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Produced by George Davis










United States Copyright Office

Circular 21

Reproduction of Copyrighted Works by Educators and Librarians

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Many educators and librarians ask about the fair use and photocopying
provisions 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
and seven appendixes can be purchased in microfiche or paper copies by
written request from the National Technical Information Service, U.S.
Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161 or
by calling the Sales Desk at (703)487-4650. The FAX number for placing
orders is (703) 321-8547. The TTY number for placing orders is (703)
487-4639. When ordering, please include the fol-lowing NTIS Accession
Numbers: PB83 148239ACY, Entire Set; PB83 148247ACY, Report Only; PB83
148254ACY, Appendix l (King Report); PB83 148262ACY, Appendix II
(Chicago Hearing and Written Comments); PB83 148270ACY, Appendix III
(Houston Hearing and Written Comments); PB83 148288ACY, Appendix IV
(Washington Hearing and Written Comments); PB83 148296ACY, Appendix V
(Anaheim Hearing and Written Comments); PB83 148304ACY, Appendix VI
(New York Hearing and Written Comments); and PB83 148312ACY, Appendix
VII (Final Written Comments).

The 1988 5-year Report of the Register of Copyrights on Library
Reproduction of Copyrighted Works is also available from NTIS. Use NTIS
Accession Number PB88 212014ACY.


**Contents of This Booklet**

A. Introductory Note ................................................. 4
B. Exclusive Rights in Copyrighted Works ............................. 4
1. Text of Section 106 ............................................... 4
2. Excerpts From House Report ........................................ 5
C. Fair Use .......................................................... 5
1. Text of Section 107 ............................................... 5
2. Excerpts From House Report ........................................ 6
a. Introductory Discussion ........................................... 6
b. Statement of Intention as to Classroom Reproduction ............... 7
(i) Introductory Statement ........................................... 7
(ii) Guidelines With Respect to Books and Periodicals ................ 7
(iii) Guidelines With Respect to Music ............................... 9
(iv) Discussion of Guidelines ........................................ 9
c. Additional Excerpts .............................................. 10
3. Excerpts From Conference Report .................................. 10
4. Excerpts From Congressional Debates .............................. 11
D. Reproduction by Libraries and Archives ........................... 12
1. Text of Section 108 .............................................. 12
2. Excerpts From Senate Report ...................................... 13
a. Discussion of Libraries and Archives in Profit-Making
Institutions .............................................. 13
b. Discussion of Multiple Copies and Systematic Reproduction ........ 13
3. Excerpts From House Report ....................................... 14
a. Introductory Statement ........................................... 14
b. Discussion of Libraries and Archives in Profit-Making
Institutions............................................... 15
c. Rights of Reproduction and Distribution Under Section 108 ........ 15
d. General Exemptions for Libraries and Archives .................... 16
e. Discussion of Multiple Copies and Systematic Reproduction ........ 17
f. Discussion of Works Excluded ..................................... 17
4. Excerpts From Conference Report .................................. 17
a. Introductory Discussion of Section 108 ........................... 18
b. Conference Committee Discussion of CONTU Guidelines on
Photocopying and Interlibrary Arrangements ................ 18
c. Reprint of CONTU Guidelines on Photocopying and Interlibrary
Arrangements .............................................. 18
d. Discussion of "Audiovisual News Program" ......................... 19
e. Discussion of Libraries and Archives in Profit-Making
Institutions............................................... 19
5. Copyright Office Regulations Under Section 108 ................... 19
E. Liability for Infringement ....................................... 20
1. Text of Section 504 .............................................. 20
2. Excerpts From House Report ....................................... 21
3. Excerpts From Conference Report .................................. 22
F. Guidelines for Off-air Recording of Broadcast Programming for
Educational Purposes ...................................... 22



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A. INTRODUCTORY NOTE
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*The Subjects Covered in This Booklet*

The documentary materials collected in this booklet 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
reproduction. Under the copyright law, reproduction can take either of
two forms:
+ The making of copies: by photocopying, making micro-form
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 booklet. You can obtain a copy of the statute and
information about specific provisions by writing to the Publications
Section, LM-455, Copyright Office, Library of Congress, Washington,
D.C. 20559-6000.


*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 copyright 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 dealing with warnings of copyright
for use by libraries and archives (37 Code of Federal Regulations
Sec. 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 similiar. However, the two reports
were written at different times, by committees of different Houses of
Congress, on 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 versions of the bill
itself were, of course, 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 thorough study of the Act of 1976 as it affects librarians and
educators should not, of course, rely exclusively on the excerpts
reprinted here but should go back to the primary documentary sources.



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B. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS
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1. Text of Section 106

===============================================================
The following is a reprint of the entire text of section 106 of
title 17, United States Code.
===============================================================

*Section 106. Exclusive rights in copyrighted works*

Subject to sections 107 through 120, 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 choreographic
works, pantomimes, and motion pictures and other audiovisual works,
to perform the copyrighted work publicly; and
(5) in the case of literary, musical, dramatic, and choreographic
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.


*2. Excerpts From House Report on Section 106*

=====================================================================
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 exclusive
right may be owned and enforced separately.

The approach of the bill is to set forth the copyright owner'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
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.
Sec. 1).

*Reproduction.* - Read together with the relevant definitions in section
101, the right "to reproduce the copyrighted work in copies or
phonorecords" means the right to produce 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 communicated,
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 simulation. 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 "sufficiently 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).



- - - - - -
C. FAIR USE
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1. *Text of Section 107*

=====================================================================
The following is a reprint of the entire text of section 107 of title
17, United States Code.
=====================================================================

*Section 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 criticism, 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 non-profit 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 consideration of all the above
factors.


*2. Excerpts From House Report on Section 107*

=====================================================================
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 section 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.
=====================================================================


*a. House Report: Introductory Discussion on Section 107*

=====================================================================
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 recognition 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 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 student of a small part of a work to illustrate a lesson;
reproduction 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 definition 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 definitive 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 commercial nature or is for non-profit 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."

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 section,
for purposes such as criticism, comment, news reporting, 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 example, 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 reproduction 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 circumstances of
fairness, the doctrine can be applied to reproductions 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 situations and combinations of
circumstances that can rise in particular 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 statutory
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.


*b. House Report: Statement of Intention as to Classroom Reproduction*

==================================================================
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 questions 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.

The Committee also adheres to its earlier conclusion, that "a specific
exemption freeing certain reproductions of copyrighted works for
educational and scholarly purposes from copyright control is not
justified." At the same time the Committee 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 amendments are discussed below in
connection with Chapter 5 of the bill.

In 1967 the Committee also sought to approach this problem 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


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