Student Statement on The Right to Research Scholarly knowledge is part of the common wealth of humanity. Unfortunately, not everyone has access to the scholarly literature, despite advances in communications technology. The high cost of academic journals restricts access to knowledge; in some fields, prices can reach $20,000 for a single journal subscription1 or $30 for an individual article.2 Despite these high prices, authors of scholarly articles are not paid for their work. The profits from these publications go solely to the publishers of the journals. A vast amount of research is funded from public sources – yet taxpayers are locked out by the cost of access. Learning and inquiry are impeded when scholars lack access to fellow researchers’ work, and when students lack access to the work of scholars before them. At the same time, digital technologies have opened new opportunities for research. New tools facilitate faster discoveries, speed the development of new technologies, and accelerate the progress of science. Patients could have access to the latest medical research, citizens could evaluate scientific information on environmental impacts, and developing countries could apply the most recent scholarship to public health and development efforts.3 But access barriers leave these opportunities under-explored. Open Access is an alternative to the traditional closed, subscription-access system of scholarly communication. Open Access makes the results of scholarly research available online for free, immediately upon publication, and removes barriers for scholarly and educational re-use.4 Entire journals can be open-access, or an author can provide Open Access to an individual article by posting a copy on an openly accessible Web site. All forms of open-access publication depend on rigorous methods of quality control, including peer review. Open Access has achieved remarkable success to date: more than 4,000 open-access journals are published today;5 millions of articles are made available via open-access repositories;6 and dozens of policies from universities and research funders support Open Access;7 but still more needs to be done. We, the undersigned student organizations, hereby endorse Open Access as the preferred model for scholarly communication, because: (a) Open Access improves the educational experience. All students, regardless of their institution’s ability to afford subscriptions, should have

access to the full scholarly record, whether for assigned reading, research for a term paper, or literature review for a dissertation. (b) Open Access democratizes access to research. Students from around the world should have full access to the scholarly literature, along with patients looking for medical information and citizens seeking to learn about the environment or other scientific topics. (c) Open Access advances research. Open Access helps researchers be more productive by facilitating access to the latest studies. Open Access also enables new techniques for computer-assisted research, paving the way for scientific advancements. (d) Open Access improves the visibility and impact of scholarship. Today’s student is tomorrow’s scholar. Recent studies suggest that Open Access articles are downloaded and cited more frequently than articles that are accessible only through subscription.8 Open Access fulfills researchers’ professional responsibility to maximize the impact of their research. We hereby: Call upon UNIVERSITIES to support Open Access We believe universities should adopt policies that ensure Open Access to their faculty’s research, such as the policies adopted at Harvard University9 and Stanford University.10 Call upon GOVERNMENTS AND RESEARCH FUNDERS to support Open Access We believe research agencies should adopt policies that ensure Open Access to publicly funded research, such as that of the National Institutes of Health11 and the Canadian Institutes of Health Research.12 We believe charitable funders likewise should adopt policies that ensure Open Access to their funded research, such as that of Autism Speaks13 and the Canadian Cancer Society.14 Call upon RESEARCHERS to support Open Access We believe researchers should publish in Open Access journals, and/or deposit their peer-reviewed manuscripts in Open Access repositories.15 Commit to support Open Access in our activities

Copyright (c) 2009 The Trustees of Columbia University in the City of New York The Columbia Journal of Law & the Arts

Winter, 2009

32 Colum. J.L. & Arts 193

LENGTH: 7579 words ARTICLE: A LAY PERSPECTIVE ON THE COPYRIGHT WARS: A REPORT FROM THE TRENCHES OF THE SECTION 108 STUDY GROUP HORACE S. MANGES LECTURE: APRIL 1, 2008 NAME: James G. Neal* BIO: * Vice President for Information Services and University Librarian, Columbia University. [...] The 108 Study Group was convened in April 2005 under the auspices of the [*199] Library of Congress National Digital Information and Infrastructure and Preservation Program (NDIIPP) and the U.S. Copyright Office. n19 It was charged with studying how the exceptions and limitations for libraries and archives codified in section 108 may need to be changed due to the impact of digital technologies and in response to developments in practices since section 108 was introduced in the 1976 Copyright Act. n20 (Neal, pg 198). [...] It was agreed that libraries, archives and museums (LAMs) should be authorized to outsource to contractors some of the [*202] activities performed under section 108 exceptions, as long as certain requirements are imposed on the outsourcing company by contract. n32 The three copy limit for replacement purposes should change to a limited number of copies based on what is reasonably necessary, reflecting the realities of working with digital technologies. n33 "Fragile" should be added as a condition for replacement, recognizing that some mediums are easily destroyed and cannot be handled without risk. n34 The requirement of investigation of new copy availability in the market for replacement should be mitigated by requiring only that it be a usable copy at a fair price, and in some cases this can be a licensed copy. n35 The Study Group supported an ability to lend a digital replacement copy of a work offsite in the same physical digital medium, assuming appropriate technological protection measures. n36 The preservation of unpublished works was actively debated, and similar agreement was reached as to the handling of both analog and digital works to have a reasonable number of copies for preservation and security purposes, for deposit in other institutions, and for off-site lending. n37 Perhaps the most important new provisions address the preservation of publicly disseminated works and the preservation of publicly available online content, i.e. web sites and web documents. It was agreed that an exception should be added to permit qualifying LAMs to make copies to create and maintain a preservation copy of any at-risk published or other publicly disseminated work in the collections. n38 These issues were extensively debated, including such details as access to the preservation copies; the characteristics and qualities of the LAM qualifications, including level of ability to control access to the preservation copies; and an open and transparent auditing process. Similarly, it was agreed that an exception should be added to permit qualifying LAMs to "capture and reproduce publicly available online content for preservation purposes." n39 Again, issues were actively raised, including the definition of "publicly available," on premises versus

remote access, the ability of rights holders to opt out, the handling of government and political websites, and labeling of the archived copy. An important provision was proposed to allow the transmission of television news by streaming to other section 108 eligible LAMs. n40 The Study Group also recommended that LAMs be relieved of liability for use of unsupervised reproducing equipment by users if they post notices in public areas stating that the making of a copy may be subject to penalties under copyright law. n41 [...] As I reflect on my twenty years of involvement in the library offensive on copyright, during which my combative posture has waxed and waned, I wonder if we did justice to the opportunity presented by the section 108 Study Group. Were we bold enough? Did we miss the opportunity to rethink the nature and purposes of exceptions? Or did we retreat into impotent models and structures, and the comfort of disagreeing camps and trite propaganda? Will Rogers once noted, "Every war has been preceded by a peace conference. That's what always starts the new war." n53 The section 108 Study Group was born in wisdom and inspiration, but may have passed over to process and politics. Now we can recognize the opportunity it presents to fight with a new vision for copyright law and to re-strike its balance in favor of the public interest. (Neal, pg 193).

VIEWPOINT

The flavors of open accessSha Li Zhang

University Libraries, The University of North Carolina at Greensboro,Greensboro, North Carolina, USA

Abstract

Purpose – The purpose of this paper is to present various aspects of open access that are beingdiscussed and debated in recent years.

Design/methodology/approach – The paper briefly reviews the flavors such as open accessdefinitions, open access initiatives, platforms for open access, and players in the open accessmovement.

Findings – The paper finds that, while the debates on open access continue, there is no doubt thatlibrarians can play an important role to help achieve faster and wider dissemination of researchdiscoveries and new knowledge of which they have been disseminators and keepers for centuries.

Originality/value – The article may help readers further their understanding of the complexity ofopen access and raise awareness on some of the key points.

Keywords Financing, Communications, Educational research, Publishing

Paper type Viewpoint

Debates and discussions of open access (OA) have received increasing attention in theacademic, scholarly research, and publishing communities in the United States andaround the globe. Though the concept of open access itself is still evolving, there aremany aspects of the discussions. This paper briefly reviews some of these centeredaround open access that may help further understanding the complexity of the openaccess concept.

Open access definitionsThere are numerous definitions and interpretations of open access. The 2002 BudapestOpen Access Initiative’s definition on open access is quite comprehensive:

Free availability on the public internet, permitting any users to read, download, copy,distribute, print, search, or link to the full texts of these articles, crawl them for indexing, passthem as data to software, or use them for any other lawful purpose, without financial, legal, ortechnical barriers other than those inseparable from gaining access to the internet itself(Budapest Open Access Initiative, 2002).

Another definition of open access from the Association of Research Libraries (ARL) inthe United States refers to “any dissemination models created with no expectation ofdirect monetary return and which makes works available online at no cost to thereaders” (ARL, 2007). There are other similar definitions. Two examples are theBethesda Statement on Open Access Publishing (2003) and the Berlin Declaration onOpen Access to Knowledge in the Sciences and Humanities (2003). In essence, mostopen access proponents agreed that scholarly literature should be freely availableonline (Suber, 2003). To make it more inclusive, Lynch (2006, p. 5) defines open access

The current issue and full text archive of this journal is available at

www.emeraldinsight.com/1065-075X.htm

The flavors ofopen access

229

OCLC Systems & Services:International digital library

perspectivesVol. 23 No. 3, 2007

pp. 229-234q Emerald Group Publishing Limited

1065-075XDOI 10.1108/10650750710776332

§�0� Copyright Infringement and Remedies

§ 504 · Remedies for infringement: Damages and profits3

(a) In general.—Except as otherwise provided by this title, an infringer of copyright is liable for either—

(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits.—The copyright owner is entitled to re-cover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. (c) Statutory Damages.— (1) Except as provided by clause (2) of this subsection, the copyright owner

may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringe-ments involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are li-able jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work. (2) In a case where the copyright owner sustains the burden of proving, and

the court finds, that infringement was committed willfully, the court in its dis-cretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by repro-ducing a transmission program embodying a performance of such a work. (3) (A) In a case of infringement, it shall be a rebuttable presumption that

the infringement was committed willfully for purposes of determining relief

1�� Copyright Law of the United States

copyrightchart

CLASSROOM COPYRIGHT CHART

Medium What You Can DoAccording

to The Fine Print

Printed Material

● Poem less than 250 words

● Excerpt of 250 words from a poem greater than 250 words

● Articles, stories, or essays less than 2,500 words

● Excerpt from a longer work (10% of work or 1,000 words, whichever is less--but a minimum of 500 words)

● One chart, picture, diagram, graph, cartoon or picture per book or per periodical issue

● Two pages (max) from an illustrated work less than 2,500 words (like childrens books)

Teachers may make multiple copies for classroom use.

United States Copyright Office

Circular 21

No more than one copy per student. Usage must be: At the "instance and inspiration of a single teacher" and when the time frame doesn't allow enough time for asking permission. Only for one course in the school. No more than nine instances per class per term (current news publications such as newspapers can be used more often). Don't create anthologies. "Consumables" can't be copied. Don't do it every term (if time allows, seek permission). Can't be directed by "higher authority." Copying can't be substitute for buying. Copies may be made only from legally acquired originals.

● A chapter from a book

● An article from a periodical

● Short story, short essay, or short poem

● Chart, graph, diagram, drawing , cartoon, picture from a book, periodical or newspaper

Teachers may make a single copy for teacher use for research or lesson preparation.

United States Copyright Office

Circular 21

Same as above.

http://www.mediafestival.org/copyrightchart.html (1 of 5) [5/13/2001 1:03:54 PM]

copyrightchart

● Portions of a work ● An entire work ● A work if "the

existing format in which a work is stored has become obsolete"

A librarian may make up to three copies "solely for the purpose of replacement of a copy...that is damaged, deteriorating, lost or stolen"

Section 108 Copyright Act (1976 ) as amended by the Digital Millenium Copyright Act

The library must first determine that after "reasonable investigation that copy...cannot be obtained at a fair price" or that the format is obsolete.

Text for Use in Multimedia Projects

● Same rights as "Printed Material" above

Students may incorporate text in multimedia projects. Teachers may incorporate into multimedia for teaching courses.

Fair Use Guidelines for Educational Multimedia

Teachers may use for two years, after that permission is required. Students may keep in portfolio for life.

Video

● Videotapes (purchased)

● Videotape (rented) ● DVD ● Laser Discs

Teachers may use these materials in the classroom without restrictions of length, percentage, or multiple use

.

May be copied for archival purposes or to replace lost, damaged, or stolen copies.

Section 110 of the Copyright Act

The material must legitimately acquired (a legal copy). It must be used in a classroom or similar place "dedicated to face-to-face instruction". Not for use as entertainment or reward. The use should be instructional. The place should be a non-profit educational institution.

If replacements are unavailable at a fair price or are available only in obsolete formats (e.g., betamax videos).

Video ("Motion Media") for Use in Multimedia

Projects

http://www.mediafestival.org/copyrightchart.html (2 of 5) [5/13/2001 1:03:54 PM]

copyrightchart

● Videotapes ● DVD ● Laser Discs ● QuickTime Movies ● Encyclopedias

(CDROM)

Students "may use portions of lawfully acquired copyrighted works in their academic multimedia", defined as 10% or three minutes (whichever is less) of "motion media"

Fair Use Guidelines for Educational Multimedia

"Proper attribution and credit must be noted for all copyrighted works included in multimedia, including those prepared under fair use."Tina Ivany, UC San Diego 12/08/95

Video for Integration into Video Projects

.

● Videotapes ● DVD ● Laser Discs ● QuickTime Movies ● Encyclopedias

(CDROM)

Students "may use portions of lawfully acquired copyrighted works in their academic multimedia"

Fair Use Guidelines for Educational Multimedia

The material must legitimately acquired (a legal copy, not bootleg or home recording).

Illustrations and Photographs

● Photograph ● Illustration ● Collections of

photographs ● Collections of

illustrations

Single works may be used in their entirety but not more than 5 images by an artist or photographer. From a collection, not more than 15 images or 10%, whichever is less.

Fair Use Guidelines for Educational Multimedia

Older illustrations may be in the public domain, but the collection may be copyrighted.

Music for Integration into Multimedia / Video

Projects

● Music

Up to 10% of a copyrighted musical composition may be reproduced, performed and displayed as part of a multimedia program produced by an educator or student for educational purposes.

Fair Use Guidelines for Educational Multimedia

Some authorities site a maximum length of 30 seconds. (www.indiana.edu), some do not mention a maximum (Tina Ivany, UCSD, 12/08/95). See below.

http://www.mediafestival.org/copyrightchart.html (3 of 5) [5/13/2001 1:03:54 PM]

c i r c u l a r 9 2

Copyright Law of the United States and Related Laws Contained in Tıtle 17 of the United States Code

o c t o b e r 2 0 0 7

Subject Matter and Scope of Copyright §10�

by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work.

§ 107 · Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copy-

righted work as a whole; and (4) the effect of the use upon the potential market for or value of the copy-

righted work. The fact that a work is unpublished shall not itself bar a finding of fair use if

such finding is made upon consideration of all the above factors.

§ 108 · Limitations on exclusive rights: Reproduction by libraries and archives41

(a) Except as otherwise provided in this title and notwithstanding the provi-sions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsec-tions (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if—

(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage; (2) the collections of the library or archives are (i) open to the public, or (ii)

available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and (3) the reproduction or distribution of the work includes a notice of copy-

right that appears on the copy or phonorecord that is reproduced under the

Copyright Law of the United States 1�

§10� Subject Matter and Scope of Copyright

provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phono-record that is reproduced under the provisions of this section. (b) The rights of reproduction and distribution under this section apply to

three copies or phonorecords of an unpublished work duplicated solely for pur-poses of preservation and security or for deposit for research use in another li-brary or archives of the type described by clause (2) of subsection (a), if—

(1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and (2) any such copy or phonorecord that is reproduced in digital format is not

otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives. (c) The right of reproduction under this section applies to three copies or pho-

norecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if—

(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and (2) any such copy or phonorecord that is reproduced in digital format is not

made available to the public in that format outside the premises of the library or archives in lawful possession of such copy. For purposes of this subsection, a format shall be considered obsolete if the

machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace. (d) The rights of reproduction and distribution under this section apply to a

copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if—

(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and (2) the library or archives displays prominently, at the place where orders are

accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation. (e) The rights of reproduction and distribution under this section apply to the

entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reason-able investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if—

�0 Copyright Law of the United States

Subject Matter and Scope of Copyright §10�

(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and (2) the library or archives displays prominently, at the place where orders

are accepted, and includes on its order form, a warning of copyright in ac-cordance with requirements that the Register of Copyrights shall prescribe by regulation. (f) Nothing in this section— (1) shall be construed to impose liability for copyright infringement upon

a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law; (2) excuses a person who uses such reproducing equipment or who requests

a copy or phonorecord under subsection (d) from liability for copyright in-fringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107; (3) shall be construed to limit the reproduction and distribution by lending

of a limited number of copies and excerpts by a library or archives of an audio-visual news program, subject to clauses (1), (2), and (3) of subsection (a); or (4) in any way affects the right of fair use as provided by section 107, or any

contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections. (g) The rights of reproduction and distribution under this section extend to

the isolated and unrelated reproduction or distribution of a single copy or pho-norecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee—

(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phono-records 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; or (2) engages in the systematic reproduction or distribution of single or mul-

tiple copies or phonorecords of material described in subsection (d): Provided, 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 work. (h)(1) For purposes of this section, during the last 20 years of any term of copy-

right of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof,

Copyright Law of the United States �1

§10� Subject Matter and Scope of Copyright

for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.

(2) No reproduction, distribution, display, or performance is authorized under this subsection if—

(A) the work is subject to normal commercial exploitation; (B) a copy or phonorecord of the work can be obtained at a reasonable

price; or (C) the copyright owner or its agent provides notice pursuant to regula-

tions promulgated by the Register of Copyrights that either of the condi-tions set forth in subparagraphs (A) and (B) applies. (3) The exemption provided in this subsection does not apply to any sub-

sequent uses by users other than such library or archives. (i) The rights of reproduction and distribution under this section do not apply

to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b), (c), and (h), or with respect to pictorial or graphic works published as illustra-tions, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).

§ 109 · Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord42

(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, i s entitled, w ithout the authority of the copyright owner, t o sell or otherwise dispose of the possession of that copy or phonorecord. Notwith-standing the preceding sentence, copies or phonorecords of works subject to restored copyright under section 104A that are manufactured before the date of restoration of copyright or, with respect to reliance parties, before publication or service of notice under section 104A(e), may be sold or otherwise disposed of without the authorization of the owner of the restored copyright for purposes of direct or indirect commercial advantage only during the 12-month period beginning on—

(1) the date of the publication in the Federal Register of the notice of intent filed with the Copyright Office under section 104A(d)(2)(A), or (2) the date of the receipt of actual notice served under section 104A(d)(2)(B),

whichever occurs first. (b)(1)(A) Notwithstanding the provisions of subsection (a), unless authorized

by the owners of copyright in the sound recording or the owner of copyright in a

�� Copyright Law of the United States

§�0� Copyright Infringement and Remedies

§ 504 · Remedies for infringement: Damages and profits3

(a) In general.—Except as otherwise provided by this title, an infringer of copyright is liable for either—

(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits.—The copyright owner is entitled to re-cover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. (c) Statutory Damages.— (1) Except as provided by clause (2) of this subsection, the copyright owner

may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringe-ments involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are li-able jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work. (2) In a case where the copyright owner sustains the burden of proving, and

the court finds, that infringement was committed willfully, the court in its dis-cretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by repro-ducing a transmission program embodying a performance of such a work. (3) (A) In a case of infringement, it shall be a rebuttable presumption that

the infringement was committed willfully for purposes of determining relief

1�� Copyright Law of the United States

8

permissible in the future; and conversely that in the fu-ture other types of copying not permitted under theseguidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines isnot intended to limit the types of copying permittedunder the standards of fair use under judicial decisionand which are stated in Section 107 of the CopyrightRevision Bill. There may be instances in which copy-ing which does not fall within the guidelines statedbelow may nonetheless be permitted under the crite-ria of fair use.

GUIDELINES

I. Single Copying for TeachersA single copy may be made of any of the following

by or for a teacher at his or her individual request forhis or her scholarly research or use in teaching orpreparation to teach a class:

A. A chapter from a book;B. An article from a periodical or newspaper;C. A short story, short essay or short poem,

whether or not from a collective work;D. A chart, graph, diagram, drawing, cartoon or

picture from a book, periodical, or newspaper;

II. Multiple Copies for Classroom UseMultiple copies (not to exceed in any event more

than one copy per pupil in a course) may be made byor for the teacher giving the course for classroom useor discussion; provided that:

A. The copying meets the tests of brevity andspontaneity as defined below; and,

B. Meets the cumulative effect test as defined be-low; and,

C. Each copy includes a notice of copyrightDefinitions

Brevity(i) Poetry: (a) A complete poem if less than 250

words and if printed on not more than two pages or,(b) from a longer poem, an excerpt of not more than250 words.

(ii) Prose: (a) Either a complete article, story or es-say of less than 2,500 words, or (b) an excerpt fromany prose work of not more than 1,000 words or 10%of the work, whichever is less, but in any event a mini-mum of 500 words.

[Each of the numerical limits stated in “i” and “ii”above may be expanded to permit the completion ofan unfinished line of a poem or of an unfinished proseparagraph.]

(iii) Illustration: One chart, graph, diagram, draw-ing, cartoon or picture per book or per periodical issue.

(iv) “Special” works: Certain works in poetry,prose or in “poetic prose” which often combine lan-guage with illustrations and which are intendedsometimes for children and at other times for a moregeneral audience fall short of 2,500 words in their en-

tirety. Paragraph “ii” above notwithstandiiig such“special works” may not be reproduced in their en-tirety; however, an excerpt comprising not more thantwo of the published pages of such special work andcontaining not more than 10% of the words found inthe text thereof, may be reproduced.

Spontaneity(i) The copying is at the instance and inspiration of

the individual teacher, and(ii) The inspiration and decision to use the work

and the moment of its use for maximum teaching ef-fectiveness are so close in time that it would be unrea-sonable to expect a timely reply to a request for per-mission.

Cumulative Effect(i) The copying of the material is for only one

course in the school in which the copies are made.(ii) Not more than one short poem, article, story,

essay or two excerpts may be copied from the sameauthor, nor more than three from the same collectivework or periodical volume during one class term.

(iii) There shall not be more than nine instances ofsuch multiple copying for one course during one classterm.

[The limitations stated in “ii” and “iii” above shallnot apply to current news periodicals and newspapersand current news sections of other periodicals.]

III. Prohibitions as to I and II AboveNotwithstanding any of the above, the following

shall be prohibited:(A) Copying shall not be used to create or to re-

place or substitute for anthologies, compilations orcollective works. Such replacement or substitutionmay occur whether copies of various works or ex-cerpts therefrom are accumulated or reproduced andused separately.

(B) There shall be no copying of or from works in-tended to be “consumable” in the course of study orof teaching. These include workbooks, exercises,standardized tests and test booklets and answersheets and like consumable material.

(C) Copying shall not:(a) substitute for the purchase of books, publish-

ers’ reprints or periodicals;(b) be directed by higher authority;(c) be repeated with respect to the same item by

the same teacher from term to term.(D) No charge shall be made to the student beyond

the actual cost of the photocopying.Agreed MARCH 19, 1976.Ad Hoc Committee on Copyright Law Revision:

BY SHELDON ELLIOTT STEINBACH.Author-Publisher Group:Authors League of America:

BY IRWIN KARP, Counsel.Association of American Publishers, Inc.:

BY ALEXANDER C.HOFFMAN,Chairman, Copyright Committee.

14

section extend only to the “isolated and unrelated repro-duction of a single copy,” but this section does not autho-rize the related or concerted reproduction of multiple cop-ies of the same material whether made on one occasion orover a period of time, and whether intended for aggregateuse by one individual or for separate use by the individualmembers of a group. For example, if a college professor in-structs his class to read an article from a copyrighted jour-nal, the school library would not be permitted, under sub-section (g), to reproduce copies of the article for the mem-bers of the class.

Subsection (g) also provides that section 108 does notauthorize the systematic reproduction or distribution ofcopies or phonorecords of articles or other contributions tocopyrighted collections or periodicals or of small parts ofother copyrighted works whether or not multiple copiesare reproduced or distributed. Systematic reproduction ordistribution occurs when a library makes copies of suchmaterials available to other libraries or to groups of usersunder formal or informal arrangements whose purpose oreffect is to have the reproducing library serve as theirsource of such material. Such systematic reproduction anddistribution, as distinguished from isolated and unrelatedreproduction or distribution, may substitute the copies re-produced by the source library for subscriptions or re-prints or other copies which the receiving libraries or us-ers might otherwise have purchased for themselves, fromthe publisher or the licensed reproducing agencies.

While it is not possible to formulate specific definitionsof “systematic copying,” the following examples serve to il-lustrate some of the copying prohibited by subsection (g).

(1) A library with a collection of journals in biology in-forms other libraries with similar collections that it willmaintain and build its own collection and will make copiesof articles from these journals available to them and theirpatrons on request. Accordingly, the other libraries discon-tinue or refrain from purchasing subscriptions to thesejournals and fulfill their patrons’ requests for articles byobtaining photocopies from the source library.

(2) A research center employing a number of scientistsand technicians subscribes to one or two copies of neededperiodicals. By reproducing photocopies of articles the cen-ter is able to make the material in these periodicals avail-able to its staff in the same manner which otherwise wouldhave required multiple subscriptions.

(3) Several branches of a library system agree that onebranch will subscribe to particular journals in lieu of eachbranch purchasing its own subscriptions, and the one sub-scribing branch will reproduce copies of articles from thepublication for users of the other branches.

The committee believes that section 108 provides anappropriate statutory balancing of the rights of creatorsand the needs of users. However, neither a statute nor leg-islative history can specify precisely which library photo-copying practices constitute the making of “single copies”as distinguished from “systematic reproduction.” Isolatedsingle spontaneous requests must be distinguished from“systematic reproduction.” The photocopying needs of

such operations as multi-county regional systems must bemet. The committee therefore recommends that represen-tatives of authors, book and periodical publishers and otherowners of copyrighted material meet with the library com-munity to formulate photocopying guidelines to assist li-brary patrons and employees. Concerning library photo-copying practices not authorized by this legislation, thecommittee recommends that workable clearance and li-censing procedures be developed.

It is still uncertain how far a library may go under theCopyright Act of 1909 in supplying a photocopy of copy-righted material in its collection. The recent case of TheWilliams and Wilkins Company v. The United Statesfailed to significantly illuminate the application of the fairuse doctrine to library photocopying practices. Indeed, theopinion of the Court of Claims said the Court was engagedin “a ‘holding Operation’ in the interim period before Con-gress enacted its preferred solution.”

While the several opinions in the Wilkins case havegiven the Congress little guidance as to the current stateof the law on fair use, these opinions provide additional sup-port for the balanced resolution of the photocopying issueadopted by the Senate last year in S. 1361 and preserved insection 108 of this legislation. As the Court of Claims opin-ion succinctly stated “there is much to be said on all sides.”

In adopting these provisions on library photocopying,the committee is aware that through such programs asthose of the National Commission on Libraries and Infor-mation Science there will be a significant evolution in thefunctioning and services of libraries. To consider the pos-sible need for changes in copyright law and procedures asa result of new technology, a National Commission on NewTechnological Uses of Copyrighted Works has been estab-lished (Public Law 93-573).

3. Excerpts From House Report on Section 108

The following excerpts are reprinted from the House Reporton the new copyright law (H.R. Rep. No. 94-1476, pages74-79). All of the House Report’s discussion of section 108is reprinted here; similarities and differences between theHouse and Senate Reports on particular points will benoted below.

a. House Report: Introductory Statement

This paragraph is substantially the same in the Senate andHouse Reports.

Notwithstanding the exclusive rights of the owners ofcopyright, section 108 provides that under certain condi-tions it is not an infringement of copyright for a library orarchives, or any of its employees acting within the scope oftheir employment, to reproduce or distribute not morethan one copy or phonorecord of a work, provided (1) the