A review procedure is prescribed in section 108(i) of the 1976 Act for assessing the adequacy of the new law with regard to photocopying and for recommending solutions to problems resulting from any inadequacy. The Register of Copyrights is to undertake a study and report to Congress by January 1, 1983, and at five-year intervals thereafter, “setting forth the extent to which this section [108] has achieved the intended statutory balancing of the rights of creators, and the needs of users.”206 Although section 108 primarily concerns photocopying by libraries and similar institutions, the language may be interpreted to enable the Register also to investigate the impact of photocopying performed by for-profit organizations and by individuals, either on publicly available coin-operated machines or through commercial copying services. The “intended statutory balancing of the rights of creators, and the needs of users,” the sought-after statutory standard, may be attained only if all these activities are evaluated. The Register’s report to Congress is to “describe any problems that may have arisen, and present legislative or other recommendations, if warranted.”207 Preparation of such a report would require that the study undertaken look beyond photocopying by libraries to accomplish its statutory purpose.

Having commissioned research, conducted investigations, and heard numerous witnesses on the photocopying issues related to current practices in and out of libraries, the Commission believes it can make helpful recommendations to the Register on how the first five-year study should be conducted.

The research effort should attempt to determine the impact of copying fees on the health of the publishing industry, with special emphasis on the publication of scientific, technical, and medical journals. In particular, the study should attempt to determine: (1) whether the imposition of copying fees contributes to the viability of individual journal titles; (2) what impact, if any, the imposition of copying fees has on journal subscriptions and library acquisitions; and (3) what information concerning the use of individual journal titles and their contents is provided by the numbers of photocopies for which payments are made.

The Register of Copyrights should construe section 108(i) broadly and not confine the five-year studies to the provisions of section 108 relating to library photocopying. The Register should examine how the educational and music copying guidelines have worked out in practice, {Page 51} and how the statute has operated with respect to organizations that are not educational institutions, libraries, or archives, including Organizations performing copying for a fee. All these types of copying have a potential impact on the creation and distribution of copyrighted works.

The Register should begin immediately to plan and implement the collection of data necessary to complete the required study. The Commission recommends that the Register convene representatives of the interested organizations to ascertain problems that appear unresolved by the 1976 Act and receive their suggestions on the conduct of the first five-year study. If the parties and the Register can agree on these matters, the collection of data and the usefulness of the data assembled may be improved and costs of the study reduced.

The regular periodic surveys of public, academic, school, federal, and special libraries conducted by the National Center for Education Statistics (NCES) will include at the Commission’s request survey questions to determine, for the years 1978 and 1979, the gross amount of photocopying taking place in the United States, broken down between periodicals and other copyrighted works and between copying for local use and for interlibrary loan. Similar data may be collected for 1980 and 1981. In addition, consideration should be given to collecting data in these NCES surveys from the records on copying for interlibrary loan that libraries are required to maintain under the CONTU guidelines. Also, the Register should obtain and publish data for the calendar years 1978, 1979, 1980, and 1981 on the operations of such organizations as the Copyright Clearance Center, Inc., National Technical Information Service, University Microfilms International, and the Institute for Scientific Information, which license or supply authorized photocopies of copyrighted works.

The Register should also consider updating the 1976 Fry/White study of the economics of libraries and scholarly journals and incorporating some of the features of the 1977 King study.208 The Fry/White study for the National Science Foundation provides economic data concerning libraries and scholarly journal publishing in the period 1969-73. The King study measured the type and volume of library photocopying in 1976. A combination of the two, with some additional features designed to measure the impact of the specific photocopying provisions of the 1976 Act on libraries and journal publishing, repeated for the calendar year 1981, would provide a means of assessing the economic status of library and journal publishing for a thirteen-year period, the last four years of which would be after the effective date of the 1976 Copyright Act.

Next section: Recommendations to Publishers

206 17 U.S.C. § 108(i).

207 Ibid.

208 FRY and WHITE, PUBLISHERS AND LIBRARIES: A STUDY OF SCHOLARLY AND RESEARCH JOURNALS (1976); hereinafter referred to as Fry/White study. For the King study, see note 193, supra.