   Whether Government Reproduction of Copyrighted Materials
                is a Noninfringing “ Fair Use”

 Although governm ent reproduction o f copyrighted m aterial for governm ental use w ould in m any co n ­
    texts be a noninfringing fair use under section 107 o f the C opyright A ct o f 1976, such governm ent
    reproduction o f copyrighted m aterial does not invariably qualify as a “ fair use ”

                                                                                                  April 30, 1999

                        M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
                                        D epa rtm en t o f C o m m erce


   You have requested an opinion from this Office on a legal question raised in
connection with an attempt by the Copyright Clearance Center, Inc. (“ CCC” )
to negotiate licenses with the Department of Commerce and other federal govern­
ment agencies, pursuant to which such agencies would, in exchange for a fee,
obtain permission to reproduce certain copyrighted materials by photocopying.'
See Letter for Dawn E. Johnsen, Acting Assistant Attorney General, Office of
Legal Counsel, from Andrew J. Pincus, General Counsel, Department of Com­
merce at 1 (June 23, 1998) (“ Pincus Letter” ). You inform us that a “ key factor
in our decision whether such negotiations [with the CCC] even are appropriate
is whether there are any circumstances under which the Copyright Act might
require a government agency to obtain such a license: if a license is never nec­
essary, there would be no reason to consider entering into negotiations with the
CCC, or with individual authors of works.” Id. Accordingly, you have asked for
our opinion on the following question: “ whether a government agency ever is
required to secure either permission or licensing before making unauthorized
reproduction and use of materials that are protected by copyright law, or whether
all government reproduction and use of such materials per se qualifies for the
‘fair use’ exception from the obligations of the Copyright Act.” Id. You further
assert that “ [t]here appears to be substantial disagreement within the government
with-respect to this issue.” Id. In particular, you suggest that the Commercial
Litigation Branch of the Department of Justice’s Civil Division may have con­
veyed to certain agencies the view that “ virtually all photocopying for government
use is permitted under the fair use doctrine,” and that that view of the Commercial

   ‘ The CCC, a nonprofit consortium, or “ clearing house,” established in 1977, acts as an agent for participating
publishers. Under one of the CCC’s offered services, a user pays a flat fee, in exchange for which it receives a
blanket annual license to make photocopies for internal use of any copyrighted material contained in any o f the
works registered with the CCC. The license fee is based on a limited photocopying survey that accounts for the
license’s employee population and the copying fees for the journals regularly copied by that licensee Upon payment
of the fee, the licensee is authorized for a specified term to make unlimited numbers of photocopies, for internal
use, from CCC-registered publications The revenue that the CCC derives from the licensee then is allocated among
the publishers that have registered publications with the CCC, with the CCC retaining certain service charges See
American Geophysical Union v. Texaco, Inc., 802 F. Supp 1, 7 -8 (S.D N.Y 1992) (discussing this CCC licensing
practice), a jfd , 60 F.3d 913 (2d C ir 1994), cert, dismissed, 516 U.S. 1005 (1995)


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                           Opinions o f the Office o f Legal Counsel in Volume 23


Litigation Branch was “ based upon the decision in Williams & Wilkins Co. v.
United States, 487 F.2d 1345 (Ct. Cl. 1973), a f f d by an equally divided Court,
420 U.S. 376 (1975).” Id. at 2.
   As we explain below, while government reproduction of copyrighted material
for governmental use would in many contexts be noninfringing because it would
be a “ fair use” under section 107 of the Copyright Act of 1976, 17 U.S.C. § 107
(1994), there is no “ per se” rule under which such government reproduction of
copyrighted material invariably qualifies as a fair use.2 It is important to note,
however, that we have been unable to discern any disagreement within the federal
government on this specific question: To our knowledge, no agency of the execu­
tive branch has argued, or advised, that government copying is per se a fair use.
In particular, the Department o f Justice did not urge such a categorical rule in
the Williams & Wilkins litigation, see infra note 15 (brief for the United States
in the Supreme Court did not dispute that photocopying by the government may
in some circumstances constitute copyright infringement); and, to our knowledge,
the Department has not thereafter proffered any arguments, nor provided any
advice, inconsistent with the views expressed in that brief.3
   We do not, in this opinion, reach any conclusions about the circumstances under
which government agencies should negotiate to obtain photocopying licenses. We
caution, however, that a general practice of government agencies entering into
licensing agreements in which they pay licensing fees for uses that are fair may,
over time, undermine the government’s ability to argue successfully that such uses
are fair. For this and other reasons, government agencies may wish to ensure that,
if they do negotiate licensing arrangements, such arrangements cover only those
government photocopying practices that otherwise would, in fact, be infringing.
   In Part I of this opinion, we provide some background on the fair use doctrine.
In Part II, we review the case law regarding government photocopying and fair
use, as well as Congress’s enactment of the Copyright Act of 1976, and conclude
that government photocopying o f copyrighted materials does not invariably qualify
as a fair use. Finally, in Part III, we provide some guidance on the factors that
an agency should consider in determining whether a particular photocopying prac­
tice would be a fair use and whether to negotiate a license with respect to par­
ticular photocopying practices.

   2 In framing the particular question you have asked us to consider, you refer to “ unauthorized reproduction and
use o f materials that are protected by copyright law.” Pincus Letter at 1. The bulk o f your letter and supporting
materials, however, indicates that your inquiry specifically concerns “ photocopying for government u s e ” Id at
2 Accordingly, we will in this opinion focus, not on all potential federal government uses of copyrighted materials,
but instead, on government photocopying o f copyrighted materials for internal government use. We note, in particular,
that this opinion does not specifically consider the circumstances under which it would be a fair use for an agency
to republish copyrighted materials in government publicauons or in publicly available databases.
   3 Indeed, a Department o f Energy memorandum that you provided as an attachment to your letter indicates that
the Commercial Litigation Division of the Department o f Justice has informed the Department of Energy that, in
its view, som e cases o f government photocopying likely would not be fair uses. See Memorandum for Jim Chafin
and All Field Offices, from Paul A G ottlieb, Assistant G eneral Counsel for Technology Transfer and Intellectual
Property, U nited States Department of Energy, Re: Copyright Clearance Center at 2 (May 23,1995).


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     Whether Government Reproduction o f Copyrighted Materials is a Noninfringing “Fair Use'


                                  I. The Fair Use Doctrine

   Article I, Section 8 of the Constitution empowers Congress to “ promote the
Progress of Science and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and Discoveries.”
U.S. Const, art. I, § 8, cl. 8. Pursuant to that power, Congress enacted the Copy­
right Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended
at 17 U.S.C. §101 et seq. (1994)) (the “ Copyright Act” or the “ 1976 Act” ).
Section 106 of the Copyright Act provides, inter alia, that the owner of a copy­
right under Title 17 of the United States Code “ has the exclusive rights . . .
to reproduce the copyrighted work in copies,” and to “ authorize” such reproduc­
tion. 17 U.S.C. § 106(1) (1994). Those “ exclusive rights,” however, are
“ [sjubject to” limitations codified in “ sections 107 through 120” of the 1976
Act. Id. § 106. For present purposes, the most important of those limitations is
found in section 107 of the Copyright Act, id. § 107. That section, which is entitled
“ Limitations on exclusive rights: Fair use,” provides, in pertinent part:

        Notwithstanding the provisions of section[] 106 . . ., the fair use
        of a copyrighted work, including such use by reproduction in copies
        . . ., 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, 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 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.

   Section 107’s “ fair use” limitation on copyright, and the particular factors
enumerated in that section, reflect and incorporate a longstanding common law
doctrine. See Harper & Row, Publishers, Inc. v. The Nation Enters ., 471 U.S.
539, 549 (1985). From the “ infancy of copyright protection,” courts have found
it necessary to provide some opportunity for fair use of copyrighted materials
in order “ to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science

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                             Opinions o f the Office o f Legal Counsel in Volume 23


and useful Arts.’ ” Cam pbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994).
Before enactment of the 1976 Act, however, the fair-use doctrine was “ exclu­
sively [a] judge-made doctrine.” Id. at 576. When it codified the fair use doctrine
in section 107 of the 1976 Act, “ Congress meant ‘to restate the present judicial
doctrine of fair use, not to change, narrow, or enlarge it in any way’ and intended
that courts continue the common-law tradition of fair use adjudication.” Id. at
577 (quoting H.R. Rep. No. 94-1476, at 66 (1976) ( “ House Report” ), reprinted
in 1976 U.S.C.C.A.N. 5659, 5679; S. Rep. No. 94-473, at 62 (1975) ( “ Senate
Report” )); accord H arper & Row, 471 U.S. at 554.4
   As noted above, the fair use doctrine, like the copyright protections that it quali­
fies, is necessary in order “ to fulfill copyright’s very purpose, ‘[t]o promote the
Progress of Science and useful Arts.’ ” Campbell, 510 U.S. at 575; see also, e.g.,
H arper & Row, 471 U.S. at 545 ( “ copyright is intended to increase and not to
impede the harvest of knowledge” ). As the Supreme Court recently emphasized,
“ [t]he fair use doctrine thus ‘permits [and requires] courts to avoid rigid applica­
tion of the copyright statute when, on occasion, it would stifle the very creativity
which that law is designed to foster.’ ” Campbell, 510 U.S. at 577 (quoting
Stew art v. Abend, 495 U.S. 207, 236 (1990) (internal quotation marks and citation
omitted)).5




   4 In 1992, Congress added the following senience to the end o f 17 U S C §107, in order to clanfy that the
fair-use limitation is applicable to unpublished works: “ The fact that a work is unpublished shall not itself bar
a finding o f fair use if such finding is m ade upon consideration o f all the above factors ” Pub L No. 102-492,
106 Stat 3145 (1992). Arguably, application of the fair use doctrine to unpublished works is one way in which
section 107 departs from the common law. See, e g , H.R Rep No 102-836, at 4 (1992) ( “ The common law,
going back to late eighteenth century English cases, had been stnct in prohibiting fair use of unpublished works
under the theory that the author should decide when and in what form his or her work should first reach the public ” ),
reprinted in 1992 U S C.C A.N. 2553, 2556; Salinger v Random House, In c , 811 F.2d 90, 95 (2d Cir.) (“ Though
com m on law, especially as developed in England, appears to have denied the defense of fair use to unpublished
works, see W. Patry, The Fair Use Privilege in Copyright Law 436—41 (1985), the 1976 Act explicitly makes all
of the rights protected by copynght, including the right o f first publication, subject to the defense of fair use.” ),
cert denied, 484 U.S. 890 (1987); New Era Publications In t’l, AP S v Henry Holt & C o , 695 F Supp. 1493,
1502 (S D N.Y 1988) (Copyright Act’s application o f fair use doctnne to unpublished work was “ in departure
from the common law rule” ), a jfd , 873 F.2d 576 (2d Cir. 1989), cert denied, 493 U.S 1094 (1990) But see
H arper &. Row, 471 U.S. at 550-51 (although “ fair use traditionally was not recognized [at common law] as a
defense to charges o f copying from an author’s as yet unpublished works . . . [t]his absolute rule . . was tempered
in practice by the equitable nature of the fair use doctnne” )
    5 See also Pierre N. Leval, Toward a F air Use Standard, 103 Harv L Rev 1105, 1110 (1990) ( “ The doctnne
o f fair use limits the scope o f the copynght monopoly in furtherance of its utibtanan objective.    Fair use should
not be considered a bizane, occasionally tolerated departure from the grand conception of the copynght monopoly
To the contrary, it is a necessary part o f the overall design ” ); Fogerty v Fantasy, Inc., 510 U S 517, 526-27
(1994) (quoting Twentieth Century Music Corp. v. Aiken, 422 U S 151, 156 (1975))1
     T he limited scope o f the copynght holder’s statutory monopoly             reflects a balance of competing claims
     upon the public interest: CreaUve w ork is to be encouraged and rewarded, but pnvate motivation must
    •ultimately serve the cause of promoting broad public avajlability o f literature, music, and the other arts.
     The immediate effect o f our copyright law is to secure a fair return for an ‘author’s’ creative labor But
     the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good


                                                            90
       Whether Government Reproduction o f Copyrighted Materials is a Noninfringing ‘ ‘Fair U se'


                             II. Fair Use and Government Photocopying

   The federal government can be liable for violation of the copyright laws. Con­
gress has expressly provided that a work protected by the copyright laws can
be “ infringed by the United States,” 28 U.S.C. § 1498(b) (1994),6 and further
has provided that “ the exclusive action which may be brought for such infringe­
ment shall be an action by the copyright owner against the United States in the
Court of Federal Claims for the recovery of his reasonable and entire compensa­
tion as damages for such infringement,” 28 U.S.C. § 1498(b) (Supp. Ill 1997).
At the same time, it cannot be disputed that the federal government’s copying
(and other use) of copyrighted materials is subject to the fair use doctrine codified
in 17 U.S.C. § 107.7 It follows that any federal government photocopying that
is a fair use is not infringing. However, there is no basis for concluding that
the photocopying of copyrighted materials by the federal government automati­
cally or invariably constitutes a fair use.
   The case law provides very little guidance on the question of when government
photocopying is a fair use. Reported cases involving application of the fair use
doctrine to governmental conduct are rare. Indeed, the Williams & Wilkins deci­
sion, to which your letter refers and which we discuss below, is one of the only
published opinions containing a significant discussion of governmental fair use.8
And, outside the context of public schools, we have found only one case —
involving circumstances far removed from those at issue in this opinion — in
which a court has rejected a government’s assertion that its use of copyrighted
materials was fair.9 What is more, even outside the context of governmental use,

   6 See also H.R. Rep. No 86-624, at 2 (1959) (“ When the Government deliberately publishes a copyrighted article
without obtaining the prior consent o f the copynght proprietor, the general assumption would be lhat the holder,
pursuant to the pnnciples o f ‘just compensation’ under the fifth amendment of our Constitution, should be entitled
to an action against the Government for infringement ” )
   7 There is nothing in the statute to suggest that the federal government cannot invoke the fair use doctnne. The
 legislative history indicates lhat cenain governmental uses can be fair. See infra notes 19, 24 And the courts uni­
formly have assumed that the fair use analysis provided in section 107 o f the Act applies to government uses of
copynghted matenals See, e.g., the cases cited in note 8, infra
   8 A few other cases contain less extensive discussion o f governmental fair use. See, e g . Association o f Am. Med.
Colleges v. Cuomo, 928 F.2d 519, 523-26 (2d Cir.), cert denied, 502 U.S 862 (1991), College Entrance Examination
Bd. v Pataki, 889 F. Supp 554, 564-75 (N.D N Y 1995), Sinai v California Bureau o f Automotive Repair, No
C -92-0274—VRW, 1992 WL 470699, at *3-*4 (N.D. Cai. Dec 21, 1992), College Entrance Examination Bd. v
Cuomo, 788 F. Supp 134, 140-^3 (N.D.N Y. 1992), West v City o f New York, No 78 Civ. 1981 (MJL). 1985
WL 202, at *24—*25 (S.D N Y Jan. 18, 1985), Key Maps, Inc. v. Pruitt, 470 F. Supp 33, 37-38 (S.D Tex. 1978).
O f these, only West and Key M aps involved decisions, necessary to the judgment, on the ments o f the fair use
question; and only Key M aps involved a government entity making and distnbuiing multiple copies o f copynghted
materials for internal government use
   9 See College Entrance Examination B d , 889 F Supp at 564-75. In that case, the distnct court, on a motion
for preliminary injunction, found a likelihood o f success on plaintiffs’ infringement claim against a state government.
That case did not involve government copying for internal government use. See supra note 2. Instead, the case
involved a challenge to a state statute that required testing organizations to disclose copies of their copynghted,
confidential tests and related materials, and that further provided that such materials, once disclosed, would become
public records.
   There also are at least two decisions in which courts have found that a distnbution of multiple copies o f copyrighted
materials to students in a public school was not a fair use. See Marcus v Rowley, 695 F.2d 1171, 1174—79 (9th
                                                                                                               Continued


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                             Opinions o f the Office o f Legal Counsel in Volume 23


there is only a small handful of reported cases involving whether and under what
circumstances photocopying is a fair use.10
   The sole reported decision (apart from the classroom context) concerning
whether government photocopying is a fair use is Williams & Wilkins Co. v.
United States, 487 F.2d 1345 (Ct. Cl. 1973), a j f d by an equally divided Court,
420 U.S. 376 (1975). The plaintiff in that case challenged certain practices of
the National Institutes of Health ( “ NIH” ) and the National Library of Medicine
(“ N LM ” ). The NIH library ran a photocopying service for the benefit of its
research staff: On request, researchers could obtain a photocopy of an article from
any of the journals in the library’s collection, typically to assist them in their
on-going projects or for background reading. As a general matter, NIH would
agree to provide a requester only one copy of a particular article, only one article
per journal issue, and no article o f over 50 pages. In 1970, the library filled 85,744
requests for photocopies of journal articles (including journals published by W il­
liams & Wilkins), constituting about 930,000 pages. See 487 F.2d at 1348. NLM
is a repository of much of the w orld’s medical literature, in essence a “ librarians’
library.” Id. Upon request, NLM would provide photocopies of journal articles,
free of charge, to other libraries and like research- and education-oriented institu­
tions, both public and private (including commercial organizations, such as drug
companies). NLM provided only one photocopy of a particular article per request,
and would not honor a request for photocopying of an entire journal issue. In
 1968, a representative year, NLM filled about 120,000 requests by photocopying
journal articles. NLM made no effort to ascertain the ultimate use to which the

Cir. 1983), Wihtol v. Crow, 309 F.2d 777, 780-81 (8lh C ir 1962) Such classroom cases may be instructive on
the general matter o f fair use in the context o f reproduction for nonprofit purposes However, such cases typically
involve archival collection o r distribution o f multiple copies o f copynghted materials that were, in the first instance,
prepared and marketed primarily for use in the very same classroom setting. See, e.g., Marcus, 695 F.2d at 1175
W e assume that the government photocopying practices about which you are concerned will rarely, if ever, involve
federal government duplication for educational use m a classroom, or practices that fairly can be said to be analogous
to those at issue in Marcus O f course, insofar as certain federal government practices are akin to those at issue
in the classroom cases, then the courts’ reasoning in decisions such as Marcus would be germane to the fair use
analysis (The holding in Wihtol is of less practical value, since the court in that case merely held that “ [w]hatever
may be the breadth o f the doctnne of ‘fair use,’ it is not conceivable to us that the copying of all, or substantially
all, o f a copynghted song can be held to be a ‘fair use’ merely because the infnnger had no intent to infringe ”
309 F.2d at 780.) Furthermore, with respect to such cases it may be mstrucuve to look to the legislative history
o f the 1976 Act, m which the House Committee on the Judiciary reproduced (i) an “ Agreement on Guidelines
for C lassroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals,” which
had been drafted by representatives of author/publisher and educational organizations, and (n) a similar, more special­
ized set o f “ Guidelines for Educational Uses o f M usic,” which had been drafted by representatives of music pub­
lishing and educational organizations See House Report at 66-72, reprinted in 1976 U.S.C.C.A.N at 5680-86. The
H ouse Committee expressed its belief that “ the guidelines are a reasonable interpretation of the minimum standards
o f fair use” in the classroom context, id. at 72, reprinted in 1976 U.S C C A N at 5686, and the House and Senate
Conferees “ accept[ed]” the guidelines “ as part o f their understanding of fair use,” H R Rep No. 94-1733, at
70 (1976), reprinted in 1976 U.S.C.C A N . 5810, 5811. (On the question of the legal effect, if any, of these guidelmes,
see, e.g., Princeton Univ. Press v M ichigan Document Servs., Inc., 99 F 3 d 1381, 1390-91 (6th Cir 1996) (en
banc), cert, denied, 520 U S 1156 (1997); id at 1410-12 (Ryan , J., dissenting); 4 Melville B Nimmer & David
 Nimmer, Nim m er on Copynght § 13 05[E][3][a), at 13-241-42 (1998))
    l0 See, e g , Princeton Univ. Press, 99 F.3d 1381; American Geophysical Union v Texaco, I n c , 60 F.3d 913
(2d C ir 1994), cert, dismissed, 516 U .S. 1005 (1995); D uffy v. Penguin Books USA Inc., 4 F. Supp 2d 268, 27 4 -
75 (S D N.Y 1998), Television Digest, Inc. v United States Telephone A ss'n, 841 F. Supp. 5, 9-11 (D.D.C 1993);
Basic Books, Inc v K inko's Graphics Corp., 758 F Supp 1522 ( S D N Y 1991)


                                                            92
     Whether Government Reproduction o f Copyrighted Materials is a Noninfringing ' 'Fair Use ’


copied articles were put. Although NLM did provide some photocopies to institu­
tions outside the government, NLM declined to provide to non-government
libraries copies of articles published within the preceding five years in any of
104 journals included on a so-called “ widely-available list.” Id. at 1348-49.
   The Court of Claims, in a 4-to-3 decision, held that the NIH and NLM
photocopying practices were noninfringing because such practices were fair uses.
The majority discussed at length eight separate “ considerations which merge to
that conclusion,” id. at 1353:

        (i) NIH and NLM are nonprofit institutions, see id. at 1354;

        (ii) the libraries’ photocopying policies were “ within appropriate
        confines” — in particular, the libraries did not sell the copies, dis­
        tribute them broadly, or, with slight exceptions by NLM, distribute
        the copies to nongovernmental entities, id. at 1354-55;

        (iii) such library photocopying practices had long been carried out
        across the nation “ with apparent general acceptance,” id. at 1355-
        56;

        (iv) medical science would be seriously hurt by a finding that such
        library photocopying was infringing, see id. at 1356-57;

        (v) the plaintiff had failed to prove economic detriment as a result
        of the libraries’ practices, see id. at 1357-59;

        (vi) the statutory language and history were singularly unclear on
        the question, and it would be “ less dangerous” to rule in favor
        of the libraries until Congress acted to clarify the fair use question,
        id. at 1359-61;

        (vii) contemporaneous legislative history of proposed legislation
        (that had not yet resulted in the 1976 amendment of the copyright
        law) “ indicate[dj the correctness of our general approach,” id. at
        1361; and

       (viii) the law in many foreign countries was that such practices
       were not infringing, see id. at 1361-62.

The Court of Claims in its decision also urged Congress to enact legislation to
resolve the difficult fair use questions raised by the increasingly prevalent practice
of photocopying — questions that were, in the court’s words, “ preeminently a
problem for Congress.” 487 F.2d at 1360; see also id. at 1353, 1363 (“ Hopefully,

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                            Opinions o f the Office o f Legal Counsel in Volume 23


the result in the present case will be but a ‘holding operation’ in the interim period
before Congress enacts its preferred solution.” ).
   Williams & Wilkins appealed to the Supreme Court. In that Court, the Depart­
ment of Justice argued that the Court of Claims correctly analyzed the fair use
question, and that the Court should affirm the judgment in favor of the United
States. See Brief for the United States, Williams & Wilkins Co. v. United States,
420 U.S. 376 (1975) (No. 73-1279); Paul Goldstein, Copyright’s Highway 113—
26 (1994) (describing Supreme Court proceedings). An equally divided Court,
without opinion, affirmed the low er court judgment. See 420 U.S. 376 (1975).
   Congress was well aware of the dispute in Williams & Wilkins and of the Court
o f Claims’ plea that Congress enact legislation to resolve the difficult fair use
questions raised in that case. See, e.g., Senate Report at 71. And, in the 1976
Act, Congress did take three steps with respect to the matter of photocopying.
First, in section 106 of the Act, Congress expressly affirmed that the rights of
a copyright owner include the rights “ to reproduce the copyrighted work in
copies” and to “ authorize” such reproduction. 17 U.S.C. §106(1) (1994).11
Second, the text of section 107 of the Act — in which Congress for the first time
formally codified the fair use doctrine — expressly provides that “ reproduction
in copies . . . for purposes such as . . . news reporting, teaching . . ., scholar­
ship, or research,” can be “ the fair use of a copyrighted work.” Finally, in section
 108 of the Act, Congress provided that certain forms of library and archival
photocopying are not infringing, see 17 U.S.C.A. § 108 (West 1996 & Supp.
 1999), thereby creating a discrete carve-out, or safe harbor, that does not “ in
any way affect[] the right o f fair use as provided by section 107,” 17 U.S.C.
§ 108(f)(4) (1994). However, Congress did not otherwise resolve the fair use ques­
tions raised in Williams <£ Wilkins, and, in particular, did not identify the cir­
cumstances under which photocopying — and government photocopying in par­
ticular— would, or would not, constitute fair use under section 107 of the 1976
A ct.12 Instead, as explained above, Congress simply enacted 17 U.S.C. §107 in
   11 As the court in Williams & Wilkins indicated, see 487 F.2d at 1350-51, 1359, there had been some question
whether, under the then-existing copynght laws, the exclusive nghts of the copyright owner included the right to
control the copying o f books and penodicals for personal use. See also B nef for the United States at 16 n26,
Williams & Wilkins Co. v. United States, 420 U.S 376 (1975) (No 73-1279) (discussing this question).
    12 In a memorandum attached to your letter, counsel for the CCC argue that section 108 of the 1976 Act “ expressly
proscnbes the copymg at issue in W illiams & Wilkins,” and that congressional enactment of section 108 “ signalled
C ongressional disapproval o f [Williams & Wilkins] on fair use grounds, and instead indicated that the photocopying
activities in question should be covered by a separate statutory provision, namely Section 108.” Memorandum of
W eil, Gotshal & M anges LLP, Re* Government Photocopying as Copyright Infringement at 22-23 (July 30, 1997)
(“ Weil, Gotshal M em o” ). See also U nited States Information Infrastructure Task Force, Intellectual Property and
the National Information Infrastructure: The Report o f the Working Group on Intellectual Property Rights, at 82
n.262 (Sept. 1995) ( “ W hite Paper” ) ( “ precedential value o f Williams & Wilkins       may be reduced” because
of, inter aha, “ Section 108’s proscnption on most ‘systematic’ photocopying” ), quoted with approval in Weil,
Gotshal M emo at 22; William F. Patry, The Fair Use Privilege in Copyright Law 210 (2d ed 1995) ( “ In 1976,
Congress by subjecting the activity before the Court o f Claims to a statutory exemption m Section 108 of the Copy­
nght Act, available only to hbranes and archives qualifying under Section 108(a) and then only in the enumerated
instances described in Sections 108(d), 108(e), and further subject to the conditions of Section 108(g), indicated
its disapproval o f the Court of Claims’ fair use holding.” ).


                                                         94
       Whether Government Reproduction o f Copyrighted Materials is a Noninfringing ' ‘Fair Use ’


order to “ codify the common-law doctrine.” H arper & Row , 471 U.S. at 549.
Accordingly, the Court of Claims decision in Williams & Wilkins remains binding
precedent in the Federal Circuit, where infringement claims against the federal
government must be brought.13
   The continued vitality of Williams & Wilkins in the Federal Circuit does not,
however, mean that all federal government photocopying is a fair use. The Wil­
liams & Wilkins court, after discussing at length the eight different considerations,
or “ elements,” that contributed to its decision, 487 F.2d at 1353-62, emphasized
that its holding (that the library copying practices at issue were noninfringing)

     This is incorrect, because section 108 of the 1976 Act does not narrow the protection for fair use provided by
 the common-law doctnne codified in section 107 Section 108(a) o f the Act, 17 U.S.C A § 108(a) (West 1996 &
 Supp 1999), provides that, under certain conditions, it is “ not an infringement of copynght for a library or archives
      . to reproduce no more than one copy or phonorecord o f a work, or to distribute such copy or phonorecord,”
  “ [notw ithstanding the provisions o f section 106.” Section 108(g)(2), in turn, states that “ (t]he rights of reproduction
 and distnbution under this section . . . do not extend” to certain cases involving the “ systematic reproduction
 or distribution of single or multiple copies.” (Emphasis added) Section 108(g)(2) does not “ expressly proscnbe[]”
 the copying practices at issue in Williams & Wilkins — indeed, nothing in section 108 “ proscnbes” any practice
 at all. Nor is there anything in section 108 suggesting that “ systematic” reproduction is “ lawful only via the [section
 108(g)(2)] proviso, [and] could not be a fair use ” United States Copynght Office, Report o f the Register o f Copy­
 rights' Library Reproduction o f Copyrighted Works (17 U.S.C. 108), at 98 (1983) ( “ 1983 Register Report” ) At
 most, section 108(g)(2) merely provides that the “ n ghts” to copy and distribute that are provided “ under” section
  108 “ do not extend to” the “ systematic” practices descnbed in section 108(g)(2) To be sure, “ section 108 author­
 izes certain photocopying practices which may not qualify as a fair use,” House Report at 74 (emphasis added),
 reprinted in 1976 U.S C.C.A N. at 5688, see also Senate Report at 67 However, the statute does not provide, or
 even suggest, that the circumstances under which copying is noninfringing under section 108(a) are those “ lhat
 would typically not amount to fair use [under section 107],” White Paper at 84-85 (emphasis added), nor that
 “ Section 108 was enacted to make lawful some types o f copying which would otherwise be infringements o f copy­
 right, fair use notwithstanding,” 1983 Register Report at 96 (emphasis added) Indeed, by its express terms, nothing
 in section 108 “ in any way affects the nght of fair use as provided by section 107.” 17 U.S.C § 108(f)(4) (1994);
see uiso House Report at 74 ( “ No provision of section 108 is intended to lake away any nghts existing under
 the fair use doctrine.” ), reprinted in 1976 U .S C C .A N at 5687-88, Senate Report at 67 (same); 122 Cong. Rec.
 3836 (1976) (statement o f Sen Magnuson) ( “ the Judiciary Committee clearly sel out in iheir report                that the
 fair use doctrine not only applies to reproduction practices of libraries, but that in no way did they intend section
 108 to be a limitation upon the fair use doctnne” ).
    Accordingly, whether section 108 renders certain copying practices “ not an infringement” does not affect w hether
such practices are noninfringing fair uses under section 107 See Texaco, 802 F. Supp. at 28 & n 26 (emphasizing
that “ Section 108 is a separate special statutory exemption governed by an entirely different set of standards [than
under section 107],” and rejecting the argument “ that the understanding o f Section 107 should be influenced by
what is permitted under Section 108” ); accord 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright
§ 13.05[E][2], at 13-240 (1998) A certain copying practice can be “ noninfnnging” under section 107, under section
 108, under both provisions, or under neither. In ils 1983 Report, the Register of Copyrights suggested that such
a construction o f the statute, in which practices permissible under section 108 might also be permissible under section
 107, would “ render §108 superfluous.” 1983 Register Report at 96 n.4 That is not the case, however. As the
Register noted, “ the library community sought § 108 to permit copying that had not been spelled out in the proposed
fair use provision ” Id. (emphasis added). Section 108 identifies (“ spell[s] out” ) as noninfnnging a category of
library photocopying that may, or may not, constitute fair use Section 108 thus fairly can be viewed as a very
valuable— and not superfluous— safe harbor: If a certain library practice is noninfringing under the specific and
detailed provisions of section 108(a) (as confined by section 108(g)(2)), a library need not be concerned about how
that particular photocopying practice would fare under section 107’s more complex and indeterminate fair use stand­
ards.
    13 Section 1498(b) o f title 28 provides that “ the exclusive action which may be brought for mfnngement [by
the federal government] shall be an action by the copynght owner against the United States in the Court of Federal
Claims ” 28 U.S.C § 1498(b) (Supp. Ill 1997). Decisions o f lhat court are appealable to the United States Court
o f Appeals for the Federal Circuit, see 28 U S C § 1295(a)(3) (1994), which in turn considers itself bound by
decisions (such as Williams & Wilkins) that the former Court of Claims issued pnor to October 1982. See South
Corp v. United States, 690 F 2d 1368, 1370 & n.2 (Fed Cir 1982); see also, e.g., Gargoyles, Inc. v. United States,
113 F 3d 1572, 1576 (Fed C ir 1997).


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was based upon all of the elements present in that case, and that its decision
would not necessarily resolve different cases “ with other significant variables,”
id. at 1362. The court expressly noted that it was not determining whether any
of the particular elements in the Williams & Wilkins case would be sufficient
for a finding of fair use, nor whether all of the relevant elements cumulatively
were “ essential” to the finding o f fair use: It sufficed for the court simply to
decide that “ at least when all co-exist in combination a ‘fair use’ is made out.”
Id.\ see also id. ( “ we feel a strong need to obey the canon of judicial parsimony,
being stingy rather than expansive in the reach of our holding” ).14 Implicitly,
then, the decision in Williams & Wilkins itself suggests that there may be some
circumstances under which government photocopying might be infringing. See
also Brief for the United States at 14, Williams. & Wilkins Co. v. United States,
420 U.S. 376 (1975) (No. 73-1279) (“ The doctrine is applied as its rationale
dictates in each case, and has no sharp edges.” ).15
   A ‘ ‘per se’ ’ rule also would be inconsistent with the approach that the Supreme
Court subsequently has taken in its decisions involving section 107 of the Copy­
right Act. The Court repeatedly has emphasized that the task of determining
whether a particular use is fair “ is not to be simplified with bright-line rules,
for the statute, like the doctrine it recognizes, calls for case-by-case analysis.”
Cam pbell, 510 U.S. at 577; accord id. at 584 (Congress “ ‘eschewed a rigid,
bright-line approach to fair use,’ ” in favor of “ a ‘sensitive balancing of
interests.’ ” ) (quoting Sony Corp. o f America v. Universal City Studios, Inc., 464
U.S. 417, 449 n.31, 455 n.40 (1984)); H arper & Row, A ll U.S. at 552 (“ fair
use analysis must always be tailored to the individual case” ).

   III. D eterm ining Whether a Particular Government Photocopying Practice is a
                                                       Fair Use

  Our conclusion that government photocopying is not invariably noninfringing
does not, of course, answer the question whether government agencies should
enter into licensing agreements for photocopying, and if so, what the terms and

   14 M ore recent fair use decisions involving photocopying similarly have been confined narrowly to the particular
copying practices in dispute See, e g , Texaco, 60 F.3d at 931 ( “ Our ruling is confined to the institutional, systematic,
archival multiplication o f copies revealed by the record— the precise copying that the parties stipulated should be
the basis for . . .d e c is io n . ”)
   15 As we discuss supra p. 88, we have no reason to believe that any agency of the executive branch has argued,
or advised, that government copying is “ per se a fair use.” In this respect, it is notable in particular lhat, in its
Supreme Court brief in Williams <6 Wilkins, the United States cited a House Report as “ indicating]                  . that
photocopying by the government may in som e circumstances constitute copynght infringement ” B nef for the United
States at 15 n 24, Williams & Wilkins Co. v. United States, 420 U.S. 376 (1975) (No 73-1279) (citing H.R. Rep.
No 86-624, at 5 (1959)) In the cited House Report, a House Committee indicated that the federal government
could infringe a copyright when it “ publishes” an article without permission See supra note 6. The Committee
did not indicate what it meant by “ publishes,” and did not expressly mention photocopying At the page of the
H ouse Report (page 5) that the Solicitor General cited, however, a letter wntten by the Department of Commerce
assumes that government photocopying could be infringing. See also id. at 8 (reflecting a similar assumption conveyed
by the Librarian o f Congress) There is no suggestion in the House Report that the House Committee disagreed
w ith this assumption.


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       Whether Government Reproduction o f Copyrighted Materials is a Noninfringing “Fair Use ’


conditions of such agreements should be. In answering that question, there is an
 inescapable tension. On the one hand, because of the highly fact-bound nature
of the fair use inquiry, it is difficult to ascertain in advance which governmental
practices will, or will not, be fair uses: There is an “ endless variety of situations
and combinations of circumstances that can rise in particular cases.” House Report
at 66, reprinted in 1976 U.S.C.C.A.N. at 5680. Such uncertainty, when viewed
in isolation, might weigh in favor of entering into relatively broad licensing agree­
ments, so as to ensure that an agency’s photocopying will never be infringing.
On the other hand, and in addition to the desire to avoid unnecessary costs, there
is an important legal consideration that counsels against entering into unnecessary
licensing agreements and in favor of limiting such agreements to encompass only
those photocopying practices that are infringing — namely, the concern that gen­
eral custom and usage may be integral to the fair use analysis.16 Indeed, at least
one court has opined, in particular, that whether it is “ fair,” under the copyright
law, to engage in a photocopying practice without compensation may depend,
in part, on whether similarly situated entities customarily agree to pay a fee to
the copyright holders.17 We have no occasion here to consider whether that court
was correct in this regard; but it is possible that other courts may follow suit.
Accordingly, if government agencies routinely agree to pay licensing fees to
engage in photocopying practices that were fair uses at the time, there is a chance
some courts may conclude that a growing or longstanding custom o f paying such
fees weighs against a finding that such photocopying practices are fair uses when
unlicensed. Thus, an agency that decides to negotiate a photocopying license
should seek to limit the scope of the licensing agreement so as not to cover those
photocopying practices that the agency, in good faith, concludes are not infringing.
   In the end, each agency must do its best to evaluate whether any o f its
photocopying practices are infringing, and, if so, to obtain proper authorization
for such uses of copyrighted materials. Although, as we have explained, there
may be many government photocopying practices that are fair uses (or that are,
for other reasons, not infringing), under some circumstances government
photocopying may not be a fair use. In evaluating whether their practices are
infringing, agencies should be guided by Williams & Wilkins, which, as noted
above, is still binding precedent in the Federal Circuit. However, as explained
above, the holding in Williams & Wilkins itself was dependent on the particular
facts of that case, and the 8150 calculus may be different with respect to govern­

   16 See, e g , Williams & Wilkins * 487 F 2 d at 1355-56, see also Harper & Row, 471 U S . at 550 (the fair use
doctnne traditionally “ was predicated on the author’s implied consent to ‘reasonable and customary’ use when he
released his work for public consum ption” )
   17 See Princeton Univ. Press, 99 F.3d at 1387 (consideration of the potential licensing revenues for photocopying
in a fair use analysis is “ especially” appropnate where the copynght holder not only has an interest in exploiting
the licensing market, but also “ has actually succeeded in doing so” ) But c f Campbell, 510 U.S. at 585 n.18 (defend­
ants’ request for permission to use copyrighted song in a parody does “ not necessarily suggest that they believed
their version was not fair use; the offer may simply have been made in a good-faith effort to avoid this litiganon” ).


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                           Opinions o f the Office o f Legal Counsel in Volume 23


ment photocopying practices that diverge in material ways from the NIH and NLM
practices at issue in Williams & Wilkins .18
   Moreover, agencies should be aware that, in two important recent cases in other
circuits, sharply divided courts o f appeals have held that certain commercial
photocopying practices were not fair uses. In Princeton Univ. Press v. Michigan
Document Servs., Inc., 99 F.3d 1381 (6th Cir. 1996) (en banc), cert, denied, 520
U.S. 1156 (1997), the United States Court of Appeals for the Sixth Circuit held
that a commercial copyshop had engaged in willful infringement by reproducing
substantial segments of copyrighted works of scholarship and binding such repro­
ductions into coursepacks that the copyshop then sold to students. In American
Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994), cert, dismissed,
516 U.S. 1005 (1995), the United States Court of Appeals for the Second Circuit
held that Texaco’s systematic photocopying o f scientific journal articles for its
researchers’ archival use was infringing. Even if the United States Court of
Appeals for the Federal Circuit were to adopt the reasoning of these decisions,
the rationale of those decisions would not apply with full force in the context
of government photocopying, since the decisions each rested, in part, on the fact
that each of the defendants “ acquire[d] conspicuous financial rewards from its
use of the copyrighted material.” Id. at 922; see also Princeton Univ. Press, 99
F.3d at 1386, 1389. Moreover, as the Texaco court noted, “ courts are more willing
to find a secondary use [i.e., the use that is made of the photocopies] fair when
it produces a value that benefits the broader public interest.” 60 F.3d at 922.
Nevertheless, the ongoing debate among the judges in cases such as these (and
in W illiams & Wilkins) demonstrates that the boundaries of fair use in the
photocopying context are uncertain, highly contested, and especially dependent
upon the particulars of a given case. And, while in some cases it might be fairly
easy for an agency to determine that a government practice is noninfringing,19
usually that will not be the case: Whether a particular government photocopying
practice is a fair use often will depend upon a “ ‘sensitive balancing of

   18 M oreover, the subsequent advent of the CCC, and the possibility of reasonable licensing agreements with that
organization, may affect at least one of the factors that led the Court of Claims to rule against the copyright holder
in Williams & Wilkins. The Court of C laim s reasoned that medical science would be seriously hurt by a finding
that the NIH and NLM photocopying was infringing, since the result of such a holding could have been that libraries
w ould have to cease their photocopying practices. See 487 F.2d at 1356-57 But insofar as such libraries now could
avoid a finding o f fair use by agreeing to pay a reasonable and affordable licensing fee — that is, a fee that would
not materially deter the actual making and use o f valuable photocopies — the harm that the Williams & Wilkins
court foresaw could be diminished See Texaco, 60 F 3d at 924 (“ To the extent the copying practice was ‘reasonable’
in 1973 [when Williams & Wilkins was decided], it has ceased to be ‘reasonable’ as the reasons that justified it
before [photocopying licensing] have ceased to exist ’) (quoting the district court opinion, 802 F. Supp. at 25)
But see id at 934 (Jacobs, J , dissenting).
   19 For an example outside the context o f photocopying, see, e.g., House Report at 73 ( “ The Committee has consid­
ered the question o f publication, in Congressional hearings and documents, of copynghted material. Where the length
of the work or excerpt published and the number of copies authonzed are reasonable under the circumstances, and
the work itself is directly relevant to a matter o f legitimate legislative concern, the Committee believes that the
publication would constitute fair use.” ), reprinted in 1976 U .S C.C A.N at 5687


                                                         98
       Whether Government Reproduction o f Copyrighted Materials is a Noninfringing "Fair U se’


interests.’ ” Cam pbell, 510 U.S. at 584 (quoting Sony Corp. o f America v. Uni­
versal City Studios, Inc., 464 U.S. 417, 455 n.40 (1984)).
   In the text of section 107 of the Copyright Act itself, Congress has instructed
that, in determining whether the use made of a work in any particular case is
a fair use, ‘‘the factors to be considered shall include’’ the following:

           (1) the purpose and character 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 substantially of the portion 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.

These four statutory factors should not be treated in isolation, one from another.
Campbell , 510 U.S. at 578. Nor are those factors exhaustive. See H arper & Row,
471 U.S. at 560; H.R. Rep. No. 102-836, at 9-10 (1992), reprinted in 1992
U.S.C.C.A.N. 2553, 2561-62.20 Most importantly, it is critical that the statutory
factors, as well as all other pertinent factors and considerations, “ be explored,
and the results weighed together, in light o f the purposes o f copyright." Campbell,
510 U.S. at 578 (emphasis added); see also id. at 581 (the fair use inquiry requires
that any particular use of copyrighted material “ be judged, case by case, in light
of the ends of the copyright law” ).21 Accordingly, before turning to particular
factors and considerations that agencies should consider in the context of govern­
ment photocopying, it is important once again to identify the “ purposes of copy­
right.”
   Copyright law “ ultimately serves the purpose of enriching the general public
through access to creative works.” Fogerty v. Fantasy, Inc., 510 U.S. 517-18,
527 (1994); see also H arper <£ Row, 471 U.S. at 545 (“ copyright is intended
to increase and not to impede the harvest of knowledge” ). Thus, in determining
whether a particular photocopying practice is a fair use, the ultimate question to
be answered is whether permitting the government to continue to engage in the
practice without paying a licensing fee would “ serve[] the copyright objective

   20 Section 107 expressly provides that “ the factors to be considered shall include” the four enumerated factors
(emphasis added), and the 1976 Act elsewhere provides that the term “ including” is “ illustrative and not limitative,”
17 U S.C. § 101 (1994)
   21 See also 4 Melville B. Nimmer & David Nimmer, N immer on Copyright § 13 05[A][5], at 13-195 (1998) (“ the
protean factors enumerated in Section 107, standing by themselves, lack the concreteness to provide definite answers
to difficult cases” ); Lloyd L Weinreb, Fair Use, 61 Fordham L. Rev 1291, 1306 (1999) ( “ fair use depends on
a calculus of incommensurables” ).


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                            Opinions o f the Office o f Legal Counsel in Volume 23


of stimulating productive thought and public instruction without excessively
diminishing the incentives for creativity.” Pierre N. Leval, Toward a Fair Use
Standard, 103 Harv. L. Rev. 1105, 1110 (1990), cited with approval in Campbell,
510 U.S. at 5 7 8 .2 2
   Moreover, although the point is less clearly established, the fair use doctrine
may be understood to contemplate permitting uses that serve “ not only . . . the
purpose of copyright but also . . . other socially recognized purposes.” Lloyd
L. Weinreb, F a ir’s Fair: A Comment on the Fair Use Doctrine, 103 Harv. L.
Rev. 1137, 1144 (1990). For example, the Supreme Court in the Sony case held
that consumer videotaping of television broadcasts for purposes of “ time-shifting”
was a fair use, in part because such a practice “ yields societal benefits.” 464
U.S. at 454. Elaborating on this point, the Court cited the example of using a
videotaping machine “ to enable a [hospital] patient to see programs he would
otherwise miss,” which, as the Court explained, “ has no productive purpose other
than contributing to the psychological well-being of the patient.” Id. at 455 n.40.
O f greater pertinence to the subject matter at hand — namely, government
copying — the Court further suggested that “ a legislator who copies for the sake
o f broadening her understanding o f what her constituents are watching; or a con­
stituent who copies a news program to help make a decision on how to vote,”
are examples of uses that could be “ fair.” Id.
   Thus, it fairly can be argued that, as a general matter, “ courts are more willing
to find a secondary use fair when it produces a value that benefits the broader
public interest,” Texaco, 60 F.3d at 922, in contrast with a use that “ can fairly
be characterized as a form o f ‘commercial exploitation,’ i.e., when the copier
directly and exclusively acquires conspicuous financial rewards from its use of
the copyrighted material,” id .23 For instance, the federal government typically
photocopies materials in order to facilitate some other, “ secondary” use of such
materials, and such secondary use generally is aimed at providing a public benefit,
or at serving a “ broad[] public purpose.” Id. Insofar as an agency’s photocopying
is intended to facilitate such public purposes, that should weigh in favor of a
finding of fair use.24 See a lso infra p. 101 (discussing whether purpose of the
photocopying is to enhance profitmaking).

   22 See also, e.g., Atari Games Corp. v Nintendo o f Am., Inc., 975 F 2 d 832, 843 (Fed. Cir 1992) (where, m
“ reverse engineering” o f computer softw are, “ intermediate” copying permitted the user to study that software and
thereafter design new video game program s, the resultant “ growth in creative expression” weighed in favor of
finding that the copying was a fair use).
   23See also, e g ., N im m er, § 13.05[B][4], at 13-205 ( “ The public interest is also a factor that continually informs
the fair use analysis ” ) (footnote omitted).
   24 See, e.g., Williams & Wilkins, 487 F 2 d at 1353 ( “ W e cannot believe, for instance, that a judge who makes
and gives to a colleague a photocopy o f a law review article, m one o f the smaller or less available journals, which
bears directly on a problem both ju d g es are then considering in a case before them is infringing the copynght,
rather than making ‘fair use’ of his issue o f that journal.” ), Key Maps, I n c , 470 F. Supp at 38 (county fire marshal’s
distribution o f copies o f copynghted m aps to 50 fire departments, law enforcement agencies, and civil defense units
in the county was “ legitimate, fair, and reasonable,” since the copies were disseminated “ solely for internal purposes
which related to a discemable public interest,” namely, “ the coordination of fire prevention activities in the unincor­
porated areas o f [the] county” ), see also House Report at 65 (noting that, under section 107 of the 1976 Act,


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       Whether Government Reproduction o f Copyrighted Materials is a Noninfringing “Fair Use'


   In order to decide whether a particular government use of copyrighted materials
would, on the whole, “ promote the Progress of Science and useful Arts,” it is
necessary to take into account an “ ample view of the universe of relevant evi­
dence.” Campbell, 510 U.S. at 575, 584. Similarly, in order to determine whether
any other benefits to the broader public interest would sufficiently outweigh the
costs of any reduction in the incentives for creativity, it is necessary to engage
in a comprehensive evaluation of all pertinent factors. We think that, in the par­
ticular context of government photocopying, the following specific considerations
(each of which bears on the four enumerated statutory factors) might have a
significant impact on the fair use calculus:
   (a)   One important consideration that courts typically address under the first
statutory factor (“ the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational purposes” ) is whether
the use in question is undertaken in order to increase the user’s profits. In most,
if not all, cases, the purposes for which the government makes photocopies do
not include profitmaking or commercial exploitation. Although the nonprofit
nature of the government’s use of photocopies would not be dispositive, see
Campbell, 510 U.S. at 584, it certainly would be “ one element,” id., germane
to the fair use question.25 The commercial/nonprofit distinction may be especially
significant where, as in most cases of photocopying, the secondary use is not
“ transformative” — i.e., where the copyrighted material is merely copied in its
original form and is not transformed into another valuable product. See id. at 579
(the more transformative the use, the less significant to the analysis will be the
question of commercialism).26

 “ courts might regard as fair” the “ reproduction o f a [copynghted] work in legislative or judicial proceedings or
reports” ), reprinted in 1976 U.S C.C.A N. at 5678-79; Senate Report at 61-62 (same). Harper & Row, 471 U.S.
at 584-85 n.8 (Brennan, J., dissenting) (example of a judicial opinion quoting extensively from copynghted materials),
Sinai, 1992 WL 470699, at *3 (state Bureau o f Automotive Repairs used matenals for a “ public purpose” when
it disseminated an auto emissions chart to field offices throughout the state so that those offices could assist smog
check stations and consumers in complying with the state’s emission laws).
    25 See also Harper & Row, 471 U.S at 562, Texaco, 60 F 3d at 921-22
    26 Counsel for the CCC, citing Campbell, suggest that nontransformative uses “ are unlikely to be regarded as
fair ones.” Weil, Gotshal Memo at 8 However, the Court in Campbell simply indicated that, because “ the goal
of copynght, to promote science and the arts, is generally furthered by the creation of transformative works, . . .
(sjuch works thus lie at the heart o f the fair use doctnne’s guarantee o f breathing space within the confines of
copyright, . . . and the more transformative the new work, the less will be the significance of other factors, like
commercialism, that may weigh against a finding o f fair u s e ” 510 U.S. at 579. The Court expressly cautioned
that such transformative use “ is not absolutely necessary for a finding o f fair use,” id., and in support of that
proposition, the Court cited (i) a case (Sony Corp o f Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984))
in which the Court found a nontransformative use to be noninfringing, and (n) the express indication in section
 107 of the 1976 Act that reproduction o f multiple copies for classroom distnbution can be a fair use. Id at 579
& n .ll, see also id. at 584—85 (eschewing fair use analysis that relies on a “ hard evidentiary presumption,” in
light of the need for a “ sensitive balancing” o f interests). It is important to note, as well, that the very first example
that section 107 provides of a use that can be “ fair” is “ reproduction in copies or phonorecords,” even though
such “ reproduction” in most cases would not be “ transformative” in the sense the Court described in Campbell
See also House Report at 66 ( “ the reference [m 17 U.S C. §107] to fair use ‘by reproduction in copies or
phonorecords or by any other m eans’ is mainly intended to make clear that the doctrine has as much application
to photocopying and taping as to older forms o f use” ), reprinted in 1976 U.S C C A.N. at 5679.


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                           Opinions o f the Office o f Legal Counsel in Volume 23


   (b) Photocopying more likely will be deemed “ fair” where the photocopies
are disseminated to a discrete and limited audience within the government. To
the extent that copies are sold, or distributed broadly, especially outside the
government, that likely would weigh against a finding of fair use. See Williams
& Wilkins, 487 F.2d at 1353 & n.12, 1354—55. (This consideration likely would
be germane to the first ( “ purpose and character of the use” ) and fourth ( “ effect
of the use upon the potential market for or value of the copyrighted work” ) statu­
tory factors.)
   (c) Copying that is done “ spontaneously],” for the purpose of facilitating an
immediate and discrete objective, is more likely to be a fair use than systematic
“ archival” copying of extensive materials for possible future use. See Texaco,
60 F.3d at 919-20. (This consideration, too, would bear on the first and fourth
statutory factors.) And, as the third statutory factor expressly indicates, “ the
amount and substantiality of the portion used in relation to the copyrighted work
as a whole’’ also is relevant to determining whether a use is fair.
   (d) Copying materials for the purpose of collecting or studying certain facts
or ideas contained therein — as opposed to the work’s original expression —
 increases the likelihood that the reproduction will be a fair use. In Feist Publ ’ns,
Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), the Court emphasized that,
as a matter of constitutional law, “ facts are not copyrightable.” Id. at 344. All
facts — scientific, historical, biographical, and news of the day — ‘‘ ‘may not be
copyrighted and are part of the public domain available to every person.’ ” Id.
at 348 (citation omitted); accord H arper & Row, 471 U.S. at 556 (“ No author
may copyright his ideas or the facts he narrates.” ). Furthermore, 17 U.S.C.
§ 102(b) (1994) provides that “ [i]n no case does copyright protection for an
original work of authorship extend to any idea, procedure, process, system, method
of operation, concept, principle, or discovery.” The exclusion of facts and ideas
from copyright protection, like the fair use doctrine, serves the goal of promoting
the progress of science and useful arts. See Campbell, 510 U.S. at 575 n.5.27
Accordingly, copyright protection for a work containing facts or ideas “ is limited
to those aspects of the work — termed ‘expression’ — that display the stamp of
the author’s originality.” H arper & Row, 471 U.S. at 547. Indeed, as the Court
reemphasized in Campbell, “ ‘facts contained in existing works may be freely
copied.’ ” 510 U.S. at 575 n.5 (quoting Feist, 499 U.S. at 359).28 Thus, where
the government’s copying is limited to the bare facts contained in particular mate­

   27 Moreover, the Copyright Act’s distinction between copyrightable expression and uncopynghtable facts and ideas
is necessary in order to reconcile the restrictions o f the Act with the First Amendment. See Harper & Row, 471
U.S. at 556, 560, see also New York Tim es Co. v. United States, 403 U.S. 713, 726 n.* (1971) (Brennan, J., concur­
ring), cited with approval in Harper &. Row, 471 U.S. at 556
   28 Thus, for exam ple, the Court in H arper & Row implied that although direct quotations from President Ford’s
biography were subject to copynght protection, the histoncal facts contained in that biography were not entitled
to such protection and could be freely copied. See 471 U.S at 565-66 & n.8 (applying copynght analysis only
to “ verbatim quotes” from the biography, and excluding from infringement consideration historical quotations attnb-
uted to third parties and to government documents)


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      Whether Government Reproduction o f Copynghted Materials is a Noninfringing ‘ ‘Fair Use ’


rials, and there is no copying of protected expression, there is no possibility o f
copyright infringement, and the fair-use question is inapposite.
   Moreover, even if a document or book is entitled to some copyright protection,
nevertheless, as a general matter “ fair use is more likely to be found in factual
works than in fictional works.” Stewart v. Abend, 495 U.S. 207, 237 (1990).
Accordingly, even where the government copies materials that contain protected
“ expression,” or factual compilations that arrange or select facts in a manner
sufficiently original to trigger some limited, “ thin” copyright protection,29 the
photocopying more likely will be a fair use if the purpose of the copying is simply
to obtain, collect, or study the facts and ideas contained in the materials. This
will be the case especially where, for purposes of photocopying, the facts and
ideas cannot readily be segregated from the protected expression, and where the
government’s copying of the protected expression therefore is merely incidental
to its copying of unprotected facts and ideas.30
   (e) The fourth factor that the statute expressly identifies as relevant to the fair-
use analysis is the “ effect of the use upon the potential market for or value of
the copyrighted work.” This factor requires courts “ to consider not only the extent
of the market harm caused by the particular actions of the alleged infringer, but
also ‘whether unrestricted and widespread conduct of the sort engaged in by the
defendant . . . would result in a substantially adverse impact on the potential
market’ for the original.” Campbell, 510 U.S. at 590 (quoting 3 Nimmer
§ 13.05[A][4], at 13-102.61 (1993)). The importance of this factor “ will vary,
not only with the amount of harm, but also with the relative strength of the
showing on the other [fair-use] factors.” Id. at 590 n.21.

    29“ [T]he copynght in a factual compilation is thin,” extending only to the selection or arrangement of the facts,
if any, that is original or expressive Feist, 499 U S at 348 As the Court explained-
       The mere fact that a work is copynghted does not mean that every element of the work may be protected
       Originality remains the sine qua non of copyright, accordingly, copyright protection may extend only to
       those components o f a work that are original to the author. . . Thus, if the compilation author clothes
       facts with an onginal collocation o f words, he or she may be able to claim a copynght in this written
       expression. Others may copy the underlying facts from the publication, but not the precise words used
       to present them.
Id at 348-49
   30 See. eg., Texaco, 60 F 3d at 925 & n .ll. National Rifle A s s ’n o f Am v Handgun Control Fed. o f Ohio, 15
F 3d 559, 562 (6th Cir.), cert, denied, 513 U.S 815 (1994), Texaco, 802 F Supp at 15 (although such a fact-
centered justification for photocopying “ has some m erit,'’ and is “ ingenious,” it “ simply does not fit the facts
of the case” ); see also, e g , Atari Games Corp , 975 F 2d at 843 ( “ When the nature of a work requires intermediate
copying to understand the ideas and processes in a copyrighted work, that nature supports a fair use for intermediate
copying Thus, reverse engineenng object code to discern the unprotectable ideas in a computer program is a fair
u s e ” ); Sega Enters. Ltd. v. Accolade, In c , 977 F.2d 1510, 1524—26 (9th Cir. 1992). By analogy, in the context
of publication (rather than mere reproduction) o f copynghted materials, the Supreme Court has indicated that it
may be permissible to copy protected expression verbatim where “ necessary adequately to convey the facts,” or
where particular expression is “ so integral to the idea expressed as to be inseparable from it ” Harper & Row,
471 U S at 563, see also Leval, Toward a Fair Use Standard, 103 Harv L Rev. at 1113-15. Perhaps the most
famous case of this sort is Time Inc v Bernard Geis A sso cs, 293 F. Supp. 130 (S D N Y 1968), in which the
court held that it was fair use to depict frames from the copyrighted Zapruder film in a book about the Kennedy
assassination, where there was “ a public interest in having the fullest information available on the murder of President
Kennedy,” and where such photographs made the author’s theory o f the assassination “ easier to understand,” id
at 146.


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                         Opinions o f the Office o f L egal Counsel in Volume 23


    The most obvious way in which copying can have an adverse market effect
is where it directly curtails demand for purchase of the original work, such as
where an entity uses photocopying in lieu of additional subscriptions of the
original work that it otherwise would purchase. See, e.g., Texaco , 60 F.3d at 927-
29. Furthermore, with the advent of the CCC, it now can be argued that the failure
to pay a licensing fee for the photocopying of materials covered by the CCC
has an adverse effect on another potential “ market” that was not present at the
time of W illiams & Wilkins — namely, the potential “ licensing fee” market. See,
e.g., Princeton Univ. Press, 99 F.3d at 1387-88; Texaco, 60 F.3d at 929-31.
Because this sort of “ harm ” to a licensing fee “ market” could, by definition,
exist whenever an entity refuses to provide the requested compensation for its
copies, what is significant is not the simple question of whether any such market
harm exists, but rather, the magnitude and effect of the harm. “ Market harm is
a matter of degree.” Campbell, 510 U.S. at 590 n.21.31 Harm to this potential
 “ licensing fee” market, like other forms of market harm, should be germane to
the fair-use analysis only if, and to the extent that, such harm would deter “ ‘the
creation and publication of edifying matter.’ ” Id. at 578 n.10 (quoting Leval,
Toward a F air Use, 103 Harv. L. Rev. at 1134). If “ unrestricted and widespread
[photocopying] o f the sort engaged in by the [government],” Campbell, 510 U.S.
at 590 (internal quotation marks omitted) would not appreciably alter the incen­
tives to create and disseminate the underlying works (and other “ edifying”
original creations), the harm to the fee “ market” should have correspondingly
limited impact when evaluating this fair use factor.

                                               Conclusion

  There is no “ per se” rule that government reproduction of copyrighted mate­
rial— including, in particular, government photocopying of copyrighted materials
for internal government use — automatically qualifies as a fair use under section
107 of the Copyright Act of 1976. However, government photocopying would
in many contexts be noninfringing because it would be a “ fair use” ; and there
are good reasons that, if an agency decides to negotiate photocopying licensing
agreements, it should seek to limit the scope of any such arrangement to cover
only those government photocopying practices that otherwise would, in fact, be
infringing.

                                                                     RANDOLPH D. MOSS
                                                              Acting Assistant Attorney General
                                                                   Office o f Legal Counsel

 31 See also W illiam W Fisher III, Reconstructing the Fair Use D octnne, 101 Harv L. Rev 1659, 1671-72 (1988).


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