Notes on 17 U.S.C. § 107 : US Code - Notes

Search Notes on 17 U.S.C. § 107 : US Code - Notes

    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546;
    Pub. L. 101-650, title VI, Sec. 607, Dec. 1, 1990, 104 Stat. 5132;
    Pub. L. 102-492, Oct. 24, 1992, 106 Stat. 3145.)



                       HISTORICAL AND REVISION NOTES                   

                         HOUSE REPORT NO. 94-1476                     
      General Background of the Problem. The judicial doctrine of fair
    use, one of the most important and well-established limitations on
    the exclusive right of copyright owners, would be given express
    statutory recognition for the first time in section 107. The claim
    that a defendant's acts constituted a fair use rather than an
    infringement has been raised as a defense in innumerable copyright
    actions over the years, and there is ample case law recognizing the
    existence of the doctrine and applying it. The examples enumerated
    at page 24 of the Register's 1961 Report, while by no means
    exhaustive, give some idea of the sort of activities the courts
    might regard as fair use under the circumstances: "quotation of
    excerpts in a review or criticism for purposes of illustration or
    comment; quotation of short passages in a scholarly or technical
    work, for illustration or clarification of the author's
    observations; use in a parody of some of the content of the work
    parodied; summary of an address or article, with brief quotations,
    in a news report; reproduction by a library of a portion of a work
    to replace part of a damaged copy; reproduction by a teacher or
    student of a small part of a work to illustrate a lesson;
    reproduction of a work in legislative or judicial proceedings or
    reports; incidental and fortuitous reproduction, in a newsreel or
    broadcast, of a work located in the scene of an event being
    reported."
      Although the courts have considered and ruled upon the fair use
    doctrine over and over again, no real definition of the concept has
    ever emerged. Indeed, since the doctrine is an equitable rule of
    reason, no generally applicable definition is possible, and each
    case raising the question must be decided on its own facts. On the
    other hand, the courts have evolved a set of criteria which, though
    in no case definitive or determinative, provide some gauge for
    balancing the equities. These criteria have been stated in various
    ways, but essentially they can all be reduced to the four standards
    which have been adopted in section 107: "(1) the purpose and
    character of the use, including whether such use is of a commercial
    nature or is for nonprofit educational purposes; (2) the nature of
    the copyrighted work; (3) the amount and substantiality of the
    portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of
    the copyrighted work."
      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 [Sec. 501 et seq. of this title].
      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 [this section], and that as part of that
      tentative agreement each side would accept the amendments to
      Sections 107 and 504 [this section and section 504 of this title]
      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 [this section], 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
      and not the maximum standards of educational fair use under
      Section 107 of H.R. 2223 [this section]. 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 [this section]. 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.
        [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 therefrom 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.
        (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 [this section].
        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 H.R. 2223 [this section]. 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 [this section]. 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 will
    know that copying within the guidelines is fair use. Thus, the
    guidelines serve the purpose of fulfilling the need for greater
    certainty and protection for teachers. The 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 circumstances 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
    710 of the bill, the making of a single copy or phonorecord by an
    individual as a free service for 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 commercial nature of the user is a
    significant factor in such cases: Copying by a profit-making user
    of even a small portion of a newsletter may have a significant
    impact on the commercial market for the work.
      The Committee has examined the use of excerpts from copyrighted
    works in the art work of calligraphers. The committee believes that
    a single copy reproduction of an excerpt from a copyrighted work by
    a calligrapher for a single client does not represent an
    infringement of copyright. Likewise, a single reproduction of
    excerpts from a 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.

                                AMENDMENTS                            
      1992 - Pub. L. 102-492 inserted at end "The fact that a work is
    unpublished shall not itself bar a finding of fair use if such
    finding is made upon consideration of all the above factors."
      1990 - Pub. L. 101-650 substituted "sections 106 and 106A" for
    "section 106" in introductory provisions.

                     EFFECTIVE DATE OF 1990 AMENDMENT                 
      Amendment by Pub. L. 101-650 effective 6 months after Dec. 1,
    1990, see section 610 of Pub. L. 101-650, set out as an Effective
    Date note under section 106A of this title.