CHAPTER ONE

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Books and Other Literary Works

 

 

 

The Printing Press—The First
Copyright Technology

 

 

The Statute of Anne, 1710

 

 

            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.

         

 

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.”

 

            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

 

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.

 

 

            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.

  

 

            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.

 

            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.

             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.

 

            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.

             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).

             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

 

 

            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.

 

             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.