Copyright and Preservation


1. This paper was prepared at the request of the Commission on Preservation and Access which is considering large scale solutions to the problem of deteriorating collections in the nation's research libraries. It is intended to be a review of the relevant issues and law; it is not intended to substitute for formal legal advice.

2. Copyright 1990 by Robert L. Oakley. Robert Oakley is the Director of the Law Library and Professor of Law at the Georgetown University Law Center in Washington, D.C.

3. Library Reproduction of Copyrighted Works (17 U.S.C. 108), Report of the Register of Copyrights 340 (January 1983).

4. Paper, properly produced, has a life expectancy far exceeding that of the newer media. Acid free paper has been estimated to have a life expectancy of 300-400 years. By contrast, the newer digital optical disks have an estimated life of only 15 to 20 years.

5. Scholarly Resources in Art History: Issues in Preservation, Report of the Seminar", Spring Hill, Wayzata, MN, Sept. 29-Oct. 1, 1988. Commission on Preservation and Access, 1989.

6. Coleman, D.C., The British Paper Industry, 1495- 1860, (Oxford Univ. Pr., 1958) 208.

7. The mechanization of the paper industry came in 1799 with the invention of the first, albeit crude, papermaking machine by the Frenchman Nicholas-Louis Robert. News of the machine spread quickly to England, the one country which at that time possessed the capital, the enterprise, and the skill necessary to develop industrial mechanization. The Robert invention was later perfected and developed under the auspices of the London firm of Fourdrinier, the leading British wholesale stationer of the time, which obtained all rights to the patent. The Fourdrinier machine represented a straightforward mechanization of what formerly had been done by hand. Still, mechanization of papermaking did not have a great impact before the 1830's, at which time the output of hand-made paper began to fall off sharply. It was not until wood-pulp was incorporated into the process that the industry was able to meet the needs of modern consumption. Id.

8. Id.

9. Id. at 338.

10. Id. 343.

11. Lignins and hemicelluloses. "Paper and its Preservation", Library of Congress, National Preservation Program Publications, Preservation Leaflet #2, October 1983, 1.

12. Coleman, supra nt. 6 at 32.

13. Id. For centuries, paper makers used size made from animal gelatin. By the close of the seventeenth century, however, "alum", or aluminum sulfate, was added to sizes. From this practice grew the use of alum-rosin.

14. U.S. Congress. "Hearings of the Senate Rules and Administration Committee on the Construction and Maintenance of the Proposed Library of Congress Mass Book Deacidification Facility to be Located at Fort Detrick, MD", April 11, 1984.

15. Scientific tests show that with every increase of 10 degrees Fahrenheit in temperature (5.5 degrees Celsius) the useful life of paper is approximately halved. Atmospheric pollutants, common in urban areas, damage paper because of their tendency to combine with atmospheric moisture to form acids. "Newsprint and Its Preservation," Library of Congress, National Preservation Program Publication, Preservation Leaflet #5, November 1981, 1.

16. Interestingly, the author has recently learned that research is currently under way at the University of Illinois to restore paper, not by re-assembling the cellulose chains, but by coating it and rebonding the fibers on the surface.

17. Robert M. Hayes, "The Magnitude, Costs, and Benefits of the Preservation of Brittle Books", Report #0 on the Preservation Project, November 30, 1987.

18. See generally, "Information about the Brittle Books Program", Commission on Preservation and Access, June 1988.

19. Actually, the Committee began as the Preservation Committee, but quickly decided that "access is the corollary of preservation....The cost of preserving a significant portion of those materials now unusable in research libraries will be justified only if access is enhanced...This implies effective bibliographic information about what has been preserved and a responsive system for securing copies of the texts themselves." Interim Report of the Committee on Preservation and Access in Brittle Books: Reports of the Committee on Preservation and Access at Appendix 1, p. 22 (1986). This expansion of the mission of the original committee has significant copyright implications.

20. Id. at 21.

21. "Report of the Committee on Preservation and Access," in Brittle Books, supra nt. 19, at 7, 12.

22. "Organization, Goals, and Activities of the Commission" p.2, (mimeo, n.d.).

23. Throughout this section, the author has relied on the work of other authors, and he wishes to acknowledge that reliance here. Among the most important works used are Nimmer on Copyright by Mathew Bender (1989) and Latman's The Copyright Law Sixth ed. by William F. Patry (1986).

24. Article I, Section 8 of the Constitution provides that: "Congress shall have the power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

25. The U.S. Copyright Act is based upon the earlier English Copyright Act, the Statute of Anne, first passed in 1709 (8 Anne, c.19 (1709)), and effective in 1710.

26. Laws of 1909, c.320, 35 Stat. 1075 (1909).

27. P.L. 94-553, 90 Stat. 2541, October 19, 1976.

28. Despite this fact, the author of this paper has learned that there have been discussions at the Copyright Office this year concerning the possibility of amending the Act to permit copyright owners who failed to renew prior to January 1, 1978, to renew retroactively on a voluntary basis. Such a change could have a dramatic effect on the ability of the brittle books program to proceed on pre-1950 materials; it would also complicate the determination of what is protected.

29. The need for some precision in fixing the date of publication is important because the date for renewal, the date when a work would go into the public domain, or indeed, the way a work is treated under the new Act is dependent on fixing the publication date. A work which is widely distributed to the public, but never "published" by a publisher or placed on sale in regular distribution channels might, nonetheless, be held to have been "published" for purposes of the Act.

30. 17 USC Sec. 26 (1970 ed.)

31. Although it may cause complications with the date of the notice. See infra.

32. For example, a draft of an article written by a faculty member and handed out to a class or circulated to colleagues for comment does not constitute publication.

33. Nonetheless, authors are well advised to protect themselves by affixing a proper notice of copyright to the work before distributing it in this way.

34. To consider a speech a publication would create some serious practical problems about how the notice requirement could be met. See King v. Mister Maestro, Inc. 224 F.Supp. 101 (S.D.N.Y. 1963) for litigation about whether or not Martin Luther King's "I Have a Dream" speech was placed in the public domain when he gave it at a public demonstration before at least 200,000 people in Washington, D.C. At that time, with Dr. King's authority, copies of the speech were distributed, without a copyright notice, to the press. Even there, the court found copyright was not lost because distribution was to a limited group for a limited purpose.

35. If, under the old Act, one is certain that a work has been published without notice, then it is a fair inference that the work is unprotected. If, however, it is not clear that the work was published, it is problematic to infer anything from the absence of a notice.

36. See infra.

37. The notice was required to include either the word 'Copyright', the abbreviation 'Copr.', or the symbol (c); the name of the copyright proprietor; and for literary works, the year in which copyright was secured by publication.

38. For books, etc. the notice was to be on the title page or the page immediately after the title page. For periodicals, the notice was to be on the title page or on the first page of text of each issue, or under the title heading (e.g., beneath the masthead). 17 USC Sec. 20 (1970).

39. Copyright protection could not be defeated by an unauthorized copy being distributed without notice.

40. This commonly occurred when contributors to a periodical or a collective work wanted to preserve their own rights in their contribution. The general notice at the beginning of the book or periodical was not sufficient; they needed to be sure that they had their own notice at the beginning of their part.

41. Section 21 of the Act provides a saving clause for the protection of the work if the omission was by accident or mistake on only a limited number of copies. Nonetheless, no damages could be recovered from an innocent infringer who was misled by the absence of a notice.

42. In the wrong place, lacking one of the required elements, or with an incorrect date. Although the date is supposed to be the same as the actual date of publication, in practice there can be delays between typesetting and printing that result in a delay in publication. Courts held that if the date on the work was earlier than the actual date of publication, it would be accepted since it did not extend the term of copyright. See Callaghan v. Myers, 128 U.S. 617 (1888). In such a circumstance, the copyright term was based on the printed date, rather than on the publication date. On the other hand, for many years, if the date on the work was later than the actual date of publication, the claim of copyright was invalidated. Eventually, the Copyright Office liberalized this rule to permit postdated notices if there was no more than a one year discrepancy. 37 C.F.R. 202.2(b)(6) (1959).

43. Despite this fact, published works and unpublished works are treated differently in important ways, some of which relate directly to the brittle books program. See also sections on unpublished works and Section 108 of the Act, infra.

44. See section on unpublished works, infra.

45. Section 401(a) provides that "Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section shall be placed on all publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device."

46. Section 401(c).

47. E.g., what constitutes a "relatively small number of copies?" Does the omission have to be inadvertent so that it can be "discovered"? What constitutes a "reasonable effort" to add the notice?

48. Being misled is a factual question, in which the jury is likely to consider whether or not a library was acting reasonably. In a slightly different context, Quinto v. Legal Times of Washington, Inc. (506 F.Supp 554,562 (D.C.D.C., 1981)), suggests that good faith entails not only honesty in fact, but reasonableness as well. In that case, when a general legal newspaper reproduced an article from a student newspaper and the original article bore the author's name, the court found that [a]t a minimum [the defendant] had a duty to inquire to determine ownership of the copyright before claiming that he was misled and acted in good faith (Id. at 563).

49. Legislation implementing the Berne Convention was passed at P.L. 100-568, 702 Stat 2853 (Oct. 31, 1988).

50. 17 U.S.C.A. Sec. 401(a) (1990 pp.)

51. See 17 USC 104(b). The old Act contained a similar provision in Section 9. The United States has been a member of the Universal Copyright Convention since 1955. That convention requires non-discrimination among member nations, i.e., a member nation is required to give the same protection to authors domiciled in, or works published in, member countries as it does for its own authors and publications. The members of the U.C.C. include: Algeria, Andorra, Argentina, Australia, Austria, Bahamas, Bangladesh, Barbados, Belgium, Belize, Brazil, Bulgaria, Cameroon, Canada, Chile, Colombia, Costa Rica, Cuba, Czechoslovakia, Democratic Kampuchea, Denmark, Dominican Republic, Ecuador, El Salvador, Fiji, Finland, France, German Democratic Republic, Federal Republic of Germany, Ghana, Greece, Guatemala, Guinea, Haiti, Holy See, Hungary, Iceland, India, Ireland, Israel, Italy, Japan, Kenya, Laos, Lebanon, Liberia, Liechtenstein, Luxembourg, Malawi, Malta, Mauritius, Mexico, Monaco, Morocco, Netherlands, New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Saint Vincent and the Grenadines, Senegal, Soviet Union, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Tunisia, United Kingdom, United States of America, Venezuela, Yugoslavia, Zambia. See 1989 Copyright 13 (January 1989). The United States has also established copyright relations with other American republics through the Buenos Aires Convention (1911) and its predecessor, the Mexico City Convention. Members of the Buenos Aires Convention include Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, and Uruguay. See 1988 Treaties in Force 381.

52. Such proclamations have been issued for the following countries: Argentina, Australia, Austria, Barbados, Belgium, Brazil, Canada, Chile, Costa Rica, Cuba, Czechoslovakia, Danzig, Denmark, Egypt, El Salvador, Fiji, Finland, France, Germany (pre- war), Federal Republic of Germany, Greece, Guatemala, Holy See, Hungary, India, Ireland, Israel, Italy, Japan, Kenya, Republic of Korea, Luxembourg, Mexico, Monaco, Morocco, Netherlands, New Zealand, Nicaragua, Norway, Palestine (pre-1950), Panama, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Singapore, South Africa, Spain, Sweden, Switzerland, Tunisia, United Kingdom, Uruguay, Venezuela, Yugoslavia, Zaire. See 1988 Treaties in Force 379.

53. Registration and deposit with the Library of Congress.

54. Eighty-one states are members of the Berne Convention, including: Argentina, Australia, Austria, Bahamas, Barbados, Belgium, Benin, Brazil, Bulgaria, Burkina Faso, Cameroon, Canada, Central African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Cote d'Ivoire, Cyprus, Czechoslovakia, Denmark, Egypt, Fiji, Finland, France, Gabon, German Democratic Republic, Federal Republic of Germany, Greece, Guinea, Holy See, Hungary, Iceland, India, Ireland, Israel, Italy, Japan, Lebanon, Liberia, Libya, Liechtenstein, Luxembourg, Madagascar, Mali, Malta, Mauritania, Mexico, Monaco, Morocco, Netherlands, New Zealand, Niger, Norway, Pakistan, Peru, Philippines, Poland, Portugal, Romania, Rwanda, Senegal, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, United Kingdom, United States of America, Uruguay, Venezuela, Yugoslavia, Zaire, and Zimbabwe. See 1989 Copyright 7 (January 1989).

55. Nimmer on Copyright Sec. 2.02 (1988).

56. Id., sec. 401[B]. The case law developing this area dates to the very earliest days of copyright. See Donaldson v. Becket, 4 Burr. 2408 (H.L. 1774). Under the new act, this tradition has continued, but with less certainty. In the case of Harper & Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539, 225 USPQ2d 1073 (1985), the Supreme Court held that a magazine's publication of verbatim excerpts from a manuscript of President Ford's unpublished biography constituted copyright infringement. The Court stated that "under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use." Id. at 555. This result is not based on state law, but it does reflect a desire to continue the old right of first publication. See also section on "fair use", infra.

57. Jones v. Virgin Records, Ltd., 643 F.Supp. 1153, 1158 (S.D.N.Y. 1986), cited in Nimmer, supra, nt. 33 at Sec. 4.01[B].

58. Upon publication, of course, works either became protected by the statute if the requisite formalities were followed, or they went into the public domain.

59. The Act in Sec. 301(a) reads: On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

60. But see nt. 56, supra.

61. Presumably, this means that if there were a work that were not fixed, it could still be the subject of state copyright law. As examples, Nimmer suggests that states might still protect choreography that has not been filmed or recorded, an extemporaneous speech, live broadcasts, and other works developed from memory and without being written down or otherwise recorded. Of course, in these circumstances there is a difficult problem of proof of ownership of the work or its infringement. Additionally, it is not yet clear whether the states will protect such works. See generally Nimmer on Copyright, Sec. 2.02 (Bender, 1988).

62. See 17 USC 303 (1986).

63. 17 USC 105 (1988).

64. 17 USC 101 (1988).

65. The Report of the House Judiciary Committee stated: "Section 8 of the statute now in effect includes a saving clause intended to make clear that the copyright protection of a private work is not affected if the work is published by the Government. This provision serves a real purpose in the present law because of the ambiguity of the undefined term 'any publication of the United States Government.' Section 105 of the bill, however, uses the operative term 'work of the United States Government': and defines it in such a way that privately written works are clearly excluded from the prohibition; accordingly, a saving clause becomes superfluous." "Retention of a saving clause has been urged on the ground that the present statutory provision is frequently cited, and that having the provision expressly stated in the law would avoid questions and explanations. The committee here observes: (1) there is nothing in section 105 that would relieve the Government of its obligation to secure permission in order to publish a copyrighted work; and (2) publication or other use by the Government of a private work would not affect its copyright protection in any way." H.Rept. 94-1476, 94th Cong. 2d Sess.60 (1976).

66. Even though the official text may not be protected, a publisher might well add supplemental material such as indexes, digests, and annotations that do qualify for protection. Even the pagination may be protected as was suggested in the case of West Publishing Co. v. Mead Data Central 799 F.2d 1219 (8th Cir., 1986).

67. The principle goes as far back as Wheaton v. Peters, 33 U.S. 591 (1834), where the Supreme Court refused to enforce an alleged copyright on their opinions. In Nash v. Lathrop, 142 Mass. 29, the Massachusetts Supreme Judicial Court states:

"Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this..."

For more decisions see Building Officials and Code Administrators < Administrators v. Code Technology, Inc. 628 F.2d 730 (1st Cir. 1980).

68. As noted supra, protection for unpublished works was outside the statute under so-called common law copyright and lasted indefinitely.

69. The new Act did make all copyright terms terminate at the end of the calendar year when they would otherwise expire. This change helps to avoid much of the confusion that previously resulted with copyrights terminating throughout the year. See 17 U.S.C. 305.

70. See 17 U.S.C. 302(a).

71. The definition of "work made for hire" makes clear that it not only includes works created in the traditional employment context, but also includes works "specially commissioned" for use in a collective work or compilation if the parties explicitly agree that the work should be so considered. See 17 U.S.C. 101. A collective work as a whole, such as a journal, as distinct from the individual contributions in the larger work (see 17 U.S.C. 201(c), is also protected as a work made for hire because, in most cases, it is owned by an institution or corporation and published as part of that relationship. Protection for such works exists for 75 years from the date of first publication.

72. If information is provided to the Copyright Office about the true author of such a work, then the actual life plus 50 rules apply instead of the 75-100 year presumption. See 17 U.S.C. 302(c).

73 See 17 U.S.C. 302(e).

74. As noted previously, however, a work that was protected under common law copyright could secure statutory copyright by registration.

75. In the case of Washingtonian Publishing Co. v. Pearson, 306 U.S. 30 (1939), the Supreme Court found that deposit and registration could be made at any time after publication as long as it occurred prior to filing the infringement action. Subsequent cases allowed ever longer periods of time, including at least one where the delay was twenty-seven years (Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 406 (2d Cir. 1946).

76. According to the Copyright Office, 90 percent of all copyrights are not renewed. For books and periodicals, only about 5 percent are renewed. See Copyright Law Revision Study No. 30, "Duration of Copyright", Appendix B (Committee Print 1961).

77. Of course, it could be registered during the initial term as well, but such registration is not a condition of protection.

78. Even the Library of Congress itself found it difficult to rely on searches of the records. (See discussion of the Library of Congress preservation project, infra.)

79. See generally, 17 U.S.C. Sections 107-112, and Section 117 (1982). The major limitations include fair use (Section 107), certain uses by libraries and archives (section 108), the first sale doctrine (section 109), performances or displays of certain works in educational, religious or other limited and non-public settings (section 110), some secondary transmissions (section 111), and the making of copies of computer programs as an essential step in using the program or for archival purposes (section 117). Some of these, especially those in section 108, are explicitly related to preservation. For a full discussion of those limitations see infra.

80. The exclusive rights of the copyright owner are enumerated in 17 U.S.C. Section 106 (1982).

81. See discussion of Sec. 108(b), 108(c) and 117, infra.

82. See generally Intellectual Property Rights in an Age of Electronics and Information, U.S. Congress, Office of Technology Assessment, 1986.

83. See Kost, "USERIGHT", in Intellectual Property Issues in the Library Network Context, Proceedings of the Library of Congress Network Advisory Committee Meeting, March 23-25, 1988, Library of Congress Network Planning Paper Number 17 at 71 (1989).

84. See generally, OTA Report, supra nt. 81.

85. Colorized films raise at least two problems. The first is whether or not the new film is a derivative work and who owns the rights to it. An even earlier question is whether the "owner" of an artistic work can change it in a way that is significantly different from what the original artist produced. See "Moral Right Protections in the Colorization of Black and White Motion Pictures: A Black and White Issue," 16 Hofstra L.R. 503 (1988) and "Motion Picture Colorization, Authenticity, and the Exclusive Moral Right," 64 N.Y.U. L.Rev. 628 (1989).

86. Indexes and summaries are usually seen as new works, not infringing on the original, but if they are automatically generated by a computer working on the text itself, they could begin to blur the line. If, in particular, high quality summaries were generated that could be used in place of the original then the author might have some concern. Abridgments or condensations have long been considered to be derivative works (See Copyright Law Revision, Part 6: Supplementary Report...Committee Print, 1965, 17), and the fact that such works might be generated automatically is unlikely to affect the basic principle.

87. 17 U.S.C. 109 (1982).

88. For an explanation of the distinction between the literary work which is protected and the physical embodiment of it which is not, see Nimmer Section 2.03[C] 1987(rev.).

89. Several countries have enacted statutes creating a public lending right. Such statutes exist in Great Britain, Canada, Australia, New Zealand, the Netherlands, West Germany, Iceland, Denmark, Norway, Sweden, Finland, and others. Under such statutes, authors are compensated for library holdings or library circulation of their works. In some cases, the charges are made annually based on a survey of circulation statistics or library holdings records. In some cases, a surcharge is added on once at the time of purchase. For a review and survey of issues concerning the Public Lending Right see "Closing the Book on the Public Lending Right", 63 N.Y.U. L.Rev. 878 (1988).

90. 17 U.S.C.A. Sec. 109(b), P.L. 98-450, 98 Stat. 1727 (1984).

91. See S.198 introduced by Senator Hatch on January 25, 1989.

92. See 17 U.S.C.A. Sec. 106, nt. (1977).

93. Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill", 89th Cong., 1st Sess. 20 (Comm Print 1965).

94. 17 U.S.C. Sec. 111 (1982).

95. Id.

96. Section 112 exempts some very limited copying of performances or displays by groups that already have a license to transmit them. After transmitting the copy, it must be destroyed or preserved solely for archival purposes. Section 113 grants rights to produce useful articles from pictorial, graphic, and sculptural works but limits those rights to those granted by the copyright statute or state law as of December 31, 1977. Section 114 limits the copyright in a sound recording to the duplication of that actual recording. It does not include a performance right or prevent someone else from independently recording the same pattern of sounds. Section 115 creates a compulsory license for the making of a sound recording from a musical work. Section 116 creates a compulsory license for juke boxes. Section 118 creates a compulsory license to public broadcasting for the use of non- dramatic literary and musical works as well as pictorial, graphic, and sculptural works. Compulsory licensing offers a possible vehicle by which the brittle books program might be able to proceed and will be discussed more fully infra. Section 117 establishes some important rights vis-a-vis computer programs.

97. The first part of this section is taken largely from the author's paper "Intellectual Property Issues and Information Networks: A Background Paper", published in Library of Congress Network Planning Paper Number 17, 1989, Proceedings of the Library of Congress Network Advisory Committee Meeting held March 23-25, 1988.

98. Of course, to the extent that the brittle books program is dealing with works that are no longer protected, the fair use and other copying provisions are not of concern. They are, however, of concern when a library wants to copy--on paper, film, or electronically--more current materials, still protected by the Copyright Act.

99. Both the House and Senate reports indicated their intent "to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way." At the same time, however, they were also careful to indicate that it was not their intention to freeze the doctrine in the statute especially during a period of rapid technological change...." See H.R. Rep. 94-1476 at 66 (1976) and S.Rep. 94-473 at 62 (1975), cited in Patry, The Fair Use Privilege in Copyright Law at vii (1985).

100. 17 U.S.C. Sec.107 (1982).

101. Patry, supra nt. 98 at ix.

102. In Williams and Wilkins v. U.S. the National Library of Medicine was sued for infringement by a medical publisher for providing photocopies of articles to medical professionals. Among the findings were that in 1970 the National Institutes of Health made 86,000 copies constituting 930,000 pages and in 1968 the National Library of Medicine made 120,000 copies, totalling 1.2 million pages. The trial judge found that this kind of copying constituted infringement in a ruling that alarmed the library community. (See 172 U.S.P.Q. 670 (1970).) The Court of Claims reversed at 487 F.2d 1345 (Ct.Cl 1973) and the Supreme Court upheld that reversal, without opinion, by an equally divided court at 420 U.S. 376 (1975).

103. Seltzer, Exemptions and Fair Use in Copyright 24 (1978).

104. 464 U.S. 417, 78 L.Ed.2d 574, 104 S.Ct. 774 (1984), rehearing denied March 19, 1984, 465 U.S. 1112, 104 S.Ct. 1619, 80 L.Ed.2d 148.

105. Id. at 423.

106. Seltzer, supra nt. 102 at 26.

107. 487 F.2d 1345, 1350 (Ct.Cl. 1973).

108. The Copyright Office is not so sure about this view, and David Ladd believes it is simply incorrect. They find nothing in the statute to distinguish any one criteria from another and believe the entire point of the section is to suggest a weighing and balancing of all the criteria. To suggest that one is more important impermissably reduces the relevance of the others. Conversation with Mary Beth Peters, May 5, 1989.

109. 17 U.S.C. Sec. 107(4)(1982).

110. Sony, nt. 103 at p. 451.

111. 471 U.S. 539, 225 USPQ2d 1073 (1985).

112. See supra.

113. 811 F2d 90 (CA2 1987).

114. 873 F2d 576 (2d Cir. 1989).

115. Id. at 583.

116. Seltzer, nt. 102 at p.31.

117. Latman, "Fair Use of Copyrighted Works", in U.S. Copyright Office, Copyright Law Revision, Study No. 14, 86th Cong., 2d Sess. 31 (Senate Judiciary Comm. Print 1960).

118. See infra.

119. Irwin Karp of the Authors League said categorically:

"Fair use doesn't cover photocopying, and I don't think that any court would hold that it did. Certainly those of us who were opposed to the photocopying section in the earlier draft do not assume for a moment that this section on fair use by any means permits the types of activities that were covered by that section." Cited in Report of the Register of Copyrights, Library Reproduction of Copyrighted Works (17 U.S.C. 108), 22 (1983).

The difficulty the Courts had with the Williams and Wilkins case demonstrates, at least, the difficulty of applying fair use to photocopying, especially photocopying on a large scale.

120. For a review of the background to the library exemption, see the Report of the Register of Copyrights on Library Photocopying, id. at 12 et.seq.

121. In a draft version of the bill, Section 108 provided "Notstanding [sic] the provision of section 106, it is not an infringement of copyright for a nonprofit institution, having archival custody over collections of manuscripts, documents, or other unpublished works of value to scholarly research, to reproduce, without any purpose of direct or indirect commercial advantage, any such work in its collection in facsimile copies or phonorecords for purposes of preservation and security, or for deposit for research use in any other such institution." Id. at 38, nt. 53, no bill number cited.

122. S. Rept. 91-1219, September 22, 1970 p. 6. Unfortunately, the report has no further elaboration of this contention.

123. Such a scenario can easily be envisioned if funding for preservation efforts becomes problematic. At that point, a more commercial approach might be seen as the only viable way to keep the effort alive.

124. Seltzer, nt. 102, supra, at 99.

125. The form of the notice required by this section has been the subject of considerable debate. Publishers want the full statutory notice of copyright to be applied in all cases. Librarians, for reasons of efficiency, would like to limit the notice requirement to a simple, general warning that the material is (or may be) protected by copyright. The Register found no clear Congressional intent on this point, but believes that since the phrase used was "notice of copyright", it is more likely that the full notice was desired. (See 1983 Report of the Register of Copyright supra nt. 103 at 74.) Since at least at the outset libraries participating in the preservation program will be copying full works, the copies will, of necessity, contain the original notice of copyright. That should meet the requirement of the statute, even under the Register's interpretation. The libraries might wish to protect themselves further, however, by incorporating a generalized copyright warning on each film image and in eye-legible form on each piece, or on the fiche envelope or other packaging. The problem will need further evaluation, however, if in the future the libraries distribute works or parts of works online. At a minimum in that case, the screen display and any printouts should have a line displaying a copyright warning.

126. An exception to this is allowed for pictorial or graphic works that are illustrations in other works lawfully copied for distribution on interlibrary loan under section 108(d)or 108(e).

127. All copying permitted by Section 108 is controlled by the single copy limitation established in 108(a).

128. Alternatively, if the library would be depositing its original in a central storage facility, presumably it could do the same thing with the copy. It could not, however, do both under the authority of this section.

129. The House Report specifically indicates an intention to limit such reproduction to microfilm or electrostatic process. See House Report 94-1476 at 75 (September 3, 1976).

130. Id.

131. After the Salinger case and the L. Ron Hubbard case, described supra, a library would be wise to be careful about this deposit privilege. Although those cases appeared in the fair use context, they did uphold an author's right to first publication. Despite the fact that section 108 give libraries the right to deposit such works in another library, they should not do so in a way or in such a number of copies that it might be viewed as tantamount to "publication". Again, the single copy rule is important.

132. This language was in the first version of the section cited at nt. 120, supra. The report issued at that time sheds no light on the interpretation of this section.

133. But see nt. 130 supra.

134. Actually, the wording of the statute is somewhat ambiguous as to which library must hold the work. It is logical, of course, that it be held by the supplying library, and the House Report makes it explicit. See H. Rep. 94-1476 at 75.

135. Seltzer, supra nt. 102 at 53.

136. Seltzer, supra, nt. 102 at 71. S.a. tables of exemptions and exclusion from copyright at 66.

137. 1983 Report of the Register of Copyright, supra nt. 3 at 340.

138. S.Rept. 94-473 at 70 (1975).

139. Many managers would quickly respond that such a narrow reading is not helpful, since in any operation that occurs regularly in any business, there must be a routine or systematic way in which the task gets done. To conclude that merely because a library has made a task more routine or efficient it has also made it illegal is to make this section appear to be absurd.

140. S.Rept. nt. 137, supra, at 122.

141. Id.

142. See generally 1983 Report of the Register of Copyrights 138-44. See especially, statistics on 142-3.

143. Report of the Register at 138.

144. Id.

145. Id. at 140.

146. S.Rept.94-473 at 70 (1975) and H.Rept 94-1476 at 76 (1976).

147. If, however, in the future, libraries begin to use their publications file to distribute individual works to libraries or readers, they will be subject to this provision.

148. Statement of Charles Lieb, representing the AAP, quoted in the 1983 Report of the Register of Copyrights at 95.

149. (f) Nothing in this section-- (4) in any way affects the right of fair use as provided by section 107...

150. Id. at 98. Actually, the publishers' position appears to read 108(f)(4) out of the statute.

151. Id. at 95.

152. Id. at 96.

153. Id. at 98.

154. See Latman's Copyright Law, 6th ed., by William S. Patry 254 (1986), in which he refers to this argument as controversial, citing the Report of the Register.

155. Portions of this section are taken from the author's background paper for the March 1988 meeting of the Network Advisory Committee of the Library of Congress on "Intellectual Property Issues and Information Networks", published in Network Planning Paper No. 17 by the Library of Congress (1989).

156. See generally Hyman, "The Socialization of Copyright: The Increased Use of Compulsory Licenses", 4 Cardoza Arts & Entertainment Law Journal 105 (1985).

157. See 17 U.S.C. Sec. 115 (1982).

158. 17 U.S.C. Sec. 116 (1982).

159. 17 U.S.C. Sec. 118 (1982).

160. 17 U.S.C. Sec. 111 (1982).

161. See generally 37 C.F.R. Sec. 303-308 (July 1, 1989).

162. Included in those objectives are: (1) to maximize the availability of creative works to the public; (2) to provide the copyright owner a fair return on his work; (3)to reflect the relative roles of the copyright owner and the copyright user; and (4) to minimize any disruptive impact on the industry. (See 17 U.S.C. Sec. 801 (b)(1) (1982).

163. E.g., nursing homes and libraries where there is a limited audience and their viewing is incidental to their use of the institution.

164. The use of the word "owner" in the statute is significant. CONTU had recommended that the privilege be granted to "licensees", but Congress chose to extend it only to owners. Many software programs purport, through the use of "shrink wrap licenses", to convey only a license to use the software, rather than an ownership in the copy. The validity of such licenses is highly questionable and has even been outlawed in some states. If valid, however, such licenses would preclude a lawful purchaser from making copies under this section.

165. See Final Report of the Commission on New Technological Uses of Copyrighted Works at 13.

166. Atari, Inc. v. JSA, Inc., 597 F.Supp 5, 9-10.

167. See nt. 76, supra.

168. Conveniently, some (including NEH) have already adopted pre- 1950 materials as the target group. Of course, some would like to convert much more recent materials and these comments obviously do not apply to them.

169. But see discussion at note 144 et seq.

170. This point is reinforced by section 108(h) which evidences a statutory intent to permit greater latitude to preservation copying than other forms of copying. There, all the copying permitted under 108 generally is denied for the copying of films, audio-visual works, etc. However, the copying of such works for preservation purposes under 108(b) and (c) is expressly permitted.

171. Seltzer, nt. 102, supra, at 71. Seltzer does point out at 72 that without the express exemption in 108, preservation copying would put the notion of fair use at some strain.

172. S.Rept. 94-473, supra nt. 137 at 66 (1975).

173. 1983 Report of the Register of Copyright, nt. 3, at 98.

174. See discussion of 108(g) supra.

175. If not immediately, at least in the near term.

176. See infra for some specific statutory language offered for consideration.

177. Or, if disk or paper copies are made, the copies were destroyed after reading, as in Sony.

178. See infra.

179. Conversations with Tamara Swora, March 29 and April 1, 1990.

180. Library of Congress, draft policy. Internal memo dated March 9, 1990.

181. Conversation with Patricia McClung, March 4, 1990.

182. National Preservation Plan for the Biomedical Literature, (Mimeo 1988).

183. Hayes, Robert M. "Final Report of the Working Group on Compensation for Intellectual Property Rights in the Context of Full-Text Storage and Retrieval of Scientific and Technical Information" p.4, National Library of Medicine, 1983.

184. Letter from Harold Schoolman, Deputy Director for Research and Education, National Library of Medicine, dated January 31, 1983.

185. Id.

186. Reported to the author at a meeting at NLM on October 16, 1989.

187. For preservation filming done under contract for libraries, the library takes responsibility for obtaining whatever permission is necessary, or certifying that the material is in the public domain or that the copying is lawful under section 108 of the Copyright Act.

188. Phone conversation with Joe Fitzsimmons, March 16, 1990.

189. See generally Second Report of the Register of Copyrights on Library Reproduction of Copyrighted Works (17 U.S.C. 108) at 39 et.seq. (January 1988).

190. Crowther, "Quantifying the Sales Push" April 8, 1988 Publishers Weekly, 15.

191. The mean number of months a book remains in print was reported to be 43.07 but that included "classics", textbooks, and reference materials that basically never go out of print. Of the total, about 40% indicated a life expectancy of between 31.6 and 41.4 months. Id.

192. Id.

193. See Morse, Library Effectiveness: A System Approach 93 (M.I.T., 1968).

194. Steuben, "Interlibrary Loan of Photocopies of Articles Under the New Copyright Law", 1979 Special Libraries 227, 230 (May/June 1979).

195. Lovell, "The Production of Economic Literature: an Interpretation", 11 J. Econ. Lit. 27, 45 (1973). Of course, these figures represent the entire body of literature in the discipline. Exceptions will occur for individual reference works and other works frequently revised and issued in new editions.

196. Seltzer, supra, nt. 102.

197. See discussion at nt. 116, supra.

198. Quoted in 1983 Report of the Register of Copyrights, supra, nt. 3 at 337.

199. Id. at 340.

200. Id. at 338.

201. Royalty information on individual publications has been compiled by the CCC into a book known as the Publisher's Photo-copy Fee Catalog and is also available on software. The software not only provides a list of royalties, it also provides a mechanism for storing information about items copied. The disk or a print-out can be sent to the CCC for invoicing.

202. A list of publishers currently participating in the annual authorization service of the CCC is attached as an appendix to this report. Although the list is lengthy, many will be found missing.

203. For a good discussion of compulsory licenses generally, and compulsory licenses for cable TV in particular, see Hyman, "The Socialization of Copyright: The Increased Use of Compulsory Licenses", 4 Cardozo Arts & Entertainment Law Journal 105 (1985).

204. Compulsory licenses first came into U.S. copyright law for the reproduction of copyrighted music. Under the 1909 Copyright Act, once the copyright owner had licensed the first recording, subsequent recordings of the same musical composition could be made by paying a royalty. With a few changes, this basic scheme was carried forward into the Copyright Act of 1976 (17 U.S.C. 115). The 1976 Act also added compulsory licenses for jukeboxes (17 U.S.C. 116), public broadcasting (17 U.S.C. 118), and cable television (17 U.S.C. 111).

205. Indeed, one of the principal conclusions of a Rand Corp. study was that "collective administration should be limited to instances in which infringements cannot be dealt with individually." [Emphasis added.] See Besen & Kirby, Compensating Creators of Intellectual Property p. vi (Rand, 1989).

206. See generally Office of Technology Assessment, Intellectual Property Rights in an Age of Electronics and Information (1986).

207. See generally 37 C.F.R. Sec. 303 to 308 (July 1987).

208. At least 15 jurisdictions have Reproducing Rights Organizations. They include: Great Britain (Copyright Licensing Agency), Australia (The Copyright Agency Ltd.), Canada (CanCopy), Quebec (Union des Ecrivains Quebecois), Norway (Kopinor), Austria (Musikedition), the Federal Republic of Germany (VG Wort), Austria (Literar-Mechana), Denmark (Copy-Dan), Finland (Kopiosto), France (Centre Francais du Copyright), Spain (Centre Reprograficos), Iceland (Fjolis), the Netherlands (Stichting Reprorecht), South Africa (Dramatic Artistic and Literary Rights Organization), Sweden (Bonus), and Switzerland (Pro Litteris- Teledrama). See generally 1988 Report of the Register of Copyrights 87 et.seq. (1988). See also 1 Rights 12 (Spring 1987) and Besen and Kirby, Compensating Creators of Intellectual Property: Collectives that Collect 45 et. seq. (Rand 1989).

209. Although in United States the CCC is made up of individual publishers, in Great Britain the Copyright Licensing Agency (CLA) is composed of organizations representing publishers. In Germany authors and publishers can be individual members of the organization while in Norway authors and publishers are represented by their respective organizations.

210. See Karnell, "Extended Collective License Clauses and Agreements in Nordic Copyright Law", 10 Columbia-VLA Journal of Law & the Arts 73 (1985).

211. In Britain, the fee is 1.1p per page; in Germany, it is DM 0.05 per page from a school book and DM 0.02 per page for all other copying; in France it is 10 centimes per page; in Switzerland, the price is 6 Swiss centimes per page, and in the Netherlands the fee is 0.025 guilder per page for scientific publications and 0.10 guilder per page for other publications. In most of the Scandinavian countries except Finland pricing is also on a per page basis.

212. The information on oversight is drawn largely from Besen and Kirby, supra nt. 209.

213. Laws of Great Britain, 1988 Current Law States Annotated c.48, Sec. 130 (Sweet & Maxwell 1989).

214. Legislative history should provide illustrations of deteriorating media but should be sure to state that they are non-exclusive.

215. See nt. 215, supra.

216. Discussion draft of S.B. 1839, Sec. 241, "Purpose", 41.

217. "Commission on Preservation and Access" [3], mimeo (January 1988).

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