WILLIAMS & WILKINS COMPANY v. THE UNITED STATES

WILLIAMS & WILKINS COMPANY v. THE UNITED STATES

UNITED STATES COURT OF CLAIMS

487 F.2d 1345
1973

SUBSEQUENT HISTORY: Plaintiff Filed a Petition for Certiorari on February 20, 1974.

SYLLABUS: ON THE PROOFS

Copyrights; infringement; photocopying; "fair use"; scientific and medical needs. -- This is an action brought under the provisions of 28 U.S.C. @ 1498(b) by a major publisher of medical journals which charges that the Department of Health, Education and Welfare, through the National Institutes of Health and the National Library of Medicine (both non-profit agencies), has infringed its copyrights in certain journals by making unauthorized photocopies of articles therein. The practice of NIH is to furnish a single photocopy of an article or portions thereof to its own researchers. As part of its interlibrary loan program involving libraries and public and private
research-and-education-oriented institutions, NLM furnishes, within prescribed limits, a single photocopy of a journal article free of charge and on a no-return basis to participating libraries who forward the copies to its requesting patrons. At the outset the court holds, based on the assumption that plaintiff is the proper copyright owner, that it can sue for infringement of the separate articles in issue. After discussing the actual practices of the two agencies in furnishing photocopies, the history of the Copyright Act of 1909 which governs this case, the various terminology used in the Act such as "copying," "printing," "reprinting," "publication," the doctrine of "fair use," the needs of researchers in the scientific and medical fields, the court holds, based on the type and context of use by NIH and NLM as shown by the record, that there has been no infringement, that the challenged use is "fair" in view of the combination of all of the factors involved in consideration of "fair" or "unfair" use enumerated in the opinion, that the record fails to show a significant detriment to plaintiff but demonstrates injury to medical and scientific research if photocopying of this kind is held unlawful, and that there is a need for congressional treatment of the problems of photocopying. Plaintiff is not entitled to recover and the petition is dismissed.

Copyrights; infringement; parties to suit; standing to sue in Court of Claims; copyright owner of composite work.

Assuming that a publisher who obtained copyright registration of a journal containing articles by individual authors is the proprietor and proper copyright owner, he can sue in the Court of Claims under the provisions of 28 U.S.C. @ 1498(b) for infringement of the separate articles.

Copyrights; protection, extent of; composite works.
Under 17 U.S.C. @ 3, each article in a copyrighted journal is protected from infringement to the same extent as the entire journal.

Copyrights; exclusive rights as to copyrighted works; "copying".

In view of the legislative history and background of the Copyright Act of 1909 and of the subsequent practice thereunder, Section 1 of the Act, as applied to books and journals, does not cover all copying in the literal or dictionary sense.

Copyrights; exclusive rights as to copyrighted works; "printing" or "reprinting".

The furnishing by the National Institutes of Health of a single photocopy of an article or portions thereof appearing in a copyrighted journal for the benefit of its research staff, and the practice of the National Library of Medicine as part of its interlibrary loan program in furnishing, within prescribed limits, a single photocopy of journal articles free of charge and on a non-return basis to participating libraries or Government research institutions, as shown by the present record, do not amount to printing or reprinting in the strict dictionary sense; if these words be used more broadly to include all mechanical reproduction of a number of copies, they do not cover the making of a single copy for an individual requester.

Copyrights; exclusive rights as to copyrighted works; "publication".

The photocopying practices of the National Institutes of Health and the National Library of Medicine as shown by the record before the court do not constitute "publication" within the meaning of 17 U.S.C. @ 1.

Copyrights; infringement; "fair use".

The principal factors considered by the courts in deciding whether a particular use of a copyrighted work is "fair use" are: (a) the purpose and character of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, and (d) the effect of the use on a copyright owner's potential market for and value of his work. The development of "fair use" has been influenced by some tension between the direct aim of the copyright privilege to grant the owner a right from which he can reap financial benefit and the more fundamental purpose of the protection "To promote the Progress of Science and the Useful Arts."

Copyrights; copyright privilege; generally.

Copyright is not primarily for the benefit of the author, but is primarily for the benefit of the public. The copyright law makes reward to the copyright owner a secondary consideration, and the courts in passing upon particular claims of infringement must occasionally subordinate the copyright holder's interest in a maximum financial return to the greater public interest in the development of art, science and industry.

Copyrights; infringement; "fair use".
There is no inflexible rule excluding an entire copyrighted work from the area of "fair use." The extent of the copying is one important factor, but only one, to be taken into account, along with several others.

Copyrights; infringement; "fair use".

The specific photocopying practices of the involved agencies is not an "unfair use" of the copyrighted materials in issue where plaintiff has not shown, and there is inadequate reason to believe, that it is being or will be harmed substantially by such practices, taking into consideration that medicine and medical research will be injured by holding the particular practices to be an infringement, and that, since the problem of accommodating the interests of science with those of the publishers (and authors) calls fundamentally for legislative solution or guidance, not yet given, the court should not, during the period before congressional action is forthcoming, place such a risk of harm upon science and medicine.

Copyrights; infringement; copying; scientific purposes.

It is settled that, in general, the law gives copying for scientific purposes a wider scope.

Copyrights; infringement; copying.

In determining whether copying of copyrighted material exceeds "fair use," the important factor is not the absolute amount of copies made each year by the non-profit Government agencies in controversy, but consideration should be given to the existence and purpose of the system of limitations imposed and reasonably policed and enforced and the effectiveness of that system to confine the duplication for the personal use of scientific personnel who need the material for their work, with the minimum of potential abuse or harm to the copyright owner.

Copyrights; infringement; royalty income, loss of.

It is wrong to measure the detriment to plaintiff by loss of presumed royalty income -- a standard which necessarily assumes that plaintiff had a right to issue licenses. Such a conclusion results only if it is first determined that the photocopying is "unfair."

Copyrights; photocopying by libraries; scientific purposes; economic detriment.

In determining whether the copyright owner has been financially hurt by the photocopying practices of the involved Government agencies, the assumption of economic detriment cannot be based on general business commonsense or on argument that if there were no photocopying the public would necessarily buy the work; financial or economic detriment is a matter of proof.

Copyrights; photocopying by libraries; scientific purposes; congressional relief.

Since Congress has, up to now, left the problem of photocopying untouched by express provisions and only doubtfully covered to any extent by the generalizations of Section 1 of the Copyright Act, in evaluating "fair use" the court gives the benefit of the doubt -- until the Congress acts more specifically -- to science and the libraries, rather than to the publisher and the copyright owner, since the record here shows that medical science will be seriously hurt if the photocopying practiced by the involved agencies is stopped and, conversely, the record fails to show that plaintiff or other such publishers will be substantially injured.

Copyrights; Court of Claims jurisdiction; infringement.

Under 28 U.S.C. @ 1498(b), the United States is liable in money for copyright infringement, but it cannot be enjoined. Beyond the judicial power, under the 1909 Copyright Act, are intermediate or compromise solutions, such as to order a copyright owner to institute a system of licensing or to hold that photocopying (without royalty payments) is not "fair use" if the owner is willing to license at reasonable rates but becomes a "fair use" if the owner refuses all permission or seeks to charge excessive fees.

COUNSEL: Alan Latman, attorney of record, for plaintiff. Arthur J. Greenbaum and Cowan, Liebowitz & Latman, of counsel.

Thomas J. Byrnes, with whom was Assistant Attorney General Harlington Wood, Jr., for defendant.

Irwin Karp, for The Authors League of America, Inc., amicus curiae.

Philip B. Brown, for the Association of Research Libraries, Medical Library Association, American Association of Law Libraries, American Medical Association, American Dental Association, Mayo Foundation, Robert H. Ebert, M.D. (in his capacity as Dean of the Faculty of Medicine, Harvard University), The University of Michigan Medical School, The University of Rochester, School of Medicine and Dentistry, American Sociological Association, Modern Language Association of America, and History of Science Society, amici curiae. Cox, Langford & Brown and John P. Furman, of counsel.

Harry N. Rosenfield, for The National Education Association of the United States, amicus curiae.

William D. North, for the American Library Association, amicus curiae. Perry S. Patterson, Ronald L. Engel, James M. Amend, John A. Waters, Thomas B. Carr, and Kirkland & Ellis, of counsel.

Charles H. Lieb, for the Association of American Publishers, Inc. and The Association of American University Presses, Incorporated, amici curiae. Paskus, Gordon & Hyman, and Elizabeth Barad, of counsel.

Arthur B. Hanson, for The American Chemical Society, amicus curiae. Hanson, O'Brien, Birney, Stickle & Butler, of counsel.

Davies, Hardy, Ives & Lawther, for The American Instititute of Physics Incorporated, amicus curiae. Robert E. Lawther, of counsel.

Robert B. Washburn, Virgil E. Woodcock, and Woodcock, Washburn, Kurtz & Mackiewicz, for American Society for Testing and Materials and National Council of Teachers of Mathematics, amici curiae.

JUDGES: Chief Judge, Davis, Skelton, Nichols, Kashiwa, Kunzig and Bennett, Judges. Davis, Judge, delivered the opinion of the court. Cowen, Chief Judge, dissenting. Kunzig, Judge, join in the dissenting. Nichols, Judge, dissenting.

OPINIONBY: DAVIS

OPINION: We confront a ground-breaking copyright infringement action under 28 U.S.C. @ 1498(b), the statute consenting to infringement suits against the United States. n1 Plaintiff Williams & Wilkins Company, a medical publisher, charges that the Department of Health, Education, and Welfare, through the National Institutes of Health (NIH) and the National Library of Medicine (NLM), has infringed plaintiff's copyrights in certain of its medical journals by making unauthorized photocopies of articles from those periodicals. Modern photocopying in its relation to copyright spins off troublesome problems, which have been much discussed. n2 Those issues have never before been mooted or determined by a court. In this case, an extensive trial was held before former Trial Judge James F. Davis who decided that the Government was liable for infringement. On review, helped by the briefs and agreements of the parties and the amici curiae, we take the other position and hold the United States free of liability in the particular situation presented by this record.

I n3

Plaintiff, though a relatively small company, is a major publisher of medical journals and books. It publishes 37 journals, dealing with various medical specialties. The four journals in suit are Medicine, Journal of Immunology, Gastroenterology, and Pharmacological Reviews. Medicine is published by plaintiff for profit and for its own benefit. The other three journals are published in conjunction with specialty medical societies which, by contract, share the journals' profits with plaintiff. The articles published in the journals stem from manuscripts submitted to plaintiff (or one of the medical societies) by physicians or other scientists engaged in medical research. The journals are widely disseminated throughout the United States (and the world) in libraries, schools, physicians' offices, and the like. Annual subscription prices range from about $ 12 to $ 44; and, due to the esoteric nature of the journals' subject matter, the number of annual subscriptions is relatively small, ranging from about 3,100 (Pharmacological Reviews) to about 7,000 (Gastroenterology). Most of the revenue derived from the journals comes from subscription sales, though a small part comes from advertising. n4 The journals are published with notice of copyright in plaintiff's name. The notice appears at the front of the journal and sometimes at the beginning of each article. After publication of each journal issue (usually monthly or bimonthly) and after compliance with the requisite statutory requirements, the Register of Copyrights issues to plaintiff certificates of copyright registration.

NIH, the Government's principal medical research organization, is a conglomerate of institutes located on a multi-acre campus at Bethesda, Maryland. Each institute is concerned with a particular medical specialty, and the institutes conduct their activities by way of both intramural research and grants-in-aid to private individuals and organizations. NIH employs over 12,000 persons -- 4,000 are science professionals and 2,000 have doctoral degrees. To assist its intramural programs, NIH maintains a technical library. The library houses about 150,000 volumes, of which about 30,000 are books and the balance scientific (principally medical) journals. The library is open to the public, but is used mostly by NIH in-house research personnel. The library's budget for 1970 was $ 1.1 million; of this about $ 85,000 was for the purchase of journal materials.

The NIH library subscribes to about 3,000 different journal titles, four of which are the journals in suit. The library subscribes to two copies of each of the journals involved. As a general rule, one copy stays in the library reading room and the other copy circulates among interested NIH personnel. Demand by NIH research workers for access to plaintiff's journals (as well as other journals to which the library subscribes) is usually not met by in-house subscription copies. Consequently, as an integral part of its operation, the library runs a photocopy service for the benefit of its research staff. On request, a researcher can obtain a photocopy of an article from any of the journals in the library's collection. Usually, researchers request photocopies of articles to assist them in their on-going projects; sometimes photocopies are requested simply for background reading. The library does not monitor the reason for requests or the use to which the photocopies are put. The photocopies are not returned to the library; and the record shows that, in most instances, researchers keep them in their private files for future reference.

The library's policy is that, as a rule, only a single copy of a journal article will be made per request and each request is limited to about 40 to 50 pages, though exceptions may be, and have been, made in the case of long articles, upon approval of the Assistant Chief of the library branch. Also, as a general rule, requests for photocopying are limited to only a single article from a journal issue. Exceptions to this rule are routinely made, so long as substantially less than an entire journal is photocopied, i.e., less than about half of the journal. Coworkers can, and frequently do, request single copies of the same article and such requests are honored.

Four regularly assigned employees operate the NIH photocopy equipment. The equipment consists of microfilm cameras and Xerox copying machines. In 1970, the library photocopy budget was $ 86,000 and the library filled 85,744 requests for photocopies of journal articles (including plaintiff's journals), constituting about 930,000 pages. On the average, a journal article is 10 pages long, so that, in 1970, the library made about 93,000 photocopies of articles.

NLM, located on the Bethesda campus of NIH, was formerly the Armed Forces Medical Library. In 1956, Congress transferred the library from the Department of Defense to the Public Health Service (renaming it the National Library of Medicine), and declared its purpose to be "* * * to aid the dissemination and exchange of scientific and other information important to the progress of medicine and to the public health * * *." 42 U.S.C. @ 275 (1970). NLM is a repository of much of the world's medical literature, in essence a "librarians' library." As part of its operation, NLM cooperates with other libraries and like research-and-education-oriented institutions (both public and private) in a so-called "interlibrary loan" program. Upon request, NLM will loan to such institutions, for a limited time, books and other materials in its collection. In the case of journals, the "loans" usually take the form of photocopies of journal articles which are supplied by NLM free of charge and on a no-return basis. NLM's "loan" policies are fashioned after the General Interlibrary Loan Code, which is a statement of self-imposed regulations to be followed by all libraries which cooperate in interlibrary loaning. The Code provides that each library, upon request for a loan of materials, shall decide whether to loan the original or provide a photoduplicate. The Code notes that photoduplication of copyrighted materials may raise copyright infringement problems, particularly with regard to "photographing whole issues of periodicals or books with current copyrights, or in making multiple copies of a publication." [Emphasis in original text.] NLM, therefore, will provide only one photocopy of a particular article, per request, and will not photocopy on any given request an entire journal issue. Each photocopy reproduced by NLM contains a statement in the margin, "This is a single photostatic copy made by the National Library of Medicine for purposes of study or research in lieu of lending the original."

In recent years NLM's stated policy has been not to fill requests for copies of articles from any of 104 journals which are included in a so-called "widely-available list." Rather, the requester is furnished a copy of the "widely-available list" and the names of the regional medical libraries which are presumed to have the journals listed. Exceptions are sometimes made to the policy, particularly if the requester has been unsuccessful in obtaining the journal elsewhere. The four journals involved in this suit are listed on the "widely-available list." A rejection on the basis of the "widely-available list" is made only if the article requested was published during the preceding 5 years, but requests from Government libraries are not refused on the basis of the "widely-available list."
Also, NLM's policy is not to honor a excessive number of requests from an individual or an institution. As a general rule, not more than 20 requests from an individual, or not more than 30 requests from an institution, within a month, will be honored. In 1968, NLM adopted the policy that no more than one article from a single journal issue, or three from a journal volume, would be copied. Prior to 1968, NLM had no express policy on copying limitations, but endeavored to prevent "excessive copying." Generally, requests for more than 50 pages of material will not be honored, though exceptions are sometimes made, particularly for Government institutions. Requests for more than one copy of a journal article are rejected, without exception. If NLM receives a request for more than one copy, a single copy will be furnished and the requester advised that it is NLM's policy to furnish only one copy.

In 1968, a representative year, NLM received about 127,000 requests for interlibrary loans. Requests were received, for the most part, from other libraries or Government agencies. However, about 12 percent of the requests came from private or commercial organizations, particularly drug companies. Some requests were for books, in which event the book itself was loaned. Most requests were for journals or journal articles; and about 120,000 of the requests were filled by photocopying single articles from journals, including plaintiff's journals. Usually, the library seeking an interlibrary loan from NLM did so at the request of one of its patrons. If the "loan" was made by photocopy, the photocopy was given to the patron who was free to dispose of it as he wished. NLM made no effort to find out the ultimate use to which the photocopies were put; and there is no evidence that borrowing libraries kept the "loan" photocopies in their permanent collections for use by other patrons.

Defendant concedes that, within the pertinent accounting period, NLM and the NIH library made at least one photocopy of each of eight articles (designated by plaintiff as the Count I-to-Count VIII articles) from one or more of the four journals in suit. These requests, as shown at the trial, were made by NIH researchers and an Army medical officer (stationed in Japan) in connection with their professional work and were used solely for those purposes. In seven of the eight counts in the petition, the article requested was more than two years old; in the eighth instance it was 21 or 22 months old.

II

We assume, for the purposes of the case, but without deciding, that plaintiff is the proper copyright owner and entitled to sue here, n5 and we agree with plaintiff that, on that assumption, it can sue for infringement of the eight separate articles. n6 This faces us squarely with the issue of infringement.

Perhaps the main reason why determination of the question is so difficult is that the text of the Copyright Act of 1909, which governs the case, does not supply, by itself, a clear or satisfactory answer. Section 1 of the Act, 17 U.S.C. @ 1, declares that the copyright owner "shall have the exclusive right: (a) To print, reprint, publish, copy, and vend the copyrighted work; * * *." Read with blinders, this language might seem on its surface to be all-comprehensive -- especially the term "copy" -- but we are convinced, for several reasons, that "copy" is not to be taken in its full literal sweep. In this instance, as in so many others in copyright, "[T]he statute is hardly unambiguous * * * and presents problems of interpretation not solved by literal application of words as they are 'normally' used * * *." DeSylva v. Ballentine, 351 U.S. 570, 573 (1956). See, also, Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 395-96 (1968).

The court-created doctrine of "fair use" (discussed in Part III, infra) is alone enough to demonstrate that Section 1 does not cover all copying (in the literal sense). Some forms of copying, at the very least of portions of a work, are universally deemed immune from liability, although the very words are reproduced in more than de minimis quantity. Furthermore, it is almost unanimously accepted that a scholar can make a handwritten copy of an entire copyrighted article for his own use, and in the era before photoduplication it was not uncommon (and not seriously questioned) that he could have his secretary make a typed copy for his personal use and files. These customary facts of copyright-life are among our givens. The issue we now have is the complex one of whether photocopying, in the form done by NIH and NLM, should be accorded the same treatment -- not the ministerial lexicographic task of deciding that photoduplication necessarily involves "copying" (as of course it does in dictionary terms).

One aspect of the history and structure of the 1909 Act offers another reason for refusing to give "copying" in Section 1, as applied to these articles, its simplest "ordinary" reach. It is pointed out to us, on the basis of analysis of the copyright laws from 1790 to 1909, n7 that the early statutes distinguished "copying" from "printing," "reprinting," and "publishing," and provided that the copyright in books is infringed by "printing," "reprinting" and "publishing," while the copyright in other works (e.g., photographs, paintings, engraving, drawings, etc.) is infringed by "copying." Cf. Harper v. Shoppell, 26 F. 519, 520 (C.C.S.D.N.Y. 1886). The 1909 Act obliterated any such distinction in its text. It provides in @ 5 a list of all classes of copyrightable subject matter (including books and periodicals), and says in @ 1 that the owner of copyright shall have the exclusive right "to print, reprint, publish, copy and vend the copyrighted work." Thus, the 1909 Act, unlike the earlier statutes, does not expressly say which of the proscribed acts of @ 1 apply to which classes of copyrightable subject matter of @ 5. Defendant and some of the amici say that, to be consistent with the intent and purpose of earlier statutes, the "copying" proscription of @ 1 should not apply to books or periodicals; rather, only the proscribed acts of "printing," "reprinting" and "publishing" control books and periodicals. The proponents of this view stress that the legislative history of the 1909 legislation does not suggest any purpose to alter the previous coverage. n8

This is quite a serious argument. However, in view of Congress's general inclusion of the word "copy" in Section 1 and of the practice under the Act since 1909, we are not ready to accept fully this claim that infringement of periodical articles can come only through "printing," "reprinting" or "publishing." But we do believe this point -- that there is a solid doubt whether and how far "copy" applies to books and journals -- must be taken into account in measuring the outlines of "copying" as it involves books and articles.

Adding to this doubt that "copy" blankets such printed matter is the significant implication of a special segment of the background of the 1909 statute, a sector of history which is peripheral but revealing. The then Librarian of Congress. Herbert Putnam, was the leading public sponsor of that Act (outside of Congress itself), and was intimately involved in its preparation from at least 1906 on. While the bill was being considered in Congress, the Library's 1908 "Rules and Practice Governing the Use and Issue of Books," p. 6, specifically provided:

"Photographing. Photographing is freely permitted. The permission extends to the building itself and any of its parts, including the mural decorations. It extends to articles bearing claim of copyright, but the Library gives no assurance that the photograph may be reproduced or republished or placed on sale. These are matters to be settled with the owner of the copyright" (emphasis added).

After the 1909 Act became law, the Library continued the same provision. The 1913 version of the "Rules and Practice" n9 added the following on "Photostat," after the above paragraph on "Photographing":

Photo-duplicates of books, newspapers, maps, etc. can be furnished at a reasonable rate by means of the photostat, installed in the Chief Clerk's Office. Apply to the Chief Clerk for a schedule of charges.

Later editions, throughout Dr. Putnam's tenure (which ended in 1939), contained the same or comparable provisions. n10 Indeed, when he left his post in 1939, he was honored by the American Council of Learned Societies because (among other things) "You have led in adapting the most modern photographic processes to the needs of the scholar, and have * * * made widely available for purposes of research copies of your collections * * *." This illuminating slice of history, covering the time of enactment and the first three decades of the 1909 Act, should not be ignored.

These are the leading reasons why we cannot stop with the dictionary or "normal" definition of "copy" -- nor can we extract much affirmative help from the surfacial legislative text. As for the other rights given in Section 1, "vend" is clearly irrelevant (since NIH and NLM do not sell), and the applicability to this case of "print," "reprint" and "publish" is more dubious than of "copy." The photocopy process of NIH and NLM, described in Part I, supra, does not even amount to printing or reprinting in the strict dictionary sense; and if the words be used more broadly to include all mechanical reproduction of a number of copies, they would still not cover the making of a single copy for an individual requester. If the requester himself made a photocopy of the article for his own use on a machine made available by the library, he might conceivably be "copying" but he would not be "printing" or "reprinting." The library is in the same position when responding to the demands of individual researchers acting separately.

For similar reasons there is no "publication" by the library, a concept which invokes general distribution, or at least a supplying of the material to a fairly large group. n11 The author of an uncopyrighted manuscript does not lose his common law rights, via publication, by giving photocopies to his friends for comment or their personal use -- and publication for Section 1 purposes would seem to have about the same coverage. In any event, the hitherto uncodified principles of "fair use" apply to printing, reprinting, and publishing, as well as to copying, and therefore the collocation of general words Congress chose for Section 1 is necessarily inadequate, by itself, to decide this case.

III

In the fifty-odd years since the 1909 Act, the major tool for probing what physical copying amounts to unlawful "copying" (as well as what is unlawful "printing," "reprinting" and "publishing") has been the gloss of "fair use" which the courts have put upon the words of the statute. Precisely because a determination that a use is "fair," or "unfair," depends on an evaluation of the complex of individual and varying factors bearing upon the particular use (see H.R. Rep. No. 83, 90th Cong., 1st Sess., p. 29), there has been no exact or detailed definition of the doctrine. The courts, congressional committees, and scholars have had to be content with a general listing of the main considerations -- together with the example of specific instances ruled "fair" or "unfair." These overall factors are now said to be: (a) the purpose and character of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, and (d) the effect of the use on a copyright owner's potential market for and value of his work.

In addition, the development of "fair use" has been influenced by some tension between the direct aim of the copyright privilege to grant the owner a right from which he can reap financial benefit and the more fundamental purpose of the protection "To promote the Progress of Science and the useful Arts." U.S. Const., art. 1, @ 8. The House committee which recommended the 1909 Act said that copyright was "[n]ot primarily for the benefit of the author, but primarily for the benefit of the public." H.R. Rep. No. 2222, 60th Cong., 2d Sess., p. 7. The Supreme Court has stated that "The copyright law, like the patent statutes, makes reward to the owner a secondary consideration." Mazer v. Stein, 347 U.S. 201, 219 (1954); United States v. Paramount Pictures, 334 U.S. 131, 158 (1948). See Breyer, The Uneasy Case for Copyright: A study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281 (1970). To serve the constitutional purpose, "'courts in passing upon particular claims of infringement must occasionally subordinate the copyright holder's interest in a maximum financial return to the greater public interest in the development of art, science and industry.' Berlin v. E.C. Publications, Inc., 329 F. 2d 541, 544 (2d Cir. 1964). Whether the privilege may justifiably be applied to particular materials turns initially on the nature of the materials, e.g., whether their distribution would serve the public interest in the free dissemination of information and whether their preparation requires some use of prior materials dealing with the same subject matter. Consequently, the privilege has been applied to works in the fields of science, law, medicine, history and biography." Rosemont Enterprises, Inc. v. Random House, Inc., 366 F. 2d 303, 307 (C.A. 2, 1966).

It has sometimes been suggested that the copying of an entire copyrighted work, any such work, cannot ever be "fair use," but this is an overbroad generalization, unsupported by the decisions n12 and rejected by years of accepted practice. The handwritten or typed copy of an article, for personal use, is one illustration, let alone the thousands of copies of poems, songs, or such items which have long been made by individuals, and sometimes given to lovers and others. Trial Judge James F. Davis, who considered the use now in dispute not to be "fair," nevertheless agreed that a library could supply single photocopies of entire copyrighted works to attorneys or courts for use in litigation. It is, of course, common for courts to be given photocopies of recent decisions, with the publishing company's headnotes and arrangement, and sometimes its annotations. There are other examples from everyday legal and personal life. We cannot believe, for instance, that a judge who makes and gives to a colleague a photocopy of a law review article, in one of the smaller or less available journals, which bears directly on a problem both judges are then considering in a case before them is infringing the copyright, rather than making "fair use" of his issue of that journal. Similarly with the photocopies of particular newspaper items and articles which are frequently given or sent by one friend to another. n13 There is, in short, no inflexible rule excluding an entire copyrighted work from the area of "fair use." Instead, the extent of the copying is one important factor, but only one, to be taken into account, along with several others.

Under these over-all standards, we have weighed the multiplicity of factors converging on the particular use of plaintiff's material made by NIH and NLM, as shown by this record. There is no prior decision which is dispositive and hardly any that can be called even close; we have had to make our own appraisal. The majority of the court has concluded that, on this record, the challenged use should be designated "fair," not "unfair." In the rest of this part of our opinion, we discuss seriatim the various considerations which merge to that conclusion. But we can help focus on what is probably the core of our evaluation by stating summarily, in advance, three propositions we shall consider at greater length: First, plaintiff has not in our view shown, and there is inadequate reason to believe, that it is being or will be harmed substantially by these specific practices of NIH and NLM; second, we are convinced that medicine and medical research will be injured by holding these particular practices to be an infringement; and, third, since the problem of accommodating the interests of science with those of the publishers (and authors) calls fundamentally for legislative solution or guidance, which has not yet been given, we should not, during the period before congressional action is forthcoming, place such a risk of harm upon science and medicine.

1. We start by emphasizing that (a) NIH and NLM are non-profit institutions, devoted solely to the advancement and dissemination of medical knowledge which they seek to further by the challenged practices, and are not attempting to profit or gain financially by the photocopying; (b) the medical researchers who have asked these libraries for the photocopies are in this particular case (and ordinarily) scientific researchers and practitioners who need the articles for personal use in their scientific work and have no purpose to reduplicate them for sale or other general distribution; and (c) the copied articles are scientific studies useful to the requesters in their work. On both sides -- library and requester -- scientific progress, untainted by any commercial gain from the reproduction, is the hallmark of the whole enterprise of duplication. There has been no attempt to misappropriate the work of earlier scientific writers for forbidden ends, but rather an effort to gain easier access to the material for study and research. This is important because it is settled that, in general, the law gives copying for scientific purposes a wide scope. See, e.g., Rosemont Enterprises, Inc. v. Random House, Inc., supra, 366 F. 2d at 306-07; Loew's, Inc. v. Columbia Broadcasting System, Inc., 131 F. Supp. 165, 175 (S.D. Cal. 1955), aff'd, 239 F. 2d 532 (C.A. 9, 1956), aff'd by an equally divided Court, 356 U.S. 43 (1958); Greenbie v. Noble, 151 F. Supp. 45, 67-68 (S.D.N.Y. 1957); Thompson v. Gernsback, 94 F. Supp. 453, 454 (S.D.N.Y. 1950); Henry Holt & Co. v. Liggett & Myers Tobacco Co., 23 F. Supp. 302, 304 (E.D. Pa. 1938).

2. Both libraries have declared and enforced reasonably strict limitations which, to our mind, keep the duplication within appropriate confines. The details are set forth in Part I supra, and in our findings. Both institutions normally restrict copying on an individual request to a single copy of a single article of a journal issue, and to articles of less than 50 pages. Though exceptions are made, they do not appear to be excessive, unwarranted, or irrational. For instance, though on occasion one person was shown to have ordered or received more than one photocopy of the same article, the second copy was for a colleague's use or to replace an illegible or undelivered copy. Some care is also taken not to have excessive copying from one issue or one volume of the periodical. While a certain amount of duplication of articles does, of course, occur, it does not appear to be at all heavy. n14 There is no showing whatever that the recipients use the libraries' photocopying process to sell the copies or distribute them broadly.

NIH responds only to requests from its own personnel, so that its entire photoduplication system is strictly "inhouse" -- in the same way that a court's library may supply a judge of that court with a copy of a law journal article or a reported decision. NLM fulfills requests more generally but it has adopted the practice of not responding (outside of the Government) where the article appears in a recent (preceding 5 years) issue of a periodical on its "widely-available list". The result is that the duplication of recent issues of generally available journals is kept within the Government, and distribution to the larger medical public is limited to older, less available issues and to journals which are harder to obtain from medical libraries. It is a fair inference, supported by this record, that at the very least in the latter classes the demand has been inadequately filled by reprints and the publisher's sale of back issues. See, also, Part III, 4, infra. In those instances not covered by "five year" policy, the impression left by the record is that, on the whole, older rather than current articles were usually requested.

Brushing aside all such breakdowns, plaintiff points to the very large number, in absolute terms, of the copies made each year by the two libraries. We do not think this decisive. n15 In view of the large numbers of scientific personnel served and the great size of the libraries -- NIH has over 100,000 volumes of journal materials alone, and NLM is currently binding over 18,000 journals each year -- the amount of copying does not seem to us to have been excessive or disproportionate. The important factor is not the absolute amount, but the twin elements of (i) the existence and purpose of the system of limitations imposed and enforced, and (ii) the effectiveness of that system to confine the duplication for the personal use of scientific personnel who need the material for their work, with the minimum of potential abuse or harm to the copyright owner. The practices of NIH and NLM, as shown by the record, pass both of these tests, despite the large number of copies annually sent out.

Without necessarily accepting the full sweep of the concept that the library is nothing more than the individual requester's ministerial agent, we do agree that the NIH and NLM systems, as described in the evidence, are close kin to the current Library of Congress policy, see note 16, infra, of maintaining machines in the library buildings so that readers can do their own copying. The principal extension by NLM and NIH is to service requesters who cannot conveniently come to the building, as well as out-of-town libraries. But the personal, individual focus is still present. The reader who himself makes a copy does so for his own personal work needs, and individual work needs are likewise dominant in the reproduction programs of the two medical libraries -- programs which are reasonably policed and enforced.
3. We also think it significant, in assessing the recent and current practices of the two libraries, that library photocopying, though not of course to the extent of the modern development, has been going on ever since the 1909 Act was adopted. In Part II,supra, we have set forth the practice of the Library of Congress at that time and for many years thereafter. n16 In fact, photocopying seems to have been done in the Library at least from the beginning of this century. Can Copyright Law Respond to the New Technology? 61 Law. Lib. J. 387, 400 (1968) (comments of V. Clapp). In 1935 there was a so-called "gentlemen's agreement" between the National Association of Book Publishers (since defunct) and the Joint Committee on Materials for Research (representing the libraries), stating in part: "A library * * * owning books or periodical volumes in which copyright still subsists may make and deliver a single photographic reproduction * * * of a part thereof to a scholar representing in writing that he desires such reproduction in lieu of loan of such publication or in place of manual transcription and solely for the purposes of research * * *." Though this understanding discountenanced photoduplication of an entire book it was regularly construed as allowing copying of articles. There have been criticisms of this pact, and we cite it, not as binding in any way on plaintiff or any other publisher, or as showing universal recognition of "single" photocopying, but as representing a very widely held view, almost 40 years ago, of what was permissible under the 1909 statute.

There is other evidence that, until quite recently, library photocopying was carried on with apparent general acceptance. Witnesses in this case testified that such photocopying has been done for at least fifty years and is well-established. The National Library of Medicine Act, in 1956, by which NLM was created (42 U.S.C. @ 275, et seq.), provided at @ 276(a) (4) that the Secretary of Health, Education, and Welfare, through NLM, should "make available, through loans, photographic or other copying procedures or otherwise, such materials in the Library as he deems appropriate * * *"; and the Medical Library Assistance Act of 1965 (42 U.S.C. @ 280b-1, et seq.) provided that grants be made to medical libraries for, among other things, "acquisition of duplicating devices, facsimile equipment * * * and other equipment to facilitate the use of the resources of the library." 42 U.S.C. @ 280b-7. These two pieces of legislation indicate to us that Congress knew in 1956 and 1965 of the practice of library photocopying, and assumed that it was not beyond the pale. The General Interlibrary Loan Code (revised in 1956), see Part I, supra, is a similar indication of the extent of the practice, and of the general position of the libraries (at the least) that such copying is permissible.
The fact that photocopying by libraries of entire articles was done with hardly any (and at most very minor) complaint, until about 10 or 15 years ago, goes a long way to show both that photoduplication cannot be designated as infringement per se, and that there was at least a time when photocopying, as then carried on, was "fair use." There have been, of course, considerable changes in the ease and extent of such reproduction, and these developments bear on "fair use" as of today, but the libraries can properly stand on the proposition that they photocopied articles for many years, without significant protest, and that such copying was generally accepted until the proliferation of inexpensive and improved copying machines, less than two decades ago, led to the surge in such duplication. The question then becomes whether this marked increase in volume changes a use which was generally accepted as "fair" into one which has now become "unfair."

4. There is no doubt in our minds that medical science would be seriously hurt if such library photocopying were stopped. We do not spend time and space demonstrating this proposition. It is admitted by plaintiff and conceded on all sides. See, e.g. Varmer, Photoduplication of Copyrighted Material by Libraries, Study No. 15, "Copyright Law Revision," Studies Prepared for the Subcommittee on Patents, Trademarks and Copyrights, Senate Judiciary Committee (1959), p. 49; Memorandum of General Counsel Willcox, Department of Health, Education and Welfare, June 7, 1965, Hearings before Subcommittee No. 3, Committee on the Judiciary, H. of Reps., 89th Cong., 1st Sess., on H.R. 4347, H.R. 5680, etc., "Copyright Law Revision," Part 2, 1132, 1133. The trial testimony of a number of the requesters and authors documents the point. The supply of reprints and back numbers is wholly inadequate; the evidence shows the unlikelihood of obtaining such substitutes for photocopies from publishers of medical journals or authors of journal articles, especially for articles over three years old. n17 It is, moreover, wholly unrealistic to expect scientific personnel to subscribe regularly to large numbers of journals which would only occasionally contain articles of interest to them. Nor will libraries purchase extensive numbers of whole subscriptions to all medical journals on the chance that an indeterminate number of articles in an indeterminate number of issues will be requested at indeterminate times. The result of a flat proscription on library photocopying would be, we feel sure, that medical and scientific personnel would simply do without, and have to do without, many of the articles they now desire, need, and use in their work. n18

5. Plaintiff insists that it has been financially hurt by the photocopying practices of NLM and NIH, and of other libraries. The trial judge thought that it was reasonable to infer that the extensive photocopying has resulted in some loss of revenue to plaintiff and that plaintiff has lost, or failed to get, "some undetermined and indeterminable number of journal subscriptions (perhaps small)" by virtue of the photocopying. He thought that the persons requesting photocopies constituted plaintiff's market and that each photocopy user is a potential subscriber "or at least a potential source of royalty income for licensed copying." n19 Studies rejecting as "fair use" the kind of photocopying involved here have also assumed, without real proof, that the journal publishers have been and will be injured. See, e.g., Project -- New Technology and the Law of Copyright: Reprography and Computers, 15 U.C.L.A. L. Rev. 931 (1968); Sophor & Heilprin, "The Determination of Legal Facts and Economic Guideposts with Respect to the Dissemination of Scientific and Educational Information as It Is Affected by Copyright -- A Status Report" (1967).

The record made in this case does not sustain that assumption. Defendant made a thorough effort to try to ascertain, so far as possible, the effect of photoduplication on plaintiff's business, including the presentation of an expert witness. The unrefuted evidence shows that (a) between 1958 and 1969 annual subscriptions to the four medical journals involved increased substantially (for three of them, very much so), annual subscription sales likewise increased substantially, and total annual income also grew; (b) between 1959 and 1966, plaintiff's annual taxable income increased from $ 272,000 to $ 726,000, fell to $ 589,000 in 1967, and in 1968 to $ 451,000; (c) but the four journals in suit account for a relatively small percentage of plaintiff's total business and over the years each has been profitable (though 3 of them show losses in particular years and in all years the profits have not been large, varying from less than $ 1,000 to about $ 15,000, some of which has been shared with the sponsoring medical societies); n20 and (d) plaintiff's business appears to have been growing faster than the gross national product or of the rate of growth of manpower working in the field of science. Defendant's expert concluded that the photocopying shown here had not damaged plaintiff, and may actually have helped it. n21 The record is also barren of solid evidence that photocopying has caused economic harm to any other publisher of medical journals.

Plaintiff has never made a detailed study of the actual effect of photocopying on its business, nor has it refuted defendant's figures. It has relied for its assumption (in the words of the chairman of its board) on "general business common sense and things that you hear from subscribers, librarians and so forth." Its argument -- and that of the other supporters of its position n22 -- is that there "must" be an effect because photocopies supplant the original articles, and if there were no photocopying those who now get the copies would necessarily buy the journals or issues. But this untested hypothesis, reminiscent of the abstract theorems beloved of the "pure" classical economics of 70 or 80 years ago, is neither obvious nor self-proving. One need not enter the semantic debate over whether the photocopy supplants the original article itself or is merely in substitution for the library's loan of the original issue to recognize, as we have already pointed out, that there are other possibilities. If photocopying were forbidden, the researchers, instead of subscribing to more journals or trying to obtain or buy back-issues or reprints (usually unavailable), might expend extra time in note-taking or waiting their turn for the library's copies of the original issues -- or they might very well cut down their reading and do without much of the information they now get through NLM's and NIH's copying system. The record shows that each of the individual requesters in this case already subscribed, personally, to a number of medical journals, and it is very questionable how many more, if any, they would add. The great problems with reprints and back-issues have already been noted. In the absence of photocopying, the financial, timewasting, and other difficulties of obtaining the material could well lead, if human experience is a guide, to a simple but drastic reduction in the use of the many articles (now sought and read) which are not absolutely crucial to the individual's work but are merely stimulating or helpful. The probable effect on scientific progress goes without saying, but for this part of our discussion the significant element is that plaintiff, as publisher and copyright owner, would not be better off. Plaintiff would merely be the dog in the manger.

Since plaintiff and those who take the same view have not attempted any hard factual study of the actual effect of photocopying, it is not surprising that others have concluded against an adverse impact. The 1962 Fry Report (George Fry & Associates, "Survey of Copyrighted Material Reproduction Practices in Scientific and Technical Fields," March 1962) states that the "basic conclusion of this report is that at the present time, no significant damage occurs to the copyright holders in the scientific and technical fields although duplication of this material is widespread and is growing rapidly." In March 1965, Dan Lacy, Managing Director, American Book Publishers Council, told a House of Representatives committee: "It has been pointed out that recent technological developments have enormously increased the amount of photocopying in libraries and technology is continuing to change rapidly. Most of this photocopying, at least at present, probably consists of excerpts and probably mostly of journal articles. Most of it at present is probably undertaken in lieu of manual note taking, typing, or handwriting a copy, and in lieu of library loan rather than in lieu of buying a copy" (emphasis added). Hearings before Subcommittee No. 3, Committee on the Judiciary, H. of Reps., 89th Cong., 1st Sess., on H.R. 4347, H.R. 5680, etc., "Copyright Law Revision," Part 1, p. 120. The record in this case does not prove that the situation was any different at the time of the trial.

To us it is very important that plaintiff has failed to prove its assumption of economic detriment, in the past or potentially for the future. One of the factors always considered with respect to "fair use," see supra, is the effect of the use on the owner's potential market for the work. This record simply does not show a serious adverse impact, either on plaintiff or on medical publishers generally, from the photocopying practices of the type of NIH and NLM. In the face of this record, we cannot mechanically assume such an effect, or hold that the amount of photoduplication proved here "must" lead to financial or economic harm. This is a matter of proof and plaintiff has not transformed its hypothetical assumption, by evidence, into a proven fact.

In this connection it is worth noting that plaintiff does not have to concern itself, with respect to these journals, with authors or medical societies who are interested in a financial return. The authors, with rare exceptions, are not paid for their contributions, and those societies which share profits do not press for greater financial benefits. Indeed, some of the authors of the copied articles involved in this case testified at the trial that they favored photocopying as an aid to the advancement of science and knowledge.

6. Added to the powerful factors we have been considering is another (already suggested by the discussion in Part II, supra) -- the grave uncertainty of the coverage of "copy" in Section 1 of the 1909 Act and the doubt whether it relates at all to periodicals. n23 The latitude for "fair use" is of course lessened to the extent Congress has been explicit in spelling out protection to the copyright owner. But Congress has, up to now, left the problem of photocopying untouched by express provision and only doubtfully covered to any extent by the generalizations of Section 1. The statute must, of course, "be applied to new situations not anticipated by Congress, if, fairly construed, such situations come within its intent and meaning" (Jerome H. Remick & Co. v. American Automobile Accessories Co., 5 F. 2d 411 (C.A. 6, 1925), cert. denied, 269 U.S. 556), but our problem is with the latter part of this quotation. That being so, we think that, in evaluating "fair use," we should give the benefit of the doubt -- until Congress acts more specifically -- to science and the libraries, rather than to the publisher and the owner.

While, as we have said, this record fails to show that plaintiff (or any other medical publisher) has been substantially harmed by the photocopying practices of NIH and NLM, it does show affirmatively that medical science will be hurt if such photocopying is stopped. Thus, the balance of risks is definitely on defendant's side -- until Congress acts more specifically, the burden on medical science of a holding that the photocopying is an infringement would appear to be much greater than the present or foreseeable burden on plaintiff and other medical publishers of a ruling that these practices fall within "fair use."

Plaintiff's answer is that it is willing to license the libraries, on payment of a reasonable royalty, to continue photocopying as they have. Our difficulty with that response -- in addition to the absence of proof that plaintiff has yet been hurt, and the twin doubts whether plaintiff has a viable license system and whether any satisfactory program can be created without legislation n24 -- is that the 1909 Act does not provide for compulsory licensing in this field. All that a court can do is to determine the photocopying an infringement, leaving it to the owner to decide whether to license or to prohibit the practice. Plaintiff and other publishers cannot enjoin governmental libraries (because 28 U.S.C. @ 1498, supra note 1, is the sole remedy), but if photocopying of this type is an infringement the owners are free under the law to seek to enjoin any and all nongovernmental libraries. A licensing system would be purely voluntary with the copyright proprietor. We consider it entirely beyond judicial power, under the 1909 Act, n25 to order an owner to institute such a system if he does not wish to. We think it equally outside a court's present competence to turn the determination of "fair use" on the owner's willingness to license -- to hold that photocopying (without royalty payments) is not "fair use" if the owner is willing to license at reasonable rates but becomes a "fair use" if the owner is adamant and refuses all permission (or seeks to charge excessive fees).

The truth is that this is now preeminently a problem for Congress: to decide the extent photocopying should be allowed, the questions of a compulsory license and the payments (if any) to the copyright owners, the system for collecting those payments (lump-sum, clearinghouse, etc.), the special status (if any) of scientific and educational needs. Obviously there is much to be said on all sides. The choices involve economic, social, and policy factors which are far better sifted by a legislature. The possible intermediate solutions are also of the pragmatic kind legislatures, not courts, can and should fashion. But Congress does not appear to have put its mind directly to this problem in 1909, undoubtedly because the issue was not considered pressing at that time. That statute is, unfortunately, the one we must apply, and under it we have the choice only of thumb's up or thumb's down, for the photocopying practice involved in this litigation, without any real Congressional guidance. Intermediate or compromise solutions are not within our authority. n26 The theme of this subpart 6 of Part III of the opinion is that, on balance and on this record, thumb's up seems to us less dangerous to the varying interests at stake during the period which remains before Congress definitively takes hold of the subject.

7. The revision of the 1909 Act is now under consideration and has been for several years. The House of Representatives passed a bill in the 90th Congress (in April 1967), but the Senate has not acted. n27 In its report on the bill which the House adopted (H.R. Rep. No. 83, 90th Cong., 1st Sess.), the House Committee on the Judiciary discussed the existing doctrine of "fair use" at some length (pp. 29-37). We cite these comments, not as binding on us, but as the official views on the extent of "fair use" of the committee of the House of Representatives with cognizance over copyright; as such, they are and should be influential.

The report makes it very clear that photocopying can be a "fair use", in proper circumstances; it negatives the notion that copying of a complete work can never be a "fair use"; and it obviously believes that the doctrine is flexible, depending upon the particular situation. n28 The report does not, however, express a categorical or clear view whether photocopying of the sort we have in this case is or is not a "fair use" under the doctrine as it has been developing. Rather, the committee's observations are delphic, with each side being able to quote to us one or another passage, or to argue by analogy from the specific situation (classroom teaching) considered in greatest detail in the report.

Specifically on library photocopying the committee says (p. 36) that it does not favor a specific provision dealing with that subject, and it adds: "Unauthorized library copying, like everything else, must be judged a fair use or an infringement on the basis of all of the applicable criteria and the facts of the particular case. Despite past efforts, reasonable arrangements involving a mutual understanding of what generally constitutes acceptable library practices, and providing workable clearance and licensing conditions, have not been achieved and are overdue. The committee urges all concerned to resume their efforts to reach an accommodation under which the needs of scholarship and the rights of authors would both be respected."

We read this report, as a whole, as recognizing affirmatively that, under the existing law, library photocopying can be "fair use" in proper circumstances, and as leaving the determination of whether the particular circumstances are proper ones to an evaluation "of all the applicable criteria and the facts of the particular case." That is, of course, the overall standard we are using, and therefore we consider our approach to be consistent with that of the Committee. Although one cannot say that the report places its sanction directly on the photocopying practices now before us, neither does it suggest or intimate that they are "unfair." That question is left open. The report is nevertheless helpful because it indicates the correctness of our general approach, and also because it contradicts the concept, urged by plaintiff, that photocopying of an entire article is necessarily an infringement.

8. The last component we mention, as bearing on "fair use", is the practice in foreign countries. The copyright legislation of the United Kingdom, New Zealand, Denmark, Finland, Italy, Norway, Sweden, France, the German Federal Republic, Lichtenstein, Mexico, the Netherlands, and the U.S.S.R. have specific provisions which we think would cover the photocopying activities of NLM and NIH. Canada, India, Ireland and South Africa, while having no specific provisions permitting copying of copyrighted works for the purposes of private research and study, do provide more generally, that fair dealing for purposes of private study or research shall not be an infringement. n29 These provisions in foreign countries with problems and backgrounds comparable to our own are highly persuasive that the copying done here should be considered a "fair use," not an infringement. n30 Where Congress has left such a large void to be filled entirely by the courts, it is appropriate for us to consider what other jurisdictions have done either by way of legislation or judicial decision.

IV

Fusing these elements together, we conclude that plaintiff has failed to show that the defendant's use of the copyrighted material has been "unfair," and conversely we find that these practices have up to now been "fair." There has been no infringement. As Professor (now Mr. Justice) Kaplan observed, it is "fundamental that 'use' is not the same as 'infringement' [and] that use short of infringement is to be encouraged * * *." Kaplan, An Unhurried View of Copyright 57 (1967); see Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 393-95 (1968).

So as not to be misunderstood, we reemphasize four interrelated aspects of our holding. The first is that the conclusion that defendant's particular use of plaintiff's copyrighted material has been "fair" rests upon all of the elements discussed in Part III, supra, and not upon any one, or any combination less than all. We do not have to, and do not, say that any particular component would be enough, either by itself or together with some of the others. Conversely, we do not have to, and do not, say that all the elements we mention are essential to a finding of "fair use." They all happen to be present here, and it is enough for this case to rule, as we do, that at least when all co-exist in combination a "fair use" is made out.

Connected with this point is the second one that our holding is restricted to the type and context of use by NIH and NLM, as shown by this record. That is all we have before us, and we do not pass on dissimilar systems or uses of copyrighted materials by other institutions or enterprises, or in other fields, or as applied to items other than journal articles, or with other significant variables. We have nothing to say, in particular, about the possibilities of computer print-outs or other such products of the newer technology now being born. Especially since we believe, as stressed infra, that the problem of photo and mechanical reproduction calls for legislative guidance and legislative treatment, we feel a strong need to obey the canon of judicial parsimony, being stingy rather than expansive in the reach of our holding.

The third facet articulates the same general premise -- our holding rests upon this record which fails to show a significant detriment to plaintiff but does demonstrate injury to medical and scientific research if photocopying of this kind is held unlawful. We leave untouched, because we do not have to reach them, the situations where the copyright owner is shown to be hurt or the recipients (or their interests) would not be significantly injured if the reproductions were ruled to infringe.

Finally, but not at all least, we underline again the need for Congressional treatment of the problems of photocopying. The 1909 Act gives almost nothing by way of directives, the judicial doctrine of "fair use" is amorphous and open-ended, and the courts are now precluded, both by the Act and by the nature of the judicial process, from contriving pragmatic or compromise solutions which would reflect the legislature's choices of policy and its mediation among the competing interests. The Supreme Court has pointed out that such a "job is for Congress" (Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 401 (1968)), and in an earlier copyright case in which it was recognized that the owner might be morally or economically entitled to protection the Court applied "the act of Congress [as it] now stands," saying that the other "considerations properly address themselves to the legislative and not to the judicial branch of the Government." White-Smith Music Co. v. Apollo Co., 209 U.S. 1, 18 (1908). Hopefully, the result in the present case will be but a "holding operation" in the interim period before Congress enacts its preferred solution.

On this record and for these reasons, we hold the plaintiff not entitled to recover and dismiss the petition.

Footnotes


n1 Prior to 1960, @ 1498 provided only for patent infringement suits against the Federal Government. In that year, Congress amended the section to make the United States liable in money for copyright infringement, pursuant to Title 17 of the United States Code, the general copyright statute. This is the first copyright case to reach trial in this court.

n2 We list in the Appendix, infra, several considerations to these problems.

n3 We borrow, with some modifications, the statement of facts from the opinion of Trial Judge James F. Davis.

n4 E.g., the November 1956 issue of Medicine has 86 pages, four of which carry commercial product advertising. The August 1965 issue of Journal of Immunology has 206 pages, nine of which carry commercial product advertising.

n5 Defendant vigorously contests the publisher's claim to be the copyright "proprietor" and its right to sue in this court. The argument is that the individual authors of the articles are the owners and they have not assigned their rights to plaintiff.

n6 Section 3 of the copyright statute, 17 U.S.C. @ 3, says that, "* * * [t]he copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this title." This means, and was intended to provide, that each article in the journals is protected from infringement to the same extent as the entire issue. Advertisers Exch., Inc. v. Laufe, 29 F. Supp. 1 (W.D. Pa. 1939); King Features Syndicate v. Fleischer, 299 F. 533 (C.A. 2, 1924).

n7 Congress enacted the first copyright statute in 1790 (Act of May 31, 1790, ch. 15, 1 Stat. 124). Thereafter, the statute was revised from time to time, notably in 1802, 1831, 1870, and 1891. In 1909, the present statute was passed (Act of March 4, 1909, ch. 320, 35 Stat. 1075) and later was codified as 17 U.S.C. (Act of July 30, 1947, 61 Stat. 652).

n8 For instance, H.R. Rep. No. 2222, 60th Cong., 2d Sess. 4 (1909) states: "Subsection (a) of section 1 adopts without change the phraseology of section 4952 of the Revised Statutes, and this, with the insertion of the word 'copy,' practically adopts the phraseology of the first copyright act Congress ever passed -- that of 1790. Many amendments of this were suggested, but the committee felt that it was safer to retain without change the old phraseology which has been so often construed by the courts."

n9 There was an 1911 edition, but no copy has been located.

n10 The Library's current practice is described in Part III, 3, note 16, infra.

n11 To the extent that Macmillan Co. v. King, 223 F. 862 (D. Mass. 1914), may possibly suggest that "publication" can occur through simple distribution to a very small restricted group, for a special purpose, we think the opinion goes too far.

n12 Leon v. Pacific Tel. & Tel. Co., 91 F. 2d 484, 486 (C.A. 9, 1937) and Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 272 (C.A.D.C. 1960), vacated and remanded, 369 U.S. 111 (1962), which are often cited in this connection, both involved actual publication and distribution of many copies, not the simple making of a copy for individual personal or restricted use. In Wihtol v. Crow, 309 F. 2d 777 (C.A. 8, 1962), 48 copies of the copyrighted song were made and distributed, and there were a number of public performances using these copies. It was as if the defendant had purchased one copy of sheet music and then duplicated it for an entire chorus.

On the other hand, New York Tribune, Inc. v. Otis & Co., 39 F. Supp. 67 (S.D.N.Y. 1941), shows that copying of an entire copyrighted item is not enough, in itself, to preclude application of "fair use." Although it was already plain that an entire copyrighted item (a newspaper editorial) had been reproduced, the court ordered further proceedings to take account of other factors.

n13 Verner Clapp, former Acting Librarian of Congress, has pointed out some of the uses of a photocopy for which the library copy original is unsuited (Can Copyright Law Respond to the New Technology?, 61 Law Lib. J. 387, 407 (1968):

"I cannot submit the original conveniently in a court, in a suit of law. I cannot put the original into my filing cabinet. I can't shuffle it with notes in preparation for an address. I can't make notes on it. I can't conveniently give it to a typist. I can't use it as printer's copy. I can't send it through the mail without serious risk of loss of an original. With a photocopy I can do all these things and more, and this is the reason I want a copy."

n14 One survey of NIH operations shows only 4 instances of duplication in over 200 requests; at NLM, as of 1964, duplication occured at a 10% rate in the 102 most heavily used journals (constituting one-third of total requests); if all requests were considered, the rate would be less. The Sophar & Heilprin report (see Appendix), which is not friendly to library photocopying, estimates that for libraries generally the duplication rate was about 3% (p. iii).

n15 In 1970, NIH copied 85,744 and NLM 93,746 articles.

n16 Currently, and for some time, the Library of Congress has said that copyright material will "ordinarily" not be photocopied by the Library "without the signed authorization of the copyright owner," but "[e]xceptions to this rule may be made in particular cases." The Library does, however, maintain machines which readers may themselves use for photocopying; these machines contain notices saying that "a single photocopy of copyrighted material may be made only for the purpose of study, scholarship, or research, and for no other purpose" and "the sale and/or further reproduction of any photocopied copyrighted materials is illegal."

n17 Plaintiff itself publishes a notice to the effect that it does not attempt to keep a stock of back issues, and it refers requests for reprints to the author.

n18 We think the alternative of compulsory licensing is not open to us under the present copyright statute. See, infra, Parts III, 6, and IV.

n19 It is wrong to measure the detriment to plaintiff by loss of presumed royalty income -- a standard which necessarily assumes that plaintiff had a right to issue licenses. That would be true, of course, only if it were first decided that the defendant's practices did not constitute "fair use." In determining whether the company has been sufficiently hurt to cause these practices to become "unfair," one cannot assume at the start the merit of the plaintiff's position, i.e., that plaintiff had the right to license. That conclusion results only if it is first determined that the photocopying is "unfair."

n20 Defendant explains the loss years and the fall-off in some subscriptions in some years as due to particular circumstances (which are spelled out) other than photocopying.

n21 The trial judge referred to two instances in which subscribers cancelled subscriptions because of the availability of photocopying. Defendant is correct that both instances rest on hearsay, and in any event this small number of purported cancellations is de minimis in view of the more solid and detailed proof as to the health of plaintiff's journals and the increase in their subscription lists.

n22 The published literature does not reveal any careful, thorough, impartial study of this question. Often there is no attempt to ascertain the actual economic impact on the publishers and authors; when inquiry has been made of the latter, their conclusory generalizations of injury have been accepted uncritically.

n23 The same is true of "print," "reprint," and "publish," as applied to the challenged practices of NLM and NIH.

n24 Defendant and its amici strongly attack plaintiff's so-called licensing plan as nothing more than a shell. The American Library Association points out, for instance, that the Williams & Wilkins license would apparently not apply to inter-library loans or to requests from persons not physically present in the library building.

There is also debate over whether a feasible ASCAP-type or clearinghouse system can be developed without legislation, and if so whether it would be desirable. See, e.g., Note, Education and Copyright Law: An Analysis of the Amended Copyright Revision Bill and Proposals for Statutory Licensing and a Clearinghouse System, 56 Va. L. Rev. 664 (1970); also published as MacLean, Education and Copyright Law: An Analysis of the Amended Copyright Revision Bill and Proposals for Statutory Licensing and a Clearinghouse System, in ASCAP, "Copyright Law Symposium, Number Twenty," 1 (1972); Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs, 84 Harv. L. Rev. 281, 330 ff. (1970); Note: New Technology and the Law of Copyright: Reprography and Computers, 15 UCLA L. Rev. 939, 961 ff. (1968).

n25 A court's powers under the anti-trust legislation is another matter.

n26 It has been suggested, however, that publishers now have the power to adopt the intermediate solution of charging more for subscriptions sold to libraries or other entities which engage regularly in photocopying.

n27 A synopsis of the revision effort (up to 1968) is set forth in Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 396 n. 17 (1968).

n28 The report says (p. 29) that "* * * since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts"; that (p. 32) the committee endorses "the purpose and general scope of the judicial doctrine of fair use, as outlined earlier in this report, but there is no disposition to freeze the doctrine in the statute, especially during a period of technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis"; and that (p. 32) "Section 107, as revised by the committee, is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way."

n29 The foreign laws are compiled in Copyright Laws and Treaties of the World, published by UNESCO.

n30 The general report of the Committee of Experts on the Photographic Reproduction of Protected Works [a joint committee of UNESCO and the United International Bureau for the Protection of Intellectual Property (BIRPI)] recommended that libraries should have the right to provide one copy free of copyright for each user provided that such copy, in the case of a periodical, shall not be more than a single article. 4 Copyright 195, 197 (1968).



Appendix

SOME DISCUSSIONS OF LIBRARY PHOTOCOPYING

B. Varmer, Photoduplication of Copyrighted Material by Libraries, Study No. 15, Copyright Law Revision, Studies Prepared for Senate Comm. on the Judiciary, 86th Cong., 2d Sess. (1960); G. Sophar and L. Heilprin, The Determination of Legal Facts and Economic Guideposts with Respect to the Dissemination of Scientific and Educational Information as it is Affected by Copyright -- A Status Report, Final Report, Prepared by The Committee to Investigate Copyright Problems Affecting Communication in Science and Education, Inc., for the U.S. Department of Health, Education, and Welfare, Project No. 70793 (1967); Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law to the House Comm. on the Judiciary, 87th Cong., 2d Sess. at 25-26 (1961); Project -- New Technology and the Law of Copyright: Reprography and Computers, 15 U.C.L.A. L. Rev. 931 (1968); V. Clapp, Copyright -- A Librarian's View, Prepared for the National Advisory Commission on Libraries, Association of American Libraries (1968); Schuster and Bloch, Mechanical Copyright, Copyright Law, and the Teacher, 17 Clev.-Mar. L. Rev. 299 (1968); "Report on Single Copies" -- Joint Libraries Committee on Fair Use in Photocopying, 9 Copyright Soc'y Bull. 79 (1961-62); Breyer, "The Uneasy Case for Copyright: A Study of Copyright in Books Photocopies, and Computer Programs," 84 Harv. L. Rev. 281 (1970); Note, "Statutory Copyright Protection for Books and Magazines Against Machine Copying," 39 Notre Dame Lawyer 161 (1964); Note, Education and Copyright Law: An Analysis of the Amended Copyright Revision Bill and Proposals for Statutory Licensing and a Clearinghouse System," 56 Va. L. Rev. 664 (1970); Hattery and Bush (ed.), Reprography and Copyright Law (1964).

[**149contd]
[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.]

FINDINGS OF FACT

The court, having considered the evidence, the decision and findings of former Trial Judge James F. Davis, and the briefs and arguments of counsel, makes findings of fact as follows:

1. This is a copyright suit under 28 U.S.C. @ 1498(b). Plaintiff seeks reasonable and entire compensation for alleged infringement by the United States of certain copyrights in medical journals.

2. Plaintiff, The Williams & Wilkins Company, is a publisher located in Baltimore, Maryland. Though a relatively small company, plaintiff is one of the major publishers of medical journals in the United States. Plaintiff also publishes medical books. Plaintiff is a family-owned corporation, and its principal officers are William M. Passano and Charles O. Reville.

3. The Government agency accused of infringement is the Department of Health, Education, and Welfare, in particular the National Institutes of Health (NIH) and the National Library of Medicine (NLM). NIH and NLM are located in Bethesda, Maryland.

4. The petition was filed in this court on February 27, 1968, and was amended on July 23, 1970. The petition alleged infringement by reason of the Government's unauthorized photocopying of seven journal articles, identified below as Counts I to VII. The amended petition alleged infringement by reason of the Government's unauthorized photocopying of one journal article, identified below as Count VIII. The articles, and the journals in which they were published, are as follows:
Count Article

I. The Genetic Mucopolysaccharidoses
II. Supersensitivity and Subsensitivity to Sympatho-
mimetic Amines.
III. Detection of Two Antibodies in Single Plasma
Cells by the Paired Fluorescence Technique.

IV. Fluorescent Antibody Staining
V. Chromatographic Purification of Tetramethyl-
rhodamine-Immune Globulin Conjugates and

Their Use in the Cellular Localization of

Rabbit

Gamma-Globulin Polypeptide Chains.
VI. The Stability of Messenger Ribonucleic Acid in
Antibody Synthesis.
VII. The Course of Non Specific Ulcerative Colitis:
Review of Twenty Years Experience and Late

Results.

VIII. Occlusion of the Hepatic Veins in Man

Count Authors Journal

I. Victor A. McKusick, David Medicine

Kaplan, David Wise, W. Brian

Hanley, S. B. Suddarth, M. E.

Sevick, A. Edward Maumanee.

II. Ullrich Trendelenburg Pharmacological

Reviews

III. R. N. Hiramoto, M. Hamlin Journal of

Immunology

IV. B. T. Wood, S. H. Thompson, Journal of

G. Goldstein. Immunology

V. John J. Cebra, Gerald Goldstein Journal of

Immunology

VI. Velta Lazda, Jason L. Starr Journal of

Immunology
VII. Benjamin M. Banks, Burton I. Gastroenterology
Korelitz, Louis Zetzel.

VIII. R. G. F. Parker Medicine

Count Vol. Issue Pages Month Year
I. 44 6 445-483 Nov 1965
II. 15 2 225-276 June 1963
III. 95 2 214-224 Aug 1965
IV. 95 2 225-229 Aug 1965
V. 95 2 230-245 Aug 1965
VI. 95 2 254-261 Aug 1965
VII. 32 6 983-1012 June 1957
VIII. 38 4 369-402 Dec 1959

5. (a) Plaintiff publishes 37 medical journals, all of which are copyrighted. Of these, 26 are published in conjunction with professional societies, with the copyright being owned by plaintiff in 13 of such journals and the societies owning the copyright in the remaining 13. The journal Medicine is published by plaintiff for its own benefit, i.e., not in conjunction with a professional society. The journal Pharmacological Reviews is and has been published by plaintiff since 1909 in conjunction with the American Society for Pharmacology and Experimental Therapeutics. The Journal of Immunology is and has been published by plaintiff for about 50 years in conjunction with the American Association of Immunologists. The journal Gastroenterology is and has been published by plaintiff since 1946 in conjunction with the American Gastroenterological Association. The four journals above named are published with notice of copyright in plaintiff's name. Plaintiff has contracts with the above-noted professional societies, which contracts deal in part with copyright. Although there are differences in phraseology among the contracts, such differences have led to no problems in dealings between plaintiff and the societies with respect to copyright matters. So far as the record shows, the parties to the contracts consider it the responsibility of plaintiff to enforce the copyright by granting licenses or instituting appropriate lawsuits.

(b) The agreement relating to copyright between plaintiff and the American Society for Pharmacology and Experimental Therapeutics (ASPET), under which agreement Pharmacological Reviews is published, provides as follows: * * *

5. COPYRIGHT. The Society is sole owner of the periodical but for the sake of convenience, copyright shall be taken out in the name of the Publisher. Procurement of copyright of each issue is the duty of the Publisher and the costs incident thereto shall be charged to the profit-and-loss account of the periodical. The Publisher may publish or permit others to publish excerpts from the periodical after publication but such excerpting shall not be so substantial as to interfere with the sale of the periodical.

* * *

10. REVERSION OF RIGHTS. In case of bankruptcy, assignment for benefit of creditors, or liquidation for any cause of the Publisher, or upon termination of this Agreement for any cause stipulated herein, all rights conveyed under this Agreement by the Society to the Publisher shall revert to the Society forthwith.

* * *

The agreement was in effect at all times here material. There is no evidence that ASPET objected to, acquiesced in, or was any way involved with, the bringing of this suit by plaintiff.

(c) The agreement relating to copyright between the American Association of Immunologists (AAI) and plaintiff, under which agreement the Journal of Immunology is published, provides as follows:

* * *

5. PROCUREMENT OF COPYRIGHT. The Association is the owner of the periodical but for the convenience of both parties copyright shall be procured by and in the name of the Publisher, and the costs incident thereto shall be charged to the profit-and-loss account of the periodical. The Association reserves the right to have the copyright assigned to the Association if at any time in the future this seems desirable. [Emphasis supplied.]

* * *

The agreement was in effect at all times here material. There is no evidence that AAI ever exercised its right to have assigned to it by plaintiff the ownership of any copyright registration in the Journal of Immunology. Nor is there evidence to show that AAI objected to, acquiesced in, or was any way involved with, the bringing of this suit by plaintiff.

(d) The agreement relating to copyright between the American Gastroenterological Association (AGA) and plaintiff, under which agreement Gastroenterology is published, provides as follows:

* * *

(2) COPYRIGHT. The Association grants to the Publisher the exclusive right to copyright, in the name of the Publisher, and to renew such copyrights, all material published in the said Journal, and to publish the said work in all languages during the term of the copyright.

* * *
The agreement has been in effect since 1942. There is no evidence that AGA objected to, acquiesced in, or was in any way involved with, the bringing of this suit by plaintiff.

6. (a) The Count I-to-Count VIII articles were published in their respective journals on or about the dates indicated in finding 4. The journals were published with a notice of copyright consisting of the word "Copyright," the symbol "Copyright", the name "The Williams & Wilkins Company," and the year of publication affixed to the title page of, and elsewhere on, each journal. In due course, the Register of Copyrights issued to plaintiff, with respect to each of the journals, the following certificates of registration:
Certificate of

Journal Registration

Number

Medicine, Vol. 44, No. 6 B 231973

Pharmacological Reviews, Vol. 15, No. 2 B 49574

The Journal of Immunology, Vol. 95, No. 2 B 216408

Gastroenterology, Vol. 32, No. 6 B 663158

Medicine, Vol. 38, No. 4 B 809926

(b) Only the issue of liability is now before the court; accounting, if any, is reserved for later proceedings. Defendant admits that at least one photocopy of each of the Count I-to-Count VIII articles was made by defendant's NIH or NLM without authorization of plaintiff within the pertinent accounting period, as follows:
Article Date Name of

Photocopied Requester

Count I 9/29/67 Backman

" " 10/5/67 Gabor

" " 10/19/67 Backman

Count II 9/29/67 McCallum

Count III 9/27/67 McEnany

Count IV 9/27/67 McEnany

" " 11/13/67 Reynolds

Count V 9/27/67 McEnany

" " 11/13/67 Reynolds

Count VI 9/27/67 McEnany

Count VII 10/12/67 Bird

Count VIII 1/11/68 Pitcher

" " 12/68 Young

The persons named above as "Requester" are all physicians or other professional medical personnel who requested from NIH or NLM copies of the articles in connection with medical research work or patient care at NIH or elsewhere. The copies were retained by the requesters who, for the most part, kept them in personal files as permanent documents for later reference and use, or put them in files available for use by coworkers or colleagues. The requesters needed the articles in connection with their professional work, and the copies were used solely for those purposes. The request by Dr. Pitcher of the Count VIII article was to NLM through an Army hospital library in Japan. All other requests listed above were to the NIH library and were made directly by the requester.

7. The number of subscriptions in the year 1969 and the annual subscription prices for the journals involved in this suit are as follows:
Approximate

Journal Number of Price

Subscriptions

Medicine 5,400 $ 12.00

Pharmacological Reviews 3,100 15.00

Journal of Immunology 4,700 n1 22.00

n2 44.00

Gastrcenterology 7,000 n1 12.50

n2 25.00

8. Plaintiff's journals, noted in finding 7, are widely distributed in medical libraries throughout the country, are in the collection at the NIH library and are included on a list of journals of widespread availability compiled by NLM.

9. (a) Plaintiff's function, as a publisher of medical and scientific journals and books, is to determine what is needed to advance knowledge in the field of medicine; determine who is qualified to write on that subject; and edit, produce and market their manuscripts. Plaintiff accepts manuscripts from physicians and related medical professionals for publication in an appropriate journal. The considerations which influence a contributor of a manuscript as to the journal to which to submit the manuscript include (i) the subject matter and length of the manuscript, (ii) the quality of articles published in the journal, (iii) the standing of the journal's editorial board, (iv) the nature of the journal's readership, and (v) the circulation of the journal. Contributors rarely publish their own articles because of the high cost involved and because acceptance by a leading journal marks the article as one of high quality. E.g., Gastroenterology is considered the outstanding journal in its speciality field in the United States and probably in the world. Contributors submit manuscripts to Medicine because that journal publishes lengthy, definitive articles and is well-disseminated.

(b) A board of editors of each of plaintiff's journals screens the submitted manuscripts, and manuscripts suitable for publication are edited and revised, as necessary and within the discretion of the editors. Often, substantial editing is done by the editorial board; sometimes contributors are required to revise manuscripts prior to acceptance. If a journal is the official organ of a professional society, the society appoints the board of editors. The editors are responsible to the society and are compensated by the society which, in turn, shares with plaintiff the profits from journal sales, in accordance with the particular contractual relationship between plaintiff and the society.
Revenues from plaintiff's journals are derived largely through subscription sales and also through advertising. The American Gastroenterological Association and the American Association of Immunologists get 50 percent of the profits from Gastroenterology and the Journal of Immunology, respectively. The American Society for Pharmacology and Experimental Therapeutics gets 90 percent of the profits from Pharmacological Reviews. Printing preparation costs are about 50-65 percent of the total cost of publication of plaintiff's journals.

10. Authors whose manuscripts are accepted and published by plaintiff, including the authors of the articles here in suit, are not paid monetary compensation by plaintiff; moreover, some journals require that authors pay a fee for published pages in excess of a preselected number of pages. Authors are, however, gratified when plaintiff publishes their works because of enhancement of their professional status, in that their works are screened by highly critical editors and are published in journals having wide dissemination and high reputation. Authors, therefore, submit manuscripts to plaintiff for dual purposes: to disseminate medical information for the public welfare; and to seek recognition from the scientific community from which flows increased professional and economic opportunity. Most articles published in plaintiff's journals, and like journals, are the result of research work done under private or public grant; and sometimes a requirement of the grant is that the research worker will seek to have the results of the work published. Sometimes, the grants include funds to pay for excess-page charges to a journal publisher.

11. Authors whose articles are published by plaintiff usually purchase from plaintiff reprints of their articles (on the average, about 300) for distribution to interested colleagues. In general, the number of reprints purchased by authors, per article, has not changed over the past 10 years. Most authors distribute reprints free of charge to those requesting them. Depending upon the importance of, and professional interest in, a particular article, all reprints are distributed by authors within several months up to several years after publication. If someone requests directly from plaintiff a copy of an article appearing in one of plaintiff's journals, plaintiff first refers the requester to the author for a reprint; then offers to sell (either directly or through a licensed reprint house) a back copy of the issue in which the article appeared; and, finally, refers the requester to the Institute of Scientific Information, plaintiff's licensee for making photocopies. (Finding 36.) Authors who want to reprint one of their articles from one of plaintiff's journals request plaintiff's permission to do so. Others wanting to reprint articles from one of plaintiff's journals usually ask permission of the author and also ask permission of plaintiff.

12. (a) NIH constitutes 10 institutes, each of which is concerned with a specialty of health and medical care. The mission of NIH is to advance health and well-being through the support of research in diseases, the support of educational and medical institutions, and improved biomedical communications. Generally, three types of activities are carried on by NIH: education and manpower training; communication of medical information; and research conducted by the various institutes. Research, as well as education and manpower training, is performed by Government employees of the institutes and also by private persons and organizations supported by NIH grants. Biomedical communication is the function of NLM. (Finding 20.) NIH employs over 12,000 persons, 4,000 of whom are professionals and 2,000 of whom have doctoral degrees. In fiscal 1970, NIH spent over $ 1.5 billion for medical research, about $ 100 million of which was for intramural medical research. The balance was spent either for other intramural programs or for grants to outside organizations.

(b) Total national support of medical research, both Federal and non-Federal, has increased enormously in the period 1950-1970. In 1950, only about $ 160 million were spent. By 1970, the total spent was $ 2.7 billion. In 1950, the Federal Government contributed less than half the funds available for medical research. In 1970, the Federal Government contributed nearly two-thirds.

13. A library is essential to the conduct of medical research. A principal product of research scientists is their publications and publication of results is a vital part of research. NIH maintains and operates a technical library which is open to the public. The library houses about 125,000 to 150,000 volumes, of which 30,000 are books. The balance is periodicals or journals. The NIH library subscribes to over 3,000 different journal titles, of which 600 are purchased in multiple copies. The functions of the NIH library include acquisition, selection and cataloging of journal and book materials, preparation of reference services, response to queries for specific information, bibliographic services, formulation of computerized searches, a translation unit, housekeeping service, and a library copy service. The library's budget for 1970 was about $ 1.1 million, of which about $ 85,000 was for purchase of journal materials.

14. The NIH library subscribes to all 37 journals which plaintiff publishes. For about one-third of such journals, the library gets more than one copy. The library gets two copies of each of the four journals involved in this suit.

15. As an integral part of its operation, the NIH library operates a comprehensive system of providing photocopies of articles in scientific journals. Photocopying at the NIH library (as well as at NLM) includes making a photographic copy of an article on microfilm, and then using the microfilm for further photocopying. The NIH photocopying service uses two Xerox copying machines and two Recordac microfilm cameras. The microfilm cameras are used in conjunction with a Xerox Copy-Flo printer to provide NIH personnel with permanent copies of journal articles. The microfilm is destroyed after a hard Xerox copy is made. NIH leases its Xerox machines from Xerox Corporation which it pays according to the number of pages photocopied. Microfilm used to photocopy articles at the NIH library is sent to NLM for processing. Such processing could be done by any commercial developer having the necessary equipment. Four regularly assigned employees operate the NIH photocopy equipment. In fiscal 1970, the library's photocopying budget was $ 86,000 and the library filled 85,744 requests for photocopies of journal articles, constituting about 930,000 pages. The average request was about 10-12 pages and the average cost per request was about $ 1.

16. Photocopying services of the NIH library are available only to NIH personnel. Members of the general public, whie they may use the library, are not permitted to have materials photocopied. Two kinds of service are provided: over-the-counter and by mail. To get a photocopy, the requester must submit a request slip and an authorization slip. Authorization slips permit copying of either 20 pages or less, or 6 pages or less. The requirement for authorization slips is a budgetary limitation to hold down photocopying costs. Costs of library operation, including photocopying, are shared by the various institutes of NIH on a pro-rata basis.

17. (a) The photocopying policies of the NIH library have been essentially the same from 1965 to the present. If the library subscribes to but one copy of a journal, that copy is maintained in the library for the use of readers. If the library subscribes to a second copy of a journal, such copy will circulate among interested persons at NIH. Upon the request of interested personnel, articles in journals are photocopied at no charge to the requester. The library's policy on photocopying is that, as a general rule, only a single copy of a journal article will be made per request and each request is limited to about 40 to 50 pages though exceptions may be, and in fact have been, made in the case of long articles, upon approval of the Assistant Chief of the library branch. Also, as a general rule, requests for photocopying are limited to only a single article from a journal issue. However, exceptions to this general rule are routinely made, so long as substantially less than an entire journal is photocopied, i.e., less than about half of the journal. Coworkers can, and frequently do, request single copies of the same article and such requests are honored. Also, there is nothing in the library's photocopying policy to prevent a user from returning month after month to get photocopies of one or more articles from one issue of a journal.

(b) NIH library personnel will not knowingly photocopy an entire issue of a journal. However, it is possible for a single user to make a series of separate requests which will result in the photocopying of an entire issue. The photocopy equipment operators are instructed to bring to the attention of their supervisor what they believe to be attempts to copy a substantial part, or all, of a journal issue. Nevertheless, because of the large volume of photocopying done by the library, it is difficult and impractical to police and curb such attempts. Substantially more people receive photocopies of journal articles from the NIH library than would copy by hand substantial portions of articles. Photocopies made by the library are not returned by the users. Sometimes the users make further photocopies from photocopies obtained from the NIH library to distribute to colleagues or otherwise. However, there is no showing that the library's policies have been abused or circumvented. Where the same person orders more than one copy the second has been for a colleague or to replace an illegible or undelivered copy. Nor is there a showing that the amount of the duplication of the same article has been excessive or unwarranted.

18. As a general rule, books (or monographs) which carry a copyright notice are not photocopied by the NIH library, even to the extent of a short chapter, without permission of the copyright owner. However, under special circumstances (the details of which are not clear from the record) and upon authorization of library supervisory personnel, exceptions are sometimes made to this rule to the extent of copying small portions, e.g., charts or graphs, from books (or monographs).

19. Materials (i.e., books and journals) not owned by the NIH library, and which are requested by users, are obtained by means of interlibrary loan. When an interlibrary loan is requested, the standard interlibrary loan form is used. Basically, the NIH library applies to interlibrary loan requests the same restrictions on photocopying as are applied to requests filled internally.
20. (a) The mission of NLM is the exchange and dissemination of medical information. NLM began as the library of the Surgeon General of the Army, which was founded in 1836. Later such library became the Armed Forces Medical Library; and in 1956, the library was transferred from the Department of Defense to the Public Health Service and renamed the National Library of Medicine. The statute creating NLM is codified as 42 U.S.C. @@ 275-280a (1970 ed.) which, in relevant part, reads as follows:

@ 275. Congressional declaration of purpose; establishment.

In order to assist the advancement of medical and related sciences, and to aid the dissemination and exchange of scientific and other information important to the progress of medicine and to the public health, there is established in the Public Health Service a National Library of Medicine (hereinafter referred to in this part as the "Library").

@ 276. Functions.

(a) The Secretary, through the Library and subject to the provisions of subsection (c) of this section, shall --

(1) acquire and preserve books, periodicals, prints, films, recordings, and other library materials pertinent to medicine;

(2) organize the materials specified in clause (1) of this subsection by appropriate cataloging, indexing, and bibliographical listing;

(3) publish and make available the catalogs, indexes, and bibliographies referred to in clause (2) of this subsection;

(4) make available, through loans, photographic or other copying procedures or otherwise, such materials in the Library as he deems appropriate;

(5) provide reference and research assistance; and

(6) engage in such other activities in furtherance of the purposes of this part as he deems appropriate and the Library's resources permit.

* * *

(c) The Secretary is authorized, after obtaining the advice and recommendations of the Board (established under section 277 of this title), to prescribe rules under which the Library will provide copies of its publications or materials, or will make available its facilities for research or its bibliographic, reference or other services, to public and private agencies and organizations, institutions, and individuals. Such rules may provide for making available such publications, materials, facilities, or services (1) without charge as a public service, or (2) upon a loan, exchange, or charge basis, or (3) in appropriate circumstances, under contract arrangements made with a public or other nonprofit agency, organization, or institution.

@ 277. Board of Regents.
(a) Establishment; composition; * * *

There is established in the Public Health Service a Board of Regents of the National Library of Medicine * * *.

(b) Duties of Board; * * *

It shall be the duty of the Board to advise, consult with, and make recommendations to the Secretary on important matters of policy in regard to the Library, including such matters as the acquisition of materials for the Library, the scope, content and organization of the Library's services, and the rules under which its materials, publications, facilities, and services shall be made available to various kinds of users, * * *

* * *

(b) There is no evidence that the Surgeon General or any other agent of defendant has issued regulations implementing 42 U.S.C. @ 276(c).

(c) The basic function of NLM is to acquire books, journals and the like relating to health and medicine to assure that all medical literature is available at one place. In addition to acquisition, NLM indexes and catalogs medical literature by means of Index Medicus, which is a compilation of citations to about 2,400 leading biomedical journals. Index Medicus is sold to the medical profession and enables medical practitioners to keep abreast of the current medical literature. NLM's catalog announces new publications and acquisitions by the library, thus providing a ready reference for other libraries.

21. (a) NLM has five operating components, one of which is called Library Operations. The Reference Services Division of Library Operations is responsible for administering the interlibrary loan system, which is a system whereby one library may request materials from other libraries. NLM also receives requests for loans of materials from Government institutions, medical schools, hospitals, research foundations, private physicians, and private companies including drug companies. NLM provides the same service to commercial companies as it does to governmental and academic libraries. Requests by commercial companies, particularly drug companies, account for about 12 percent of NLM's service. Upon a request for materials, NLM determines whether to loan out the original material or to make photocopies of the material. As a general rule, articles from journals, when requested, are photocopied and the photocopies given free of charge to the requester, so that, in the case of journals, the term "loan" is a euphemism. If NLM receives a request for a paid photographic service which otherwise meets the conditions of an interlibrary loan, payment is rejected and a loan or photocopy is furnished free of charge.

(b) To make photocopies, NLM uses mobile 35-mm. microfilm cameras which have an electrical power line overhead and can move up and down an aisle of the library. Full-size photocopies are then made from the microfilm. Most photocopies are made by such microfilm technique. In fiscal 1968, NLM received about 127,000 requests for interlibrary loans, of which about 120,000 were filled by photocopying. Applying the average of 10 pages per request, about 1.2 million pages were thus photocopied.
22. (a) Interlibrary loan requests must be accompanied by a proper form, the format of which is standardized and used by libraries and other institutions throughout the United States. The loan form, as a general rule, must be signed by a librarian. However, NLM will at times honor requests from individuals (e.g., physicians) or nonlibrary institutions. Upon receipt of requests for interlibrary loans, NLM stamps the requests by date and time, counts them for statistical purposes, and begins the sorting procedure. Generally, NLM does not know, nor does it make any attempt to find out, the purpose of the requests. NLM will supply copies of the same journal article to an unlimited number of libraries requesting copies of an article, one after the other, on consecutive days, even with knowledge of such facts.

(b) NLM is a regional medical library and serves the mid-Atlantic region. Requests for materials coming from regions other than the mid-Atlantic region are generally referred to the appropriate regional library, and the requester is advised to submit future requests to the appropriate regional library. NLM's stated policy in recent years is not to fill requests for copies of articles from any of 104 journals which are included on a so-called "widely-available list." Rather, the requester is furnished a copy of the "widely-available list" and the names of the regional libraries which are presumed to have the journals listed. Exceptions are sometimes made to the policy, particularly if the requester has been unsuccessful in obtaining the journal elsewhere. The four journals involved in this suit are listed on the "widely-available list." A rejection on the basis of the "widely-available list" is made only if the article requested was published during the preceding 5 years. Requests from Government libraries are not rejected on the basis of the "widely-available list."

(c) NLM's policy is not to honor an excessive number of requests