Home page for digital-law-online.info

- Table of Contents -

Introduction to the online version

Chapter 1 – The Commission and Its Recommendations

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

Chapter 3 – Computers and Copyright

Chapter 4 – Machine Reproduction – Photocopying

- Recommendations of the Commission

- Recommendation for Amending One Area of the 1976 Copyright Act

- Recommendations Concerning the Five-Year Review of Photocopying Practices

- Recommendations to Publishers

- Recommendations to Government Agencies

- Provisions of the 1976 Copyright Act Affecting Photocopying

- CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements

- Volume of Library Photocopying in 1976

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

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

- Legislation and Systems Relating to Photocopying in Other Countries

- Recommendations of Interested Organizations

- Effects of Future Technological Change

Chapter 5 – Summary

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

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

Appendix C – Commissioners

Appendix D – Staff

Appendix E – Lists of Witnesses

Appendix F – Alphabetical Listing of Persons Appearing before the Commission

Appendix G – Transcripts of Commission Meetings

Appendix H – Summaries of Commission-Sponsored Studies

Appendix I – Bibliography

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

Full table of contents

PDF version of the report

Picture of commissioners and staff

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

Chapter 4 – Machine Reproduction – Photocopying

The National Commission on New Tech­nological Uses of Copyrighted Works was created by Congress, in part, to assist it in re­solving a problem that had proven especially difficult in the revision of the 1909 Copyright Act: drawing a proper balance between the rights of copyright owners, whose works were easily reproduced through the use of advanced reproduction technologies, and the general in­terests and needs of members of the public, who more and more were relying on photocopying as an important auxiliary form of access to copyrighted works. According to the legislation that authorized its establishment, the Commis­sion was required to study and compile data on:

(1) the reproduction and use of copyrighted works of authorship . . .

(B) by various forms of machine reproduc­tion, not including reproduction by or at the request of instructors for use in face-to-face teaching activities.191

The Commission was also charged with making recommendations “as to such changes in copy­right law or procedures that may be necessary to assure . . . access to copyrighted works, and to provide recognition of the rights of copyright owners.”192

Because Congress was actively considering photocopying in connection with the general revision bill at the time the Commission began its deliberations, the Commissioners decided at their second meeting to defer hearing witnesses on photocopying issues until Congress finally agreed upon the provisions of the general revi­sion bill directly related to that subject. Chair­man Fuld, however, appointed three members of the Commission to prepare an initial report on the issues related to photocopying that was considered at the December 1975 meeting.

The Commission sponsored a number of studies to gather data on photocopying.193 Funds were contributed for a study conducted by King Research, Inc., designed to provide data on how much photocopying of copyrighted works ac­tually occurred in libraries throughout the country.194 The Public Research Institute pre­pared a study that compared the costs of subscribing and storing periodicals with the costs of borrowing to fulfill patron requests.195 The Indiana University Graduate Library School con­ducted a survey of publishers of periodical lit­erature.196

During the year in which these studies were conducted, the Commission heard testimony {Page 48} from representatives of authors, publishers, libraries, government agencies, educators, and others concerning current and future photo­copying practices and their views on whether the 1976 Act needed amendment. Also during that year, the Commission assisted representa­tives of publisher, author, librarian, and educa­tor groups in formulating guidelines defining which interlibrary loan practices would comport with the provisions of section 108(g) (2) of the new copyright law prohibiting libraries from engaging in “systematic reproduction” of copyrighted works.197

This report sets forth the Commission’s rec­ommendation to Congress for legislative action and its suggestions to the interested parties for possible adjustments in practices related to photocopying and document delivery. After presenting this recommendation and these sug­gestions, this report discusses the effect of the new copyright law on a broad range of photo­copying practices and reviews the evidence that the Commission considered in reaching its con­clusions.

Recommendations of the Commission

The Commission’s investigations and the testimony it heard support the determination that, with one exception, the Commission need not recommend changes in the provisions of the Copyright Act of 1976 affecting photocopying. The one exception deals with photocopying by organizations that are in the business of making copies. The Commission also suggests certain matters that should be studied by the Register of Copyrights in preparing the first five-year report assessing how effectively the interests of copyright proprietors and users are balanced un­der the photocopying provisions of the new law. Also suggested are certain actions that could be taken voluntarily by other interested parties to facilitate access to copyrighted works in photo­copy form within the framework of the Copy­right Act of 1976.

Next section: Recommendation for Amending One Area of the 1976 Copyright Act

191 P.L. 93-573 § 201(b), 93d Cong., 2d sess., 1974. See Appendix B. The term machine reproduction in its mandate was recognized as being susceptible to various interpretations. The Commission’s legislative history has clear indications that Congress had contemplated a study of photocopying and re­lated methods of reproduction-rather than videotape reproduction and other emerging technologies-when it created the Commission. Accordingly, the Commission determined to concentrate its efforts on photoduplication and closely related means of reproduction.

192 Ibid., § 201(c).

193 Summaries of these reports appear in Appendix H. Copies of the reports are available from the National Technical Information Service, Springfield, Virginia 22161.

194 KING RESEARCH, INC., LIBRARY PHOTOCOPYING IN THE UNITED STATES (1977) PB 278 300; also available from the Superintendent of Documents, No. 052-003-00443-7. (Hereinafter cited as King study.)



LICENSING (1977) PB 271 003; hereinafter cited as Fry/White/Johnson study.

197 The CONTU guidelines are set out and discussed in this chapter.