108 of the 1976 Act? More specifically, section 108(d) permits libraries and archives to make copies for users of single articles and small portions of other works for the purpose of “private study, scholarship and research,” either from works in their own collections or “from that of another library or archives.” Section 108(g) (2) prohibits the “systematic reproduction or distribution of single copies” of materials covered by section 108(d), except that a proviso states:

[N]othing 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.

The “aggregate quantities” constituting a substitute for subscriptions or purchases are defined in the CONTU guidelines in this chapter.

Neither library norarchives is defined in the 1976 Act. However, the American Library Association Glossary of Library Terms contains the following two definitions of a library:

Library. 1. A collection of books and similar material organized and administered for reading, consultation, and study. 2. A room, a group of rooms, or a building, in which a collection of books and similar material is organized and administered for reading, consultation, and study.241

If such nonprofit copying centers are not {Page 65} libraries or archives within the meaning of the 1976 Act, other libraries would not have the benefits of section 108(d) and its extension in the section 108(g) (2) proviso and the CONTU guidelines in securing photocopies of articles from them. In addition, the introduction to the CONTU guidelines, included in the Conference Report on the bill that became the 1976 Act, contains the following explicit statement:

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.242

Taking these factors into consideration, the Commission believes that nonprofit centers established for the specific purpose of providing copies would be required to secure authorization from copyright owners to make and distribute full-scale copies of periodical articles from the original issues as well as to make microform copies. The two major alternatives seem to be: (1) to secure licenses to copy from copyright proprietors or (2) to pay royalties on individual transactions through a mechanism similar to that established by the Copyright Clearance Center, Inc.

In view of the uncertainties of whether one or more nonprofit periodical copying centers will be established and the lack of specific information as to how they might operate, the Commission does not believe that it is in a position to recommend any change in the 1976 Copyright Act directed at the operation of such centers. The Commission is of the opinion, however, that such arrangements are probably not entitled to the benefits of section 108 of the 1976 Act.

Periodical Centers in General

The Commission believes that arrangements that may supplement and, in part, take over copying services now provided through interlibrary loan systems could have great potential benefits, some examples of which are:

1. Providing comprehensive access to periodical literature.

2. Providing, in cooperation with publishers, more efficient distribution of materials after initial distribution in traditional periodical form.

3. Ensuring preservation in at least one copy of periodical literature.

4. Making possible, in cooperation with publishers, the utilization of new technologies to develop alternative publishing and distribution methods for material for which there is a limited demand.

5. Assisting local libraries to rationalize their collection development and maintenance plans.

Such arrangements may include nonprofit centers especially created to serve this function, existing institutions, and various private enterprise undertakings. Central information sources or switching services to direct those seeking materials to the most efficient source of supply will no doubt be an important element.

Careful study will be required to determine the most effective array of resources, public and private, to meet these needs and the best modes of their operation. The Commission believes that the appropriate congressional committees and the Register of Copyrights, in monitoring developments preparatory to the mandatory first five-year report on the operation of section 108 of the 1976 Act, should carefully follow the evolution of plans for such centers during the next few years.

Next section: Interrelated Economics of Publishing and Libraries and the Impact of Copying Fees

230 Section 405(b) of the 1976 Act offers considerable, although not absolute, protection to “an innocent infringer” who copies in reliance on the absence of a copyright notice. For the text of this section see Appendix J.

231 Fry/White/Johnson study, supra note 196.

232 In 1974, issues of 475 periodical titles out of approximately 4,900 titles eligible for renewal were, in fact, renewed. When renewals were filed it was usually for all issues of the title for the year. Of these 475 titles which renewed, 14 percent were in the fields of science and technology, and 9 percent in law and the social sciences. Historically, then, a relatively small minority of copyrighted periodical material is renewed.

233 See this chapter under Recommendations to Government Agencies.

234 As of June 30, 1978, CCC reports that there were 1,633 U.S. and foreign publications, mostly periodicals, participating in the system; that 591 Organizations were registered as users; and that the range of copying fees for articles published before 1978 was from zero to $12.25, with a median fee of somewhere between $2.00 and $2.50. The center has estimated that in the 1978 calendar year, 1,000,000 copying transactions will be authorized by use of its system.

235 See this chapter under Copying of Copyrighted U.S. Serials for Interlibrary Loan.

236 For a comparison of authorized copy delivery services, see this chapter under Secondary Suppliers of Authorized Copyright-Fee-Paid Copies.

237 In the past, these organizations have often provided copies of copyrighted materials without authorization from copyright proprietors. A number of these organizations, however, have indicated to the Commission that they will begin to obtain authorization for any copies they supply their customers in the course of their business.

238 CHRISTIAN, THE ELECTRONIC LIBRARY 1 (1978).

239 TASK FORCE IN A NATIONAL PERIODICIALS SYSTEM, NATIONAL COMMISSION ON LIBRARIES AND INFORMATION SCIENCE, EFFECTIVE ACCESS TO THE PERIODICAL LITERATURE: A NATIONAL PROCRAM 38 (1977). Superintendent of Documents Stock No. 052-003-0353/8.

240 This organization is set up to supply photo-copies of periodical articles, one copy to a customer and not more than one article per issue, to British and overseas organizations. It lends physical volumes of books. Currently BLLD supplies about 1.5 million copies of articles per year, and subscribes to approximately fifty-five thousand periodicals.

241 A.L.A. GLOSSARY OF LIBRARY TERMS 80 (1943).

242 Conference Report, supra note 1, p.72.