Page 46 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 2 Copyright in the Pre-Internet Age: An Intermediary-oriented Approach
An Intermediary-oriented Approach

96
Publishers argued that photocopying infringed the right to copy. Conversely, photocopier
manufacturers and libraries claimed that photocopying should be treated as fair use
because it was mainly conducted in libraries for non-commercial research purposes and
97
would not compete with publishers’ normal exploitation of the copyrighted works.
Further, the availability of photocopying increased the value of books to users, which
allowed the publishers to raise book prices and profit from the new distribution technology,
98
photocopying.
Photocopier manufacturers and libraries both served as distributors-intermediaries
between book producers and the end users by widening the distribution channel. Before the
invention of small, cheap photocopiers, libraries were the primary users of photocopying
technology and thus were the main target of copyright enforcement. For example, in 1935,
99
the trade association of American book publishers reached an agreement with the libraries’
representative, the Joint Committee on Materials for Research of the American Council of
100
Learned Societies and the Social Research Council. This agreement, officially entitled the
Interlibrary Loan Code of 1935, has often been called the Gentlemen’s Agreement because
publishers have allowed libraries to make and deliver photocopies of parts of books or
journals for research purposes in lieu of interlibrary loans.
101
Xerox photocopiers, introduced in the 1960s, decreased the cost of copying and
encouraged libraries to make large quantities of copies not only for interlibrary loans but
102
to distribute to individual users for a charge. Publishers argued that such photocopying
constituted a way to distribute copyrighted works as an alternative to publishing and
103
asked for a restriction on library photocopying. The Register of Copyright embraced the
publishers’ petition, stating in its 1961 report that only ‘a reasonable portion of a copyrighted
work’ is allowed to be ‘reproduced without permission when necessary for a legitimate
104
purpose, which is not competitive with the copyright owner’s market for his work’.
However, what counted as a ‘reasonable portion’ and what purpose was of the phrase ‘not
105
competitive with the copyright owner’s market’ remained unclear. Ultimately, the US
Congress prepared a vital amendment in its 1976 copyright act. A new entity, the National

96 Ibid. 437.
97 Ibid.
98 Stan J Liebowitz, ‘Copying and Indirect Appropriability: Photocopying of Journals’ (1985) 93 Journal of Political Economy
945, 948.
99 Price (n 95) 445.
100 Laurie C. Tepper, ‘Copyright Law and Library Photocopying: An Historical Survey’ (1992) 84 Law Library Journal 341, 346.
101 Ibid. 346.
102 Ibid. 348.
103 Ibid.
104 See REGISTER OF COPYRIGHTS, COPYRIGHT LAW REVISION, REPORT HOUSE COMM. ON THE JUDICIARY,
87th Cong., Ist Sess. 50 (Comm. Print I96I) 24.
105 Breyer (n 50) 330.

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