,united ,states ,copyright ,office ,circular #ba ,reproduction of ,copyrighted ,works by ,educators and ,librarians ---------------------------------------- -------------------------------- ,many educators and librarians ask about the fair use and photocopying provisions of the copyright law4 ,the ,copyright ,office cannot give legal advice or offer opinions on what is permitted or prohibited4 ,however1 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 educators4 ,also available is the #aihc ,report of the ,register of ,copyrights on ,library ,reproduction of ,copyrighted ,works 7#ag ,u4,s4,c4 #ajh74 ,the ,report and seven appendixes can be purchased in microfiche or paper copies by written request from the ,national ,technical ,information ,service1 ,u4,s4 ,department of ,commerce1 #ebhe ,port ,royal ,road1 ,springfield1 ,,va #bbafa or by calling the ,sales ,desk at 7#gjc7dhg-dfej4 ,the ,,fax number for placing orders is 7#gjc7 #cba-hedg4 ,the ,,tty number for placing orders is 7#gjc7 #dhg-dfci4 ,when ordering1 please include the fol-lowing ,,ntis ,accession ,numbers3 ,,pb#hc #adhbci;,,acy1 ,entire ,set2 ,,pb#hc #adhbdg;,,acy1 ,report ,only2 ,,pb#hc #adhbed;,,acy1 ,appendix l 7,king ,report72 ,,pb#hc #adhbfb;,,acy1 ,appendix ,,ii 7,chicago ,hearing and ,written ,comments72 ,,pb#hc #adhbgj;,,acy1 ,appendix ,,iii 7,houston ,hearing and ,written ,comments72 ,,pb#hc #adhbhh;,,acy1 ,appendix ,,iv 7,washington ,hearing and ,written ,comments72 ,,pb#hc #adhbif;,,acy1 ,appendix ,v 7,anaheim ,hearing and ,written ,comments72 ,,pb#hc #adhcjd;,,acy1 ,appendix ,,vi 7,new ,york ,hearing and ,written ,comments72 and ,,pb#hc #adhcab;,,acy1 ,appendix ,,vii 7,final ,written ,comments74 ,the #aihh #e-year ,report of the ,register of ,copyrights on ,library ,reproduction of ,copyrighted ,works is also available from ,,ntis4 ,use ,,ntis ,accession ,number ,,pb#hh #babjad;,,acy4 9999,contents of ,this ,booklet9999 ,a4 ,introductory ,note 4444444444444444444444444444444444444444 444444444 #d ,b4 ,exclusive ,rights in ,copyrighted ,works 44444444444444444444444444444 #d #a4 ,text of ,section #ajf 4444444444444444444444444444444444444444 4444444 #d #b4 ,excerpts ,from ,house ,report 4444444444444444444444444444444444444444 #e ,c4 ,fair ,use 4444444444444444444444444444444444444444 444444444444444444 #e #a4 ,text of ,section #ajg 4444444444444444444444444444444444444444 4444444 #e #b4 ,excerpts ,from ,house ,report 4444444444444444444444444444444444444444 #f a4 ,introductory ,discussion 4444444444444444444444444444444444444444 444 #f b4 ,statement of ,intention as to ,classroom ,reproduction 444444444444444 #g 7i7 ,introductory ,statement 4444444444444444444444444444444444444444 444 #g 7ii7 ,guidelines ,with ,respect to ,books and ,periodicals 4444444444444444 #g 7iii7 ,guidelines ,with ,respect to ,music 4444444444444444444444444444444 #i 7iv7 ,discussion of ,guidelines 4444444444444444444444444444444444444444 #i c4 ,additional ,excerpts 4444444444444444444444444444444444444444 444444 #aj #c4 ,excerpts ,from ,conference ,report 4444444444444444444444444444444444 #aj #d4 ,excerpts ,from ,congressional ,debates 444444444444444444444444444444 #aa ,d4 ,reproduction by ,libraries and ,archives 444444444444444444444444444 #ab #a4 ,text of ,section #ajh 4444444444444444444444444444444444444444 444444 #ab #b4 ,excerpts ,from ,senate ,report 44444444444444444444444444444444444444 #ac a4 ,discussion of ,libraries and ,archives in ,profit-,making ,institutions 4444444444444444444444444444444444444444 444444 #ac b4 ,discussion of ,multiple ,copies and ,systematic ,reproduction 44444444 #ac #c4 ,excerpts ,from ,house ,report 444444444444444444444444444444444444444 #ad a4 ,introductory ,statement 4444444444444444444444444444444444444444 444 #ad b4 ,discussion of ,libraries and ,archives in ,profit-,making ,institutions444444444444444444444444444 44444444444444444444 #ae c4 ,rights of ,reproduction and ,distribution ,under ,section #ajh 44444444 #ae d4 ,general ,exemptions for ,libraries and ,archives 44444444444444444444 #af e4 ,discussion of ,multiple ,copies and ,systematic ,reproduction 44444444 #ag f4 ,discussion of ,works ,excluded 4444444444444444444444444444444444444 #ag #d4 ,excerpts ,from ,conference ,report 4444444444444444444444444444444444 #ag a4 ,introductory ,discussion of ,section #ajh 444444444444444444444444444 #ah b4 ,conference ,committee ,discussion of ,,contu ,guidelines on ,photocopying and ,interlibrary ,arrangements 4444444444444444 #ah c4 ,reprint of ,,contu ,guidelines on ,photocopying and ,interlibrary ,arrangements 4444444444444444444444444444444444444444 444444 #ah d4 ,discussion of ,audiovisual ,news ,program 4444444444444444444444444 #ai e4 ,discussion of ,libraries and ,archives in ,profit-,making ,institutions444444444444444444444444444 44444444444444444444 #ai #e4 ,copyright ,office ,regulations ,under ,section #ajh 4444444444444444444 #ai ,e4 ,liability for ,infringement 444444444444444444444444444444444444444 #bj #a4 ,text of ,section #ejd 4444444444444444444444444444444444444444 444444 #bj #b4 ,excerpts ,from ,house ,report 444444444444444444444444444444444444444 #ba #c4 ,excerpts ,from ,conference ,report 4444444444444444444444444444444444 #bb ,f4 ,guidelines for ,off-air ,recording of ,broadcast ,programming for ,educational ,purposes 44444444444444444444444444444444444444 #bb -------------------- ,a4 ,,introductory ,,note -------------------- 99,the ,subjects ,covered in ,this ,booklet99 ,the documentary materials collected in this booklet deal with reproduction of copyrighted works by educators1 librarians1 and archivists for a variety of uses1 including3 ,reproduction for teaching in educational institutions at all levels2 and ,reproduction by libraries and archives for purposes of study1 research1 interlibrary exchanges1 and archival preservation4 ,the documents reprinted here are limited to materials dealing with reproduction4 ,under the copyright law1 reproduction can take either of two forms3 ,the making of copies3 by photocopying1 making micro-form reproductions1 videotaping1 or any other method of duplicating visually-perceptible material2 and ,the making of phonorecords3 by duplicating sound recordings1 taping off the air1 or any other method of recapturing sounds4 ,the copyright law also contains various provisions dealing with importations1 performances1 and displays of copyrighted works for educational and other noncommercial purposes1 but they are outside the scope of this booklet4 ,you can obtain a copy of the statute and information about specific provisions by writing to the ,publications ,section1 ,,lm-#dee1 ,copyright ,office1 ,library of ,congress1 ,washington1 ,d4,c4 #bjeei-fjjj4 99,a ,note on the ,documents ,reprinted99 ,the documentary materials in this booklet are reprints or excerpts from six sources3 #a4 ,the ,copyright ,act of ,october #ai1 #aigf4 ,this is the copyright law of the ,united ,states1 effective ,january #a1 #aigh 7title #ag of the ,united ,states ,code1 ,public ,law #id-eec1 #ij ,stat4 #beda74 #b4 ,the ,senate ,report4 ,this is the #aige report of the ,senate ,judiciary ,committee on ,s4 #bb1 the ,senate version of the bill that became the ,copyright ,act of #aigf 7,s4 ,rep4 ,no4 #id-dgc1 #idth ,cong41 #ast ,sess41 ,november #bj 7legislative day ,november #ah1aige774 #c4 ,the ,house ,report4 ,this is the #aigf report of the ,house of ,representatives ,judiciary ,committee on the ,house amendments to the bill that became the ,copyright ,act of #aigf 7,h4,r4 ,rep4 ,no4 #id-adgf1 #idth ,cong41 #b;d ,sess41 ,sep-tember #c1aigf74 #d4 ,the ,conference ,report4 ,this is the #aigf report of the committee of conference on the disagreeing votes of the two ,houses on the amendments of the ,house to the bill 7,s4 #bb7 for the general revision of the ,copyright ,law 7,h4,r4 ,rep4 ,no4 #id-agcc1 #idth ,cong41 #b;d ,sess41 ,september #bi1aigf74 #e4 ,the ,congressional ,debates4 ,this booklet contains excerpts from the ,congressional ,record of ,september #bb1 #aigf1 reflecting statements on the floor of ,congress at the time the bill was passed by the ,house of ,representatives 7#abb ,,cong4 ,,rec4 ,h #ajhgd-gf1 daily edition1 ,september #bb1aigf74 #f4 ,copyright ,office ,regulations4 ,these are regulations issued by the ,copyright ,office under section #ajh dealing with warnings of copyright for use by libraries and archives 7#cg ,code of ,federal ,regulations ,sec4 #bja4ad74 ,items #b and #c on this list--the #aige ,senate ,report and the #aigf ,house ,report--present special problems4 ,on many points the language of these two reports is identical or closely similiar4 ,however1 the two reports were written at different times1 by committees of different ,houses of ,congress1 on somewhat different bills4 ,as a result1 the discussions on some provisions of the bills vary widely1 and on certain points they disagree4 ,the disagreements between the ,senate and ,house versions of the bill itself were1 of course1 resolved when the ,act of #aigf was finally passed4 ,however1 many of the disagreements as to matters of interpretation between statements in the #aige ,senate ,report and in the #aigf ,house ,report were left partly or wholly unresolved4 ,it is therefore difficult in compiling a booklet such as this to decide in some cases what to include and what to leave out4 ,the ,house ,report was written later than the ,senate ,report1 and in many cases it adopted the language of the ,senate ,report1 updating it and conforming it to the version of the bill that was finally enacted into law4 ,thus1 where the differences between the two ,reports are relatively minor1 or where the discussion in the ,house ,report appears to have superseded the discussion of the same point in the ,senate ,report1 we have used the ,house ,report as the source of our documentation4 ,in other cases we have included excerpts from both discussions in an effort to present the legislative history as fully and fairly as possible4 ,anyone making a thorough study of the ,act of #aigf as it affects librarians and educators should not1 of course1 rely exclusively on the excerpts reprinted here but should go back to the primary documentary sources4 ---------------------------------------- ,b4 ,,exclusive ,,rights ,,in ,,copyrighted ,,works ---------------------------------------- #a4 ,text of ,section #ajf ,the following is a reprint of the entire text of section #ajf of title #ag1 ,united ,states ,code4 99,section #ajf4 ,exclusive rights in copyrighted works99 ,subject to sections #ajg through #abj1 the owner of copyright under this title has the exclusive rights to do and to authorize any of the following3 7#a7 to reproduce the copyrighted work in copies or phonorecords2 7#b7 to prepare derivative works based upon the copyrighted work2 7#c7 to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership1 or by rental1 lease1 or lending2 7#d7 in the case of literary1 musical1 dramatic1 and choreographic works1 pantomimes1 and motion pictures and other audiovisual works1 to perform the copyrighted work publicly2 and 7#e7 in the case of literary1 musical1 dramatic1 and choreographic works1 pantomimes1 and pictorial1 graphic1 or sculptural works1 including the individual images of a motion picture or other audiovisual work1 to display the copyrighted work publicly4 99#b4 ,excerpts ,from ,house ,report on ,section #ajf99 ,the following excerpts are reprinted from the ,house ,report on the new copyright law 7,h4,r4 ,rep4 ,no4 #id-adgf1 pages #fa-fb74 ,the text of the corresponding ,senate ,report 7,s4 ,rep4 ,no4 #id-dgc1 pages #eg-eh7 is substantially the same4 ,,section #ajf4 ,,exclusive ,,rights ,,in ,,copyrighted ,,works ,general scope of copyright ,the five fundamental rights that the bill gives to copyright owners--the exclusive rights of reproduction1 adaptation1 publication1 performance1 and display--are stated generally in section #ajf4 ,these exclusive rights1 which comprise the so-called bundle of rights that is a copyright1 are cumulative and may overlap in some cases4 ,each of the five enumerated rights may be subdivided indefinitely and1 as discussed below in connection with section #bja1 each subdivision of an exclusive right may be owned and enforced separately4 ,the approach of the bill is to set forth the copyright owner's exclusive rights in broad terms in section #ajf1 and then to provide various limitations1 qualifications1 or exemptions in the #ab sections that follow4 ,thus1 everything in section #ajf is made subject to sections #ajg through #aah1 and must be read in conjunction with those provisions4 99 99 99 99,rights of reproduction1 adaptation1 and publication99 ,the first three clauses of section #ajf1 which cover all rights under a copyright except those of performance and display1 extend to every kind of copyrighted work4 ,the exclusive rights encompassed by these clauses1 though closely related1 are independent2 they can generally be characterized as rights of copying1 recording1 adaptation1 and publishing4 ,a single act of infringement may violate all of these rights at once1 as where a publisher reproduces1 adapts1 and sells copies of a person's copyrighted work as part of a publishing venture4 ,infringement takes place when any one of the rights is violated3 where1 for example1 a printer reproduces copies without selling them or a retailer sells copies without having anything to do with their reproduction4 ,the references to copies or phonorecords1 although in the plural1 are intended here and throughout the bill to include the singular 7#a ,u4,s4,c4 ,sec4 #a74 99,reproduction499--,read together with the relevant definitions in section #aja1 the right to reproduce the copyrighted work in copies or phonorecords means the right to produce a material object in which the work is duplicated1 transcribed1 imitated1 or simulated in a fixed form from which it can be perceived1 reproduced1 or otherwise communicated1 either directly or with the aid of a machine or device4 ,as under the present law1 a copyrighted work would be infringed by reproducing it in whole or in any substantial part1 and by duplicating it exactly or by imitation or simulation4 ,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 taken4 ,an exception to this general principle1 applicable to the reproduction of copyrighted sound recordings1 is specified in section #aad4 ,reproduction under clause 7#a7 of section #ajf is to be distinguished from display under clause 7#e74 ,for a work to be reproduced1 its fixation in tangible form must be sufficiently permanent or stable to permit it to be perceived1 reproduced1 or otherwise communicated for a period of more than transitory duration4 ,thus1 the showing of images on a screen or tube would not be a violation of clause 7#a71 although it might come within the scope of clause 7#e74 ----------- ,c4 ,,fair ,,use ----------- #a4 99,text of ,section #ajg99 ,the following is a reprint of the entire text of section #ajg of title #ag1 ,united ,states ,code4 99,section #ajg4 ,limitations on exclusive rights3 ,fair use99 ,notwithstanding the provisions of sections #ajf and #ajf;,a1 the fair use of a copyrighted work1 including such use by reproduction in copies or phonorecords or by any other means specified by that section1 for purposes such as criticism1 comment1 news reporting1 teaching 7including multiple copies for classroom use71 scholarship1 or research1 is not an infringement of copyright4 ,in determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- 7#a7 the purpose and character of the use1 including whether such use is of a commercial nature or is for non-profit educational purposes2 7#b7 the nature of the copyrighted work2 7#c7 the amount and substantiality of the portion used in relation to the copyrighted work as a whole2 and 7#d7 the effect of the use upon the potential market for or value of the copyrighted work4 ,the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors4 99#b4 ,excerpts ,from ,house ,report on ,section #ajg99 ,the following excerpts are reprinted from the ,house ,report on the new copyright law 7,h4,r4 ,rep4 ,no4 #id-adgf1 pages #fe-gd74 ,the discussion of section #ajg appears at pages #fa-fg of the ,senate ,report 7,s4 ,rep4 ,no4 #id-dgc74 ,the text of this section of the ,senate ,report is not reprinted in this booklet1 but similarities and differences between the ,house and ,senate ,reports on particular points will be noted below4 99a4 ,house ,report3 ,introductory ,discussion on ,section #ajg99 ,the first two paragraphs in this portion of the ,house ,report are closely similar to the ,senate ,report4 ,the remainder of the passage differs substantially in the two ,reports49999 ,,section #ajg4 ,,fair ,,use 99,general background of the problem99 ,the judicial doctrine of fair use1 one of the most important and well-established limitations on the exclusive right of copyright owners1 would be given express statutory recognition for the first time in section #ajg4 ,the claim that a defendant's acts constituted a fair use rather than an infringement has been raised as a defense in innumerable copyright actions over the years1 and there is ample case law recognizing the existence of the doctrine and applying it4 ,the examples enumerated at page #bd of the ,register's #aifa ,report1 while by no means exhaustive1 give some idea of the sort of activities the courts might regard as fair use under the circumstances3 quotation of excerpts in a review or criticism for purposes of illustration or comment2 quotation of short passages in a scholarly or technical work1 for illustration or clarification of the author's observations2 use in a parody of some of the content of the work parodied2 summary of an address or article1 with brief quotations1 in a news report2 reproduction by a library of a portion of a work to replace part of a damaged copy2 reproduction by a teacher or student of a small part of a work to illustrate a lesson2 reproduction of a work in legislative or judicial proceedings or reports2 incidental and fortuitous reproduction1 in a newsreel or broadcast1 of a work located in the scene of an event being reported4 ,although the courts have considered and ruled upon the fair use doctrine over and over again1 no real definition of the concept has ever emerged4 ,indeed1 since the doctrine is an equitable rule of reason1 no generally applicable definition is possible1 and each case raising the question must be decided on its own facts4 ,on the other hand1 the courts have evolved a set of criteria which1 though in no case definitive or determinative1 provide some gauge for balancing the equities4 ,these criteria have been stated in various ways1 but essentially they can all be reduced to the four standards which have been adopted in section #ajg3 7#a7 the purpose and character of the use1 including whether such use is of a commercial nature or is for non-profit educational purposes2 7#b7 the nature of the copyrighted work2 7#c7 the amount and substantiality of the portion used in relation to the copyrighted work as a whole2 and 7#d7 the effect of the use upon the potential market for or value of the copyrighted work4 ,these criteria are relevant in determining whether the basic doctrine of fair use1 as stated in the first sentence of section #ajg1 applies in a particular case3 ,notwithstanding the provisions of section #ajf1 the fair use of a copyrighted work1 including such use by reproduction in copies or phonorecords or by any other means specified by that section1 for purposes such as criticism1 comment1 news reporting1 teaching 7including multiple copies for classroom use71 scholarship1 or research1 is not an infringement of copyright4 ,the specific wording of section #ajg as it now stands is the result of a process of accretion1 resulting from the long controversy over the related problems of fair use and the reproduction 7mostly by photocopying7 of copyrighted material for educational and scholarly purposes4 ,for example1 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 use2 it is not intended to give these kinds of reproduction any special status under the fair use provision or to sanction any reproduction beyond the normal and reasonable limits of fair use4 ,similarly1 the newly-added reference to multiple copies for classroom use is a recognition that1 under the proper circumstances of fairness1 the doctrine can be applied to reproductions of multiple copies for the members of a class4 ,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 purposes4 ,this amendment is not intended to be interpreted as any sort of not-for- profit limitation on educational uses of copyrighted works4 ,it is an express recognition that1 as under the present law1 the commercial or non-profit character of an activity1 while not conclusive with respect to fair use1 can and should be weighed along with other factors in fair use decisions4 99,general intention behind the provision99 ,the statement of the fair use doctrine in section #ajg offers some guidance to users in determining when the principles of the doctrine apply4 ,however1 the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute4 ,the bill endorses the purpose and general scope of the judicial doctrine of fair use1 but there is no disposition to freeze the doctrine in the statute1 especially during a period of rapid technological change4 ,beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it1 the courts must be free to adapt the doctrine to particular situations on a case-by-case basis4 ,section #ajg is intended to restate the present judicial doctrine of fair use1 not to change1 narrow1 or enlarge it in any way4 99b4 ,house ,report3 ,statement of ,intention as to ,classroom ,reproduction99 ,the ,house ,report differs substantially from the ,senate ,report on this point4 997i7 ,introductory ,statement99 99,intention as to classroom reproduction99 ,although the works and uses to which the doctrine of fair use is applicable are as broad as the copyright law itself1 most of the discussion of section #ajg has centered around questions of classroom reproduction1 particularly photocopying4 ,the arguments on the question are summarized at pp4 #cj-ca of this ,committee's #aifg report 7,h4,r4 ,rep4 ,no4 #hc1 #ijth ,cong41 #ast ,sess471 and have not changed materially in the intervening years4 ,the ,committee also adheres to its earlier conclusion1 that a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control is not justified4 ,at the same time the ,committee recognizes1 as it did in #aifg1 that there is a need for greater certainty and protection for teachers4 ,in an effort to meet this need the ,committee has not only adopted further amendments to section #ajg1 but has also amended section #ejd7;c7 to provide innocent teachers and other non-profit users of copyrighted material with broad insulation against unwarranted liability for infringement4 ,the latter amendments are discussed below in connection with ,chapter #e of the bill4 ,in #aifg the ,committee also sought to approach this problem by including1 in its report1 a very thorough discussion of the considerations lying behind the four criteria listed in the amended section #ajg1 in the context of typical classroom situations arising today4 ,this discussion appeared on pp4 #cb-ce of the #aifg report1 and with some changes has been retained in the ,senate report on ,s4 #bb 7,s4 ,rep4 ,no4 #id-dgc1 pp4 #fc-fe74 ,the ,committee has reviewed this discussion1 and considers that it still has value as an analysis of various aspects of the problem4 ,at the ,judiciary ,subcommittee hearings in ,june #aige1 ,chairman ,kastenmeier and other members urged the parties to meet together independently in an effort to achieve a meeting of the minds as to permissible educational uses of copyrighted material4 ,the response to these suggestions was positive1 and a number of meetings of three groups1 dealing respectively with classroon1 reproduction of printed material1 music1 and audio-visual material1 were held beginning in ,september #aige4 997ii7 ,guidelines ,with ,respect to ,books and ,periodicals99 ,in a joint letter to ,chairman ,kastenmeier1 dated ,march #ai1 #aigf1 the representatives of the ,ad ,hoc ,committee of ,educational ,institutions and ,organizations on ,copyright ,law ,revision1 and of the ,authors ,league of ,america1 ,inc41 and the ,association of ,american ,publishers1 ,inc41 stated3 ,you may remember that in our letter of ,march #h1 #aigf we told you that the negotiating teams representing authors and publishers and the ,ad ,hoc ,group had reached tentative agreement on guidelines to insert in the ,committee ,report covering educational copying from books and periodicals under ,section #ajg of ,h4,r4 #bbbc and ,s4 #bb1 and that as part of that tentative agreement each side would accept the amendments to ,sections #ajg and #ejd which were adopted by your ,subcommittee on ,march #c1aigf4 ,we are now happy to tell you that the agreement has been approved by the principals and we enclose a copy herewith4 ,we had originally intended to translate the agreement into language suitable for inclusion in the legislative report dealing with ,section #ajg1 but we have since been advised by committee staff that this will not be necessary4 ,as stated above1 the agreement refers only to copying from books and periodicals1 and it is not intended to apply to musical or audiovisual works4 ,the full text of the agreement is as follows3 ,,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 minimum and not the maximum standards of educational fair use under ,section #ajg of ,h4,r4 #bbbc4 ,the parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future2 that certain types of copying permitted under these guidelines may not be permissible in the future2 and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines4 ,moreover1 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 #ajg of the ,copyright ,revision ,bill4 ,there may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use4 ,,guidelines ,i4 ,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 class3 ,a4 ,a chapter from a book2 ,b4 ,an article from a periodical or newspaper2 ,c4 ,a short story1 short essay or short poem1 whether or not from a collective work2 ,d4 ,a chart1 graph1 diagram1 drawing1 cartoon or picture from a book1 periodical1 or newspaper2 ,,ii4 ,multiple ,copies for ,classroom ,use ,multiple copies 7not to exceed in any event more than one copy per pupil in a course7 may be made by or for the teacher giving the course for classroom use or discussion2 provided that3 ,a4 ,the copying meets the tests of brevity and spontaneity as defined below2 and1 ,b4 ,meets the cumulative effect test as defined below2 and1 ,c4 ,each copy includes a notice of copyright ,definitions 99,brevity99 7i7 ,poetry3 7a7 ,a complete poem if less than #bej words and if printed on not more than two pages or1 7b7 from a longer poem1 an excerpt of not more than #bej words4 7ii7 ,prose3 7a7 ,either a complete article1 story or essay of less than #b1ejj words1 or 7b7 an excerpt from any prose work of not more than #a1jjj words or #aj of the work1 whichever is less1 but in any event a minimum of #ejj words4 ,each of the numerical limits stated in i and ii above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph4 7iii7 ,illustration3 ,one chart1 graph1 diagram1 drawing1 cartoon or picture per book or per periodical issue4 7iv7 ,special works3 ,certain works in poetry1 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 #b1ejj words in their entirety4 ,paragraph ii above notwithstandiiig such special works may not be reproduced in their entirety2 however1 an excerpt comprising not more than two of the published pages of such special work and containing not more than #aj of the words found in the text thereof1 may be reproduced4 99,spontaneity99 7i7 ,the copying is at the instance and inspiration of the individual teacher1 and 7ii7 ,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 permission4 99,cumulative ,effect99 7i7 ,the copying of the material is for only one course in the school in which the copies are made4 7ii7 ,not more than one short poem1 article1 story1 essay or two excerpts may be copied from the same author1 nor more than three from the same collective work or periodical volume during one class term4 7iii7 ,there shall not be more than nine instances of such multiple copying for one course during one class term4 ,the limitations stated in ii and iii above shall not apply to current news periodicals and newspapers and current news sections of other periodicals4 99,,iii4 ,prohibitions as to ,i and ,,ii ,above99 ,notwithstanding any of the above1 the following shall be prohibited3 7,a7 ,copying shall not be used to create or to replace or substitute for anthologies1 compilations or collective works4 ,such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately4 7,b7 ,there shall be no copying of or from works intended to be consumable in the course of study or of teaching4 ,these include workbooks1 exercises1 standardized tests and test booklets and answer sheets and like consumable material4 7,c7 ,copying shall not3 7a7 substitute for the purchase of books1 publishers' reprints or periodicals2 7b7 be directed by higher authority2 7c7 be repeated with respect to the same item by the same teacher from term to term4 7,d7 ,no charge shall be made to the student beyond the actual cost of the photocopying4 ,agreed ,,march #ai1 #aigf4 ,ad ,hoc ,committee on ,copyright ,law ,revision3 ,,by ,,sheldon ,,elliott ,,steinbach4 ,author-,publisher ,group3 ,authors ,league of ,america3 ,,by ,,irwin ,,karp1 ,counsel4 ,association of ,american ,publishers1 ,inc43 ,,by ,,alexander ,c4 ,,hoffman1 ,chairman1 ,copyright ,committee4 7iii7 ,guidelines ,with ,respect to ,music ,in a joint letter dated ,april #cj1aigf1 representatives of the ,music ,publishers' ,association of the ,united ,states1 ,inc41 the ,national ,music ,publishers' ,association1 ,inc41 the ,music ,teachers ,national ,association1 the ,music ,educators ,national ,conference1 the ,national ,association of ,schools of ,music1 and the ,ad ,hoc ,committee on ,copyright ,law ,revision1 wrote to ,chairman ,kastenmeier as follows3 ,during the hearings on ,h4,r4 #bbbc in ,june #aige1 you and several of your subcommittee members suggested that concerned groups should work together in developing guidelines which would be helpful to clarify ,section #ajg of the bill4 ,representatives of music educators and music publishers delayed their meetings until guidelines had been developed relative to books and periodicals4 ,shortly after that work was completed and those guidelines were forwarded to your subcommittee1 representatives of the undersigned music organizations met together with representatives of the ,ad ,hoc ,committee on ,copyright ,law ,revision to draft guidelines relative to music4 ,we are very pleased to inform you that the discussions thus have been fruitful on the guidelines which have been developed4 ,since private music teachers are an important factor in music education1 due consideration has been given to the concerns of that group4 ,we trust that this will be helpful in the report on the bill to clarify ,fair ,use as it applies to music4 ,the text of the guidelines accompanying this letter is as follows3 ,,guidelines ,,for ,,educational ,,uses ,,of ,,music ,the purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under ,section #ajg of ,,hr #bbbc4 ,the parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future2 that certain types of copying permitted under these guidelines may not be permissible in the future1 and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines4 ,moreover1 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 #ajg of the ,copyright ,revision ,bill4 ,there may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use4 ,a4 ,permissible ,uses #a4 ,emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course4 #b4 ,for academic purposes other than performance1 single or multiple copies of excerpts of works may be made1 provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section #a1 movement or aria1 but in no case more than #aj percent of the whole work4 ,the number of copies shall not exceed one copy per pupil4 #b #c4 ,printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics1 if any1 altered or lyrics added if none exist4 #d4 ,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 individual teacher4 #e4 ,a single copy of a sound recording 7such as a tape1 disc or cassette7 of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher4 7,this pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording47 ,b4 ,prohibitions #a4 ,copying to create or replace or substitute for anthologies1 compilations or collective works4 #b4 ,copying of or from works intended to be consumable in the course of study or of teaching such as workbooks1 exercises1 standardized tests and answer sheets and like material4 #c4 ,copying for the purpose of performance1 except as in ,a7#a7 above4 #d4 ,copying for the purpose of substituting for the purchase of music1 except as in ,a7#a7 and ,a7#b7 above4 #e4 ,copying without inclusion of the copyright notice which appears on the printed copy4 7iv7 ,discussion of ,guidelines ,the ,committee appreciates and commends the efforts and the cooperative ancl reasonable spirit of the parties who achieved the agreed guidelines on books and periodicals and on music4 ,representatives of the ,american ,association of ,university ,professors and of the ,association of ,american ,law ,schools have written to the ,committee strongly criticizing the guidelines1 particularly with respect to multiple copying1 as being too restrictive with respect to classroom situations at the university and graduate level4 ,however1 the ,committee notes that the ,ad ,hoc group did include representatives of higher education1 that the stated purpose of the 4 4 4 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 4 4 4 may nonetheless be permitted under the criteria of fair use4 ,the ,committee believes the guidelines are a reasonable interpretation of the minimum standards of fair use4 ,teachers will know that copying within the guidelines is fair use4 ,thus1 the guidelines serve the purpose of fulfilling the need for greater certainty and protection for teachers4 ,the ,committee expresses the hope that if there are areas where standards other than these guidelines may be appropriate1 the parties will continue their efforts to provide additional specific guidelines in the same spirit of good will and give and take that has marked the discussion of this subject in recent months4 c4 ,house ,report3 ,additional ,excerpts ,under the heading ,reproduction and uses for other purposes1 the ,house ,report1 at pages #gb-gd1 parallels much of the material appearing at pages #fe-fg of the ,senate ,report under the same heading1 but with some differences4 ,the concentrated attention given the fair use provision in the context of classroom teaching activities should not obscure its application in other areas4 ,it must be emphasized again that the same general standards of fair use are applicable to all kinds of uses of copyrighted material1 although the relative weight to be given them will differ from case to case4 99 99 99 ,a problem of particular urgency is that of preserving for posterity prints of motion pictures made before #aidb4 ,aside from the deplorable fact that in a great many cases the only existing copy of a film has been deliberately destroyed1 those that remain are in immediate danger of disintegration2 they were printed on film stock with a nitrate base that will inevitably decompose in time4 ,the efforts of the ,library of ,congress1 the ,american ,film ,institute1 and other organizations to rescue and preserve this irreplaceable contribution to our cultural life are to be applauded1 and the making of duplicate copies for purposes of archival preservation certanly falls within the scope of fair use4 99 99 99 ,during the consideration of the revision bill in the #idth ,congress it was proposed that independent newsletters1 as distinguished from house organs and publicity or advertising publications1 be given separate treatment4 ,it is argued that newsletters are particularly vulnerable to mass photocopying1 and that most newsletters have fairly modest circulations4 ,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 case4 ,however1 as a general principle1 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 journals4 ,the commercial nature of the user is a significant factor in such cases3 ,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 work4 ,the ,committee has examined the use of excerpts from copyrighted works in the art work of calligraphers4 ,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 copyright4 ,likewise1 a single reproduction of excerpts from a copyrighted work by a student calligrapher or teacher in a learning situation would be a fair use of the copyrighted work4 ,the ,register of ,copyrights has recommended that the committee report describe the relationship between this section and the provisions of section #ajh relating to reproduction by libraries and archives4 ,the doctrine of fair use applies to library photocopying1 and nothing contained in section #ajh in any way affects the right of fair use4 ,no provision of section #ajh is intended to take away any rights existing under the fair use doctrine4 ,to the contrary1 section #ajh authorizes certain photocopying practices which may not qualify as a fair use4 ,the criteria of fair use are necessarily set forth in general terms4 ,in the application of the criteria of fair use to specific photocopying practices of libraries1 it is the intent of this legislation to provide an appropriate balancing of the rights of creators1 and the needs of users4 #c4 ,excerpts ,from ,conference ,report on ,section #ajg ,the following excerpt is reprinted from the ,report of the ,conference ,committee on the new copyright law 7,h4,r4 ,rep4 ,no4 #id-agcc1 page #gj74 ,,fair ,,use ,senate bill ,the ,senate bill1 in section #ajg1 embodied express statutory recognition of the judicial doctrine that the fair use of a copyrighted work is not an infringement of copyright4 ,it set forth the fair use doctrine1 including four criteria for determining its applicability in particular cases1 in general terms4 ,house bill ,the ,house bill amended section #ajg in two respects3 in the general statement of the fair use doctrine it added a specific reference to multiple copies for classroom use1 and it amplified the statement of the first of the criteria to be used in judging fair use 7the purpose and character of the use7 by referring to the commercial nature or nonprofit educational purpose of the use4 ,conference substitute ,the conference substitute adopts the ,house amendments4 ,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 pp4 #fh-gj of the ,house ,report 7,h4 ,rept4 ,no4 #id-adgf1 as corrected at p4 ,h #ajgbg of the ,congressional ,record for ,september #ba1 #aigf71 and for educational uses of music appearing at pp4 #gj-ga of the ,house report1 as amended in the statement appearing at p4 ,h #ajhge of the ,congressional ,record of ,september #bb1 #aigf4 ,the conferees also endorse the statement concerning the meaning of the word teacher in the guidelines for books and periodicals1 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 impaired1 both of which appear on p4 ,h #ajhge of the ,congressional ,record of ,september #bb1 #aigf4 #d4 ,excerpts ,from ,congressional ,debates ,the following excerpts are reprinted from the ,congressional ,record of ,september #bb1 #aigf1 including statements by ,mr4 ,kastenmeier 7,chairman of the ,house ,judiciary ,subcommittee responsible for the bill7 on the floor of the ,house of ,representatives4 ,,mr4 ,k,a,s,t,e,n,m,el,e,r4 99 99 99 ,mr4 ,chairman1 before concluding my remarks ,i would like to discuss several questions which have been raised concerning the meaning of several provisions of ,s4 #bb as reported by the ,house ,judiciary ,committee and of statements in the committee's report1 ,no4 #id-adgf4 99 99 99 ,another question involves the reference to teacher in the ,agreement on ,guidelines for ,classroom ,copying in ,not-for-,profit ,educational ,institutions reproduced at pages #fh-gj of the committee's report ,no4 #id-adgf in connection with section #ajg4 ,it has been pointed out that1 in planning his or her teaching on a day-to-day basis in a variety of educational situations1 an individual teacher will commonly consult with instructional specialists on the staff of the school1 such as reading specialists1 curriculum specialists1 audiovisual directors1 guidance counselors1 and the like4 ,as long as the copying meets all of the other criteria laid out in the guidelines1 including the requirements for spontaneity and the prohibition against the copying being directed by higher authority1 the committee regards the concept of teacher as broad enough to include instructional specialists working in consultation with actual instructors4 ,also in consultation with section #ajg1 the committee's attention has been directed to the unique educational needs and problems of the approximately #ej1jjj deaf and hearing-impaired students in the ,united ,states1 and the inadequacy of both public and commercial television to serve their educational needs4 ,it has been suggested that1 as long as clear-cut constraints are imposed and enforced1 the doctrine of fair use is broad enough to permit the making of an off-the-air fixation of a television program within a non-profit educational institution for the deaf and hearing impaired1 the reproduction of a master and a work copy of a captioned version of the original fixation1 and the performance of the program from the work copy within the confines of the institution4 ,in identifying the constraints that would have to be imposed within an institution in order for these activities to be considered as fair use1 it has been suggested that the purpose of the use would have to be non-commercial in every respect1 and educational in the sense that it serves as part of a deaf or hearing-impaired student's learning environment within the institution1 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 institution1 would be responsible for assuring against its unauthorized reproduction or distribution1 or its performance or retention for other than educational purposes within the institution4 ,work copies of captioned programs could be shared among institutions for the deaf abiding by the constraints specified4 ,assuming that these constraints are both imposed and enforced1 and that no other factors intervene to render the use unfair1 the committee believes that the activities described could reasonably be considered fair use under section #ajg4 99 99 99 ,mr4 ,chairman1 because of the complexity of this bill and the delicate balances which it creates among competing economic interests1 the committee will resist extensive amendment of this bill4 ,on behalf of the committee ,i would urge all of my colleagues to vote favorably on ,sec4 #bb4 ,mr4 ,s,k,u,bl,t,z4 ,mr4 ,chairman1 will the gentleman yield8 ,mr4 ,,kastenmeier4 ,i am happy to yield to my friend1 the gentleman from ,kansas4 ,mr4 ,,skubitz4 ,mr4 ,chairman1 ,i thank my friend1 the gentleman from ,wisconsin1 for yielding4 ,mr4 ,chairman1 ,i have received a great deal of mail from the schoolteachers in my district who are particularly concerned about section #ajg--;fair use--the fair use of copyrighted material4 ,having been a former schoolteacher myself1 ,i believe they make a good point and there is a sincere fear on their part that1 because of the vagueness or ambiguity in the bill's treatment of the doctrine of fair use1 they may subject themselves to liability for an unintentional infringement of copyright when all they were trying to do was the job for which they were trained4 ,the vast majority of teachers in this country would not knowingly infringe upon a person's copyright1 but1 as any teacher can appreciate1 there are times when information is needed and is available1 but it may be literally impossible to locate the right person to approve the use of that material and the purchase of such would not be feasible and1 in the meantime1 the teacher may have lost that teachable moment4 ,did the subcommittee take these problems into consideration and did they do anything to try and help the teachers to better understand section #ajg8 ,have the teachers been protected by this section #ajg8 ,mr4 ,k,a,s,t,e,n,m,el,e,r4 ,mr4 ,chairman1 in response to the gentleman's question and his observations preceding the question1 ,i would say1 indeed they have4 ,over the years this has been one of the most difficult questions4 ,it is a problem that ,i believe has been very successfully resolved4 ,section #ajg on ,fair ,use has1 of course1 restated four standards1 and these standards are1 namely3 ,the purpose and character of the use of the material2 the nature of the copyrighted work2 the amount and substantiality of the portion used in relation to the copyrighted work as a whole2 and the effect of the use upon the potential market for or value of the copyrighted work4 ,these are the four ,fair ,use criteria4 ,these alone were not adequate to guide teachers1 and ,i am sure the gentleman from ,kansas 7,mr4 ,,skubitz7 understands that as a schoolteacher himself4 ,therefore1 the educators1 the proprietors1 and the publishers of educational materials did1 at the committee's long insistence1 get together4 ,while there were many fruitless meetings1 they did finally get together4 ,mr4 ,chairman1 ,i will draw the gentleman's attention to pages #fe through #gd in the report which contain extensive guidelines for teachers4 ,i am very happy to say that there was an agreement reached between teachers and publishers of educational material1 and that today the ,national ,education ,association supports the bill1 and it has1 in fact1 sent a telegram which at the appropriate time ,i will make a part of the ,,record and which requests support for the bill in its present form1 believing that it has satisfied the needs of the teachers3 999999 ,,national ,,education ,,association1 ,washington1 ,d4,c41 ,september #aj1 #aigf4 ,national ,education ,association urgently requests your support of the ,copyright ,revision bill1 ,h4,r4 #bbbc1 as reported by the ,judiciary ,committee4 ,this compromise effort represents a major breakthrough in establishing equitable legal guidelines for the use of copyright materials for instructional and research purposes4 ,we ask your support of the committee bill without amendments4 ,,james ,w4 ,,green1 ,assistant ,director for ,legislation4 999999 ,mr4 ,,skubitz4 ,mr4 ,chairman1 if the gentleman will yield further1 then the ,,nea is satisfied with the language in the bill as it now stands2 is that correct8 ,mr4 ,,kastenmeier4 ,the gentleman is correct4 ,mr4 ,s,k,u,bl,t,z4 ,mr4 ,chairman1 ,i thank the gentleman4 ---------------------------------------- - ,d4 ,,reproduction ,,by ,,libraries ,,and ,,archives ---------------------------------------- - #a4 ,text of ,section #ajh ,the following is a reprint of the entire text of section #ajh of title #ag1 ,united ,states ,code4 ,section #ajh4 ,limitations on exclusive rights3 99,reproduction by libraries and archives99 7a7 ,notwithstanding the provisions of section #ajf1 it is not an infringement of copyright for a library or archives1 or any of its employees acting within the scope of their employment1 to reproduce no more than one copy or phonorecord of a work1 or to distribute such copy or phonorecord1 under the conditions specified by this section1 if-- 7#a7 the reproduction or distribution is made without any purpose of direct or indirect commercial advantage2 7#b7 the collections of the library or archives are 7i7 open to the public1 or 7ii7 available not only to researchers affiliated with the library or archives or with the institution of which it is a part1 but also to other persons doing research in a specialized field2 and 7#c7 the reproduction or distribution of the work includes a notice of copyright4 7b7 ,the rights of reproduction and distribution under this section apply to a copy or phonorecord of an unpublished work duplicated in facsimile form solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause 7#b7 of subsection 7a71 if the copy or phonorecord reproduced is currently in the collections of the library or archives4 7c7 ,the right of reproduction under this section applies to a copy or phonorecord of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged1 deteriorating1 lost1 or stolen1 if the library or archives has1 after a reasonable effort1 determined that an unused replacement cannot be obtained at a fair price4 7d7 ,the rights of reproduction and distribution under this section apply to a copy1 made from the collection of a library or archives where the user makes his or her request or from that of another library or archives1 of no more than one article or other contribution to a copyrighted collection or periodical issue1 or to a copy or phonorecord of a small part of any other copyrighted work1 if-- 7#a7 the copy or phonorecord becomes the property of the user1 and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study1 scholarship1 or research2 and 7#b7 the library or archives displays prominently1 at the place where orders are accepted1 and includes on its order form1 a warning of copyright in accordance with requirements that the ,register of ,copyrights shall prescribe by regulation4 7e7 ,the rights of reproduction and distribution under this section apply to the entire work1 or to a substantial part of it1 made from the collection of a library or archives where the user makes his or her request or from that of another library or archives1 if the library or archives4 has first determined1 on the basis of a reasonable investigation1 that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price1 if-- 7#a7 the copy or phonorecord becomes the property of the user1 and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study1 scholarship1 or research2 and 7#b7 the library or archives displays prominently1 at the place where orders are accepted1 and includes on its order form1 a warning of copyright in accordance with requirements that the ,register of ,copyrights shall prescribe by regulation4 7f7 ,nothing in this section-- 7#a7 shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises3 ,provided1 ,that such equipment displays a notice that the making of a copy may be subject to the copyright law2 7#b7 excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection 7d7 from liability for copyright infringement for any such act1 or for any later use of such copy or phonorecord1 if it exceeds fair use as provided by section #ajg2 7#c7 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 program1 subject to clauses 7#a71 7#b71 and 7#c7 of subsection 7a72 or 7#d7 in any way affects the right of fair use as provided by section #ajg1 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 collections4 7g7 ,the rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions1 but do not extend to cases where the library or archives1 or its employee-- 7#a7 is aware or has substaiitial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material1 whether made on one occasion or over a period of time1 and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group2 or 7#b7 engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection 7d73 ,provided1 ,that nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have1 as their purpose or effect1 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 work4 7h7 ,the rights of reproduction and distribution under this section do not apply to a musical work1 a pictorial1 graphic or sculptural work1 or a motion picture or other audiovisual work other than an audiovisual work dealing with news1 except that no such limitation shall apply with respect to rights granted by subsections 7b7 and 7c71 or with respect to pictorial or graphic works published as illustrations1 diagrams1 or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections 7d7 and 7e74 #b4 ,excerpts ,from ,senate ,report on ,section #ajh ,the following excerpts are reprinted from the #aige ,senate ,report on the new copyright law 7,s4 ,rep4 ,no4 #id-dgc1 pages #fg-ga74 ,where the discussions of particular points are generally similar in the two ,reports1 the passages from the later ,house ,report are reprinted in this booklet4 ,where the discussion of particular points is substantially different1 passages from both ,reports are reprinted4 a4 ,senate ,report3 ,discussion of ,libraries and ,archives in ,profit-,making ,institutions ,the limitation of section #ajh to reproduction and distribution 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 employees engaged in furtherance of the organization's commercial enterprise1 unless such copying qualifies as a fair use1 or the organization has obtained the necessary copyright licenses4 ,a commercial organization should purchase the number of copies of a work that it requires1 or obtain the consent of the copyright owner to the making of the photocopies4 b4 ,senate ,report3 ,discussion of ,multiple ,copies and ,systematic ,reproduction 99,multiple copies and systematic reproduction99 ,subsection 7g7 provides that the rights granted by this section extend only to the isolated and unrelated reproduction of a single copy1 but this section does not authorize the related or concerted reproduction of multiple copies of the same material whether made on one occasion or over a period of time1 and whether intended for aggregate use by one individual or for separate use by the individual members of a group4 ,for example1 if a college professor instructs his class to read an article from a copyrighted journal1 the school library would not be permitted1 under subsection 7g71 to reproduce copies of the article for the members of the class4 ,subsection 7g7 also provides that section #ajh 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 distributed4 ,systematic reproduction or distribution occurs when a library makes copies of such materials 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 material4 ,such systematic reproduction and distribution1 as distinguished from isolated and unrelated reproduction or distribution1 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 themselves1 from the publisher or the licensed reproducing agencies4 ,while it is not possible to formulate specific definitions of systematic copying1 the following examples serve to illustrate some of the copying prohibited by subsection 7g74 7#a7 ,a library with a collection of journals in biology informs other libraries with similar collections that it will maintain and build its own collection and will make copies of articles from these journals available to them and their patrons on request4 ,accordingly1 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 library4 7#b7 ,a research center employing a number of scientists and technicians subscribes to one or two copies of needed periodicals4 ,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 subscriptions4 7#c7 ,several branches of a library system agree that one branch will subscribe to particular journals in lieu of each branch purchasing its own subscriptions1 and the one subscribing branch will reproduce copies of articles from the publication for users of the other branches4 ,the committee believes that section #ajh provides an appropriate statutory balancing of the rights of creators and the needs of users4 ,however1 neither a statute nor legislative history can specify precisely which library photocopying practices constitute the making of single copies as distinguished from systematic reproduction4 ,isolated single spontaneous requests must be distinguished from systematic reproduction4 ,the photocopying needs of such operations as multi-county regional systems must be met4 ,the committee therefore recommends that representatives of authors1 book and periodical publishers and other owners of copyrighted material meet with the library community to formulate photocopying guidelines to assist library patrons and employees4 ,concerning library photocopying practices not authorized by this legislation1 the committee recommends that workable clearance and licensing procedures be developed4 ,it is still uncertain how far a library may go under the ,copyright ,act of #aiji in supplying a photocopy of copyrighted material in its collection4 ,the recent case of ,the ,williams and ,wilkins ,company v4 ,the ,united ,states failed to significantly illuminate the application of the fair use doctrine to library photocopying practices4 ,indeed1 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 solution4 ,while the several opinions in the ,wilkins case have given the ,congress little guidance as to the current state of the law on fair use1 these opinions provide additional support for the balanced resolution of the photocopying issue adopted by the ,senate last year in ,s4 #acfa and preserved in section #ajh of this legislation4 ,as the ,court of ,claims opinion succinctly stated there is much to be said on all sides4 ,in adopting these provisions on library photocopying1 the committee is aware that through such programs as those of the ,national ,commission on ,libraries and ,information ,science there will be a significant evolution in the functioning and services of libraries4 ,to consider the possible need for changes in copyright law and procedures as a result of new technology1 a ,national ,commission on ,new ,technological ,uses of ,copyrighted ,works has been established 7,public ,law #ic-egc74 #c4 ,excerpts ,from ,house ,report on ,section #ajh ,the following excerpts are reprinted from the ,house ,report on the new copyright law 7,h4,r4 ,rep4 ,no4 #id-adgf1 pages #gd-gi74 ,all of the ,house ,report's discussion of section #ajh is reprinted here2 similarities and differences between the ,house and ,senate ,reports on particular points will be noted below4 a4 ,house ,report3 ,introductory ,statement ,this paragraph is substantially the same in the ,senate and ,house ,reports4 ,notwithstanding the exclusive rights of the owners of copyright1 section #ajh provides that under certain conditions it is not an infringement of copyright for a library or archives1 or any of its employees acting within the scope of their employment1 to reproduce or distribute not more than one copy or phonorecord of a work1 provided 7#a7 the reproduction or distribution is made without any purpose of direct or indirect commercial advantage and 7#b7 the collections of the library or archives are open to the public or available not only to researchers affiliated with the library or archives1 but also to other persons doing research in a specialized field1 and 7#c7 the reproduction or distribution of the work includes a notice of copyright4 b4 ,house ,report3 ,discussion of ,libraries and ,archives in ,profit-,making ,institutions ,the ,senate and ,house ,reports differ substantially on this point4 ,the ,senate ,report's discussion is reprinted at page #ag1 above4 ,under this provision1 a purely commercial enterprise could not establish a collection of copyrighted works1 call itself a library or archive1 and engage in for-profit reproduction and distribution of photocopies4 ,similarly1 it would not be possible for a non-profit institution1 by means of contractual arrangements with a commercial copying enterprise1 to authorize the enterprise to carry out copying and distribution functions that would be exempt if conducted by the non-profit institution itself4 ,the reference to indirect commercial advantage has raised questions as to the status of photocopying done by or for libraries or archival collections within industrial1 profitmaking1 or proprietary institutions 7such as the research and development departments of chemical1 pharmaceutical1 automobile1 and oil corporations1 the library of a propriatary hospital1 the collections owned by a law or medical partnership1 etc474 ,there is a direct interrelationship between this problem and the prohibitions against multiple and systematic photocopying in section #ajh 7g7 7#a7 and 7#b74 ,under section #ajh1 a library in a profit-making organization would not be authorized to3 7a7 use a single subscription or copy to supply its employees with multiple copies of material relevant to their work2 or 7b7 use a single subscription or copy to supply its employees1 on request1 with single copies of material relevant to their work1 where the arrangement is systematic in the sense of deliberately substituting photocopying for subscription or purchase2 or 7c7 use interlibrary loan arrangements for obtaining photocopies in such aggregate quantities as to substitute for subscriptions or purchase of material needed by employees in their work4 ,moreover1 a library in a profit-making organization could not evade these obligations by installing reproducing equipment on its premises for unsupervised use by the organization's staff4 ,isolated1 spontaneous making of single photocopies by a library in a for-profit organization1 without any systematic effort to substitute photocopying for subscriptions or purchases1 would be covered by section #ajh1 even though the copies are furnished to the employees of the organization for use in their work4 ,similarly1 for-profit libraries could participate in interlibrary arrangements for exchange of photocopies1 as long as the reproduction or distribution was not systematic4 ,these activities1 by themselves1 would ordinarily not be considered for direct or indirect commercial advantage1 since the advantage referred to in this clause must attach to the immediate commercial motivation behind the reproduction or distribution itself1 rather than to the ultimate profit-making motivation behind the enterprise in which the library is located4 ,on the other hand1 section #ajh would not excuse reproduction or distribution if there were a commercial motive behind the actual making or distributing of the copies1 if multiple copies were made or distributed1 or if the photocopying activities were systematic in the sense that their aim was to substitute for subscriptions or purchases4 c4 ,house ,report3 ,rights of ,reproduction and ,distribution ,under ,section #ajh ,the following paragraphs are closely similar in the ,senate and ,house ,reports4 ,the rights of reproduction and distribution under section #ajh apply in the following circumstances3 99,archival reproductions99 ,subsection 7b7 authorizes the reproduction and distribution of a copy or phonorecord of an unpublished work duplicated in facsimile form solely for purposes of preservation and security1 or for deposit for research use in another library or archives1 if the copy or phonorecord reproduced is currently in the collections of the first library or archives4 ,only unpublished works could be reproduced under this exemption1 but the right would extend to any type of work1 including photographs1 motion pictures and sound recordings4 ,under this exemption1 for example1 a repository could make photocopies of manuscripts by microfilm or electrostatic process1 but could not reproduce the work in machine-readable language for storage in an information system4 99,replacement of damaged copy99 ,subsection 7c7 authorizes the reproduction of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged1 deteriorating1 lost or stolen1 if the library or archives has1 after a reasonable effort1 determined that an unused replacement cannot be obtained at a fair price4 ,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 situation4 ,it will always require recourse to commonly-known trade sources in the ,united ,states1 and in the normal situation also to the publisher or other copyright owner 7if such owner can be located at the address listed in the copyright registration71 or an authorized reproducing service4 99,articles and small excerpts99 ,subsection 7d7 authorizes the reproduction and distribution of a copy of not more than one article or other contribution to a copyrighted collection or periodical issue1 or of a copy or phonorecord of a small part of any other copyrighted work4 ,the copy or phonorecord may be made by the library where the user makes his request or by another library pursuant to an interlibrary loan4 ,it is further required that the copy become the property of the user1 that the library or archives have no notice that the copy would be used for any purposes other than private study1 scholarship or research1 and that the library or archives display prominently at the place where reproduction requests are accepted1 and includes in its order form1 a warning of copyright in accordance with requirements that the ,register of ,copyrights shall prescribe by regulation4 99,out-of-print works99 ,subsection 7e7 authorizes the reproduction and distribution of a copy or phonorecord of an entire work under certain circumstances1 if it has been established that a copy cannot be obtained at a fair price4 ,the copy may be made by the library where the user makes his request or by another library pursuant to an interlibrary loan4 ,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 situation4 ,it will always require recourse to commonly-known trade sources in the ,united ,states1 and in the normal situation also to the publisher or other copyright owner 7if the owner can be located at the address listed in the copyright registration71 or an authorized reproducing service4 ,it is further required that the copy become the property of the user1 that the library or archives have no notice that the copy would be used for any purpose other than private study1 scholarship1 or research1 and that the library or archives display prominently at the place where reproduction requests are accepted1 and include on its order form1 a warning of copyright in accordance with requirements that the ,register of ,copyrights shall prescribe by regulation4 d4 ,house ,report3 ,general ,exemptions for ,libraries and ,archives ,parts of the following paragraphs are substantially similar in the ,senate and ,house ,reports4 ,differences in the ,house ,report on certain points reflect certain amendments in section #ajh7;f7 and elsewhere in the ,copyright ,act4 99,general exemptions99 ,clause 7#a7 of subsection 7f7 specifically exempts a library or archives or its employees from liability for the unsupervised use of reproducing equipment located on its premises1 provided that the reproducing equipment displays a notice that the making of a copy may be subject to the copyright law4 ,clause 7#b7 of subsection 7f7 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 use4 ,insofar as such person is concerned the copy or phonorecord made is not considered lawfully made for purposes of sections #aji1 #aaj or other provisions of the title4 ,clause 7#c7 provides that nothing in section #ajh is intended to limit the reproduction and distribution by lending of a limited number of copies and excerpts of an audio-visual news program4 ,this exemption is intended to apply to the daily newscasts of the national television networks1 which report the major events of the day4 ,it does not apply to documentary 7except documentary programs involving news reporting as that term is used in section #ajg71 magazine-format or other public affairs broadcasts dealing with subjects of general interest to the viewing public4 ,the clause was first added to the revision bill in #aigd by the adoption of an amendment proposed by ,senator ,baker4 ,it is intended to permit libraries and archives1 subject to the general conditions of this section1 to make off-the-air videotape recordings of daily network newscasts for limited distribution to scholars and researchers for use in research purposes4 ,as such1 it is an adjunct to the ,american ,television and ,radio ,archive established in ,section #aac of the ,act which will be the principal repository for television broadcast material1 including news broadcasts4 ,the inclusion of language indicating that such material may only be distributed by lending by the library or archive is intended to preclude performance1 copying1 or sale1 whether or not for profit1 by the recipient of a copy of a television broadcast taped off-the-air pursuant to this clause4 ,clause 7#d71 in addition to asserting that nothing contained in section #ajh affects the right of fair use as provided by section #ajg1 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 collections4 ,for example1 if there is an express contractual prohibition against reproduction for any purpose1 this legislation shall not be construed as justifying a violation of the contract4 ,this clause is intended to encompass the situation where an individual makes papers1 manuscripts or other works available to a library with the understanding that they will not be reproduced4 ,it is the intent of this legislation that a subsequent unlawful use by a user of a copy or phonorecord of a work lawfully made by a library1 shall not make the library liable for such improper use4 e4 ,house ,report3 ,discussion of ,multiple ,copies and ,systematic ,reproduction ,the ,senate and ,house ,reports differ substantially on this point4 ,the ,senate ,report's discussion is reprinted at page #ag4 above4 99,multiple copies and systematic reproduction99 ,subsection 7g7 provides that the rights granted by this section extend only to the isolated and unrelated reproduction of a single copy or phonorecord of the same material on separate occasions4 ,however1 this section does not authorize the related or concerted reproduction of multiple copies or phonorecords of the same material1 whether made on one occasion or over a period of time1 and whether intended for aggregate use by one individual or for separate use by the individual members of a group4 ,with respect to material described in subsection 7d7--articles or other contributions to periodicals or collections1 and small parts of other copyrighted works--subsection 7g7 7#b7 provides that the exemptions of section #ajh do not apply if the library or archive engages in systematic reproduction or distribution of single or multiple copies or phonorecords4 ,this provision in ,s4#bb provoked a storm of controversy1 centering around the extent to which the restrictions on systematic activities would prevent the continuation and development of interlibrary networks and other arrangements involving the exchange of photocopies4 ,after thorough consideration1 the ,committee amended section #ajh 7g7 7#b7 to add the following proviso3 ,provided1 that nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have1 as their purpose or effect1 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 work4 ,in addition1 the ,committee added a new subsection 7i7 to section #ajh1 requiring the ,register of ,copyrights1 five years from the effective date of the new ,act and at five year intervals thereafter1 to report to ,congress upon the extent to which this section has achieved the intended statutory balancing of the rights of creators1 and the needs of users1 and to make appropriate legislative or other recommendations4 ,as noted in connection with section #ajg1 the ,committee also amended section #ejd7;c7 in a way that would insulate librarians from unwarranted liability for copyright infringement2 this amendment is discussed below4 ,the key phrases in the ,committee's amendment of section #ajh7;g7 7#b7 are aggregate quantities and substitute for a subscription to or purchase of a work4 ,to be implemented effectively in practice1 these provisions will require the development and implementation of more-or-less specific guidelines establishing criteria to govern various situations4 ,the ,national ,commission on ,new ,technological ,uses of ,copyrighted ,works 7,,contu7 offered to provide good offices in helping to develop these guidelines4 ,this offer was accepted and1 although the final text of guidelines has not yet been achieved1 the ,committee has reason to hope that1 within the next month1 some agreement can be reached on an initial set of guidelines covering practices under section #ajh7;g77#b74 f4 ,house ,report3 ,discussion of ,works ,excluded ,the ,house ,report's discussion of section #ajh7;h7 is longer than the corresponding paragraph in the ,senate ,report1 and reflects certain amendments in the subsection4 99,works excluded99 ,subsection 7h7 provides that the rights of reproduction and distribution under this section do not apply to a musical work1 a pictorial1 graphic or sculptural work1 or a motion picture or other audiovisual work other than an audiovisual work dealing with news4 ,the latter term is intended as the equivalent in meaning of the phrase audio-visual news program in section #ajh 7f7 7#c74 ,the exclusions under subsection 7h7 do not apply to archival reproduction under subsection 7b71 to replacement of damaged or lost copies or phonorecords under subsection 7c71 or to pictorial or graphic works published as illustrations1 diagrams1 or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections 7d7 and 7e74 ,although subsection 7h7 generally removes musical1 graphic1 and audiovisual works from the specific exemptions of section #ajh1 it is important to recognize that the doctrine of fair use under section #ajg remains fully applicable to the photocopying or other reproduction of such works4 ,in the case of music1 for example1 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 work4 ,nothing in section #ajh impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections1 where the user requests the reproduction for legitimate scholarly or research purposes4 #d4 ,excerpts ,from ,conference ,report ,the following excerpt is reprinted from the ,report of the ,conference ,committee on the new copyright law 7,h4,r4 ,rep4 ,no4 #id-agcc1 pages #gj-gd74 a4 ,conference ,report3 ,introductory ,discussion of ,section #ajh ,,reproduction ,,by ,,libraries ,,and ,,archives ,senate bill ,section #ajh of the ,senate bill dealt with a variety of situations involving photocopying and other forms of reproduction by libraries and archives4 ,it specified the conditions under which single copies of copyrighted material can be noncommercially reproduced and distributed1 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 systematic4 ,under subsection 7f71 the section was not to be construed as limiting the reproduction and distribution1 by a library or archive meeting the basic criteria of the section1 of a limited number of copies and excerpts of an audiovisual news program4 ,house bill ,the ,house bill amended section #ajh to make clear that1 in cases involving interlibrary arrangements for the exchange of photocopies1 the activity would not be considered systematic as long as the library or archives receiving the reproductions for distribution does not do so in such aggregate quantities as to substitute for a subscription to or purchase of the work4 ,a new subsection 7i7 directed the ,register of ,copyrights1 by the end of #aihb and at five-year intervals thereafter1 to report on the practical success of the section in balancing the various interests1 and to make recommendations for any needed changes4 ,with respect to audiovisual news programs1 the ,house bill limited the scope of the distribution privilege confirmed by section #ajh 7f7 7#c7 to cases where the distribution takes the form of a loan4 b4 ,conference ,report3 ,conference ,committee ,discussion of ,,contu ,guidelines on ,photocopying and ,interlibrary ,arrangements ,conference substitute ,the conference substitute adopts the provisions of section #ajh as amended by the ,house bill4 ,in doing so1 the conferees have noted two letters dated ,september #bb1 #aigf1 sent respectively to ,john ,l4 ,mc,clellan1 ,chairman of the ,senate ,judiciary ,subcommittee on ,patents1 ,trademarks1 and ,copyrights1 and to ,robert ,w4 ,kastenmeier1 ,chairman of the ,house ,judiciary ,subcommittee on ,courts1 ,civil ,liberties1 and the ,administration of ,justice4 ,the letters1 from the ,chairman of the ,national ,commission on ,new ,technological ,uses of ,copyrighted ,works 7,,contu71 ,stanley ,h4 ,fuld1 transmitted a document consisting of guidelines interpreting the provision in subsection #ajh 7g7 7#b7 of ,s4 #bb1 as approved by the ,house ,committee on the ,judiciary4 ,chairman ,fuld's letters explain that1 following lengthy consultations with the parties concerned1 the ,commission adopted these guidelines as fair and workable and with the hope that the conferees on ,s4 #bb may find that they merit inclusion in the conference report4 ,the letters add that1 although time did not permit securing signatures of the representatives of the principal library organizations or of the organizations representing publishers and authors on these guidelines1 the ,commission had received oral assurances from these representatives that the guidelines are acceptable to their organizations4 ,the conference committee understands that the guidelines are not intended as1 and cannot be considered1 explicit rules or directions governing any and all cases1 now or in the future4 ,it is recognized that their purpose is to provide guidance in the most commonly-encountered interlibrary photocopying situations1 that they are not intended to be limiting or determinative in themselves or with respect to other situations1 and that they deal with an evolving situation that will undoubtedly require their continuous reevaluation and adjustment4 ,with these qualifications1 the conference committee agrees that the guidelines are a reasonable interpretation of the proviso of section #ajh 7g7 7#b7 in the most common situations to which they apply today4 c4 ,conference ,report3 ,reprint of ,,contu ,guidelines on ,photocopying and ,interlibrary ,arrangements ,the text of the guidelines follows3 ,,photocopying--,,interlibrary ,,arrangements ,,introduction ,subsection #ajh7;g77#b7 of the bill deals1 among other things1 with limits on interlibrary arrangements for photocopying4 ,it prohibits systematic photocopying of copyrighted materials but permits interlibrary arrangements that do not have1 as their purpose or effect1 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 work4 ,the ,national ,commission on ,new ,technological ,uses of ,copyrighted ,works offered its good offices to the ,house and ,senate subcommittees in bringing the interested parties together to see if agreement could be reached on what a realistic definition would be of such aggregate quantities4 ,the ,commission consulted with the parties and suggested the interpretation which follows1 on which there has been substantial agreement by the principal library1 publisher1 and author organizations4 ,the ,commission considers the guidelines which follow to be a workable and fair interpretation of the intent of the proviso portion of subsection #ajh7;g77#b74 ,these guidelines are intended to provide guidance in the application of section #ajh to the most frequently encountered interlibrary case3 a library's obtaining from another library1 in lieu of interlibrary loan1 copies of articles from relatively recent issues of periodicals--those published within five years prior to the date of the request4 ,the guidelines do not specify what aggregate quantity of copies of an article or articles published in a periodical1 the issue date of which is more than five years prior to the date when the request for the copy thereof is made1 constitutes a substitute for a subscription to such periodical4 ,the meaning of the proviso to subsection #ajh7;g77#b7 in such case is left to future interpretation4 ,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 institutions1 public or private1 exist for the specific purpose of providing a central source for photocopies4 ,of course1 these guidelines would not apply to such a situation4 ,,guidelines ,,for ,,the ,,proviso ,,of ,,subsection #ajh 7,g77#b7 #a4 ,as used in the proviso of subsection #ajh 7g7 7#b71 the words 4 4 4 such aggregate quantities as to substitute for a subscription to or purchase of such work shall mean3 7a7 with respect to any given periodical 7as opposed to any given issue of a periodical71 filled requests of a library or archives 7a requesting entity7 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 request4 ,these guidelines specifically shall not apply1 directly or indirectly1 to any request of a requesting entity for a copy or copies of an article or articles published in any issue of a periodical1 the publication date of which is more than five years prior to the date when the request is made4 ,these guidelines do not define the meaning1 with respect to such a request1 of 4 4 4 such aggregate quantities as to substitute for a subscription to such periodical4 7b7 ,with respect to any other material described in subsection #ajh 7d71 7including fiction and poetry71 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 7including a collective work7 during the entire period when such material shall be protected by copyright4 #b4 ,in the event that a requesting entity-- 7a7 shall have in force or shall have entered an order for a subscription to a periodical1 or 7b7 has within its collection1 or shall have entered an order for1 a copy or phonorecord of any other copyrighted work1 material from either category of which it desires to obtain by copy from another library or archives 7the supplying entity71 because the material to be copied is not reasonably available for use by the requesting entity itself1 then the fulfillment of such request shall be treated as though the requesting entity made such copy from its own collection4 ,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 able1 under the other provisions of section #ajh1 to supply such copy from materials in its own collection4 #c4 ,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 guidelines4 #d4 ,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 requests1 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 made4 #e4 ,as part of the review provided for in subsection #ajh 7i71 these guidelines shall be reviewed not later than five years from the effective date of this bill4 d4 ,conference ,report3 ,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 #ajh7;f77#c74 ,the conferees believe that1 under the provision as adopted in the conference substitute1 a library or archives qualifying under section #ajh 7a7 would be free1 without regard to the archival activities of the ,library of ,congress or any other organization1 to reproduce1 on videotape or any other medium of fixation or reproduction1 local1 regional1 or network newscasts1 interviews concerning current news events1 and on-the-spot coverage of news events1 and to distribute a limited number of reproductions of such a program on a loan basis4 e4 ,conference ,report3 ,discussion of ,libraries and ,archives in ,profit-,making ,institutions ,another point of interpretation involves the meaning of indirect commercial advantage1 as used in section #ajh7;a77#a71 in the case of libraries or archival collections within industrial1 profit-making1 or proprietary institutions4 ,as long as the library or archives meets the criteria in section #ajh 7a7 and the other requirements of the section1 including the prohibitions against multiple and systematic copying in subsection 7g71 the conferees consider that the isolated1 spontaneous making of single photocopies by a library or archives in a for-profit organization without any commercial motivation1 or participation by such a library or archives in interlibrary arrangements1 would come within the scope of section #ajh4 #e4 ,copyright ,office ,regulations ,under ,section #ajh ,the following is the text of regulations adopted by the ,copyright ,office to implement sections #ajh7;d77#b7 and #ajh7;e7 of the new copyright law 7#cg ,code of ,federal ,regulations ,sec4 #bja4ad74 ,section #bja4ad ,warnings of copyright for use by certain libraries and archives4 7a7 ,definitions4 7#a7 ,a ,display ,warning of ,copyright is a notice under paragraphs 7d77#b7 and 7e77#b7 of section #ajh of ,title #ag of the ,united ,states ,code as amended by ,pub4 ,l4 #id-eec4 ,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 archives4 7#b7 ,an ,order ,warning of ,copyright is a notice under paragraphs 7d7 7#b7 and 7e77#b7 of section #ajh of ,title #ag of the ,united ,states ,code as amended by ,pub4 ,l4 #id-eec4 ,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 phonorecords4 7b7 ,contents4 ,a ,display ,warning of ,copyright and an ,order ,warning of ,copyright shall consist of a verbatim reproduction of the following notice1 printed in such size and form and displayed in such manner as to comply with paragraph 7c7 of this section3 ,,notice ,,warning ,,concerning ,,copyright ,,restrictions ,the copyright law of the ,united ,states 7,title #ag1 ,united ,states ,code7 governs the making of photocopies or other reproductions of copyrighted material4 ,under certain conditions specified in the law1 libraries and archives are authorized to furnish a photocopy or other reproduction4 ,one of these specified conditions is that the photocopy or reproduction is not to be used for any purpose other than private study1 scholarship1 or research4 ,if a user makes a request for1 or later uses1 a photocopy or reproduction for purposes in excess of fair use1 that user may be liable for copyright infringement4 ,this institution reserves the right to refuse to accept a copying order if1 in its judgment1 fulfillment of the order would involve violation of copyright law4 7c7,form and ,manner of ,use4 7#a7 ,a ,display ,warning of ,copyright shall be printed on heavy paper or other durable material in type at least #ah points in size1 and shall be displayed prominently1 in such manner and location as to be clearly visible1 legible1 and comprehensible to a casual observer within the immediate vicinity of the place where orders are accepted4 7#b7 ,an ,order ,warning of ,copyright shall be printed within a box located prominently on the order form itself1 either on the front side of the form or immediately adjacent to the space calling for the name or signature of the person using the form4 ,the notice shall be printed in type size no smaller than that used predominantly throughout the form1 and in no case shall the type size be smaller than #h points4 ,the notice shall be printed in such manner as to be clearly legible1 comprehensible1 and readily apparent to a casual reader of the form4 ----------------------------- ,e4 ,,liability ,,for ,,infringement ----------------------------- #a4 ,text of ,section #ejd ,the following is a reprint of the entire text of section #ejd of title #ag1 ,united ,states ,code4 ,the special provisions affecting librarians and educators are in subsection 7c77#b74 ,section #ejd4 ,remedies for infringement3 ,damages and profits4 #c 7a7 ,,in ,,general4--,except as otherwise provided by this title1 an infringer of copyright is liable for either-- 7#a7 the copyright owner's actual damages and any additional profits of the infringer1 as provided by subsection 7b72 or 7#b7 statutory damages1 as provided by subsection 7c74 7b7 ,,actual ,,damages ,,and ,,profits4--,the copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement1 and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages4 ,in establishing the infringer's profits1 the copyright owner is required to present proof only of the infringer's gross revenue1 and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work4 7c7 ,,statutory ,,damages4-- 7#a7 ,except as provided by clause 7#b7 of this subsection1 the copyright owner may elect1 at any time before final judgment is rendered1 to recover1 instead of actual damages and profits1 an award of statutory damages for all infringements involved in the action1 with respect to any one work1 for which any one infringer is liable individually1 or for which any two or more infringers are liable jointly and severally1 in a sum of not less than #ejj or more than #bj1jjj as the court considers just4 ,for the purposes of this subsection1 all the parts of a compilation or derivative work constitute one work4 7#b7 ,in a case where the copyright owner sustains the burden of proving1 and the court finds1 that infringement was committed willfully1 the court in its discretion may increase the award of statutory damages to a sum of not more than #ajj1jjj4 ,in a case where the infringer sustains the burden of proving1 and the court finds1 that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright1 the court in its discretion may reduce the award of statutory damages to a sum of not less than #bjj4 ,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 #ajg1 if the infringer was3 7i7 an employee or agent of a nonprofit educational institution1 library1 or archives acting within the scope of his or her employment who1 or such institution1 library1 or archives itself1 which infringed by reproducing the work in copies or phonorecords2 or 7ii7 a public broadcasting entity which or a person who1 as a regular part of the non-profit activities of a public broadcasting entity 7as defined in subsection 7g7 of section #aah7 infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work4 #b4 ,excerpts ,from ,house ,report on ,section #ejd ,the following excerpts are reprinted from the ,house ,report on the new copyright law 7,h4,r4 ,rep4 ,no4 #id-adgf1 pages #afa-afc74 ,material not of immediate interest to librarians and educators has been omitted4 ,much of the corresponding discussion in the ,senate ,report 7,s4 ,rep4 ,no4 #id-dgc1 pages #adc-ade7 is substantially the same2 the ,house ,report's discussion of statutory damages applicable to librarians and educators is new4 ,,in ,,general ,a cornerstone of the remedies sections and of the bill as a whole is section #ejd1 the provision dealing with recovery of actual damages1 profits1 and statutory damages4 ,the two basic aims of this section are reciprocal and correlative3 7#a7 to give the courts specific unambiguous directions concerning monetary awards1 thus avoiding the confusion and uncertainty that have marked the present law on the subject1 and1 at the same time1 7#b7 to provide the courts with reasonable latitude to adjust recovery to the circumstances of the case1 thus avoiding some of the artificial or overly technical awards resulting from the language of the existing statute4 ,subsection 7a7 lays the groundwork for the more detailed provisions of the section by establishing the liability of a copyright infringer for either the copyright owner's actual damages and any additional profits of the infringer1 or statutory damages4 ,recovery of actual damages and profits under section #ejd 7b7 or of statutory damages under section #ejd 7c7 is alternative and for the copyright owner to elect2 as under the present law1 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 damages4 ,however1 there is nothing in section #ejd to prevent a court from taking account of evidence concerning actual damages and profits in making an award of statutory damages within the range set out in subsection 7c74 99,actual damages and profits99 ,in allowing the plaintiff to recover the actual damages suffered by him or her as a result of the infringement1 plus any of the infringer's profits that are attributable to the infringement and are not taken into account in computing the actual damages1 section #ejd 7b7 recognizes the different purposes served by awards of damages and profits4 ,damages are awarded to compensate the copyright owner for losses from the infringement1 and profits are awarded to prevent the infringer from unfairly benefiting from a wrongful act4999999 99,statutory damages99 ,subsection 7c7 of section #ejd 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 judgment4 ,the remainder of clause 7#a7 of the subsection represents a statement of the general rates applicable to awards of statutory damages4 ,clause 7#b7 of section #ejd 7c7 provides for exceptional cases in which the maximum award of statutory damages could be raised from #aj1jjj to #ej1jjj1 and in which the minimum recovery could be reduced from #bej to #ajj4 ,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 innocent4 ,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 infringer1 and that the court must make a finding of either willfulness or innocence in order to award the exceptional amounts4 ,the innocent infringer provision of section #ejd7;c77#b7 has been the subject of extensive discussion4 ,the exception1 which would allow reduction of minimum statutory damages to #ajj where the infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright1 is sufficient to protect against unwarranted liability in cases of occasional or isolated innocent infringement1 and it offers adequate insulation to users1 such as broadcasters and newspaper publishers1 who are particularly vulnerable to this type of infringement suit4 ,on the other hand1 by establishing a realistic floor for liability1 the provision preserves its intended deterrent effect2 and it would not allow an infringer to escape simply because the plaintiff failed to disprove the defendant's claim of innocence4 ,in addition to the general innocent infringer provision clause 7#b7 deals with the special situation of teachers1 librarians1 archivists1 and public broadcasters1 and the non-profit institutions of which they are a part4 ,section #ejd 7c77#b7 provides that1 where such a person or institution infringes copyrighted material in the honest belief that what they were doing constituted fair use1 the court is precluded from awarding any statutory damages4 ,it is intended that1 in cases involving this provision1 the burden of proof with respect to the defendant's good faith should rest on the plaintiff4 #c4 ,excerpts ,from ,conference ,report on ,section #ejd ,the following excerpts are reprinted from the ,report of the ,conference ,committee on the new copyright law 7,h4,r4 ,rep4 ,no4 #id-agcc1 pages #gi-hj74 ,,remedies ,,for ,,copyright ,,infringement ,senate bill ,chapter #e of the ,senate bill dealt with civil and criminal infringement of copyright and the remedies for both4 ,subsection 7c7 of section #ejd allowed statutory damages within a stated dollar range1 and clause 7#b7 of that subsection provided for situations in which the maximum could be exceeded and the minimum lowered2 the court was given discretion to reduce or remit statutory damages entirely where a teacher1 librarian1 or archivist believed that the infringing activity constituted fair use4999999 ,house bill ,section #ejd7;c77#b7 of the ,house bill required the court to remit statutory damages entirely in cases where a teacher1 librarian1 archivist1 or public broadcaster1 or the institution to which they belong1 infringed in the honest belief that what they were doing constituted fair use4999999 ,conference substitute ,the conference substitute adopts the ,house amendments with respect to statutory damages in section #ejd7;c77#b7999999 ---------------------------------------- ------------------------ ,f4 ,,guidelines ,,for ,,off-,,air ,,recording ,,of ,,broadcast ,,programming ,,for ,,educational ,,purposes ---------------------------------------- ------------------------ ,the following excerpts are reprinted from the ,house ,report on piracy and counterfeiting amendments 7,h4,r4 #ig-die1 pages #h-i74 ,in ,march #aigi1 ,congressman ,robert ,kastenmeier1 ,chairman of the ,house ,subcommittee on ,courts1 ,civil ,liberties and ,administration of ,justice1 appointed a ,negotiating ,committee consisting of representatives of educational organizations1 copyright proprietors1 and creative guilds and unions4 ,the following guidelines reflect the ,negotiating ,committee's consensus as to the application of fair use to the recording1 retention1 and use of television broadcast programs for educational purposes4 ,they specify periods of retention and use of such off-air recordings in classrooms and similar places devoted to instruction and for homebound instruction4 ,the purpose of establishing these guidelines is to provide standards for both owners and users of copyrighted television programs4 7#a7 ,the guidelines were developed to apply only to off-air recording by non-profit educational institutions4 7#b7 ,a broadcast program may be recorded off-air simultaneously with broadcast transmission 7including simultaneous cable transmission7 and retained by a non-profit educational institution for a period not to exceed the first forty-five 7#de7 consecutive calendar days after date of recording4 ,upon conclusion of such retention period1 all off-air recordings must be erased or destroyed immediately4 ,broadcast programs are television programs transmitted by television stations for reception by the general public without charge4 7#c7 ,off-air recordings may be used once by individual teachers in the course of relevant teaching activities1 and repeated once only when instructional reinforcement is necessary1 in classrooms and similar places devoted to instruction within a single building1 cluster1 or campus1 as well as in the homes of students receiving formalized home instruction1 during the first ten 7#aj7 consecutive school days in the forty-five 7#de7 day calendar day retention period4 ,school days are school session days--not counting weekends1 holidays1 vacations1 examination periods1 or other scheduled interruptions--within the forty-five 7#de7 calendar day retention period4 7#d7 ,off-air recordings may be made only at the request of1 and used by1 individual teachers1 and may not be regularly recorded in anticipation of requests4 ,no broadcast program may be recorded off-air more than once at the request of the same teacher1 regardless of the number of times the program may be broadcast4 7#e7 ,a limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines4 ,each such additional copy shall be subject to all provisions governing the original recording4 7#f7 ,after the first ten 7#aj7 consecutive school days1 off-air recording may be used up to the end of the forty-five 7#de7 calendar day retention period only for teacher evaluation purposes1 i4e41 to determine whether or not to include the broadcast program in the teaching curriculum1 and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization4 7#g7 ,off-air recordings need not be used in their entirety1 but the recorded programs may not be altered from their original content4 ,off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations4 7#h7 ,all copies of off-air recordings must include the copyright notice on the broadcast program as recorded4 7#i7 ,educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines4 -------- ,,endnotes3 #a ,corrected from ,congressional ,record4 #b ,editor's ,note3 ,as reprinted in the ,house ,report1 subsection ,a4#b of the ,music ,guidelines had consisted of two separate paragraphs1 one dealing with multiple copies and a second dealing with single copies4 ,in his introductory remarks during the ,house debates on ,s4#bb1 the ,chairman of the ,house ,judiciary ,subcommittee1 ,mr4 ,kastenmeier1 announced that the report1 as printed1 does not reflect a subsequent change in the joint guidelines which was described in a subsequent letter to me from a representative of the signatory organizations1 and provided the revised text of subsection ,a4#b4 7#abb ,,cong4 ,,rec4 ,h #ajhge1 ,sept4 #bb1 #aigf74 ,the text reprinted here is the revised text4 #c ,,note3 ,section #ejd was amended in subsection 7c7 by the ,act of ,october #ca1 #aihh1 ,pub4 ,l4 #ajj-efh1 #ajb ,stat4 #bhec1 #bhfj4 ---------------------------------------- -------------------------------- ,library of ,congress ,copyright ,office #aja ,independence ,avenue1 ,s4,e4 ,washington1 ,d4,c4 #bjeei-fjjj http3_/_/www4loc4gov_/copyright ,september #aiie - #bj1jjj ,,web ,,rev3 ,june 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