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- Table of Contents -

Introduction to the online version

Chapter 1 – The Commission and Its Recommendations

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

Chapter 3 – Computers and Copyright

Chapter 4 – Machine Reproduction – Photocopying

- Recommendations of the Commission

- Recommendation for Amending One Area of the 1976 Copyright Act

- Recommendations Concerning the Five-Year Review of Photocopying Practices

- Recommendations to Publishers

- Recommendations to Government Agencies

- Provisions of the 1976 Copyright Act Affecting Photocopying

- CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements

- Volume of Library Photocopying in 1976

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

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

- Legislation and Systems Relating to Photocopying in Other Countries

- Recommendations of Interested Organizations

- Effects of Future Technological Change

Chapter 5 – Summary

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

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

Appendix C – Commissioners

Appendix D – Staff

Appendix E – Lists of Witnesses

Appendix F – Alphabetical Listing of Persons Appearing before the Commission

Appendix G – Transcripts of Commission Meetings

Appendix H – Summaries of Commission-Sponsored Studies

Appendix I – Bibliography

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

Full table of contents

PDF version of the report

Picture of commissioners and staff

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

Chapter 4 – Machine Reproduction – Photocopying

Provisions of the 1976 Copyright Act Affecting Photocopying

Sections 107 and 108 of the Copyright Act of 1976 govern photocopying activities.213 An un­derstanding of these sections and their legisla­tive history is necessary to analyze the needs of copyright proprietors and those who seek access to printed works by means of photocopying.

The 1976 Act deals with photocopying in four different ways:

1. Copying for teaching purposes is dealt with, not by specific statutory exemptions, but rather by a list of permissible practices held to be fair use under section 107. This is accom­plished by means of the so-called educational guidelines, the “Agreement on Guidelines for Classroom Copying in Not-for-Profit Educa­tional Institutions,” which were negotiated by educational, author, and publisher organizations and accepted by the congressional committees.214 {Page 53} (They will not be dealt with here in any further detail because of the explicit exclusion from the jurisdiction of the Commission of copying done in connection with face-to-face teaching ac­tivities.)

2. Permissible copying of music for educa­tional use is also covered in guidelines which were negotiated between music publishing organizations and organizations representing music users. The House Committee report sets forth these guidelines.215

3. Specific exemptions for photocopying by libraries and archives are set forth in section 108 of the 1976 Act and are discussed in detail in the following sections of this chapter.

4. By implication, since they are the subject of no specific exemptions or guidelines, the fol­lowing classes of copiers may engage in only fair use copying under the four general stand­ards set forth in section 107 of the act: (a) individuals doing their own copying; (b) libraries and archives not qualifying for the privi­leges of section 108; and (c) organizations which are not libraries or archives, including profit organizations charging fees for copying.216

Section 108 permits copying of most materials without authorization by libraries or archives for themselves and for their users in specified cir­cumstances provided that: (1) the library or archives is open to the public or available to specialized researchers; (2) the reproduction or distribution includes a notice of copyright; and (3) the reproduction or distribution is made without any purpose of direct or indirect com­mercial advantage.217 This third limitation is in­terpreted in the House report to mean that “direct or indirect commercial advantage” is an intention to profit directly from the sale of copies, rather than to profit from the use of the reproduced material in the business of the organization.218

Libraries and archives qualifying for the privileges of section 108 are permitted to make copies for themselves (as opposed to making copies for their patrons or users) only in two cases. Section 108(b) permits a library or archives to reproduce an unpublished work for purposes of preservation, security, or research use in another library if the copy or phonorecord is currently in the collections of the library or archives. Section 108(c) permits libraries and archives to reproduce damaged, deteriorated, lost, or stolen copies if, after a reasonable effort, an unused replacement cannot be ob­tained at a fair price.

Libraries and archives are given more exten­sive privileges of making copies for users both from their own collections and by securing copies from other sources. The principal privi­lege is conferred by section 108(d), which per­mits the making of not more than one copy of an article from a periodical, or other contribu­tion to a copyrighted collection, or a small part of any other copyrighted work, for pur­poses of private study, scholarship, or research, provided that the library displays prominently at the place where orders are accepted and in­cludes in its order forms the warning of copy­right prescribed by regulation of the Register of Copyrights.

Libraries and archives also have the right un­der section 108(e) to make a copy for a user of an entire copyrighted work or a substantial part of it, or to secure a copy from another source, if (1) determination has been made that a copy cannot be obtained at a fair price; (2) the purpose of the requester is private study, scholarship, or research; and (3) the prescribed warning by the Register of Copyrights is dis­played and included on the order form.

All of the rights to make copies that are enu­merated in section 108 are limited by the pro­hibition in section 108(g) against “the related or concerted reproduction . . . of multiple copies . . . of the same material” and the “sys­tematic reproduction or distribution” of periodical articles or other small portions of copy­righted works. This prohibition against sys­tematic reproduction and distribution, however, is in turn limited by the proviso in section 108(g) (2), which states “[t]hat 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 {Page 54} to or purchase of such work.” The aggregate quantities that constitute a substitution for a subscription or purchase of a work are defined in the CONTU guidelines, which are de­scribed in the next section.

Next section: CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements

213 For the full text of these sections, see Appendix J, which also contains the text of two other provisions concerning photocopying: section 504(c) (2), relating to the possible remission of statutory damages for infringement by employees or agents of nonprofit educational institutions, libraries, or archives acting within the scope of their employment; and section 602(a) (3), relating to the importation of copies by nonprofit scholarly, educational, and religious organizations.

214 House Report, supra note 1, pp. 68 - 70.

215 Ibid., pp. 70 - 72.

216 See Appendix J for the text of section 107.

217 Section 108(h) excludes “a musical work, a pictorial, graphic or sculptural work, or a motion pic­ture or other audiovisual work other than an audio­visual work dealing with news . . .”

218 House Report, supra note 1, p.74.