17 U.S.C. § 107 — Limitations on exclusive rights: Fair use

Page 26 TITLE 17—COPYRIGHTS § 107 (4) All terms of the rights conferred by sub- section (a) run to the end of the calendar year in which they would otherwise expire. (e) TRANSFER AND WAIVER.—(1) The rights con- ferred by subsection (a) may not be transferred, but those rights may be waived if the author ex- pressly agrees to such waiver in a written in- strument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors. (2) Ownership of the rights conferred by sub- section (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of own- ership of any copy of a work of visual art, or of a copyright or any exclusive right under a copy- right, shall not constitute a waiver of the rights conferred by subsection (a). Except as may oth- erwise be agreed by the author in a written in- strument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclu- sive right under a copyright in that work. (Added Pub. L. 101–650, title VI, § 603(a), Dec. 1, 1990, 104 Stat. 5128.) Editorial Notes REFERENCES IN TEXT Section 610(a) of the Visual Artists Rights Act of 1990 [Pub. L. 101–650], referred to in subsec. (d), is set out as an Effective Date note below. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 101–650, title VI, § 610, Dec. 1, 1990, 104 Stat. 5132, provided that: ‘‘(a) IN GENERAL.—Subject to subsection (b) and ex- cept as provided in subsection (c), this title [enacting this section, amending sections 101, 107, 113, 301, 411, 412, 501, and 506 of this title, and enacting provisions set out as notes under this section and section 101 of this title] and the amendments made by this title take ef- fect 6 months after the date of the enactment of this Act [Dec. 1, 1990]. ‘‘(b) APPLICABILITY.—The rights created by section 106A of title 17, United States Code, shall apply to— ‘‘(1) works created before the effective date set forth in subsection (a) but title to which has not, as of such effective date, been transferred from the au- thor, and ‘‘(2) works created on or after such effective date, but shall not apply to any destruction, distortion, mutilation, or other modification (as described in section 106A(a)(3) of such title) of any work which oc- curred before such effective date. ‘‘(c) SECTION 608.—Section 608 [set out below] takes effect on the date of the enactment of this Act.’’ STUDIES BY COPYRIGHT OFFICE Pub. L. 101–650, title VI, § 608, Dec. 1, 1990, 104 Stat. 5132, directed the Register of Copyrights to study the extent to which authorship rights have been waived by visual artists under this section and to submit a final report to Congress not later than 5 years after Dec. 1, 1990, and also directed the Register of Copyrights to study the feasibility of implementing a requirement that, after the first sale of a work of art, would enable authors of visual art to share monetarily in the resale and enhanced value of that work, with a report to Con- gress due not later than 18 months after Dec. 1, 1990. § 107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, in- cluding such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, in- cluding whether such use is of a commercial nature or is for nonprofit educational pur- poses; (2) the nature of the copyrighted work; (3) the amount and substantiality of the por- tion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above fac- tors. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101–650, title VI, § 607, Dec. 1, 1990, 104 Stat. 5132; Pub. L. 102–492, Oct. 24, 1992, 106 Stat. 3145.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 General Background of the Problem. The judicial doc- trine of fair use, one of the most important and well- established limitations on the exclusive right of copy- right owners, would be given express statutory recogni- tion for the first time in section 107. The claim that a defendant’s acts constituted a fair use rather than an infringement has been raised as a defense in innumer- able copyright actions over the years, and there is ample case law recognizing the existence of the doc- trine and applying it. The examples enumerated at page 24 of the Register’s 1961 Report, while by no means exhaustive, give some idea of the sort of activities the courts might regard as fair use under the cir- cumstances: ‘‘quotation of excerpts in a review or criti- cism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observa- tions; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a li- brary of a portion of a work to replace part of a dam- aged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or re- ports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.’’ Although the courts have considered and ruled upon the fair use doctrine over and over again, no real defini- tion of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally ap- plicable definition is possible, and each case raising the question must be decided on its own facts. On the other hand, the courts have evolved a set of criteria which, Page 27 TITLE 17—COPYRIGHTS § 107 though in no case definitive or determinative, provide some gauge for balancing the equities. These criteria have been stated in various ways, but essentially they can all be reduced to the four standards which have been adopted in section 107: ‘‘(1) the purpose and char- acter of the use, including whether such use is of a commercial nature or is for nonprofit educational pur- poses; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in rela- tion to the copyrighted work as a whole; and (4) the ef- fect of the use upon the potential market for or value of the copyrighted work.’’ These criteria are relevant in determining whether the basic doctrine of fair use, as stated in the first sen- tence of section 107, applies in a particular case: ‘‘Not- withstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduc- tion in copies or phonorecords or by any other means specified by that section, for purposes such as criti- cism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or re- search, is not an infringement of copyright.’’ The specific wording of section 107 as it now stands is the result of a process of accretion, resulting from the long controversy over the related problems of fair use and the reproduction (mostly by photocopying) of copy- righted material for educational and scholarly pur- poses. For example, the reference to fair use ‘‘by repro- duction in copies or phonorecords or by any other means’’ is mainly intended to make clear that the doc- trine has as much application to photocopying and tap- ing as to older forms of use; it is not intended to give these kinds of reproduction any special status under the fair use provision or to sanction any reproduction beyond the normal and reasonable limits of fair use. Similarly, the newly-added reference to ‘‘multiple cop- ies for classroom use’’ is a recognition that, under the proper circumstances of fairness, the doctrine can be applied to reproductions of multiple copies for the members of a class. The Committee has amended the first of the criteria to be considered—‘‘the purpose and character of the use’’—to state explicitly that this factor includes a consideration of ‘‘whether such use is of a commercial nature or is for non-profit educational purposes.’’ This amendment is not intended to be interpreted as any sort of not-for-profit limitation on educational uses of copyrighted works. It is an express recognition that, as under the present law, the commercial or non-profit character of an activity, while not conclusive with re- spect to fair use, can and should be weighed along with other factors in fair use decisions. General Intention Behind the Provision. The state- ment of the fair use doctrine in section 107 offers some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of sit- uations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid techno- logical change. Beyond a very broad statutory expla- nation of what fair use is and some of the criteria ap- plicable to it, the courts must be free to adapt the doc- trine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way. Intention as to Classroom Reproduction. Although the works and uses to which the doctrine of fair use is applicable are as broad as the copyright law itself, most of the discussion of section 107 has centered around questions of classroom reproduction, particu- larly photocopying. The arguments on the question are summarized at pp. 30–31 of this Committee’s 1967 report (H.R. Rep. No. 83, 90th Cong., 1st Sess.), and have not changed materially in the intervening years. The Committee also adheres to its earlier conclusion, that ‘‘a specific exemption freeing certain reproduc- tions of copyrighted works for educational and schol- arly purposes from copyright control is not justified.’’ At the same time the Committee recognizes, as it did in 1967, that there is a ‘‘need for greater certainty and protection for teachers.’’ In an effort to meet this need the Committee has not only adopted further amend- ments to section 107, but has also amended section 504(c) to provide innocent teachers and other non-profit users of copyrighted material with broad insulation against unwarranted liability for infringement. The latter amendments are discussed below in connection with Chapter 5 of the bill [§ 501 et seq. of this title]. In 1967 the Committee also sought to approach this problem by including, in its report, a very thorough discussion of ‘‘the considerations lying behind the four criteria listed in the amended section 107, in the con- text of typical classroom situations arising today.’’ This discussion appeared on pp. 32–35 of the 1967 report, and with some changes has been retained in the Senate report on S. 22 (S. Rep. No. 94–473, pp. 63–65). The Com- mittee has reviewed this discussion, and considers that it still has value as an analysis of various aspects of the problem. At the Judiciary Subcommittee hearings in June 1975, Chairman Kastenmeier and other members urged the parties to meet together independently in an effort to achieve a meeting of the minds as to permissible educational uses of copyrighted material. The response to these suggestions was positive, and a number of meetings of three groups, dealing respectively with classroom reproduction of printed material, music, and audio-visual material, were held beginning in Sep- tember 1975. In a joint letter to Chairman Kastenmeier, dated March 19, 1976, the representatives of the Ad Hoc Com- mittee of Educational Institutions and Organizations on Copyright Law Revision, and of the Authors League of America, Inc., and the Association of American Pub- lishers, Inc., stated: You may remember that in our letter of March 8, 1976 we told you that the negotiating teams rep- resenting authors and publishers and the Ad Hoc Group had reached tentative agreement on guidelines to insert in the Committee Report covering edu- cational copying from books and periodicals under Section 107 of H.R. 2223 and S. 22 [this section], and that as part of that tentative agreement each side would accept the amendments to Sections 107 and 504 [this section and section 504 of this title] which were adopted by your Subcommittee on March 3, 1976. We are now happy to tell you that the agreement has been approved by the principals and we enclose a copy herewith. We had originally intended to trans- late the agreement into language suitable for inclu- sion in the legislative report dealing with Section 107 [this section], but we have since been advised by com- mittee staff that this will not be necessary. As stated above, the agreement refers only to copy- ing from books and periodicals, and it is not intended to apply to musical or audiovisual works. The full text of the agreement is as follows: AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING IN NOT-FOR-PROFIT EDUCATIONAL INSTITUTIONS WITH RESPECT TO BOOKS AND PERIODICALS The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223 [this section]. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guide- lines may not be permissible in the future; and con- versely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision Page 28 TITLE 17—COPYRIGHTS § 107 and which are stated in Section 107 of the Copyright Revision Bill [this section]. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be per- mitted under the criteria of fair use. GUIDELINES I. Single Copying for Teachers A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class: A. A chapter from a book; B. An article from a periodical or newspaper; C. A short story, short essay or short poem, wheth- er or not from a collective work; D. A chart, graph, diagram, drawing, cartoon or pic- ture from a book, periodical, or newspaper; II. Multiple Copies for Classroom Use Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that: A. The copying meets the tests of brevity and spon- taneity as defined below; and, B. Meets the cumulative effect test as defined below; and C. Each copy includes a notice of copyright. Definitions Brevity (i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words. (ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. [Each of the numerical limits stated in ‘‘i’’ and ‘‘ii’’ above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.] (iii) Illustration: One chart, graph, diagram, draw- ing, cartoon or picture per book or per periodical issue. (iv) ‘‘Special’’ works: Certain works in poetry, prose or in ‘‘poetic prose’’ which often combine language with illustrations and which are intended sometimes for children and at other times for a more general au- dience fall short of 2,500 words in their entirety. Paragraph ‘‘ii’’ above notwithstanding such ‘‘special works’’ may not be reproduced in their entirety; how- ever, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced. Spontaneity (i) The copying is at the instance and inspiration of the individual teacher, and (ii) The inspiration and decision to use the work and the moment of its use for maximum teaching ef- fectiveness are so close in time that it would be un- reasonable to expect a timely reply to a request for permission. Cumulative Effect (i) The copying of the material is for only one course in the school in which the copies are made. (ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term. (iii) There shall not be more than nine instances of such multiple copying for one course during one class term. [The limitations stated in ‘‘ii’’ and ‘‘iii’’ above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.] III. Prohibitions as to I and II Above Notwithstanding any of the above, the following shall be prohibited: (A) Copying shall not be used to create or to replace or substitute for anthologies, compilations or collec- tive works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately. (B) There shall be no copying of or from works in- tended to be ‘‘consumable’’ in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material. (C) Copying shall not: (a) substitute for the purchase of books, pub- lishers’ reprints or periodicals; (b) be directed by higher authority; (c) be repeated with respect to the same item by the same teacher from term to term. (D) No charge shall be made to the student beyond the actual cost of the photocopying. Agreed March 19, 1976. Ad Hoc Committee on Copyright Law Revision: By SHELDON ELLIOTT STEINBACH. Author-Publisher Group: Authors League of America: By IRWIN KARP, Counsel. Association of American Publishers, Inc.: By ALEXANDER C. HOFFMAN. Chairman, Copyright Committee. In a joint letter dated April 30, 1976, representatives of the Music Publishers’ Association of the United States, Inc., the National Music Publishers’ Associa- tion, Inc., the Music Teachers National Association, the Music Educators National Conference, the National Association of Schools of Music, and the Ad Hoc Com- mittee on Copyright Law Revision, wrote to Chairman Kastenmeier as follows: During the hearings on H.R. 2223 in June 1975, you and several of your subcommittee members suggested that concerned groups should work together in devel- oping guidelines which would be helpful to clarify Section 107 of the bill [this section]. Representatives of music educators and music pub- lishers delayed their meetings until guidelines had been developed relative to books and periodicals. Shortly after that work was completed and those guidelines were forwarded to your subcommittee, rep- resentatives of the undersigned music organizations met together with representatives of the Ad Hoc Committee on Copyright Law Revision to draft guide- lines relative to music. We are very pleased to inform you that the discus- sions thus have been fruitful on the guidelines which have been developed. Since private music teachers are an important factor in music education, due con- sideration has been given to the concerns of that group. We trust that this will be helpful in the report on the bill to clarify Fair Use as it applies to music. The text of the guidelines accompanying this letter is as follows: GUIDELINES FOR EDUCATIONAL USES OF MUSIC The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223 [this section]. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guide- lines may not be permissible in the future, and con- versely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted Page 29 TITLE 17—COPYRIGHTS § 107 under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill [this section]. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be per- mitted under the criteria of fair use. A. Permissible Uses 1. Emergency copying to replace purchased copies which for any reason are not available for an immi- nent performance provided purchased replacement copies shall be substituted in due course. 2. (a) For academic purposes other than perform- ance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a perform- able unit such as a section, movement or aria, but in no case more than 10% of the whole work. The num- ber of copies shall not exceed one copy per pupil. (b) For academic purposes other than performance, a single copy of an entire performable unit (section, movement, aria, etc.) that is, (1) confirmed by the copyright proprietor to be out of print or (2) unavail- able except in a larger work, may be made by or for a teacher solely for the purpose of his or her schol- arly research or in preparation to teach a class. 3. Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist. 4. A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational in- stitution or individual teacher. 5. A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or in- dividual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.) B. Prohibitions 1. Copying to create or replace or substitute for an- thologies, compilations or collective works. 2. Copying of or from works intended to be ‘‘consumable’’ in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material. 3. Copying for the purpose of performance, except as in A(1) above. 4. Copying for the purpose of substituting for the purchase of music, except as in A(1) and A(2) above. 5. Copying without inclusion of the copyright no- tice which appears on the printed copy. The problem of off-the-air taping for nonprofit class- room use of copyrighted audiovisual works incor- porated in radio and television broadcasts has proved to be difficult to resolve. The Committee believes that the fair use doctrine has some limited application in this area, but it appears that the development of de- tailed guidelines will require a more thorough explo- ration than has so far been possible of the needs and problems of a number of different interests affected, and of the various legal problems presented. Nothing in section 107 or elsewhere in the bill is intended to change or prejudge the law on the point. On the other hand, the Committee is sensitive to the importance of the problem, and urges the representatives of the var- ious interests, if possible under the leadership of the Register of Copyrights, to continue their discussions actively and in a constructive spirit. If it would be helpful to a solution, the Committee is receptive to un- dertaking further consideration of the problem in a fu- ture Congress. The Committee appreciates and commends the efforts and the cooperative and reasonable spirit of the parties who achieved the agreed guidelines on books and peri- odicals and on music. Representatives of the American Association of University Professors and of the Asso- ciation of American Law Schools have written to the Committee strongly criticizing the guidelines, particu- larly with respect to multiple copying, as being too re- strictive with respect to classroom situations at the university and graduate level. However, the Committee notes that the Ad Hoc group did include representa- tives of higher education, that the stated ‘‘purpose of the * * * guidelines is to state the minimum and not the maximum standards of educational fair use’’ and that the agreement acknowledges ‘‘there may be in- stances in which copying which does not fall within the guidelines * * * may nonetheless be permitted under the criteria of fair use.’’ The Committee believes the guidelines are a reason- able interpretation of the minimum standards of fair use. Teachers will know that copying within the guide- lines is fair use. Thus, the guidelines serve the purpose of fulfilling the need for greater certainty and protec- tion for teachers. The Committee expresses the hope that if there are areas where standards other than these guidelines may be appropriate, the parties will continue their efforts to provide additional specific guidelines in the same spirit of good will and give and take that has marked the discussion of this subject in recent months. Reproduction and Uses for Other Purposes. The con- centrated attention given the fair use provision in the context of classroom teaching activities should not ob- scure its application in other areas. It must be empha- sized again that the same general standards of fair use are applicable to all kinds of uses of copyrighted mate- rial, although the relative weight to be given them will differ from case to case. The fair use doctrine would be relevant to the use of excerpts from copyrighted works in educational broad- casting activities not exempted under section 110(2) or 112, and not covered by the licensing provisions of sec- tion 118. In these cases the factors to be weighed in ap- plying the criteria of this section would include wheth- er the performers, producers, directors, and others re- sponsible for the broadcast were paid, the size and na- ture of the audience, the size and number of excerpts taken and, in the case of recordings made for broad- cast, the number of copies reproduced and the extent of their reuse or exchange. The availability of the fair use doctrine to educational broadcasters would be narrowly circumscribed in the case of motion pictures and other audiovisual works, but under appropriate cir- cumstances it could apply to the nonsequential show- ing of an individual still or slide, or to the performance of a short excerpt from a motion picture for criticism or comment. Another special instance illustrating the application of the fair use doctrine pertains to the making of copies or phonorecords of works in the special forms needed for the use of blind persons. These special forms, such as copies in Braille and phonorecords of oral readings (talking books), are not usually made by the publishers for commercial distribution. For the most part, such copies and phonorecords are made by the Library of Congress’ Division for the Blind and Physically Handi- capped with permission obtained from the copyright owners, and are circulated to blind persons through re- gional libraries covering the nation. In addition, such copies and phonorecords are made locally by individual volunteers for the use of blind persons in their commu- nities, and the Library of Congress conducts a program for training such volunteers. While the making of mul- tiple copies or phonorecords of a work for general cir- culation requires the permission of the copyright owner, a problem addressed in section 710 of the bill, the making of a single copy or phonorecord by an indi- vidual as a free service for blind persons would properly be considered a fair use under section 107. A problem of particular urgency is that of preserving for posterity prints of motion pictures made before 1942. Aside from the deplorable fact that in a great many cases the only existing copy of a film has been Page 30 TITLE 17—COPYRIGHTS § 108 deliberately destroyed, those that remain are in imme- diate danger of disintegration; they were printed on film stock with a nitrate base that will inevitably de- compose in time. The efforts of the Library of Con- gress, the American Film Institute, and other organiza- tions to rescue and preserve this irreplaceable con- tribution to our cultural life are to be applauded, and the making of duplicate copies for purposes of archival preservation certainly falls within the scope of ‘‘fair use.’’ When a copyrighted work contains unfair, inaccurate, or derogatory information concerning an individual or institution, the individual or institution may copy and reproduce such parts of the work as are necessary to permit understandable comment on the statements made in the work. The Committee has considered the question of publi- cation, in Congressional hearings and documents, of copyrighted material. Where the length of the work or excerpt published and the number of copies authorized are reasonable under the circumstances, and the work itself is directly relevant to a matter of legitimate leg- islative concern, the Committee believes that the pub- lication would constitute fair use. During the consideration of the revision bill in the 94th Congress it was proposed that independent news- letters, as distinguished from house organs and pub- licity or advertising publications, be given separate treatment. It is argued that newsletters are particu- larly vulnerable to mass photocopying, and that most newsletters have fairly modest circulations. Whether the copying of portions of a newsletter is an act of in- fringement or a fair use will necessarily turn on the facts of the individual case. However, as a general prin- ciple, it seems clear that the scope of the fair use doc- trine should be considerably narrower in the case of newsletters than in that of either mass-circulation periodicals or scientific journals. The commercial na- ture of the user is a significant factor in such cases: Copying by a profit-making user of even a small por- tion of a newsletter may have a significant impact on the commercial market for the work. The Committee has examined the use of excerpts from copyrighted works in the art work of calligra- phers. The committee believes that a single copy repro- duction of an excerpt from a copyrighted work by a cal- ligrapher for a single client does not represent an in- fringement of copyright. Likewise, a single reproduc- tion of excerpts from a copyrighted work by a student calligrapher or teacher in a learning situation would be a fair use of the copyrighted work. The Register of Copyrights has recommended that the committee report describe the relationship between this section and the provisions of section 108 relating to reproduction by libraries and archives. The doctrine of fair use applies to library photocopying, and nothing contained in section 108 ‘‘in any way affects the right of fair use.’’ No provision of section 108 is intended to take away any rights existing under the fair use doc- trine. To the contrary, section 108 authorizes certain photocopying practices which may not qualify as a fair use. The criteria of fair use are necessarily set forth in general terms. In the application of the criteria of fair use to specific photocopying practices of libraries, it is the intent of this legislation to provide an appropriate balancing of the rights of creators, and the needs of users. Editorial Notes AMENDMENTS 1992—Pub. L. 102–492 inserted at end ‘‘The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.’’ 1990—Pub. L. 101–650 substituted ‘‘sections 106 and 106A’’ for ‘‘section 106’’ in introductory provisions. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–650 effective 6 months after Dec. 1, 1990, see section 610 of Pub. L. 101–650, set out as an Effective Date note under section 106A of this title. § 108. Limitations on exclusive rights: Reproduc- tion by libraries and archives (a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees act- ing within the scope of their employment, to re- produce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phono- record, under the conditions specified by this section, if— (1) the reproduction or distribution is made without any purpose of direct or indirect com- mercial advantage; (2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing re- search in a specialized field; and (3) the reproduction or distribution of the work includes a notice of copyright that ap- pears on the copy or phonorecord that is re- produced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such no- tice can be found on the copy or phonorecord that is reproduced under the provisions of this section. (b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if— (1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and (2) any such copy or phonorecord that is re- produced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives. (c) The right of reproduction under this sec- tion applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if— (1) the library or archives has, after a rea- sonable effort, determined that an unused re- placement cannot be obtained at a fair price; and (2) any such copy or phonorecord that is re- produced in digital format is not made avail- able to the public in that format outside the premises of the library or archives in lawful possession of such copy. For purposes of this subsection, a format shall be considered obsolete if the machine or device