HR 94_1476

 

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 guage [sic] 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.


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 context of typical classroom situations 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 parties 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
material, music, and audio-visual material, were held beginning in
September 1975.


In a joint letter to Chairman Kastenmeier, dated March 19, 1976,
the representatives of the Ad Hoc Committee of Educational 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 tentative
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
minimum standards of educational fair use under Section 107
of H.R. 2223. The parties agree that the conditions determining
the extent of permissible copying 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 permitted
under the criteria of fair use.


GUIDELINES
I. 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;
II. 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 spontaneity
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,
whichever is less, but in any event a minimum of 500 words.
69
[Each of the numerical limits stated in "i" and "ii" above
may be expanded to permit the completion of an unfinished
line of a poem or of an unfinished prose 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 notwithstanding
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 10% 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
multiple 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
substitute for anthologies, compilations or collective works.
Such replacement or substitution may occur whether copies
of various works or excerpts there from are accumulated 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.
70
(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.


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 publishers
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 representatives 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 minimum
and not the maximum standards of educational fair use
under Section 107 of HR 2223. The parties agree that the
conditions determining the extent of permissible copying 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 permitted
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 performance
provided purchased replacement copies shall be substituted
in due course.
2. (a) For academic purposes other than performance,
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 section, movement
or aria, but in no case more than (10% of the whole
work. The number of copies shall not exceed one copy per pupil.
(b) For academic purposes other than performance, a
single copy of an entire performable unit (section, movement,
aria, etc.) that is, (1) confirmed by the copyright proprietor
to be out of print or (2) unavailable except in a larger work,
may be made by or for a teacher solely for the purpose of his
or her scholarly research or in preparation to teach a class.
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 individual
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 institution or an individual
teacher for the purpose of constructing 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 anthologies,
compilations or collective works.
2. Copying of or from works intended to be "consumable" in
the course of study or of teaching such as workbooks, 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 purchase
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.


The problem of off-the-air taping for nonprofit classroom use of
copyrighted audiovisual works incorporated in radio and television
broadcasts has proved to be difficult to resolve. The Committee believes
that the fair use doctrine has some limited application in this area,
but it appears that the development of detailed guidelines will require
a more thorough exploration than has so far been possible of the needs
and problems of a number of different interests affected, and of the
various legal problems presented. Nothing in section 107 or elsewhere
in the bill is intended to change or prejudge the law on the point. On
the other hand, the Committee is sensitive to the importance of the
problem, and urges the representatives of the various interests, if possible
under the leadership of the Register of Copyrights, to continue
their discussions actively and in a constructive spirit. If it would be
helpful to a solution, the Committee is receptive to undertaking further
consideration of the problem in a future Congress.


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
criticizing 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 representatives 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. Teachers kill 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 Committee expresses the hope that if there are areas
where standards other than these guidelines may be appropriate, the
parties will continue their efforts to provide additional specific guidelines
in the same spirit of good will and give and take that has marked
the discussion of this subject in recent months.


Reproduction and uses for other purposes
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 relative weight to be given them
will differ from case to case.


The fair use doctrine would be relevant to the use of excerpts from
copyrighted works in educational broadcasting activities not exempted
under section 110(2) or 112, and not covered by the licensing
provisions of section 118. In these cases the factors to be weighed
in applying the criteria of this section would include whether the
performers, producers, directors, and others responsible for the broadcast
were paid, the size and nature of the audience, the size and number
of excerpts taken and, in the case of recordings made for broadcast,
the number of copies reproduced and the extent of their reuse
or exchange. The availability of the fair use doctrine to educational
broadcasters would be narrowly circumscribed in the case of motion
pictures and other audiovisual works, but under appropriate circum73
stances it could apply to the nonsequential showing of an individual
still or slide, or to the performance of a short excerpt from a motion
picture for criticism or comment.


Another special instance illustrating the application of the fair
use doctrine pertains to the making of copies or phonorecords of
works in the special forms needed for the use of blind persons. These
special forms, such as copies in Braille and phonorecords of oral
readings (talking books), are not usually made by the publishers for
commercial distribution. For the most part, such copies and phonorecords
are made by the Library of Congress' Division for the Blind
and Physically Handicapped with permission obtained from the
copyright owners, and are circulated to blind persons through regional
libraries covering the nation. In addition, such copies and
phonorecords are made locally by individual volunteers for the use
of blind persons in their communities, and the Library of Congress
conducts a program for training such volunteers. While the making
of multiple copies or phonorecords of a work for general circulation
requires the permission of the copyright owner, a problem addressed
in section 70 of the bill, the making of a single copy or phonorecord
by an individual as a free service for a blind persons would
properly be considered a fair use under section 107.


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 inevitably decompose in time. The efforts of the Library
of Congress, 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."


When a copyrighted work contains unfair, inaccurate, or derogatory
information concerning an individual or institution, the individual
or institution may copy and reproduce such parts of the work as are
necessary to permit understandable comment on the statements made
in the work.


The Committee has considered the question of publication, in Congressional
hearings and documents, of copyrighted material. Where
the length of the work or excerpt published and the number of copies
authorized are reasonable under the circumstances, and the work
itself is directly relevant to a matter of legitimate legislative concern,
the Committee believes that the publication would constitute 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 photocopying, 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 com74.
mercial 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
copyrighted work by a student calligrapher or teacher in a learning
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 section and the provisions
of section 108 relating to reproduction 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.

 
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