History: Libraries under previous copyright regimes

“‘[A] page of history is worth a volume of logic.’” Eldred v. Ashcroft, 537 U.S. 186, 200 (2003) (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.)) (available here).

The previous Copyright Act, that of 1909, does not explicitly mention library reproduction. However, it does mention libraries. Laura Gasaway discusses the treatment of libraries in the drafting of 1909 Act and the impact of those debates on the later reproduction debate in her article, which is listed below.

Williams and Wilkins Co. v. U.S., an important case of library photocopying under the 1909 Act, was decided under the common law doctrine of fair use (later codified at 17 U.S.C. § 107).

Statutory text:

The Copyright Act of 1909 is Public Law Number 60-349, and its Statutes at Large citation is 35 Stat. 1075. It is available in the Statutes at Large on Westlaw and Lexis (subscription required) and in print at any Federal Depository Library (LawCat record). It is Appendix 6 to Nimmer on Copyright (mentioned above, LawCat recordLexis full text). This free website has HTML versions of the 1909 Act as passed and as amended, from 1909 to 1976. It reproduces the 1909 Act based on a compilation of copyright law once sold by the Copyright Office.

Case:

Williams & Wilkins Co. v. U. S., 487 F.2d 1345 (Ct. Cl. 1973) aff’d, 420 U.S. 376, (1975).

In this case, an academic publisher sued the United States for alleged infringement due to photocopying of its copyrighted journal articles by the National Institutes of Health and the National Library of Medicine. The trial court found infringement. On appeal, the Court of Claims found for the defendants, using a fair use analysis. In that opinion, the court expressed concern that a finding of infringement would harm scientific pursuits and called for Congressional guidance on the issue of library photocopying. The dissent by Chief Judge Cowen quotes extensively from the trial opinion. The Supreme Court, equally divided, affirmed the judgment.

Secondary materials:

Betsy A. Bernfeld, “Free to Photocopy?: A Legislative History of Section 108, the Library Photocopying Provision of the Copyright Act of 1976,” 25 Legal Reference Services Q. 1 (2006) (Taylor & Francis Online).

  • Although this is really a legislative history of the 1976 Act (see Legislative history), its treatment of the events leading up to 1976 discusses library photocopying under the 1909 Act, especially the decision in Williams & Wilkins (pp. 14-19).

Laura Gasaway, “Libraries and Copyright at the Dawn of the Twentieth Century: The 1909 Copyright Act,” 11 N.C. J.L. & Tech. 419 (2009-2010) (free online).

Next: Legislative history of § 108

Previous: Background: § 108 within the Copyright Act

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