January 25

The Legislative History of 17 USC § 107

     In 1901, Thorvald Solberg, the first Register of Copyrights, asked the Senate Patent Committee to appoint a learned commission to recommend revisions to the outdated 1870 copyright law.  (Such a commission had been appointed in 1898 to examine patent and trademark law, and had recently submitted its report to Congress.)  The committee declined to appropriate the funds for a commission. In lieu of such a commission, Solberg invited a select group of copyright lawyers and representatives of interests with economic stakes in the copyright law to meet at the Library of Congress to discuss copyright revision.  Over the course of several sessions, the invitees hammered out the terms of a revised copyright bill, which was introduced in Congress in 1906.  The bill would have conferred significant advantages on the interests whose representatives had participated in the meetings, at the expense of interests that hadn't been invited.  The excluded interests showed up in Congress complaining about the process and demanding changes to the bill.  Members of the House and Senate committees encouraged all of the lawyers attending the hearings on the bill  to sit down and negotiate compromises on which all of them could agree.  The 1909 Copyright Act was the result of the negotiations that followed.  

     By the early 1920s, the 1909 Act was itself badly outdated, and representatives of copyright-affected interests met privately and attempted to hammer out a copyright reform bill.  They failed to reach an agreement.  Over the course of the next 30 years, many efforts to reach a broad consensus on the terms of a new copyright law failed.  In the early 1950s, the Copyright Office decided to take a different approach.  Register of Copyrights Arthur Fisher commissioned 35 studies examining different aspects of copyright law.  One of those studies (number 14) examined the judge-made doctrine of fair use. 

• • Read excerpts from Study Number 14 Download excerpts from Study Number 14
     

     After digesting the content of the studies, the Copyright Office drafted a comprehensive report recommending revisions to the copyright law and explaining the reasons for its  proposals.  The Office recommended that the statute should, for the first time, expressly mention the fair use doctrine. 

• • Read excerpts from the Register's 1961 Report Download excerpts from the Register's 1961 Report

     Many of the recommendations in the Copyright Office Report proved unpopular with the copyright bar.  To rescue the revision effort, the Register invited lawyers for copyright-affected interests and businesses to meet at the Library of Congress and discuss alternative proposals for copyright revision. By 1963, those meetings had produced a draft revision bill that reflected a consensus of the representatives attending the meetings and differed markedly from the Register's 1961 proposal.  Section 5 of the bill listed the copyright owner's exclusive rights.  Section 6 was the fair use provision:

This version drew criticism from all sides.  In response, the Copyright Office promulgated a third version of the section, now numbered 107, which provided:

The Register transmitted the revised revision bill to Congress along with a supplementary report explaining the provisions of the bill.

• • • Read excerpts from the Register's 1965 Supplementary Report Download excerpts from the Register's 1965 Supplementary Report

     It took another decade for negotiations among interest groups to resolve their disagreements and incorporate their compromises into a bill that could pass both houses of Congress.  Negotiations over the wording of the fair use provision continued until the very last minute.  The terrifying technology of the mid-1960s was the Xerox photocopy machine. Photocopiers had become ubiquitous in business, educational, and library settings, but copyright lawyers differed sharply on how current copyright law applied to photocopies, and how the revision bill should treat them.  The dispute was particularly severe in connection with educational photocopying.  Educators maintained that photocopying for classroom purposes was squarely within the shelter of fair use.  Authors and publishers insisted that educational photocopying was almost always copyright infringement. In 1975, Register of Copyrights Barbara Ringer testified before the House Subcommittee on Courts, Civil Liberties and the Administration  of Justice, explaining the provisions of the near-final 1975 bill.  She had prepared a second supplementary report to accompany her testimony, in which she explains the conflict over the fair use provision.  

• • • Read excerpts from the Register's 1975 Second Supplementary Report Download excerpts from the Register's 1975 Second Supplementary Report

       On October 19, 1976,  Congress enacted the 1976 Copyright Act. To resolve the still simmering dispute over educational photocopying, the House Judiciary committee agreed to insert into the House Report a letter outlining the terms of an agreement between  organizations purporting to represent educators, authors, and publishers, that recited mutually acceptable photocopying guidelines for K-12 classes.

• • • Read excerpts from H.R. Rep. 1476 Download excerpts from H.R. Rep. 1476
      , 94th Cong., 2d Sess. (1976).