Copier/Copyright

Copier/Copyright

Reproduction of  Copyrighted Works  by Educators and  Librarians  Many educators and librarians ask about the fair use and photocopying provi sions of the copyright law. The Copyright Office cannot give legal advice or  offer opinions on what is permitted or prohibited. However, we have published  in this circular basic information on some of the most important legislative  provisions and other documents dealing with reproduction by librarians and  educators.  Also available is the 1983 Report of the Register of Copyrights on Library  Reproduction of Copyrighted Works (17 U.S.C. 108). The Report, seven appen dixes, and other related materials can be purchased from the National Technical  Information Service (NTIS), U.S. Department of Commerce, 5301 Shawnee Rd.,  Alexandria, VA 22312. Go to the NTIS website at www.ntis.gov. For further infor mation, call NTIS at 1-800-553-6847 or (703) 605-6000.  The 1988 five-year Report of the Register of Copyrights on Library Repro duction of Copyrighted Works is also available from NTIS. 

1. Introductory Note 

The Subjects Covered in This Booklet  The documentary materials collected in this circular deal with reproduction of  copyrighted works by educators, librarians, and archivists for a variety of uses,  including: 

• Reproduction for teaching in educational institutions at all levels and 
• Reproduction by libraries and archives for purposes of study, research, interlibrary exchanges, and archival preservation. 

The documents reprinted here are limited to materials dealing with reproduc tion. Under the copyright law, reproduction can take either of two forms: 

• The making of copies: by photocopying, making microform reproductions,  videotaping, or any other method of duplicating visually-perceptible  material and 
• The making of phonorecords: by duplicating sound recordings, taping off the  air, or any other method of recapturing sounds. 

The copyright law also contains various provisions dealing with importations,  performances, and displays of copyrighted works for educational and other  noncommercial purposes, but they are outside the scope of this circular. You  can view and download the statute from the Copyright Office website at  2  21.0814  www.loc.gov. To purchase a copy, go to http://bookstore.gpo.gov and search for Circular 92. For information about specific  provisions, write to:   Library of Congress  Copyright Office-COPUBS  101 Independence Avenue SE  Washington, DC 20559-6304  A Note on the Documents Reprinted  The documentary materials in this booklet are reprints or  excerpts from six sources:  1 The Copyright Act of October 19, 1976. This is the copy right law of the United States, effective January 1, 1978  (title 17 of the United States Code, Public Law 94-553, 90  Stat. 2541).  2 The Senate Report. This is the 1975 report of the Senate  Judiciary Committee on S. 22, the Senate version of the  bill that became the Copyright Act of 1976 (S. Rep. No.  94-473, 94th Cong., 1st Sess., November 20 (legislative day  November 18, 1975)).  3 The House Report. This is the 1976 report of the House  of Representatives Judiciary Committee on the House  amendments to the bill that became the Copyright Act of  1976 (H.R. Rep. No. 94-1476, 94th Cong., 2d Sess., Sep tember 3, 1976).  4 The Conference Report. This is the 1976 report of the  “committee of conference on the disagreeing votes of  the two Houses on the amendments of the House to the  bill (S. 22) for the general revision of the Copyright Law”  (H.R. Rep. No. 94-1733, 94th Cong., 2d Sess., September  29, 1976).  5 The Congressional Debates. This booklet contains  excerpts from the Congressional Record of September 22,  1976, reflecting statements on the floor of Congress at the  time the bill was passed by the House of Representatives  (122 Cong. Rec. H 10874-76, daily edition, September 22,  1976).  6 Copyright Office Regulations. These are regulations  issued by the Copyright Office under section 108 deal ing with warnings of copyright for use by libraries and  archives (37 Code of Federal Regulations §201.14).  Items 2 and 3 on this list—the 1975 Senate Report and  the 1976 House Report—present special problems. On many  points the language of these two reports is identical or closely  similar. However, the two reports were written at different  times, by committees of different Houses of Congress, on   Reproduction of Copyrighted Works · 2  somewhat different bills. As a result, the discussions on some  provisions of the bills vary widely, and on certain points they  disagree.  The disagreements between the Senate and House ver sions of the bill itself were resolved when the Act of 1976  was finally passed. However, many of the disagreements as  to matters of interpretation between statements in the 1975  Senate Report and in the 1976 House Report were left partly  or wholly unresolved. It is therefore difficult in compiling a  booklet such as this to decide in some cases what to include  and what to leave out.  The House Report was written later than the Senate  Report, and in many cases it adopted the language of the  Senate Report, updating it and conforming it to the version  of the bill that was finally enacted into law. Thus, where the  differences between the two Reports are relatively minor, or  where the discussion in the House Report appears to have  superseded the discussion of the same point in the Senate  Report, we have used the House Report as the source of our  documentation. In other cases we have included excerpts  from both discussions in an effort to present the legislative  history as fully and fairly as possible. Anyone making a thor ough study of the Act of 1976 as it affects librarians and edu cators should not rely exclusively on the excerpts reprinted  here but should go back to the primary documentary sources. 

1. Exclusive Rights in Copyrighted Works 1. Text of Section 106 

note: The following is a reprint of the entire text of section  106 of title 17, United States Code, as amended in 1995 and 2002. 

• 106 · Exclusive rights in copyrighted works Subject to sections 107 through 122, the owner of copyright  under this title has the exclusive rights to do and to authorize  any of the following:  

(1) to reproduce the copyrighted work in copies or  phonorecords;  (2) to prepare derivative works based upon the copyrighted  work;  (3) to distribute copies or phonorecords of the copyrighted  work to the public by sale or other transfer of ownership,  or by rental, lease, or lending;  (4) in the case of literary, musical, dramatic, and choreo graphic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted  work publicly;  (5) in the case of literary, musical, dramatic, and choreo graphic works, pantomimes, and pictorial, graphic, or  sculptural works, including the individual images of a  motion picture or other audiovisual work, to display the  copyrighted work publicly; and  (6)in the case of sound recordings, to perform the copy righted work publicly by means of a digital audio trans mission. 

2. Excerpts from House Report on Section 106 

note: The following excerpts are reprinted from the House  Report on the new copyright law (H.R. Rep. No. 94-1476, pages  61–62). The text of the corresponding Senate Report (S. Rep.  No. 94-473, pages 57–58) is substantially the same.  Section 106. Exclusive Rights in Copyrighted Works  General scope of copyright  The five fundamental rights that the bill gives to copyright  owners—the exclusive rights of reproduction, adaptation,  publication, performance, and display—are stated generally  in section 106. These exclusive rights, which comprise the so called “bundle of rights” that is a copyright, are cumulative  and may overlap in some cases. Each of the five enumerated  rights may be subdivided indefinitely and, as discussed below  in connection with section 201, each subdivision of an exclu sive right may be owned and enforced separately.  The approach of the bill is to set forth the copyright own er’s exclusive rights in broad terms in section 106, and then  to provide various limitations, qualifications, or exemptions  in the 12 sections that follow. Thus, everything in section 106  is made “subject to sections 107 through 118,” and must be  read in conjunction with those provisions.  * * *  Rights of reproduction, adaptation, and publication  The first three clauses of section 106, which cover all rights  under a copyright except those of performance and display,  extend to every kind of copyrighted work. The exclusive  rights encompassed by these clauses, though closely related,  are independent; they can generally be characterized as  rights of copying, recording, adaptation, and publishing. A  single act of infringement may violate all of these rights   Reproduction of Copyrighted Works · 3  at once, as where a publisher reproduces, adapts, and sells  copies of a person’s copyrighted work as part of a publishing  venture. Infringement takes place when any one of the rights  is violated: where, for example, a printer reproduces copies  without selling them or a retailer sells copies without having  anything to do with their reproduction. The references to  “copies or phonorecords,” although in the plural, are intended  here and throughout the bill to include the singular (1 U.S.C. §1).  Reproduction.—Read together with the relevant defini tions in section 101, the right “to reproduce the copyrighted  work in copies or phonorecords” means the right to pro duce a material object in which the work is duplicated,  transcribed, imitated, or simulated in a fixed form from  which it can be “perceived, reproduced, or otherwise com municated, either directly or with the aid of a machine or  device.” As under the present law, a copyrighted work would  be infringed by reproducing it in whole or in any substantial  part, and by duplicating it exactly or by imitation or simula tion. Wide departures or variations from the copyrighted  work would still be an infringement as long as the author’s  “expression” rather than merely the author’s “ideas” are taken.  An exception to this general principle, applicable to the  reproduction of copyrighted sound recordings, is specified  in section 114.  “Reproduction” under clause (1) of section 106 is to be  distinguished from “display” under clause (5). For a work to  be “reproduced,” its fixation in tangible form must be “suf ficiently permanent or stable to permit it to be perceived,  reproduced, or otherwise communicated for a period of  more than transitory duration.” Thus, the showing of images  on a screen or tube would not be a violation of clause (1),  although it might come within the scope of clause (5). 

1. Fair Use 
2. Text of Section 107 

note: The following is a reprint of the entire text of section  107 of title 17, United States Code as amended in 1990 and 1992. 

• 107 · Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106a,  the fair use of a copyrighted work, including such use by  reproduction in copies or phonorecords or by any other  means specified by that section, for purposes such as criti cism, comment, news reporting, teaching (including multiple  copies for classroom use), scholarship, or research, is not an  infringement of copyright. In determining whether the use 

made of a work in any particular case is a fair use the factors  to be considered shall include —   (1) the purpose and character of the use, including whether  such use is of a commercial nature or is for nonprofit  educational purposes;  (2) the nature of the copyrighted work;  (3) the amount and substantiality of the portion used in  relation to the copyrighted work as a whole; and  (4) the effect of the use upon the potential market for or  value of the copyrighted work.  The fact that a work is unpublished shall not itself bar a  finding of fair use if such finding is made upon consider ation of all the above factors. 

2. Excerpts from House Report on Section 107 

note: The following excerpts are reprinted from the House  Report on the new copyright law (H.R. Rep. No. 94-1476, pages  65–74). The discussion of section 107 appears at pages 61–67  of the Senate Report (S. Rep. No. 94-473). The text of this sec tion of the Senate Report is not reprinted in this booklet, but  similarities and differences between the House and Senate  Reports on particular points will be noted below. 

1. House Report: Introductory Discussion on Section 107 

note: The first two paragraphs in this portion of the House  Report are closely similar to the Senate Report. The remainder  of the passage differs substantially in the two Reports.  Section 107. Fair Use  General background of the problem  The judicial doctrine of fair use, one of the most important  and well-established limitations on the exclusive right of  copyright owners, would be given express statutory rec ognition for the first time in section 107. The claim that  a defendant’s acts constituted a fair use rather than an  infringement has been raised as a defense in innumerable  copyright actions over the years, and there is ample case law  recognizing the existence of the doctrine and applying it.  The examples enumerated at page 24 of the Register’s 1961  Report, while by no means exhaustive, give some idea of the  sort of activities the courts might regard as fair use under the  circumstances: “quotation of excerpts in a review or criticism  Reproduction of Copyrighted Works · 4  for purposes of illustration or comment; quotation of short  passages in a scholarly or technical work, for illustration or  clarification of the author’s observations; use in a parody of   some of the content of the work parodied; summary of an  address or article, with brief quotations, in a news report;  reproduction by a library of a portion of a work to replace   part of a damaged copy; reproduction by a teacher or stu dent of a small part of a work to illustrate a lesson; repro duction of a work in legislative or judicial proceedings or  reports; incidental and fortuitous reproduction, in a newsreel   or broadcast, of a work located in the scene of an event being  reported.”  Although the courts have considered and ruled upon the  fair use doctrine over and over again, no real definition of  the concept has ever emerged. Indeed, since the doctrine is  an equitable rule of reason, no generally applicable defini tion is possible, and each case raising the question must be  decided on its own facts. On the other hand, the courts have  evolved a set of criteria which, though in no case defini tive or determinative, provide some gauge for balancing  the equities. These criteria have been stated in various ways,  but essentially they can all be reduced to the four standards  which have been adopted in section 107: “(1) the purpose and  character of the use, including whether such use is of a com mercial nature or is for non-profit educational purposes; (2)  the nature of the copyrighted work; (3) the amount and sub stantiality of the portion used in relation to the copyrighted  work as a whole; and (4) the effect of the use upon the poten tial market for or value of the copyrighted work.”  These criteria are relevant in determining whether the  basic doctrine of fair use, as stated in the first sentence of  section 107, applies in a particular case: “Notwithstanding  the provisions of section 106, the fair use of a copyrighted  work, including such use by reproduction in copies or  phonorecords or by any other means specified by that sec tion, for purposes such as criticism, comment, news report ing, teaching (including multiple copies for classroom use),  scholarship, or research, is not an infringement of copyright.”  The specific wording of section 107 as it now stands is  the result of a process of accretion, resulting from the long  controversy over the related problems of fair use and the  reproduction (mostly by photocopying) of copyrighted  material for educational and scholarly purposes. For exam ple, the reference to fair use “by reproduction in copies or  phonorecords or by any other means” is mainly intended  to make clear that the doctrine has as much application to  photocopying and taping as to older forms of use; it is not  intended to give these kinds of reproduction any special  status under the fair use provision or to sanction any repro duction beyond the normal and reasonable limits of fair use.  Similarly, the newly-added reference to “multiple copies for  classroom use” is a recognition that, under the proper cir cumstances of fairness, the doctrine can be applied to repro ductions of multiple copies for the members of a class.  The Committee has amended the first of the criteria to  be considered—“the purpose and character of the use”— to state explicitly that this factor includes a consideration  of “whether such use is of a commercial nature or is for  non-profit educational purposes.” This amendment is not  intended to be interpreted as any sort of not-for-profit  limitation on educational uses of copyrighted works. It is  an express recognition that, as under the present law, the  commercial or non-profit character of an activity, while  not conclusive with respect to fair use, can and should be  weighed along with other factors in fair use decisions.  General intention behind the provision  The statement of the fair use doctrine in section 107 offers  some guidance to users in determining when the principles  of the doctrine apply. However, the endless variety of situa tions and combinations of circumstances that can rise in par ticular cases precludes the formulation of exact rules in the  statute. The bill endorses the purpose and general scope of  the judicial doctrine of fair use, but there is no disposition to  freeze the doctrine in the statute, especially during a period  of rapid technological change. Beyond a very broad statu tory explanation of what fair use is and some of the criteria  applicable to it, the courts must be free to adapt the doctrine  to particular situations on a case-by-case basis. Section 107  is intended to restate the present judicial doctrine of fair use,  not to change, narrow, or enlarge it in any way. 

1. House Report: Statement of Intention as to  Classroom Reproduction 

note: The House Report differs substantially from the Senate  Report on this point.  (i) Introductory Statement  Intention as to classroom reproduction  Although the works and uses to which the doctrine of fair  use is applicable are as broad as the copyright law itself, most  of the discussion of section 107 has centered around ques tions of classroom reproduction, particularly photocopying.  The arguments on the question are summarized at pp. 30–31  of this Committee’s 1967 report (H.R. Rep. No. 83, 90th  Cong., 1st Sess.), and have not changed materially in the  intervening years.  Reproduction of Copyrighted Works · 5  The Committee also adheres to its earlier conclusion, that  “a specific exemption freeing certain reproductions of copy righted works for educational and scholarly purposes from  copyright control is not justified.” At the same time the Com mittee recognizes, as it did in 1967, that there is a “need for  greater certainty and protection for teachers.” In an effort to  meet this need the Committee has not only adopted further  amendments to section 107, but has also amended section  504(c) to provide innocent teachers and other non-profit  users of copyrighted material with broad insulation against  unwarranted liability for infringement. The latter amend ments are discussed below in connection with Chapter 5 of  the bill.  In 1967 the Committee also sought to approach this prob lem by including, in its report, a very thorough discussion of  “the considerations lying behind the four criteria listed in the   amended section 107, in the context of typical classroom sit uations arising today.” This discussion appeared on pp. 32–35  of the 1967 report, and with some changes has been retained  in the Senate report on S. 22 (S. Rep. No. 94-473, pp. 63–65).   The Committee has reviewed this discussion, and considers  that it still has value as an analysis of various aspects of the  problem.  At the Judiciary Subcommittee hearings in June 1975,  Chairman Kastenmeier and other members urged the par ties to meet together independently in an effort to achieve a  meeting of the minds as to permissible educational uses of  copyrighted material. The response to these suggestions was  positive, and a number of meetings of three groups, dealing  respectively with classroom, reproduction of printed mate rial, music, and audio-visual material, were held beginning  in September 1975.  (ii) Guidelines with Respect to Books and Periodicals In a joint letter to Chairman Kastenmeier, dated March 19,  1976, the representatives of the Ad Hoc Committee of Edu cational Institutions and Organizations on Copyright Law  Revision, and of the Authors League of America, Inc., and  the Association of American Publishers, Inc., stated:  You may remember that in our letter of March 8, 1976 we  told you that the negotiating teams representing authors  and publishers and the Ad Hoc Group had reached tenta tive agreement on guidelines to insert in the Committee   Report covering educational copying from books and  periodicals under Section 107 of H.R. 2223 and S. 22, and  that as part of that tentative agreement each side would  accept the amendments to Sections 107 and 504 which  were adopted by your Subcommittee on March 3, 1976. We are now happy to tell you that the agreement has  been approved by the principals and we enclose a copy  herewith. We had originally intended to translate the  agreement into language suitable for inclusion in the  legislative report dealing with Section 107, but we have  since been advised by committee staff that this will not be  necessary.  As stated above, the agreement refers only to copying from  books and periodicals, and it is not intended to apply to  musical or audiovisual works.  The full text of the agreement is as follows:  Agreement on Guidelines for Classroom Copying  in Not-For-Profit Educational Institutions   with respect to books and periodicals  The purpose of the following guidelines is to state the mini mum and not the maximum standards of educational fair  use under Section 107 of H.R. 2223. The parties agree that  the conditions determining the extent of permissible copy  ing for educational purposes may change in the future; that  certain types of copying permitted under these guidelines  may not be permissible in the future; and conversely that in  the future other types of copying not permitted under these  guidelines may be permissible under revised guidelines.  Moreover, the following statement of guidelines is not  intended to limit the types of copying permitted under the  standards of fair use under judicial decision and which are  stated in Section 107 of the Copyright Revision Bill. There  may be instances in which copying which does not fall  within the guidelines stated below may nonetheless be per mitted under the criteria of fair use.  Guidelines 

1. Single Copying for Teachers 

A single copy may be made of any of the following by or  for a teacher at his or her individual request for his or her  scholarly research or use in teaching or preparation to teach  a class:  a A chapter from a book  b An article from a periodical or newspaper  c A short story, short essay or short poem, whether or  not from a collective work  d A chart, graph, diagram, drawing, cartoon or  picture from a book, periodical, or newspaper  Reproduction of Copyrighted Works · 6 

1. Multiple Copies for Classroom Use 

Multiple copies (not to exceed in any event more than one  copy per pupil in a course) may be made by or for the  teacher giving the course for classroom use or discussion;  provided that:  a The copying meets the tests of brevity and sponta neity as defined below and,  b Meets the cumulative effect test as defined below  and,  c Each copy includes a notice of copyright  Definitions  Brevity  i Poetry: (a) A complete poem if less than 250 words and if  printed on not more than two pages or, (b) from a longer  poem, an excerpt of not more than 250 words.  ii Prose: (a) Either a complete article, story or essay of less  than 2,500 words, or (b) an excerpt from any prose work  of not more than 1,000 words or 10% of the work, which ever is less, but in any event a minimum of 500 words.  [Each of the numerical limits stated in “i” and “ii” above  may be expanded to permit the completion of an unfin ished line of a poem or of an unfinished prose paragraph.]  iii Illustration: One chart, graph, diagram, drawing, cartoon  or picture per book or per periodical issue.  iv“Special” works: Certain works in poetry, prose or in “poetic  prose” which often combine language with illustrations  and which are intended sometimes for children and at   other times for a more general audience fall short of 2,500  words in their entirety. Paragraph “ii” above notwith standing such “special works” may not be reproduced in  their entirety; however, an excerpt comprising not more  than two of the published pages of such special work and  containing not more than ten percent of the words found  in the text thereof, may be reproduced.  Spontaneity  i The copying is at the instance and inspiration of  the individual teacher, and  ii The inspiration and decision to use the work and the  moment of its use for maximum teaching effectiveness  are so close in time that it would be unreasonable to  expect a timely reply to a request for permission. Cumulative Effect  i The copying of the material is for only one course in the  school in which the copies are made.  ii Not more than one short poem, article, story, essay or two  excerpts may be copied from the same author, nor more  than three from the same collective work or periodical  volume during one class term.  iii There shall not be more than nine instances of such mul tiple copying for one course during one class term.  [The limitations stated in “ii” and “iii” above shall not  apply to current news periodicals and newspapers and  current news sections of other periodicals.]  III. Prohibitions as to I and II Above  Notwithstanding any of the above, the following shall be  prohibited:  a Copying shall not be used to create or to replace or sub stitute for anthologies, compilations or collective works.  Such replacement or substitution may occur whether  copies of various works or excerpts therefrom are accu mulated or reproduced and used separately.  b There shall be no copying of or from works intended to  be “consumable” in the course of study or of teaching.  These include workbooks, exercises, standardized tests   and test booklets and answer sheets and like consumable  material.  c Copying shall not:  a substitute for the purchase of books, publishers’  reprints or periodicals;  b be directed by higher authority;  c be repeated with respect to the same item by the  same teacher from term to term.  d No charge shall be made to the student beyond the actual  cost of the photocopying.  Agreed March 19, 1976.  Ad Hoc Committee on Copyright Law Revision: By Sheldon Elliott Steinbach.  Author-Publisher Group:  Authors League of America:   By Irwin Karp, Counsel.  Association of American Publishers, Inc.:  By Alexander C. Hoffman,   Chairman, Copyright Committee.  Reproduction of Copyrighted Works · 7  (iii) Guidelines with Respect to Music  In a joint letter dated April 30, 1976, representatives of the  Music Publishers’ Association of the United States, Inc., the  National Music Publishers’ Association, Inc., the Music  Teachers National Association, the Music Educators National  Conference, the National Association of Schools of Music,  and the Ad Hoc Committee on Copyright Law Revision,  wrote to Chairman Kastenmeier as follows:  During the hearings on H.R. 2223 in June 1975, you and  several of your subcommittee members suggested that  concerned groups should work together in developing  guidelines which would be helpful to clarify Section 107  of the bill.  Representatives of music educators and music publish ers delayed their meetings until guidelines had been  developed relative to books and periodicals. Shortly after  that work was completed and those guidelines were  forwarded to your subcommittee, representatives of the  undersigned music organizations met together with rep resentatives of the Ad Hoc Committee on Copyright Law  Revision to draft guidelines relative to music.  We are very pleased to inform you that the discussions  thus have been fruitful on the guidelines which have been  developed. Since private music teachers are an important  factor in music education, due consideration has been   given to the concerns of that group.  We trust that this will be helpful in the report on the  bill to clarify Fair Use as it applies to music.  The text of the guidelines accompanying this letter is as follows:  Guidelines for Educational Uses of Music  The purpose of the following guidelines is to state the mini mum and not the maximum standards of educational fair  use under Section 107 of H.R. 2223. The parties agree that  the conditions determining the extent of permissible copy  ing for educational purposes may change in the future; that  certain types of copying permitted under these guidelines  may not be permissible in the future, and conversely that in  the future other types of copying not permitted under these  guidelines may be permissible under revised guidelines.  Moreover, the following statement of guidelines is not  intended to limit the types of copying permitted under the  standards of fair use under judicial decision and which are  stated in Section 107 of the Copyright Revision Bill. There  may be instances in which copying which does not fall  within the guidelines stated below may nonetheless be per mitted under the criteria of fair use. a Permissible Uses  1 Emergency copying to replace purchased copies which  for any reason are not available for an imminent per formance provided purchased replacement copies shall  be substituted in due course.  2 For academic purposes other than performance, single  or multiple copies of excerpts of works may be made,  provided that the excerpts do not comprise a part of  the whole which would constitute a performable unit  such as a section¹, movement or aria, but in no case  more than 10 percent of the whole work. The number  of copies shall not exceed one copy per pupil.²  3 Printed copies which have been purchased may be  edited or simplified provided that the fundamental  character of the work is not distorted or the lyrics, if  any, altered or lyrics added if none exist.  4 A single copy of recordings of performances by students  may be made for evaluation or rehearsal purposes and  may be retained by the educational institution or indi vidual teacher.  5 A single copy of a sound recording (such as a tape, disc,  or cassette) of copyrighted music may be made from  sound recordings owned by an educational institu tion or an individual teacher for the purpose of con structing aural exercises or examinations and may be  retained by the educational institution or individual  teacher. (This pertains only to the copyright of the  music itself and not to any copyright which may exist  in the sound recording.)  b Prohibitions  1 Copying to create or replace or substitute for antholo gies, compilations or collective works.  2 Copying of or from works intended to he “consumable”  in the course of study or of teaching such as work books, exercises, standardized tests and answer sheets  and like material.  3 Copying for the purpose of performance, except as in  A(1) above.  4 Copying for the purpose of substituting for the pur chase of music, except as in A(1) and A(2) above.  5 Copying without inclusion of the copyright notice  which appears on the printed copy.  Reproduction of Copyrighted Works · 8  (iv) Discussion of Guidelines  The Committee appreciates and commends the efforts and  the cooperative and reasonable spirit of the parties who  achieved the agreed guidelines on books and periodicals  and on music. Representatives of the American Association  of University Professors and of the Association of American  Law Schools have written to the Committee strongly criti cizing the guidelines, particularly with respect to multiple  copying, as being too restrictive with respect to classroom  situations at the university and graduate level. However, the  Committee notes that the Ad Hoc group did include rep resentatives of higher education, that the stated “purpose  of the … guidelines is to state the minimum and not the  maximum standards of educational fair use” and that the  agreement acknowledges “there may be instances in which  copying which does not fall within the guidelines … may  nonetheless be permitted under the criteria of fair use.”  The Committee believes the guidelines are a reasonable  interpretation of the minimum standards of fair use. Teach ers will know that copying within the guidelines is fair use.  Thus, the guidelines serve the purpose of fulfilling the need  for greater certainty and protection for teachers. The Com mittee expresses the hope that if there are areas where stan dards other than these guidelines may be appropriate, the  parties will continue their efforts to provide additional spe cific guidelines in the same spirit of good will and give and  take that has marked the discussion of this subject in recent  months. 

1. House Report: Additional Excerpts 

note: Under the heading “Reproduction and uses for other  purposes,” the House Report, at pages 72–74, parallels much of  the material appearing at pages 65–67 of the Senate Report  under the same heading, but with some differences.  The concentrated attention given the fair use provision in the  context of classroom teaching activities should not obscure  its application in other areas. It must be emphasized again  that the same general standards of fair use are applicable to  all kinds of uses of copyrighted material, although the rela tive weight to be given them will differ from case to case.  * * *  A problem of particular urgency is that of preserving for  posterity prints of motion pictures made before 1942. Aside  from the deplorable fact that in a great many cases the only  existing copy of a film has been deliberately destroyed, those  that remain are in immediate danger of disintegration; they  were printed on film stock with a nitrate base that will inevi tably decompose in time. The efforts of the Library of Con gress, the American Film Institute, and other organizations  to rescue and preserve this irreplaceable contribution to our   cultural life are to be applauded, and the making of duplicate  copies for purposes of archival preservation certainly falls  within the scope of “fair use.”  * * *  During the consideration of the revision bill in the 94th  Congress it was proposed that independent newsletters, as  distinguished from house organs and publicity or advertising  publications, be given separate treatment. It is argued that  newsletters are particularly vulnerable to mass photocopy ing, and that most newsletters have fairly modest circulations.  Whether the copying of portions of a newsletter is an act of  infringement or a fair use will necessarily turn on the facts  of the individual case. However, as a general principle, it  seems clear that the scope of the fair use doctrine should be  considerably narrower in the case of newsletters than in that  of either mass-circulation periodicals or scientific journals.  The commercial nature of the user is a significant factor in  such cases: Copying by a profit-making user of even a small  portion of a newsletter may have a significant impact on the  commercial market for the work.  The Committee has examined the use of excerpts from  copyrighted works in the art work of calligraphers. The  committee believes that a single copy reproduction of an  excerpt from a copyrighted work by a calligrapher for a  single client does not represent an infringement of copyright.  Likewise, a single reproduction of excerpts from a copy righted work by a student calligrapher or teacher in a learn ing situation would be a fair use of the copyrighted work.  The Register of Copyrights has recommended that the  committee report describe the relationship between this sec tion and the provisions of section 108 relating to reproduc tion by libraries and archives. The doctrine of fair use applies  to library photocopying, and nothing contained in section  108 “in any way affects the right of fair use.” No provision of  section 108 is intended to take away any rights existing under  the fair use doctrine. To the contrary, section 108 authorizes  certain photocopying practices which may not qualify as a  fair use.  The criteria of fair use are necessarily set forth in general  terms. In the application of the criteria of fair use to specific  photocopying practices of libraries, it is the intent of this  legislation to provide an appropriate balancing of the rights  of creators, and the needs of users.  Reproduction of Copyrighted Works · 9 

3. Excerpts from Conference Report on Section 107 

note: The following excerpt is reprinted from the Report of  the Conference Committee on the new copyright law (H.R. Rep. No. 94-1733, page 70).  Fair Use  Senate bill  The Senate bill, in section 107, embodied express statutory  recognition of the judicial doctrine that the fair use of a  copyrighted work is not an infringement of copyright. It set  forth the fair use doctrine, including four criteria for deter mining its applicability in particular cases, in general terms.  House bill  The House bill amended section 107 in two respects: in the  general statement of the fair use doctrine it added a specific  reference to multiple copies for classroom use, and it ampli fied the statement of the first of the criteria to be used in  judging fair use (the purpose and character of the use) by  referring to the commercial nature or nonprofit educational  purpose of the use.  Conference substitute  The conference substitute adopts the House amendments.  The conferees accept as part of their understanding of fair  use the “Guidelines for Classroom Copying in Not-for Profit Educational Institutions” with respect to books and  periodicals appearing at pp. 68–70 of the House Report (H. Rept. No. 94-1476, as corrected at p. H 10727 of the Congres sional Record for September 21, 1976), and for educational  uses of music appearing at pp. 70–71 of the House report, as  amended in the statement appearing at p. H 10875 of the  Congressional Record of September 22, 1976. The conferees  also endorse the statement concerning the meaning of the  word “teacher” in the guidelines for books and periodicals,  and the application of fair use in the case of use of television  programs within the confines of a nonprofit educational  institution for the deaf and hearing impaired, both of which  appear on p. H 10875 of the Congressional Record of Septem ber 22, 1976. 

4. Excerpts from Congressional Debates 

note: The following excerpts are reprinted from the Congres sional Record of September 22, 1976, including statements by  Mr. Kastenmeier (Chairman of the House Judiciary Subco mittee responsible for the bill) on the floor of the House of  Representatives.  Mr. Kastenmeier …Mr. Chairman, before concluding  my remarks I would like to discuss several questions which  have been raised concerning the meaning of several provi sions of S. 22 as reported by the House Judiciary Committee  and of statements in the committee’s report, No. 94-1476.  * * *  Another question involves the reference to “teacher” in  the “Agreement on Guidelines for Classroom Copying in  Not-for-Profit Educational Institutions” reproduced at pages  68–70 of the committee’s report No. 94-1476 in connection  with section 107. It has been pointed out that, in planning his  or her teaching on a day-to-day basis in a variety of educa tional situations, an individual teacher will commonly con sult with instructional specialists on the staff of the school,  such as reading specialists, curriculum specialists, audio visual directors, guidance counselors, and the like. As long  as the copying meets all of the other criteria laid out in the  guidelines, including the requirements for spontaneity and  the prohibition against the copying being directed by higher  authority, the committee regards the concept of “teacher” as  broad enough to include instructional specialists working in  consultation with actual instructors.  Also in consultation with section 107, the committee’s  attention has been directed to the unique educational needs  and problems of the approximately 50,000 deaf and hearing impaired students in the United States, and the inadequacy  of both public and commercial television to serve their edu cational needs. It has been suggested that, as long as clear-cut  constraints are imposed and enforced, the doctrine of fair  use is broad enough to permit the making of an off-the-air  fixation of a television program within a nonprofit edu cational institution for the deaf and hearing impaired, the  reproduction of a master and a work copy of a captioned  version of the original fixation, and the performance of the  program from the work copy within the confines of the  institution. In identifying the constraints that would have to  be imposed within an institution in order for these activities  to be considered as fair use, it has been suggested that the  purpose of the use would have to be noncommercial in every  respect, and educational in the sense that it serves as part of  a deaf or hearing-impaired student’s learning environment  within the institution, and that the institution would have to  insure that the master and work copy would remain in the  hands of a limited number of authorized personnel within  the institution, would be responsible for assuring against   Reproduction of Copyrighted Works · 10  its unauthorized reproduction or distribution, or its per formance or retention for other than educational purposes  within the institution. Work copies of captioned programs  could be shared among institutions for the deaf abiding by  the constraints specified. Assuming that these constraints are  both imposed and enforced, and that no other factors inter vene to render the use unfair, the committee believes that the  activities described could reasonably be considered fair use  under section 107.  * * *  Mr. Chairman, because of the complexity of this bill and  the delicate balances which it creates among competing eco nomic interests, the committee will resist extensive amend ment of this bill. On behalf of the committee I would urge all  of my colleagues to vote favorably on S. 22.  Mr. Skubitz. Mr. Chairman, will the gentleman yield? Mr. Kastenmeier. I am happy to yield to my friend, the  gentleman from Kansas.  Mr. Skubitz. Mr. Chairman, I thank my friend, the gen tleman from Wisconsin, for yielding.  Mr. Chairman, I have received a great deal of mail from  the schoolteachers in my district who are particularly con cerned about section 107—fair use—the fair use of copy righted material. Having been a former schoolteacher myself,  I believe they make a good point and there is a sincere fear  on their part that, because of the vagueness or ambiguity in  the bill’s treatment of the doctrine of fair use, they may sub ject themselves to liability for an unintentional infringement  of copyright when all they were trying to do was the job for  which they were trained.  The vast majority of teachers in this country would not  knowingly infringe upon a person’s copyright, but, as any  teacher can appreciate, there are times when information  is needed and is available, but it may be literally impossible  to locate the right person to approve the use of that mate rial and the purchase of such would not be feasible and, in  the meantime, the teacher may have lost that “teachable  moment.”  Did the subcommittee take these problems into consider ation and did they do anything to try and help the teachers  to better understand section 107?  Have the teachers been protected by this section 107? Mr. Kastenmeier. Mr. Chairman, in response to the  gentleman’s question and his observations preceding the  question, I would say, indeed they have.  Over the years this has been one of the most difficult  questions. It is a problem that I believe has been very success fully resolved. Section 107 on “Fair Use” has, of course, restated four  standards, and these standards are, namely: The purpose and  character of the use of the material; the nature of the copy righted work; the amount and substantiality of the portion  used in relation to the copyrighted work as a whole; and the  effect of the use upon the potential market for or value of  the copyrighted work.  These are the four “Fair Use” criteria. These alone were  not adequate to guide teachers, and I am sure the gentleman  from Kansas (Mr. Skubitz) understands that as a school teacher himself.  Therefore, the educators, the proprietors, and the pub lishers of educational materials did, at the committee’s long  insistence, get together. While there were many fruitless  meetings, they did finally get together.  Mr. Chairman, I will draw the gentleman’s attention to  pages 65 through 74 in the report which contain extensive  guidelines for teachers. I am very happy to say that there was  an agreement reached between teachers and publishers of  educational material, and that today the National Education  Association supports the bill, and it has, in fact, sent a tele gram which at the appropriate time I will make a part of the  Record and which requests support for the bill in its present  form, believing that it has satisfied the needs of the teachers:  National Education Association  Washington, D.C., September 10, 1976.  National Education Association urgently requests your  support of the Copyright Revision bill, H.R. 2223, as  reported by the Judiciary Committee. This compromise  effort represents a major breakthrough in establishing  equitable legal guidelines for the use of copyright materi als for instructional and research purposes. We ask your  support of the committee bill without amendments.  James W. Green  Assistant Director for Legislation.  Mr. Skubitz. Mr. Chairman, if the gentleman will yield  further, then the NEA is satisfied with the language in the bill  as it now stands; is that correct?  Mr. Kastenmeier. The gentleman is correct.  Mr. Skubitz. Mr. Chairman, I thank the gentleman.  Reproduction of Copyrighted Works · 11 

1. Reproduction by Libraries and Archives 1. Text of Section 108 

note: The following is a reprint of the entire text of section 108  of title 17, United States Code as amended in 1992, 1998, and 2005. 

• 108 · Limitations on exclusive rights:  

Reproduction by libraries and archives  (a) Except as otherwise provided in this title and not withstanding the provisions of section 106, it is not  an infringement of copyright for a library or archives,  or any of its employees acting within the scope of  their employment, to reproduce no more than one  copy or phonorecord of a work, except as provided in  subsections (b) and (c), or to distribute such copy or  phonorecord, under the conditions specified by this  section, if —   (1) the reproduction or distribution is made without any  purpose of direct or indirect commercial advantage;  (2) the collections of the library or archives are (i) open  to the public, or (ii) available not only to researchers  affiliated with the library or archives or with the insti tution of which it is a part, but also to other persons  doing research in a specialized field; and  (3) the reproduction or distribution of the work includes  a notice of copyright that appears on the copy or  phonorecord that is reproduced under the provisions  of this section, or includes a legend stating that the  work may be protected by copyright if no such notice  can be found on the copy or phonorecord that is  reproduced under the provisions of this section.  (b) The rights of reproduction and distribution under this  section apply to three copies or phonorecords of an  unpublished work duplicated solely for purposes of   preservation and security or for deposit for research use  in another library or archives of the type described by  clause (2) of subsection (a), if —   (1) the copy or phonorecord reproduced is currently in  the collections of the library or archives; and  (2) any such copy or phonorecord that is reproduced  in digital format is not otherwise distributed in that  format and is not made available to the public in that  format outside the premises of the library or archives.  (c) The right of reproduction under this section applies to  three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a  copy or phonorecord that is damaged, deteriorating, lost,  or stolen, or if the existing format in which the work is  stored has become obsolete, if —   (1) the library or archives has, after a reasonable effort,  determined that an unused replacement cannot be  obtained at a fair price; and  (2) any such copy or phonorecord that is reproduced  in digital format is not made available to the public  in that format outside the premises of the library or  archives in lawful possession of such copy.  For purposes of this subsection, a format shall be consid ered obsolete if the machine or device necessary to render  perceptible a work stored in that format is no longer manu factured or is no longer reasonably available in the commer cial marketplace.  (d) The rights of reproduction and distribution under this  section apply to a copy, made from the collection of  a library or archives where the user makes his or her   request or from that of another library or archives, of  no more than one article or other contribution to a  copyrighted collection or periodical issue, or to a copy  or phonorecord of a small part of any other copyrighted  work, if —   (1) the copy or phonorecord becomes the property of  the user, and the library or archives has had no notice  that the copy or phonorecord would be used for any  purpose other than private study, scholarship, or  research; and  (2) the library or archives displays prominently, at the  place where orders are accepted, and includes on its  order form, a warning of copyright in accordance  with requirements that the Register of Copyrights  shall prescribe by regulation.  (e) The rights of reproduction and distribution under this  section apply to the entire work, or to a substantial part  of it, made from the collection of a library or archives  where the user makes his or her request or from that of  another library or archives, if the library or archives has  first determined, on the basis of a reasonable investiga tion, that a copy or phonorecord of the copyrighted  work cannot be obtained at a fair price, if —   (1) the copy or phonorecord becomes the property of  the user, and the library or archives has had no notice  that the copy or phonorecord would be used for any  purpose other than private study, scholarship, or  research; and  Reproduction of Copyrighted Works · 12  (2) the library or archives displays prominently, at the  place where orders are accepted, and includes on its  order form, a warning of copyright in accordance  with requirements that the Register of Copyrights  shall prescribe by regulation.  (f) Nothing in this section —   (1) shall be construed to impose liability for copy right infringement upon a library or archives or its  employees for the unsupervised use of reproducing  equipment located on its premises: Provided, That  such equipment displays a notice that the making of  a copy may be subject to the copyright law;  (2) excuses a person who uses such reproducing equip ment or who requests a copy or phonorecord under  subsection (d) from liability for copyright infringe ment for any such act, or for any later use of such  copy or phonorecord, if it exceeds fair use as pro vided by section 107;  (3) shall be construed to limit the reproduction and  distribution by lending of a limited number of copies  and excerpts by a library or archives of an audiovisual  news program, subject to clauses (1), (2), and (3) of  subsection (a); or  (4) in any way affects the right of fair use as provided by  section 107, or any contractual obligations assumed at  any time by the library or archives when it obtained a  copy or phonorecord of a work in its collections.  (g) The rights of reproduction and distribution under this  section extend to the isolated and unrelated reproduc tion or distribution of a single copy or phonorecord  of the same material on separate occasions, but do  not extend to cases where the library or archives, or its  employee —   (1) is aware or has substantial reason to believe that it is  engaging in the related or concerted reproduction  or distribution of multiple copies or phonorecords  of the same material, whether made on one occa sion or over a period of time, and whether intended  for aggregate use by one or more individuals or for  separate use by the individual members of a group; or  (2) engages in the systematic reproduction or distribu tion of single or multiple copies or phonorecords of  material described in subsection (d): Provided, That  nothing in this clause prevents a library or archives  from participating in interlibrary arrangements that  do not have, as their purpose or effect, that the library  or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as  to substitute for a subscription to or purchase of such  work.  (h)(1) For purposes of this section, during the last 20 years  of any term of copyright of a published work, a  library or archives, including a nonprofit educational  institution that functions as such, may reproduce,  distribute, display, or perform in facsimile or digital  form a copy or phonorecord of such work, or por tions thereof, for purposes of preservation, scholar ship, or research, if such library or archives has first  determined, on the basis of a reasonable investigation,  that none of the conditions set forth in subpara graphs (A), (B), and (C) of paragraph (2) apply.  (2) No reproduction, distribution, display, or perfor mance is authorized under this subsection if —  (a) the work is subject to normal commercial  exploitation;  (b) a copy or phonorecord of the work can be  obtained at a reasonable price; or  (c) the copyright owner or its agent provides  notice pursuant to regulations promulgated   by the Register of Copyrights that either of the  conditions set forth in subparagraphs (A) and  (B) applies.  (3) The exemption provided in this subsection does not  apply to any subsequent uses by users other than such  library or archives.  (i) The rights of reproduction and distribution under  this section do not apply to a musical work, a picto rial, graphic or sculptural work, or a motion picture or  other audiovisual work other than an audiovisual work  dealing with news, except that no such limitation shall  apply with respect to rights granted by subsections (b),  (c), and (h), or with respect to pictorial or graphic works  published as illustrations, diagrams, or similar adjuncts  to works of which copies are reproduced or distributed  in accordance with subsections (d) and (e). 

2. Excerpts from Senate Report on Section 108 

note: The following excerpts are reprinted from the 1975  Senate Report on the new copyright law (S. Rep. No. 94-473,  pages 67–71). Where the discussions of particular points are  generally similar in the two Reports, the passages from the  later House Report are reprinted in this booklet. Where the  discussion of particular points is substantially different, pas sages from both Reports are reprinted.  Reproduction of Copyrighted Works · 13 

1. Senate Report: Discussion of Libraries and Archives  in Profit-Making Institutions 

The limitation of section 108 to reproduction and distribu tion by libraries and archives “without any purpose of direct  or indirect commercial advantage” is intended to preclude  a library or archives in a profit-making organization from  providing photocopies of copyrighted materials to employ ees engaged in furtherance of the organization’s commercial  enterprise, unless such copying qualifies as a fair use, or the  organization has obtained the necessary copyright licenses.  A commercial organization should purchase the number of  copies of a work that it requires, or obtain the consent of the  copyright owner to the making of the photocopies. 

1. Senate Report: Discussion of Multiple Copies  and Systematic Reproduction 

Multiple copies and systematic reproduction  Subsection (g) provides that the rights granted by this section  extend only to the “isolated and unrelated reproduction of a  single copy,” but this section does not authorize the related or  concerted reproduction of multiple copies of the same mate rial whether made on one occasion or over a period of time,  and whether intended for aggregate use by one individual or  for separate use by the individual members of a group. For  example, if a college professor instructs his class to read an  article from a copyrighted journal, the school library would  not be permitted, under subsection (g), to reproduce copies  of the article for the members of the class.  Subsection (g) also provides that section 108 does not  authorize the systematic reproduction or distribution of  copies or phonorecords of articles or other contributions to  copyrighted collections or periodicals or of small parts of  other copyrighted works whether or not multiple copies are  reproduced or distributed. Systematic reproduction or dis tribution occurs when a library makes copies of such mate rials available to other libraries or to groups of users under  formal or informal arrangements whose purpose or effect is  to have the reproducing library serve as their source of such  material. Such systematic reproduction and distribution, as  distinguished from isolated and unrelated reproduction or  distribution, may substitute the copies reproduced by the  source library for subscriptions or reprints or other copies  which the receiving libraries or users might otherwise have  purchased for themselves, from the publisher or the licensed  reproducing agencies.  While it is not possible to formulate specific definitions of  “systematic copying,” the following examples serve to illus trate some of the copying prohibited by subsection (g). 1 A library with a collection of journals in biology informs  other libraries with similar collections that it will main tain and build its own collection and will make copies   of articles from these journals available to them and  their patrons on request. Accordingly, the other libraries  discontinue or refrain from purchasing subscriptions to  these journals and fulfill their patrons’ requests for articles  by obtaining photocopies from the source library.  2 A research center employing a number of scientists and  technicians subscribes to one or two copies of needed  periodicals. By reproducing photocopies of articles the  center is able to make the material in these periodicals  available to its staff in the same manner which otherwise  would have required multiple subscriptions.  3 Several branches of a library system agree that one branch  will subscribe to particular journals in lieu of each branch  purchasing its own subscriptions, and the one subscribing  branch will reproduce copies of articles from the publica  tion for users of the other branches.  The committee believes that section 108 provides an  appropriate statutory balancing of the rights of creators and  the needs of users. However, neither a statute nor legislative  history can specify precisely which library photocopying  practices constitute the making of “single copies” as dis tinguished from “systematic reproduction.” Isolated single  spontaneous requests must be distinguished from “system atic reproduction.” The photocopying needs of such opera tions as multi-county regional systems must be met. The  committee therefore recommends that representatives of  authors, book and periodical publishers and other owners  of copyrighted material meet with the library community to  formulate photocopying guidelines to assist library patrons  and employees. Concerning library photocopying practices  not authorized by this legislation, the committee recom mends that workable clearance and licensing procedures be  developed.  It is still uncertain how far a library may go under the  Copyright Act of 1909 in supplying a photocopy of copy righted material in its collection. The recent case of The Wil liams and Wilkins Company v. The United States failed to sig nificantly illuminate the application of the fair use doctrine  to library photocopying practices. Indeed, the opinion of the  Court of Claims said the Court was engaged in “a ‘holding  operation’ in the interim period before Congress enacted its  preferred solution.”  While the several opinions in the Wilkins case have given  the Congress little guidance as to the current state of the law  on fair use, these opinions provide additional support for   Reproduction of Copyrighted Works · 14  the balanced resolution of the photocopying issue adopted  by the Senate last year in S. 1361 and preserved in section 108  of this legislation. As the Court of Claims opinion succinctly  stated “there is much to be said on all sides.”  In adopting these provisions on library photocopying, the  committee is aware that through such programs as those of  the National Commission on Libraries and Information Sci ence there will be a significant evolution in the functioning  and services of libraries. To consider the possible need for  changes in copyright law and procedures as a result of new  technology, a National Commission on New Technological  Uses of Copyrighted Works (CONTU) has been established  (Public Law 93-573). 

3. Excerpts from House Report on Section 108 

note: The following excerpts are reprinted from the House  Report on the new copyright law (H.R. Rep. No. 94-1476, pages  74–79). All of the House Report’s discussion of section 108 is  reprinted here; similarities and differences between the House  and Senate Reports on particular points will be noted below. 

1. House Report: Introductory Statement 

note: This paragraph is substantially the same in the Senate  and House Reports.  Notwithstanding the exclusive rights of the owners of copy right, section 108 provides that under certain conditions it is  not an infringement of copyright for a library or archives, or  any of its employees acting within the scope of their employ ment, to reproduce or distribute not more than one copy or  phonorecord of a work, provided (1) the reproduction or dis tribution is made without any purpose of direct or indirect  commercial advantage and (2) the collections of the library  or archives are open to the public or available not only to  researchers affiliated with the library or archives, but also  to other persons doing research in a specialized field, and  (3) the reproduction or distribution of the work includes a  notice of copyright. 

1. House Report: Discussion of Libraries and Archives  in Profit-Making Institutions 

note: The Senate and House Reports differ substantially on  this point. The Senate Report’s discussion is reprinted at page 13.  Under this provision, a purely commercial enterprise could  not establish a collection of copyrighted works, call itself  a library or archive, and engage in for-profit reproduction  and distribution of photocopies. Similarly, it would not be  possible for a nonprofit institution, by means of contractual  arrangements with a commercial copying enterprise, to  authorize the enterprise to carry out copying and distribu tion functions that would be exempt if conducted by the  non-profit institution itself.  The reference to “indirect commercial advantage” has  raised questions as to the status of photocopying done by or  for libraries or archival collections within industrial, profit making, or proprietary institutions (such as the research and  development departments of chemical, pharmaceutical,  automobile, and oil corporations, the library of a proprietary  hospital, the collections owned by a law or medical partner ship, etc.).  There is a direct interrelationship between this problem  and the prohibitions against “multiple” and “systematic”  photocopying in section 108(g)(1) and (2). Under section  108, a library in a profit-making organization would not be  authorized to:  a use a single subscription or copy to supply its employees  with multiple copies of material relevant to their work; or  b use a single subscription or copy to supply its employees,  on request, with single copies of material relevant to their  work, where the arrangement is “systematic” in the sense  of deliberately substituting photocopying for subscription  or purchase; or  c use “interlibrary loan” arrangements for obtaining pho tocopies in such aggregate quantities as to substitute for  subscriptions or purchase of material needed by employ ees in their work.  Moreover, a library in a profit-making organization could  not evade these obligations by installing reproducing equip ment on its premises for unsupervised use by the organiza tion’s staff.  Isolated, spontaneous making of single photocopies by a  library in a for-profit organization, without any systematic  effort to substitute photocopying for subscriptions or pur chases, would be covered by section 108, even though the  copies are furnished to the employees of the organization  for use in their work. Similarly, for-profit libraries could  participate in interlibrary arrangements for exchange of  photocopies, as long as the reproduction or distribution was  not “systematic.” These activities, by themselves, would ordi narily not be considered “for direct or indirect commercial  advantage,” since the “advantage” referred to in this clause  must attach to the immediate commercial motivation behind  the reproduction or distribution itself, rather than to the   Reproduction of Copyrighted Works · 15  ultimate profit-making motivation behind the enterprise in  which the library is located. On the other hand, section 108  would not excuse reproduction or distribution if there were  a commercial motive behind the actual making or distribut ing of the copies, if multiple copies were made or distributed,   or if the photocopying activities were “systematic” in the  sense that their aim was to substitute for subscriptions or  purchases. 

1. House Report: Rights of Reproduction and Distribution  Under Section 108 

note: The following paragraphs are closely similar in the  Senate and House Reports.  The rights of reproduction and distribution under section  108 apply in the following circumstances:  Archival reproductions  Subsection (b) authorizes the reproduction and distribu tion of a copy or phonorecord of an unpublished work  duplicated in facsimile form solely for purposes of preserva tion and security, or for deposit for research use in another  library or archives, if the copy or phonorecord reproduced  is currently in the collections of the first library or archives.  Only unpublished works could be reproduced under this  exemption, but the right would extend to any type of  work, including photographs, motion pictures and sound  recordings. Under this exemption, for example, a repository  could make photocopies of manuscripts by microfilm or  electrostatic process, but could not reproduce the work in  “machine-readable” language for storage in an information  system.  Replacement of damaged copy  Subsection (c) authorizes the reproduction of a published  work duplicated in facsimile form solely for the purpose of  replacement of a copy or phonorecord that is damaged, dete riorating, lost or stolen, if the library or archives has, after a  reasonable effort, determined that an unused replacement  cannot be obtained at a fair price. The scope and nature  of a reasonable investigation to determine that an unused  replacement cannot be obtained will vary according to the  circumstances of a particular situation. It will always require  recourse to commonly-known trade sources in the United  States, and in the normal situation also to the publisher or  other copyright owner (if such owner can be located at the  address listed in the copyright registration), or an authorized  reproducing service. Articles and small excerpts  Subsection (d) authorizes the reproduction and distribution  of a copy of not more than one article or other contribution  to a copyrighted collection or periodical issue, or of a copy  or phonorecord of a small part of any other copyrighted  work. The copy or phonorecord may be made by the library  where the user makes his request or by another library pur suant to an interlibrary loan. It is further required that the  copy become the property of the user, that the library or  archives have no notice that the copy would be used for any  purposes other than private study, scholarship or research,  and that the library or archives display prominently at the  place where reproduction requests are accepted, and includes  in its order form, a warning of copyright in accordance with  requirements that the Register of Copyrights shall prescribe  by regulation.  Out-of-print works  Subsection (e) authorizes the reproduction and distribution  of a copy or phonorecord of an entire work under certain  circumstances, if it has been established that a copy cannot  be obtained at a fair price. The copy may be made by the  library where the user makes his request or by another  library pursuant to an interlibrary loan. The scope and  nature of a reasonable investigation to determine that an  unused copy cannot be obtained will vary according to the  circumstances of a particular situation. It will always require  recourse to commonly-known trade sources in the United  States, and in the normal situation also to the publisher or  other copyright owner (if the owner can be located at the  address listed in the copyright registration), or an autho rized reproducing service. It is further required that the copy  become the property of the user, that the library or archives  have no notice that the copy would be used for any purpose  other than private study, scholarship, or research, and that  the library or archives display prominently at the place where  reproduction requests are accepted, and include on its order  form, a warning of copyright in accordance with require ments that the Register of Copyrights shall prescribe by  regulation. 

1. House Report: General Exemptions for Libraries  and Archives 

note: Parts of the following paragraphs are substantially  similar in the Senate and House Reports. Differences in the  House Report on certain points reflect certain amendments in  section 108(f) and elsewhere in the Copyright Act.  Reproduction of Copyrighted Works · 16  General exemptions  Clause (1) of subsection (f) specifically exempts a library or  archives or its employees from liability for the unsupervised  use of reproducing equipment located on its premises, pro vided that the reproducing equipment displays a notice that  the making of a copy may be subject to the copyright law.  Clause (2) of subsection (f) makes clear that this exemption  of the library or archives does not extend to the person using  such equipment or requesting such copy if the use exceeds  fair use. Insofar as such person is concerned the copy or  phonorecord made is not considered “lawfully” made for  purposes of sections 109, 110 or other provisions of the title.  Clause (3) provides that nothing in section 108 is intended  to limit the reproduction and distribution by lending of a  limited number of copies and excerpts of an audiovisual  news program. This exemption is intended to apply to the  daily newscasts of the national television networks, which  report the major events of the day. It does not apply to docu mentary (except documentary programs involving news  reporting as that term is used in section 107), magazine-for mat or other public affairs broadcasts dealing with subjects  of general interest to the viewing public.  The clause was first added to the revision bill in 1974 by  the adoption of an amendment proposed by Senator Baker.  It is intended to permit libraries and archives, subject to  the general conditions of this section, to make off-the-air  videotape recordings of daily network newscasts for limited  distribution to scholars and researchers for use in research  purposes. As such, it is an adjunct to the American Television  and Radio Archive established in Section 113 of the Act which  will be the principal repository for television broadcast mate rial, including news broadcasts. The inclusion of language  indicating that such material may only be distributed by  lending by the library or archive is intended to preclude per formance, copying, or sale, whether or not for profit, by the  recipient of a copy of a television broadcast taped off-the-air  pursuant to this clause.  Clause (4), in addition to asserting that nothing contained  in section 108 “affects the right of fair use as provided by  section 107,” also provides that the right of reproduction  granted by this section does not override any contractual  arrangements assumed by a library or archives when it  obtained a work for its collections. For example, if there is  an express contractual prohibition against reproduction for  any purpose, this legislation shall not be construed as justi fying a violation of the contract. This clause is intended to  encompass the situation where an individual makes papers,  manuscripts or other works available to a library with the  understanding that they will not be reproduced. It is the intent of this legislation that a subsequent unlaw ful use by a user of a copy or phonorecord of a work lawfully  made by a library, shall not make the library liable for such  improper use. 

1. House Report: Discussion of Multiple Copies  and Systematic Reproduction 

note: The Senate and House Reports differ substantially  on this point. The Senate Report’s discussion is reprinted at  page 13.  Multiple copies and systematic reproduction  Subsection (g) provides that the rights granted by this sec tion extend only to the “isolated and unrelated reproduction  of a single copy or phonorecord of the same material on  separate occasions.” However, this section does not authorize  the related or concerted reproduction of multiple copies or  phonorecords of the same material, whether made on one  occasion or over a period of time, and whether intended for  aggregate use by one individual or for separate use by the  individual members of a group.  With respect to material described in subsection (d)— articles or other contributions to periodicals or collections,  and small parts of other copyrighted works—subsection (g)  (2) provides that the exemptions of section 108 do not apply  if the library or archive engages in “systematic reproduction  or distribution of single or multiple copies or phonorecords.”  This provision in S.22 provoked a storm of controversy,  centering around the extent to which the restrictions on   “systematic” activities would prevent the continuation and  development of interlibrary networks and other arrange ments involving the exchange of photocopies. After thorough  consideration, the Committee amended section 108(g)(2)  to add the following proviso: Provided, that nothing in this  clause prevents a library or archives from participating in  interlibrary arrangements that do not have, as their purpose  or effect, that the library or archives receiving such copies  or phonorecords for distribution does so in such aggregate  quantities as to substitute for a subscription to or purchase  of such work.  In addition, the Committee added a new subsection (i)  to section 108, requiring the Register of Copyrights, five  years from the effective date of the new Act and at five year  intervals thereafter, to report to Congress upon “the extent  to which this section has achieved the intended statutory bal ancing of the rights of creators, and the needs of users,” and  to make appropriate legislative or other recommendations.  As noted in connection with section 107, the Committee also  Reproduction of Copyrighted Works · 17  amended section 504(c) in a way that would insulate librar ians from unwarranted liability for copyright infringement;  this amendment is discussed below.  The key phrases in the Committee’s amendment of sec tion 108(g)(2) are “aggregate quantities” and “substitute for  a subscription to or purchase of” a work. To be implemented  effectively in practice, these provisions will require the devel opment and implementation of more-or-less specific guide lines establishing criteria to govern various situations.  The National Commission on New Technological Uses  of Copyrighted Works (CONTU) offered to provide good  offices in helping to develop these guidelines. This offer was  accepted and, although the final text of guidelines has not  yet been achieved, the Committee has reason to hope that,  within the next month, some agreement can be reached on  an initial set of guidelines covering practices under section  108(g)(2). 

1. House Report: Discussion of Works Excluded 

note: The House Report’s discussion of section 108(h) is longer  than the corresponding paragraph in the Senate Report, and  reflects certain amendments in the subsection.  Works excluded  Subsection (h) provides that the rights of reproduction and  distribution under this section do not apply to a musical  work, a pictorial, graphic or sculptural work, or a motion  picture or other audiovisual work other than “an audiovi sual work dealing with news.” The latter term is intended  as the equivalent in meaning of the phrase “audiovisual  news program” in section 108(f)(3). The exclusions under  subsection (h) do not apply to archival reproduction under  subsection (b), to replacement of damaged or lost copies  or phonorecords under subsection (c), or to “pictorial or  graphic works published as illustrations, diagrams, or similar  adjuncts to works of which copies are reproduced or distrib uted in accordance with subsections (d) and (e).”  Although subsection (h) generally removes musical,  graphic, and audiovisual works from the specific exemptions  of section 108, it is important to recognize that the doctrine  of fair use under section 107 remains fully applicable to the  photocopying or other reproduction of such works. In the  case of music, for example, it would be fair use for a scholar  doing musicological research to have a library supply a  copy of a portion of a score or to reproduce portions of a  phonorecord of a work. Nothing in section 108 impairs the  applicability of the fair use doctrine to a wide variety of situ ations involving photocopying or other reproduction by a  library of copyrighted material in its collections, where the  user requests the reproduction for legitimate scholarly or  research purposes. 

4. Excerpts from Conference Report 

note: The following excerpt is reprinted from the Report of  the Conference Committee on the new copyright law (H.R. Rep.  No. 94-1733, pages 70–74). 

1. Conference Report: Introductory Discussion  of Section 108 

Reproduction by Libraries and Archives  Senate bill  Section 108 of the Senate bill dealt with a variety of situa tions involving photocopying and other forms of reproduc tion by libraries and archives. It specified the conditions  under which single copies of copyrighted material can be  noncommercially reproduced and distributed, but made  clear that the privileges of a library or archives under the  section do not apply where the reproduction or distribution  is of multiple copies or is “systematic.” Under subsection (f),  the section was not to be construed as limiting the reproduc tion and distribution, by a library or archive meeting the  basic criteria of the section, of a limited number of copies  and excerpts of an audiovisual news program.  House bill  The House bill amended section 108 to make clear that, in  cases involving interlibrary arrangements for the exchange of  photocopies, the activity would not be considered “system atic” as long as the library or archives receiving the reproduc tions for distribution does not do so in such aggregate quan tities as to substitute for a subscription to or purchase of the  work. A new subsection (i) directed the Register of Copy rights, by the end of 1982 and at five-year intervals thereafter,  to report on the practical success of the section in balancing  the various interests, and to make recommendations for any  needed changes. With respect to audiovisual news programs,  the House bill limited the scope of the distribution privilege  confirmed by section 108(f)(3) to cases where the distribu tion takes the form of a loan.  Reproduction of Copyrighted Works · 18 

1. Conference Report: Conference Committee Discussion  of CONTU Guidelines on Photocopying and Interlibrary  Arrangements 

Conference substitute  The conference substitute adopts the provisions of section  108 as amended by the House bill. In doing so, the conferees  have noted two letters dated September 22, 1976, sent respec tively to John L. McClellan, Chairman of the Senate Judiciary  Subcommittee on Patents, Trademarks, and Copyrights,  and to Robert W. Kastenmeier, Chairman of the House  Judiciary Subcommittee on Courts, Civil Liberties, and the  Administration of Justice. The letters, from the Chairman  of the National Commission on New Technological Uses of  Copyrighted Works (CONTU), Stanley H. Fuld, transmit ted a document consisting of “guidelines interpreting the  provision in subsection 108(g)(2) of S. 22, as approved by the  House Committee on the Judiciary.” Chairman Fuld’s letters  explain that, following lengthy consultations with the parties  concerned, the Commission adopted these guidelines as fair  and workable and with the hope that the conferees on S. 22  may find that they merit inclusion in the conference report.  The letters add that, although time did not permit secur ing signatures of the representatives of the principal library  organizations or of the organizations representing publish ers and authors on these guidelines, the Commission had  received oral assurances from these representatives that the  guidelines are acceptable to their organizations,  The conference committee understands that the guide lines are not intended as, and cannot be considered, explicit  rules or directions governing any and all cases, now or in the  future. It is recognized that their purpose is to provide guid  ance in the most commonly-encountered interlibrary pho tocopying situations, that they are not intended to be limit ing or determinative in themselves or with respect to other  situations, and that they deal with an evolving situation that   will undoubtedly require their continuous reevaluation and  adjustment. With these qualifications, the conference com mittee agrees that the guidelines are a reasonable interpreta tion of the proviso of section 108(g)(2) in the most common  situations to which they apply today. 

1. Conference Report: Reprint of CONTU Guidelines on  Photocopying and Interlibrary Arrangements 

The text of the guidelines follows:  Photocopying—Interlibrary Arrangements Introduction Subsection 108(g)(2) of the bill deals, among other things,  with limits on interlibrary arrangements for photocopying.  It prohibits systematic photocopying of copyrighted materi als but permits interlibrary arrangements “that do not have,  as their purpose or effect, that the library or archives receiv ing such copies or phonorecords for distribution does so in  such aggregate quantities as to substitute for a subscription  to or purchase of such work.”  The National Commission on New Technological Uses  of Copyrighted Works offered its good offices to the House  and Senate subcommittees in bringing the interested par ties together to see if agreement could be reached on what  a realistic definition would be of “such aggregate quantities.”  The Commission consulted with the parties and suggested  the interpretation which follows, on which there has been  substantial agreement by the principal library, publisher, and  author organizations. The Commission considers the guide lines which follow to be a workable and fair interpretation  of the intent of the proviso portion of subsection 108(g)(2).  These guidelines are intended to provide guidance in the  application of section 108 to the most frequently encoun tered interlibrary case: a library’s obtaining from another  library, in lieu of interlibrary loan, copies of articles from  relatively recent issues of periodicals—those published  within five years prior to the date of the request. The guide lines do not specify what aggregate quantity of copies of an  article or articles published in a periodical, the issue date  of which is more than five years prior to the date when the  request for the copy thereof is made, constitutes a substitute  for a subscription to such periodical. The meaning of the  proviso to subsection 108(g)(2) in such case is left to future  interpretation.  The point has been made that the present practice on  interlibrary loans and use of photocopies in lieu of loans  may be supplemented or even largely replaced by a system in  which one or more agencies or institutions, public or private,  exist for the specific purpose of providing a central source  for photocopies. Of course, these guidelines would not apply  to such a situation.  Guidelines for the Proviso of Subsection 108(g)(2)  1 As used in the proviso of subsection 108(g)(2), the words  “… such aggregate quantities as to substitute for a sub scription to or purchase of such work” shall mean:  a with respect to any given periodical (as opposed to any  given issue of a periodical), filled requests of a library  or archives (a “requesting entity”) within any calendar  year for a total of six or more copies of an article or  articles published in such periodical within five years  prior to the date of the request. These guidelines spe cifically shall not apply, directly or indirectly, to any  Reproduction of Copyrighted Works · 19  request of a requesting entity for a copy or copies of an  article or articles published in any issue of a periodi cal, the publication date of which is more than five  years prior to the date when the request is made. These  guidelines do not define the meaning, with respect to  such a request, of “… such aggregate quantities as to  substitute for a subscription to [such periodical]”.  b With respect to any other material described in sub section 108(d), (including fiction and poetry), filled  requests of a requesting entity within any calendar year  for a total of six or more copies or phonorecords of  or from any given work (including a collective work)  during the entire period when such material shall be  protected by copyright.  2 In the event that a requesting entity—  a shall have in force or shall have entered an order for a  subscription to a periodical, or  b has within its collection, or shall have entered an order  for, a copy or phonorecord of any other copyrighted  work, material from either category of which it desires  to obtain by copy from another library or archives (the   “supplying entity”), because the material to be copied  is not reasonably available for use by the requesting  entity itself, then the fulfillment of such request shall  be treated as though the requesting entity made such  copy from its own collection. A library or archives may  request a copy or phonorecord from a supplying entity  only under those circumstances where the requesting  entity would have been able, under the other provi sions of section 108, to supply such copy from materi als in its own collection.  3 No request for a copy or phonorecord of any material  to which these guidelines apply may be fulfilled by the  supplying entity unless such request is accompanied by  a representation by the requesting entity that the request  was made in conformity with these guidelines.  4 The requesting entity shall maintain records of all  requests made by it for copies or phonorecords of any  materials to which these guidelines apply and shall  maintain records of the fulfillment of such requests,  which records shall be retained until the end of the third  complete calendar year after the end of the calendar year  in which the respective request shall have been made.  5 As part of the review provided for in subsection 108(i),  these guidelines shall be reviewed not later than five years  from the effective date of this bill.

1. Conference Report: Discussion of “Audiovisual  News Program” 

The conference committee is aware that an issue has arisen  as to the meaning of the phrase “audiovisual news program”  in section 108(f)(3). The conferees believe that, under the  provision as adopted in the conference substitute, a library  or archives qualifying under section 108(a) would be free,  without regard to the archival activities of the Library of  Congress or any other organization, to reproduce, on video tape or any other medium of fixation or reproduction, local,  regional, or network newscasts, interviews concerning cur rent news events, and on-the-spot coverage of news events,  and to distribute a limited number of reproductions of such  a program on a loan basis. 

1. Conference Report: Discussion of Libraries  and Archives in Profit-Making Institutions 

Another point of interpretation involves the meaning of  “indirect commercial advantage,” as used in section 108(a)(1),  in the case of libraries or archival collections within indus trial, profit-making, or proprietary institutions. As long as  the library or archives meets the criteria in section 108(a) and  the other requirements of the section, including the prohibi tions against multiple and systematic copying in subsection  (g), the conferees consider that the isolated, spontaneous  making of single photocopies by a library or archives in a  for-profit organization without any commercial motivation,  or participation by such a library or archives in interlibrary  arrangements, would come within the scope of section 108. 

5. Copyright Office Regulations Under Section 108 

note: The following is the text of regulations adopted by the  Copyright Office to implement sections 108(d)(2) and 108(e) of  the new copyright law (37 Code of Federal Regulations §201.14). 

• 201.14 · Warnings of copyright for use by certain  libraries and archives. 

(a) Definitions.   (1) A Display Warning of Copyright is a notice under  paragraphs (d)(2) and (e)(2) of section 108 of title  17 of the United States Code as amended by Pub. L. 94-553. As required by those sections the “Display  Warning of Copyright” is to be displayed at the place  where orders for copies or phonorecords are accepted  by certain libraries and archives.  Reproduction of Copyrighted Works · 20  (2) An Order Warning of Copyright is a notice under  paragraphs (d)(2) and (e)(2) of section 108 of title  17 of the United States Code as amended by Pub.  L. 94-553. As required by those sections the “Order  Warning of Copyright” is to be included on printed  forms supplied by certain libraries and archives  and used by their patrons for ordering copies or  phonorecords.  (b) Contents. A Display Warning of Copyright and an Order  Warning of Copyright shall consist of a verbatim repro duction of the following notice, printed in such size and  form and displayed in such manner as to comply with  paragraph (c) of this section:  Notice: Warning Concerning Copyright Restrictions  The copyright law of the United States (title 17, United States  Code) governs the making of photocopies or other reproduc tions of copyrighted material.  Under certain conditions specified in the law, libraries and  archives are authorized to furnish a photocopy or other repro duction. One of these specified conditions is that the photo copy or reproduction is not to be “used for any purpose other  than private study, scholarship, or research.” If a user makes  a request for, or later uses, a photocopy or reproduction for  purposes in excess of “fair use,” that user may be liable for  copyright infringement.  This institution reserves the right to refuse to accept a copying  order if, in its judgment, fulfillment of the order would involve  violation of copyright law.  (c) Form and Manner of Use.  (1) A Display Warning of Copyright shall be printed on  heavy paper or other durable material in type at least  18 points in size, and shall be displayed prominently,  in such manner and location as to be clearly vis ible, legible, and comprehensible to a casual observer  within the immediate vicinity of the place where  orders are accepted.  (2) An Order Warning of Copyright shall be printed  within a box located prominently on the order form  itself, either on the front side of the form or imme diately adjacent to the space calling for the name or  signature of the person using the form. The notice  shall be printed in type size no smaller than that  used predominantly throughout the form, and in no  case shall the type size be smaller than 8 points. The  notice shall be printed in such manner as to be clearly  legible, comprehensible, and readily apparent to a  casual reader of the form.

1. Liability for Infringement 
2. Text of Section 504 

note: The following is a reprint of the entire text of section  504 of title 17, United States Code, as amended in 1982, 1988, 1990,  1997, 1998, 1999, 2002, 2004, and 2005. The special provisions  affecting librarians and educators are in subsection (c)(2). 

• 504 · Remedies for infringement: Damages and profits. 

(a) In General.—Except as otherwise provided by this  title, an infringer of copyright is liable for either—  (1) the copyright owner’s actual damages and any addi tional profits of the infringer, as provided by subsec tion (b); or  (2) statutory damages, as provided by subsection (c).  (b) Actual Damages and Profits.—The copyright  owner is entitled to recover the actual damages suf fered by him or her as a result of the infringement, and  any profits of the infringer that are attributable to the  infringement and are not taken into account in comput ing the actual damages. In establishing the infringer's  profits, the copyright owner is required to present proof  only of the infringer's gross revenue, and the infringer is  required to prove his or her deductible expenses and the  elements of profit attributable to factors other than the  copyrighted work.  (c) Statutory Damages.—  (1) Except as provided by clause (2) of this subsection,  the copyright owner may elect, at any time before  final judgment is rendered, to recover, instead of  actual damages and profits, an award of statutory  damages for all infringements involved in the action,  with respect to any one work, for which any one  infringer is liable individually, or for which any two  or more infringers are liable jointly and severally, in  a sum of not less than $750 or more than $30,000  as the court considers just. For the purposes of this  subsection, all the parts of a compilation or deriva tive work constitute one work.  (2) In a case where the copyright owner sustains the  burden of proving, and the court finds, that infringe ment was committed willfully, the court in its discre tion may increase the award of statutory damages to  a sum of not more than $150,000. In a case where the  infringer sustains the burden of proving, and  Reproduction of Copyrighted Works · 21  the court finds, that such infringer was not aware  and had no reason to believe that his or her acts  constituted an infringement of copyright, the court  in its discretion may reduce the award of statutory  damages to a sum of not less than $200. The court  shall remit statutory damages in any case where an  infringer believed and had reasonable grounds for  believing that his or her use of the copyrighted work  was a fair use under section 107, if the infringer was:  (i) an employee or agent of a nonprofit educational  institution, library, or archives acting within the  scope of his or her employment who, or such institu tion, library, or archives itself, which infringed by  reproducing the work in copies or phonorecords; or  (ii) a public broadcasting entity which or a person  who, as a regular part of the nonprofit activities of a  public broadcasting entity (as defined in subsection  (g) of section 118) infringed by performing a pub lished nondramatic literary work or by reproducing a  transmission program embodying a performance of  such a work.  (3)(a) In a case of infringement, it shall be a rebut table presumption that the infringement was  committed willfully for purposes of determin ing relief if the violator, or a person acting in  concert with the violator, knowingly provided  or knowingly caused to be provided materi ally false contact information to a domain   name registrar, domain name registry, or other  domain name registration authority in reg  istering, maintaining, or renewing a domain  name used in connection with the infringe ment.  (b) Nothing in this paragraph limits what may be  considered willful infringement under this   subsection.  (c) For purposes of this paragraph, the term  “domain name” has the meaning given that  term in section 45 of the Act entitled “An Act  to provide for the registration and protection  of trademarks used in commerce, to carry out  the provisions of certain international conven tions, and for other purposes” approved July 5,  1946 (commonly referred to as the “Trademark  Act of 1946”; 15 U.S.C. 1127).  (d) Additional Damages in Certain Cases.—In any  case in which the court finds that a defendant proprietor of an establishment who claims as a defense  that its activities were exempt under section 110(5) did  not have reasonable grounds to believe that its use of a  copyrighted work was exempt under such section, the   plaintiff shall be entitled to, in addition to any award of  damages under this section, an additional award of two  times the amount of the license fee that the proprietor  of the establishment concerned should have paid the  plaintiff for such use during the preceding period of up  to 3 years. 

2. Excerpts from House Report on Section 504 

note: The following excerpts are reprinted from the House  Report on the new copyright law (H.R. Rep. No. 94-1476, pages  161–163). Material not of immediate interest to librarians and  educators has been omitted. Much of the corresponding dis cussion in the Senate Report (S. Rep. No. 94-473, pages 143–145)  is substantially the same; the House Report’s discussion of  statutory damages applicable to librarians and educators  is new.  In general  A cornerstone of the remedies sections and of the bill as a  whole is section 504, the provision dealing with recovery  of actual damages, profits, and statutory damages. The two  basic aims of this section are reciprocal and correlative:   1 to give the courts specific unambiguous directions con cerning monetary awards, thus avoiding the confusion  and uncertainty that have marked the present law on the  subject, and, at the same time,   2 to provide the courts with reasonable latitude to adjust  recovery to the circumstances of the case, thus avoiding  some of the artificial or overly technical awards resulting  from the language of the existing statute.  Subsection (a) lays the groundwork for the more detailed  provisions of the section by establishing the liability of a  copyright infringer for either “the copyright owner’s actual  damages and any additional profits of the infringer,” or  statutory damages. Recovery of actual damages and profits  under section 504(b) or of statutory damages under section  504(c) is alternative and for the copyright owner to elect; as  under the present law, the plaintiff in an infringement suit  is not obliged to submit proof of damages and profits and  may choose to rely on the provision for minimum statutory  damages. However, there is nothing in section 504 to prevent  a court from taking account of evidence concerning actual   Reproduction of Copyrighted Works · 22  damages and profits in making an award of statutory dam ages within the range set out in subsection (c).  Actual damages and profits  In allowing the plaintiff to recover “the actual damages suf fered by him or her as a result of the infringement,” plus  any of the infringer’s profits “that are attributable to the  infringement and are not taken into account in computing  the actual damages,” section 504(b) recognizes the different  purposes served by awards of damages and profits. Damages  are awarded to compensate the copyright owner for losses  from the infringement, and profits are awarded to prevent  the infringer from unfairly benefiting from a wrongful act.4   Statutory damages  Subsection (c) of section 504 makes clear that the plaintiff’s  election to recover statutory damages may take place at any  time during the trial before the court has rendered its final  judgment. The remainder of clause (1) of the subsection rep resents a statement of the general rates applicable to awards  of statutory damages.  Clause (2) of section 504(c) provides for exceptional cases  in which the maximum award of statutory damages could be  raised from $10,000 to $50,000, and in which the minimum  recovery could be reduced from $250 to $100. The basic  principle underlying this provision is that the courts should  be given discretion to increase statutory damages in cases of  willful infringement and to lower the minimum where the  infringer is innocent. The language of the clause makes clear  that in these situations the burden of proving willfulness  rests on the copyright owner and that of proving innocence  rests on the infringer, and that the court must make a find ing of either willfulness or innocence in order to award the  exceptional amounts.  The “innocent infringer” provision of section 504(c)(2)  has been the subject of extensive discussion. The exception,  which would allow reduction of minimum statutory dam ages to $100 where the infringer “was not aware and had no  reason to believe that his or her acts constituted an infringe ment of copyright,” is sufficient to protect against unwar ranted liability in cases of occasional or isolated innocent  infringement, and it offers adequate insulation to users, such  as broadcasters and newspaper publishers, who are particu larly vulnerable to this type of infringement suit. On the  other hand, by establishing a realistic floor for liability, the  provision preserves its intended deterrent effect; and it would  not allow an infringer to escape simply because the plaintiff  failed to disprove the defendant’s claim of innocence. In addition to the general “innocent infringer” provision  clause (2) deals with the special situation of teachers, librar ians, archivists, and public broadcasters, and the nonprofit  institutions of which they are a part. Section 504(c)(2)  provides that, where such a person or institution infringes  copyrighted material in the honest belief that what they  were doing constituted fair use, the court is precluded from  awarding any statutory damages. It is intended that, in cases  involving this provision, the burden of proof with respect to  the defendant’s good faith should rest on the plaintiff. 

3. Excerpts from Conference Report on Section 504 

note: The following excerpts are reprinted from the Report of  the Conference Committee on the new copyright law (H.R. Rep.  No. 94-1733, pages 79–80).  Remedies for Copyright Infringement  Senate bill  Chapter 5 of the Senate bill dealt with civil and criminal  infringement of copyright and the remedies for both. Sub section (c) of section 504 allowed statutory damages within  a stated dollar range, and clause (2) of that subsection  provided for situations in which the maximum could be  exceeded and the minimum lowered; the court was given dis cretion to reduce or remit statutory damages entirely where  a teacher, librarian, or archivist believed that the infringing  activity constituted fair use.5  House bill  Section 504(c)(2) of the House bill required the court to  remit statutory damages entirely in cases where a teacher,  librarian, archivist, or public broadcaster, or the institution  to which they belong, infringed in the honest belief that what  they were doing constituted fair use.6  Conference substitute  The conference substitute adopts the House amendments  with respect to statutory damages in section 504(c)(2).7 

1. Guidelines for Off-Air Recording of Broadcast  Programming for Educational Purposes 

note: The following excerpts are reprinted from the House  Report on piracy and counterfeiting amendments (H.R. 97-495,  pages 8–9).  Reproduction of Copyrighted Works · 23  In March 1979, Congressman Robert Kastenmeier, Chairman  of the House Subcommittee on Courts, Civil Liberties and  Administration of Justice, appointed a Negotiating Commit tee consisting of representatives of educational organizations,  copyright proprietors, and creative guilds and unions. The  following guidelines reflect the Negotiating Committee’s  consensus as to the application of “fair use” to the recording,  retention, and use of television broadcast programs for edu cational purposes. They specify periods of retention and use  of such off-air recordings in classrooms and similar places  devoted to instruction and for homebound instruction. The  purpose of establishing these guidelines is to provide stan dards for both owners and users of copyrighted television  programs.  1 The guidelines were developed to apply only to off-air  recording by non-profit educational institutions.  2 A broadcast program may be recorded off-air simultane ously with broadcast transmission (including simultane ous cable transmission) and retained by a non-profit  educational institution for a period not to exceed the  first forty-five (45) consecutive calendar days after date of  recording. Upon conclusion of such retention period, all  off-air recordings must be erased or destroyed immedi ately. “Broadcast programs” are television programs trans mitted by television stations for reception by the general  public without charge.  3 Off-air recordings may be used once by individual  teachers in the course of relevant teaching activities, and  repeated once only when instructional reinforcement is  necessary, in classrooms and similar places devoted to  instruction within a single building, cluster, or campus,  as well as in the homes of students receiving formalized  home instruction, during the first ten (10) consecutive  school days in the forty-five (45) day calendar day reten tion period. “School days” are school session days—not  counting weekends, holidays, vacations, examination  periods, or other scheduled interruptions—within the  forty-five (45) calendar day retention period.  4 Off-air recordings may be made only at the request of,  and used by, individual teachers, and may not be regu larly recorded in anticipation of requests. No broadcast  program may be recorded off-air more than once at the  request of the same teacher, regardless of the number of  times the program may be broadcast.  5 A limited number of copies may be reproduced from each  off-air recording to meet the legitimate needs of teachers  under these guidelines. Each such additional copy shall be  subject to all provisions governing the original recording. 6 After the first ten (10) consecutive school days, off-air   Reproduction of Copyrighted Works · 24  Endnotes  recording may be used up to the end of the forty-five (45)  calendar day retention period only for teacher evaluation  purposes, i.e., to determine whether or not to include  the broadcast program in the teaching curriculum, and  may not be used in the recording institution for student  exhibition or any other non-evaluation purpose without  authorization.  7 Off-air recordings need not be used in their entirety, but  the recorded programs may not be altered from their  original content. Off-air recordings may not be physically  or electronically combined or merged to constitute teach ing anthologies or compilations.  8 All copies of off-air recordings must include the copyright  notice on the broadcast program as recorded.  9 Educational institutions are expected to establish appro priate control procedures to maintain the integrity of  these guidelines.  For Further Information   By Internet  Circulars, announcements, regulations, other related mate rials, and certain copyright application forms are available  from the Copyright Office website at www.copyright.gov. To send an email communication, click on Contact Us at  the bottom of the homepage.  By Telephone  For general information about copyright, call the Copyright  Public Information Office at (202) 707-3000 or 1-877-476- 0778 (toll free). Staff members are on duty from 8:30 am to  5:00 pm, Monday through Friday, eastern time, except federal  holidays. Recorded information is available 24 hours a day.  Or, if you know which application forms and circulars you  want, request them from the Forms and Publications Hotline  at (202) 707-9100 24 hours a day. Leave a recorded message.   By Regular Mail  Write to:   Library of Congress  Copyright Office-COPUBS  101 Independence Avenue SE  Washington, DC 20559  1 Corrected from Congressional Record.  2 As reprinted in the House Report, subsection A.2 of the Music  Guidelines had consisted of two separate paragraphs, one dealing  with multiple copies and a second dealing with single copies. In  his introductory remarks during the House debates on S.22, the  Chairman of the House Judiciary Subcommittee, Mr. Kastenmeier,  announced that “the report, as printed, does not reflect a subse quent change in the joint guidelines which was described in a subse quent letter to me from a representative of [the signatory organiza tions],” and provided the revised text of subsection A.2. (122 Cong.  Rec. H 10875, Sept. 22, 1976). The text reprinted here is the revised  text.  3–7 Section 504 was amended by the Act of October 31, 1988, Pub. L.  100-568, 102 Stat. 2853, 2860; by the Act of 1999, Pub. L. 106-160, 113  Stat. 1774; and by the Act of December 23, 2004, Pub. L. 108-482, 118  Stat. 3912, 3916.  U.S. Copyright Office · The Library of Congress · 101 Independence Avenue, SE · Washington, DC 20559 · www.copyright.gov circular 21 rev: 08/2014 Printed on recycled paper