The executive bodies responsible for the administration of the two international copyright conventions, the Berne Union and the Universal Copyright Convention, have studied copyright problems raised by photocopying for several years. At a joint meeting in December 1975, they decided that the subject was not yet ripe for international treatment but should be {Page 76} left for the time being to national consideration. When the two committees met again in November and December of 1977, this earlier decision was allowed to stand, and no further consideration has been given to adding to the international conventions’ specific provisions relating to photocopying.

Meanwhile, active study of problems presented by photocopying has been undertaken in a number of countries. The discussion which follows concentrates on four of these countries: Great Britain, Canada, and Australia - all of which have published official reports - and the Netherlands, where the copyright law of 1972 and subsequent administrative decrees have established a compulsory license and various schedules of fees for photocopying. Some consideration is also given to developments in France and the Federal Republic of Germany. Sweden operates a system under which the government makes payments to Swedish publishers for domestic materials copied for classroom use in the elementary and secondary schools.

Great Britain

In March 1977 in Great Britain, a special committee on general copyright revision reported its findings and recommendations in a publication entitled Copyright and Designs Law: Report of the Committee to Consider the Law on Copyright and Designs,262 commonly referred to as the Whitford Committee Report after its chairman, Justice Whitford. With respect to photocopying, the Whitford Committee recommended that the British copyright law of 1958 - which, among other things, generally permits the making of single copies of articles from periodicals without authorization - be amended. The proposed amendments would permit no photocopying without authorization of the copyright proprietor, but this change would not take effect until authors and other copyright proprietors, with the approval of the government (under a so-called umbrella statute), had set up one or more collecting societies to collect copyright fees under blanket licenses. The fees to be charged by the collecting societies would be subject to review by a copyright tribunal.

Canada

The Canadian Department of Consumer and Corporate Affairs published a working paper in April 1977 entitled Copyright in Canada - Proposals for a Revision of the Law, byA. A. Keyes and C. Brunet. The Department has requested interested Canadian organizations to submit written comments on this report, and oral testimony is expected to be heard in 1979. The recommendations of the Keyes-Brunet report are somewhat similar to those of the Whitford Committee. Keyes and Brunet believe, however, that the present Canadian law adequately covers photocopying and recommend no changes in the statute. They propose that authors and other copyright proprietors form a collective or collectives, similar to those existing in Canada for the collection of music performance fees, to license photocopying under the supervision of a government tribunal.

Australia

A special committee headed by Justice Franki published a report in Australia in October 1976 limited to the photocopying question entitled Report of the Copyright Law Committee on Reprographic Reproduction,frequently referred to as the Franki Report. That committee was set up largely as a result of an Australian Supreme Court decision, which held that universities were liable for unauthorized photocopying of copyrighted materials, including copying done on unsupervised coin-operated machines on their premises where no copyright warning was posted. The Franki Committee’s recommendations differ greatly from those of the Whitford Committee and of Keyes and Brunet. The Franki Report recommended that the Australian copyright law be amended to permit extensive single-copy photocopying of “reasonable portions” of copyrighted works by or on behalf of students in educational institutions and patrons of public libraries, and up to six copies for classroom use in nonprofit educational institutions. For copying beyond these limitations, a compulsory licensing scheme for nonprofit educational institutions was proposed.

Netherlands

The 1972 copyright law established liability for certain photocopying in the Netherlands {Page 77} and provided for a compulsory licensing scheme covering both Dutch and foreign works. The implementation of the general provisions was spelled out in a Royal Ordinance of 1974. In general, articles and short excerpts may be copied freely for private use. Commercial enterprises and public institutions may also make copies by paying fees to copyright owners. In the case of commercial enterprises, the payment is required to be “equitable.” The copying fee for public authorities, universities, and public libraries is set at ten Dutch cents per page, and for schools, at two and one-half Dutch cents per page. Libraries, however, may make single copies of articles for patrons and for interlibrary loan without liability.

A Dutch collecting society representing authors and publishers has been established but seems not to have progressed very far as yet in collecting copying fees. The one exception has been that the Dutch government paid 100,000 guilders for its copying in the years 1975-76 and is negotiating for the payment of fees for the years 1977-79. The collecting society proposes to negotiate several blanket license agreements with industry, universities, schools, libraries, and local governments. The fees collected will be distributed ultimately to the copyright proprietors whose works are copied, based on sampling and estimates. Until these arrangements can be made, any funds collected are to be distributed on an approximate basis by types of works, such as newspapers, books, and periodicals.

Federal Republic of Germany

As a result of a lawsuit in the Federal Republic of Germany, later reinforced by the enactment of section 54(2) of that country’s Copyright Act of 1965, a partial scheme for collecting fees for the photocopying of German scientific, technical, and professional journals was set up several years ago. Corporations wishing to copy articles of this type published by members of the Börsenverein (short designation of the publishers and booksellers association) pay for copies they make on a sliding schedule of fees. Small quantities of copying may be paid for by the purchase of stamps from an operating affiliate of the Börsenverein. A corporation may pay for larger quantities of copying in selected journals by means of a 30 percent surcharge on the subscription price. Alternatively, blanket copying privileges may be obtained by paying a 20 percent surcharge on all journals purchased. After the deduction of rather modest charges to cover administration expenses, the fees are distributed, with one-half going to publishers of journals and one-half to various professional societies whose members are frequently the authors of articles in the journals covered. Although this system has been in operation for some years, it has continued to be limited in scope, with only about one hundred large companies paying copying fees on some twelve hundred journals. The total annual gross revenues to the collection agency are currently less than one million German marks.

France

Following a court decision in France, the Centre National de la Recherche Scientifique has confined its photocopy services to single copies of articles for research use supplied by two installations in Paris. Research use includes research in for-profit corporations. However, these two copying centers will not supply photocopies or microfiche of articles from issues of periodicals that are less than three months old.

There also has been a tax on the sale of photocopying machines in France since 1976. This tax, however, is not related to what is copied on the machines. The yield of the tax is not paid to authors and other copyright proprietors, but is distributed to French libraries for the purchase of French publications.

Next section: Recommendations of Interested Organizations

262 See note 43, supra.