The Law: Copying v. Copyright

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Well over 600,000 Xerox and other photocopying machines are currently humming and clicking off 30 billion copies per year in libraries and offices throughout the world. U.C.L.A. Law Professor Melville Nimmer has suggested that "the day may not be far off when no one need purchase books." But first, there is an unanswered legal question. Does this passion for duplicating violate the copyright laws?

The copyright statute itself has not been revised since 1909. Nor, surprisingly, had there ever been any court action on the question—until two months ago. Then, in a carefully reasoned opinion, an official of the U.S. Court of Claims ruled that a library that engages in "wholesale" duplicating of copyrighted material must pay a royalty.

Williams & Wilkins, a publisher of medical journals, had complained that it should be paid by the U.S. Government for copies of its articles that were being duplicated on request by the National Library of Medicine and by the library at the National Institutes of Health. The Government contended that the photocopying amounted to "fair use," since no more than one copy was made in response to each request, that the copies were made in the interest of furthering research, and that the technique was simply a mechanical improvement on the long-accepted practice of hand-copying material.

Claims Commissioner James F. Davis disagreed. What the Government "really appears to be arguing," he said, "is that copyright law should excuse libraries from liability for [this] kind of photocopying. That, of course, is a matter for Congress, not the courts, to consider." Until Congress acts, photocopying "poses a real and substantial threat to copyright owners' interests."

What Rates? Williams & Wilkins conceded the value of photocopying —but they want to be compensated for it. Though the actual financial details were left for a commissioner to determine later, NIH estimated that payments to just one publisher over a three-month test period would have been about $300. Since Commissioner Davis' ruling, the publishing firm has offered to accept a fee based on the total pages published each year in a given magazine or a fee of 5¢ for each page copied.

The Government refused both deals and moved to take the case to the full seven-judge Court of Claims. From there it will likely be appealed to the Supreme Court. Thus at least two years will pass—with almost all libraries continuing to make copies—before there is any final answer to what the American Library Association's chief counsel has called "the most significant copyright litigation of the 20th century."