Williams & Wilkins Co. v. United States

487 F.2d 1345, 21 A.L.R. Fed. 151, 203 Ct. Cl. 74, 180 U.S.P.Q. (BNA) 49, 1973 U.S. Ct. Cl. LEXIS 154

• Court: United States Court of Claims
• Decided: November 27, 1973
• Docket: No. 73-68
• Status: Published

Opinions

Davis, Judge,

delivered the opinion of the court:

We confront a ground-breaking copyright infringement action under 28 U.S.C. § 1498(b), the statute consenting to infringement suits against the United States.¹ Plaintiff Wil-Hams & Wilkins Company, a medical publisher, charges that the Department of Health, Education, and Welfare, through the National Institutes of Health (NIH) and the National Library of Medicine (NLM), has infringed plaintiff’s copyrights in certain of its medical journals by making unauthorized photocopies of articles from those periodicals. Modern photocopying in its relation to copyright spins off troublesome problems, which have been much discussed.² Those issues have never before been mooted or determined by a court. In this case, an extensive trial was held before former Trial Judge James F. Davis who decided that the Government was liable for infringement. On review, helped by the briefs and agreements of the parties and the amici curiae, we take the other position and hold the United States free of liability in the particular situation presented by this record.

I³

Plaintiff, though a relatively small company, is a major publisher of medical journals and books. It publishes 37 journals, dealing with various medical specialties. The four journals in suit are Medicine, Journal of Immunology, Gas-troenterology, and Pharmacological Reviews. Medicine is published by plaintiff for profit and for its own benefit. The other three journals are published in conjunction with specialty medical societies which, by contract, share the journals’ profits with plaintiff. The articles published in the journals stem from manbscripts submitted to plaintiff (or one of the medical societies) by physicians or other scientists engaged in medical research. The journals are widely disseminated throughout the United States (and the world) in libraries, schools, physicians’ offices, and the like. Annual subscription prices range from about $12 to $44; and, due to the esoteric nature of the journals’ subject matter, the number of annual subscriptions is relatively small, ranging from about 3,100 {Pharmacological Reviews) to about 7,000 {Gastroenter-ology') . Most of the revenue derived from the journals comes from subscription sales, though a small part comes from advertising.⁴ The journals are published with notice of copyright in plaintiff’s name. The notice appears at the front of the journal and sometimes at the beginning of each article. After publication of each journal issue (usually monthly or bimonthly) and after compliance with the requisite statutory requirements, the Register of Copyrights issues to plaintiff certificates of copyright registration.

NIH, the Government’s principal medical research organization, is a conglomerate of institutes located on a multi-acre campus at Bethesda, Maryland. Each institute is concerned with a particular medical specialty, and the institutes conduct their activities by way of both intramural research and grants-in-aid to private individuals and organizations. NIH employs over 12,000 persons — é,000 are science professionals and 2,000 have doctoral degrees. To assist its intramural programs, NIH maintains a technical library. The library houses about 150,000 volumes, of which about 30,000 are books and the balance scientific (principally medical) journals. The library is open to the public, but is used mostly by NIH in-house research personnel. The library’s budget for 1970 was $1.1 million; of this about $85,000 was for the purchase of journal materials.

The NIPI library subscribes to about 3,000 different journal titles, four of which are the journals in suit. The library subscribes to two copies of each of the journals involved. As a general rule, one copy stays in the library reading room and the other copy circulates among interested NIH personnel. Demand by NIH research workers for access to plaintiff’s journals (as well as other journals to which the library subscribes) is usually not met by in-house subscription copies. Consequently, as an integral part of its operation, the library runs a photocopy service for the benefit of its research staff. On request, a researcher can obtain a photocopy of an article from any of the journals in the library’s collection. Usually, researchers request photocopies of articles to assist them in their on-going projects; sometimes photocopies are requested simply for background reading. The library does not monitor the reason for requests or the use to which the photocopies are put. The photocopies 'are not returned to the library; and the record shows that, in most instances, researchers keep them in their private files for future reference.

The library’s policy is that, as a rule, only a single copy of a journal article will be made per request and each request is limited to about 40 to 50 pages, though exceptions may be, and have been, made in the case of long articles, upon approval of the Assistant Chief of the library branch. Also, as a general rule, requests for photocopying are limited to only a single article from a journal issue. Exceptions to this rule are routinely made, so long as substantially less than an entire journal is photocopied, i.e., less than about half of the journal. Coworkers can, and frequently do, request single copies of the same article and such requests are honored.

Four regularly assigned employees operate the NIH photocopy equipment. The equipment consists of microfilm cameras and Xerox copying machines. In 1970, the library photocopy budget was $86,000 and the library filled 85,744 requests for photocopies of journal articles (including plaintiff’s journals), constituting about 930,000 pages. On the average, a journal article is 10 pages long, so that, in 1970, the library made about 93,000 photocopies of articles.

NLM, located on the Bethesda campus of NIH, was formerly the Armed Forces Medical Library. In 1956, Congress transferred the library from the Department of Defense to the Public Health Service (renaming it the National Library of Medicine), and declared its purpose to be “* * * to aid the dissemination and exchange of scientific and other information important to the progress of medicine and to the public health * * 42 U.S.C. §275 (1970). NLM is a repository of much of the world’s medical literature, in essence a “librarians’ library.” As part of its operation, NLM cooperates with other libraries and like research-and-education-oriented institutions (both public and private) in a so-called “interlibrary loan” program. Upon request, NLM will loan to such institutions, for a limited time, books and other materials in its collection. In the case of journals, the “loans” usually take the form of photocopies of journal articles which are supplied by NLM free of charge and on a no-return basis. NLM’s “loan” policies are fashioned after the General Interlibrary Loan Code, which is a statement of self-imposed regulations to be followed by all libraries which cooperate in interlibrary loaning. The Code provides that each library, upon request for a loan of materials, shall decide whether to loan the original or provide a photo-duplicate. The Code notes that photoduplication of copyrighted materials may raise copyright infringement problems, particularly with regard to “photographing whole issues of periodicals or books with current copyrights, or in making multiple copies of a publication.” [Emphasis in original text.] NLM, therefore, will provide only one photocopy of a particular article, per request, and will not photocopy on any given request an entire journal issue. Each photocopy reproduced by NLM contains a statement in the margin, “This is a single photostatic copy made by the National Library of Medicine for purposes of study or research in lieu of lending the original.”

In recent years NLM’s stated policy has been not to fill requests for copies of articles from any of 104 journals which are included in a so-called “widely-available list.” Eather, the requester is furnished a copy of the “widely-available list” and the names of the regional medical libraries which are presumed to have the journals listed. Exceptions are sometimes made to the policy, particularly if the requester has been unsuccessful in obtaining the journal elsewhere. The four journals involved in this suit are listed on the “widely-available list.” A rejection on the basis of the “widely-available list” is made only if the article requested was published during the preceding 5 years, but requests from Government libraries are not refused on the basis of the “widely-available list.”

Also, NLM’s policy is not to honor an excessive number of requests from an individual or an institution. As a general rule, not more than 20 requests from an individual, or not more than 30 requests from an institution, within a month, will be honored. In 1968, NLM adopted the policy that no more than one article from a single journal issue, or three from a journal volume, would be copied. Prior to 1968, NLM had no express policy on copying limitations, but endeavored to prevent “excessive copying.” Generally, requests for more than 50 pages of material will not be honored, though exceptions are sometimes made, particularly for Government institutions. Requests for more than one copy of a journal article are rejected, without exception. If NLM receives a request for more than one copy, a single copy 'will be furnished and the requester advised that it is NLM’s policy to furnish only one copy.

In 1968, a representative year, NLM received about 127,000 requests for interlibrary loans. Requests were received, for the most part, from other libraries or Government agencies. However, about 12 percent of the requests came from private or commercial organizations, particularly drug companies. Some requests were for books, in which event the book itself was loaned. Most requests were for journals or journal articles ; and about 120,000 of the requests were filled by photocopying single articles from journals, including plaintiff’s journals. Usually, the library seeking an interlibrary loan from NLM did so at the request of one of its patrons. If the “loan” was made by photocopy, the photocopy was given to the patron who was free to dispose of it as he wished. NLM made no effort to find out the ultimate use to which the photocopies were put; and there is no evidence that borrowing libraries kept the “loan” photocopies in their permanent collections for use by other patrons.

Defendant concedes that, within the pertinent accounting period, NLM and the NIH library made at least one photocopy of each of eight articles (designated by plaintiff as the Count I-to-Count VIII articles) from one or more of the four journals in suit. These requests, as shown at the trial, were made by NIH researchers and an Army medical officer (stationed in Japan) in connection with their professional work and were used solely for those purposes. In seven of the eight counts in the petition, the article requested was more than two years old; in the eighth instance it was 21 or 22 months old.

II

We assume, for the purposes of the case, but without deciding, that plaintiff is the proper copyright owner and entitled to sue here,⁵ and we agree with plaintiff that, on that assumption, it can sue for infringement of the eight separate articles.⁶ This faces us squarely with the issue of infringement.

Perhaps the main reason why determination of the question is so difficult is that the text of the Copyright Act of 1909, which governs the case, does not supply, by itself, a clear or satisfactory answer. Section 1 of the Act, 17 TJ.S.C. § 1, declares that the copyright owner “shall have the exclusive right: (a) To print, reprint, publish, copy, and vend the copyrighted work; * * *.” Eead with blinders, this language might seem on its surface to be all-comprehensive— especially the term “copy” — but we are convinced, for several reasons, that “copy” is not to be taken in its full literal sweep. In this instance, as in so many others in copyright, “[T]he statute is hardly unambiguous * * * and presents problems of interpretation not solved by literal application of words as they are ‘normally’ used * * DeSylva v. Ballentine, 351 U.S. 570, 573 (1956). See, also, Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 395-96 (1968).

The court-created doctrine of “fair use” (discussed in Part III, infra) is alone enough to demonstrate that Section 1 does not cover all copying (in the literal sense). Some forms of copying, at the very least of portions of a work, are universally deemed immune from liability, although the very words are reproduced in more than de minimis quantity. Furthermore, it is almost unanimously accepted that a scholar can make a handwritten copy of an entire copyrighted article for his own use, and in the era before photo-duplication it was not uncommon (and not seriously questioned) tbat he could have his secretary make a typed copy for his personal use and files. These customary facts of copyright-life are among our givens. The issue we now have is the complex one of whether photocopying, in the form done by NIH and NLM, should be accorded the same treatment— not the ministerial lexicographic task of deciding that photoduplication necessarily involves “copying” (as of course it does in dictionary terms).

One aspect of the history and structure of the 1909 Act offers another reason for refusing to give “copying” in Section 1, as applied to these articles, its simplest “ordinary” reach. It is pointed out to us, on the basis of analysis of the copyright laws from 1790 to 1909,⁷ that the early statutes distinguished “copying” from “printing,” “reprinting,” and “publishing,” and provided that the copyright in books is infringed 'by “printing,” “reprinting” and “publishing,” while the copyright in other works (e.g., photographs, paintings, engraving, drawings, etc.) is infringed by “copying.” Cf. Harper v. Shoppell, 26 F. 519, 520 (C.C.S.D.N.Y. 1886). The 1909 Act obliterated any such distinction in its text. It provides in § 5 a list of all classes of copyrightable subject matter (including books and periodicals), and says in § 1 that the owner of copyright shall have the exclusive right “to print, reprint, publish, copy and vend the copyrighted work.” Thus, the 1909 Act, unlike the earlier statutes, does not expressly say which of the proscribed acts of § 1 apply to which classes of copyrightable subject matter of § 5. Defendant and some of the amici say that, to be consistent with the intent and purpose of earlier statutes, the “copying” proscription of § 1 should not apply to books or periodicals; rather, only the proscribed acts of “printing,” “reprinting” and “publishing” control books and periodicals. The proponents of this view stress that the legislative history of the 1909 legislation does not suggest any purpose to alter the previous coverage.⁸

This is quite a serious argument. However, in view of Congress’s general inclusion of the word “copy” in Section 1 and of the practice under the Act since 1909, we are not ready to accept fully this claim that infringement of periodical articles can come only through “printing,” “reprinting” or “publishing.” But we do believe this point — that there is a solid doubt whether and how far “copy” applies to books and journals — must be taken into account in measuring the outlines of “copying” as it involves books and articles.

Adding to this doubt that “copy” blankets such printed matter is the significant implication of a special segment of the background of the 1909 statute, a sector of history which is peripheral but revealing. The then Librarian of Congress, Herbert Putnam, was the leading public sponsor of that Act (outside of Congress itself), and was intimately involved in its preparation from at least 1906 on. While the bill was being considered in Congress, the Library’s 1908 “Rules and Practice Governing the Use and Issue of Books,” p. 6, specifically provided:

“Photographing. Photographing is freely permitted. The permission extends to the building itself and any of its parts, including the mural decorations. It extends to articles hearing claim of copyright, but the Library Sives no assurance that the photograph may be repro-uced or republished or placed on sale. These are matters to be settled with the owner of the copyright” (emphasis added).

After the 1909 Act became law, the Library continued the same provision. The 1913 version of the “Rules and Practice” ⁹ added the following on “Photostat,” after the above paragraph on “Photographing”:

Photo-duplicates of books, newspapers, maps, etc. can be furnished at a reasonable rate by means of the photostat, installed in the Chief Clerk’s Office. Apply to the Chief Clerk for a schedule of charges.

Later editions, throughout Dr. Putnam’s tenure (which ended in 1939), contained the same or comparable provisions.¹⁰ Indeed, when he left his post in 1939, he was honored by the American Council of Learned Societies because (among other things) “You have led in adapting the most modern photographic processes to the needs of the scholar, and have * * * made widely available for purposes of research copies of your collections * * This illuminating slice of history, covering the time of enactment and the first three decades of the 1909 Act, should not be ignored.

These are the leading reasons why we cannot stop with the dictionary or “normal” definition of “copy” — nor can we extract much affirmative help from the surfaoial legislative text. As for the other rights given in Section 1, “vend” is clearly irrelevant (since NIH and NLM do not sell), and the applicability to this ease of “print,” “reprint” and “publish” is more dubious than of “copy.” The photocopy process of NIH and NLM, described in Part I, supra, does not even amount to printing or reprinting in the strict dictionary sense; and if the words be used more broadly to include all mechanical reproduction of a number of copies, they would still not cover the making of a single copy for an individual requester. If the requester himself made a photocopy of the article for his own use on a machine made available by the library, he might conceivably be “copying” but he would not be “printing” or “reprinting.” The library is in the same position when responding to the demands of individual researchers acting separately.

For similar reasons there is no “publication” by the library, a concept which invokes general distribution, or at least a supplying of the material to a fairly large group.¹¹ The author of an uncopyrighted manuscript does not lose his common law rights, via publication, by giving photocopies to his friends for comment or their personal use — and publication for Section 1 purposes would seem to have about the same coverage. In any event, the hitherto uncodified principles of “fair use” apply to printing, reprinting, and publishing, as well as to copying, and therefore the collocation of general words Congress chose for Section 1 is necessarily inadequate, by itself, to decide this case.

Ill

In the fifty-odd years since the 1909 Act, the major tool for probing what physical copying amounts to unlawful “copying” (as well as what is unlawful “printing,” “reprinting” and “publishing”) has been the gloss of “fair use” which the courts have put upon the words of the statute. Precisely because a determination that a use is “fair,” or “unfair,” depends on an evaluation of the complex of individual and varying factors bearing upon the particular use (see H.B. Hep. No. 83, 90th Cong., 1st Sess., p. 29), there has been no exact or detailed definition of the doctrine. The courts, congressional committees, and scholars have had to be content with a general listing of the main considerations — together with the example of specific instances ruled “fair” or “unfair.” These overall factors are now said to be: (a) the purpose and character of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, and (d) the effect of the use on a copyright owner’s potential market for and value of his work.

In addition, the development of “fair use” has been influenced by some tension between the direct aim of the copyright privilege to grant the owner a right from which he can reap financial benefit and the more fundamental purpose of the protection “To promote the Progress of Science and the useful Arts.” U.S. Const., art. 1, § 8. The House committee which recommended the 1909 Act said that copyright was “[n]ot primarily for the benefit of the author, but primarily for the benefit of the public.” H.E. Pep. No. 2222, 60th Cong., 2d Sess., p. 7. The Supreme Court has stated that “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.” Mazer v. Stein, 347 U.S. 201, 219 (1954) ; United States v. Paramount Pictures, 334 U.S. 131, 158 (1948). See Breyer, The Uneasy Case for Copyright: A study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281 (1970). To serve the constitutional purpose, “ ‘courts in passing upon particular claims of infringement must occasionally subordinate the copyright holder’s interest in a maximum financial return to the greater public interest in the development of art, science and industry.’ Berlin v. E.C. Publications, Inc., 329 F. 2d 541, 544 (2d Cir. 1984). Whether the privilege may justifiably be applied to particular materials turns initially on the nature of the materials, e.g., whether their distribution would serve the public interest in the free dissemination of information and whether their preparation requires some use of prior materials dealing with the same subject matter. Consequently, the privilege has been applied to works in the fields of science, law, medicine, history and biography.” Rosemont Enterprises, Inc. v. Random House, Inc., 366 F. 2d 303, 307 (C.A. 2, 1966).

It has sometimes been suggested that the copying of an entire copyrighted work, any such work, cannot ever be “fair use,” but this is an overbroad generalization, unsupported by the decisions¹² and rejected by years of accepted practice. The handwritten or typed copy of an article, for personal use, is one illustration, let alone the thousands of copies of poems, songs, or such items which have long been made by individuals, and sometimes given to lovers and others. Trial Judge James F. Davis, who considered the use now in dispute not to be “fair,” nevertheless agreed that a library could supply single photocopies of entire copyrighted works to attorneys or courts for use in litigation. It is, of course, common for courts to be given photocopies of recent decisions, with the publishing company’s headnotes and arrangement, and sometimes its annotations. There are other examples from everyday legal and personal life. We cannot believe, for instance, that a judge who makes and gives to a colleague a photocopy of a law review article, in one of the smaller or less available journals, which bears directly on a problem both judges are then considering in a case before them is infringing the copyright, rather than making “fair use” of his issue of that journal. Similarly with the photocopies of particular newspaper items and articles which are frequently given or sent by one friend to another.¹³ There is, in short, no inflexible rule excluding an entire copyrighted work from the area of “fair use.” Instead, the extent of the copying is one important factor, but only one, to be taken into account, along with several others.

Under these over-all standards, we have weighed the multiplicity of factors converging on the particular use of plaintiff’s material made by NIH and NLM, as shown by this record. There is no prior decision which is dispositive and hardly any that can be called even close; we have had to make our own appraisal. The majority of the court has concluded that, on this record, the challenged use should be designated “fair,” not “unfair.” In the rest of this part of our opinion, we discuss seriatim the various considerations which merge to that conclusion. But we can help focus on what is probably the core of our evaluation by stating summarily, in advance, three propositions we shall consider at greater length: 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.

1. We start by emphasizing that (a) NIH and NLM are non-profit institutions, devoted solely to the advancement and dissemination of medical knowledge which they seek to further by the challenged practices, and are not attempting to profit or gain financially by the photocopying; (b) the medical researchers who have asked these libraries for the photocopies are in this particular case (and ordinarily) scientific researchers and practitioners who need the articles for personal use in their scientific work and have no purpose to reduplicate them for sale or other general distribution; and (c) the copied articles are scientific studies useful to the requesters in their work. On both sides — library and requester- — scientific progress, untainted by any commercial gain from the reproduction, is the hallmark of the whole enterprise of duplication. There has been no attempt to misappropriate the work of earlier scientific writers for forbidden ends, but rather an effort to gain easier access to the material for study and research. This is important because it is settled that, in general, the law gives copying for scientific purposes a wide scope. See, e.g., Rosemont Enterprises, Inc. v. Random House, Inc., supra, 366 F. 2d at 306-07; Loew's, Inc. v. Columbia Broadcasting System, Inc., 131 F. Supp. 165, 175 (S.D. Cal. 1955), aff'd, 239 F. 2d 532 (C.A. 9, 1956), a-ffd by an equally divided Court, 356 U.S. 43 (1958) ; Greenbie v. Noble, 151 F. Supp. 45, 67-68 (S.D.N.Y. 1957); Thompson v. Gernsback, 94 F. Supp. 453, 454 (S.D.N.Y. 1950) ; Henry Holt & Co. v. Liggett & Myers Tobacco Co., 23 F. Supp. 302, 304 (E.D. Pa. 1938).

2. Both libraries have declared and enforced reasonably strict limitations which, to our mind, keep the duplication within appropriate confines. The details are set forth in Part I supra, and in our findings. Both institutions normally restrict copying on an individual request to a single copy of a single article of a journal issue, and to articles of less than 50 pages. Though, exceptions are made, they do not appear to be excessive, unwarranted, or irrational. For instance, though on occasion one person was shown to have ordered or received more than one photocopy of the same article, the second copy was for a colleague’s use or to replace an illegible or undelivered copy. Some care is also taken not to have excessive copying from one issue or one volume of the periodical. While a certain amount of duplication of articles does, of course, occur, it does not appear to be at all heavy.¹⁴ There is no showing whatever that the recipients use the libraries’ photocopying process to sell the copies or distribute them broadly.

NIH responds only to requests from its own personnel, so that its entire photoduplication system is strictly “in-house” — in the same way that a court’s library may supply a judge of that court with a copy of a law journal article or a reported decision. NLM fulfills requests more generally but it has adopted the practice of not responding (outside of the Government) where the article appears in a recent (preceding 5 years) issue of a periodical on its “widely-available list”. The result is that the duplication of recent issues of generally available journals is kept within the Government, and distribution to the larger medical public is limited to older, less available issues and to journals which are harder to obtain from medical libraries. It is a fair inference, supported by this record, that at the very least in the latter classes the demand has been inadequately filled by reprints and the publisher’s sale of back issues. See, also, Part III, 4, infra. In those instances not covered by “five year” policy, the impression left by the record is that, on the whole, older rather than current articles were usually requested.

Brushing aside all such breakdowns, plaintiff points to the very large number, in absolute terms, of the copies made each year by the two libraries. We do not think this decisive.¹⁵ In view of the large numbers of scientific personnel served and the great size of the libraries — NIH has over 100,000 volumes of journal materials alone, and NLM is currently binding over 18,000 journals each year — the amount of copying does not seem to us to have been excessive or disproportionate. The important factor is not the absolute amount, but the twin elements of (i) the existence and purpose of the system of limitations imposed and enforced, and (ii) the effectiveness of that system to confine the duplication for the personal use of scientific personnel who need the material for their work, with the minimum of potential abuse or harm to the copyright owner. The practices of NIH and NLM, as shown by the record, pass both of these tests, despite the large number of copies annually sent out.

Without necessarily accepting the full sweep of the concept that the library is nothing more than the individual requester’s ¡ministerial agent, we do agree that the NIH and NLM systems, as described in the evidence, are close kin to the current Library of Congress policy, see note 16, infra, of maintaining machines in the library buildings so that readers can do their own copying. The principal extension by NLM and NIH is to service requesters who cannot conveniently come to the building, as well as out-of-town libraries. But the personal, individual focus is still present. The reader who himself makes a copy does so for his own personal work needs, and individual work needs are likewise dominant in the reproduction programs of the two medical libraries— programs which are reasonably policed and enforced.

3. We also think it significant, in assessing the recent and current practices of the two libraries, that library photocopying, though not of course to the extent of the modern development, has been going on ever since the 1909 Act was adopted. In Part II, supra, we have set forth the practice of the Library of Congress at that time and for many years thereafter.¹⁶ In fact, photocopying seems to have been done in the Library at least from the beginning of this century. Can Copyright Law Respond to the New Technology? 61 Law. Lib. J. 387, 400 (1968) (comments of V. Clapp). In 1935 there was a so-called “gentlemen’s agreement” between the National Association of Book Publishers (since defunct) and the Joint Committee on Materials for Research (representing the libraries), stating in part: “A library * * * owning books or periodical volumes in which copyright still subsists may make and deliver a single photographic reproduction * * * of a part thereof to a scholar representing in writing that he desires such reproduction in lieu of loan of such publication or in place of manual transcription and solely for the purposes of research * * Though this understanding discountenanced photoduplication of an entire book it was regularly construed as allowing copying of articles. There have been criticisms of this pact, and we cite it, not as binding in any way on plaintiff or any other publisher, or as showing universal recognition of “single” photocopying, but as representing a very widely held view, almost 40 years ago, of what was permissible under the 1909 statute.

There is other evidence that, until quite recently, library photocopying was carried on with apparent general acceptance. Witnesses in this case testified that such photocopying has been done for at least fifty years and is well-established. The National Library of Medicine Act, in 1956, by which NLM was created (42 U.S.C. §275, et seg.), provided at § 276(a) (4) that the Secretary of Health, Education, and Welfare, through NLM, should “make available, through loans, photographic or other copying procedures or otherwise, such materials in the Library as he deems appropriate * * *”; and the Medical Library Assistance Act of 1965 (42 U.S.C. § 280b-l, et seg.) provided that grants be made to medical libraries for, among other things, “acquisition of duplicating devices, facsimile equipment * * * and other equipment to facilitate the use of the resources of the library.” 42 U.S.C. § 280b-7. These two pieces of legislation indicate to us that Congress knew in 1956 and 1965 of the practice of library photocopying, and assumed that it was not beyond the pale. The General Interlibrary Loan Code (revised in 1956), see Part I, supra, is a similar indication of the extent of the practice, and of the general position of the libraries (at the least) that such copying is permissible.

The fact that photocopying by libraries of entire articles was done with hardly any (and at most very minor) complaint, until about 10 or 15 years ago, goes a long way to show both that photoduplication cannot be designated as infringement per se, and that there was at least a time when photocopying, as then carried on, was “fair use.” There have been, of course, considerable changes in the ease and extent of such reproduction, and these developments bear on “fair use” as of today, but the libraries can properly stand on the proposition that they photocopied articles for many years, without significant protest, and that such copying was generally accepted until the proliferation of inexpensive and improved copying machines, less than two decades ago, led to the surge in such duplication. The question then becomes whether this marked increase in volume changes a use which was generally accepted as “fair” into one which has now become “unfair.”

4. There is no doubt in our minds that medical science would be seriously hurt if such library photocopying were stopped. We do not spend time and space demonstrating this proposition. It is admitted by plaintiff and conceded on all sides. See, e.g. Varmer, Photoduplication of Copyrighted Material by Libraries, Study No. 15, “Copyright Law Revision,” Studies Prepared for the Subcommittee on Patents, Trademarks and Copyrights, Senate Judiciary Committee (1959), p. 49; Memorandum of General Counsel Willcox, Department of Health, Education and Welfare, June 7,1965, Hearings before Subcommittee No. 3, Committee on the Judiciary, H. of Reps., 89th Cong., 1st Sess., on H.R. 4347, H.R. 5680, etc., “Copyright Law Revision,” Part 2, 1132, 1133. The trial testimony of a number of the requesters and authors documents the point. The supply of reprints and back numbers is wholly inadequate; the evidence shows the unlikelihood of obtaining such substitutes for photocopies from publishers of medical journals or authors of journal articles, especially for articles over three years old.¹⁷ It is, moreover, wholly unrealistic to expect scientific personnel to subscribe regularly to large numbers of journals which would only occasionally contain articles of interest to them. Nor will libraries purchase extensive numbers of whole subscriptions to all medical journals on the chance that an indeterminate number of articles in an indeterminate number of issues will be requested at indeterminate times. The result of a flat proscription on library photocopying would be, we feel sure, that medical and scientific personnel would simply do without, and have to do without, many of the articles they now desire, need, and use in their work.¹⁸

5. Plaintiff insists that it has been financially hurt by the photocopying practices of NIM and NIH, and of other libraries. The trial judge thought that it was reasonable to infer that the extensive photocopying has resulted in some loss of revenue to plaintiff and that plaintiff has lost, or failed to get, “some undetermined and indeterminable number of journal subscriptions (perhaps small) ” by virtue of the photocopying. He thought that the persons requesting photocopies constituted plaintiff’s market and that each photocopy user is a potential subscriber “or at least a potential source of royalty income for licensed copying.”¹⁹ Studies rejecting as “fair use” the kind of photocopying involved here have also assumed, without real proof, that the journal publishers have been and will be injured. See, e.g., Project— New Technology and the Law of Copyright: Reprography and Computers, 15 U.C.L.A. L. Rev. 931 (1968); Sophor & Heilprin, “The Determination of Legal Facts and Economic Cuideposts with Respect to the Dissemination of Scientific and Educational Information as It Is Affected hy Copyright — A Status Report” (1967).

The record made in this case does not sustain that assumption. Defendant made a thorough effort to try to ascertain, so far as possible, the effect of photoduplication on plaintiff’s business, including the presentation of ian expert witness. The unrefuted evidence shows that (a) between 1958 and 1969 annual subscriptions to the four medical journals involved increased substantially (for three of them, very much so), annual subscription sales likewise increased substantially, and total annual income also grew; (b) between 1959 and 1966, plaintiff’s annual taxable income increased from $272,000 to $726,000, fell to $589,000 in 1967, and in 1968 to $451,000; (c) but the four journals in suit account for a relatively small percentage of plaintiff’s total business and over the years each has been profitable (though 3 of them show losses in particular years and in all years the profits have not been large, varying from less than $1,000 to about $15,000, some of which has been shared with the sponsoring medical societies) ;²⁰ and (d) plaintiff’s business appears to have been growing faster than the gross national product or of the rate of growth of manpower working in the field of science. Defendant’s expert concluded that the photocopying shown here had not damaged plaintiff, and may actually have helped it.²¹ The record is also barren of solid evidence that photocopying has caused economic harm to any other publisher of medical journals.

Plaintiff has never made a detailed study of the actual effect of photocopying on its business, nor has it refuted defendant’s figures. It has relied for its assumption (in the words of the chairman of its board) on “general business common sense and things that you hear from subscribers, librarians and so forth.” Its argument — and that of the other supporters of its position²² — is that there “must” be an effect because photocopies supplant the original articles, and if there were no photocopying those who now get the copies would necessarily buy the journals or issues. But this untested hypothesis, reminiscent of the abstract theorems beloved of the “pure” classical economics of 70 or 80 years ago, is neither obvious nor self-proving. One need not enter the semantic debate over whether the photocopy supplants the original article itself or is merely in substitution for the library’s loan of the original issue to recognize, as we have already pointed out, that there are other possibilities. If photocopying were forbidden, the researchers, instead of subscribing to more journals or trying to obtain or buy back-issues or reprints (usually unavailable), might expend extra time in note-taking or waiting their turn for the library’s copies of the original issues — or they might very well cut down their reading and do without much of the information they now get through NLM’s and NIPI’s copying system. The record shows that each of the individual requesters in this case already subscribed, personally, to a number of medical journals, and it is very questionable how many more, if any, they would add. The great problems with reprints and back-issues have already been noted. 'In the absence of photocopying, the financial, time-wasting, and other difficulties of obtaining the material could well lead, if human experience is a guide, to a simple but drastic reduction in the use of the many articles (now sought and read) which are not absolutely crucial to the individual’s work but are merely stimulating or helpful. The probable effect on scientific progress goes without saying, but for this part of our discussion the significant element is that plaintiff, as publisher and copyright owner, would not be better off. Plaintiff would merely be the dog in the manger.

Since plaintiff and those who take the same view have not attempted any hard factual study of the actual effect of photocopying, it is not surprising that others have concluded against an adverse impact. The 1962 Fry Report (George Fry & Associates, “'Survey of Copyrighted Material Reproduction Practices in Scientific and Technical Fields,” March 1962) states that the “basic conclusion of this report is that at the present time, no significant damage occurs to the copyright holders in the scientific and technical fields although duplication of this material is widespread and is growing rapidly.” In March 1965, Dan Lacy, Managing Director, American Book Publishers Council, told a House of Representatives committee: “It has been pointed out that recent technological developments have enormously increased the amount of photocopying in libraries and technology is continuing to change rapidly. Most of this photocopying, at least at present, probably consists of excerpts and probably mostly of journal articles. Most of it at 'present is probably undertaken in lieu of manual note taking, typing, or hanckoriting a copy, and in lieu of library loan rather than in lieu of buying a copy” (emphasis added). Plearings before Subcommittee No. 3, Committee on the Judiciary, H. of Reps., 89th Cong., 1st Sess., on H.R. 4347, H.R. 5680, etc., “Copyright Law Revision,” Part 1, p. 120. The record in this case does not prove that the situation was any different at the time of the trial.

To us it is very important that plaintiff has failed to prove its assumption of economic detriment, in the past or potentially for the future. One of the factors always considered with respect to “fair use,” see supra, is the effect of the use on the owner’s potential market for the work. This record simply does not show a serious adverse impact, either on plaintiff or on medical publishers generally, from the photocopying practices of the type of NIH and NLM. In the face of this record, we cannot mechanically assume such an effect, or hold that the amount of photoduplication proved here “must” lead to financial or economic harm. This is a matter of proof and plaintiff has not transformed its hypothetical assumption, by evidence, into a proven fact.

In this connection it is worth noting that plaintiff does not have to concern itself, with respect to these journals, with authors or medical societies who are interested in a fi-narciffl return. The authors, with rare exceptions, are not paid for their contributions, and those societies which share profits do not press for greater financial benefits. Indeed, some of the authors of the copied articles involved in this case testified at the trial that they favored photocopying as an aid to the advancement of science and knowledge.

6. Added to the powerful factors we have been considering is another (already suggested by the discussion in Part II, supra) — the grave uncertainty of the coverage of “copy” in Section 1 of the 1909 Act and the doubt whether it relates at all to periodicals.²³ The latitude for “fair use” is of course lessened to the extent Congress has been explicit in spelling out protection to the copyright owner. But Congress has, up to now, left the problem, of photocopying untouched by express provision and only doubtfully covered to any extent by the generalizations of Section 1. The statute must, of course, “be applied to new situations not anticipated by Congress, if, fairly construed, such situations come within its intent and meaning” (Jerome R. Remich & Co. v. American Automobile Accessories Co., 5 F. 2d 411 (C.A. 6, 1925), cert. denied, 269 U.S. 556), but our problem is with the latter part of this quotation. That being so, we think that, in evaluating “fair use,” we should give the benefit of the doubt — until Congress acts more specifically — to science and the libraries, rather than to the publisher and the owner.

While, as we have said, this record fails to show that plaintiff (or any other medical publisher) has been substantially harmed by the photocopying practices of NIH and NLM, it does show affirmatively that medical science will be hurt if such photocopying is stopped. Thus, the balance of risks is definitely on defendant’s side — until Congress acts more specifically, the burden on medical science of a holding that the photocopying is an infringement would appear to be much greater than the present or foreseeable burden on plaintiff and other medical publishers of a ruling that these practices fall within “fair use.”

Plaintiff’s answer is that it is willing to license the libraries, on payment of a reasonable royalty, to continue photocopying as they have. Our difficulty with that response — in addition to the absence of proof that plaintiff has yet been hurt, and the twin doubts whether plaintiff has a viable license system and whether any satisfactory program can be created without legislation²⁴ — is that the 1909 Act does not provide for compulsory licensing in this field. All that a court can do is to determine the photocopying an infringement, leaving it to the owner to decide whether to license or to prohibit the practice. Plaintiff and other publishers cannot enjoin governmental libraries (because 28 U.S.C. § 1498, supra note 1, is the sole remedy), but if photocopying of this type is an infringement the owners are free under the law to seek to enjoin any and all nongovernmental libraries. A licensing system would be purely voluntary with the copyright proprietor. We consider it entirely beyond judicial power, under the 1909 Act,²⁵ to order an owner to institute such a system if he does not wish to. We think it equally outside a court’s present competence to turn the determination of “fair use” on the owner’s willingness to license — to hold that photocopying (without royalty payments) is not “fair use” if the owner is willing to license at reasonable rates but becomes a “fair use” if the owner is adamant and refuses all permission (or seeks to charge excessive fees).

The truth is that this is now preeminently a problem for Congress: to decide the extent photocopying should be allowed, the questions of a compulsory license and the payments (if any) to the copyright owners, the system for collecting those payments (lump-sum, clearinghouse, etc.), the special status (if any) of scientific and educational needs. Obviously there is much to be said on all sides. The choices involve economic, social, and policy factors which are far better sifted by a legislature. The possible intermediate solutions are also of the pragmatic kind legislatures, not courts, can and should fashion. But Congress does not appear to •have put its mind directly to this problem in 1909, undoubtedly because the issue was not considered pressing at that time. That statute is, unfortunately, the one we must apply, and under it we have the choice only of thumb’s up or thumb’s down, for the photocopying practice involved in this litigation, without any real Congressional guidance. Intermediate or compromise solutions are not within our authority.²⁶ The theme of this subpart 6 of -Part III of the opinion is that, on balance and on this record, thumb’s up seems to us less dangerous to the varying interests at stake during the period which remains before Congress definitively takes hold of the subject.

7. The revision of the 1909 iAct is now under consideration and has been for several years. The House of Representatives passed a bill in the 90th Congress (in April 1967), but the Senate has not acted.²⁷ In its report on the bill which the House adopted (H.R. Rep. No. 83, 90th Cong., 1st Sess.), the House Committee on the Judiciary discussed the existing doctrine of “fair use” at some length (pp. 29-37). We cite these comments, not as binding on us, but as the official views on the extent of “fair use” of the committee of the House of Representatives with cognizance over copyright; as such, they are and should be influential.

The report makes it very clear that photocopying can be a “fair use”, in proper circumstances; it negatives the notion that copying of a complete work can never be a “fair use” ; and it obviously believes that the doctrine is flexible, depending upon the particular situation.²⁸ The report does not, however, express a categorical or clear view whether photocopying of the sort we have in this case is or is not a “fair use” under the doctrine as it has been developing. Bather, the committee’s observations are delphic, with each side being able to quote to us one or another passage, or to argue by analogy from the specific situation (classroom teaching) considered in greatest detail in the report.

Specifically on library photocopying the committee says (p. 36) that it does not favor a specific provision dealing with that subject, and it adds: “Unauthorized library copying, like everything else, must be judged a fair use or an infringement on the basis of all of the applicable criteria and the facts of the particular case. Despite past efforts, reasonable arrangements involving a mutual understanding of what generally constitutes acceptable library practices, and providing workable clearance and licensing conditions, have not been achieved and are overdue. The committee urges all concerned to resume their efforts to reach an accommodation under which the needs of scholarship and the rights of authors would both be respected.”

We read this report, as a whole, as recognizing affirmatively that, under the existing law, library photocopying can be “fair use” in proper circumstances, and as leaving the determination of whether the particular circumstances are proper ones to an evaluation “of all the applicable criteria and the facts of the particular case.” That is, of course, the overall standard we are using, and therefore we consider our approach to be consistent with that of the Committee. Although one cannot say that the report places its sanction directly on the photocopying practices now before us, neither does it suggest or intimate that they are “unfair.” That question is left open. The report is nevertheless helpful because it indicates the correctness of our general approach, and also because it contradicts the concept, urged by plaintiff, that photocopying of an entire article is necessarily an infringement.

8. The last component we mention, as bearing on “fair use”, is the practice in foreign countries. The copyright legislation of the United Kingdom, New Zealand, Denmark, Finland, Italy, Norway, Sweden, France, the German Federal Republic, Iichtenstein, Mexico, the Netherlands, and the U.S.S.R. have specific provisions which we think would cover the photocopying activities of NLM and NIH. Canada, India, Ireland and South Africa, while having no specific provisions permitting copying of copyrighted works for the purposes of private research and study, do provide, more generally, that fair dealing for purposes of private study or research shall not be an infringement.²⁹ These provisions in foreign countries with problems and backgrounds comparable to our own are highly persuasive that the copying done here should be considered a “fair use,” not an infringement.³⁰ Where Congress has left such a large void to be filled entirely by the courts, it is appropriate for us to consider what other jurisdictions have done either by way of legislation or judicial decision.

IV

Fusing these elements together, we conclude that plaintiff has failed to show that the defendant’s use of the copyrighted material has been “unfair,” and conversely we find that these practices have up to now been “fair.” There has been no infringement. As Professor (now Mr. Justice) Kaplan observed, it is “fundamental that ‘use’ is not the same as ‘infringement’ [and] that use short of infringement is to be encouraged * * *. ” Kaplan, An Unhurried View of Copyright 57 (1967); see Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 393-95 (1968).

So as not to be misunderstood, we reemphasize four interrelated aspects of our holding. The first is that the conclusion that defendant’s particular use of plaintiff’s copyrighted material has been “fair” rests upon all of the elements discussed in Part III, supra, and not upon any one, or any combination less than all. We do not have to, and do not, say that any particular component would be enough, either by itself or together with some of the others. Conversely, we do not have to, and do not, say that all the elements we mention are essential to a finding of “fair use.” They all happen to be present here, and it is enough for this case to rule, as we do, that at least when all co-exist in combination a “fair use” is made out.

Connected with this point is the second one that our holding is restricted to the type and contest of use by NIH and NLM, as shown by this record. That is all we have before us, and we do not pass on dissimilar systems or uses of copyrighted materials by other institutions or enterprises, or in other fields, or as applied to items other than journal articles, or with other significant variables. We have nothing to say, in particular, about the possibilities of computer print-outs or other such products of the newer technology now being bom. Especially since we believe, as stressed infra, that the problem of photo and mechanical reproduction calls for legislative guidance and legislative treatment, we feel a strong need to obey the canon of judicial parsimony, being stingy rather than expansive in the reach of our holding.

The third facet articulates the same general premise — our holding rests upon this record which fails to show a significant detriment to plaintiff but does demonstrate injury to medical and scientific research if photocopying of this kind is held unlawful. We leave untouched, because we do not have to reach them, the situations where the copyright owner is shown to be hurt or the recipients (or their interests) would not be significantly injured if the reproductions were ruled to infringe.

Finally, but not at all least, we underline again the need for Congressional treatment of the problems of photocopying. The 1909 Act gives almost nothing by way of directives, the judicial doctrine of “fair use” is amorphous and open-ended, and the courts are now precluded, both by the Act and by the nature of the judicial process, from contriving pragmatic or compromise solutions which would reflect the legislature’s choices of policy and its mediation among the competing interests. The Supreme Court has pointed out that such a “ j ob is for Congress” (Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 401 (1968)), and in an earlier copyright case in which it was recognized that the owner might be morally or economically entitled to protection the Court applied “the act of Congress [as it] now stands,” saying that the other “considerations properly address themselves to the legislative and not to the judicial branch of the Government.” White-Smith Music Co. v. Apollo Co., 209 U.S. 1, 18 (1908). Hopefully, the result in the present case will be but a “holding operation” in the interim period before Congress enacts its preferred solution.

On this record and for these reasons, we hold the plaintiff not entitled to recover and dismiss the petition.

Appendix

SOME DISCUSSIONS OP LIBRARY PHOTOCOPYING

B. Yarmer, Photoduplication of Copyrighted Material by Libraries, Study No. 15, Copyright Law Revision, Studies Prepared for Senate Comm, on the Judiciary, 86th Cong., 2d Sess. (1960); G. Sophar and L. Heilprin, The Determination of Legal Facts and Economic Guideposts with Respect to the Dissemination of Scientific and Educational Information as it is Affected by Copyright — A Status Report, Final Report, Prepared by The Committee to Investigate Copyright Problems Affecting Communication in Science and Education, Inc., for the U.S. Department of Health, Education, and Welfare, Project No. 10793 (1967); Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law to the House Comm, on the Judiciary, 87th Cong., 2d Sess. at 25-26 (1961); Project — New Technology and the Law of Copyright: Reprography and Computers, 15 U.C.L.A. L. Rev. 931 (1968); V. Clapp, Copyright — A Librarian’s View, Prepared for the National Advisory Commission on Libraries, Association of American Libraries (1968) ; Schuster and Bloch, Mechanical Copyright, Copyright Law, and the Teacher, 17 Clev.-Mar. L. Bev. 299 (1968); “Eeport on Single Copies” — Joint Libraries Committee on Fair Use in Photocopying, 9 Copyright Soc’y Bull. 79 (1961-62) ; Breyer, “The Uneasy Case for Copyright: A Study of Copyright in Books Photocopies, and Computer Programs,” 84 Harv. L. Bev. 281 (1970); Note, “Statutory Copyright Protection for Books and Magazines Against Machine Copying,” 39 Notre Dame Lawyer 161 (1964); Note, Education and Copyright Law: An Analysis of the Amended Copyright Eevision Bill and Proposals for Statutory Licensing and a Clearinghouse System,” 56 Va. L. Bev. 664 (1970); Hattery and Bush (ed.), Beprography and Copyright Law (1964).

1 Prior to 1960, § 1498 provided only for patent Infringement suits against the Federal Government. In that year, Congress amended the section to make the united States liable in money for copyright infringement, pursuant to Title 17 of the united States Code, the general copyright statute. This is the first copyright case to reach trial in this court.

2 We list in the Appendix, infra, several considerations to these problems.

3 We borrow, with some modifications, the statement of facts from the opinion of Trial Judge James F. Davis.

4 IH.g., the November 1956 issue of Medicine has 86 pages, four of which carry commercial product advertising. The August 1965 issue of Journal of Immunology has 206 pages, nine of which carry commercial product advertising.

5 Defendant vigorously contests the publisher’s claim to be the copyright “proprietor” and its right to sue in this court. The argument is that the individual authors of the articles are the owners and they have not assigned their rights to plaintiff.

6 Section 3 of the copyright statute, 17 U.S.C. § 3, says that, “* * * [t]he copyright upon composite worts or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were Individually copyrighted under this title.” This means, and was intended to provide, that each article in the journals is protected from infringement to the same extent as the entire issue. Advertisers Each., Inc. v. Lanfe, 29 F. Supp. 1 (W.D. Pa. 1939) ; King Features Syndicate v. Fleischer, 299 F. 533 (C.A. 2, 1924).

7 Congress enacted the first copyright statute in 1790 (Act of May 31, 1790, ch. 15, 1 Stat. 124). Thereafter, the statute was revised from time to time, notably in 1S02, 1831, 1870, and 1891. In 1909, the present statute was passed (Act of March 4, 1909, ch. 320, 35 Stat. 1075) and later was codified as 17 U.S.C. (Act of July 30,1947, 61 Stat. 652).

8 For instance, H.R. Rep. No. 2222, 60th Cong., 23 Sess. 4 (1909) states: “Subsection (a) of section 1 adopts without change the phraseology of section 4952 of the Revised Statutes, and this, with the insertion of the word ‘copy,’ practically adopts the phraseology of the first copyright act Congress ever passed — -that of 1790. Many amendments of this were suggested, but the committee felt that It was safer to retain without change the old phraseology which has been so often construed by the courts.”

9 There was an 1911 edition, but no copy has been located.

10 The Library’s current practice Is described in Part III, 3, note 16, infra.

11 To the extent that Macmillan Co. v. King, 223 F. 862 (D. Mass. 1914), may possibly suggest that “publication” can occur through simple distribution to a very small restricted group, for a special purpose, we think the opinion goes too far.

12 Leon v. Pacific Tel. & Tel. Co., 91 F. 2d 484, 486 (C.A. 9, 1937) and Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 272 (C.A.D.C. 1960), vacated, and remanded, 369 tJ.S. Ill (1962), which are often cited In this connection, both Involved actual publication and distribution of many copies, not the simple making of a copy for individual personal or restricted use. In Wihtol v. Crow, 309 F. 2d 777 (C.A. 8, 1962) , 48 copies of the copyrighted song were made and distributed, and there were a number of public performances using these copies. It was as if the defendant had purchased one copy of sheet music and then duplicated it for an entire chorus.

On the other hand, New York Tribume, Inc. v. Otis & Co., 39 F. Supp. 67 (S.D.N.Y. 1941), shows that copying of an entire copyrighted item Is not enough, in itself, to preclude application of “fair use.’’ Although it was already plain that an entire copyrighted item (a newspaper editorial) had been reproduced, the court ordered further proceedings to take account of other factors.

13 Verner Clapp, former Acting Librarian of Congress, bas pointed out some of the uses of a photocopy for which the library copy original is unsuited (Gan Copyright Law Respond to the New Technology t, 61 Law Lib. J. 387 407 (1968) :

“I cannot submit the original conveniently in a court, in a suit of law. I cannot put the original into my filing cabinet. I can’t shuffle it with notes in preparation for an address. X can’t make notes on it. I can’t conveniently give it to a typist. I can’t use it as printer’s copy. I can’t send it through the mail without serious risk of loss of an original. With a photocopy I can do all these things and more, and this is the reason I want a copy.”

14 One survey of NIH operations slows only 4 instances of duplication in over 200 requests; at NLM, as of 1964, duplication occurred at a 10% rate in the 102 most heavily used journals (constituting one-third of total requests) ; if all requests were considered, the rate would be less. The Sophar & Heilprin report (see Appendix), which Is not friendly to library photocopying, estimates that for libraries generally the duplication rate was about 3% (P. ill).

15 In 1970, NIH copied 85,744 and NLM 93,740 articles.

16 Currently, and for some time, tlie Library of Congress has said that copyright material will “ordinarily” not be photocopied by the Library “without the signed authorization of the copyright owner,” but “[exceptions to this rule may be made in particular cases.” The Library does, however, maintain machines which readers may themselves use for photocopying; these machines contain notices saying that “a single photocopy of copyrighted material may be made only for the purpose of study, scholarship, or research, and for no other purpose” and “the sale and/or further reproduction of any photocopied copyrighted materials is illegal.”

17 Plaintiff itself publishes a notice to the effect that it does not attempt to keep a stock of back issues, and it refers requests for reprints to the author.

18 We tlilnk: the alternative of compulsory licensing Is not open to us under the present copyright statute. See, infra, Parts III, 6, and IV.

19 It Is wrong to measure the detriment to plaintiff by loss of presumed royalty income — a standard which necessarily assumes that plaintiff had a right to issue licenses. That would be true, of course, only if It were first decided that the defendant's practices did not constitute “fair use.” In determining whether the company has been sufficiently hurt to cause these practices to become “unfair,” one cannot assume at the start the merit of the plaintiff’s position, i.e., that plaintiff had the right to license. That conclusion results only if It Is first determined that the photocopying Is “unfair.”

20 Defendant explains the loss years and the fall-off In some subscriptions In some years as due to particular circumstances (which are spelled out) other than photocopying.

21 The trial judge referred to two Instances In which subscribers cancelled subscriptions because of the availability of photocopying. Defendant Is correct that both instances rest on hearsay, and in any event this small number of purported cancellations Is de minimis In view of the more solid and detailed proof as to the health of plaintiff's journals and the increase in their subscription lists.

22 The published literature does not reveal any careful, thorough, impartial study of this question. Often there is no attempt to ascertain the actual economic impact on the publishers and authors; when inquiry has been made of the latter, their conclusory generalizations of injury have been accepted uncritically.

23 The same Is true of “print,” “reprint,” and “publish,” as applied to the challenged practices of NLM and NIH.

24 Defendant and its amici strongly attack plaintiff's so-called licensing plan as nothing more than a shell. The American Library Association points out, for instance, that the Williams & Wilkins license would apparently not apply to inter-library loans or to requests from persons not physically present in the library building.

There is also debate over whether a feasible ASCAP-type or clearinghouse system can be developed without legislation, and if so whether it would be desirable. See, e.g.. Note, Education and Copyright Law: An Analysis oí the Amended Copyright Revision Bill and Proposals for Statutory Licensing and a Clearinghouse System, 56 Va. L. Rev. 664 (1970) ; also published as Mac-Lean, Education and Copyright Law: An Analysis of the Amended Copyright Revision Bill and Proposals for Statutory Licensing and a Clearinghouse System, in ASCAP, "Copyright Law Symposium, Number Twenty," 1 (1972) ; Breyer, The Uneasy Case for Copyright: A Study of Copyright in Boohs, Photocopies and Computer Programs, 84 Harv. L. Rev. 281, 330 ff. (1970) ; Note: New Technology and the Law of Copyright: Reprography cmd Computers, 15 ÜCLA L. Rev. 939, 961 If. (1968).

25 A court’s powers under the anti-trust legislation is another matter.

26 It has been suggested, however, that publishers now have the power to adopt the intermediate solution of charging more for subscriptions sold to libraries or other entities which engage regularly in photocopying.

27 A synopsis of the revision effort (up to 1968) is set forth in Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 396 n. 17 (1968).

28 The report says (p. 29) that “* * * 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”; that (p. 32) the committee endorses “the purpose and general scope of the judicial doctrine of fair use, as outlined earlier in this report, but there is no disposition to freeze the doctrine in the statute, especially during a period of 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” ; and that (p. 32) “Section 107, as revised by the committee, is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.”

29 The foreign laws are compiles in Copyright Laws and Treaties of the World, publishes by UNESCO.

30 The general report of the Committee of Experts on the Photographic ReproSuetion of ProtecteS Works [a joint committee of UNESCO anS the united International Bureau for the Protection of Intellectual Property (BIRPI) ] reeommenSeS that libraries shouIS have the right to provide one copy free of copyright for each user provides that such copy, in the case of a periodical, shall not be more than a single article. 4 Copyright 195, 197 (1968). j