Page 47 - 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

Commission on New Technological Uses of Copyrighted Works (CONTU), was established
to continue to study the practice and use of photocopying. 106
Before CONTU could submit a report to Congress, a dispute over libraries’ photocopying
was brought to the court, calling for congressional clarification of the limit on photocopying
107
under the 1976 Act. The plaintiff, Williams & Wilkins, a large publisher of medical
journals claimed that the library of the National Institutes of Health (NIH) and the National
Library of Medicine (NLM) constituted copyright infringement by allowing their staff to
108
copy articles from the plaintiff’s journals for private research and interlibrary loans. The
US Court of Claims reversed the commissioners’ opinion, holding that it was fair use for the
libraries’ patrons to photocopy articles for scientific research. The Supreme Court affirmed
109
110
the fair-use decision by a per curiam opinion from an evenly divided Court. However, the
interlibrary loan photocopying permitted by the Court of Claims significantly exceeded the
limitation of six copies set by the CONTU in its 1974 report. 111
The Congress soon acted to address the inconsistency. The 1976 Act codified the court’s
ruling on ‘fair use’, providing limitations for certain uses with ‘purposes such as criticism,
comment, news reporting, teaching (including multiple copies for classroom use), scholarship or
112
research’. In addition to the general fair-use exception, the Congress made a special exception
tailored to library photocopying, under which libraries and their employees could produce and
distribute a single copy of a copyrighted work if: (i) there is no direct or indirect commercial
advantage; (ii) the libraries’ collections are open to the public or available to researchers other
than those of the parent institution; and (iii) the copies include a notice of copyright. 113
With advances in photocopying machines, the ability to copy has grown to include a wide
range of distributors other than libraries, such as copy shops, stationary stores, government
114
agencies, educational establishments and business organisations. It has been difficult to
monitor their use and to collect licensing fees from them. Music publishers and composers

106 Copyright Clearance Center <http://www.copyright.com/> accessed 15 May 2019.
107 Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973).
108 Ibid.
109 Ibid. 1356.
110 Williams & Wilkins Co. v. United States, 420 U.S. 376 (1975).
111 CONTU Guidelines for Interlibrary Loan Photocopying. <http://www.ala.org/advocacy/sites/ala.org.advocacy/files/content/
copyright/GLsInterlibLoan.pdf> accessed 15 May 2019. Guidelines for the Proviso of Subsection 108(g)(2) 1. As used in the
proviso of subsection 108(g)(2), the words ‘... such aggregate quantities as to substitute for a subscription to or purchase of
such work’ shall mean: (a) with respect to any given periodical (as opposed to any given issue of a periodical), filled requests
of a library or archives (a ‘requesting entity’) within any calendar year for a total of six or more copies of an article or articles
published in such periodical within five years prior to the date of the request. Also see Joseph E. Young, ‘Copyright and the
New Technologies - The Case of Library Photocopying ’ (1982) 28 ASCAP Copyright Law Symposium 51, 127.
112 17 U.S. Code § 107.
113 17 U.S. Code § 108.
114 International Federation of Reproduction Rights Organisations (IFRRO), ‘Frequently Asked Questions----Who Needs a
License?’ <https://www.ifrro.org/faq-page> accessed 5 May 2019 (‘Enormous volumes of photocopies are taken every year
in educational institutions, by governments and other public bodies, by industries and associations…’).

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