The Illustrated Story of Copyright
© 2000 by Edward Samuels

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Part One
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Copyright and Technology

[11]

CHAPTER ONE

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Books and Other Literary Works

 

 

 

The Printing Press—The First
Copyright Technology
 

 

[10] Printing presses.
A sixteenth-century engraving of a print shop. The pressman at right might be able to “pull the bar” three thousand times in a twelve-hour day.

[10] The first American printing press.
This press was brought to the American colonies and set up at Harvard in 1640 by Stephen Day.

[10] A nineteenth-century rotary printer could print tens of thousands of impressions an hour.

For most of Part One, we’re going to be focusing upon twentieth-century technologies. But in order to understand their impact on copyright, we must go back over five hundred years to the first copyright technology, the printing press. The movable type printing press was developed by Johann Gutenberg in Germany around 1440, and introduced to England by William Caxton in the last quarter of the fifteenth century. Prior to that time, it wasn’t all that important to think about the rights of authors in books because it was so expensive and time-consuming to produce books that few were in fact duplicated. With the printing press, however, it became possible to reproduce books in multiple copies, by the hundreds or even the thousands.  
 

[11] The early production of books.

In the heyday of the Greek and Roman civilizations, books were generally reproduced for wealthy patrons by scribes or slaves. Atticus, the Roman literary patron, went into the book publishing business, and with his slaves, it is said, he could produce one thousand copies of a small volume in a single day. From about A.D. 500 through 1500, the primary keeper and reproducer of books was the church, using the labor of thousands of monks who were supported primarily by their farms. In the twelfth and thirteenth centuries, universities started getting into the business of producing books, using paid scribes. Around 1440, Gutenberg introduced the movable type printing press to the Western world, an invention that for the first time allowed the efficient mass production of books.


[12] The Age of Authorship . . .

Prior to the printing press, the concept or appreciation of “authorship” was not well developed. Instead, it was the owners of the copies who were more likely to be compensated for the right to reproduce the books.

    Wandering clerics and pious travelers entrusted their manuscript treasures to the monastic and cathedral libraries, which vied for the best-collated versions of sacred texts and received substantial fees for the right to copy them. . . .  The age of “authorship” had not yet arrived. When reading a sacred text, medieval scholars were quite indifferent to the identity of the author.

                            -Daniel J. Boorstin. 

[12] Magic was everywhere . . .

The revolution of the printing press was celebrated by Carl Sagan in his remarkable television series and book Cosmos:

    For thousands of years, writing was chiseled into clay and stone, scratched onto wax or bark or leather; painted on bamboo or papyrus or silk—but always one copy at a time and, except for the inscriptions on monuments, always for a tiny readership. Then in China between the second and sixth centuries, paper, ink and printing with carved wooden blocks were all invented, permitting many copies of a work to be made and distributed. It took a thousand years for the idea to catch on in remote and backward Europe. Then, suddenly, books were being printed all over the world. Just before the invention of movable type, around 1450, there were [13] no more than a few tens of thousands of books in all of Europe, all handwritten; about as many as in China in 100 B.C., and a tenth as many as in the Great Library of Alexandria. Fifty years later, around 1500, there were ten million printed books. Learning had become available to anyone who could read. Magic was everywhere.


The Statute of Anne, 1710

 

[13] Statute of Anne, 8 Anne C. 19 (1710).
The date on the statute indicates that it was passed in March 1709. At that time, March 25 was considered the first day of the calendar year. Beginning in 1752, the formal new year was moved back to January 1; dates in the early months of prior years were by convention identified as if they fell under the new calendar. So March 1709 became March 1710.

In the 1550s, the Stationers’ Company was chartered by royal decree, and effectively controlled the printing and dissemination of books throughout England. This arrangement not only served the interest of the crown in regulating the content of books; it also protected the investment of the first company to publish a given book [12] by effectively eliminating piracy. In addition, as in other countries throughout Europe, authors would petition the crown for the exclusive right to print their books within the country for a set number of years.

 

            In the late seventeenth century, the sentiment against specialized “monopolies” grew, and in 1694, Parliament allowed the old Stationers’ Licensing Acts to expire. The publishers argued that they had a “common law” right of exclusivity in the works they published, but such a right was no longer supported by statute. At the beginning of the eighteenth century, they lobbied Parliament to renew the old licensing acts, but Parliament refused. Instead, in 1710, Parliament passed a remarkable statute that for the first time protected the rights of authors rather than publishers of books. It was entitled “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.”

 

            The new statute represented a careful balancing of interests. On the one hand, the authors’ rights were quite extensive, and the remedies for violation of the statute were severe. On the other hand, there were some considerable limitations on the authors’ new rights. For one thing, the rights created under the statute lasted no more than twenty-eight years. In addition, the authors had to publicly register their claims of authorship, in order to protect the “many Persons” who “through Ignorance” might otherwise “offend against this Act.” Another requirement was that authors registering under the statute had to deliver nine copies of each book to the warehouse keeper designated in the statute, to be made available “for the Use of the Royal Library, the Libraries of the Universities of Oxford and Cambridge, the Libraries of the four Universities in Scotland, the Library of Sion College in London, and the Library commonly called the Library belonging to the Faculty of [13] Advocates at Edinburgh.” Failure to deliver such copies could result in a forfeiture of the value of the printed copies of the books, plus £5 for every copy not so delivered. Quite a public works statute! If authors wanted the rights granted by Parliament, they had to donate books to all the major libraries.

 

[14] Early grants of monopoly.

Many authors received specific grants of monopoly prior to the development of copyright. Many, however, were unable to adequately protect their rights. Cervantes, for example, was able to sell the publishing rights in some of his books for a substantial price. But pirated editions of Don Quixote  abounded, because Cervantes’s publisher only secured the official printing privilege for limited areas. One bold pirate wrote an entire fake sequel.

[15] The “right” in “copy.”
Shortly after William Caxton introduced the printing press to England in the fifteenth century, there were more books than there were educated people to read them. Such an imbalance between the supply and demand for books led to economic disaster for many printers, and pressure to regulate and protect the book publishing business. The charter of the Stationers’ Company in 1556 granted its members (the leading publishers in London) an officially state-sanctioned monopoly over the printing of books, and provided for the burning of prohibited books and the imprisonment of anyone printing unauthorized books.
            Toward the end of the seventeenth century, members of Stationers Hall recognized among themselves the rights in “copy,” and agreed that, once one of their members published a particular book, other members would not print copies of the same book. This practice was supported by a series of special licensing acts. However, in 1694, the last of these licensing acts expired, and independent printing businesses began springing up all over England.

         

[16] The embarrassing precursor to the statute.

Some modern critics of the expansion of copyright delight in emphasizing the embarrassing precursor to the Statute of Anne, suggesting that copyright has been forever tainted by the fact that it evolved from what were essentially censorship laws. However, there was a critical gap in protection, from 1694 through 1710, and the new Statute of Anne was not simply an extension of the previous law. Parliament seems not to have been guided by the complaints of the publishers, who in 1709 had lobbied for a return to the old licensing acts. Instead, they were obviously influenced by the pleas of several famous authors for the recognition of rights not of printers, but of authors. (It has been suggested that Joseph Addison and Jonathan Swift were responsible for the 1709 draft of [17] the law, but that account has since been discredited.)

            One way of putting the Stationers’ Licensing Acts into perspective is to realize that they were not the spiritual precursors to copyright at all. However, because the crown and the publishers had found a way to protect the rights of publishers, and the publishers were accordingly willing to pay authors for their creations, a satisfactory solution had been worked out that eased the pressure for a more direct copyright law to protect authors. Once the stopgap measure was removed, the need for the protection of authors’ rights came to the fore.


The U.S. Constitution, 1787

 

Over two hundred years ago, elected representatives gathered at a constitutional convention in Philadelphia to establish a new American government. There were many concerns on the agenda, including the desires “to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,” according to the Preamble to the U.S. Constitution (1787). These framers of our constitution also established a system that was specifically designed “to promote the Progress of Science and useful Arts,” by giving Congress the power to grant “to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

 

[18] State copyright laws under the Articles of Confederation.

Prior to 1789, the United States was governed by the Articles of Confederation. Since those Articles didn’t give sufficient power to the central government, Congress had in 1783 passed a resolution recommending that each of the thirteen states adopt a copyright law. All states but Delaware passed such a law.

          The preambles in some of the state statutes passed under the Articles of Confederation were even more effusive than their later federal counterpart. For example, in Connecticut’s 1783 statute, the preamble stated that

    it is perfectly agreeable to the principles of natural equity and justice, that every author should be secured in receiving the profits that may arise from the sale of his works, and such security may encourage men of learning and genius to publish their writings; which may do honor to their country, and service to mankind.
     

    The Massachusetts statute of the same year served also as a model for New Hampshire and Rhode Island:
     

    [T]he improvement of knowledge, the progress of civilization, the public weal of the community, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciences: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves; and as such security is one of the natural rights of all men, there being no property more peculiarly a man’s own than that which is produced by the labour of his mind.


           
What did these people mean by “the exclusive Right” of “Authors” in their “Writings”?* They were referring to the copyright law they knew from the British system. The premise is amazingly simple, and yet profound. In exchange for the works contributed to society by creative people, as an inducement to get them to create, we grant them special rights in what they create. Basically, we recognize a property right in creative works, and give that right initially to the authors of those works. What the framers of the Constitution envisioned was a system in which we don’t have to pay all authors in advance in order to get them to create their works. Instead, we pay them in rights—rights in the very works that they create. [14] Today, these rights include, among other things, the exclusive rights to make and distribute copies of the works—and by “exclusive” right, we mean the right to prevent others from copying and distributing copies—with many limitations that we’ll discuss later. If other people come to value an author’s work, then they’ll be willing to pay the author (or the author’s publisher) for copies. Thus, the grant of exclusive rights can represent a source of income to the author, who can sell individual copies of the work; or—and this is important—the author can sell to someone else, such as a publisher, the exclusive right to make and distribute further copies of the work. What we’ve done is create a property right that the successful author can either exploit directly, or sell to someone else. Just as important, if it turns out that nobody particularly values the author’s work, then no one has to pay a dime for it.

 

*Exclusive rights, see p. 166.

 

            In The Federalist Papers, James Madison gave pretty much the only official explanation we have of the purpose of this constitutional provision: “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain . . . . The public good fully coincides . . . with the claims of individuals.”

 

The First U.S. Copyright Law, 1790

 

[15] The Father of American Copyright.

Noah Webster crusaded to obtain copyright protection not only for his successful spelling books and dictionaries, but generally for all authors. Under the Articles of Confederation, he personally traveled around the country to lobby each legislature to pass a copyright statute. He also maintained an active correspondence with many of the drafters of the Constitution, and early members of Congress and the administration, some of whom were authors themselves—including James Madison, George Washington, Thomas Jefferson, and Alexander Hamilton. This engraving is from a Samuel F. B. Morse portrait of Webster. Webster’s lobbying efforts continued through 1831, when he successfully argued for an extension of the period of copyright protection. The extension bill was introduced and supported by his son-in-law, William W. Ellsworth, in the House, and his cousin, Daniel Webster, in the Senate.                             

            Webster’s American Spelling Book  of 1783, which eventually sold over 30 million copies, and his American Dictionary of the English Language, published in 1838 when he was in his seventies, were instrumental in developing a standard form of English for the new country.

President George Washington addressed a joint session of the First Congress in January 1790. In his speech, he urged the new Congress that “there is nothing which can better deserve your patronage than the promotion of science and literature.” He went on: “Whether this desirable object [knowledge] will be best promoted by affording aids to seminaries of learning already established, by the institution of a national university, or by any other expedients, will [15] be well worthy of a place in the deliberations of the legislature.”

 

            Congress responded with an address to the president: “We concur with you in the sentiment that . . . the promotion of science and literature will contribute to the security of a free Government; in the progress of our deliberations we shall not lose sight of objects so worthy of our regard.”

 

            At the same time, the First Congress had received petitions from several authors asking for the grant of exclusive rights to print their books, and had considered a bill that would generally grant exclusive rights to authors. In response, the House ordered “That a committee be appointed to prepare and bring in a bill or bills, making a general provision for securing to authors and inventors the exclusive right to their respective writings and discoveries.” The appointed committee reported back such a bill, and the House and Senate, pursuant to the power granted them under the Constitution, adopted it.

 

            On May 31, 1790, the president signed the first U.S. national copyright law, “An Act for the encouragement of learning.” Following the basic structure of its English predecessor, it granted to the authors of “maps, charts,* and books” the exclusive right to “print, reprint, publish or vend” their works for a period of up to twenty-eight years. The penalty for violating such rights was that

 

such offender . . . shall forfeit all and every copy . . . of such map, chart, book, or books, and all and every sheet . . . , being part of the same . . . to the author or proprietor . . . who shall forthwith destroy the same: And every such offender and offenders shall also forfeit and pay the sum of fifty cents for every sheet which shall be found in his or their possession . . . contrary to the true intent and meaning of this act . . . .

 

*Maps and charts, see p. 131.

 

[16] There were other similarities to the English Statute of Anne, including the requirement that one copy of the work be deposited with the clerk of the local district court, and one copy be delivered to the secretary of state—at the time, Thomas Jefferson—“to be preserved in his office.” What a way to build a library! Jefferson must have loved it.


 

[16] No man but a blockhead.

    No man but a blockhead ever wrote, except for money.
                                                   -Samuels Johnson

[16] Freedom of Speech.

The First Amendment, passed by Congress in 1789 and ratified by the requisite three-fourths of the states in 1791, provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.”

           One might have argued that our society would be best served by allowing the printers to print away, whatever they wanted, since obviously democracy required uncensored discourse. Indeed, the First Amendment, almost contemporaneous with the U.S. Constitution and the first copyright act, specifically affirmed freedom of speech and of the press as basic tenets of our new government.  And yet, the same lawmakers also saw that freedom of speech didn’t mean freedom to “steal” someone else’s speech. If we didn’t grant some level of protection to authors, then the authors might decide to stop writing, and we would kill the goose that lays the proverbial golden egg. 


           
The granting of property rights in creative works isn’t the only way to foster creativity. We could decide not to grant special rights to our writers, and trust that the good ones will be able to get enough money from public or private sources to continue their good work, either by grants or through tangentially related jobs (like playing the organ or waiting on tables). But the primary solution our society has adopted, following the model of England and of the rest of the world, is to support the arts indirectly by creating economic incentives for people to create the works.

 

[17] Federal Hall.

The first American federal copyright law was passed by Congress at Federal Hall in New York, the federal capital at the time. This 1798 watercolor by Archibald Robertson shows Federal Hall, with Trinity Church in the background. The House met on the first floor (the “lower chamber”) and the Senate on the second floor (the “upper chamber”).

            It’s not a perfect system. There are probably many deserving works that for one reason or another aren’t going to succeed in the marketplace. But how many starving artists would toil away at their trade if it weren’t for the prospect, however remote, that if they make it big, they will be handsomely rewarded? Since the odds of any creative person’s actually succeeding are rather [17] small, we have to make the payoff, if they’re successful, sufficiently large to tempt them.

 

            I call it the lottery incentive theory. If you make the jackpot big enough, a lot of people will wait in line to buy tickets, even if the odds against winning are astronomically high. And it’s a relatively cheap system, because you don’t have to pay off very many of the participants to keep them playing.

  

The Photocopying Machine

 

Early printing presses were quite laborious to use, allowing a printer to press pages only one sheet at a time. Over the years, the process was mechanized, so that paper was fed automatically on fast rotary presses. Yet, the general principles remained remarkably unchanged for about five hundred years. Most printing presses through much of the twentieth century still required the setting of type; the creation of a plate, usually made of metal; and the transfer of ink to paper by pressing the paper against the plate.

 

[18]      A new printing process was invented by Chester F. Carlson in 1938. The process, dubbed xerography  (from xeros, the Greek word for “dry,” and graphein, “to write”), used an electrostatic dry-printing process. The dark parts of a picture are negatively charged with electricity, and the light parts have their charge reduced by exposure to light. A positively charged toner powder sticks to the darker portions, but not the lighter portions; a heater seals the toner on the page. As recently as the 1950s, the process was thought of primarily as an alternative printing process. But in the 1960s, the Xerox Corporation began marketing the machine as a copier. For the first time in history, it became possible cheaply and efficiently to make copies of any type of document—including words and images—without having to go through the laborious process of making a new plate.

  

[19] Photocopiers and Document Reproduction.

The photocopiers commonly found in offices and classrooms use electric charges to transfer the image of an original document to a plain piece of paper. The document to be copied is placed face down on the platen and illuminated by a lamp. Its image is directed to a negatively charged (electrostatic) metal drum by a series of mirrors. Where light strikes the drum, the charge disappears, so that dark areas remain charged. Next, positively charged particles of toner powder are brushed onto the drum. These stick only to the charged areas. (The first—and second—erase lamps remove the charge on the drum between different copying tasks.) The image on the drum is then transferred to a piece of paper that has been given a negative charge by the transfer charger. A heater is used to seal the toner to the paper, which is why copies are warm when they emerge.

                                                -Microsoft Encarta

[19] Chester Carlson.

    While a student at New York Law School in 1938, Chester Carlson, a physicist and former engineer at Bell Labs, invented xerography, the process that revolutionized office work. . . . Carlson, who used his legal training to patent each step of his invention as he developed it, became a wealthy philanthropist and gave away much of the $150 million he earned from his invention.
                        -Text from lobby display at
                          New York Law School.

 

            The new technology proved to be revolutionary. Businesses adopted it with a vengeance. But what if people used the new technology not only to copy business documents that they had produced but also works created by others, and in which others traditionally owned the exclusive right to make copies? What would happen to copyright in an era of free and easy access to the means of making multiple copies of copyrighted works?

 

            Curiously enough, as it turns out, the photocopying threat to copyright has not been unmanageable for traditional entertainment works. Although books, magazines, and newspapers can be photocopied, the cost and labor of making copies is still great enough that photocopying has not replaced these industries. Although people may occasionally copy passages of their favorite books, poems, or artwork, the result is still a photocopy that is not as convenient to use, frequently not as pleasing to view, and often not much cheaper than buying the original. So, while it might be a technical copyright infringement for people to make copies [20] of these works, the inability of the copyright owners to control photocopying at the fringes of their markets has not significantly undercut these markets.

 

            The greatest impact of the photocopier has been in the scholarly or research use of works, primarily nonfiction works. Libraries, educators, and businesses have felt a need to reproduce copyrighted works for their serious scholarly and research purposes, and such photocopying has indeed threatened the market in many of these works. The legal framework for dealing with these arguably beneficial uses of copyrighted works has been the concept known as “fair use.”* The issue, in each of these contexts, is whether a certain amount of photocopying of copyrighted works is a fair use (and therefore not a copyright infringement) or is not a fair use (and therefore an infringement of copyright). As we shall see, the answer, and the method of finding the answer, are very different in the different contexts—library, education, and business uses.

 

*Fair use, see p. 190.

 

          Library Photocopying

           

Williams & Wilkins Company is a publisher of medical and scientific journals, such as Journal of Immunology, Medicine, and Gastroenterology.  In 1968, the company sued the National Library of Medicine and the National Institutes of Health for copyright infringement of its journals. The Library and the Institutes, U.S. government organizations, did not simply make photocopies of single pages from the medical journals: instead, they had a sophisticated photocopying operation, sometimes referred to as a “factory type of photocopying,” that supplied bound photocopies of articles from any of the journals in their collection to doctors and researchers throughout the country.

 

[21] The National Institutes of Health.

The NIH is not exactly a small operation. This aerial photo shows the sprawling NIH complex in Bethesda, Maryland. The arrow points to a square building, the National Library of Medicine.

            The case pitted two worthy causes against each other. On the side of the publisher, Williams & Wilkins argued that such massive photocopying clearly violated its copyright, which granted it the exclusive right to make copies of its works. Such massive photocopying also threatened to undercut subscriptions to its journals. Most of its journals had relatively limited subscription bases of only a few thousand doctors, researchers and libraries throughout the country, and so the cost of each subscription had to be fairly high in order to cover the costs of publication. If doctors figured out that they didn’t have to subscribe to the journals, [21] but could get copies of desired articles from the government practically for free, then they might balk at continuing their expensive subscriptions. To allow massive photocopying in the name of science was not only unfair; it could have the effect of putting the publishers out of business.

 

            On the other side, the government argued that it was absolutely essential to the scientific and medical communities that vital information be available to researchers in their fields, and that photocopying of individual articles was necessary to fulfilling the missions of the Library and the Institutes. They claimed that their actions were protected by the fair use doctrine. Indeed, in 1935, library and publishing representatives had entered into an informal understanding that “single photographic reproductions” of copyrighted works for scholars “in lieu of loan of such publication or in place of manual transcription and solely for purposes of research,” and without any profit to the library, was allowed. Of course, that was before the advent of the modern photocopying machine. Yet, the Library and Institutes insisted that they had internal guidelines that limited photocopying to individual requests for scholarly and research purposes, and that protected against abuse of the privilege. Indeed, most of the journals in their collections were published by nonprofit medical [22] societies (as opposed to Williams & Wilkins, one of the few private publishers for profit), or the individual authors had contributed their articles to the journals on a nonprofit basis.

 

            At the time of the case, “fair use” was a judge-made doctrine that provided something of an escape valve to what might otherwise be a harsh application of the copyright standards. In certain circumstances, a technical violation of copyright could be excused on public policy grounds. The government argued that social policy favored open access to information, and that the publishers could not in fact show that they were actually harmed by the photocopying, or demonstrate that subscriptions were being canceled because of the Library and Institutes’ photocopying practices.

 

[22] The cautious court opinion.

    First, plaintiff has not in our view shown, and there is inadequate reason to believe, that it is being or will be harmed substantially by these specific practices of NIH and NLM; second, we are convinced that medicine and medical research will be injured by holding these particular practices to be an infringement; and, third, since the problem of accommodating the interests of science with those of the publishers (and authors) calls fundamentally for legislative solution or guidance, which has not yet been given, we should not, during the period before congressional action is forthcoming, place such a risk of harm upon science and medicine.
                       -Williams & Wilkins Co. v. U.S.,
                         
    opinion of the Court of Claims.

             In response, Williams & Wilkins claimed that it was not trying to stop scientific research, but only to obtain a fair return for its contribution. It offered to authorize the government to make photocopies at the nominal cost of 2 cents per photocopied page, a modest fee compared to the other costs of photocopiers, supplies, and labor. The government, however, refused the offer. Other libraries, through the Association of Research Libraries and the American Library Association, voted to support the National Library of Medicine and the Institutes. It was clear that this was not simply a lawsuit against two government entities, but the test case that would help to define photocopying practices throughout the library community.

 

            The case was brought in the Court of Claims, the exclusive court for claims against the United States, and assigned for trial to Commissioner James Davis. At the trial, Davis found in favor of Williams & Wilkins. On appeal, the case was reversed by the Court of Claims in a 4-3 vote. The majority held that the photocopying qualified for fair use, and the dissent characterized that decision as the “Dred Scott decision of copyright law.” On appeal from that decision, the U.S. Supreme Court split evenly 4 to 4, with one justice not participating. The effect of the Supreme Court split was to affirm the Court of Claims decision in favor of fair use. So, while all of the judges who participated in the decision [23] of the case had split 8 to 8, the decision was a squeaker in favor of fair use.

 

            The case was not the last word on the subject. Even the Court of Claims decision had pointed out that Congress was already considering the matter in its long-term revision of the Copyright Act. Their awareness of the issue heightened by the suit, the libraries lobbied vigorously for a broad library exemption to copyright to allow for photocopying of works in their collections. Although librarians did not get the blanket exemption they had hoped for, they did get a specific though complicated section that, at least in limited contexts, allowed for photocopying by public libraries and archives.

 

[23] Cartoons by Bion Smalley.

            The new provision, section 108 of the Copyright Act of 1976, has several main features. First, it limits the exception to libraries and archives that make their collections open to the public. Next, it limits copying to relatively small portions of works, or to copies that are made “solely for purposes of preservation or security,” or “solely for the purpose of replacement of a copy . . . that is damaged, deteriorating, lost, or stolen,” or for copies that are made for researchers “if the library or archives has [24] first determined, on the basis of a reasonable investigation, that a copy . . . of the copyrighted work cannot be obtained at a fair price.” The section also allows a library to provide photocopying machines for the unsupervised use of its patrons, so long as the “equipment displays a notice that the making of a copy may be subject to the copyright law.”

 

            The balance that was struck allows for “the isolated and unrelated reproduction” of single copies, but, in the language of the statute, does not extend to “the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group.” Thus, a library isn’t supposed to fulfill copy requests by a patron for chapter one one day, chapter two the next day, and so on, with the effect that the patron copies more than is otherwise allowed under the statute. Similarly, a library isn’t supposed to fulfill the requests of, let’s say, twenty students, each of whom was instructed by a professor to have a copy made.

 

            The debate in Congress centered upon the relationship between copyright and the emerging interlibrary loan system, which Congress wanted to foster. In response to fears that copyright might inhibit development of that system, Congress added the proviso that “nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such works.” This language was not very helpful, since it really didn’t tell the librarians when an interlibrary loan system had the “purpose” or “effect” of substituting for a subscription.

 

[23] “It’s the new Copyright Compliance Center. We used to call it a library.”

             Congress delegated the issue to a specially created Commission on New Technological Uses of Copyrighted Works (CONTU), which came up with the suggestion that requests within any calendar year for six or more copies of articles from the same periodical or book constituted a “substitute” for a subscription to the periodical or purchase of the book, so that libraries requesting six or more copies through an interlibrary loan system should purchase their own subscription or book. These guidelines represented a rare attempt to provide a “bright line” rule that everyone could understand and apply. However, the guidelines came too late to [25] include them in the 1976 Act. Instead, the conference committee simply cited them approvingly, stating that they considered the guidelines “to be a workable and fair interpretation of the intent” of the statute.

 

            So, are the guidelines law or not? They’re not part of the statute, but buried in the legislative history. What we have here is a commendable attempt to draw a bright line, though maybe not as brightly drawn as the parties may have desired.

 

            In any event, we now have a legislative resolution of the library photocopying issue, and one that the parties have apparently learned to live with. The solution has not been left to the vagaries of case law development, but instead has been dictated by Congress in the statute itself. In the recent Digital Millennium Copyright Act* of 1998, Congress approved a few minor changes in the library photocopying section, thus indicating that, by and large, the section has worked well. The act, for example, was amended to allow the making of up to three copies of a work to replace a damaged, deteriorating, lost, or stolen copy; and an additional exception was added, allowing such copies “if the existing format in which the work is stored has become obsolete.” In the digital age, a work that is stored in a digital or other form that can only be read by obsolete equipment is as good as lost or stolen.

 

*Digital Millennium Copyright Act, see p. 112.

 

          Scholarly and Classroom Educational Photocopying

 

Another photocopying scenario that raised copyright concerns was the fairly rampant photocopying of copyrighted works for classroom distribution in schools and institutions of higher learning. In this context, Congress in 1976 chose not to pass a specific exemption, as in the case of library photocopying, but instead to rely upon the general principle of fair use.† Rather than leaving the doctrine entirely to judicial development, however, Congress for the first time codified the doctrine in section 107 of the new statute.

 

†Fair use, see p. 190.

 

            The one specific reference to the educational environment was the addition, fairly late in the legislative process, of the parenthetical language “allowing fair use for teaching (including multiple copies for classroom use).” The House Report explaining section 107 stated that the codification of fair use was “intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.” Yet, the new [26] language, making clear what was not clear before, certainly had the effect of enlarging fair use to include things that were not previously included.

 

            At the urging of Senator Robert Kastenmeier and other members of the Judiciary subcommittee, several concerned organizations conducted talks in 1975 to develop “guidelines” on the use of classroom copying in not-for-profit educational institutions. These organizations came up with a set of guidelines for determining the “minimum standards of educational fair use.” The guidelines allowed teachers to make copies of works for their own research purposes, at least up to a chapter from a book or an article from a magazine. The proposed scope of fair use for multiple copying for classroom use, however, was hemmed in by several key concepts. Multiple copies for classroom use were allowed if they met the tests of “brevity” (never more than twenty-five hundred words, and frequently no more than one thousand words), “spontaneity” (copying not to be repeated from term to term), and “cumulative effect” (generally no more than nine instances of multiple copying per course per term, with further limits on the number of works by any particular author).

 

[26] A process of accretion. 

    The specific working 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 reproduction of multiple copies of the members of a class.
                        -House Report to the 1976
                         Copyright Act.

             Much as it had in the case of the guidelines for library photocopying, discussed above, the House committee reported that it believed “the guidelines are a reasonable interpretation of the minimum standards of fair use.” The committee endorsement did not, however, have the status of law. Several organizations representing higher education, including the American Association of University Professors, denounced the guidelines, complaining that the “minimum” amount of allowed copying would become the norm, and thus hamper the educational process. So, yet again, what started out as an attempt to provide “bright line” rules that could be easily followed ended up merely complicating the issue. Were the guidelines applicable or weren’t they?

 

            A test case was brought against New York University and several of its professors; and many of us in the teaching profession hoped that the [27] result in that case would help to clarify the scope of fair use in the educational context. Alan Latman, who had represented Williams & Wilkins in its suit against the government and was the author of a major study on fair use for Congress, taught at the NYU School of Law (affiliated with New York University, not to be confused with New York Law School, founded in 1891, where I teach), and many of us thought that his involvement would assure a meaningful airing of the issues and a model for the rest of us to follow. Instead, the university settled the case in 1983 by essentially agreeing to instruct its professors to either follow the guidelines or obtain permission from copyright owners. Any professor who exceeded the guidelines and nonetheless wanted to make photocopies would have to get a determination by the university’s legal counsel that the copying was permitted under copyright. In the absence of such a determination, “no defense or indemnification by the University shall be provided to a faculty member whose photocopying gives rise to a claim of copyright infringement.”

 

            This was arguably a brilliant move by the university. With the settlement, they got off the hook on copyright liability, and left the primary risk upon the individual professors. The net result, at least at NYU, was that the guidelines that were specifically designed to be the minimum had effectively become the maximum. The settlement was not binding on teachers at other institutions, but it was also not exactly a victory for the educational community. If NYU wouldn’t stand by the copying of its professors, were other universities likely to do so?

 

            To this day, there has not been a definitive resolution of the issue in the educational setting, beyond the vague standards embodied in section 107 and the guidelines. Such a broadly drafted law, however, leaves most of the hard decision making to the courts as they decide individual cases, or to the teachers who must decide on their own just how much photocopying they think is appropriate under the circumstances.

 

          Photocopying in the Commercial Setting

 

[28] The Copyright Clearance Center.

The working of the Copyright Clearance Center is described in the district court opinion in the Texaco case as follows: 

                The CCC is a nonprofit, central clearing-house established in 1977 by publishers, authors and photocopy users which, as agent for publishers, grants blanket advance permission for a fee to photocopy copyrighted material registered with CCC, and forwards the fees collected to copyright owners, net of service charge. . . . As of 1990, approximately 8,000 domestic and foreign publishers had registered approximately 1.5 million publications with CCC.

                Currently, CCC offers two principal services for obtaining advance permission to photocopy copyrighted material that publishers have registered with the CCC. The first method, inaugurated in 1978, is called the Transactional Reporting Service (“TRS”). TRS provides photocopy users with blanket permission to photocopy from any CCC-registered publication, provided the user subsequently reports the making of the photocopy and pays the fees required by the copyright owner. The fee is printed on the first page of each article. The fee for each copy of an article in Catalysis [for example] has been $2 from 1978 through 1982 and $3 thereafter. . . .

                Some major corporate users objected to the administrative costs of training personnel and setting up recordkeeping necessary for full compliance with TRS. . . . In response, in 1983, CCC inaugurated a second service for obtaining advance permission to photocopy that eliminated the TRS’s reporting requirements. This [29] was the Annual Authorization Service (“AAS”). . . . Under the AAS, the corporate user is granted a blanket annual license to make photocopies for internal use of any copyrighted material contained in any of the journals and books registered with the CCC. The annual license fee is determined on the basis of a limited photocopying survey, factored by the licensee’s employee population and the copyright fees for the journals regularly copied by that user. . . .  

The case was affirmed by the appellate court, on similar reasoning.

Test cases were also brought against some of the “copy shops” around universities. In 1991, a federal court in New York held that Kinko’s Graphics Corporation was liable for systematically copying works for classroom use by students, including excerpts constituting as much as 25 percent [28] or more of the copyrighted works. In 1996, a federal appeals court reached a similar result in a suit against Michigan Document Services, Inc., for systematically making copies for use by University of Michigan students—including copies that represented up to 30 percent of copyrighted books. As a result of such cases, companies like Kinko’s now offer an additional service to university professors and their students: they offer to obtain permissions for copies used in “course packs” prepared for the students.

 

            Another specific target for copyright liability has been the large corporations that account for a sizable amount of the photocopying taking place across the country. In 1977, partly in response to congressional suggestions in the 1976 legislative process, publishers, authors and photocopy users formed the Copyright Clearance Center (the CCC), an organization that, for a fee, grants blanket permission to copy works published by participating publishers (generally scientific and other scholarly journals). Payments are made in one of several ways: participants may simply agree to keep track of the photocopying they do, and send the CCC the fees printed in the journals (usually a few dollars). Alternatively, users can choose the Annual Authorization Service, by which they pay a blanket license fee based upon a survey of the amount of copying they do. Or users can pay a lump sum for access to all of the works in the CCC repertoire, the fee determined by a formula based upon the type and size of the business.

 

            Over nine thousand licensed users participate in the CCC, including major corporations, government agencies, law firms, libraries, academic institutions, copy shops, and bookstores. Fees collected by the CCC are distributed among hundreds of thousands of authors, represented by over ninety-six hundred publishers, with over 1.75 million works. Illustrating how the Internet* [29] can promote as well as threaten copyright interests, the CCC maintains a Web site, and services its subscribers on-line through the Internet (at http://www.copyright.com).

 

*Internet, see p. 101.


[30] Cooperative Ingenuity.

Again, quoting from the district court opinion in the Texaco case:

 

            [P]rivate cooperative ingenuity has found practical solutions to what had seemed unsurmountable problems. Texaco can no longer make the same claims as were successfully advanced by the NIH to the Court of Claims in 1973. A finding that such unauthorized copying is an infringement would no longer impede the progress of science. Texaco could conveniently, and without undue administrative burden, retain the benefits of photocopying at will, simply by complying with one of the CCC’s licensing systems.

            The availability of a TRS or AAS license from the CCC renders moot the argument that so influenced Williams & Wilkins that a finding of infringement would harm science. The acceptance and use of CCC services by large research-oriented business corporations, including eleven major petroleum companies, undermines Texaco’s reliance on the contention that unauthorized photocopying is customary and reasonable in private industrial research laboratories.

             Copyright enforcement requires a stick to accompany the carrot. One of the major corporations that resisted the licensing policies of the Copyright Clearance Center was Texaco, Inc. All other major oil companies participated in the system, but Texaco claimed that its use of photocopied materials was fair use, and refused to pay the fees. Texaco’s argument was rejected by the courts, in large part precisely because their claims would undercut the CCC’s ability to get the cooperation of users of copyrighted works. After losing in the courts, Texaco ultimately settled by agreeing to pay “a seven-figure amount” in damages, and to subscribe to the CCC.

 

          Casual Photocopying

 

What we have not addressed here is the proper fair use outcome in the millions of cases where individuals “casually” or “privately” photocopy works in their own homes, or by using commercially available photocopying machines or services for their own private purposes. Some commentators have observed that no court of law has ever held such casual or private photocopying to be an infringement of copyright, and so argue that there is, in effect, a “home” use or “private” use exemption to copyright. However, Congress and the courts generally have been more circumspect in their analysis, and have avoided stating that such home or private photocopying automatically qualifies for fair use. In adopting the language of the 1976 amendment that considers “whether such use is of a commercial nature or is for non-profit educational purposes,” Congress made the commercial or noncommercial nature of the copying one factor—but not the only factor—in determining fair use. And while casual or private copying may not be commercial, it is also not always for “educational” purposes.

 

            The most that can be said is that courts have simply not addressed the issue of whether casual or private or home photocopying is generally [30] within the fair use exception to copyright. The reason they have not done so is that copyright owners generally don’t sue for private photocopying because they simply never hear about it, or because they realize it would be pointless to sue individuals for such private copying. So when people ask me whether it is okay for them to make private photocopies of copyrighted works, I tell them that it is technically an infringement of copyright to make an unauthorized copy of a copyrighted work, but that there is at least a plausible fair use argument in most contexts, and their risk of being sued for such activity is minimal.

 

            In the following chapters, we’ll come back to the issue of “home” copying in other contexts—particularly audio and video taping.*

 

*Home audio taping, see p. 49; home video taping, p. 66.

 

Conclusion

 

So what happens when the technology of the fifteenth century meets the technology of the twentieth century? We don’t have to just throw up our hands and say “It can’t work!” Instead, we’ve seen a full range of responses for dealing with the problem. Make major corporate users of the copyrighted works liable, and private arrangements can be set up to license the uses at a reasonable fee. Provide broad exemptions for particularly worthwhile uses, such as library photocopying, but keep such exemptions within bounds. And allow for some uses, such as scholarly and educational ones, by a broad application of fair use that is sensitive to the nuances of individual settings. In some contexts, such as home photocopying, the answer may remain ambiguous. But for the most part, it appears, solutions can be worked out, at least in the important contexts.

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Permission, Limitations, and Format